Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 June 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (Netherlands ), member
Zola Majav u (S outh Africa), member
on the claim presented by the player,
Play er A, from country A,
as Claimant
against the club,
Club B, from country B,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1. On 11 August 2014, the Player A, from country A (hereinafter: the Claimant or the
player), and the Club B, from country B (hereinafter: the Respondent or Club B),
signed a “Contract of employment of professional football player” (hereinafter:
the employment contract) valid for three seasons, as from the day following the
date of signature until 30 June 2017.
2. According to art. III.1 of the employment contract, the Claimant was entitled to a
net monthly salary of EUR 14,286, to be paid by the 15th day of the month
following the month for which the remuneration is due.
3. Pursuant to art. X.5, X.6 and X.7 of the employment contract, for each season, the
Claimant was entitled to “two net bonuses” per season amounting to EUR 50,000
each. Such bonuses were respectively payable on 31 August and 28 February of
the relevant season, “provided that the player has not been transferred (against
payment of transfer compensation to the club or as a free player) to a third
football club until the said dates”.
4. Furthermore, according to the employment contract, the Claimant was entitled to
the following:
- “an apartment/house (…) with monthly rent price up to 500” (art. X.2);
- two flight tickets “country B-country A-country B” for each season (art. X.3);
- “a car at club’s expense (…) at a monthly rent price up to 700. In any event,
when the club is in the process of preparation for the coming season or in the
regulated timeout in accordance with Regulations of the Football Federation
of country B the provisions of the preceding sentence shall not apply and the
player shall return the car for the duration of the said period” (art. X.4).
5. On 15 July 2015, the Claimant and the Respondent signed a “Termination
Agreement” by means of which they terminated the employment contract with
immediate effect. On the same date, the Respondent and the Club C, from
country C (hereinafter: Club C), entered into an “Agreement for the transfer of
professional football player” (hereinafter: the transfer contract), which was also
signed by the Claimant.
6. According to art. I.2 of the transfer contract, “the transfer of the full competitive
and transfer rights (i.e. economic and federative rights) of the player is concluded
with the explicit consent of the player, who hereby declares that he acknowledges
and accepts all the terms and conditions set forth in this agreement”.
7. Pursuant to art. II.1 of the transfer contract, the Respondent and Club C agreed on
a transfer fee amounting to “the net amount of USD 50,000”.
8. Furthermore, art. IV of the transfer contract provides as follows:
“IV. BUY-BACK
Player A, from country A / Club B, from country B
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IV.1 [Club B] has the irrevocable obligation to purchase back from [Club C] the full
competitive and transfer rights (economic and federative rights) of the Player for
a fixed transfer fee in the amount of EUR 1,000 (one thousand Euro) net (“BuyBack Fee”). As a result of the exercise of the buy-back obligation by [Club B], the
Player shall be transferred from [Club C] to [Club B] effective as of 01 July 2016
and [Club C] shall terminate the employment agreement concluded with the
Player.
IV.2 [Club B] must irrevocably exercise the buy-back option by transferring the
Buy-Back Fee to [Club C] onto the bank account specified herein until 30 June
2016 and [Club C] must issue an invoice for the amount of the Buy-Back Fee paid.
The parties agree that the Buy-Back is irrevocable and that [Club C] must receive
the Buy-Back Fee for the purchase of the full competitive and transfer rights of
the Player before 30 June 2016. If necessary for the purposes of the registration of
the transfer of the player with the Football Federation of country B only, the
Parties may sign an additional agreement for the transfer of the Player from [Club
C] to [Club B], which shall include the same terms as stipulated under the
provisions of this Article IV.2. The buy-back obligation subject to the provisions of
this Article IV.2 must be exercised by [Club B] by transferring the Buy-Back Fee
under Art. IV.I to the bank account of [Club C], which will be communicated later.
