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 (did not participate in the deliberations)
Roy Verm eer (the Netherlands ), member
Jon New m an (US A), member
Wouter Lam brecht (Belgium ), member
Pav el Piv ov arov (Rus s ia), 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 10 June 2014, the Player of Country B, Player A (hereinafter: the Claimant or
the player), and the Club of Country D, Club C (hereinafter: the Respondent or
Club C), signed an employment contract (hereinafter: the contract) valid as from
its date of signature until 30 June 2017.
2. In accordance with to art. 8.1 of Schedule 2 of the contract, the Claimant was
entitled to a weekly salary of 50,000, “payable by monthly instalments in arrear”.
3. Furthermore, according to art. 8.3 of Schedule 2 of the contract, the Claimant was
entitled to personal bonuses and, inter alia, to a sign-on fee of 1,950,000, payable
in three annual instalments of 650,000 each on the following dates respectively:
30 June 2014, 31 July 2015 and 31 July 2016. In addition, the Claimant was also
entitled to collective bonuses as detailed in the “Club C Incentive Schedule”,
enclosed to the contract under Schedule 3.
4. Pursuant to its art. 21, the contract “shall be governed and construed in
accordance with Law of Country D”.
5. On 20 January 2016, the player, his agent and the club’s representatives (Director
E, club’s Director of Player Recruitment, and Secretary F, club’s Secretary) had a
meeting at the club’s premises (hereinafter: the meeting) in view of the imminent
player’s transfer to the Club of Country G, Club H (hereinafter: Club H). In this
respect, according to the information contained in the Transfer Matching System,
Club C and Club H signed an agreement for the transfer of the player on 20
January 2016 and, on 21 January 2016, the player signed an employment contract
with Club H.
6. On 21 January 2016, while he was in City J, the Claimant received from the
Respondent a document containing an agreement (hereinafter: the waiver)
whereby Club C and the player acknowledged that the latter had negotiated a
new employment contract with Club H and that he “has agreed to sign this
agreement taking into account any remaining and/or future monies due to him by
Club C under the [contract]”. This document was signed by the player.
7. In particular, according to waiver, the Claimant and the Respondent agreed that,
as of 21 January 2016, “the player shall:
1. Agree to waive all and any claims for outstanding, or remaining monies arising
under the terms of the [contract], including waiving his entitlement to receive
the final instalment of a signing-on fee payment due on 31st July 2016, and the
Club C Incentive Schedule at the date immediately prior to [21 January 2016];
2. Agree to waive his entitlement to receive any bonus payment that may
become payable under Club C’s Incentive Schedule for season 2015-2016; and
Player A, Country B / Club C, Country D
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3. Agrees that this waiver represents the full and final settlement of all and any
claims for outstanding, remaining and/or future monies arising under the
terms of the [employment contract] and Incentive Schedule”.
8. On 3 February 2016, the Claimant, through an e-mail sent to the Respondent,
requested the payment of the salary for 20 days of January 2016. In particular, he
maintained that, during the meeting, it was agreed that the player would waive
the last instalment of the sign-on fee, however that he remained entitled to his
pro-rata salary for the month of January 2016.
9. On 5 February 2016, the Claimant reiterated his previous request for payment.
10. On the same date, the Club C’s secretary replied that the waiver provided that no
further payment was due to the player. In particular, he stated that “this was the
instruction from our Owner, which was duly agreed and signed by [the player]”.
11. On 12 February 2016, the Claimant sent another e-mail to the Respondent,
requesting again the payment allegedly agreed during the meeting.
12. On 13 February 2016, the Claimant requested to Club C’s president the payment
of his salary for the period between 1 and 21 January 2016.
13. On the same date, the president replied to the player that “we gave you a 625
sign on in July for a year, we should have got half of that back. Sorry”.
14. On 16 March 2016, the Claimant put the Respondent in default for the payment
of his salary for the period from 1 to 21 January 2016, requesting the payment
within seven days.
15. On 21 March 2016, the Respondent replied claiming again that the Claimant
waived his right to the requested salary by signing the waiver and, consequently,
it rejected his request.
