Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 May 2014,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 4 July 2007, the player from country B, Player A (hereinafter: the Claimant or player),
concluded an employment contract (hereinafter: the contract) with the club from
country D, Club C (hereinafter: the Respondent or club), valid from the date of the
signature until the end of the season 2010/2011.
2.
According to the contract the player would receive for the season 2009/2010 as well as
for the season 2010/2011 a monthly salary of 109,450 plus a signing on fee amounting
to 172,000 in August of each season. Moreover, according to clause 17.1. the player
would be entitled twice every season to a flight ticket (return) to his country of origin.
3.
As from January 2008 until May 2009 the player was rendering his services to clubs in
country B.
4.
On 7 September 2009, the player contacted FIFA arguing that at the end of his loan to
a club from country B, on 26 May 2009, he requested from the club the flight ticket to
enable him to return to the club to render his services, however, without success. He
purchased a ticket and returned to the club on 28 June 2009. However, apparently the
club was no longer interested in his services. He notified the club several times in order
to get any information, however, without success. The player provided some
documents in this respect. The player further explains that he was informed by a
member of the club about an alleged termination agreement that he would have
signed on 6 January 2008. The player also provided a copy of such document. According
to the said document (hereinafter: termination agreement) the parties would have
agreed on the early termination of the contract and the player confirmed that the
amount of 60,530 (USD 17,400) was a “final discharge of the contract” and “ In the act
of transferring the referred amount to my account, I will no longer have the right to
claim or demand any amount”.
5.
Yet, according to the player another document was signed on the same day, document
also provided by player, (hereinafter: second document) according to which the player
would have received the amount of USD 15,900 as an advance payment for his future
salary. The player argues that at the time he signed the documents, he was advised by
a translator of the club, who informed him that the two documents were only receipts
of amounts paid for the worked days in January 2008. Considering the club’s lack of
Player A, country B / Club C, country D
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information, the player terminated the contract in writing on 13 July 2009. The player
provided a copy of the termination letter.
6.
As a result, the player claims the outstanding salaries for June and July 2009 (17 June
2009 until 13 July 2009, 26 days) in the amount of USD 24,663, the remaining value of
the contract as compensation in the amount of USD 758,180, the reimbursement of the
airplane ticket in the amount of USD 2,787, 5% interest and sanctions to be imposed
on the club.
7.
The player deems that the fact that he was transferred on loan to the club from country
B, Club E, on 20 January 2008 and after the end of his contract with Club E, he was
transferred on loan again to Club F until 17 June 2009 proofs that he was still bound
by an employment contract to the club. The player provided a copy of an International
Transfer Certificate (ITC) issued by the Country D Football Association to the Country B
Football Association dated 3 February 2009 with the remark: “The player is on
agreement loan till 17.06.2009”.
8.
On 7 September 2010, the club rejected the claim of the player arguing that after only
a few months he informed the club that he wished to return to country B to his family.
Therefore the parties mutually terminated the contract on 6 January 2008; the club
provided a copy of the termination agreement. The club emphasized that the player
has not provided any evidence that the termination agreement was a forgery or that
he was forced to sign it. Moreover, the club emphasized that the content of the
termination agreement had been read and explained to him in his own language and
that he understood its meaning and agreed to sign it on his free will. The club also
explained that at the request of the player the club agreed to loan him to two different
clubs from country B. The club facilitated the player’s temporary employment with
these clubs by signing the required releases for such loans. The club provided a copy of
the “release” signed by the player and the club from country B, Club F. By means of this
document the club affirmed that the player will be on loan until 17 June 2009. At the
end of the loan period, the player will be obliged to notify the club about the potential
team for which he intends to play in order to allow the club to agree with the new
team upon the financial terms of the player’s transfer and employment.
9.
As a result, the club deems that the claim is groundless since it refers to the period after
the execution of the termination agreement. The player evidently agreed to the
Player A, country B / Club C, country D
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termination of his employment agreement and was no longer employed by the club as
from January 2008.
10.
