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 club,
Club S, from country U
as Claimant
against the player,
Player D, from country B
as Respondent
and the club,
Club G, from country B
as Intervening Party
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 17 June 2011, Player D, from country B (hereinafter: player or Respondent) and
Club S, from country U (hereinafter: Club or Claimant) signed a document
containing the following terms:
a)
The club offers the player to become one of its team players for the sporting
season 2011/12 as well as, “if the club is interested”, an additional sporting
season;
b)
The total remuneration to be paid by the club to the player amounts to USD
400,000 for the first sporting season and to USD 440,000 for the optional
additional sporting season;
c)
The document also contains various fringe benefits, such as accommodation,
transportation, flight tickets and bonuses in relation to victory and ranking;
d)
Paragraph G of the document reads that “We hope that you agree and
accept our offer, if so please sign and e-mail back with your signature”;
e)
Paragraph H of the document reads that “A complete contract will be
signed on your arrival to country U and passing the medical examination”.
2.
According to the country U Football Association, the sporting season 2011/12 lasted
as from 10 September 2011 until 27 May 2012 and the sporting season 2012/13 as
from 27 September 2012 until 28 May 2013.
3.
On 3 August 2011, the club lodged a claim against the player for breach of contract
and requested to be granted compensation as a result of the player’s alleged breach
of contract.
4.
In its claim, the club explained that successful negotiations with the player led both
parties to agree on contractual terms.
5.
As a confirmation of his intention to join the club, the player signed the letter
containing the club’s offer and he provided the club with a copy of his passport so
that the club could proceed with the visa-related formalities. The club also booked
flight tickets so as to organise the player’s travel to the club’s premises.
6.
According to the club, a binding contract had therefore been entered into by and
between the club and the player.
7.
However, the club asserted that instead of joining the club, the player entered into
another contract with another club, which is a breach of the contract he signed with
Club S, country U / Player D, from country B
Club G, from country B
/
Page 2/11
the Claimant as well as a breach of the FIFA Regulations on the Status and Transfer
of Players.
8.
Consequently, the club claimed compensation for breach of contract in the total
amount of USD 1,000,000, which was detailed as follows:
USD 500,000 as moral damages (“waste of time and effort” of the club);
USD 500,000 as “materialistic” damages (preparation of the documents
related to the player’s recruitment, non-recruitment of another player since
the club considered itself as already contractually bound to the player).
9.
In his reply to the claim, the player rejected the club’s claim, considering it to be
unfair.
10.
In this respect, the player explained that at the time when he signed the club’s
offer, he was contractually bound to Club G, from country B (hereinafter: Club G or
Intervening Party) until 31 December 2012, but that Club G had loaned him for a
year to Club I, form country K as from January 2011. However, in May 2011, his
employment contract with Club I was amicably terminated and the player was to
return to Club G.
11.
In continuation, the player held that upon his return to country B, Club G advised
him to look for a future contract with another club. According to the player, it is in
this context that he was approached by the Claimant.
12.
According to the player, after both parties orally agreed on contractual terms, the
Claimant sent an offer to the player. However, the player declared that from the
email containing the club’s offer, it was clear that the document at stake was not a
pre-contract, but an official offer which the player was requested to sign to inform
the club as to whether the offer was satisfactory to him.
13.
In this regard, the player specified that he was willing to join the Claimant as the
terms of the contract proposed by the Claimant were more interesting than the
contract the player had in country K or in country B.
14.
What is more, the player reported that Club G promised to release him without
asking any compensation in relation to his transfer to the Claimant.
15.
However, according to the player, a few weeks before joining the Claimant, Club
G’s management changed and the new management informed the player that it
was counting on him until the end of the contract, i.e. December 2012. In spite of
the player’s alleged efforts to resolve the situation, Club G reportedly did not
change its position and refused to let the player join the Claimant.
Club S, country U / Player D, from country B
Club G, from country B
/
Page 3/11
16.
In this respect, the player stressed that the club’s representation of the facts is
incorrect, since he did not sign any new contract with any another club. In fact, the
player stayed with Club G, the club to which he already was bound by contract.
17.
Also, the player declared that he offered to compensate the club for the costs
incurred in relation to his recruitment, but that the club would have rejected his
offer.
18.
In its replica, the club held that the player’s explanations are unacceptable.
