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 player,
Player J, from country I
as Claimant
against the club,
Club P, from country G
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 27 June 2009, Player J, from country I (hereinafter: the Claimant), and Club P, from
country G (hereinafter: the Respondent), signed a private agreement (hereinafter: the
agreement), according to which “The player will sign a loan contract with Club L […]
for the season 2009-10. Club L will sign a one year contract ending on 30/06/2010. The
salary of the player will be thirty thousand (30.000) euros net not including the
participation/winning bonuses, the rent of the player’s house as well as two (2) return
tickets country G – country I”.
2.
In addition, the aforementioned agreement established that “Club P agrees to employ
the player for two (2) years (seasons) as a professional football player for its
professional football team currently competing in the country G Superleague on
01/07/2010. The salary of the player from 01/07/2010 until 30/06/2011 will be forty
thousand (40.000) euros net not including the participation/winning bonuses, the rent
of the player’s house as well as two (2) return tickets country G – country I. The salary
of the player from 01/07/2011 until 30/06/2012 will be fifty thousand (50.000) euros net
not including the participation/winning bonuses, the rent of the player’s house as well
as two (2) return tickets country G – country I”.
3.
Following the agreement, the Claimant signed a contract (hereinafter: the contract)
with Club L, from country L, valid as from July 2009 until 30 June 2010, according to
which he would be entitled to receive, inter alia:
- EUR 1,350 as monthly salary, payable 12 months a year;
- EUR 1,350 as Christmas bonus;
- EUR 675 as Easter bonus;
- EUR 675 as holiday bonus;
- EUR 11,100 payable in three equal instalments of EUR 3,700 on 31 October 2009,
31 January 2010 and 31 March 2010.
4.
On 17 March 2010, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting, after having amended his claim, the payment of the total
amount of EUR 90,000, as compensation for breach of contract without just cause,
corresponding to the total remuneration of the Claimant for seasons 2010/2011 and
2011/2012 as established in the agreement.
5.
In addition, the Claimant requests that sporting sanctions should be applied on the
Respondent and that the latter be banned from registering any new players for two
registration periods.
6.
In his claim, the Claimant states that the Respondent intended to sign an employment
contract with him for the season 2009/2010, but since it had exceeded the maximum
number of foreign players, it signed the agreement with the Claimant, according to
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which he would be registered with Club L for the season 2009/2010 and subsequently
sign an employment contract with the Respondent for the seasons 2010/2011 and
2011/2012.
7.
According to the Claimant, the Respondent, by means of the agreement, guaranteed
that he would receive his salaries in the total amount of EUR 30,000. In this respect,
the Claimant also enclosed a copy of an e-mail from the administrative and financial
director of the Respondent, addressed to his financial consultant, dated 13 July 2009,
according to which “After the oral guaranty of the president of Club P that Player J
will get all his money during his contract with Club L, I can also add that Club P will
cover the cost for 2 return tickets country G – country I”.
8.
In this regard, the Claimant states that the Respondent indeed provided him with a
flight ticket to country I, as provided for in the agreement. However, the Respondent
was aware of the fact that Club L allegedly only paid him his salaries of July until
October 2009, amounting to EUR 5,400, but failed to comply with all other financial
obligations established in the contract, without any explanations. In addition, as from
January 2010, the Claimant was allegedly forbidden to train with the first team and
was denied access to Club L’ premises.
9.
By means of his correspondence dated 25 February 2010 and 5 March 2010, the
Claimant reminded the Respondent and Club L of their arrears towards him, as per the
contract and the agreement, in the total amount of EUR 14,150, corresponding to his
salaries for November 2009 until Mach 2010 (EUR 6,750) and the instalments due on 31
October 2009 and 31 January 2010. In his correspondence, the Claimant also advised
the clubs that, should the aforementioned amount not be paid in the following 8
days, he would lodge a claim before FIFA requesting compensation for breach of
contract in the amount of EUR 120,000 corresponding to the total value of his salaries
for seasons 2009/2010 until 2011/2012.
