Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 7 June 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands), member
Jon New m an (USA), member
Wouter Lam brecht (Belgium), member
Pav el Piv ov arov (Russia), 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 22 January 2017, the player of Country B, Player A (hereinafter: Claimant) and
the club of Country D, Club C (hereinafter: Respondent), signed a “proposal
agreement” by means of which the Respondent offered to the Claimant:
a) “A half year contract for the periods 2016-2017 plus one additional year if the
[Respondent] promoted in League of Country D for the season 2017-2018;
b) EUR 50.000 net, from February until June;
c) A bonus of EUR 25.000 net in case the [Respondent] will promote in League
of Country D for the season 2017-2018;
d) A full contract of EUR 150,000 net for the season 2017-2018, only if the
[Respondent] participates in League of Country D;
e) EUR 3,000, from February until June, for car and accommodation;
f) One return ticket for Country B.”
2.
The proposal agreement further indicated: “The offer is valid for 24 hours”.
3.
The proposal agreement ended with the following jurisdiction clause: “Any dispute
arising from or related to the present agreement will be submitted exclusively to
the Court of FIFA (…)”.
4.
On 27 January 2017, the Claimant and the Respondent signed a “Professional
Player’s Contract” (hereinafter: contract), valid from the date of signature until 30
June 2017.
5.
According to clause 4.1 of the contract, the Claimant would obtain a monthly fee
of EUR 3,500 net, “paid out to the [Claimant] the latest at the end of each month”.
6.
Clause 4.1 also provided that the Claimant is entitled to a Christmas bonus equal to
one monthly salary, an Easter bonus equal to half a monthly salary, as well as a
“Holiday benefit” equal to half a monthly salary.
7.
In accordance with clause 4.2 of the contract, “the [Claimant] will receive a bonus
of EUR 25,000 if the [Respondent] promotes to League of Country D. The bonus will
be payable on 5 September 2017”.
8.
Under clause 4.3, the Claimant obtains as “other benefits:
a) The amount of EUR 4,500 as transportation expenses payable in 5 equal
instalments of EUR 900 each as from February 2017 until June 2017;
b) Monthly residence bonus EUR 4,500 payable in 5 equal instalments of EUR 900
each as from February 2017 until June 2017;
Player A, Country B / Club C, Country D
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c) The amount of EUR 3,000 for car from February 2017 until June 2017;
d) One ticket with refund for Country B”.
9.
According to the information contained in the Transfer Matching System (TMS), the
Claimant signed an employment contract with the club of Country E, Club F, on 17
July 2017, valid from 1 July 2017 until 31 May 2018. The information found in TMS
further provided that “the contract with the former club had expired”.
10.
With regard to the proposal agreement, the Claimant claimed that the Respondent
offered it to him on 22 January 2017 and that he signed that very same day.
11.
The Claimant further highlighted that under the employment contract he would
obtain a total amount of EUR 33,000. According to the Claimant, this amounts to
EUR 20,000 less than the total amount of EUR 53,000 he would obtain in accordance
with the proposal agreement.
12.
For this reason, as per the Claimant, on 31 January 2017 the Respondent paid the
Claimant an amount of EUR 20,000 via a bank transfer.
13.
The Claimant further held that between 31 January 2017 and 20 June 2017 he
received the following amounts:
Am ount paid
EUR 5,000
EUR 5,000
EUR 2,991
EUR 3,000
Date receiv ed
15 March 2017
12 April 2017
15 May 2017
20 June 2017
14.
On 26 September 2017, the Claimant’s legal representative sent a written
notification to the Respondent on behalf of the Claimant requesting EUR 17,009
corresponding to outstanding salary, to be paid “within 10 days from the receipt
of this communication”. In this notification, the Claimant’s legal representative
described the EUR 20,000 paid on 31 January 2017 as a “signing fee”.
15.
On 3 October 2017, the Respondent answered to the Claimant’s notification
holding that the Claimant’s total salary amounted to EUR 33,007.08 and that he
had received EUR 35,991. Consequently, as per the Respondent, the Claimant had
received EUR 2,983.92 more than what was actually owed to him.
16.
On 15 October 2017, the Claimant’s legal representative sent a second notification
letter to the Respondent, highlighting once again that the Respondent only paid
EUR 35,991 out of the EUR 53,000, and that therefore EUR 17,009 remained
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outstanding. The Claimant’s representative provided the Respondent another 10
days to fulfil its obligation duties.
17.
