Labour Disputes
Texto da decisão
Decis ion of the Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 July 2016,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Theo v an S eggelen (Netherlands ), member
Takuy a Yam azaki (Japan), member
Mario Gallav otti (Italy ), member
Moham ed Al S aikhan (S audi Arabia), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On an unspecified date, the Player of Country B Player A (hereinafter: the player or
Claimant) and the Club of Country D Club C (hereinafter: the club or Respondent)
signed an employment contract, valid as from 20 September 2013 until 30 June 2016
(hereinafter: the contract).
2.
According to article 5 of the contract, the player was entitled to inter alia receive:
a monthly salary in the amount of EUR 3,870, in the period between 20 September
2013 and 30 June 2014;
a monthly salary in the amount of EUR 4,460 in the period between 1 July 2014
and 30 June 2016.
3.
Article 12 of the contract contains the following clause:
‘The present Convention will be governed and interpreted to the Law no. 69/2000,
of Physical Education and Sports, to XXX no. 205/2005 and the Football Federation
Regulations of Country D. The disputes, resulting from the execution of the present
Convention, are to be solved in the following order:
Amiably.
By bringing the dispute to the justice institutions of the Football
Federation E and the League F.’
4.
According to the player, the club forged a document referred to as ‘contract
termination agreement’ and dated 4 November 2013 (hereinafter: the agreement),
based on which document the contract between the player and the club would be
terminated as per 4 November 2013. Further, said agreement stipulates that the
player would waive any ‘financial claims or litigations’ towards the club as per the
signing date of the termination agreement.
5.
After being allegedly presented the signed document dated 4 November 2013, on
23 December 2013, the player sent in writing a proposal for an amicable settlement
to the club, but received no reply.
6.
On 26 May 2014, the player lodged a claim before FIFA against the club, claiming
payment of the total amount of EUR 137,613, specified as follows:
7.9 monthly salaries of EUR 3,870 each (related to the period between 20
September 2013 (the start date of the contract) and 30 June 2014), in the total
amount of EUR 30,573;
Player A, Country B / Club C, Country D
Page 2 of 10
24 monthly salaries of EUR 4,460 each (related to the period between 1 July 2014
and 30 June 2016), in the total amount of EUR 107,040.
7.
In this respect, the player states that the agreement (cf. point 4. above) is invalid,
because he never signed said document. According to the player, this follows from
the fact that he left City G (Country D) on 4 November 2013 at 10:15 a.m. and that
therefore, it was impossible for him to sign the document dated 4 November 2013.
8.
Further, the player states that ‘it is absolutely illogical’ that he should have signed
an agreement, under which he had no financial claims against the club, because he
‘could not have known if he will have financial claims against the club in advance’.
In addition, the player holds that the club fulfilled at least one of its obligations
under the contract, i.e. it bought the player a ‘round trip airline ticket’, i.e. on 4
November 2013 from City H, via City J, to City K and on 12 January 2014, from City
K, via City J, to City H. The player argues that the club would not have bought him a
retour ticket, if the contact was validly terminated on 4 November 2013.
9.
Furthermore, the player holds that on 13 November 2013, the club drafted a
document with the following clause: ‘Club C agrees that Player A, player under
contract with our club, to make training with Club L. Thank you for your willingness
to accept training of our player. Best regards, Ms M, Sportive Director’.
10.
In its reply, the club first argued that FIFA is not competent to deal with the matter
at hand, since any disputes arising from the contract, should be settled by ‘the
Football Federation E and League N jurisdictional bodies’ and/or the ‘court with
sport jurisdiction of the Football Federation E’. In this respect, the club further
specifies that the ‘National Dispute Resolution Chamber in first instance’ and the
‘Football Federation E Appeal Committee’ (hereinafter: the NDRC of Country D) are
competent in the matter at hand and holds that the NDRC of Country D fulfils FIFA’s
criteria for fair proceedings.
