Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 July 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player 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 case
1.
On 16 September 2013, the player A from country B (hereinafter: player or
Claimant) and the Club C from country D (hereinafter: club or Respondent)
allegedly concluded an employment contract, valid as from 1 January 2014
until 31 December 2015 (hereinafter: the document).
2.
According to the document, the player was entitled to receive, inter alia:
a monthly salary of 12,000, if he plays as a goalkeeper in the ’U21 & B
team’;
a monthly salary of 16,000, if he plays as a second goalkeeper in the ’A
team’;
a monthly salary of 20,000, if he plays as a first goalkeeper in the ‘A
team’.
3.
The player states that in January 2014 and February 2014, he received from the
club the total amount of 24,000 (2 instalments of 12,000 each) as salary
payment.
4.
According to the player, on 19 February 2014, he received a letter from the
club, in which the club stated that ‘As of 19.2.2014 the Club C did not register
the Player A into the Football Association of country D who is therefore a free
agent and the above mentioned club does not possess any transfer rights of
the player’.
5.
According to the player, said letter has to be considered as a unilateral
termination of his contract by the club without just cause. On 3 March 2014,
the player protested in writing against the alleged termination of his contract
and put the club in default of payment of the amount of 264,000, as value of
the contract for the period between 1 March 2014 and 31 December 2015.
6.
On 2 October 2014, the player lodged a claim before FIFA against the club
(which claim was amended on 27 October 2014), claiming payment of
compensation for breach of contract by the club, in the amount of:
a. Primary: 440,000, based on the ‘first goalkeeper in the A team’ status
of the player, specified as follows: 200,000 (value of the contract for
the period of 1 March 2014 until 31 December 2014) and 240,000
(value of the contract for the period of 1 January 2015 – 31 December
2015);
b. Alternatively: 264,000, based on the ‘U21 & B team’ status of the
player, specified as follows: 120,000 (value of the contract for the
Player A, country B / Club C, country D
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period of 1 March 2014 until 31 December 2014) and 144,000 (value of
the contract for the period of 1 January 2015 until 31 December 2015).
The player also requested reimbursement of his legal expenses.
7.
In its reply, the club stated that the document signed on 16 September 2013
was a ‘pre-contract’ and not an employment contract. According to the club,
the player did not provide certain documents requested by the Respondent
and/or did not want to conclude a ‘player’s contract’, although on 17
December 2013, the club offered him a proposal to sign such a contract.
8.
The club alleges that the document signed on 16 September 2013 was not
intended to be legally binding, since it was a ‘future contract to close a player’s
contract’. According to the club, the proposal made to the player on 17
December 2013 contained detailed provisions on the remuneration as well as
additional rights and obligations, which elements were not included in the
document signed on 16 September 2013.
9.
Furthermore, the club states that ‘any sums paid to the plaintiff by the
defendant were provided to the plaintiff because he didn’t have enough funds
to finance his costs of living in country D’. According to the club, these
payments would be considered as down payments after the signing of the
proposal for the player’s contract.
10.
The club concludes that the player acted in ‘bad faith’ by not signing the
proposal, and lodged a counterclaim, asking that the player’s claim be rejected
and claiming that the player be ordered to pay 24,000 to the club, because
‘these were paid to the plaintiff without just cause due to ill faith of the
plaintiff’, 6,000 for legal fees of the club, as well as procedural costs.
11.
In his reaction to the counterclaim, the player denied that the document he
signed on 16 September 2013 was a pre-contract. According to the player, the
club tried to create the impression that the parties needed to conclude a
professional contract, by sending him emails with the request to accept the
proposal. Further, the player states that the document established a legal
relationship between the player and the club for the period of 1 January 2014
to 31 December 2015 and that the club did not submit any proof that the
contract was in fact a pre-contract.
12.
The player finally stated that after the breach of contract, he did not conclude
a professional player’s contract with another club, but that as from the
beginning of May 2015, he plays as an amateur for the Club E from country B.
