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 matter between the player,
Player A, country B
as Claimant / Counter-Respondent
and the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country D
as intervening Party
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 31 January 2014, the Player from country B (hereinafter: the player or Claimant /
Counter-Respondent) and the Club E from country D (hereinafter: Club E or
intervening Party) signed an employment contract, valid as from 31 January 2014
until 31 May 2018. According to the information contained in the Transfer Matching
System (TMS), the player was entitled to receive from Club E inter alia a yearly salary
of EUR 175,000 in the season 2013/2014 and a yearly salary of EUR 350,000 in the
season 2014/2015.
2.
Furthermore, on or around 1 September 2014, the player and the Club C from
country D (hereinafter: Club C or Respondent / Counter-Claimant) signed an
employment contract, valid as from 1 September 2014 until 31 May 2015
(hereinafter: the contract), on the basis of which the player would render his
services to said club on loan basis.
3.
‘Special condition 1.’ of the contract stipulates the following: ‘In accordance with
the ‘professional Players Transfer Contract’ dated 31.01.2014 between the Player
and Club E, The Player’s wages in the amount of 350.000 Euros shall be paid by Club
E during the term of loan. Club E will not pay any other amount to the Player’.
4.
Furthermore, ‘Special condition 2.’ stipulates: ‘Club C shall pay net 55.000 Euro on
30.09.2014 and net 50.000 Euro on 28.02.2015 to the Player’.
5.
The player states that Club C failed to pay him the amount of EUR 55,000, due on 30
September 2014. On 5 January 2015, he put Club C in default and requested for the
payment of said amount in 5 days. According to the player, Club C did not pay him
the requested amount.
6.
On 15 January 2015, the player unilaterally terminated the contract with Club C,
due to the outstanding amount of EUR 55,000.
7.
On 20 January 2015, the player lodged a claim before FIFA against Club C, claiming
the total amount of EUR 105,000, plus 5% interest as from the termination date of
the contract, as follows:
EUR 55,000 as payment, due on 30 September 2014;
EUR 50,000 as payment, due on 28 February 2015.
Additionally, the player requested for sporting sanctions to be imposed on Club C.
8.
In its reply to the claim of the player, Club C stated that it ‘could not pay the player
the first instalment on 30 September 2014, due to late coming of allowance
Player A, country B / Club C, country D / Club E, country D
Page 2 of 10
expecting from the Football Federation of country D’, as well as that when it
’received the allowance from the Football Federation of country D during
November 2014, firstly it paid the Claimant [i.e. the player] in the amount of EUR
101,500 and the Claimant signed the payment receipt in return’. Club C submitted in
this respect a payment receipt dated 5 November 2014, containing what appears to
be the signature of the player (hereinafter: the payment receipt).
9.
In this respect, Club C explains that it did not pay the amount of EUR 55,000 on
time, as a result of which it ‘thought that it might be a good motivation’ to the
player to pay him ‘almost the full amount of the Employment Contract’. Further,
Club C states that the player was not happy at its club (Club C) and that he wanted
to go back to Club E.
10.
In addition, Club C holds that on 7 January 2015, it received the player’s default
letter dated 5 January 2015, in which the player asks for the payment of the amount
of EUR 55,000, at the latest - according to Club C – on 12 January 2015.
Furthermore, Club C alleges to have sent on 12 January 2015 a written reply to the
player’s default letter, in which it states that almost the total amount mentioned in
the contract was paid. Moreover, Club C held that a possible unilateral termination
of the contract by the player ‘will result as a claim for compensation and sporting
sanctions to be imposed on him’.
11.
Furthermore, Club C holds that the letter allegedly sent on 12 January 2015 could
not be delivered to the player, because in his default letter, the player provided
Club C with a wrong address. As a result, Club C sent the letter to the address
mentioned by the player, however received a non-delivery answer, stating that ‘The
Respondent is moved’.
12.
Club C concludes that on “21 January 2015”, the player terminated the contract
without just cause and that therefore, it cannot be held liable to pay compensation
to the player.
13.
Moreover, on 4 March 2015, Club C lodged a counterclaim, claiming compensation
for the player’s breach of contract in the amount of EUR 50,000. Club C did not
request for interest.
14.
In his reply to the counterclaim of Club C, the player stated that Club C falsified his
signature on the payment receipt. In this respect, the player argued that he never
signed said document and that it can be clearly seen that the player’s signature on
the power of attorney and the labour contract is different from the one on the
payment receipt.
Player A, country B / Club C, country D / Club E, country D
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15.
Further, the player argued that there is no proof on file that he received Club C’s
letter, allegedly sent on 12 January 2015, and that it is not possible that Club C
received a non-delivery answer, stating that he had moved, since the fact that a
document could not be delivered does not automatically mean that the addressee
has moved. In addition, the player holds that he never received the alleged reply
from Club C to his default letter.
16.
Finally, the player states that it is an ‘unlikely situation’ that Club C paid a player –
in cash - the amount of EUR 101,500, despite that on said day only the first
instalment of EUR 50,000 already fell due.
17.
Upon request, Club C provided FIFA with the original version of the payment
receipt. Moreover, it held that the player signed said document and that there ‘are
many people’, including Mr F (manager of the club), who can confirm these
circumstances. In addition, Club C stated that it is the responsibility of the player to
provide the club with a valid address.
18.