11.
Despite being invited to do so, the club did not submit further documents and/or
regulations of the NDRC of Country D, nor did it submit its position as to the
substance of the matter within the given deadline.
12.
Despite being invited to do so, the player did not submit his comments to the club’s
submission that the NDRC of Country D is competent to deal with the matter at
hand within the given deadline.
13.
Furthermore, after the closure of the investigation phase, the club submitted
additional correspondence, i.e. a document referred to as ‘extrajudicial criminalist
survey report’. In said document, Mr O, allegedly a criminalist expert authorized in
Player A, Country B / Club C, Country D
Page 3 of 10
‘document graphical and technical survey’ concludes that the signature on the
contract and the signature on the agreement ‘was given by the same person’.
14.
The player also submitted additional comments in reply to the club’s
correspondence, stating that on 4 November 2013, he travelled from Country D to
Country B to renew his visa and reiterating that as a result thereof, it was impossible
for him to conclude the agreement with the club. Furthermore, the player argues
that the agreement contained ‘gaps’, which could be filled in by the club itself and
which could give the club the opportunity to falsify the document.
15.
In addition, the player states that he never received a copy of the agreement and
that he would never have signed such an agreement. This because ‘it is impossible
and illogical that I had no requirements because of the fact that I had the
guaranteed financial results and the Club had at that moment official indebtedness
to be paid to me, in particular unpaid salary (EUR 3,000)’.
16.
Moreover, the player argued that in the period after 4 November 2013, the club
gave him recommendations for training and requested a Team of Country B to
render support to the player and to train him for a certain period. Further, the
player holds that - after he returned to City K - the club informed him that it
wanted to obtain a new visa for him, valid as from 1 January 2014.
17.
Finally, after the termination of his contract with the club, the player signed the
following new contracts, as per the information provided by the player and in TMS:
on 3 February 2014, with the Club of Country P Club Q, valid as from 3 February
2014 until 30 November 2014, according to which the player was entitled to
receive 500 (approximately EUR 143) per month. For the period between 3
February 2014 and 18 September 2014, this corresponds to the total amount of
3,750 (approximately EUR 1,070.49);
on 19 September 2014, with the Club of Country B Club R, valid as from 19
September 2014 until 1 January 2015, according to which the player was entitled
to receive a monthly salary of 150 (approximately EUR 67). For the period
between 19 September 2014 and 1 January 2015, this corresponds to the total
amount of 510 (approximately EUR 226);
on 16 February 2015 with the Club of Country S Club T, valid as from 16
February 2015 until 30 June 2016, according to which the player was entitled to
receive:
-
a monthly salary of 6,250 gross, during the 2014/2015 season;
a monthly salary of 20,850 gross, during the 2015/2016 season.
Player A, Country B / Club C, Country D
Page 4 of 10
For the period between 16 February 2015 and 1 February 2016, this corresponds to
the total amount of 173,851 (approximately EUR 41,490). Further, the contract
provides for the following: ‘The Contract after the season 2014/2015 if the team
Club T will falls from League W: becomes invalid on 30.06.2015’;
on 1 February 2016 with the Club of Country B Club U, valid as from 1 February
2016 until 31 December 2016, according to which the player was entitled to
receive a monthly salary of 2,000 (approximately EUR 747). For the period
between 1 February 2016 and 30 June 2016, this corresponds to the total
amount of 10,000 (approximately EUR 3,735).
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 26 May 2014.
Consequently, the Rules governing the procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2012; 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 and par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Player of Country B and a Club
of Country D.
3.
However, the Chamber acknowledged that the club contested the competence of
FIFA’s deciding bodies on the basis of the alleged fact that the NDRC of Country D is
competent to deal with the matter at hand. The club further holds that the NDRC of
Country D meets all the requirements set forth in art. 22 lit. b) of the FIFA
Regulations on the Status and Transfer of Players.
4.
