Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 18 May 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
John Bram hall (England), member
Takuy a Yam azaki (Japan), member
Moham ed Al S aikhan (S audi Arabia), member
Wouter Lam brecht (Belgium ), member
on the claim presented by the player,
Play er 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 cas e
1.
On 9 November 2014, the Player of Country B, Player A (hereinafter: the Claimant or
player), and the Club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract), valid from 1 December 2014 until
30 November 2015.
2.
According to clause 2.1 of the contract, the Claimant was entitled to a salary in
accordance with Schedule A, which establishes a monthly salary of USD 15,000.
3.
According to clause 2.3 of the contract, the Claimant was entitled to other benefits
in accordance with Schedule B, which establishes inter alia as benefits:
- 2 return flight tickets;
- Accommodation & transport.
4.
Clause 6 of the contract establishes a “Grievance Procedure” as follows:
- In case of any “grievance”, a formal written notice of complaint must be
submitted to the team manager within 7 days of the grievance arising;
- If it is not resolved to the player’s satisfaction within 7 days after the notice is
given, a formal written notice of the grievance must be given to the Secretary
of the club to consider the matter. The matter shall be considered at the next
club’s meeting or within 14 days after receipt of the notice, whichever is
earlier;
- If the grievance is not resolved by the club or the club’s decision does not
satisfy the player, he may appeal to FIFA.
5.
Clause 8.2 of the contract establishes that the contract may be terminated at any
time by mutual consent subject to terms and conditions agreed between the parties.
6.
Clause 8.4(i) of the contract establishes that “This Contract may be terminated
immediately by the [Respondent] without notice and the [Respondent] is released
from all obligations under this Contract if: Player is charged under Clause 4.2
(unsatisfactory performance) or Clause 5 (discipline), or if Player and the
[Respondent] mutually agree to end the Contract.”
7.
Clause 8.5 of the contract establishes that “When the Player, without any valid
reason, terminates this Contract one-sided or without the mutual agreement with
the [Respondent], then the [Respondent] has the right to claim compensation for
the total remaining period of the Contract not served.
f) When the [Respondent], without any valid reason, terminates this Contract onesided or without the mutual agreement with the Player, then the Player has the
right to claim salary and other benefits payment for the total remaining period of
Player A, Country B/ Club C, Country D
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the Contract not served and the Player is released from all the administration aspect
of the Contract”.
8.
On 14 April 2015, the Respondent informed the Claimant in writing that, at a
management meeting on 5 April 2015, the Respondent had agreed to deregister
him from the League E Team 2015. Moreover, the Respondent informed the
Claimant that “In accordance with that, you still bound by Foreign Player Contract
Agreement with Football Association F and salary payment still been paid as long as
you did not breach the term of the contract.
Therefore, refer to the Foreign Player’s Contract, Article 3.2 you are required to
attend a training with Cup J Team effective immediately”.
9.
On 20 May 2015, the Respondent issued a letter addressed to the Claimant,
referring to a “Discipline and Disciplinary Procedure”, by means of which the
Respondent addressed the absence of the Claimant from training and other matters
and requested an explanation within 7 days. In particular, the Respondent attached
a report signed by the head coach regarding the Claimant’s absences and his refusal
to pay a fine.
10.
On 26 May 2015, the Claimant replied to the Respondent’s letter explaining the
reasons for his absences. In particular, the Claimant detailed the following:
- Regarding the period between 31 December 2014 and 5 January 2015, the
Claimant held that “With approval from the club coach I was allowed to attend
my brothers wedding. Let it be marked that at this point I was on a holiday visa
and had not received a work permit or adjusted visa status by FOOTBALL
ASSOCIATION F. Upon arrival back to Country D I was detained by the
department of immigration of Country D at the airport for 6 days from
31/12/2014 to 5/1/2015 which the office of FOOTBALL ASSOCIATION F, team
manager and head coach was made aware of”.
- He missed training on 23 February 2015 due to the arrival of his family, with the
approval of the coach.
- He denies having missed training on 21 March and 6 April 2015.
11.
On 15 July 2015, the Respondent terminated the contract in writing, stating that the
Disciplinary Committee at its meeting held on 13 July 2015 concluded to reject the
explanations of the Claimant and decided on the termination of the contract.
12.
On 16 July 2015, the Claimant reacted via email, stating that, in accordance with the
contract, two written warnings had to be issued under the discipline clause before
termination. Moreover, the reasons for termination were unclear. Therefore, the
Claimant stated being entitled to a grievance procedure as per clause 6 of the
contract.
Player A, Country B/ Club C, Country D
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13.
On 23 July 2015, the Respondent replied via email stating that it had decided to
confirm the decision to terminate the contract.
14.
