Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2013,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Joaquim Evangelista (Portugal), member
on the claim presented by the club,
Club K, from country B
as Claimant/Counter-Respondent
against the player,
Club O, from country I
and the club,
Club M, from country I
as Respondents/Counter-Claimants
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 19 December 2007, Player O, from country I (hereinafter: the Respondent/CounterClaimant or the Player), Club M, from country I (hereinafter: the Respondent/CounterClaimant), and the Club K, from country B (hereinafter: the Claimant/CounterRespondent) signed a loan agreement for the player, in favor of Club K, valid as from
the date of signature, until 30 June 2010.
2.
According to art. 2 of the loan agreement, “Club K will have the option for another two
seasons, subject to the agreement between Club K and the player”.
3.
Finally, art. 9 of the loan agreement stipulates that “After the termination of the
agreement between Club K and the player will be terminated, the player will be
automatically transferred to Club M”.
4.
Also on 19 December 2007, the Player and the Club K signed an employment contract
(hereinafter: the contract), as well as an annex to it, both valid as from 1 January 2008
until 30 June 2010.
5.
The introduction to the contract stipulates that “as a pre-condition to the validity of this
agreement, the following shall apply: the club guarantees to remain in the 1st national
division of country B; the player should be physically able to play football”.
6.
According to art. of 11 the contract, Club K undertook to pay the Player the following
amounts:
- EUR 15,000 as monthly salary, payable 12 times a year at the latest on the 10th day
of the following month;
- EUR 750 per month for a furnished apartment;
- EUR 750 per month as travel expenses;
- EUR 1,000 of draw bonus in case he is in the first team;
- EUR 3,000 of win bonus in case he is in the first team;
- EUR 125 of bonus per point in case he is listed as 16th, 17th or 18th player on the
match sheet;
- EUR 25 per point in case he is in the reserve team;
- two air tickets per season for the Player and his wife;
- employer's contribution to the pension fund, proportional to the fixed and variable
remuneration of the Player.
7.
Article 22 of the contract (hereinafter: compensation clause) stipulates that, in case any
of the parties unilaterally and prematurely terminates the contract, it shall be held
liable to pay the other party compensation in the amount corresponding to the residual
salaries due as per the contract, up to double the amount established in art. 5 par. 2 of
the Law of 24 February 1978.
Club K, from country B / Player O and Club M, both from country I
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8.
Both art. 2 of the contract and the annex establish that the parties have the option of
extending the contract for two more seasons, i.e. seasons 2010/2011 and 2011/2012. The
execution of such option must be communicated to the Player by Club K, per registered
mail or equivalent, by no later than 31 March 2010. In case the contract is extended, the
Player shall be entitled to receive:
- EUR 16,500 as monthly salary;
- EUR 1,150 of draw bonus in case he is in the first team;
- EUR 3,450 of win bonus in case he is in the first team;
- EUR 125 of bonus per point in case he is listed as 16th, 17th or 18th player on the
match sheet;
- EUR 25 of draw bonus in case he is in the second team;
- EUR 75 of win bonus in case he is in the second team;
- other advantages contained in the employment contract.
9.
On 24 March 2010, Club K sent a letter to the Player, informing him that it had decided
to execute the option of extending his contract, as per its art. 2 and the annex,
extending it for seasons 2010/2011 and 2011/2012.
10.
On 12 April 2010, Club K informed the country B Football Association, in writing, of the
extension of the contract, while pointing out the refusal of the Player to acknowledge
receipt of it.
11.
On 27 April 2010, the Player and Club K signed a document, according to which, should
his salary be lower than 8-fold the remuneration foreseen by the Law of 24 February
1978, Club K would have to pay the residual amount due until the end of the contract.
12.
On 3 May 2010, the Player requested the extension of his work permit for one more
year, which was accepted by the country B authorities on 17 May 2010.
13.
On 26 of July 2010, the Player sent a letter to Club K, in which he pointed out the
invalidity of the clause allowing the unilateral extension of the contract. Consequently,
the unilateral extension exercised by Club K would also be invalid and the contract
between the parties should be considered to have expired on 30 June 2010. Based on
the aforementioned, the Player requested that Club K should recognize the nonexistence of a valid employment contract between the parties and authorize him to
leave Club K and join a club of his choice.
14.
On 3 August 2010, the Player informed Club K in writing of the “termination of the
agreement”, based on the fact that he had been allegedly excluded from the reserve
team and from the team photo, that the amount of EUR 3,800 – corresponding to a fine
of which he was unaware – was deducted from his salary and that no valid agreement
existed between the parties.
Club K, from country B / Player O and Club M, both from country I
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15.
On 8 August 2010, the Player signed a new employment contract with Club M, valid
until 30 June 2012.
16.