IV.3 Once the obligation of the buy-back is exercised by [Club B] pursuant to the
provisions of this Section IV, [Club C] transfers the full competitive and transfer
rights of the Player (economic and federative rights) to [Club B] effective as of 01
July 2016. Furthermore, by signing the present agreement the Player and the
CLUB explicitly agree and oblige to enter into an employment contract with [Club
B] for one football season 2016/2017 in the form required by the Football
Federation of country B under the terms and conditions as provided for in the
Contract of Employment of Professional Football Player between the Player and
[Club B] dated 11 August 2014. In case of failure of the Player to enter into an
employment contract with [Club B] as provided for in the preceding sentence, the
Player shall be obliged to pay [Club B] liquidated damages amounting to USD
400,000.
[…] IV.5 The parties undertake and confirm that until 30 June 2016, [Club C] and
the Player shall not initiate nor engage in discussions or negotiations or enter into
any agreement with any party relating, directly or indirectly, to the sale or other
form of disposal of the transfer and/or competitive rights of the Player or any
other transaction which may circumvent the rights and obligations of [Club B] to
exercise and effectuate the right of buy-back. Otherwise, [Club B] shall be entitled
to liquidated damages in the amount of USD 400,000 from the defaulting party”.
9. At the beginning of January 2016, the Claimant terminated the employment
contract with Club C and, on 9 January 2016, he wrote an SMS message to the
Club B’s President, informing him that he had not been receiving his salary for the
last four months. In particular he affirmed that “now I am without team without
money so I think the best solution now for both of us is to let me free if I find
Player A, from country A / Club B, from country B
3
something because no team will accept me in this situation or give money for
Club B..it will be a lost for both of us if I stay home without playing and in June I
come back to Club B”.
10. On 12 May 2016, the Claimant sent an e-mail to the Respondent, referring to art.
IV.3 of the transfer contract, requesting to be informed of the date of the team’s
gathering and to be provided with visa, flight tickets for country B and copy of
the employment contract for season 2016/2017.
11. On the same date, Club B’s President replied to the Claimant as follows: “your
contract with Club C was not done till the end and terminated from your side, so
the contract and all terms in it are not in force anymore (…) The clause is not valid
at all”.
12. On the same date, the Claimant wrote a letter to the Respondent arguing that
clause IV.3 of the contract was fully valid and reiterating his requests.
13. On 19 May 2016, the Respondent sent a letter to the Claimant, by means of which
it averred that it “understand from the public domain” that the player was no
longer under contract with Club C and that he had concluded an employment
contract with the Club D, from country D (hereinafter: Club D), whose terms were
allegedly unknown to the Respondent. Furthermore, the Respondent affirmed
that it was not in breach of art. IV.3 of the transfer contract and “the condition
precedent under art. IV.3 of the Agreement (“once the obligation of the buy-back
is exercised…”) to enter into an employment contract with the player effective as
of 01 July 2016 was also compromised by actions of Player A himself”. On account
of the above, the Respondent rejected the requests of the Claimant.
14. On 23 May 2016, the Claimant informed the Respondent that, due the divergent
opinion between him and the club on the matter, he would submit a claim for
breach of contract before FIFA (note: document on file).
15. On 26 July 2016, the Claimant lodged a claim against the Respondent before FIFA
for breach of contract, requesting the payment of the following amounts for the
period from 1 July 2016 until 30 June 2017:
a) EUR 271,432 plus interest of 5% p.a. as from 1 July 2016 as compensation for
breach of contract, corresponding to:
- EUR 171,432 as salaries;
- EUR 100,000 for bonuses;
b) EUR 796,84 for two flight tickets;
c) 8,400 for car allowance;
d) 6,000 for rent allowance;
e) Sporting sanctions to be imposed on the Respondent.
Player A, from country A / Club B, from country B
4
16. In his claim, the Claimant affirmed first that art. IV.3 of the transfer contract
constituted a binding employment contract between him and Club B as, through
said article, he and the Respondent committed “to enter into an employment
agreement since 1 July 2016 in the same terms and conditions of the employment
contract signed on 11 August 2014”. In particular, the Claimant emphasised that
art. IV.3 of the transfer contract contained the essentialia negotii of the
employment contract which the parties allegedly committed to sign for season
2016/2017.
