Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2015,
in the following composition:
Geoff Thompson (England), Chairman
Damir Vrbanovic (Croatia), member
Alejandro Marón (Argentina), member
Rinaldo Martorelli (Brazil), member
Johan van Gaalen (South Africa), member
on the matter between the player,
Player A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent 1
and the club,
Club E, Country F
as Respondent 2
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. According to the Player A (hereinafter: the Claimant), on 30 January 2013, he
signed a contract (hereinafter, the 2012-2013 contract with Respondent 1) with
the Club of Country D, Club C (hereinafter: Respondent 1), valid until 30 June
2014.
2. According to the 2012-2013 contract with the Respondent 1, the Claimant was
entitled, during the 2012/2013 season, to a remuneration equivalent to the
“Federal Minimum”, which the Claimant evaluates in the amount of EUR
59,797.92, in accordance with the Collective Agreement between the Football
Federation of Country D and Professional League of Country D.
3. Subsequently, on 27 August 2013 the Claimant signed a second employment
contract with the Respondent 1, valid as from the date of signature until 30 June
2014 (hereinafter, the 2013-2014 contract with Respondent 1).
4. According to the 2013-2014 contract with Respondent 1, the Claimant was
entitled to a remuneration in the amount of EUR 29,900 during the 2013-2014
season. According to the Claimant, this amount was to be paid in monthly
instalments of EUR 2,990 each, commencing as of 28 September 2013 until 30
June 2014.
5. According to the Claimant, on 5 February 2013, he transferred on loan from the
Respondent 1 to the Club of Country F, Club E (hereinafter: Respondent 2) and
signed an “agreement of a professional football player” with said club
(hereinafter: the contract with Respondent 2), valid as from 5 February 2013 until
31 December 2013.
6. According to the contract with Respondent 2, the Claimant was entitled to a
salary in the amount of “Euro 1000/month and premium”.
7. In addition, the contract with Respondent 2 contained, inter alia, the following
clause:
“The Football Club employs the Football Player as professional contractual
football player according to the Act on Sport of Country F as well as the rules of
the Football Federation of Country F”.
8. On 12 July 2013, the contract with Respondent 2 was mutually terminated
through an “Agreement” signed by the Claimant and Respondent 2. In this
regard, clause 2) of said agreement stipulated the following:
“2) The Parties unanimously declare that they do not have and cannot have any
claims against each-other, and that they cannot challenge this Agreement”
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D, and Club E, Country F
2
9. On 18 November 2014, the Claimant lodged a claim before FIFA both against the
Respondent 1 and Respondent 2, and requested the DRC to condemn the
Respondent 1 to pay him the total amount of EUR 20,155, plus 5% interest p.a.,
as outstanding salaries, detailed as follows:
-EUR 12,457.90, for the period comprised between 30 January 2013 until 30 June
2013 (EUR 2,491.58 per month);
-“EUR 7,698” for the period comprised between 1 July 2014 until 30 August 2014
(EUR 2,566 per month).
10. Alternatively, the Claimant requested the DRC to condemn both respondents to
pay the same total sum (i.e. EUR 20,155, plus 5% interest p.a.) to the following
extent:
-“EUR 15,155.90”, for the period comprised between 30 January 2013 until 30
June 2013 (EUR 7,457.90=5*1,491.58, calculated as the difference between the
salary agreed with the Respondent 1 (EUR 2,491.58) and the salary agreed with
Respondent 2 (EUR 1,000), to be paid by the Respondent 1, plus EUR 4,983.16 for
the salaries of July and August 2014;
-EUR 5,000, to be paid by Respondent 2, corresponding to the period of validity
of the contract signed with this club (i.e. 5 months).
11. Furthermore, the Claimant suggested an “indemnification or compensation” to
be paid by the respondents in addition to the outstanding salaries in the amount
of EUR 15,000 or “as wisely determined by the DRC” to the extent of the liability
of the respondents towards the Claimant.
12. Moreover, the Claimant requested the payment of the costs related to the
proceedings, including the attorney’s fees.
13. In addition, the Claimant informed that he transferred on loan to the Club of
Country B Club G on 2 September “2014”.
14. Finally, the Claimant underlined that he tried to contact the respondents via
email and letter in order to claim the overdue salaries before lodging his claim.