10.
In the beginning of March 2010, the Claimant claims to have been orally contacted by
the Respondent, in order to negotiate an amicable settlement, as per which he was
allegedly offered the amount of EUR 25,000 to settle all outstanding accounts.
11.
Therefore, the Claimant believes that, by signing the agreement, the Respondent
assumed the responsibility of guaranteeing that he would receive the remuneration of
EUR 30,000 for season 2009/2010. However, in view of the non-compliance of Club L
with the employment contract, the Respondent refused to abide by the agreement
and, thus, should be held liable to pay compensation for breach of contract without
just cause.
12.
In its reply, the Respondent claims that, in order not to exceed the number of foreign
players allowed, it offered the Claimant a transfer to Club L for one season. By means
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of the agreement, the Respondent obliged Club L to provide the Claimant with a
salary of EUR 30,000 and guaranteed that it would engage the Claimant for the
seasons 2010/2011 and 2011/2012.
13.
According to the Respondent, on 13 July 2009, the Claimant allegedly requested the
Respondent’s director to assure him that, in case Club L would fail to pay him the
amount of EUR 30,000, he would make these payments himself. This was orally agreed
with the Claimant and subsequently the Claimant signed the contract with Club L.
However, by giving the Claimant such a guarantee, the Respondent meant that he
would be entitled to claim any unpaid amounts, in case he would play the complete
season with Club L, and subsequently offer his services to the Respondent; but not that
the Respondent would pay any amounts due by Club L.
14.
According to the Respondent, the Claimant correctly received his salaries from July to
November 2009, as well as the first instalment. However, on 24 December 2009, the
Claimant left country G, without permission or explanation, only presenting himself
again on 28 January 2010. Consequently, on the same day, he was summoned to
present his position before the board of Club L, by no later than 1 February 2010.
15.
In addition, the Respondent states that the Claimant failed to present himself to Club
L’ “Offenses Committee” and did not resume trainings with the club. Thus, on 11
February 2010, Club L’ board imposed on him a fine in the amount of EUR 4,833 for
unauthorized absence for a month. Furthermore, the Respondent provided a “detailed
list of participation of players” of Club L, for season 2009/2010, according to which the
Claimant has participated in matches as from 13 September 2009 until 20 December
2009.
16.
For having left Club L on 24 December 2009, the Claimant did not receive his salary for
such month. Any other amounts due to the Claimant prior to his absence should be
paid by Club L, and not by the Respondent.
17.
In addition, the Respondent claims that the Claimant did not show any interest in
rendering his services to it after the end of his contract with Club L, in July 2010.
18.
The Respondent further denies having ever offered the Claimant the amicable
settlement of the dispute for the amount of EUR 25,000 and indicates that no
evidence of such offer has been presented by the Claimant.
19.
Furthermore, the Respondent deems that the Claimant terminated the contract
without just cause in March 2010, alleging non-compliance of Club L with the financial
terms of the contract, and did not contact the Respondent in this regard, with a view
to possibly sign an employment contract with such club. Therefore, the claim of the
Claimant should be entirely rejected.
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20.
In his replica, the Claimant insists on the fact that the Respondent should be
considered liable for the payment of any outstanding amounts regarding the
employment contract with Club L, as per the agreement, and consequently maintains
the argumentation of his claim.
21.
In addition, the Claimant claims having returned to country G on 1 January 2010, with
a ticket provided by the Respondent. This information is, according to the Claimant,
confirmed by an interview given by him to a country B newspaper, on 5 March 2010,
on which he states that, in spite of being in the city of country G, he was forbidden to
join the trainings of Club L since January 2010. In this respect, the Claimant also
encloses to his claim a statement of another player of Club L, according to which he
presented himself in January 2010 in order to resume trainings with Club L.
22.
Finally, the Claimant states never having received any of the documents enclosed to
the Respondent’s response regarding his alleged absence to trainings.