16. On 4 October 2016, the Claimant lodged a claim in front of FIFA, requesting
outstanding remuneration in the amount of 129,032, for the period between 1
and 21 January 2016, plus 5% interest p.a. as of 22 January 2016. In addition, the
Claimant requested sporting sanctions on the Respondent.
17. In his claim, the Claimant affirmed that, during the meeting held on 20 January
2016, the player and Club C orally agreed that the latter would have paid the
salary for the period of January, when the player rendered his services.
Furthermore, the Claimant alleged that, on 21 January 2016, he signed the waiver
after having being informed by the Respondent that such document reflected the
terms of the agreement reached during the meeting. In particular, according to
the player, this information was delivered via a phone call from Club C’s director
of recruitment to the player’s agent. Moreover, the player supported such
Player A, Country B / Club C, Country D
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allegation by submitting a witness statement from his agent and an affidavit
signed by himself.
18. In continuation, the Claimant emphasised that the waiver expressly referred to
the final instalment of the sign-on fee and to the bonuses set out in the “Club C
Incentive Schedule” only, but not to his monthly salary for the month of January
2016.
19. Moreover, according to the Claimant, the generic reference, contained in the
waiver, to ”any and all claims” was vague and unclear and, thus, pursuant to the
principle of interpretation of the contract contra proferentem, it should lead to
the conclusion that there was no waiver of the salary claimed by the player.
20. Furthermore, the Claimant argued that the parties’ intention ought to be
considered when interpreting the contract, in accordance with the Swiss law. In
view of the above, the Claimant affirmed that the failure to expressly mention the
salary of January 2016 in the waiver implied that the parties did not mean to
include it in their agreement.
21. In addition, the Claimant emphasised that he had a basic knowledge of the
English language and such circumstance prevented him from fully understanding
the content of the waiver, which he signed when he was, allegedly alone, in City J
on 21 January 2016. Consequently, he averred that he signed the waiver only on
the basis of the alleged outcome of the meeting held the day before.
22. Finally, the Claimant maintained that the Respondent acted in bad faith, and the
way the waiver was drafted together with its conduct after its signature aimed at
deceiving the player.
23. In its reply to the claim, the Respondent denied the sequence of events set out in
the player’s claim and maintained that the Claimant, by signing the waiver,
waived to all the outstanding and remaining sums provided in the contract,
included the salary for the month of January 2016.
24. In particular, the Respondent stated that it did not inform the Claimant, or his
agent, that the waiver reflected the terms and conditions allegedly agreed at the
meeting. Moreover, the Respondent pointed out that no agreement had been
reached during the aforementioned meeting on 20 January 2016. In this regard,
the Respondent, in support of such allegation, submitted a statement confirming
said lack of agreement signed by its secretary and its director of recruitment.
25. As to the player’s arguments, the Respondent first held that the principle of the
interpretation of the contract contra proferentem was not applicable, as the
waiver was clear in referring to any remaining / future sums due under the
contract, i.e. salary for the month of January 2016 included.
Player A, Country B / Club C, Country D
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26. In continuation, the Respondent argued that, pursuant to art. 21 of the contract,
Law of Country D was applicable, in accordance with which the parties’ intention
and pre-contractual conduct are not relevant for the interpretation of a contract.
Furthermore, even alternatively considering Swiss law as applicable, the
Respondent affirmed that there was no evidence of any further agreement
reached between the player and Club C before the waiver’s execution.
27. In his replica, the Claimant insisted on his previous arguments and pointed out
that the waiver did not indicate any choice of law by the parties. Consequently,
he argued that Law of Country D was not applicable to the dispute. Moreover,
the player also argued that, even alternatively considering Law of Country D as
applicable, the parties’ intention would have been relevant in the interpretation
of the contract (i.e. the waiver).
28. Furthermore, the Claimant alleged that clause 3 of the waiver referred only to the
future claims related to the sign-on fee and to the Club C Incentive Schedule,
which the waiver enumerated in the previous clause 1 and 2.
29. In its duplica, the Respondent reiterated its previous arguments. In particular, it
reaffirmed that no oral agreement had been reached by the parties during the
meeting on 20 January 2016 and the waiver was the only agreement concluded
between them.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 4 October 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 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.