Player A, country B / Club C, country D
Page 3 of 10
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 2 October 2014. Consequently, the Rules governing the procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
2014; hereinafter: Procedural Rules) are applicable to the matter at hand (cf.
art. 21 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 2015) 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 from country B and a club from
country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2015), and considering that the present claim was lodged on 2
October 2014, the 2014 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the 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 members of the Chamber started by acknowledging that
the parties to the dispute had signed a document, valid as from 1 January 2014
until 31 December 2015, in accordance with which the Respondent would pay
the Claimant a monthly salary of 12,000 if he would play as a goalkeeper in
the ’U21 & B team’, a monthly salary of 16,000 if he would play as second
goalkeeper in the ’A team’ and a monthly salary of 20,000 if he would play as
a first goalkeeper in the ’A team’.
6.
In continuation, the Chamber noted that the Claimant lodged a claim against
the Respondent maintaining that the Respondent had breached the
Player A, country B / Club C, country D
Page 4 of 10
document, which the Claimant considers to be an employment contract, by not
registering him with the Football Association of country D and by showing no
interest in his services.
7.
Thereafter, the members of the Chamber took note of the reply of the
Respondent, which alleged that the document signed on 16 September 2013
was actually a ‘future contract to close a player’s contract’, without legal
effect, and that the Claimant refused to sign the proposal for a definitive
contract made to the Claimant on 17 December 2013.
8.
Moreover, the Chamber noted that the Respondent stated that it paid certain
amounts to the Claimant, but that these amounts were merely provided to the
Claimant to finance his cost of living. Finally, the members of the Chamber
noted that in response to the claim of the Claimant, the Respondent also
requested for said amounts to be reimbursed by the Claimant.
9.
Having stated the aforementioned, the Chamber turned its attention to the
Respondent’s statements that the document signed on 16 September 2013,
was not an employment contract, but a legally non-binding document. The
Chamber duly acknowledged that the fundamental issue in the present matter
is whether or not the document signed on 16 September 2013 should be
considered an employment contract. In this respect, the members of the
Chamber wished to highlight that in order for an employment contract to be
considered as valid and binding, apart from the signature of both the
employer and the employee, it should contain the essentialia negotii of an
employment contract, such as the parties to the contract, their role, the
duration of the employment relationship and the remuneration.
10.
After careful study of the document dated 16 September 2013 presented by
the Claimant, the Chamber concluded that all such essential elements are
included, in particular, the fact that the contract establishes that the Claimant
has to render his services towards the Respondent, which in counterpart has to
pay to the Claimant a monthly remuneration. Furthermore, the members of
the Chamber wished to highlight that in the months of January and February
2014, the Claimant received the total amount of 24,000 from the Respondent,
which corresponds to the Claimant’s entitlements under the document dated
16 September 2013.
11.
Based on the aforementioned circumstances, the DRC concluded that the
Claimant and the Respondent had effectively entered into an employment
contract on 16 September 2013, valid as from 1 January 2014, which was also
executed by the parties.
Player A, country B / Club C, country D
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12.
Having established that a valid and legally binding employment contract had
been in force between the Claimant and the Respondent, the Chamber went
on to analyse whether such contract had been breached and, in the
affirmative, which party is to be held liable for breach of contract.
13.
In this regard, the Chamber noted that the Respondent held that the Claimant
did not provide certain documents requested by the Respondent and/or that
the Claimant did not sign the proposal for a ‘player’s contract’.
14.
In this respect, and turning its attention to the letter allegedly received by the
Claimant on 19 February 2014, the Chamber considered relevant to recall its
jurisprudence in accordance with which the validity of an employment contract
cannot be made conditional upon the execution of (administrative) formalities,
such as, but not limited to, the registration procedure in connection with the
transfer of a player, which is the sole responsibility of a club and on which a
player has no influence. In this regard, the Chamber pointed out that it is the
responsibility of the engaging club to ensure that the player is properly
registered with his new club in order to be able to provide it with his services.
Since the club is supposedly interested in acquiring the rights of the player and
in benefiting from his services, it is also expected from it that its acts
accordingly in view of the registration of the player. For these reasons and
since the Claimant and the Respondent had already signed a contract, the
members of the Chamber decided to reject the Respondent’s arguments in this
regard.
15.
Subsequently, the Chamber recalled that according to the Claimant, the
Respondent informed him on 19 February 2014 in writing that he would not
be registered with the Football Association of country D, which he considers to
be a termination of the contract by the Respondent. The Respondent, on the
other hand, held that it was the Claimant who breached the ‘pre-contract’ by
not signing a ‘player’s contract despite the agreement on future contract’.