17. Secondly, the Claimant averred that the transfer contract was a simulation of the
real intention of the parties, which was to loan the player to Club C and not to
transfer him on a definitive basis. In particular, the Claimant argued that the aim
of the transfer contract was to “circumvent the limit of foreign player (quota
limit) existing at a national level” and such circumstance was allegedly
corroborated by:
- the express acknowledgement by the Club B’s President in the SMS messages
exchanged with the player, whereby the President wrote: “loan is not an
option because I need the place for non-european player and if it loan, the
place is still occupied. That’s why we need transfer”;
- the low amount of the buy-back fee i.e. EUR 1,000 set out in art. IV.1 of the
transfer contract compared to the transfer fee i.e. EUR 50,000 and the severe
consequences for the Claimant in case he refused to sign the new employment
contract with the Respondent, i.e. payment of USD 400,000.
18. In view of the above, the Claimant was of the opinion that the aim of the
Respondent was to secure him until 30 June 2017 and argued that “the obligation
to conclude the employment contract in July 2016 is fully independent from the
obligation to execute compulsory buy-back clause which was solely intended to
cover the risk of the Club C, from country C offering the Player a possible
extension of the contract”.
19. Furthermore, the Claimant affirmed that he and the Respondent considered
themselves bound by the transfer contract to each other also after he terminated
his employment contract with Club C, as he requested the Club B’s President to be
released and the latter allegedly refused such request.
20. In this respect, the Claimant argued that the Respondent refused to enter into the
new employment contract with him for season 2016/2017 and, as a consequence
thereof, breached art. IV.3 of the transfer contract and frustrated “the legitimate
expectations of the player”.
21. Lastly, the Claimant asserted that “the employment contract originally had to last
until 30 June 2017, but was unilaterally terminated by the [club] without just
cause on 21 July 2016 by refusing to conclude the employment contract”. As a
consequence of such alleged termination, the Claimant requested the
compensation set out above and the imposition of sporting sanctions.
Player A, from country A / Club B, from country B
5
22. The Respondent replied rejecting the Claimant’s arguments and asserting that the
parties bound by the terms of the transfer contract were exclusively Club C and
Club B. In particular, the Respondent alleged that the Claimant, pursuant to art.
I.2 of the transfer contract, signed the transfer contract only to consent with the
terms and conditions of his transfer. Moreover, the Respondent emphasized that
art. III of the transfer contract, which sets the “parties’ rights and obligations”,
stipulates rights and obligation for Club B and Club C, but not for the player.
23. Moreover, the Respondent argued that the transfer contract did not stipulate a
contractual obligation for Club B to offer a future employment contract to the
player. In particular, referring to the wording of art. IV.3 of the transfer contract,
the Respondent emphasised that, on 15 July 2015, the player’s agent and the Club
B’s lawyer exchanged via e-mail a last draft of the transfer contract where the
latter, allegedly without reason, made “a typographical error in clause IV.3 by
inserting the words ‘and the CLUB’”. This argument, according to the Respondent,
is confirmed by the fact that none of the parties is defined in the transfer contract
as “the CLUB” and, thus, the words “and the CLUB” are an “error and should be
deleted”. As further proof that Club B had no obligation to offer a new
employment contract, the Respondent highlighted that the last sentence of art.
IV.3 of the transfer contract does provide a penalty for the Claimant in case he
refuses to sign the new employment contract, but it does not contain a reciprocal
sanction in case Club B does not offer the player the new employment contract.
24. Furthermore, the Respondent added that the aim of art. IV.3 of the transfer
contract was not to bind Club B to offer the player a new employment contract
for season 2016/2017 but, rather, to leave Club B the discretion to decide whether
or not to do it “subject to the performance of the buy-back clause”. In this regard,
the Respondent emphasised that, in the last draft of the transfer contract, the
player’s agent agreed on this argument, as he added the following comment on
art. IV: “We accept to state that the buy back shall ne [sic] obligation of Club B,
not a right nor an option. However, we do not anticipate to conclude
employment contract at this stage, but when the obligation of buy-back is
fulfilled. The contract will be under the same terms and conditions and will be for
season 2016/2017”.