On 27 August 2010, in view of the Claimant/Counter-Respondent’s refusal to authorize
the issuing of the Player’s ITC and as per the request of the country I Football
Association, the Single Judge of the Players’ Status Committee (PSC) decided for the
registration of the Player with the Club M, after concluding that “the country B club
does not appear to be genuinely interested in the services of the player anymore, but
rather in financial compensation. In fact, the documentation received from the country
B Football Association does not contain any indication as to its club requesting the
return of the player. Moreover, with regard to the alleged extension of the term of the
contract between the player and the country B club, the Single Judge referred to the
well-established jurisprudence of the Dispute Resolution Chamber, which was confirmed
by the Court of Arbitration for Sport, according to which unilateral options in favour of
the clubs are, per se, not valid”.
17.
On 19 August 2011, the Claimant/Counter-Respondent lodged a claim in front of FIFA
against the Respondents/Counter-Claimants, alleging that the Player, induced by Club
M, breached the contract without just cause, and claiming compensation in the total
amount of EUR 1,130,126.54, plus interests of 4% p.a. as of 1 August 2010, made up of:
- EUR 630,126.54, corresponding to the remaining value of the contract, until 30 June
2012, to be paid by the Respondents/Counter-Claimants jointly;
- EUR 500,000 as compensation for inducement of breach of contract, to be paid by
Club M.
18.
On 8 November 2012, the Claimant/Counter-Respondent amended its claim, by
requesting, inter alia, that the Respondents/Counter-Claimants should be held jointly
liable to pay the amount of EUR 500,000 as additional compensation, that an interest
rate of 5% p.a. applies as from the date the Respondents/Counter-Claimants were put
in default, as well as the application of sporting sanctions as follows: the Player should
be suspended for at least 4 months and Club M should be prohibited to register any
players, nationally or internationally, for two registration periods, as from the date of
notification of the decision.
19.
In its arguments, the Claimant/Counter-Respondent states that, in spite of having been
duly informed of the extension of the contract for seasons 2010/2011 and 2011/2012, as
per art. 2 of the contract and the annex, the Player abandoned Club K in July 2010 and
on 8 August 2010 he concluded an employment contract with Club M.
20.
The Claimant/Counter-Respondent points out that not only the option of extension is
contained in the contract, but also permitted by the country B Law of 24 February 1978
and the Labour Collective Agreement of 7 June 2006, and therefore it is to be
considered as valid.
Club K, from country B / Player O and Club M, both from country I
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21.
In view of the above-mentioned circumstances, the Claimant/Counter-Respondent
deems that the Player, induced by Club M, breached his contract with Club K, which was
still valid and binding for the parties. Thus, the Respondents/Counter-Claimants should
be held liable to pay compensation to the Claimant/Counter-Respondent.
22.
In their response, the Respondents/Counter-Claimants entirely reject the claim of the
Claimant/Counter-Respondent and state that the employment contract of the Player
with Club K had expired on 30 June 2010, and therefore he was free to sign a new
contract with Club M.
23.
The 5 contract, since the latter was only drafted in language D and language F,
languages he does not understand. Consequently, he was surprised to receive the
Claimant/Counter-Respondent’s letter of 24 March 2010, informing him of the unilateral
extension of the contract, not only because he was unaware of such possibility, but also
because he had been hardly fielded by Club K, having made only 6 starting appearances
in the 2009/2010 season, having been a candidate for transfer to another club and
having played in total only 56 minutes as from 6 December 2009 until 21 March 2010.
Therefore, he rejected the extension of the contract, as mentioned by the
Claimant/Counter-Respondent in its letter of 12 April 2010 (cf. point I.10. above).
24.
Believing, however, that this decision of the Claimant/Counter-Respondent was
irreversible and not having been aware of the alleged invalidity of art. 2 of the contract
and its annexe, the Player continued offering his services to Club K.
25.
Subsequently, the Player claims having been excluded from the first team at the
beginning of season 2010/2011 without an explanation and having had his
remuneration dramatically lowered. Later on, the Player was also excluded from the
second team and the Claimant/Counter-Respondent imposed on him a fine in the
amount of EUR 3,800, without any formal notice or procedure.
26.
As the Player was informed by his lawyer of the alleged invalidity of art. 2 of the
contract and its annexe, and consequently of the invalidity of the unilateral extension
of the contract, he warned the Claimant/Counter-Respondent by means of his letter of
26 July 2010 (cf. point I.13. above), to which Club K allegedly never responded.
Consequently, the Player, with his letter of 3 August 2010, considered the contract as
terminated and on 8 August 2010 he signed a new contract with Club M.
27.
The Respondents/Counter-Claimants agree with the Single Judge of the PSC and deem
that art. 2 of the contract and its annexe cannot be considered as valid, since
incompatible with art. 18 par. 2 of the FIFA Regulations, the Swiss Law, the principle of
the parity of the parties to a contract, and the country B law, which allows the
extension of contracts, but only for the maximum period of 3 years, which the
Claimant/Counter-Respondent failed to mention.