On 16 November 2017, the Claimant lodged a claim in front of FIFA, requesting that
the Respondent be ordered to pay him overdue payables in the total amount of
EUR 17,009, plus 5% interest p.a. on the said amount as from the due date until the
date of effective payment.
18.
On 28 February 2018, the Respondent replied to the Claimant’s claim. It held that,
for the duration of the employment contract, which expired on 30 June 2017, the
Claimant was entitled to EUR 35,285.32 as follows:
a) 5 monthly salaries of EUR 5,846.72 (including travel expenses and subsistence
costs), amounting to EUR 29,233.60;
b) EUR 2,218.30 as an Easter gift;
c) EUR 2,297.04 as a holiday gift;
d) EUR 1,536.38 as a Christmas gift;
19.
Furthermore, the Respondent held that it also paid a return ticket to Country B for
the Claimant.
20.
Given that the Claimant acknowledged having received EUR 35,991 (cf. I.12-13), the
Respondent argued that it does not owe the Claimant any outstanding
remuneration.
21.
As regards the EUR 53,000 the Claimant believed he should receive on the basis of
the proposal agreement signed on 22 January 2017, the Respondent argued that
this agreement seized to be valid after 24 hours, referring to the part of the
agreement which read: “the offer is valid for 24 hours” (cf. I.2).
22.
As a result, as per the Respondent, only the employment contract signed by the
parties on 27 January 2017 is valid and binding.
23.
The Respondent further refered to the discrepancies between the proposal
agreement and the contract, in particular as regards the car, transportation and
accommodation bonus: “Whereas the proposal agreement indicated that the
[Claimant] is entitled to only EUR 3,000 bonus (…) for car and accommodation, the
contract indicates that the [Claimant] is entitled to EUR 3,000 for car, EUR 4,000 for
rent house and EUR 4,500 for transportation”.
24.
Therefore, according to the Respondent, given the clear differences between the
proposal agreement and the contract regarding the same type of remuneration, it
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is “proven that the initial proposal was eventually changed and what finally agreed
between the two parties was finally captured in the (…) contract”.
25.
In his replica, dated 23 March 2018, the Claimant argued that the contract did not
substitute the proposal agreement, but that they are complementary. In this
context, the Claimant once again referred to the payment of EUR 20,000 made on
31 January 2018 (cf. I.11), not stipulated in neither the proposal agreement nor the
contract, but which is the exact difference between the two.
26.
Moreover, the Claimant included alleged extracts of WhatsApp conversations held
between a member of the Respondent and the Claimant’s advisor between 6
January and 31 January 2017.
27.
As regards the Respondent’s argument that the proposal agreement was valid for
only 24 hours, the Claimant held that this only indicates the deadline provided to
the Claimant to sign the agreement. Given that the Claimant signed within those
24 hours, as per the Claimant, the proposal agreement entered into force
adequately and became binding to both parties.
28.
Finally, the Claimant referred to the jurisdiction clause included in the proposal
agreement (cf. I.3), and held that once the proposal agreement was signed, it seized
to be a mere proposal, but rather became an agreement of “contractual character”.
29.
In its duplica, dated 13 April 2018, the Respondent stated that it remained firm in
its view formulated in the reply to the claim of 28 February 2018.
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 case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 16
November 2017. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 of the 2017
and 2018 editions 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 shall adjudicate on an
Player A, Country B / Club C, Country D
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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 (editions
2016 and 2018), and considering that the present claim was lodged on 16 November
2017, 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 documentation contained in the file in relation to the substance of the matter.
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 Chamber recalled that the Claimant and the Respondent signed
a proposal agreement on 22 January 2017. In this sense, the DRC acknowledged
that, in accordance with the proposal agreement, the Claimant would obtain a total
amount of EUR 53,000 for the duration of the employment relationship (cf. I.1).
6.
The Chamber further took into consideration the part of the proposal agreement
which held that “(t)he offer is valid for 24 hours” (cf. I.2).
7.
Furthermore, the DRC established that on 27 January 2017, the Claimant and the
Respondent signed an employment contract valid as from the date of signature
until 30 June 2017. In this context, the Chamber recognised that, under the
contract, the Respondent was obliged to pay the Claimant a total amount of EUR
33,000. The DRC noted that this amount of EUR 33,000 inter alia consisted of a
monthly salary of EUR 3,500 net (cf. I.5), as well as “other benefits” in accordance
with clause 4.3 of the contract, including travel and accommodation costs (cf. I.8).
8.
