Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 July 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Theodore Giannikos (Greece), member
on the claim presented by the club,
Club S, from country A
as Claimant
against the player,
Player P, from country A
as Respondent
and the club,
Club B, from country T
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 31 July 2008, Player P, from country A (hereinafter: player or Respondent 1),
and Club S, from country A (hereinafter: Club S or Claimant), concluded an
employment contract (hereinafter: contract) valid from the date of its signature
until 30 June 2009 providing an option for Club S to unilaterally extend the
duration of the contract for two additional years, in two times, of one year each.
2.
In addition, the contract stipulates that Club S shall make the option of the first
unilateral extension by informing the player until 31 May 2009 or for the second
unilateral extension by informing the player until 30 April 2010.
3.
The contract provides for a monthly remuneration of currency of country A 10,000
as well as a bonus of currency of country A 160 for ``points won in official match
in which the player participated’’.
4.
Furthermore, the contract stipulates that the player’s salary would be ``improved’’,
in relation to the last month’s entitlement of the previous contractual year,
should the unilateral option to extend the employment contract be exercised, in
accordance with art. 6 of the Collective Bargaining Agreement no 430/75.
5.
In July 2008, Club S, Club C, from country K (hereinafter: Club C) and the player,
concluded a loan agreement valid until 30 June 2009 with the option of a
definitive transfer. If Club C wanted to make use of said option of a definitive
transfer it would have to pay Club S the amount of USD 400,000 until 31
December 2008 and USD 500,000 until 30 June 2009.
6.
In June 2009, Club S signed an undated document entitled ``Agreement for the
extension to exercise the option to acquire the economic rights’’, by means of
which it extended Club C’s deadline ``to exercise the option to acquire 100% of
the player’s economic rights’’ to 15 July 2009 at the latest, for the total amount of
USD 500,000, payable on the date on which both clubs reach an agreement on the
definitive transfer of the player.
7.
On 29 April 2009, Club S sent a telegram, addressed to the player to an address in
country A. The telegram reads in a free translation from language of country A
``in accordance with country A Football Association Regulations and the F.A.A.
Collective Agreement [Collective Bargaining Agreement signed between the
country A Player’s Union and country A Football Association], we notify the
extension of the contract. Telegram with recorded delivery’’.
Club S, from country A / Player P, from country A / Club B, from country T
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8.
Club B, from country T (hereinafter: Club B or Respondent 2), and the player
signed an employment contract valid as from 7 July 2009 until 31 May 2011.
9.
On 14 August 2009, the Single Judge of the Players’ Status Committee authorised
the country T Football Federation to provisionally register the player with Club B.
10.
On 8 September 2009, Club S lodged a claim before FIFA against the player and
Club B, claiming that the player had breached the contract without just cause and
that Club B had induced him to do so. Consequently, Club S maintains that Club B
shall be jointly liable for any compensation to be paid to Club S.
11.
In particular, Club S requested the following:
compensation for breach of contract, the calculation of which shall be based
on the points below:
USD 500,000 corresponding to the amount set in the loan agreement
signed between Club S and Club C, in the event that Club S wished to
exercise the option for the definitive transfer of the player;
USD 50,000 for sporting damage or loss as the player represented a high
value for the team of Club S and the bad influence on the future relations
between Club S and Club C, since the latter club wished to keep the
player;
amounts paid by Club B to the player as sign-on fee and / or salary;
the obligation to mitigate the damages shall not be applied in the present
matter, since there are no savings by Club S, because the player’s salaries
were paid by Club C during the loan period;
5% interest p.a. as from the date of breach of contract;
sporting sanctions to be imposed on the player and on Club B;
to impose a fine of currency of country H 50,000 on Club B as a penalty due to
breach of art. 18 par. 3 of the FIFA Regulations on the Status and Transfer of
Players by Club B.
12.
Furthermore, Club S stated that while Club B could immediately use the player’s
services in its team without paying any transfer compensation, Club S had lost a
player, whose immediate replacement was impossible, without receiving any
financial compensation for it. According to Club S, these aspects should also be
taken into account when determining the amount of compensation to be paid to
Club S.
13.
In this respect, Club S explained that the player had signed five employment
contracts with it within the time period between June 2004 and July 2008. In
these four years, the player had been transferred on a loan basis to different
clubs. In spite of the fact that each loan agreement had included an option for a
Club S, from country A / Player P, from country A / Club B, from country T
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definitive transfer, no option had ever been exercised. Club S pointed out that the
player had always returned to the club at the end of each loan agreement and
that a new contract was then signed by the parties.
14.
However, according to Club S, after the last loan to Club C, the player allegedly
refused to stay with Club C, who had allegedly exercised the option for the
definitive transfer of the player, and he did not return to Club S either, despite
the contract containing a unilateral option for its extension. In particular, Club S
allegedly received a fax from the player’s representative in July 2009 informing it
that the player refused both options, the definitive transfer to Club C as well as
the unilateral option for an extension of the contract.