25. On account of the above, the Respondent argued that art. IV.3 of the transfer
contract “does not constitute a final and binding employment contract between
the Parties, as there was no reciprocal commitment from the part of [Club B] to
bindingly and unconditionally enter later into an employment contract with [the
player]”.
26. In continuation, the Respondent rejected the Claimant’s argument that the real
intention of the parties was not to transfer the player definitively to Club C, but
rather to loan him in order to circumvent the foreign player quota allegedly
existing in the Football Federation of country B regulations. In this respect, first,
Player A, from country A / Club B, from country B
6
the Respondent stressed that the Claimant did not provide any evidence that such
quota actually exists. Moreover, the Respondent added that:
- the SMS messages exchanged between the player and Club B’s President,
submitted by the Claimant, are “completely taken out of their contest and
purpose”;
- the low amount of the buy-back fee was agreed with Club C in order to protect
the Respondent’s interest to a way out of its buy-back obligation;
- the amount of the penalty fee (USD 400,000) to be paid by the Claimant was set
in order to protect the Respondent’s interest and, in particular, to recover its
investment in the player, should he refuse to conclude the new employment
contract.
27. Furthermore, the Respondent argued that the conclusion of the new employment
contract under art. IV.3 of the transfer contract depended on two conditions:
- the execution of the buy-back obligation by the Respondent;
- the actual interest of the Respondent in offering the player a new
employment contract as of 1 July 2016.
In addition, the Respondent argued that the above was also confirmed by the
content of the e-mails exchanged on 15 July 2015.
28. As to the Claimant’s argument according to which Club B terminated the
employment contract without just cause, the Respondent reiterated that it had no
obligation to offer the player a new employment contract and the player “did not
really intend to sign one with [Club B]”. More in detail, the Respondent argued
that the Claimant was aware that the Club B’s offer of the new employment
contract depended on the exercise of the buy-back clause by the Respondent but,
as he terminated his contract with Club C, it could not exercise such clause.
Consequently, the Respondent concluded that its buy-back obligation was
“extinguished with the termination of the employment relationship between the
[player] and [Club C]”.
29. Furthermore, the Respondent alleged that, thereafter, on 11 February 2016, the
player’s lawyer sent via e-mail a draft of a settlement agreement. Therefore, the
Respondent asserted that the Claimant acted contra factum proprium by
requesting to sign the new employment contract in May 2016, allegedly in view of
creating “artificial grounds for a claim for compensation” against the
Respondent.
30. In continuation, the Respondent affirmed that, as further proof of his lack of
interest in a new employment contract with Club B, the player had initially signed
an employment contract with the Club D and, eventually, with the country E club,
Club E. In particular, the Respondent alleged that the player concluded the
employment contract with Club E on 29 June 2016 and, consequently, he
terminated the “alleged pre-contract” with Club B without just cause, as he
prevented this latter from offering him the new employment contract within the
deadline of 1 July 2016.
Player A, from country A / Club B, from country B
7
31. In view of the aforementioned termination by the Claimant, the Respondent
argued that, in accordance with the principle exceptio non adimpleti contractus,
the player could not request from Club B the fulfilment of its alleged obligation
to offer him the new employment contract, as he himself was already in breach of
the transfer contract. In this regard, the Respondent added that the player signed
the employment contract with Club E without the consent of Club B and,
consequently, he breached art. IV.5 of the transfer contract.
32. As to the Claimant’s request of compensation for breach of contract, the
Respondent further argued that, in any event, the Claimant was not entitled to
such compensation as “there is no provision in the Regulations entitling a party to
compensation for the non-conclusion of a “future employment contract”” or,
alternatively, said compensation should be reduced by at least 50%.
33. With regard to the Claimant’s request of the relevant flight tickets, car allowance
and rent allowance, the Respondent stressed that said request should be
dismissed as such allowances were directly linked to the performance of the
employment contract, which never started. Moreover, the Respondent
emphasised that said allowances were not a salary but rather benefits in kind and
they were intended to cover actual and real expenses which, in this case, did not
occur.