Club K, from country B / Player O and Club M, both from country I
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28.
In view of the aforementioned arguments, and in particular of the fact that the
Claimant/Counter-Respondent decided to exercise the extension option at a moment
where the Player was hardly fielded and also that the latter refused to accept it, the
Player considers that such extension is invalid.
29.
Bearing in mind the following facts, as well as the introduction to the contract (cf. point
I.5. above), according to which the latter is only valid for the country B first division, the
Player considers that the contract was anyway no longer valid, since he was not playing
with the first team anymore.
30.
Club M, in its turn, confirms the argumentation of the Player with regard to the
invalidity of the contract extension. Thus, the Player was not contractually bound to the
Claimant/Counter-Respondent as he signed a new contract with Club M on 8 August
2010. As there existed no breach of contract by the Player, consequently Club M cannot
be held responsible for the inducement of breach and the Claimant/CounterRespondent’s claim should be thoroughly rejected.
31.
In the event that FIFA considers that the contract between the Player and the
Claimant/Counter-Respondent was validly extended, the Respondents/CounterClaimants request that the contract should be considered as breached without just
cause by the Claimant/Counter-Respondent. Consequently, the Respondents/CounterClaimants lodge a counterclaim against the Claimant/Counter-Respondent, requesting
compensation in the amount of EUR 631,665.56, payable to the Player, plus interests of
5% p.a. as from the maturity date of each obligation, broken down as follows:
- EUR 343,648.39 corresponding to the Player’s salaries for the remaining period of
the contract, i.e. as from 3 August 2010 until 30 June 2012;
- EUR 198,117.17 corresponding to the other benefits due to the Player for the
remaining period of the contract, i.e. EUE 17,177.94 as housing and transportation
costs, EUR 46,954.84 as paid vacations and EUR 116,806.45 as employer’s
contribution;
- EUR 90,000 as supplementary compensation due to the specificity of sport.
32.
In addition, the Respondents/Counter-Claimants request that sporting sanctions should
be applied on the Claimant/Counter-Respondent.
33.
Finally, the Player claims that in the event that the DRC would consider the contract
extension as valid and that he was consequently in breach of contract, he claims that
the maximum amount of compensation payable to the Claimant/Counter-Respondent
should be EUR 22,500, considering that he failed to give previous notice of the
termination with one and a half month in advance.
34.
In its replica, the Claimant/Counter-Respondent rejects the counterclaim of the
Respondents/Counter-Claimants, as well as the arguments presented to justify the
invalidity of the contract. The Claimant/Counter-Respondent states that the fact that
Club K, from country B / Player O and Club M, both from country I
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the contracts were drafted in language D and F, languages that the Player does not
understand, is irrelevant with regard to the legal effect of such contracts.
35.
On what concerns the invalidity of the extension clause, the Claimant/CounterRespondent reminds the parties that, according to the jurisdiction of the DRC and of the
CAS, what is forbidden is not the simple existence of an extension clause, but the fact
that the latter might be of arbitrary and unilateral nature. In case the clause stipulates a
non-excessive duration, an acceptable deadline before the expiry of the contract to
exercise such option, the new salary of the Player, equal conditions for both parties, and
in case such clause is already included in the original contract, it is to be considered as
valid.
36.
Furthermore, the Claimant/Counter-Respondent deems that the Player did not explicitly
reject the extension of the contract, but only refused to acknowledge receipt of the
Claimant/Counter-Respondent’s letter of 24 March 2010. Moreover, the
Claimant/Counter-Respondent referred to the document signed with the Player on 27
April 2010 (cf. point I.11. above), which refers to his employment with the
Claimant/Counter-Respondent for season 2010/2011. In addition, the Claimant/CounterRespondent referred to the fact that, on 3 May 2010, the Player requested the
extension of his work permit for one more year, i.e. for season 2010/2011 (cf. point I.12.
above).
37.
According to the training sheets presented by the Claimant/Counter-Respondent, the
Player has trained alone as from 6 until 13 July 2010 and with the group as from 14 July
until 4 August 2010. The Player allegedly received his remuneration for July 2010 in the
net amount of EUR 8,884.22, from which EUR 3,800 were discounted, corresponding to
the fine imposed on him. The first time the Player actually contested the validity of the
extension of his contract was through his letter of 26 July 2010.
38.
In addition, the Claimant/Counter-Respondent states that the contract contains no
stipulation concerning the Player’s obligatory participation in the main squad.
39.
