Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 May 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
John Bram hall (England), member
S tijn Boey kens (Belgium ), member
Philippe Diallo (France), member
Jérôm e Perlem uter (France), 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
arisen between the parties
I.
Facts of the cas e
1.
On 13 December 2016, the Player of Country B, Player A (hereinafter: the
Claimant), and the Club of Country D, Club C (hereinafter: the Respondent),
signed a pre-contract, which was meant to lead to the signing of a “player
contract” with, inter alia, the following conditions:
a. duration as from 3 January 2017 until 2 January 2018;
b. option of 1 year extension;
c. salary of USD 5,000;
d. fringe benefits relating to flight tickets, accommodation and a car.
2.
According to the pre-contract, the details of the “player contract” will be
signed and the above conditions are “subject to medical test result”.
3.
On 25 September 2017, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting to be awarded compensation for breach of contract
in the amount of USD 40,600 including USD 15,000 for “specificity of sport”,
plus 5% interest p.a. on the amount of USD 25,600 as from 16 January 2017
and on the amount of USD 15,000 as from the date of the decision until the
date of effective payment.
4.
The Claimant further asked to be awarded legal fees in the amount of “20%
on the value of the conviction”.
5.
More specifically, the Claimant claimed that, after signing the pre-contract, he
joined the Respondent on 4 January 2017. According to the Claimant, after
having allegedly passed the medical tests successfully, he started training with
the Respondent until 16 January 2017, when the latter informed him that it
was not going to sign the employment contract.
6.
The Claimant further explained that the Respondent declared having changed
its intention due to a recent experience it had with another Player of Country
B, Player E, with whom it had signed an analogous pre-contract which had not
been respected by the player and had ultimately led to a claim lodged before
FIFA, which culminated in a settlement.
7.
According to the Claimant, the Respondent’s decision not to sign the
employment contract with him was a punishment for Player E’s behaviour.
8.
The Claimant held that the pre-contract, which was drafted by the Respondent
and made out on the Respondent’s letterhead, in fact was a valid and binding
employment contract as it contains all the essential elements.
9.
Moreover, the Claimant pointed out that he was able to partially mitigate the
damages from the breach of the pre-contract by the Respondent, which he
quantified in USD 60,000 on the basis of a monthly salary of USD 5,000, by
Player A, Country B / Club C, Country D
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signing an employment contract with the Club of Country F, Club G, valid as
from 1 February 2017 until 31 May 2017 for a monthly salary of 544,000 and
two contracts with the Club of Country B, Club H. More in particular, the first
of these two contracts ran as from 20 June until 18 September 2017 for a
monthly salary of 1,000 and the second ran as from 3 August 2017 until 15 May
2018 for a monthly salary of 937.
10.
The Claimant added that, given that the breach of the pre-contract had
occurred during the protected period, he was entitled to an additional
compensation for “specificity of sport”.
11.
Despite having been invited by FIFA to provide its comments on the present
matter, the Respondent did not reply to the Claimant’s claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC
or Chamber) analysed whether it was competent to deal with the case at hand.
In this respect, the Chamber took note that the present matter was submitted
to FIFA on 25 September 2017. Consequently, the DRC concluded that the 2017
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 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 2018), 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.
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 2018), and considering that the present claim was lodged on
25 September 2017, the 2016 edition of the Regulations on the Status and
Transfer of Players (hereinafter: the 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.
Player A, Country B / Club C, Country D
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5.
Having said that, the members of the Chamber acknowledged that, on 13
December 2016, the Claimant and the Respondent concluded a pre-contract
which was meant to lead, “subject to medical test result”, to the signing of a
“player contract”. It was further noted that said pre-contract, apart from
bearing the signature of the parties, indicated: (i) the duration of the
employment relationship; (ii) the salary provided for the Claimant’s services
and (iii) further fringe benefits.
6.
The Dispute Resolution Chamber further acknowledged that, according to the
Claimant, the Respondent had unilaterally terminated the contract after he
had successfully passed the medical tests and started training with the
Respondent until 16 January 2017, when the Respondent informed him that it
was not going to sign the final employment contract. The Claimant considered
that such decision was the result of a recent experience the Respondent had
with another Player of Country B with whom it had signed an analogous precontract which had not been respected by the latter and had ultimately led to
the opening of a proceeding before FIFA.
7.
Furthermore, the Chamber took note that the Respondent, for its part, failed
to present its response to the claim of the Claimant, despite having been
invited to do so. In this way, so the Chamber deemed, the Respondent
renounced its right to defence and, thus, accepted the allegations of the
Claimant.
8.
Moreover, and as a consequence of the aforementioned consideration, the
Chamber established that in accordance with art. 9 par. 3 of the Procedural
Rules it shall take a decision upon the basis of the documents already on file.
9.
Having said that, the Chamber highlighted that, in order to be able to
establish as to whether, as claimed by Claimant, a breach of contract had been
committed by the Respondent, it should first of all determine as to whether
with the signature of the pre-contract a legally binding employment contract
had been concluded by and between the Claimant and the Respondent.
10.