34. In his replica, the Claimant rejected the Respondent’s arguments and stated that
neither he was represented by any agent, nor he was informed of any negotiation
pending between said agent on his behalf and Club B. Therefore, the Claimant
argued that the exchange of e-mails submitted by the Respondent was irrelevant
and “even if these e-mails were true, they only show that negotiations took
place”. In this regard, the Claimant affirmed that he did not recognise the drafts
of the transfer contract submitted by the Respondent which, consequently, could
not be opposed to him.
35. As to the alleged “typographical error” in the drafting of the transfer contract,
the Claimant deemed that it was not an error, but rather the expression of the
commitment of Club B to enter into a new employment contract with the player
“at the end of the simulated loan with [Club C]”.
36. Furthermore, the Claimant affirmed that he never had any relationship with the
lawyer who, according to the Respondent, allegedly sent on his behalf a draft of
settlement agreement to Respondent. In particular, the Claimant stated that said
settlement agreement was unknown to him.
37. The Claimant also insisted that the transfer contract was a simulation and that the
real intention was to conclude a loan agreement. In this regard, the Claimant
reiterated that the purpose of such agreement was to circumvent the foreign
player quota allegedly existing in the Football Federation of country B regulations
Player A, from country A / Club B, from country B
8
and submitted part of said regulations, according to which: “Conditions for
participation in state championships and tournaments: (…) d) in teams of League
One in every football match of the championship and the Cup of country B are
eligible to 5 (five) filed players from countries outside the European Union, in the
minutes of the football match can enrol and participate it simultaneously to 3
(three) of them”.
38. Furthermore, the Claimant argued that, according to the transfer contract, the
Respondent could not choose whether to buy-back the player depending on his
performances. In particular, the Claimant stressed that the buy-back by Club B was
a “pure obligation”.
39. In continuation, the Claimant rejected the Respondent’s argument according to
which the conclusion of the new employment contract depended on two
conditions. In this regard, the Claimant argued that, according to art. IV.3 of the
transfer contract, the Respondent had the obligation to offer the Claimant the
new employment contract and such obligation was autonomous and
independent.
40. Moreover, the Claimant reiterated that the Respondent terminated “the
agreement” with him without just cause by refusing “to formalize” the new
employment contract in accordance with the terms of the transfer contract. In
particular, the Claimant pointed out that the aforementioned termination
occurred through the Respondent’s letter on 19 May 2016.
41. As to the contract with the Club E, the Claimant emphasized that said contract
had been signed on 7 July 2016, i.e. after the expiry of the deadline for the
conclusion of new employment contract with Club B, and not on 29 June 2016 as
alleged by the Respondent. Thus, the Claimant argued that he did not breach art.
IV.5 of the transfer contract and that the exceptio non adimpleti contractus raised
by the Respondent was inadmissible.
42. In continuation, the Claimant emphasised that the employment contract with
Club D”never entered into force” and, anyway, it was supposed to expire on 30
May 2016. As a consequence thereof, the Claimant argued that said employment
contract could not affect the conclusion of the new employment contract with the
Respondent within 1 July 2016.
43. In its duplica, the Respondent reiterated its previous arguments, in particular
reaffirming that art. IV.3 of the transfer contract did not contain a final and
binding agreement, but it was rather a “pre-contract”. In particular, the
Respondent argued that the new employment contract depended on the
fulfilment of the buy-back obligation and on the signature of “a future
employment contract in the form required by the Football Federation of country
B”.
Player A, from country A / Club B, from country B
9
44. Furthermore, the Respondent argued that, regardless whether the player was
represented by an agent, he anyway ratified the transfer contract as negotiated
by the alleged agent by signing it. In addition, according to the Respondent, the
correspondence exchanged between the agent and the Club B’s lawyer showed
that the Claimant’s intention was to set the buy-back as an obligation of Club B
conditional to the signature of his future employment contract.