16.
At this point, the Chamber was eager to emphasize that a possible refusal of
the Claimant to sign an additional agreement, does not affect the validity and
enforceability of the document signed on 16 September 2013, since said
document has to be considered as a valid employment contract, as stated
under points and II./9., II./10. and II./11. In particular, the members of the
Chamber observed that the Respondent did not contest that it had not
registered the Claimant with the Football Association of country D and that, in
fact, it merely disputed the legal validity of the document signed on 16
September 2013.
Player A, country B / Club C, country D
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17.
On account of all the above circumstances, in particular, by not registering the
Claimant with the Football Association of country D and informing him about
this in writing on 19 February 2014, the Chamber established that the
Respondent had no longer been interested in the Claimant’s services. Such
conduct constitutes, in the Chamber’s view, a clear breach of contract.
Accordingly, the members of the Chamber concluded that the employment
contract, which is to be considered as valid and binding, was indeed breached
by the Respondent without just cause and that the Respondent is to held liable
for such early termination of the employment contract.
18.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber
focussed its attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract.
19.
First of all, the members of the Chamber concurred that the Respondent must
fulfil its obligations as per the employment contract in accordance with the
general legal principle of “pacta sunt servanda”. The Chamber noted that the
Claimant stated to have received the amount of 12,000 in the months January
and February 2014. In absence of any evidence to the contrary, this led the
Chamber to the conclusion that the Claimant was to play as a goalkeeper in
the “U21&B team” and thus was entitled to a monthly salary of 12,000.
Therefore, the Chamber concluded that there were no outstanding payments
at the date of termination of the contract.
20.
In continuation, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Respondent compensation for breach of contract.
21.
Having stated the above, the Chamber turned to the calculation of the amount
of compensation payable to the Claimant by the Respondent in the case at
stake. In doing so, the members of the Chamber firstly recapitulated that, in
accordance with art. 17 par. 1 of the Regulations, the amount of compensation
shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria,
including in particular, the remuneration and other benefits due to the
Claimant under the existing contract and/or the new contract, the time
remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected
period.
Player A, country B / Club C, country D
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22.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contained a
provision by means of which the parties had beforehand agreed upon an
amount of compensation payable by the contractual parties in the event of
breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
23.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the Respondent to the Claimant had to be
assessed in application of the other parameters set out in art. 17 par. 1 of the
Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
24.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment
contract as from its date of termination without just cause by the Respondent,
i.e. 19 February 2014, until 31 December 2015, and concluded that the
Claimant would have received in total 264,000 as remuneration had the
contract been executed until its expiry date. In this respect, the Chamber
wished to reiterate that it assumed that the Claimant was entitled to a
monthly salary of 12,000, since this amount was paid to the Claimant in
January and February 2014 and the Claimant did not submit documentary
evidence that he was entitled to a monthly salary of 20,000. Consequently, the
Chamber concluded that the amount of 264,000, i.e. 22 months x 12,000,
serves as the basis for the final determination of the amount of compensation
for breach of contract in the case at hand.
25.
In continuation, the Chamber verified as to whether the Claimant had signed
an employment contract with another club during the relevant period of time,
by means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
26.
The Chamber noted that, according to the Claimant´s declaration, he had not
been able to sign an employment contract with another professional club
during the relevant period of time, but that as from the beginning of May
2015, he plays as an amateur (without receiving any remuneration) for the
Player A, country B / Club C, country D
Page 8 of 10
Club E from country B. As a result, the Chamber held that no mitigation shall
be applied.
27.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided to partially accept
the Claimant’s claim and that the Respondent must pay the amount of 264,000
as compensation for breach of contract in the case at hand.
28.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal costs in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence in
this regard.
29.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected and that the Respondent’s request for reimbursement is rejected as
well in light of all the aforementioned considerations.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant compensation for breach
of contract in the amount of 264,000, within 30 days as from the date of
notification of this decision.
3.
In the event that the aforementioned sum is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned time limit and the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player A, country B / Club C, country D
Page 9 of 10
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
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:
Markus Kattner
Acting Secretary General
Encl.: CAS directives
Player A, country B / Club C, country D
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