Taking into account all the above, the Chamber emphasised that in accordance with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players, it is
competent to deal with a matter such as the one at hand, unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs, has been established at national level
within the framework of the association and/or a collective bargaining agreement.
With regard to the standards to be imposed on an independent arbitration tribunal
Player A, Country B / Club C, Country D
Page 5 of 10
guaranteeing fair proceedings, the members of the Chamber referred to the FIFA
Circular no. 1010 dated 20 December 2005. Equally, the Chamber referred to the
principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations, which came into force on 1 January 2008.
5.
In relation to the above, the members of the Chamber also deemed it vital to
outline that one of the basic conditions that needs to be met in order to establish
that another organ than the DRC (or the DRC judge) can settle an employmentrelated dispute between a club and a player of an international dimension, is that
the jurisdiction of the relevant national arbitration tribunal or national court
derives from a clear and specific reference in the employment contract.
6.
While analysing whether it was competent to decide on the matter, the Chamber
first referred to art. 12 of the employment contract, on the basis of which the club
contested FIFA’s jurisdiction. Said article stipulates that if the parties are not able to
find an amicable agreement, the dispute should be submitted to ‘the justice
institutions of the Football Federation E and the League F’. The members of the
Chamber outlined that the content of art. 12 cannot be considered as a clear and
exclusive jurisdiction clause as it is rather vague and does not explicitly refer to one
specific national dispute resolution chamber or any similar arbitration body in the
sense of art. 22 lit. b) of the aforementioned Regulations. In view of the foregoing,
the Chamber concluded that its jurisdiction could not be set aside on these grounds
as, the jurisdiction of the NDRC of Country D does not derive from a clear reference
in the employment contract.
7.
Furthermore, the Chamber noted that the club, despite being invited to do so, did
not present further documentation in favour of the competence of the NDRC of
Country D. As a result, the members of the Chamber deemed that the club also
failed to provide substantial evidence that the NDRC of Country D consisted of an
independent arbitration tribunal, guaranteeing fair proceedings and respecting the
principle of equal representation of players and clubs.
8.
As a consequence of the above-mentioned elements (cf. point II.5 to II.7 above), the
Chamber concluded that the contract did not contain a clear and specific arbitration
clause, supporting the alleged competence of the NDRC of Country D to deal with
the present dispute. Furthermore, it could not be concluded that the NDRC of
Country D was indeed an independent arbitration tribunal guaranteeing fair
proceedings and respecting the principle of equal representation of players and
clubs, as the applicable version of the NDRC Regulations was not provided by the
club.
9.
In continuation, and by establishing FIFA’s competence based on the
aforementioned circumstances, the Chamber analysed which regulations should be
Player A, Country B / Club C, Country D
Page 6 of 10
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 (editions 2014, 2015 and 2016), and considering that the present claim
was lodged on 26 May 2014, the 2012 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
10.
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.
11.
In doing so, the members of the Chamber started by acknowledging that, according
to the player, he had concluded an employment contract with the club, valid as
from 20 September 2013 until 30 June 2016, in accordance with which contract, he
was entitled to receive a monthly salary of EUR 3,870 in the period between 20
September 2013 and 30 June 2014, and a monthly salary of EUR 4,460 in the period
between 1 July 2014 and 30 June 2016.
12.
Furthermore, according to the player, the club had allegedly forged a document
dated 4 November 2013, according to which the contract between the parties
would be terminated as per 4 November 2013 and under which document, the
player would waive any (financial) claims towards the club. The player holds to have
not signed said document and, therefore, asked to be awarded compensation for
breach of contract by the club in the amount of EUR 137,613.
13.
Subsequently, the members of the Chamber observed that the club, for its part, in
spite of having been invited to do so, failed to present its response to the claim of
the player, as to the substance of the matter at hand, within the relevant time-limit.