In his second submission the player first requested that the DRC should disregard the
late submission of the club. As to the substance the player contested the club’s
allegations. As to the termination agreement, the player once again emphasized that
he was informed by the translator of the club that such documents referred to a
payment made in connection with his salary for January 2008 and that he was loaned
to the club from country B until 17 June 2009.
11.
In its second submission, the club contested the competence of the DRC. As to the
substance the club provided some testimonies of club’s representatives in connection
with the player’s request to return to country B due to personal issues. Moreover, the
club insists that the player intends to mislead FIFA, first the player denies the existence
of the termination agreement, then he objects to the true intentions of its content and
finally the player requests that FIFA should not consider the submissions of the club.
The club explained that in spite of the financial damage it would incur it had decided
to approve the player’s request to prematurely terminate the contract. Such
termination was subject to the verbal agreement between the parties that if in the
future the player were to enter into an agreement with a third club that was willing to
pay for his transfer and services, the player would notify the club and allow the latter
to receive some monetary compensation to compensate the club for paying such a high
transfer compensation (USD 375,000). Furthermore, the club emphasized that the
amount of USD 15,900 corresponded to 60,530 on 6 January 2008 and therefore the
player signed both documents on 6 January 2008. The second document when he
received the amount in cash and the termination agreement to confirm that he
received the amount as final discharge of the contract. Since the player signed the
second document, according to which he undertook to pay said amount back to the
club or in the alternative the club to take it back from his next salary, the club was no
longer obliged to transfer said amount to his account as stated in the termination
agreement and the amounts were set off against each other’s. Also the allegation of
the player that the amount mentioned in the second document was paid as an advance
for the 6 days in January is fabricated as USD 15,900 is more than ½ a monthly salary.
The player did not provide any evidence to support any of its allegations. The fact that
the player knew that he was no longer playing for the club is supported by the fact
that he was transferred several times between different clubs from country B in 2008,
2009 and 2010 without the knowledge /intervention of the club, the player had
Player A, country B / Club C, country D
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rendered his services to 5 different clubs since the termination. As a result, the club
requested the DRC to dismiss all financial claims of the player.
12.
Upon FIFA’s request the player explained that he signed an employment contract with
the club from country B, Club G, valid as from 1 January 2010 until 31 December 2010.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect,
the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 7
September 2009. Consequently, the Chamber concluded that the former Procedural
Rules (edition 2008) are applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the
Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of
Players (edition 2012). In accordance with art. 24 par. 1 in combination with art. 22 lit.
b) of the aforementioned Regulations, the Dispute Resolution Chamber would, in
principle, be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
country B and an club from country D.
3.
However, the Chamber acknowledged that the Respondent contested the competence
of FIFA explaining that the national sports arbitration bodies are competent.
4.
While analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber considered that it should, first and foremost, analyse whether the
employment contract at the basis of the present dispute actually contained a clear
jurisdiction clause towards another decision-making body.
5.
In this respect, the Chamber deemed it of utmost importance to highlight that the
contract signed between parties does not contain any jurisdiction clause at all. In view
Player A, country B / Club C, country D
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of the aforementioned, the competence of Chamber is confirmed and the claim is
admissible.
6.
Finally, and for the sake of completeness, the members of the Chamber also underlined
that the Respondent did not provide any documentary evidence to support its
allegations in relation to the competence question.
7.
Subsequently, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter.
8.
In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2012, 2010, 2009 and 2008)
and, on the other hand, to the fact that the present claim was lodged on 7 September
2009. The Dispute Resolution Chamber concluded that the 2009 version of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
9.
The competence of the Chamber and the applicable regulations having been
established, the Chamber started by acknowledging the above-mentioned facts as well
as the documentation contained in the file. However, the Chamber emphasised that in
the following considerations it will refer only to the facts, arguments and documentary
evidence which it considered pertinent for the assessment of the matter at hand.
10.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 4 July 2007, they signed an employment contract valid as from the date
of signature until the end of the season 2010/2011, according to which the Claimant
was entitled to receive the remuneration detailed in point I.2. above.
11.