In view of the fact that the Claimant/Counter-Respondent always paid the Player his
salaries as per the contract, including his new salary of July 2010 in the gross amount of
EUR 16,500 and that the Player, according to information from Footgoal and
Transfermarkt.uk, played 14 matches or 609 minutes during season 2009/2010, the
Claimant/Counter-Respondent considers that the Player terminated the contract
without just cause, induced by Club M. As a consequence, the Claimant/CounterRespondent lost the chance of selling the Player, in spite of having allegedly received
many offers in this regard.
40.
In their duplica, the Respondents/Counter-Claimants reject the Claimant/CounterRespondent’s amended claim of 8 November 2012, as they consider it prescribed, since it
Club K, from country B / Player O and Club M, both from country I
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was made more than 2 years after the Player’s termination letter of 3 August 2010.
Thus, such amendments should be disregarded.
41.
In addition, the Respondents/Counter-Claimants state to be aware of the DRC’s
jurisprudence concerning contracts signed in a language not understood by one of the
parties, but consider this understanding to be relative insofar as it concerns such an
important clause as an extension clause. In this regard, the Respondents/CounterClaimants also consider that the extension clause is excessive and disproportional, as it
stipulates that the contract can be extended for a period of two more years. Moreover,
the Respondents/Counter-Claimants observe that the Claimant/Counter-Respondent
admits the fact that the Player refused to sign its letter of 24 March 2010, concerning
the extension of the contract, and nonetheless it continued with the relevant
procedures before the country B Football Association, acting thus in bad faith. The
Player claims to have become aware of the extension of his contract only on 27 April
2010. Furthermore, the Claimant/Counter-Respondent does not prove that the Player
explicitly accepted the extension of the contract and that the reference to his request
for a visa extension is not enough to prove such acceptance. His silence could not be
interpreted as acceptance, in the present case.
42.
The Player further denies having received any remuneration from the
Claimant/Counter-Respondent for July 2010. The document presented by the
Claimant/Counter-Respondent, not signed by the Player, does not constitute solid
evidence of any salary payments. In addition, the training sheets presented by the
Claimant/Counter-Respondent, carefully analysed, show that the Player only attended
trainings on 6, 9, 12 and 13 July 2010. As from 28 June until 18 July 2010, the Player
was, in general, absent from trainings. In addition, while one of the sheets states that
the Player was present as from 14 to 18 July 2010, on another one, he was absent on
those days. The Respondents/Counter-Claimants also point out that the Player’s name
on such sheets was apparently added a posteriori and such documents might have been
counterfeited by the Claimant/Counter-Respondent. Moreover, while the sheets state
that the Player was present at the Claimant/Counter-Respondent as from 19 to 25 July
2010, he was actually in country I.
43.
For the Respondents/Counter-Claimants, it is clear that the Claimant/CounterRespondent had no interest in the Player’s services, but only in financial compensation.
In this regard, they mention that the Claimant/Counter-Respondent had already tried to
sell him during the mid-season transfer window, but could not do it because of the high
transfer fee requested.
44.
The Respondents/Counter-Claimants further argue that the extension clause is contrary
to the country B law, since it stipulates a salary increase of 10%, whereas the country B
law requires at least 15%.
Club K, from country B / Player O and Club M, both from country I
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45.
Finally, the Respondents/Counter-Claimants allege that the employment contract could
be considered as null and void, since as per its introduction its validity is made subject to
a successful medical examination of the Player, which is contrary to art. 18 par. 4 of the
FIFA Regulations.
46.
In its final position on the counterclaim, the Claimant/Counter-Respondent insists on the
fact that the Player explicitly agreed to the extension of his employment contract until
30 June 2012, and therefore started to execute the new contract in July 2010. The
Claimant/Counter-Respondent admits that as from 19 to 25 July 2010 the Player was in
country I, probably negotiating his new contract with Club M. In addition, the
Claimant/Counter-Respondent alleges having paid Club M the amount of EUR 890,000
for the transfer of the Player and having suffered a considerable loss with his return to
Club M.
47.
On what concerns the alleged prescription of the amendment to the Claimant/CounterRespondent’s claim, the latter states that the amendment does not constitute a new
claim but a specification of the existing one. Thus, it would not be prescribed.
48.
In addition, the Claimant/Counter-Respondent mentions art. 25 par. 6 of the FIFA
Regulations, according to which FIFA shall apply, in addition to its Regulations, all
relevant arrangements, laws and/or collective bargaining agreements that exist at
national level, as well as the specificity of sport. Therefore, the country B law would also
be applicable to the present case.
49.
Furthermore, the Claimant/Counter-Respondent claims that the decision of the PSC
Single Judge of the 27 August 2010 did not establish in a definitive manner that the
extension clause was not valid, since it is “a provisional measure and as such without
prejudice to any decision whish the Dispute Resolution Chamber might be called to take
as to the substance of a potential contractual dispute”.
50.
The Claimant/Counter-Respondent further states that, by signing the transfer contract
in English, the Player was aware of the existence of an extension clause.