45. As to the regulations of the Football Federation of country B submitted by the
Claimant, the Respondent stressed that said regulations referred to season
2016/2017 and, thus, were not in force when the player was transferred to Club C.
Moreover, the Respondent added that the aforementioned regulations did not
prove that the player “would have charged a foreign player quota, if he would
have been lent to [Club C]”.
46. In continuation, the Respondent explained that the termination of the contract
with Club C by the player did not permit the Respondent to exercise the buy-back
clause and, as consequence thereof, Club B was not obliged to enter into the new
employment contract with the player.
47. Furthermore, the Respondent argued that it assumed in good faith that the
lawyer who sent the draft of settlement agreement was representing the player.
In this regard, the Respondent submitted a copy of the exchange of
correspondence between said lawyer and the player where they discussed, with
the alleged agent in copy, the terms of the power attorney.
48. Finally, the Respondent argued that, with its letter dated 19 May 2016, it did not
definitively refuse to sign a new employment contract using the standard form of
the Football Federation of country B but, rather, it only considered the player’s
request in this regard as “premature”. In particular, the Respondent stressed that
it had no obligation to enter into a new employment contract with the player in
May 2016. Conversely, the Respondent emphasised that the Claimant, on 1 July
2016, did not request Club B to sign the new employment contract with the form
of the Football Federation of country B, showing that he was not intentioned to
conclude such contract.
49. The Claimant provided copy of the contract with Club E, which was valid as from 7
July 2016 until 30 June 2017. According to such contract, the player was entitled
to a total salary of EUR 109,189.
II.
Cons iderations of the Dis pute Res olution Cham ber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the
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
Player A, from country A / Club B, from country B
10
on 26 July 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, par. 2 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 and 2 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 from country A and a club from
country B.
3. In continuation, 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 26 July 2016,
the 2016 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. First, the Chamber noted that the parties entered into an employment contract
valid as from 12 August 2014 until 30 June 2017, which entitled the player to a
monthly salary of EUR 14,286, plus “two net bonuses” of EUR 50,000 payable on
31 August and 28 February of each season respectively. Furthermore, the club
committed to provide the player with “an apartment/house (…) with monthly
rent price up to 500”, with two flight tickets “country B-country A-country B” for
each season and with “a car at club’s expense (…) at a monthly rent price up to
700”.
6. Moreover, the DRC took note that, on 15 July 2015, the Claimant and the
Respondent signed a transfer contract according to which, on the one hand, the
player was transferred to the Club C against payment of a transfer fee of USD
50,000 to the Respondent. On the other hand, the same transfer contract
stipulated the Respondent’s “irrevocable obligation to purchase back” the player
against the payment of the buy-back fee, in the amount of USD 1,000, before 30
June 2016.
Player A, from country A / Club B, from country B
11
7. Equally, the members of the Chamber duly noted that the second paragraph of
art. IV.3 of the transfer contract stipulated that “furthermore, the Player and the
CLUB explicitly agree and oblige to enter into an employment contract with [Club
B] for one football season 2016/2017 in the form required by the Football
Federation of country B under the terms and conditions as provided for in the
Contract of Employment of Professional Football Player between the Player and
[Club B] dated 11 August 2014”. Furthermore, it was provided the Claimant’s
obligation of payment of USD 400,000 in case of failure “to enter into an
employment contract with [Club B]”.
8. In continuation, the DRC acknowledged that it was undisputed that the Claimant
terminated his employment contract with Club C in January 2016 and neither the
Respondent exercised the obligation to “buy-back” the player, nor a new
employment contract pursuant to art. IV.3 of the transfer contract was executed
between the Claimant and the Respondent.
9. On account of the above, the members of the Chamber took note that the
Claimant alleged that the Respondent breached art. IV.3 of the transfer contract.
In particular, the Claimant argued that said clause constituted a valid and binding
employment contract, as it contained the essentialia negotii of an employment
contract already signed by the parties and provided an autonomous and
independent obligation on the Claimant and the Respondent to conclude a new
employment contract with the Claimant for season 2016/2017.