Next, the Chamber took note of the fact that by the time the contract expired on
30 June 2017, the Claimant acknowledged having received from the Respondent a
total amount of EUR 35,991 in five instalments of EUR 20,000, EUR 5,000, EUR 5,000,
EUR 2,991 and EUR 3,000 respectively (cf. I.12-13).
9.
In continuation, the Chamber recalled that by means of his claim of 16 November
2017, the Claimant requested that the Respondent be ordered to pay him overdue
payables in the total amount of EUR 17,009 (cf. I.17).
Player A, Country B / Club C, Country D
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10.
In this context, the Chamber took note of the Claimant’s arguments, who inter alia
argued that the proposal agreement and the contract were complementary (cf.
I.25), and that the EUR 20,000 received on 31 January 2017 (cf. I.12) should be
interpreted as a sign-on fee. The DRC further highlighted that, according to the
Claimant, he was entitled to a total amount of EUR 53,000 for the duration of the
contract. Therefore, as per the Claimant, given that he only received EUR 35,991
(cf. II.8), EUR 17,009 remained outstanding.
11.
Similarly, the Chamber referred to the Respondent’s point of view, who held that
the proposal agreement seized to be valid after 24 hours, and that, as a
consequence, only the employment contract signed on 27 January 2017 was valid
and binding (cf. I.21-22). The DRC further recalled that, according to the
Respondent, for the duration of the employment relationship, the Claimant was
entitled to a total amount of EUR 35,285.32 (cf. I.18). Finally, the Chamber took
note of the Respondent’s conclusion, who argued that there was no outstanding
remuneration, given that the Claimant himself acknowledged having received EUR
35,991 (cf. I.12-13).
12.
In this context, the Chamber unanimously agreed that the primary issue at stake is
determining whether the Claimant was entitled to a total amount of EUR 53,000 in
accordance with both the proposal agreement and the employment contract, or
whether the Claimant was only entitled to amounts stipulated in the employment
contract. In other words, the DRC had to analyse the validity of both
aforementioned documents signed by the parties.
13.
First, with regard to the payment of EUR 20,000 made on 31 January 2017, the DRC
established that the Respondent did not deny making this payment. Nonetheless,
the Chamber pointed out that the Claimant did not provide any evidence that this
payment corresponded to a sign-on fee. In this light, the Chamber was eager to
emphasise that neither the proposal agreement nor the contract stipulated that
the Claimant was to obtain EUR 20,000 as a sign-on fee.
14.
In a similar vein, the DRC noted that the employment contract was signed before
the payment of EUR 20,000 (i.e. 27 January 2017 and 31 January 2017 respectively).
In other words, as per the Chamber, the employment contract was valid and
binding by the time the payment of EUR 20,000 was made to the Claimant. In this
context, the Chamber determined that the Claimant again failed to sufficiently
demonstrate that this payment derived from the proposal agreement only, and
that it should be considered a sign-on fee.
Player A, Country B / Club C, Country D
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15.
In addition, the DRC could not follow the Claimant’s argument that the proposal
agreement and the employment contract were complementary. If this were the
case, the Chamber argued, then the Claimant would, in fact, be entitled to EUR
86,000 for the duration of the contract, i.e. the amount of EUR 53,000 as stipulated
in the proposal agreement, plus the amount of EUR 33,000 in accordance with the
employment contract. The DRC recalled, however, that the Claimant himself never
claimed that his total salary amounted to EUR 86,000.
16.
In continuation, the Chamber emphasised that the employment contract was
signed after the proposal agreement. In accordance with the lex posterior principle,
the DRC concluded that the employment contract replaced the proposal
agreement, which, after all, was only a proposal.
17.
In light of the above, and bearing in mind the basic principle of burden of proof,
as stipulated in art. 12 par. 3 of the Procedural Rules, the DRC was of the unanimous
opinion that the arguments raised by the Claimant regarding the continued validity
of the proposal agreement cannot be considered as valid, in accordance with the
jurisprudence of the Dispute Resolution Chamber and the legal principle of pacta
sunt servanda.
18.
As a result, the Chamber established that the Claimant was only entitled to
remuneration as stipulated in the employment contract. In this sense, the DRC firstly
recalled that, under the employment contract, the Claimant acknowledged being
entitled to a total amount of EUR 33,000 (cf. I.11), and secondly that the Claimant
admitted having received EUR 35,991 (cf. I.12-13). Consequently, the DRC concluded
that by the time the employment contract between the Claimant and the
Respondent expired, no payables were due to the Claimant.
19.
In view of the above, the Chamber concluded that the Claimant’s claim must be
rejected in full.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is rejected.
*****
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
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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
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