51.
The Claimant/Counter-Respondent also states that the Player did not reject the
extension of the contract, but only to acknowledge the receipt of its correspondence of
24 March 2010. In addition, he signed other documents in relation to the extension of
his contract with the Claimant/Counter-Respondent, namely a declaration of 27 April
2010, by means of which he declares his professional engagement to Club K, in the
context of the request of renewal of his work permit for season 2010/2011. The
signature of such document, the renewal of his work permit until 30 June 2011, the fact
that he started training with the Claimant/Counter-Respondent and received his new
salary for July 2010 would prove the Player’s agreement to the extension of his contract.
Club K, from country B / Player O and Club M, both from country I
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52.
On what concerns the training sheets, the Claimant/Counter-Respondent admits that a
mistake has occurred in the drafting of one of the sheets and that the Player was
actually in country I between 21 and 25 July 2010. Nonetheless, the sheets confirm that
the Player trained individually on 6, 9, 12 and 13 of July 2010, and with the second team
for 14 days in July 2010 and for 3 days in August 2010.
53.
Moreover, the Claimant/Counter-Respondent claims that according to the DRC’s
jurisprudence, the duration of the extension is not excessive, since in the present case it
amounts to 4,5 years, i.e. in line with art. 18 par. 2 of the FIFA Regulations. In addition,
the exercise of the extension clause was done well in advance, i.e. 3 months before the
expiry of the original contract. Furthermore, the Player did not refuse the
correspondence of the country B Football Association of 3 May 2010, according to which
“we have taken note of the fact that, after the exercise of a contractual option, the
contract of the aforementioned player is extended and will end on 30 June 2012”.
Furthermore, the Player terminated the contract without any previous warning to the
Claimant/Counter-Respondent.
54.
Finally, the Claimant/Counter-Respondent states that the Player did not have any
contractual guarantee that he would only play for the first team. In this regard, art. 11
par. 2 of his contract even stipulates the amount of his reserve game match bonuses
and that this is a tactical decision of the coach.
55.
The Player states that, as from 8 August 2010 until 30 June 2012, he was employed with
Club M and was entitled to currency of country I 60,000 gross as monthly remuneration
and bonuses for league points up to a maximum of currency of country I 100,000,
having effectively received the total amount of currency of country I 1,192,976, EUR
393,070.36 less than he would have earned with the Claimant/Counter-Respondent if it
had not breached the contract, as per the Player.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the DRC analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to FIFA on
19 August 2011. Consequently, the 2008 edition of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the
Procedural Rules).
2.
In continuation, 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 (editions 2012 and 2010;
hereinafter: the Regulations), the DRC was competent to adjudicate on an employment-
Club K, from country B / Player O and Club M, both from country I
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related dispute with an international dimension, between a country B club, an country I
player and an country I club.
3.
At this point, the Chamber stated that prior to deliberating on the substance of the
matter the DRC must verify whether the competent FIFA body would be able to deal
with the present affair or not for formal reasons. In particular, the Chamber took note
of the formal objection of the Respondents/Counter-Claimants, according to which the
Claimant/Counter-Respondent’s amendment of 8 November 2012 should be considered
as time-barred, since it was submitted more than 2 years after the event giving rise to
the dispute, i.e. the Player’s termination letter of 3 August 2010.
4.
In this respect, the Chamber referred to art. 25 par. 5 of the Regulations (editions 2012
and 2010), in connection with the Procedural Rules, which stipulates that the decisionmaking bodies of FIFA shall not hear any dispute if more than two years have elapsed
since the facts leading to the dispute arose and that the application of this time limit
shall be examined ex officio in each individual case.
5.
Subsequently, the members of the Chamber took note of the fact that the event giving
rise to the dispute was the termination of the contract in writing by the Player on 3
August 2010. In addition, the Chamber observed that the claim of the
Claimant/Counter-Respondent was lodged on 19 August 2011 and that such claim was
amended on 8 November 2012, with a view to request that the amount of EUR 500,000
of compensation should be jointly paid by the Respondents/Counter-Claimants, and that
interests of 5% p.a. should be applied.
6.
Bearing in mind the contents of art. 25 par. 5 of the FIFA Regulations, the DRC observed
that, while the amendments to the claim were submitted on 8 November 2012, they do
not consist of a new claim, but merely adjust the requests already made in the original
claim of 19 August 2011, which was lodged within two years as from the fact giving rise
to the present dispute.
7.
In view of the foregoing, the Chamber deemed that the objection of the
Respondents/Counter-Claimants is rejected and that the amendment of 8 November
2012 is not to be considered as affected by prescription and, thus, shall be admissible.
8.
