Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 June 2013,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Johan van Gaalen (South Africa), member
Mario Gallavotti (Italy), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player,
Player J, from country B
as Claimant
against the club,
Club B, from country T
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On an unspecified date, Player J, from country B (hereinafter: the Claimant),
and Club B, from country T (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract) valid as from the “date of its
signature” until 31 May 2010. In this respect, the Claimant indicated that the
contract was signed in March 2009.
2.
In accordance with the terms of the contract, the Claimant was entitled to
receive, as remuneration, the following net amounts:
- USD 100,000 upon signing of the contact;
- USD 30,000 each month up to 15 months (starting from March 2009).
3.
Clause II of the contract establishes the following:
“b) The Player [Claimant] and his representatives gives the option to Club B
[Respondent] to extend the contract from 01.01.2010 to 31.05.2012.
c) Club B will inform his decision sending a letter to players legal address
before 31/12/2009. If the club decides not to extend the contract the Player will
be a free agent on 01.01.2010 without paying any fee to Club B and shall not
claim any fee from Club B for the future”.
4.
On 5 July 2010, the Claimant lodged a claim against the Respondent in front of
FIFA alleging that the Respondent had breached the contract by terminating it
before the full compliance of its term and indicating that at the moment of
termination there were outstanding amounts due to him.
5.
Particularly, the Claimant requested to be awarded with the following
amounts:
- USD 180,000 corresponding to the outstanding salaries from July to
December 2009;
- USD 121,950 corresponding to the difference between what should have
been paid to the Claimant by the Respondent from January to May 2010
and the sums received from his new club during that period (USD 150,000
– USD 28,050);
- 5% interest rate over the precedent amounts “from the maturity date of
each and every missing obligation”.
6.
To its claim, the Claimant enclosed a copy of the employment contract he had
signed with the Club G, from country B on 7 January 2010, in accordance with
which he received remuneration of currency of country B 10,000 per month
between 7 January 2010 and 10 December 2010.
Player J, from country B / Club B, from country T
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7.
The Respondent replied to the claim, declaring that it had not breached the
contract because it had not exercised the option to extend the contract
mentioned in clause II b) within the defined deadline and, therefore, the
Claimant was free of any contractual relationship with the Respondent as from
1 January 2010. Hence, the Respondent utterly and expressly denied its
obligation to pay the compensation requested by the Claimant, without
making any reference to the outstanding salaries. Finally, the Respondent
indicated that on 13 January 2010, it notified the Claimant via public notary
that he was a “free player”.
8.
In his replica, the Claimant replied arguing that the relevant clause II b) shall
be invalid and not applicable, as it is contrary to the principle of contractual
stability and is similar to the unilateral right to renew a contract. Besides, the
Claimant indicated that the termination letter was sent on 13 January 2010 but
that it should have been sent before 31 December 2009, and, apart from that,
that he never received the relevant letter.
9.
In its duplica, the Respondent reaffirmed its position and reiterated that it did
not breach the contract, as it did not exercise its right to extend it, considering
that the clause is clear in its drafting. The Claimant was free to leave the
Respondent without any right to claim anything if the Respondent did not
communicate the contrary before 31 December 2009. Also, there was a “tacitly
mutual agreement” between the Claimant and the Respondent since the
Claimant left the club before 1 January 2010. Furthermore, the Respondent
stated that on 11 January 2010, this is, before the Claimant had received the
official termination letter, the Respondent was asked by the country B Football
Association to release the International Transfer Certificate (ITC) of the
Claimant.
10.
On 19 April 2012, the Respondent informed FIFA that it had proceeded to pay
in the Claimant’s account the amount of USD 180,000 on 18 April 2012
corresponding to the outstanding salaries of the period from July to December
2009. The Respondent enclosed a copy of the payment receipt.
11.
When asked by FIFA to provide his comments on the last event, the Claimant
declared that he had no access to the account to which the Respondent paid
and that he had not indicated such account as his in any of his letters. By
means of the same correspondence, the Claimant indicated his correct bank
details.
12.
Following this, the Respondent declared that it had informed the Claimant
about its wish to pay the outstanding salaries in the amount of USD 180,000,
but that the Claimant had rejected the payment and requested the whole
Player J, from country B / Club B, from country T
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amount of his initial petition. Finally, the Respondent indicated that the
account on which it paid the abovementioned amount, which is still at the
Claimant’s disposal, is where it had paid the Claimant’s salaries, as the
Claimant did not provide any other account details.
13.
Finally, the Claimant sent a correspondence on 13 February 2013 by means of
which he informed that he had collected the amount of USD 180,000 in
country T, previously deposited by the Respondent. However, the Claimant
explained that he had had several difficulties to collect the deposited amount
and requested the payment of the expenses he had incurred to this end. This
is, the Claimant amended his claim and, therefore, requested to be awarded
with the following:
- USD 5,781.60 for the expenses incurred by him in order to collect the
outstanding amount that the Respondent had deposited in his country T
account;
- USD 121,950 corresponding to the difference between what should have
been paid to the Claimant by the Respondent from January to May 2010
and the sums received from his new club during that period (USD 150,000
– USD 28,050);
- “interests on the value of the Claimant’s salaries which were paid late,
counting from the original payment dates (…) up to the date in which the
Claimant effectively received the amount (February 7, 2013)”.