19.
What is more, the club highlighted that all the steps that were taken in relation to
the player’s arrival, such as visa/work permit or the purchase of the player’s flight
tickets were implemented as a result of the player’s acceptance of the offer and the
player’s signature of the agreement stipulating the contractual terms.
20.
As a consequence, the club maintained its claim in full.
21.
In spite of having been invited to present his duplica, no further reaction was
received from the player.
22.
Club G submitted the following comments in relation with this matter.
23.
First, Club G confirmed to have been contractually bound to the player between 13
December 2007 and 30 December 2012.
24.
Also, it confirmed that it transferred the player on a loan basis to Club I between 1
January 2011 until 31 December 2011, but that on 30 June 2011, the player and Club
I terminated their employment contract.
25.
In this respect, Club G explained that whilst the player was on loan with Club I, the
player contacted Club G informing them that he had terminated his employment
contract with Club I. In this regard, Club G reported that said termination took place
without Club G’s information or approval.
26.
In continuation, Club G explained that the player also asked to terminate their
contractual relation, since he had received an offer from another club and that he
was willing to accept such offer.
27.
In this regard, Club G held that it refused to put an end to the contract signed with
the player, since (i) such club never contacted Club G and (ii) Club G had no interest
to release the player without receiving any financial compensation. The player,
therefore, had to return to Club G.
28.
Finally, Club G stressed that the player signed an offer dated 17 June 2011 and
transmitted to Club G a termination agreement he signed with Club I on 30 June
Club S, country U / Player D, from country B
Club G, from country B
/
Page 4/11
2011. Hence, Club G underlined that the Claimant contacted the player while the
latter was on loan and that Club G had never been informed of, let alone approved,
these circumstances.
29.
Club G therefore considered that it did not breach any regulations and always acted
lawfully. Club G also believed that probably the Claimant wanted to hire the player
for free and asked him to put an end to his employment contract(s) before joining
it.
30.
In accordance with the employment contract signed with Club G, valid as from 22
February 2010 until 30 December 2012, the player’s monthly remuneration
amounted to currency of country B 5,000 as from 1 July 2011.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 3 August
2011. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns a dispute between an country E club against a
country B player and involving a country B club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2012), and considering that the present claim was lodged on 3 August 2011, the
2010 edition of the said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
Club S, country U / Player D, from country B
Club G, from country B
/
Page 5/11
5.
In view of the allegations and arguments presented by the parties involved in the
present matter, the Chamber underlined that in order to be able to establish as to
whether, as claimed by Claimant, a breach of contract had been committed by the
player, it should first of all pronounce itself on the issue of the nature of the
relevant document which was signed by and between the Claimant and the
Respondent in June 2011, i.e. it should answer the question as to whether this
document constitutes a legally binding employment contract.
6.
In this respect, the Chamber noted that whereas the Respondent duly signed the
document dated 17 June 2011 presented by the Claimant, the Respondent held that
this document cannot be considered a valid employment contract due to various
reasons that have been hereinbefore exposed.
7.
Having stated the aforementioned, the Chamber highlighted that, in order for an
employment contract to be considered as valid and binding, apart from the
signature of both the employer and the employee, it should contain the essentialia
negotii of an employment contract, such as the parties to the contract and their
role, the duration of the employment relationship, the remuneration payable by the
employer to the employee in exchange of the latter’s services.
8.
After careful study of the duly signed document presented by the Claimant, the
Chamber concluded that all such essential elements are included therein, in
particular, the facts that the document establishes that the player has to render his
services to the Claimant during a fixed period of time, which, in exchange thereof,
has to remunerate the player, the value of which remuneration has been clearly
specified in the document.
9.
In continuation, the Chamber reverted to the Respondent’s allegation that in the
email he declared he received from the Claimant, and which reportedly contained
the document at stake, he was only asked to give his consent to an offer from the
Claimant.
10.
In this regard, the members of the Chamber referred to art. 12 par. 3 of the
Procedural Rules, which sets forth that any party claiming a right on the basis of an
alleged fact shall carry the burden of proof, and duly noted that the Respondent
had not submitted any documentary evidence in support of his allegation.
Consequently, the Chamber concluded that the player’s respective argument is to be
dismissed.
11.
