Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 June 2013,
in the following composition:
Geoff Thompson (England), Chairman (did not take part in the deliberations)
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Theodoros Giannikos (Greece), member
Essa M. Saleh Al-Housani (UAE), member
on the claim presented by the club,
Club E, from country I
as Claimant
against the player,
Player A, from country I
as Respondent 1
and the club,
Club M, from country E
as Respondent 2
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 26 July 2007, Player A, from country I (hereinafter: the Respondent 1 or
player) born in May 1993, and Club E, from country I (hereinafter: the
Claimant), signed a document named “Variazione di Tesseramento”.
2.
On 1 July 2009, the Respondent 1 signed a “Scholarship Agreement” with the
Club M, from country E (hereinafter: the Respondent 2 or Club M).
Consequently, the Respondent 2 requested the player’s International Transfer
Certificate (ITC) and, after the Single Judge of the Players’ Status Committee of
FIFA passed a decision allowing the registration of the Respondent 1 with the
Respondent 2, the player was finally registered as a professional with the
Respondent 2 on 13 October 2009.
3.
On 13 June 2011, the Claimant lodged a claim against the Respondent 1 and
the Respondent 2 (hereinafter: the Respondents), for the unilateral
termination of the employment contract without just cause by the Respondent
1. The Claimant requested to be awarded with the amount EUR 725,000 plus
5% interest p.a. “due to all amounts in delay”.
4.
In addition, the Claimant alleged that the Respondent 2 had “blatantly and
shamelessly induced the player to breach his contract in complete disregard of
his obligations towards [the Claimant] under the contract” and, in
consequence, requested that the Respondent 2 would be jointly and severally
liable for the payment of the above-mentioned amount. Equally, the Claimant
requested sporting sanctions for the Respondent 2.
5.
The Claimant explained that the “Variazione di Tesseramento” signed by both
parties constitutes a written employment contract according to the internal
regulations of the country I Football Federation. Furthermore, the Claimant
stated that in accordance with the aforementioned internal regulations of the
country I Football Federation, by signing the “Variazione di Tesseramento”,
the player acquired the right to receive remuneration in the amount of EUR
11,307 per year, which exceeds by far the player’s costs he incurred with his
football activity. The Claimant further explained that a player who signs a
“request for registration for a club (…) assumes the qualification of a “giovani
di serie” and the status of “giovani di serie” constitutes a relationship between
the club and the player according to which the player is bound to the club
until the end of the season of which the player turns 19 years old”.
6.
Therefore, according to the Claimant, “the player was a professional under
contract with [the Claimant]” as he was entitled to receive more than the costs
he incurred for his footballing activity and, consequently, he unilaterally
Club E, from country I / Player A, from country I;
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terminated the contract without just cause by signing with the Respondent 2
in July 2009.
7.
The Respondents replied to the Claimant’s claim dismissing it in full. In
particular, the Respondents argued that the player was an amateur player with
the Claimant “and as such, under the FIFA Regulations, he was free to transfer
internationally in the summer of 2009 and to join Club M without restriction”.
The Respondents pointed out that also the country I Football Federation
confirmed that the player was an amateur while registered with the Claimant.
8.
Furthermore, the Respondents stressed that there did not exist a contractual
relationship between the player and the Claimant, so the player cannot be
held to have unilaterally terminated any contract and the Respondent 2
cannot be held to have induced the player to breach any contract. The
Respondents pointed out that the “Variazione di Tesseramento”, which,
according to the Claimant is an employment contract, “contains no terms, no
dates of employment and no remuneration figures, so it clearly does not
adhere to FIFA Circular 1171 which sets the minimum requirements for
contracts of professional players”.
9.
Additionally, the player declared that he had not received any form of
remuneration from the Claimant in all the time that he was playing as an
amateur for it. In this respect, the Respondents also referred to the Claimant’s
“own admission that the right of “giovani di serie” players to receive
‘remuneration’ is limited to players of age 18/19” and pointed out that the
player left the Claimant before turning 18.
10.
In its replica, the Claimant repeated that the “Variazione di Tesseramento” is a
written agreement by means of which both signing parties undertake
obligations and that, therefore, it is a written contract as established by article
2. par. 2 of the FIFA Regulations on the Status and Transfer if Players. In
addition, the Claimant indicated that the relevant issue is not the amount
received by the player, but rather that the player was entitled to receive
remuneration. The Claimant holds that: “The fact that the remuneration was
not payable immediately makes no difference to the evaluation of the status
of the Player under the FIFA Regulations”.
11.
Moreover, the Claimant indicated that, although the player was registered in
the country I Football Federation with the Claimant as an amateur player, the
relationship between the Claimant and the player was a professional
relationship “when evaluated under the FIFA Regulations”.
Club E, from country I / Player A, from country I;
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12.
Finally, the Respondents reiterated all of their previous arguments and
rejected the claim, requesting FIFA to dismiss the claim lodged by the
Claimant.
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 13 June 2011. 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 2012 edition 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 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 2010 and
2012), and, on the other hand, to the fact that the present claim was lodged in
front of FIFA on 13 June 2011. Therefore, the DRC concluded that the 2010
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. They started by acknowledging that the parties to the dispute had
signed, on 26 July 2007, a document named “Variazione di Tesseramento”
which the Claimant alleges to constitute a valid and binding employment
contract. The Chamber noted however that the Respondents categorically
rejected that the “Variazione di Tesseramento” constituted an employment
contract.
5.
In this respect, the Dispute Resolution Chamber deemed it important to
highlight 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 also contain the “essentialia negotii” of an employment
Club E, from country I / Player A, from country I;
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contract, such as the parties to the contract and their role, the duration of
their employment relationship as well as the remuneration.
6.
After a thorough study of the only signed document on file, i.e. the
“Variazione di Tesseramento”, the Chamber noted that such document does,
in itself, not stipulate any obligations between the parties, other than that the
player shall respect various rules of the country I Football Federation.
Moreover, the members of the Chamber acknowledged that the abovementioned document does neither contain a term during which one of the
parties should render services to the other nor does it stipulate any kind of
remuneration.
7.
Consequently, the Chamber concluded that the parties had not signed a valid
and binding employment contract, since the document named “Variazione di
Tesseramento” lacks all the “essentialia negotii” to be considered a valid
employment contract.
8.
What is more, the Chamber duly noted that the player did not receive any
remuneration during the period of time he was registered with the Claimant,
as acknowledged by the Claimant. In this respect, the Chamber considered that
the argumentation of the Claimant in relation to art. 2 par. 2 of the
Regulations is to be rejected, since the player was not paid for his footballing
activity.
9.
Finally, the Chamber noted that even the association to which the Claimant is
affiliated, i.e. the country I Football Federation, confirmed that the player had
the amateur status while being registered with the Claimant.
10.
As a consequence, the Dispute Resolution Chamber decided that, since no
employment contract was concluded between the Claimant and the player,
there was no possibility for the Chamber to enter into the question whether or
not such alleged employment contract had been terminated by the player.
11.
All the above led the Dispute Resolution Chamber to conclude that the
complaint of the Claimant has to be rejected.
Club E, from country I / Player A, from country I;
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Club E, 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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Club E, from country I / Player A, from country I;
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