Having established that the Claimant/Counter-Respondent’s claim of 19 August 2011
and the amendment of 8 November 2012 are admissible, the Chamber went on to
analyse which regulations were applicable as to the substance of the matter. In this
respect, it confirmed that, in accordance with art. 26 par. 1 and 2, and art. 29 of the
2012 and 2010 editions of the Regulations, and considering that the claim was lodged
on 19 August 2011, the 2010 edition of said Regulations was applicable to the matter at
hand as to the substance.
Club K, from country B / Player O and Club M, both from country I
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9.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
10.
In this respect, the DRC acknowledged that it was undisputed by the parties that the
Player, Club M and Club K had signed a loan agreement for the transfer of the Player, in
favour of Club K, valid as from the date of signature until 30 June 2010.
11.
In addition, the DRC noted that it was equally undisputed by the parties that, also on 19
December 2007, the Player and the Claimant/Counter-Respondent had concluded an
employment contract, as well as an annex to it, both valid as from 1 January 2008 until
30 June 2010, according to which he was entitled to, inter alia, a monthly salary of EUR
15,000.
12.
Subsequently, the members of the DRC observed that the parties do not dispute the fact
that, on 24 March 2010, the Claimant/Counter-Respondent sent a letter to the Player,
informing him of its decision to extend the contract, as per its art. 2 and the annex, for
seasons 2010/2011 and 2011/2012. In this regard, the Chamber also noted that all parties
acknowledge the fact that the Player refused to acknowledge receipt of the
aforementioned letter.
13.
Furthermore, the Chamber noted that the parties also do not dispute the fact that, on
12 April 2010, the Claimant/Counter-Respondent informed the country B Football
Association, in writing, of the extension of the contract, while pointing out the Player’s
refusal to acknowledge its receipt.
14.
In addition, the DRC took due note of the fact that, on 3 August 2010, the Player sent
the Claimant/Counter-Respondent a letter, by means of which he informed it of the
termination of the contract, based on his exclusion from the reserve team and from the
team photo, the unannounced imposition of a fine in the amount of EUR 3,800 and the
invalidity of the agreement between the parties.
15.
Finally, the members of the Chamber acknowledged that, on 8 August 2010, the Player
signed a new employment contract with Club M, valid until 30 June 2012.
16.
Entering the arguments set forth by the parties, the Chamber took note of the contents
of the Claimant/Counter-Respondent’s claim, according to which the Player, induced by
Club M, breached the contract signed with the Claimant/Counter-Respondent’s on 19
December 2007, by concluding a new employment contract with Club M on 8 August
2010, while being aware of the execution of the option to extend his employment
contract with the Claimant/Counter-Respondent for seasons 2010/2011 and 2011/2012,
as established in art. 2 of the contract and in the annex.
17.
In view of the above-mentioned circumstances, the Claimant/Counter-Respondent
requests, after amending its claim, that the Respondents/Counter-Claimants should be
Club K, from country B / Player O and Club M, both from country I
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held jointly liable for the payment of compensation for breach of contract in the total
amount of EUR 1,130,126.54, plus interests of 5% p.a. as from the date the
Respondents/Counter-Claimants were put in default, as well as the application of
sporting sanctions for both Respondents/Counter-Claimants, as specified in point I.18.
above.
18.
On the other hand, the Chamber noted that the Respondents/Counter-Claimants
entirely reject the claim of the Claimant/Counter-Respondent, alleging the nonexistence of a valid contract between the Claimant/Counter-Respondent and the Player,
since the contract of the 19 December 2007 had expired on 30 June 2010.
19.
In this respect, the Chamber particularly noted that the Player’s main arguments –
detailed in Section I. above – are his unawareness of the existence of an extension
option in the contract and in the annex, as they were drafted in unknown languages;
the fact that the extension was executed after a season in which he had been hardly
fielded and was available for transfer; and his explicit refusal to accept such extension,
by not acknowledging receipt of the Claimant/Counter-Respondent’s correspondence of
24 March 2010.
20.
The Chamber further noted that the Player claims having become aware of the
invalidity of art. 2 of the contract and its annexe, and consequently of the unilateral
extension of the contract, only at a later stage. In this regard, he contacted the
Claimant/Counter-Respondent on 26 July 2010 and terminated the contract on 3 August
2010.
21.
In continuation, the DRC took note of the main arguments of Club M, equally detailed
in Section I. above, as per which both the extension clause and the unilateral extension
of the contract by the Claimant/Counter-Respondent are invalid. Thus, as the Player
signed the new contract with Club M on 8 August 2010 he was no longer contractually
bound to the Claimant/Counter-Respondent. Therefore, the claim of the
Claimant/Counter-Respondent should be entirely rejected.
22.
In case the DRC decides that the contract between the Player and Club K was validly
extended, the Respondents/Counter-Claimants lodge a counterclaim against the
Claimant/Counter-Respondent for breach of contract, requesting the payment of
compensation in the amount of EUR 631,665.56, plus interests of 5% p.a. as from the
maturity date of each obligation, as well as sporting sanctions.