On account of the above, the Chamber came to the firm conclusion that the
document signed by and between the Claimant and the Respondent on 17 June
2011 was a valid employment contract (hereinafter: employment contract or
contract) binding the parties at least for the 2010/11 season.
Club S, country U / Player D, from country B
Club G, from country B
/
Page 6/11
12.
Having so found, the Chamber continued its analysis and turned its attention to the
question of the alleged breach of contract without just cause by the Respondent.
13.
In this respect, the Chamber was eager to highlight that based on the parties’
respective statements and the documentation available on file, it was undisputed
that the Respondent never joined the Claimant in order to offer his services to the
Claimant in accordance with the employment contract.
14.
Indeed, at the time when the player should have joined the Claimant, the player
stayed in country B in order to execute his employment contract with the
Intervening Party, which was still to run until December 2012.
15.
On account of the above, the Chamber concluded that the Respondent signed two
employment contracts covering the same period of time, with two different clubs,
since at the time he signed the contract with the Claimant, which was at least valid
for the 2011/12 season, the Respondent was still contractually bound to Club G until
December 2012.
16.
Therefore, taking into consideration all the above, the Chamber decided that the
player had acted in breach of the employment contract without just cause.
17.
Given the additional circumstance of the signature of two employment contracts for
the same period of time, with two different clubs, the Chamber recalled that,
according to art. 18 par. 5 of the Regulations, if a player enters into more than one
employment contract for the same period of time, the provisions of Chapter IV of
the Regulations regarding the maintenance of contractual stability between
professionals and clubs shall apply (cf. art. 18 par. 5 of the Regulations).
18.
In continuation, the members of the Chamber referred to item 7. of the
“Definitions” section of the Regulations, which stipulates inter alia that the
protected period comprises “three entire seasons or three years, whichever comes
first, following the entry into force of a contract, where such contract is concluded
prior to the 28th birthday of the professional, or two entire seasons or two years,
whichever comes first, following the entry into force of a contract, where such
contract is concluded after the 28th birthday of the professional”. In this regard, the
Dispute Resolution Chamber pointed out that given the facts of the present case,
the unjustified breach of contract by the Respondent had obviously occurred within
the applicable protected period.
19.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by
the Respondent during the protected period.
20.
In this respect, the DRC established that, in accordance with art. 17 par. 1 of the
Regulations, the player is liable to pay compensation to the Claimant.
Club S, country U / Player D, from country B
Club G, from country B
/
Page 7/11
21.
Bearing in mind art. 17 par. 2 of the Regulations, in accordance with which the new
club shall be jointly and severally liable for the payment of compensation, the
members of the Chamber deemed it material to underline that since the Intervening
Party is the club with which the Respondent was still registered and contractually
bound to when he signed the contract with the Claimant, in the present situation,
Club G is not the player’s new club in the sense set forth in the applicable
Regulations. Consequently, the members unanimously agreed that the Intervening
Party shall not be held jointly and severally liable for the payment of the amount of
compensation payable by the Respondent to the Claimant.
22.
The members of the Chamber then recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including in particular the remuneration and
other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years
as well as the fees and expenses paid or incurred by the former club (amortised over
the term of the contract) and whether the contractual breach falls within a
protected period.
23.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party in the event of breach of contract. Upon careful
examination of the contract, the members of the Chamber assured themselves that
this was not the case in the matter at stake.
24.
As a consequence, the members of the Chamber determined that the amount of
compensation payable in the case at stake had to be assessed in application to the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled
that said provision provides for a non-exhaustive enumeration of criteria to be
taken into consideration when calculating the amount of compensation payable.
Therefore, other objective criteria may be taken into account at the discretion of
the deciding body. In this regard, the Dispute Resolution Chamber emphasized
beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter.
25.
The Chamber further recalled that the Claimant had claimed compensation in the
amount of USD 1,000,000. In this respect, the members of the Chamber took due
note that the Claimant had not presented any detailed breakdown of such amount,
nor any documentation justifying its quantum.
Club S, country U / Player D, from country B
Club G, from country B
/
Page 8/11
26.