In relation to the above, the Chamber wished to underline 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, their role, the duration of the employment relationship, the
remuneration. After careful study of the pre-contract presented by the
Claimant, the Chamber concluded that all such essential elements were
included in the pertinent document, in particular, the fact that the precontract established that the Claimant, a player, had to render his services
towards the Respondent, a club, which in turn had to remunerate the Claimant
for his services during a specified period of time.
Player A, Country B / Club C, Country D
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11.
Bearing in mind that according to the pre-contract the conditions were subject
to the result of the medical test, the members wished to point out that in
accordance with art. 18 par. 4 of the Regulations “the validity of a contract may
not be made subject to a positive medical examination and/or the granting of a
work permit”. In this context, the members of the Chamber stated that the
contents of art. 18 par. 4 of the Regulations are of mandatory nature and
cannot be contractually amended or circumvented.
12.
On account of the aforementioned, the members of the Chamber concluded
that, by signing the pre-contract, a valid and legally binding employment
contract had been entered into by and between the Claimant and the
Respondent on 13 December 2016 with a duration as from 3 January 2017 until
2 January 2018 (hereinafter: the employment contract).
13.
Having established the foregoing, the Chamber continued its analysis and
turned its attention to the question of the alleged breach of contract without
just cause by the Respondent.
14.
In this respect, first and foremost, the DRC took into account that it remained
undisputed that the Claimant had joined the Respondent on 4 January 2017
and trained with it until 16 January 2017. Moreover, the Chamber took note of
the further documentation presented by the Claimant, in particular, a copy of
his flight ticket to Country D with arrival date of 4 January 2017, which was
allegedly provided by the Respondent. Consequently, the Chamber concluded
that the execution of the employment contract had started in January 2017.
15.
In continuation, the Chamber observed that it remained undisputed that, on
16 January 2017, the Respondent informed the Claimant that it would not sign
the “player contract” which is referred to in the employment contract
(previously referred to as “pre-contract”). The members of the Chamber
considered that with such decision, which was apparently based on a
presumption that the “pre-contract” did not constitute a final and binding
employment contract, the Respondent made it clear to the Claimant that it no
longer wished to make use of his services. Given the described circumstances,
the Chamber agreed that the Respondent’s action is to be considered a breach
of contract without just cause. Consequently, the Chamber decided that the
Respondent is to be held liable for the early termination of the employment
relationship with the Claimant without just cause.
16.
In continuation and having established that the Respondent is to be held liable
for the early termination of the employment contract without just cause, the
Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract.
17.
In this context, the Chamber outlined that in accordance with said provision
the amount of compensation shall be calculated, in particular and unless
Player A, Country B / Club C, Country D
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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 Claimant under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five
years, and depending on whether the contractual breach falls within the
protected period.
18.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
compensation payable by the contractual parties in the event of breach of
contract. In this regard, the Chamber established that no such compensation
clause was included in the contract at the basis of the matter at stake.
19.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the Respondent to the Claimant had to be
assessed in application of the other parameters set out in art. 17 par. 1 of the
Regulations.
20.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment
contract as from its termination and concluded that the Claimant would have
received USD 60,000 as remuneration had the employment contract been
executed until its regular expiry date, i.e. 12 monthly salaries of USD 5,000
each. In this context, the Chamber pointed out that the Claimant’s statement
that the contractual USD 5,000 were payable on a monthly basis has remained
uncontested.
21.
In continuation, the Chamber assessed as to whether the Claimant has signed
an employment contract with another club during the relevant period of time,
by means of which he would have been able to reduce his loss of income.
According to the constant practice of DRC, such remuneration under a new
employment contract(s) shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
22.
The Chamber recalled that the Claimant had entered into an employment
agreement with the Club of Country F, Club G, valid as from 1 February 2017
until 31 May 2017, in accordance with which he was entitled to receive a
monthly remuneration of 544,000. Furthermore, the Chamber recalled that,
subsequently, the Claimant signed two contracts with the Club of Country B,
Club H. In this respect, the DRC pointed out that the first of these two
contracts ran as from 20 June until 18 September 2017 for a monthly salary of
1,000 and the second ran as from 3 August 2017 until 15 May 2018 for a
monthly salary of 937.
Player A, Country B / Club C, Country D
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23.
In addition, in respect of the Claimant’s request to be awarded compensation
in relation to “specificity of sport” the Chamber concurred that the Claimant
did not prove to the satisfaction of the DRC having suffered any further
damage and that, consequently, such request must be rejected.
24.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the Respondent
must pay the amount of USD 26,150 to the Claimant as compensation for
breach of contract.
25.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber
decided that the Respondent must pay to the Claimant interest of 5% p.a. on
the amount of compensation as of the date on which the claim was lodged,
i.e. 25 September 2017, until the date of effective payment.
26.
Furthermore, as regards the claimed legal fees, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its longstanding 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.
27.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, compensation for breach of contract
in the amount of USD 26,150, plus 5% interest p.a. as from 25 September 2017
until the date of effective payment.
3.
In the event that the above-mentioned amount plus interest due to the
Claimant is not paid by the Respondent within the stated time limit, the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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5.
The Claimant is directed to inform the 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 m otiv ated decis ion (legal remedy):
According to art. 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 (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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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