15. On 1 December 2014, the Respondent 2 replied to the claim, and declared the
following:
“(…) We would like to spend some part of the money (what we had to get from
[the Respondent 1]) for the salary of [the Claimant]. It is agreed that [Respondent
2] only pays to the [Claimant] if [the Respondent 1] pays his obligations to [the
Respondent 2]. This has not taken place yet after numerous notice to the
[Respondent 1] (…) we understand the [Claimant’s] problem and position, so if
our club financial situation allows it shortly we will make his payment”.
16. In this regard, Respondent 2 attached a document sent to it by the Respondent 1,
available only in Language of Country D and dated 5 February 2013, by means of
which the Respondent 1 established the payment of EUR 25,000 to the Claimant.
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D, and Club E, Country F
3
17. In addition, Respondent 2 attached an agreement or “Declaration”, dated 8
February 2013, apparently signed by this club and by the Claimant, by means of
which they agreed upon the following:
“In the case of [the Respondent 1] does not settle the payments until the
deadline described in, [Respondent 2] unilaterally can terminate the [Claimant’s]
contract without financial and legal consequences”.
18. On 15 January 2015, the Respondent 1 replied to the claim. According to this
club, the Claimant was never registered with it during the period comprised
between 30 January 2013 and 30 June 2013. Furthermore, the Respondent 1
attached a copy of an ITC in order to prove that the Claimant was only registered
with it on 27 August 2013. Moreover, with regard to the 2012-2013 contract, the
Respondent 1 argued that the signature of the managing director is missing.
19. In reference to the 2013-2014 contract with it, the Respondent 1 considered that,
following his release from Respondent 2, the Claimant was transferred “free of
charge on a temporary basis to Club G” on 1 September 2013, and therefore
requests the DRC to “take this circumstance into due consideration”.
20. Finally, the Respondent 1 requested to reject all claims made by the Claimant and
in all cases, to award expenses for the proceedings.
21. On 12 February 2015, the Claimant insisted that the 2012-2013 contract with the
Respondent 1 was valid as from 30 January 2013. In this regard, the Claimant
stated that the contract was signed in the presence of the executive director of
the Respondent 1. In reference to the allegation made by the Respondent 1 over
the non-registration of the Claimant during the disputed period, the Claimant
considered that his claim is not made in reference to this, but to the existence of
an agreement between the Respondent 1 and him.
22. In addition, the Claimant underlined that the Respondent 1 never denied the
existence of the 2013-2014 contract with this club, which entitled him to an
amount of EUR 29,900 for the entire season.
23. In reference to the arguments of Respondent 2, the Claimant considered that the
employer should be consistent with his obligations, despite the agreements
existing with a third party. Thus, the Claimant considered that the argument of
Respondent 2, according to which it agreed to pay only if the Respondent 1 did,
is illegal.
24. On 16 February 2015, Respondent 2 submitted an unsolicited correspondence, by
means of which it declared that “the facts what our club outlined in the previous
messages do not change”.
25. Despite being invited to do so, none of the respondents provided any final
comments to this case.
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D, and Club E, Country F
4
26. According to the information available in the Transfer Matching System (TMS),
the Claimant de-registered from his previous club, Club H, on 7 December 2012,
and the ITC in favour of the Football Federation of Country F was issued on 22
February 2013.
27. In addition, and according to the information available in the TMS, the Claimant
de-registered from Respondent 2 on 30 June 2013 and the ITC in favour of the
Football Federation of Country D was issued on 29 August 2013.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, it took note that the present matter was submitted to FIFA on 18
November 2014. Consequently, the 2014 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
of the 2014 and 2015 editions 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 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a Player of Country B, a Club of Country D and
a Club of Country F.
3. The competence of the Chamber having been established, 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. 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 (editions 2014 and 2015), and considering that the present
matter was submitted to FIFA on 18 November 2014, the 2014 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the
matter. However, the Chamber emphasised that in the following considerations it
will refer only to the facts, arguments and documentary evidence which it
considered for the assessment of the matter at hand.
5. In this respect, the Chamber took note that, according to the Claimant, an
employment contract was concluded and properly formalized between him and
the Respondent 1 on 30 January 2013, with a period of validity until 30 June
2014.