In order to calculate the amount of compensation due to the Claimant in the
present case, the Chamber first turned its attention to the remuneration and other
benefits due to the player under the existing contract and/or any new contract(s),
which value constitutes an essential criterion in the calculation of the amount of
compensation in accordance with art. 17 par. 1 of the Regulations. The members of
the Chamber deemed it important to emphasise that the wording of art. 17 par. 1
of the Regulations allows the Chamber to take into account both the existing
contract and any new contract(s) in the calculation of the amount of compensation.
27.
In accordance with the player’s employment contract with the Claimant, which was
still to run for one season as of the moment when the breach of contract occurred,
the Respondent was to receive remuneration equalling USD 400,000 over a period
of time of nine months, i.e. as from September 2011 until the end of the month of
May 2012 related to the Emirati 2011/12 sporting season. On the other hand, the
value of the employment contract concluded between the Respondent and the
Intervening Party, during the period of time in which the Respondent was to render
his services to the Claimant, i.e. as from September 2011 until the end of May 2012,
is of USD 28,944. Accordingly, under the aforementioned employment contracts, the
Respondent was to receive the average income of USD 214,472 during the period of
time the Respondent was to render his services to the Claimant.
28.
In continuation, and referring to art. 12 par. 3 of the Procedural Rules, the Chamber
established that it had no documentary evidence at its disposal regarding possible
fees and expenses actually paid or incurred by the Claimant for the acquisition of
the player’s services and that therefore it could not further consider that criterion in
the specific case at hand, whereas according to art. 17 par. 1 of the Regulations such
fees and expenses may be included as one of the criteria to be taken into account in
the calculation of the compensation.
29.
Having said that, the Chamber referred to its constant practice and the general
obligation to mitigate damages and pointed out in this context that although the
relevant employment contract was fully valid and enforceable, the execution
thereof had actually never started. The Chamber deemed that such circumstance
should be taken into consideration in the calculation of the amount of
compensation for breach of contract and decided to reduce the aforementioned
amount of USD 214,472 to USD 75,000.
30.
In view of all of the above, after having duly taken into account the specificities of
the present case, the Chamber decided that the Respondent, Player D, has to pay
the amount of USD 75,000 to the Claimant, Club S, as compensation for breach of
contract.
31.
Bearing in mind the consideration under point II./21. above, the Dispute Resolution
Chamber determined that the Intervening Party, Club G, is not jointly and severally
liable for the payment of the compensation due by the Respondent to Club S.
Club S, country U / Player D, from country B
Club G, from country B
/
Page 9/11
32.
In continuation, the Chamber focused its attention on the further consequences of
the breach of contract by the Respondent within the protected period, and in this
respect, addressed the question of sporting sanctions against the player in
accordance with art. 17 par. 3 of the Regulations. The cited provision stipulates inter
alia that sporting sanctions shall be imposed on any player found to be in breach of
contract during the protected period. Furthermore, the Chamber highlighted that
art. 18 par. 5 of the Regulations, which deals with the consequences of entering into
more than one contract covering the same time period, clearly states that a player
shall be subject to the provisions of Chapter IV of the Regulations regarding the
maintenance of contractual stability between professional and clubs.
33.
Returning to the facts of the case at hand, the Chamber recalled that the
Respondent had signed two employment contracts for the same period of time with
two different clubs, which circumstance is at the basis of the breach of the contract
with the Claimant by the Respondent in the case at hand. Consequently, and in line
with its constant practice, the Chamber decided that by virtue of art. 17 par. 3 of the
Regulations, the player shall be sanctioned with a restriction of four months on his
eligibility to participate in official matches. In this context, the Chamber recalled
that this is the minimum sanction provided for by the Regulations and the Chamber
does not have any scope of discretion to diminish the duration of the suspension.
This sanction shall take effect immediately after notification of the present decision.
34.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by rejecting any further request filed by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club S, is partially accepted.
2.
The Respondent, Player D, has to pay compensation for breach of contract in the
amount of USD 75,000 to the Claimant within 30 days of notification of the present
decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned
time limit and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its consideration and a formal decision.
4.
Any further claim filed by the Claimant is rejected.
5.
A restriction of four months on his eligibility to play in official matches is imposed
on the Respondent. This sanction shall take effect as from the notification of the
present decision.
Club S, country U / Player D, from country B
Club G, from country B
/
Page 10/11
6.
The Claimant is directed to inform Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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
Club S, country U / Player D, from country B
Club G, from country B
/
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