23.
Finally, the Player claims that, in case the extension of the contract is considered valid
and he is considered to have breached the contract, the maximum amount of
compensation payable to the Claimant/Counter-Respondent should be EUR 22,500.
24.
The Chamber subsequently acknowledged that the Claimant/Counter-Respondent in its
replica insists on the validity of the extension clause and of the extension of the
Club K, from country B / Player O and Club M, both from country I
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contract and claims that Player’s refusal to accept the extension of the contract was not
explicit, as he merely refused to acknowledge receipt of the letter of 24 March 2010,
requested the extension of his work permit for one more year on 3 May 2010 and
resumed his activities with the Claimant/Counter-Respondent in July 2010. Therefore,
the Claimant/Counter-Respondent insists on its claim.
25.
In continuation, the members of the DRC took note of the main arguments of the
Respondents/Counter-Claimants’ duplica, which restate the invalidity of the unilateral
extension of the contract and the bad faith of the Claimant/Counter-Respondent in
executing the relevant procedures before the country B Football Association in spite of
the Player’s refusal. In this respect, the Player also claims having been mostly absent
from trainings after the extension of the contract and denies having received any
remuneration for of July 2010.
26.
Finally, the members of the DRC acknowledged the content of the final position of the
Claimant/Counter-Respondent on the counterclaim, in which it claims to have suffered
considerable financial damage with the Player’s return to Club M.
27.
Having established the aforementioned, the DRC deemed that the underlying issue in
the present dispute, considering the claim of Claimant/Counter-Respondent and the
allegations of the Respondents/Counter-Claimants, was to determine whether the
employment contract signed between the Claimant/Counter-Respondent and the Player
had been validly extended and whether it was still in force when the latter signed the
new contract with Club M. If so, the DRC would further need to establish if the Player’s
contract with the Claimant/Counter-Respondent had been actually breached by the
Player, and if such breach had been induced by Club M. The Chamber also underlined
that, subsequently, if it were found that the employment contract between the
Claimant/Counter-Respondent and the Player was still valid and binding for the parties
and had, in addition, been actually breached by the Player, induced by Club M, it would
be necessary to determine the consequences for the party(ies) that caused the unjust
breach of the relevant employment contract.
28.
In view of the above, the DRC subsequently noted that the controversy at the basis of
the aforementioned dispute lies fundamentally on the validity of the execution of the
extension clause contained in art. 2 of the contract and the annex.
29.
The DRC deemed that, in this particular case, it is crucial to analyze the circumstances
under which the extension option contained in the aforementioned contract was
executed and, in this respect, it deemed appropriate to recapitulate the sequel of
events that led to the emergence of the contractual dispute at hand.
30.
In this context, the Chamber first and foremost recalled the wording of art. 2 of the
contract and of the annex, which stipulate that the parties have the option of
extending the contract for two more seasons, i.e. seasons 2010/2011 and 2011/2012, and
Club K, from country B / Player O and Club M, both from country I
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that the execution of such option must be communicated to the Player by the
Claimant/Counter-Respondent, per registered mail or equivalent, by no later than 31
March 2010.
31.
In continuation, the Chamber focused its attention on the Claimant/CounterRespondent’s letter of 24 March 2010, addressed to Player, informing him of its decision
to execute the option of extending his contract for seasons 2010/2011 and 2011/2012.
32.
Subsequently, the DRC observed that it was undisputed by the parties that the Player
had refused to acknowledged receipt of the aforementioned correspondence.
33.
In continuation, the members of the Chamber referred to the correspondence of the
Claimant/Counter-Respondent, dated 12 April 2010 and addressed to the country B
Football Association, by means of which it informed the country B Federation of its
decision to extend the Player’s contract, while pointing out his refusal to acknowledge
receipt of its correspondence of 24 March 2010.
34.
The DRC further noted that, in accordance with the training sheets presented by the
Claimant/Counter-Respondent and with the arguments of the Player, the latter
requested the extension of his work permit for another year on 3 May 2010 and
resumed his activities with the Claimant/Counter-Respondent, having taken part in
several training sessions, mainly during the month of July 2010.
35.
At this point, the Chamber pointed out that, in view of the aforementioned facts, the
parties have fundamentally divergent positions: on the one hand, the
Claimant/Counter-Respondent claims that the extension of the employment contract
was validly concluded, since the option had been pre-stipulated in the original
employment contract duly signed by both parties, executed within the established
deadline and not explicitly refused by the Player, who began executing the new
contract, tacitly accepting its continuation. On the other hand, the
Respondents/Counter-Claimants claim that the Claimant/Counter-Respondent acted
against the Regulations and in bad faith, as it, in spite of being aware of the Player’s
refusal to extend the contractual relation, unilaterally executed the extension option
against the Player’s will.