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D, and Club E, Country F
5
6. Moreover, the members of the DRC also took note that, on 5 February 2013, the
Claimant transferred on loan to Respondent 2, with which he concluded an
employment contract, valid until 31 December 2013.
7. In view of the above, the members of the Chamber observed that the Claimant
requested the DRC to condemn the Respondent 1 to pay him a series of amounts
for the period comprised between 30 January 2013 until 30 June 2013,
corresponding to outstanding salaries.
8. In consideration of the simultaneous conclusion by the Claimant of an
employment agreement with the Respondent 1 and Respondent 2 during the
overlapping period between 5 February 2014 and 31 December 2013, the
Members of the Chamber considered relevant to establish the obligations of the
aforementioned respondents towards the Claimant during the considered period.
9. In this regard, the members of the Chamber highlighted that, in the event of a
loan, the jurisprudence of the DRC has established that, unless otherwise stated,
the effects of the original contract (i.e. the contract with the Respondent 1) are
deemed as suspended during the entire duration of the loan.
10. In this context, the Chamber noticed that, none of the contracts signed between
the Claimant and the respondents (i.e. the Respondent 1 and Respondent 2)
settled any type of shared or mutual obligations towards the Claimant between
the involved clubs during the considered loan period.
11. Furthermore, the members of the Chamber noticed that, according to the
information available in the TMS, the Claimant transferred directly to
Respondent 2, without effectively joining the Respondent 1 at any moment
during the loan period. Thus, the members of the Chamber unanimously agreed
that, during the loan period, the Claimant was exclusively employed by
Respondent 2 as a professional football player, without being subject to the
discipline of any other club.
12. In view of the above and in consideration of the jurisprudence of the DRC, the
members of the Chamber unanimously agreed that the Respondent 1 could not
be held liable for any financial obligation towards the Claimant during the
considered loan period, since the Claimant was exclusively subject during this
period to his contract with Respondent 2.
13. Consequently, the members of the Chamber unanimously agreed that the claim
brought by the Claimant in relation to the Respondent 1 during the considered
loan period, must be rejected.
14. After determining the responsibility of the Respondent 1 towards the Claimant
during the considered loan period, the members of the DRC subsequently
analysed the potential liability of the Respondent 2 towards the Claimant during
the aforementioned loan period.
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D, and Club E, Country F
6
15. In this regard, the members of the Chamber observed that the Claimant
concluded a contract with Respondent 2, valid from 5 February 2013 until 31
December 2013.
16. Notwithstanding the above, the members of the Chamber also took note that, on
12 July 2013, the Claimant and the Respondent 2 concluded a termination
agreement which clearly stipulated, inter alia, that the Parties “unanimously
declare that they do not have any claims against each-other”.
17. Consequently, the members of the Chamber agreed that the claim brought by
the Claimant in relation to the Respondent 2 during the considered loan period,
must also be rejected.
18. In reference to the said termination agreement, the members of the Chamber
noticed that the Claimant did not contest the validity of this document and that,
in view of its clarity, it has been proven that the Claimant previously agreed with
Respondent 2 to abdicate from any financial claim towards it.
19. In addition, the members of the DRC also took note that the Claimant requested
the payment of outstanding salaries from the Respondent 1 for the months of
July and August 2014.
20. In this regard, the members of the DRC recalled that, on 27 August 2013, the
Claimant concluded an agreement with the Respondent 1 (i.e. the 2013-2014
contract with the Respondent 1), which was valid until 30 June 2014.
21. In view of the above, the members of the DRC unanimously agreed that the
Respondent 1 had no obligations towards the Claimant after 30 June 2014 and
that, consequently, the Claimant’s request for the payment of outstanding
salaries from the Respondent 1 for the months of July and August 2014 must also
be rejected due to a lack of contractual basis.
22. Moreover, as regards to the claimed legal expenses, the Chamber referred to art.
18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural compensation
shall be awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant’s request relating to
legal expenses.
23. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the Claimant.
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D, and Club E, Country F
7
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, 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 (CAS)
Avenue de Beaumont 2
CH-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:
Markus Kattner
Acting Secretary General
Enclosed: CAS directives
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D, and Club E, Country F
8