10. Moreover, the Claimant alleged that the transfer contract constituted the
simulation of a loan agreement, as the real intention of the parties allegedly was
to circumvent the rules of the Football Federation of country B on foreign player
quota for season 2015/2016.
11. Equally, the members of the Chamber took note of the position of the
Respondent, which, conversely, alleged that the Claimant was not a party of the
transfer contract and that art. IV.3 did not stipulate an obligation for the
Respondent to offer him a new employment contract.
12. The Chamber further noted that the Respondent argued that the transfer
contract provided a permanent transfer of the player to Club C and that the
conclusion of a new employment contract for season 2016/2017 depended on the
execution of the buy-back obligation, its intention to offer the Claimant a new
contract and the signature of the form required by the Football Federation of
country B.
13. Furthermore, the Respondent argued that the Claimant’s termination of the
employment contract with Club C extinguished its obligation to buy-back the
player.
Player A, from country A / Club B, from country B
12
14. In view of the aforementioned considerations, the members of the Chamber
highlighted that the first issue to be analysed, considering the diverging position
of the parties, was to determine whether the transfer contract signed on 15 July
2015 stipulated the Respondent’s autonomous and independent obligation to
offer the Claimant a new employment contract for season 2016/2017, containing
the same terms and conditions of the employment contract dated 11 August 2014.
15. In this respect, the members of the Chamber turned their attention to the transfer
contract and concurred that art. IV.3, second paragraph, provided an obligation
on both parties to conclude a new employment contract valid for season
2016/2017, the content of which had been already determined, i.e. the terms and
conditions set out in the employment contract signed by the same parties on 11
August 2014. In particular, the Chamber considered that the reference to “the
CLUB” contained in the aforementioned clause could be logically construed only
as a reference to the Respondent. What is more, being the transfer contract
signed also by the Claimant, the members of the Chamber considered that the
Claimant and the Respondent concluded a valid and binding agreement to sign a
new employment contract within the framework of art. IV of the transfer
contract.
16. Moreover, the members of the Chamber were of the unanimous opinion that the
obligation under art. IV.3, second paragraph of the transfer contract, was not
subject to the exercise of the buy-back obligation by Club B, to the extent that
such obligation, pursuant to the first paragraph of art. IV.3, was set as a condition
only of the transfer of “the full competitive and transfer rights of the Player”
from Club C to Club B and not of the execution of an employment contract.
Indeed, according to the relevant clause, the parties obliged themselves to
conclude a new employment contract “by signing the present agreement”,
without any further conditions.
17. Along those lines, the members of the Chamber considered that the construction
of the transfer contract was aimed to let Club B to acquire the services of the
player as of July 2016. In this regard, the transfer contract contained two different
obligations for the player and Club C respectively which, in the Chamber’s view,
were completely independent from each other. Indeed Club C was obliged to
transfer the “full competitive and transfer rights” and the player to sign an
employment contract with Club B.
18. In continuation, as to whether the execution of the form required by the Football
Federation of country B could be considered as a condition for the validity of the
new employment contract, the Chamber considered relevant to recall its
jurisprudence in accordance with which the validity of an employment contract
cannot be made conditional upon the execution of (administrative) formalities,
such as, but not limited to, the registration procedure in connection with the
international transfer of a player and the use of particular forms provided by the
concerned association.
Player A, from country A / Club B, from country B
13
19. Consequently, in view of the aforementioned considerations, the members of the
Chamber concluded that the parties committed to enter into a new employment
contract and that such obligation was not subject to any condition.
20. Subsequently, the members of the Chamber emphasised that the second issue to
be addressed was to determine if, by means of the transfer contract, the parties
actually started a new labour relationship.
21. Having stated the aforementioned, the Chamber wished to highlight that, in
accordance with its long-established jurisprudence, 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 and the remuneration.
22. With the above in mind, the Chamber emphasised that the transfer contract
clearly provides that the new employment contract would have the exact same
terms and conditions as the original employment contact. In particular, it is
noteworthy that the original employment contract concluded between the parties
provided to be valid until 30 June 2017.