Player A, Country B / Club C, Country D
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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 2018) and considering that the present claim was lodged on 4 October
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 DRC 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 Claimant and the Respondent concluded an
employment contract valid as from 10 June 2014 until 30 June 2017.
6. The members of the Chamber also observed that, on 21 January 2016, the
Claimant signed the waiver which, inter alia, “represents the full and final
settlement of all and any claims for outstanding, remaining and/or future monies
arising under the terms of the [contract]”.
7. With the above in mind, the members of the DRC took note that the Claimant
requested the payment of part of the remuneration for the month of January
2016, alleging that, during a meeting held with the representatives of the
Respondent on 20 January 2016, the Claimant and the Respondent agreed that he
was entitled to the monthly salary limited to the period during which he rendered
his services to Club C, in January 2016. Moreover, he alleged that he signed the
waiver on 21 January 2016 upon the Respondent’s confirmation that such
document reflected the terms of the agreement allegedly reached the day before
and, furthermore, he affirmed that his limited knowledge of the English language
prevented him from fully understanding the content of the waiver.
8. Finally, the Claimant argued that the waiver could not be taken into account as it
was not specifically referring to the outstanding salary for the month of January
2016.
9. The Dispute Resolution Chamber equally took due note of the fact that the
Respondent, on its part, maintained that no agreement had been reached with
the Claimant during the meeting on 20 January 2016 and denied having
confirmed the content of this alleged agreement to the Claimant before he
signed the waiver. Moreover, the Respondent pointed out that the waiver was
clear in referring to all the outstanding and remaining sums, the salary for the
month of January 2016 included.
Player A, Country B / Club C, Country D
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10. In view of the aforementioned dissent positions of the parties, the members of
the DRC agreed that the underlying dispute in the present matter was to
determine the legal effects of the waiver signed on 21 January 2016 as well as the
existence of an alleged oral agreement reached between the parties. In doing so,
the DRC firstly referred to art. 12 par. 3 of the Procedural Rules, according to
which any party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof.
11. As to legal effects of the waiver, the members of the Chamber first recalled that
such document represented “the full and final settlement of all and any claims for
outstanding, remaining and/or future monies arising under the terms of the
[contract]”. With the above in mind, the members of the DRC were of the
unanimous opinion that the document signed by the player on 21 January 2016
was clear, specific and unambiguous in including any claim for outstanding
remuneration. Consequently, the DRC concluded that the Claimant, by signing the
document on 21 January 2016 waived, inter alia, to claim any amount in respect
to his outstanding remuneration for the month of January 2016 from the
Respondent.
12. In continuation, the members of the Chamber went to analyse the Claimant’s
allegation that he had concluded an oral agreement with the Respondent on 20
January 2016. In this context, the members of the Chamber emphasised that the
Claimant, in order to corroborate his allegation, only submitted statements
released by he himself and by his agent. What is more, the members of the
Chamber noted the same statements were presented by the player also in order
to demonstrate that the Respondent had confirmed him the content of such
alleged agreement before he signed the waiver.
13. On account of the aforementioned considerations, the members of the Chamber
came to the unanimous conclusion that, as the Claimant based his allegation
solely on the basis of his statements and those of his agent, he did not provided
the DRC with conclusive evidence that the alleged agreement had been indeed
reached between the Claimant and the Respondent on 20 January 2016.
14. Finally, as to the Claimant’s argument that his allegedly limited knowledge of the
English language prevented him from fully understanding the content of the
waiver, the members of the Chamber deemed important to point out that,
pursuant to the long-standing jurisprudence of the DRC, any party signing a
document of legal importance without knowledge of its precise content does so
on its own responsibility. Consequently, the Chamber concluded that such
argument could not be upheld.
Player A, Country B / Club C, Country D
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15. Consequently, on account of the aforementioned considerations, the members of
the DRC concluded that, in accordance with the waiver he signed on 21 January
2016, the player is not entitled to the claimed outstanding remuneration. Thus,
the members of the Chamber concluded their deliberations by rejecting the claim
of the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
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, Country B / Club C, Country D
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