Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 July 2016,
in the following composition:
Geoff Thompson (England), Chairman
Santiago Nebot (Spain), member
John Bramhall (England), member
Guillermo Saltos Guale (Ecuador), member
Wouter Lambrecht (Belgium), 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 20 May 2013, the Player of Country B, Player A (hereinafter; the Claimant or
the player) and the Club of Country D, Club C (hereinafter; the Respondent or the
club) (hereinafter jointly referred to as the parties) signed a document which
contains the following information:
“[The Respondent] is glad to confirm the agreement reach (sic) between our club
and [the Claimant](…)
The agreement reach (sic) will be under this terms and conditions as below:
- One year contract valid for the season 2013/2014
- The total amount of USD 300,000 (…) net for a contract valid for the season
2013/2014
- All the terms and conditions will be as the main contract of League of
Country D
- The player should be in City E to start the preparation of our club for the
new season in 1/July/2013”.
2.
On 30 June 2015, and completed on 31 July 2015, the Claimant lodged a claim
against the Respondent in front of FIFA requesting the amount of USD 195,000.
3.
In particular, the Claimant explained that on 20 May 2013, he and the Respondent
concluded a “pre-contract” for the 2013/2014 season which provided for a total
remuneration of USD 300,000 and according to which, he should arrive to City E
on 1 July 2013. In this respect, the Claimant argued that it was verbally agreed
that the Respondent would provide him with the flight tickets in order to travel
to City E.
4.
Nevertheless, the Claimant stressed that he did not receive any further
instructions from the Respondent. The Claimant alleged that he tried to call the
club several times and that on 15 July 2013, he sent an e-mail, which read “I
wonder what the date of my presentation?”, however to no avail.
5.
Moreover, the Claimant highlighted that the Respondent was also of the
understanding that an agreement had been made and, in this respect, enclosed a
press release from the website of the League F in which it is stated that the
Respondent had acquired the services of the Claimant.
6.
As a consequence, the Claimant argued that, by not providing him with the flight
tickets, the Respondent breached the contractual relationship without just cause
and therefore, he is entitled to receive compensation for breach of contract.
Player A, Country B / Club C, Country D
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7.
In this regard, the Claimant argued that on 26 November 2013 he signed a new
contract with the Club of Country G, Club H valid until 22 May 2014 and whereby
it was agreed that he would receive the total amount of USD 105,000. Therefore,
the Claimant held that he is entitled to receive USD 195,000, i.e. the difference
between his contract with the Respondent and the one with Club H.
8.
In its reply to the claim, the Respondent firstly stressed that the claim of the
Claimant was time-barred. In this respect, the Respondent argued that the event
which gave rise to the dispute should be set on 1 July 2013, the date on which the
player did not show up at the club. Since the player lodged his claim on 31 July
2015 only, the Respondent was of the opinion that the claim is clearly barred by
the statute of limitations contained in art. 25 par. 5 of the Regulations on the
Status and Transfer of Players.
9.
As to the substance, the Respondent rejected the claim in its entirety stressing
that at no time was there a contract between the parties. In this respect, the
Respondent explained that in May 2013, the Claimant introduced himself to the
Respondent and that “the parties expressed their general interest to get to know
each other and discussed the possibility” of signing a contract.
10.
The Respondent held that it was in this context that the “preliminary
understanding” of 20 May 2013 was signed. Therefore, according to the
Respondent, the parties agreed that any sort of contractual agreement would be
concluded at a later stage and, in any case, after a successful medical examination
of the Claimant.
11.
According to the Respondent, the contents of the “preliminary understanding”
prove that the intention of the parties was to conclude at a later stage an actual
employment contract. In this regard, the Respondent asserted that the
“preliminary understanding” merely contains “generic and unclear
understandings” between the parties subject to further negotiations. Hence,
according to the Respondent, said document cannot be considered to include all
relevant essentialla negotti of a contract.
12.
Furthermore, the Respondent denied having ever agreed to provide the Claimant
with any flight ticket. Along these lines, the Respondent stressed that the
wording of the “preliminary understanding” clearly provides that the Claimant
“should be in City E” on 1 July 2013. Therefore, the Claimant was the party who
had to arrange his travel to City E for the finalization of the negotiations and the
performance of the medical tests.
13.
The Respondent further argued that the behaviour of the Claimant clearly
confirms that he was also of the understanding that an employment contract had
Player A, Country B / Club C, Country D
Page 3 of 9
not been signed between the parties. The Respondent stressed that the Claimant
never arrived to City E or even tried to contact the Respondent. In this respect, the
Respondent denied having received the Claimant’s e-mail of 15 July 2013.