In fact, the reply of the club as to the substance, mentioned in point I.13 above, was
only received after the investigation-phase of the matter had already been
concluded. In addition, the members of the Chamber noted that the player
submitted unsolicited correspondence, also after the closure of the investigation
phase, as mentioned in point I.14 to I.16 above.
14.
As a result of the aforementioned circumstances, the Chamber decided not to take
into account the unsolicited correspondence of the club, as well as the unsolicited
comments of the player, insofar these were submitted after the closure of the
investigation and established that, in accordance with art. 9 par. 3 of the Procedural
Rules, it shall take a decision upon the basis of those documents on file that were
provided prior to the closure of the investigation-phase by the player and the club.
Player A, Country B / Club C, Country D
Page 7 of 10
15.
In view of this dissent between the parties in respect of the basic question as to
whether or not a termination agreement between the player and the club had been
signed, 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 burden of proof. The application of said
principle in the present matter led the members of the Dispute Resolution Chamber
to conclude that it was up to the player to prove that the agreement dated 4
November 2013, was indeed forged by the club. Furthermore, it was the player’s
obligation to prove that, if it could be established that the club forged the
agreement, as a result thereof, he should be entitled to compensation for breach of
contract, because the club had terminated the contract without just cause.
16.
Having stated the above, the Dispute Resolution Chamber recalled that the player
maintained that he never signed the agreement dated 4 November 2013, as well as
that the signature on said document was falsified by the club. Furthermore, the
player submitted certain documents (cf. point I.7 to I.9 above), on the basis of which
it should – according to the player - be concluded that the club, in the period after 4
November 2013, still considered the contract valid.
17.
At this stage, the members of the Chamber considered it appropriate to remark
that, as a general rule, FIFA’s deciding bodies are not competent to decide upon
matters of criminal law, such as the ones of alleged falsified signature or document,
and that such affairs fall into the jurisdiction of the competent national criminal
authority.
18.
In continuation the Chamber recalled that all documentation remitted shall be
considered with free discretion and, therefore, it focused its attention on inter alia
the power of attorney, the employment contract as well as on other documents
containing the player’s signature, provided by the parties in the context of the
present dispute. In this regard, the members of the Chamber pointed out that the
original version of the agreement dated 4 November 2013, was provided by the
club.
19.
After a thorough analysis of the aforementioned documents, in particular,
comparing the relevant signatures of the player in the various documents provided
in the present affair and the fact that the original version of the termination
agreement was provided by the club, the members of the Chamber had no other
option but to conclude that, for a layman, the signatures on such documents appear
to belong to the same person.
20.
In view of the foregoing, the Chamber established that it appears that the player
had signed the agreement dated 4 November 2013, according to which document
Player A, Country B / Club C, Country D
Page 8 of 10
the contract between the parties would be terminated as per 4 November 2013,
with the player waiving any ‘financial claims or litigations’ towards the club as per
the signing date of the termination agreement.
21.
In this context, the Chamber deemed it appropriate 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.
22.
In the present case, by means of the agreement dated 4 November 2013, signed by
the player and the club, the contract was terminated as per 4 November 2013 and
the parties confirmed not having any further financial claims against each other
arising from the employment contract.
23.
In respect of the foregoing and of the inconclusive documents and argumentation
provided by the player, the members of the Chamber had to conclude that player
did not prove beyond doubt that the club forged his signature on the document
dated 4 November 2013.
24.
In view of the all of the above, and based on the documentation currently at its
disposal, the Chamber came to the conclusion that, unless proven otherwise by a
neutral expertise or a decision of the competent national criminal authority, for the
moment, the present claim of the player pertaining compensation for breach of
contract has to be rejected, since the document dated 4 November 2013 appears to
be signed by the player.
25.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
player is admissible, but has to be rejected.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is admissible.
2. The claim of the Claimant is rejected.
Player A, Country B / Club C, Country D
Page 9 of 10
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The
full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
Page 10 of 10