15.
Equally, Club S pointed out that each of the employment contracts with the
player included a unilateral extension option, which had never been contested by
the player. Moreover, Club S alleged that the player had accepted to return to
Club S after the loan and that by doing so he actually recognised the existence of
a valid employment contract with Club S for the period of time right after the
loan. In this respect, Club S emphasised that in the event that Club C would not
make use of its option to definitively acquire the player’s services, he had to
return to Club S.
16.
In his reply to the Club S’s claim, the player rejected the club’s allegations and
sustained to have never received any communication from Club C and/or the club
regarding an alleged decision to exercise the option set out in the loan
agreement. Moreover, the player stated that, in fact, the club failed to provide
any proof in this regard. According to the player, he was verbally informed by the
country A Football Association that the club had exercised the unilateral option
set out in the contract when he returned to country A, in July 2009, after the end
of the loan and the employment contract.
17.
The player added that, on 15 July 2009, the country A Football Associatiion
formally refused the issuance of the international transfer certificate requested by
the country T Football Federation, inter alia, pursuant to the allegation that Club
C ``had exercised the option to hire the player on a permanent basis before the
club, despite of the fact that the player has neither been officially informed by
Club C about it’’.
18.
Furthermore, according to the player, no agreement was signed between him and
Club C regarding the terms and conditions of a new employment contract to be
fulfilled in the event that the mentioned option was exercised by Club C at the
end of the loan agreement.
Club S, from country A / Player P, from country A / Club B, from country T
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19.
In addition, the player argued that this unilateral extension option in favour of
Club S is invalid and contrary to FIFA jurisprudence, curtails the freedom of the
player in an excessive manner, and it led to an unjustified disadvantage of the
player’s right towards the club for years. In this respect, the player indicated that
three of the five prerequisites that the Dispute Resolution Chamber allegedly has
identified as decisive in order to establish whether an option in favour of a club
can be valid were not met by Club S. According to the player, these pre-requisites
are the following: a) the potential maximal duration of the labour relationship
shall not be excessive; b) the option shall be exercised within an acceptable
deadline before the expiry of the contract; c) the salary rewarded deriving from
the option right has to be defined in the original contract; d) one party shall not
be at the mercy of the other party with regard to the contents of the employment
contract; and e) the option shall be clearly established and emphasised in the
original contract so that the player is conscious of it at the moment of signing the
contract.
20.
The player sustained that Club S did not have a real interest in his services and the
only reason to keep him under contract was to obtain compensation. In this
regard, the player referred to the Club S’s allegations in its statement of claim
that between 2004 and 2009 the player was loaned to several clubs.
21.
In the event that the Dispute Resolution Chamber deems the unilateral extension
option to be valid and duly exercised by Club S, the player requests the Dispute
Resolution Chamber to determine that Club S is entitled to an amount of
compensation to be established on the basis of the remaining amount due as
salaries until the end of the new term of the contract set out in accordance with
the unilateral extension clause, that is 12 months; hence, an amount not higher
than currency of country A 138,000. In addition, the player requests the DRC not
to take into consideration, as objective criteria, the amount established by the
option for the definitive transfer of the player to Club C, allegedly exercised by
Club C, since Club S failed to submit evidence that the option was exercised and
communicated to the player accordingly. Finally, the player asks the DRC to
establish that there is no legal basis to apply any sporting sanctions and that the
player shall not be responsible to pay any expense or legal costs regarding the
dispute at hand.
22.
In its reply to the claim, Club B held that Club S intended to unilaterally extend
the contract signed with the player until 30 June 2010 and allegedly informed the
player on 3 July 2009. However, the player allegedly manifestly did not accept
such unilateral extension and sent a letter to Club S on 6 July 2009 stating his
position on the matter.
Club S, from country A / Player P, from country A / Club B, from country T
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23.
Club B sustained that unilateral options violate main principles of labour law and
referred to the decision of the Single Judge of the Players’ Status Committee on
14 August 2009, which stated that, in general, a unilateral option in favour of the
club cannot be considered valid since it limits the freedom of the player in an
excessive manner and leads to an unjustified disadvantage of the player’s right
towards the club.
24.
Finally, Club B emphasized that it signed a contract with a player who was not
contractually bound to another club and requested that the club’s claim be
rejected.
II.
Considerations of the Dispute Resolution Chamber
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 8 September 2009. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par.
1 and par. 2 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in
combination with art. 22 lit. a of the Regulations on the Status and Transfer of
Players (edition 2012) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns a dispute between an country A club and an
country A player in relation to the maintenance of contractual stability where
there has been an ITC request.