On 3 December 2015, the Claimant signed an employment contract with the Club of
Country G, Club H, valid from 1 January 2016 until 31 December 2016, being
entitled to an annual gross amount of USD 105,000, divided in equal “semi-monthly
instalments on the 15th and end of each month”.
15.
On 3 February 2016, the Claimant and the Respondent signed a document named
“League of country D Agreement to Terminate” (hereinafter: the form XXX), which
establishes that the parties agreed to terminate the contract in accordance with
clause 8.2 of the contract with effect as from 15 July 2015 with the following
conditions:
“i. Termination of the contract by mutual agreement
Ii. Fulfilled the obligation arising from agreement without any financial claims
by each other
iii. I promise not to sue or bring the case to the arbitration court of FOOTBALL
ASSOCIATION OF COUNTRY D or FIFA”.
16.
On 1 March 2016, the Claimant lodged a claim against the Respondent, maintaining
that the Respondent terminated the contract without just cause and asking to be
awarded the total amount of USD 92,740, composed as follows:
- USD 82,500 corresponding to USD 75,000 as the remaining value of the contract
from 15 July 2015 until 30 November 2015 plus “additional 10% monthly
interest”;
- USD 7,500 corresponding to 5 months of housing and transport (5 x USD 1,500);
- Reimbursement of a return air ticket in the amount of USD 2,740 as one out of
the two tickets established in the contract, submitting a receipt issued by a
travel agency dated 29 July 2015.
17.
According to the Claimant, on 16 March 2015, he was deregistered by the
Respondent from the league to play for the “cup J team”. Subsequently, on 15 July
2015, the contract was terminated by the Respondent without just cause. According
to the Claimant, the reasons given by the coach were unclear and biased and he
fully explained in writing and in person his absences from training.
18.
Moreover, he held having being evicted from the apartment, which caused great
stress to him and his family. Finally, he stated that the Respondent did not pay the
flight tickets agreed for him to return home.
19.
The Respondent submitted its position, rejecting the Claimant’s claim. In this
respect, the Respondent held that the registration of the Claimant was cancelled on
5 April 2015 upon a decision of the team management, which considered the
Player A, Country B/ Club C, Country D
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Claimant’s performance as unsatisfactory for not attending trainings during
February and March 2015.
20.
Moreover, the Respondent highlighted that, on 9 April 2015, the coach issued a
report on the Claimant’s discipline listing his absences.
21.
In this context, the Respondent held having invited the Claimant on 20 May 2015 to
provide explanations regarding his absences, to which he responded.
22.
With regard to the Claimant’s absences, the Respondent further stated that the
Claimant was detained by the Ministry of Health of Country D from 1 to 5 January
2015, because he had no vaccination certificate for yellow fever.
23.
Moreover, the Respondent affirmed having paid all travel ticket expenses,
submitting the same travel receipt as the one presented by the Claimant.
24.
According to the Respondent, the Disciplinary Committee found the reasons given
by the Claimant at its meeting “unreasonable” and therefore, on 15 July 2015, the
Respondent terminated the contract in accordance with clause 8.4(i) of the contract.
25.
The Respondent further maintained that, on 2 February 2016, the League K asked it
to fill a third-party declaration in the scope of an International Transfer Certificate
(ITC) request for the Claimant, to which the Respondent replied sending the form
XXX to be signed by the Claimant if he agreed. Subsequently, the Respondent
received the form XXX signed by the Claimant, establishing the mutual termination
of the contract.
26.
The Claimant submitted his replica, stating that he was presented a number of
documents to sign in order for the ITC to be issued, which included the form XXX.
Since he had to sign a large number of documents in the context of obtaining his
ITC, which were given to him by the LEAGUE K, he was not aware that he was
signing an agreement on the mutual termination of the contract.
27.
The Claimant further stated that after his agent brought to his attention that he
had signed a waiver towards the Respondent, he tried to “retract” the email sent
with all documents for the issuance of the ITC, without success. The Claimant
affirmed that he signed the document because he was told that such document was
only to obtain his ITC, having no intention to waive his entitlement to the amount
the Respondent still owed him. In support of his argument, the Claimant submitted
a letter dated 7 June 2016, issued by Club H addressed to the player’s agent,
according to which it was given the form XXX by LEAGUE K and informed by the
latter that it would be used in requesting the Claimant’s ITC. In particular, the
director of Club H who issued the letter declared inter alia that “I was told this
letter was another one of those letters and it would be used in requesting an ITC for
Player A that it needed to be signed in order to get him registered. He trusted in me
Player A, Country B/ Club C, Country D
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that the letter was strictly for ITC purposes and signed as I had asked. Not reading
or understanding it was a letter for a different subject I then sent it back to (…) the
office of League K. I was presented the document unknowing that it was from Club
C and gave Player A the instructions that it was for ITC purposes only…”.