Moreover, the Respondent underlined that on 1 August 2013, the Claimant
concluded a contract with the Club of Country J, Club K, which, according to the
Respondent, was mutually terminated in October 2013.
14.
Subsidiarly, the Respondent argued that in case it would be concluded that the
“preliminary understanding” is an actual employment contract, it should be
considered that, by not arriving to City E on 1 July 2013, the Claimant breached it
without just cause and thus, no compensation should be payable.
15.
On 30 October 2015, the FIFA administration informed the parties that the
investigation-phase of the matter at hand had been concluded and that, in
accordance with art. 9 par. 4 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber, no further submissions
from the parties would be admitted to the file. Equally, the FIFA administration
requested the Claimant, in order to have a complete and comprehensive file, to
inform about his contractual situation as of July 2013 until June 2014.
16.
On 23 November 2015 and pursuant to FIFA’s aforementioned request, the
Claimant informed that besides his contract with Club H, he concluded a new
contract with the club, Club K valid as of 1 August 2013 until 31 May 2014
according to which he was entitled to a monthly remuneration of USD 3,500 as
well as a sign-on fee of USD 35,000. The player further explained that said
contract was terminated on 31 October 2013.
17.
Furthermore, the Claimant’s aforementioned correspondence of 23 November
2015 contained additional unsolicited comments as to the substance of the matter
as well as an amended claim.
18.
On 26 January 2015, the FIFA administration informed the Claimant that, in view
of the content of FIFA’s letter of 30 October 2015, it would be up to the Dispute
Resolution Chamber to decide whether or not to take into consideration his
additional unsolicited comments as to the substance.
19.
On 27 January 2016, the Respondent submitted additional unsolicited comments.
20.
On 4 April 2016, the FIFA administration informed the Respondent that, in view of
the content of FIFA’s letter of 30 October 2015, it would be up to the Dispute
Resolution Chamber to decide whether or not to take into consideration its
additional unsolicited comments.
Player A, Country B / Club C, Country D
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II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or
the Chamber) analysed whether it was competent to deal with the matter at
stake. In this respect, it took note that the present matter was submitted to FIFA
on 30 June 2015. Consequently, the 2015 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
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 2016), 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 of Country B and a Club of Country D.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2016), and considering that the claim was lodged on 30 June 2015, the 2015
edition of the aforementioned regulations (hereinafter; the Regulations) is
applicable to the matter at hand as to the substance.
4.
Having concluded the above, the Chamber wished to address in the first place the
admissibility of the Claimant’s additional unsolicited comments submitted on 23
November 2015 and those of the Respondent submitted on 26 January 2016.
5.
In this respect, the DRC wished to refer to art. 9 par. 4 of the Procedural Rules,
according to which the parties shall not be authorised to supplement or amend
their requests or their arguments, to produce new exhibits or to specify further
evidence on which they intend to rely, after the notification of the closure of the
investigation. Being undisputed that on 30 October 2015 the FIFA administration
duly notified the parties the closure of the investigation, the Chamber declared
that the additional unsolicited comments of the Claimant and the Respondent,
submitted on 23 November 2015 and 27 January 2016 respectively, are
inadmissible.
6.
The Chamber then addressed the argument of the Respondent, according to
which, the claim of the Claimant is barred by the statute of limitations on the
basis of the Regulations. In this regard, the members of the Chamber referred to
Player A, Country B / Club C, Country D
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art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute
Resolution Chamber shall not hear any case subject to said Regulations if more
than two years have elapsed since the event giving rise to the dispute. The
present claim having been lodged in front of the DRC on 30 June 2015, albeit
having been completed on 31 July 2015, and the event giving rise to the dispute,
i.e. the alleged breach of contract committed by the Respondent, having occurred
on 1 July 2013, the members of the Chamber had to reject the respective
argument of the Respondent and confirmed that the present petition was lodged
in front of the DRC within said two years’ period of time. The matter is, thus, not
barred by the statute of limitations in accordance with art. 25 par. 5 of the
Regulations.
7.
The competence of the Chamber, the admissibility of the claim and the applicable
regulations having been established, and entering into the substance of the
matter, the Chamber started by acknowledging the above-mentioned facts as well
as the documentation contained in the file. 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.
8.
First of all, the DRC acknowledged that on 20 May 2013, the parties signed a
document which contained the following information:
“[The Respondent] is glad to confirm the agreement reach (sic) between our club
and [the player](…)
The agreement reach (sic) will be under this terms and conditions as below:
- One year contract valid for the season 2013/2014
- The total amount of USD 300,000 (…) net for a contract valid for the season
2013/2014
- All the terms and conditions will be as the main contract of League of
Country D
- The player should be in City E to start the preparation of our club for the
new season in 1/July/2013”.