23.
In spite of having been invited by FIFA, the Respondent did not submit its final
comments to the present affair.
24.
The Claimant claims not having signed any employment contract as from 17 March
2010 until 30 June 2012.
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 17 March 2010. 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.
Subsequently, the DRC referred to art. 3 par. 1 and 2 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (hereinafter: the Regulations;
editions 2012, 2010 and 2009), it is competent to decide on the present litigation,
which concerns a dispute with an international dimension, between an country I
player and a country G club, in relation to an alleged employment relationship
between the two aforementioned parties invoked by the player.
3.
Furthermore, the DRC analysed which edition of the Regulations should be applicable
as to the substance of the matter. In this respect, the Chamber confirmed that, in
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accordance with art. 26 par. 1 and 2 of the Regulations (editions 2012, 2010 and 2009)
and considering that the present matter was submitted to FIFA on 17 March 2010, the
2009 edition of said Regulations is applicable to the present matter as to the
substance.
4.
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.
5.
In this respect, the DRC acknowledged that it was undisputed by the parties that they
had signed, on 27 June 2009, a private agreement, according to which “The player will
sign a loan contract with Club L […] for the season 2009-10. Club L will sign a one year
contract ending on 30/06/2010. The salary of the player will be thirty thousand (30.000)
euros net not including the participation/winning bonuses, the rent of the player’s
house as well as two (2) return tickets country G – country I”.
6.
The Chamber also noted that, by means of said private agreement, the parties also
established that “Club P agrees to employ the player for two (2) years (seasons) as a
professional football player for its professional football team currently competing in
the country G Superleague on 01/07/2010”, for a global salary of EUR 40,000 for
season 2010/2011 and of EUR 50,000 for season 2011/2012.
7.
In addition, the members of the Chamber also acknowledged that the parties did not
dispute the fact that, following the signature of the aforementioned private
agreement, the Claimant and Club L signed an employment contract, valid as from July
2009 until 30 June 2010, according to which he would be entitled to receive, the
global amount of EUR 30,000, broken down as follows: EUR 1,350 as monthly salary,
payable 12 months a year; EUR 1,350 as Christmas bonus; EUR 675 as Easter bonus; EUR
675 as holiday bonus; EUR 11,100 payable in three equal instalments of EUR 3,700 on
31 October 2009, 31 January 2010 and 31 March 2010.
8.
The Chamber further noted that, on the one hand, the Claimant explains that the
Respondent intended to sign an employment contract with him, but as it had already
exceeded the maximum number of foreign players allowed per club, it proposed that
the Claimant would be on loan with Club L for season 2009/2010, for a global salary of
EUR 30,000. At the end of the loan, the Claimant would return to the Respondent and
sign an employment contract for seasons 2010/2011 and 2011/2012, under the
conditions established in point II.6. above. In this regard, the Claimant and the
Respondent signed the private agreement of 27 June 2009 (cf. points I.1. and I.2.
above).
9.
Furthermore, the Chamber equally noted that the Claimant claims that Club L has,
inter alia, failed to pay his salaries of July until October 2009 and has not reacted to his
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reminders of 25 February 2010 and 5 March 2010 in this regard. In accordance with the
private agreement, the Claimant deems that the Respondent is also responsible for the
compliance of Club L with its contractual obligations towards the Claimant.
10.
Based on the foregoing, the Claimant requests from the Respondent the payment of
compensation for breach of contract in the amount of EUR 90,000, corresponding to
the total amount of remuneration that the Claimant would be entitled to receive from
the Respondent for seasons 2010/2011 and 2011/2012, as well as the imposition of
sporting sanctions.
11.
The DRC equally noted that the Respondent, on the other hand, rejects the Claimant’s
claim, as it deems that it shall not be held responsible for the non-compliance of Club
L with the employment contract signed between the latter and the Claimant for
season 2009/2010.
12.