36.
In this context, the DRC deemed it appropriate to remind the parties of the basic
elements of a valid contract, namely an offer, consisting of an expression of willingness
to contract on a specific set of terms with a view that they are accepted by its
counterparty and that both sides will become contractually bound, and an acceptance
of said offer, consisting of an expression of absolute and unconditional agreement to all
the terms set out in the offer.
37.
Bearing in mind the aforementioned elements as well as the particular circumstances of
the present case, the Chamber was of the opinion that the Player’s refusal to
acknowledged receipt of the Claimant/Counter-Respondent’s letter of 24 March 2010 is
Club K, from country B / Player O and Club M, both from country I
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to be considered as a clear sign of his disagreement with the execution of the option to
extend the employment contract. The fact that the Claimant/Counter-Respondent was
aware of the Player’s lack of interest in prolonging their contractual relation is
confirmed not only by the Claimant/Counter-Respondent’s argumentation, but is also
clearly stated in its letter of 12 April 2010 to the country B Football Association.
38.
Notwithstanding the foregoing, the DRC went on to analyze the Claimant/CounterRespondent’s argument, according to which, the fact that the Player resumed his
trainings with Club K and requested the extension of his work permit accordingly,
would mean that he tacitly agreed to the extension of the employment contract.
Therefore, by abandoning his activities with the Claimant/Counter-Respondent and
signing a new employment contract with Club M on 8 August 2010, the Player would
have breached, without just cause, the contract with the Claimant/Counter-Respondent,
induced by Club M.
39.
In this context, the Chamber once again referred to the basic elements of a valid
contract mentioned in point II. 36. above, and in this respect the DRC deemed that the
fact alone that the Player resumed trainings with Club K for approximately one month
does not imply his tacit acceptance of the extension, considering his previous categorical
refusal to it, as well as the arbitrary unilateral extension communicated in spite of him
to the country B Football Association. Therefore, the Chamber concluded that the
Claimant/Counter-Respondent’s allegations in this respect had to be rejected.
40.
Furthermore, the Chamber pointed out that already in the first month after the
Claimant/Counter-Respondent’s unilateral extension of the contract, the player was
assigned to train with the second team or individually, which is alleged by the Player
and confirmed by the training sheets provided by the Claimant/Counter-Respondent. In
addition, it is also uncontested by the parties that, during this period, a fine in the
amount of EUR 3,800 was imposed on the Player and the Claimant/Counter-Respondent
was not able to provide evidence regarding its previous notification, following a due
process.
41.
In view of the foregoing, the Chamber concluded that the Claimant/CounterRespondent, by carrying out the procedure for the extension of the employment
contract for seasons 2010/2011 and 2011/2012 before the country B Football
Association, while being aware of the Player’s clear refusal of such extension, acted
unilaterally and in bad faith, causing consequently the invalidity of such extension, since
it lacks one of the fundamental elements of validity of a contract, namely, the
agreement of both contractual parties. In addition, the Chamber concluded that the
Player’s participation in some of the Claimant/Counter-Respondent’s training sessions
for a period of approximately one month, after the extension had already been
unilaterally concluded by the Claimant/Counter-Respondent cannot be considered as a
sign of the Player’s acceptance of the extension of the contract.
Club K, from country B / Player O and Club M, both from country I
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42.
At this point and for the sake of completeness of the analysis of the parties’
submissions, the Chamber recalled the argument of the Player, according to which he
was unaware of the existence of an extension option in the contract, since the latter
was only drafted in language F and language D, languages he does not understand and,
consequently, such clause should not be considered as valid.
43.
In this respect, the Chamber was eager to emphasize that a party signing a document of
legal importance, as a general rule, does so on its own responsibility and is
consequently liable to bear the possible legal consequences arising from the execution
of such document. Therefore, based on its well-established jurisprudence, the DRC
concluded that the aforementioned argument of the Player had to be rejected.
44.
In view of all the above considerations, the Chamber concluded that, on 8 August 2010,
the player was no longer contractually bound to the Claimant and, as such, he was free
to enter an employment relationship with any club of his choice. As a consequence, the
Chamber deemed that neither the Player breached his contract with the
Claimant/Counter-Respondent, nor had Club M induced any type of breach.
45.
In view of all the aforementioned, the Chamber decided to entirely reject the claim of
the Claimant/Counter-Respondent, as well as the counterclaim of the
Respondents/Counter-Claimants.
*****
Club K, from country B / Player O and Club M, both from country I
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club K, is rejected.
2.
The counterclaim of the Respondents/Counter-Claimants, Player O and Club M, is
rejected.
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS, a copy of which we
enclose hereto. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal arguments
giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
Club K, from country B / Player O and Club M, both from country I
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