23. Having stated the above, the members of the Chamber recalled that the transfer
contract on the one hand stipulated the irrevocable obligation of the Respondent
to exercise the buy-back of the player within 30 June 2016 and, on the other
hand, to conclude the new employment contract with the Claimant for season
2016/2017.
24. In view of the above-mentioned considerations, the members of the Chamber
came to the conclusion that the real intention of the parties by signing the
transfer contract was to suspend the employment relationship between the player
and Club B during the period of his permanence with Club C, i.e. season
2015/2016, and to restart it for season 2016/2017. The Chamber felt comforted
with its conclusion considering the low amount of the buy-back fee compared to
the transfer fee and of the severe consequences provided only on the Claimant in
case of his failure to conclude a new employment contract with the Respondent
for season 2016/2017.
25. Having established the above, the Chamber recalled that is was undisputed by the
Respondent that the latter, despite the Claimant’s request, refused to comply with
the obligation set out under art. IV.3, second paragraph, of the transfer contract.
What is more, the members of the Chamber emphasised that the player remained
out of contract since the moment of the termination of the employment contract
with Club C until 30 June 2016 and, as a consequence thereof, the Respondent
was not prevented from entering into the new employment contract with the
Claimant as per art. IV.3, during this period. In this respect, it remained
Player A, from country A / Club B, from country B
14
undisputed by the Respondent the allegation of the Claimant that his contract
with Club D never entered into force.
26. In view of the above, and taking into consideration the Respondent’s refusal to
comply with the aforementioned obligation, the members of the Chamber
concurred on the fact that the Respondent terminated the employment
relationship with the Claimant, without just cause on 19 May 2016, i.e. at the time
the Respondent unequivocally informed the Claimant that it would not continue
with the labour relationship.
27. In continuation, having established that the Respondent is to be held liable for
the early termination of the employment contract without just cause, the
Chamber focused its attention on the consequences of such termination. In this
regard, in accordance with art. 17 par. 1 of the Regulations, the Respondent is
liable to pay compensation for breach of contract to the Claimant.
28. Along those lines, the Chamber pointed out that the amount of compensation
shall be calculated, in particular and unless 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 player 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.
29. In application of the relevant provision, the Chamber held therefore that it first of
all had to clarify as to whether the employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
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 agreed between the parties within the context of their labour
relationship at the basis of the matter at stake.
30. 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.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment relationship
until 30 June 2017 and concluded that the player would have received a total
remuneration of EUR 271,432, equal to the monthly salaries for twelve months
plus the “two net bonuses” under art. X.7 of the employment contract, had the
contract been executed until its expiry date.
31. In continuation, the Chamber verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been enabled to reduce his loss of income.
Player A, from country A / Club B, from country B
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According to the constant practice of the DRC, such remuneration under a new
employment contract 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.
32. Indeed, the player found employment with the country E club, Club E, with which
he signed a contract valid from 7 July 2016 until 30 June 2017, providing a total
salary of EUR 109,189.
33. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC decided that the club must pay the
player the amount of EUR 162,234 which is to be considered a reasonable and
justified amount of compensation for breach of contract in the matter at hand.
34. In addition, and with regard to the player's request for interest, the Chamber
decided that the player is entitled to 5% interest p.a. on said amount as of the
date on which the claim was lodged, i.e. 26 July 2016, until the date of effective
payment.
35. As regards the Claimant’s claim relating to the payment of flight tickets, car and
rent allowance relating to the 2016/2017 season, the members of the Chamber
stressed that, in the absence of a clear monetary value in the contractual
condition relating to flight tickets, car and rent allowance and of any
documentary evidence in this connection (cf. art. 12 par. 3 of the Procedural
Rules), the Chamber had to reject the Claimant’s claim relating to said fringe
benefit(s).
36. The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
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 B, 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 EUR 162,234 plus 5% interest p.a. as from 26 July 2016 until the
date of effective payment.
3.
In the event that the aforementioned amount plus interest 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.
Player A, from country A / Club B, from country B
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4.
Any further claim lodged by the Claimant is rejected.
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 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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, from country A / Club B, from country B
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