14.
The Respondent rejected the latest Claimant’s statements and requests, and
insisted on the argument that the contract was terminated with the consent of
the Claimant.
15.
On 5 March 2013, the Claimant sent a new correspondence in order to learn if
the club had paid the relevant taxes over the amount of USD 180,000
deposited by it and collected by the Claimant, as the contract established the
remuneration in net amounts. This allegedly relevant for the avoidance of
double taxation.
16.
In this regard, the Respondent replied to the aforementioned correspondence
and acknowledged its obligation to pay the taxes over all salaries due to the
Claimant. In addition, the Respondent declared that it had no further debt or
liability towards the Claimant.
Player J, from country B / Club B, from country T
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 5 July 2010. Consequently, the previous edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2008; hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, edition 2012).
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 2012) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
In continuation, 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 referred, on the one hand, to art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2009, 2010
and 2012), and, on the other hand, to the fact that the present claim was
lodged in front of FIFA on 5 July 2010. Therefore, the DRC concluded that the
2009 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 members of the Chamber entered into the substance of the
matter. In doing so, it started by acknowledging the abovementioned facts of
the matter as well as the documentation contained in the file.
5.
In this respect, the members of the Chamber acknowledged that the parties
had signed a valid employment contract in March 2009 in accordance with
which the Respondent would pay the Claimant the amount of USD 100,000
upon signing of the contract, as well as a monthly remuneration in the amount
of USD 30,000 for a period of fifteen months.
6.
In continuation, the Chamber noted that the Claimant maintains that the
Respondent is to be held liable for the early termination of the employment
contract. Furthermore, the Chamber took note that the Claimant maintains as
well that by the time of termination of the contract, the Respondent had not
Player J, from country B / Club B, from country T
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complied with its financial obligations by having failed to remit his
remuneration for the months of July, August, September, October, November
and December 2009.
7.
Equally, the members of the Chamber took note that the Respondent
considered it had not breached the contract but had only decided not to
extend it within the given deadline, as per clause II of the employment
contract signed by the parties.
8.
In this regard, the Chamber noted that clause II of the contract gives the
Respondent the exclusive right to terminate the employment contract
unilaterally by 31 December 2009, even though the contract was originally
valid until 31 May 2010. The Chamber further observed that the Claimant
considered such clause invalid as it is contrary to the principle of contractual
stability.
9.
In this context, the Chamber took note of the argument of the Respondent,
which declared that, according to clause II of the contract, the Claimant was
free to leave the Respondent if the latter did not provide any written
statement on the contrary before 31 December 2009.
10.
In this respect, the members of the Chamber acknowledged that the
Respondent asserted that it notified the Claimant, via public notary, about its
status as a free agent, and therefore about the termination of the contract, on
13 January 2010. Moreover, the DRC took into account that the Claimant
signed a new employment contract with a new club already on 7 January 2010.
In this context, the Chamber outlined that, in principle, it would not consider
clause II of the employment contract valid as it violates the principle of equal
termination rights. However, given the particularities of the present matter
and regardless from the question whether the Claimant had or had not
received the termination letter of 13 January 2010, the Chamber was of the
unanimous opinion that the Claimant, by leaving the Respondent and signing
a new contract already on 7 January 2010, had de facto accepted the early
termination of the contract.
11.
In light of the above, the Chamber concluded that the petition of the Claimant
concerning compensation for breach of contract is to be rejected in view of the
fact that at the time of the termination letter sent by the Respondent, the
Claimant had already signed a new employment contract with another club
and was, thus, accepting the premature termination of the contract.
12.
Additionally, the Chamber highlighted the fact that the Respondent, during
the course of the investigation of the matter at stake, paid the outstanding
Player J, from country B / Club B, from country T
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remuneration that was due to the Claimant in full. Therefore, the Chamber
concluded that this particular issue had been settled amicably between the
parties and that therefore no further deliberations were necessary in this
respect.
13.
Furthermore, the DRC took the opportunity to point out that the petition of
the Claimant concerning his expenses to collect the money in country T should
be rejected considering that the Claimant himself had opened this account. As
a result, the Chamber deemed that the Respondent could in good faith assume
that it could make the relevant payments on this bank account. Therefore, the
Chamber concluded that any of the expenses incurred for collecting the money
in country T are of the responsibility of the Claimant himself. As to the specific
tax issues in the present matter, i.e. the double taxation, the Chamber
concluded that such issues are not of the competence of the Dispute
Resolution Chamber as per the Regulations.
14.
As a consequence and taking into consideration all the above, the Dispute
Resolution Chamber concluded that the complaint of the Claimant has to be
rejected.
Player J, from country B / Club B, from country T
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player J, 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 J, from country B / Club B, from country T
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