In this respect, the DRC noted that the Respondent does not dispute the fact that the
private agreement was signed with the Claimant, due to the fact that the Respondent
was no longer allowed to register any new foreign players. By means of this
agreement, the Respondent assured the Claimant that he would sign an employment
contract with Club L for season 2009/2010 and receive from said club the total amount
of EUR 30,000. However, the Respondent claims never having obliged itself to pay the
Claimant’s salaries, in case Club L would fail to do so. Therefore, the Respondent
deems that Club L shall be considered the only responsible party for any type of noncompliance arising from the contractual relation between the Claimant and said club.
13.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant and the allegations of the
Respondent, was to determine whether a valid contractual relationship between the
Claimant and the Respondent existed, on which the Claimant could base his claim
against the Respondent.
14.
Before analyzing the positions presented by the parties to the dispute and in view of
the multitude of arguments and documents presented by the both of them, the DRC
deemed it appropriate to emphasize that the following outline of the parties‘
arguments is illustrative and does not comprise every contention put forward by them.
However, the Chamber has carefully considered all submissions made by the parties,
even if no explicit reference to those submissions is made in the following analysis.
15.
Having said that and in view of the fundamentally divergent views of the parties with
respect to the basic question as to whether or not a valid and binding contractual
relation exists between the Claimant and the Respondent, the members of the
Chamber 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
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burden of proof. The application of the said principle in the present matter led the
members of the Dispute Resolution Chamber to conclude that it was the Claimant’s
responsibility to prove the existence of his contractual bond with the Respondent, on
the basis of which he claims compensation for breach of contract.
16.
Having stated the above, the Dispute Resolution Chamber started to analyze the
documentation provided by the Claimant in relation to his alleged contractual bond
with the Respondent. In this regard, the DRC noted that the Claimant has provided a
copy of the private agreement, of 27 June 2009 (cf. point I.1. above), and of an e-mail
dated 13 July 2009, by means of which the financial director of the Respondent stated
that “After the oral guaranty of the president of Club P that Player J will get all his
money during his contract with Club L, I can also add that Club P will cover the cost for
2 return tickets country G – country I” (cf. point I.7. above).
17.
Taking into account the content and the nature of the aforementioned
documentation, the members of the Chamber were of the opinion that while the
private agreement of 27 June 2009 establishes that the Claimant shall be loaned to
Club L for season 2009/2010 for a global remuneration of EUR 30,000, it does not
stipulate that such remuneration will be paid by the Respondent, also not in case of
failure of payment on the part of Club L. Moreover, the Chamber pointed out that the
e-mail of 13 July 2009 of the Respondent’s financial director is of non-official nature,
does not contain any expression of the parties’ mutual agreement and, therefore,
cannot be considered as a legally binding document upon which a party could claim
the execution of any legal obligations whatsoever.
18.
Having duly taken note of the aforementioned documentation presented by the
Claimant, the members of the Chamber held that, in order for the DRC to be able to
assume that the Claimant and the Respondent had indeed been bound by a
contractual relation under the terms described by the Claimant, it had to be
established, beyond doubt and by documentary evidence, that the said parties had
indeed entered into a respective labour agreement, and, if so, under which terms.
19.
In view of the foregoing, the members of the Chamber had to conclude that, in
accordance with art. 12 par. 3 of the Procedural Rules, the documents presented by
the Claimant did not prove beyond doubt that the Respondent and the Claimant had
a valid and binding contractual relation, as per which the Respondent could be held
liable for the payment of the Claimant’s salaries for the period during which the latter
was employed with Club L.
20.
As a consequence, the Dispute Resolution Chamber decided, based on the arguments
and the documentation presented by both parties, that the claim of the Claimant had
no contractual basis and, thus, no contractual breach existed on the part of the
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Respondent. Therefore, the DRC concluded that the claim of the Claimant had to be
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player J, 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
Encl.
CAS directives
Player J, from country I / Club P, from country G
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