28.
In its duplica, the Respondent insisted that the parties terminated the contract by
mutual consent. The Respondent further detailed that after being contacted by
LEAGUE K regarding the ITC of the Claimant on 2 February 2016, the Respondent
had asked whether the Claimant would be willing to sign a Mutual Termination
Form (XXX), without any intention of misleading the Claimant. According to the
Respondent, the terms of the form XXX are clear to anyone, especially to a player
represented by an agent. The Respondent stressed that the form XXX is valid and
that the Claimant signed a new employment contract with another club and
accepted to drop any claims by mutual agreement.
29.
In this respect, the Respondent submitted a copy of emails exchanged with LEAGUE
K regarding the player’s ITC. In particular, the Respondent presented an email sent
by the Respondent to LEAGUE K, dated 2 February 2016, stating that “we have no
problem to attach you the TPO declaration, but in Country D the former player have
to sign XXX-form (No obligation between former player and Former club). If your
side agree, please respond and I will attach the XXX-form as soon as possible”.
Moreover, the Respondent submitted an email from the Respondent to the LEAGUE
K, dated 7 February 2016, stating that the Football Association of Country D “want
to make sure with Agent of Player A about the form of termination (XXX) which has
been signed. I still wait for further action.”
II.
Cons iderations of the Dis pute Res olution Cham ber
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 1 March
2016. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2015; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 2016) 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 and a Club of Country D.
Player A, Country B/ Club C, Country D
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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
2016), and considering that the present claim was lodged on 1 March 2016, the 2015
edition of 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.
5.
In this respect, the DRC acknowledged that the Claimant and the Respondent
signed an employment contract on 9 November 2014, valid from 1 December 2014
until 30 November 2015.
6.
The Chamber took note that the Claimant lodged a claim against the Respondent
for breach of contract, requesting to be awarded compensation for the alleged
breach of contract by the Respondent as well as housing and transport allowances
and the reimbursement of a flight ticket. In this regard, the DRC observed that,
according to the Claimant, the Respondent terminated the contract without just
cause.
7.
In continuation, the members of the Chamber took into account that the
Respondent, for its part, rejected the Claimant’s argumentation and held that it
rightfully terminated the contract in accordance with clause 8.4(i) of the contract.
Moreover, the Respondent held that, subsequently, the parties agreed that the
contract was terminated by mutual consent by signing the form XXX, by means of
which the parties confirmed inter alia that they had no financial claims towards
each other.
8.
In this context, the members of the DRC acknowledged that the document
presented by the Respondent in its defence, the form XXX, was signed by both
parties and provides for the termination of the contract by mutual consent of the
parties. Said document further establishes that the obligations arising from the
employment contract have been fulfilled and that neither the Claimant nor the
Respondent has any financial claims towards the other.
9.
In this respect, the DRC took into account the Claimant’s argument that upon
signature of the form XXX he was unaware that by signing the relevant document
he was agreeing to the mutual termination of the contract and waiving his right to
claim against the Respondent. In particular, the DRC took note that the Claimant
Player A, Country B/ Club C, Country D
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held having signed several documents in order to obtain his ITC, which included the
form XXX, which allegedly was the only reason why he signed the relevant form.
10.
Subsequently, the Chamber took note that the Respondent deemed that the
Claimant was fully aware of the contents of the form XXX. The Respondent further
emphasised that the Claimant was also represented by an agent.
11.
On account of all the above, the DRC concluded that it has remained undisputed by
the parties that, on 3 February 2016, the Claimant and the Respondent signed the
form XXX, by means of which the parties agreed that i) the employment contract
was terminated by mutual consent, ii) the obligations arising from the employment
contract were fulfilled and they had no financial claims towards each other, and iii)
they undertook not to lodge any claim against each other.
12.
In this context, the members of the DRC took into account the Claimant’s allegation
that he was not aware of the legal effects of signing the form XXX and deemed it
fit to refer to the DRC’s longstanding jurisprudence, in accordance with which a
party signing a document of legal importance without knowledge of its precise
contents, as a general rule, does so on its own responsibility. Notwithstanding the
aforesaid, the DRC emphasised that the form XXX was written in English, an official
language of Country B as well as that the Claimant was apparently represented by
an agent.
13.
Consequently, the Chamber concluded that the Claimant’s argumentation in respect
of the form XXX could not be upheld.
14.
On account of all of the above, in particular, the considerations under points II./11.
and II./12. above, the DRC decided to reject the Claimant’s claim.
*****
Player A, Country B/ Club C, Country D
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III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 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:
Marco Villiger
Chief Legal & Integrity Officer
Encl. CAS directives
Player A, Country B/ Club C, Country D
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