The DRC noted that, on the one hand, the Claimant claims that on 13 July 2009 he
terminated the contract in writing with just cause. In particular the Claimant states that
when he returned from loan in June 2009 the Respondent was no longer interested in
his services and he was informed about an alleged termination agreement that he
would have had signed on 6 January 2008.
12.
In view of the foregoing the Claimant terminated the contract, in writing, on 13 July
2009 and on 7 September 2009, he lodged a claim in front of FIFA against the
Player A, country B / Club C, country D
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Respondent, requesting the payment of outstanding remuneration and compensation
for breach of contract, as detailed in point I.6. above.
13.
Subsequently, the DRC noted that, on the other hand, the Respondent claims that upon
the Claimant’s request the parties mutually terminated the contract and signed the
termination agreement on 6 January 2008.
14.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant and the allegations of the
Respondent, was to determine whether the employment contract had been mutually
terminated by the parties in January 2008 or with just cause by the Claimant in July
2009. The Chamber also underlined that, subsequently, if it were found that the
employment contract had been breached by one of the parties without just cause, it
would be necessary to determine the consequences for the party that caused the unjust
breach of the relevant employment contract.
15.
In view of the above, the Chamber first focused its attention on the termination
agreement by means of which the Claimant confirmed that the amount of 60,530 was
a “final discharge of the contract” and “In the act of transferring the referred amount
to my account, I will no longer have the right to claim or demand any amount”.
16.
The Chamber also noted the content of the second document: “I, Player A here by to
confirm that I have Received an amount of 15900$, on 6/1/08, from Club C… I promise
to pay this amount in cash or allow you to take it of my next salary.”
17.
In this respect, the Chamber took due note that, on the one hand, the Claimant argues
that at the time he signed the documents, he was advised by a translator of the
Respondent, who informed him that the two documents were only receipts of amounts
paid for the days he had rendered his services to the Respondent in January 2008 as
indicated in point I.4. 5. and 10. above.
18.
The Chamber also observed that the Respondent, on the other hand stated that the
amount of USD 15,900 corresponded to 60,530 in January 2008. Thus, the Claimant
signed the second document when he received the amount in cash and the termination
agreement to confirm that he received the amount as final discharge of the contract.
Since the player signed the second document, according to which he undertook to pay
said amount back to the club or in the alternative the club to deduct it from his next
Player A, country B / Club C, country D
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salary, the club was no longer obliged to transfer said amount to his account as stated
in the termination agreement and the amounts were set off against each other.
19.
In connection with the preceding paragraphs, the Chamber noted that the Claimant
did neither contest the validity of the termination agreement nor that he had in fact
signed the relevant termination agreement but holds that he was misled from the
actual content of the termination agreement, since the original version was in the
language of country D.
20.
In this regard, the Dispute Resolution Chamber was eager to emphasise that in
accordance with its well as well-established jurisprudence a party signing a document
of legal importance without knowledge of its precise contents, as a general rule, does
so on its own responsibility.
21.
Moreover, the Chamber confirmed that as stated by the Respondent the amount of
60,530 corresponded to more or less USD 15,880 on 6 January 2008 and it remains
uncontested that the Claimant received said amount.
22.
Finally, the member of the Chamber did not follow the argumentation of the Claimant,
by means of which the above-mentioned amount would have been paid to him as an
advance payment for rendering his services to the club during 6 days in January 2008,
particularly considering that said amount corresponds to more than half of a monthly
salary.
23.
In view of all the foregoing, the members of the Chamber concluded that the parties
had indeed agreed upon the premature termination of the contract by means of the
document signed on 6 January 2008.
24.
Consequently, taking into account the clear wording of the termination agreement
“final discharge of the contract” and “In the act of transferring the referred amount
to my account, I will no longer have the right to claim or demand any amount” and the
fact that the amount agreed upon in the termination agreement has been paid to the
Claimant, the Dispute Resolution Chamber unanimously concluded to reject the claim
of the Claimant.
Player A, country B / Club C, country D
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II.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS, a copy of which we
enclose hereto. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal arguments
giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and
contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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