9.
In continuation, the members of the Chamber took note of the claim of the
Claimant, who argues that the aforementioned document is a valid employment
contract concluded between the parties. Moreover, the Chamber noted that,
according to the Claimant, it was verbally agreed that the Respondent would
provide the flight tickets in order for him to go to Country D.
10.
As the Respondent never contacted him or provided the relevant flight tickets,
the Chamber acknowledged that the Claimant considers that the Respondent
Player A, Country B / Club C, Country D
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breached the contract without just cause and must therefore pay him
compensation.
11.
The Chamber further noted that, conversely, the Respondent is of the opinion
that the document signed by the parties on 20 May 2013 was only a “preliminary
understanding” which does not contain the essentialia negotii in order for a
contract to be valid and therefore cannot be considered as such.
12.
Subsidiarly, the Chamber observed that the Respondent denied having agreed to
provide the Claimant with any flight ticket. In this regard, the Chamber took note
of the argument of the Respondent that according to the clear wording of the
aforementioned “preliminary understanding”, it is evident that the Claimant was
obliged to fly to Country D by his own means. As a consequence, even if it can be
determined that the document of 20 May 2013 is to be considered a valid
employment contract, it must be concluded that, by not arriving to Country D, the
Claimant was the party in breach of the contract and therefore his claim should
be rejected.
13.
In view of the aforementioned considerations, the Chamber was of the opinion
that the first issue which it needed to address was whether the document of 20
May 2013 is to be considered as a valid employment contract concluded between
the parties.
14.
In order to do so, the DRC firstly wished to stress that it is undisputed that the
document of 20 May 2013 is in writing thereby complying with the requirement
of art. 2 par. 2 of the Regulations.
15.
In continuation, the members of the DRC recalled the Chamber’s well-established
jurisprudence which dictates 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 and their role, the duration of the
employment relationship and the remuneration payable by the employer to the
employee.
16.
In casu, the members of the Chamber were of the unanimous opinion that the
document of 20 May 2013 contains all the essentialia negotii in order to be
considered as a valid and binding employment contract in accordance with the
jurisprudence of the Chamber. In particular, the document contains the signature
of both parties, provides for the duration of the employment relationship, i.e. the
season 2013/2014, provides for the payable remuneration to the Claimant, i.e.
USD 300,000 and, moreover, it can be clearly inferred that said document relates
to the Claimant as being employed in order to play as a footballer with the
Player A, Country B / Club C, Country D
Page 7 of 9
Respondent. What is more, the aforementioned document stipulates that “all the
terms and conditions will be as the main contract of League of Country D”.
17.
On account of the above, the Chamber concluded that the document of 20 May
2013 is a valid employment contract concluded by the parties.
18.
Having determined the above, the Chamber went to analyse whether the relevant
employment contract had been breached without just cause by the Respondent
and, in the affirmative, which would be the potential consequences of said
breach.
19.
In this context, the Chamber recalled that, according to the Claimant, it was
verbally agreed that the Respondent would provide him the flight tickets in order
to travel to Country D and join the club. The Respondent however denied this and
referred to the clear wording of the employment contract.
20.
With the above in mind, the members of the Chamber observed that the
employment contract merely provides that “the player should be in City E to start
the preparation of our club…” without any further specifications. The Chamber
thus concluded that it could not be established that the Respondent was obliged
to provide the Claimant with any flight tickets in order for him to join the club.
Moreover, the Chamber was of the unanimous opinion that, taking into
consideration art. 12 par. 3 of the Procedural Rules, the Claimant failed to prove
that it had been verbally agreed that the Respondent would do so.
21.
In view of the foregoing, the members of the Chamber unanimously decided that
the Respondent could not be held liable for the non-execution of the
employment contract.
22.
Along those lines, the Chamber felt comforted in its conclusion considering the
actions of both parties after the date on which the employment contract would
began its period of validity, i.e. 1 July 2013. In this regard, the members of the
DRC noted that already on 1 August 2013, the Claimant concluded a new
employment contract with the club, Club K. Equally, the Chamber noted that the
Respondent never tried to contact the Claimant after the latter failed to join the
club. Therefore, the Chamber was of the opinion that it could be established with
a reasonable degree of certainty that neither of the parties considered themselves
as being bound by the employment contract. In this respect, the e-mail allegedly
sent by the player on 15 July 2013, which receipt has been denied by the
Respondent, cannot constitute, on its own, sufficient evidence in order to
demonstrate that the Claimant was indeed interested in executing the
employment contract of 20 May 2013.
Player A, Country B / Club C, Country D
Page 8 of 9
23.
On account of all the aforementioned considerations, the members of the
Chamber unanimously decided to reject the claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to article 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
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