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
(edition 2012), and considering that the present claim was lodged on 8 September
2009, the 2009 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,
Club S, from country A / Player P, from country A / Club B, from country T
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the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
In this respect, the Chamber acknowledged that, on 31 July 2008, the Claimant
and the Respondent 1 signed an employment contract valid from the date of its
signature until 30 June 2009 providing an option for Club S to unilaterally extend
the duration of the contract for two additional years, in two times of one year
each. As regards the unilateral extension option, the members of the Chamber
duly noted that according to the employment contract, Club S had to exercise the
option of the first unilateral yearly extension by informing the Respondent 1 until
31 May 2009.
6.
The Chamber further took into account that the player was transferred on a loan
basis from the Claimant to Club C, from country K, as from July 2008 until 30 June
2009, with the option for Club C to acquire the player’s services on a definitive
basis.
7.
In this connection, the Chamber noted that it has remained uncontested that the
Respondent 1 rendered his services to Club C at least until the contractual expiry
of the aforementioned loan, i.e. until 30 June 2009.
8.
In continuation, the members of the Chamber acknowledged that the Claimant,
on the one hand, maintains that the Respondent 1 acted in breach of the
employment contract without just cause by failing to return to the Claimant after
expiry of the above-mentioned loan at Club C and after allegedly having refused
to remain registered with Club C in the light of the buying option that allegedly
was exercised by Club C. Consequently, the Claimant asks that the Respondent 1
be ordered to pay compensation for breach of contract and that the Respondent
2, the club with which the Respondent 1 signed an employment contract valid as
from 7 July 2009, be held liable for inducement to breach of contract and be held
jointly liable for the payment of such compensation.
9.
The Respondent 1, for his part, rejects the claim and holds inter alia that he never
received any communication from Club C and/or the Claimant regarding an
alleged decision to exercise the option set out in the loan agreement. The
Respondent 1 furthermore sustains that he was only informed orally by the
country A Football Association, after his return to country A following the expiry
of the relevant loan at Club C and of the employment contract with the Claimant,
Club S, from country A / Player P, from country A / Club B, from country T
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that the Claimant exercised the unilateral option set out in the employment
contract.
10.
The Chamber further noted that the Respondent 2 equally rejects the claim of the
Claimant and sustains that when it signed an employment contract with the
Respondent 1, the latter was no longer contractually bound to any other club.
11.
In order to be able to establish as to whether, as claimed by the Claimant and
contested by the Respondent 1, the player had acted in breach of the
employment contract without just cause, the Chamber first turned its attention to
the unilateral extension option, in accordance with which the Claimant had the
contractual right to extend the relevant employment contract, which was set to
expire on 30 June 2009, for at least another year.
12.
In continuation, the members of the Chamber, without analysing the question as
to whether such unilateral extension option could, in fact, be considered valid and
enforceable, referred to the contractual requirement stipulating that in order to
duly exercise such option, the Claimant had to inform the Respondent 1
accordingly until 31 May 2009.
13.
The Chamber noted that, on 29 April 2009, the Claimant sent a telegram to the
Respondent 1, to an address in country A. In this context, the members of the
Chamber took into account that it has remained uncontested that, at that time,
the Respondent 1 rendered his services to Club U, in country K, on a loan basis.
14.
Moreover, the Respondent 1 sustains that he was not informed of the fact that
the Claimant exercised the unilateral extension option until he returned to
country A after the expiry of the loan period and that he was informed
accordingly by the country A Football Association.
15.
On account of these considerations, in particular bearing in mind that the
Respondent 1 was in country K in the context of the loan agreement signed by
and between the Claimant, the Respondent 1 and the country K club, Club C, at
the time when the Claimant addressed a telegram to the player to an address in
country K, the members of the Chamber concurred that the Claimant failed to
fulfil the formal requirement of informing the Claimant until 31 May 2009 in
order for it to exercise the option to extend the employment contract by another
year, i.e. the Claimant failed to inform the Respondent 1 accordingly in a timely
manner.
16.
At this point, the members of the Chamber agreed that, having established that
the contractual requirement in order for the unilateral extension option to be
Club S, from country A / Player P, from country A / Club B, from country T
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duly exercised had not been fulfilled, the question as to whether the relevant
unilateral extension option as such is be considered valid and legally binding does
not need to be further examined. However, the members of the Chamber deemed
it fit to express their strong doubts as regards the validity of such unilateral
clauses referring to its constant jurisprudence in such matters.
17.
On account of all of the above, the Chamber concluded that the employment
contract between the Claimant and the Respondent 1 was not extended and,
thus, came to an end on 30 June 2009. As a result, the Respondent 1 was enabled
to sign the employment contract with the Respondent 2 valid as of 7 July 2009.
18.
For these reasons, the Chamber decided to reject the claim of the Claimant.
*****
Club S, from country A / Player P, from country A / Club B, from country T
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Club S, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to article 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
Club S, from country A / Player P, from country A / Club B, from country T
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