In reply to the original document provided by Club C, the player reiterated his
position and argued that the ‘falsified document’ cannot be taken into account.
19.
The intervening party, Club E, confirmed that it concluded a contract with the
player, valid as from 31 January 2014 until 31 May 2018, and loaned the player
between 1 September 2014 and 31 May 2015 to Club C. In conclusion, Club E holds
that it is not a party of the present case and there is ‘no issue’ concerning Club E.
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 20 January
2015. 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 (editions 2014, 2015 and 2016), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related
Player A, country B / Club C, country D / Club E, country D
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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 (editions
2014, 2015 and 2016), and considering that the present claim was lodged on 20
January 2015, 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 doing so, the members of the Chamber started by acknowledging that, according
to the player, he had concluded an employment contract with Club E, valid as from
31 January 2014 until 31 May 2018 (hereinafter: the contract).
6.
Furthermore, the Chamber noted that as from 1 September 2014, the player was on
loan with Club C and that he had concluded an employment contract with said club,
valid as from 1 September 2014 until 31 May 2015 (hereinafter: the loan contract).
In accordance with the loan contract, the player was entitled to receive the amount
of EUR 55,000, due on 30 September 2014 and the amount of EUR 50,000, due on 28
February 2015.
7.
Furthermore, according to the player, Club C failed to pay him the amount of EUR
55,000, due on 30 September 2014. After having put Club C in default of the
payment of EUR 55,000, and not having received said amount, on 15 January 2015,
the player unilaterally terminated the loan contract. The player holds to have
terminated the contract with just cause and, therefore, asked to be awarded
compensation for breach of contract by Club C in the total amount of EUR 105,000.
8.
Subsequently, the members of the Chamber observed that Club C, for its part,
argued that the player had terminated the contract without just cause. According to
Club C, it indeed failed to timely pay the amount of EUR 55,000, due on 30
September 2014 as a result of administrative reasons. However, Club C holds to have
paid the player - on 5 November 2014 - the amount of EUR 101,500 and submitted a
payment receipt, allegedly signed by the player, confirming the receipt of said
Player A, country B / Club C, country D / Club E, country D
Page 5 of 10
amount. Club C stated that it made said payment in order to motivate the player,
who wanted – according to Club C - to return to Club E. As a result, Club C holds
that at the time of the termination of the contract by the player, almost the full
amount of the loan contract was paid. As a result, Club C lodged a counterclaim,
requesting the player to pay the amount of EUR 50,000, as compensation for breach
of contract by the player without just cause.
9.
Moreover, the members of the Chamber noted that the player denied to have
signed the payment receipt submitted by Club C and stated that Club C had
allegedly forged his signature on the payment receipt. According to the player, on 5
November 2014 only the first instalment of EUR 55,000 had fallen due and
therefore, Club C had no reason to pay him, already on 5 November 2014, the total
amount of EUR 101,500. Upon request of FIFA, Club C provided the original of the
disputed payment receipt.
10.
In this respect, the Chamber noted that the underlying issue in this dispute,
considering the diverging position of the parties, was to determine as to whether
the player had terminated the contract with or without just cause on 15 January
2015 and subsequently, to determine the consequences of the early termination of
the contractual relationship.
11.
In view of this dissent between the parties in respect of the basic question as to
whether or not the payment receipt was signed between the player and Club C, and
consequently whether the amount of EUR 101,500 had in fact been paid to him, 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 club to provide the original version of the payment receipt and then to
the player to prove that the signature on the payment receipt, was indeed forged
by Club C.
12.
Having stated the above, the Dispute Resolution Chamber recalled that the player
maintained that he never signed the payment receipt, as his signature on said
document was allegedly forged by Club C.
13.
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.
Player A, country B / Club C, country D / Club E, country D
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14.
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 (loan) contract, the termination letter 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 payment receipt, was provided by Club C, as
requested.
15.
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 payment receipt
was provided by Club C, the members of the Chamber noted that the signature on
the documents provided by the player, such as the (loan) contract, the power of
attorney and the termination letter, never look exactly the same. As a result, the
Chamber had no other option but to conclude that, for a layman, the signatures on
the documents provided by the player and the original of the payment receipt
provided by Club C appear to belong to the same person.
16.
In view of the foregoing, the Chamber established that it appears that the player
had signed the payment receipt, according to which document the amount of EUR
101,500 was paid to him on 5 November 2014.
17.
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.
18.
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 Club C forged his signature on the payment
receipt. What is more, the members of the Chamber had to conclude that the player
terminated the contract without just cause, since he invoked the existence of
allegedly outstanding remuneration that was actually paid to him.
19.
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 he terminated the contract without just cause.
20.
Having established that the player is to be held liable for the early termination of
the loan contract with Club C without just cause, the Chamber focussed its attention
Player A, country B / Club C, country D / Club E, country D
Page 7 of 10
on the counterclaim of Club C and on the consequences of such breach of contract
on the part of the player.
21.
In doing so, the DRC first of all established that, in accordance with art. 17 par. 1 of
the Regulations, the player is liable to pay compensation to Club C.
22.
Furthermore, the Chamber pointed out that after the termination of the loan
contract, it can be noted from the information and statements on file, that the
player went back to Club E, where he had a valid contract, valid until 31 May 2018.
As a result of the foregoing and in accordance with the unambiguous contents of
art. 17 par. 2 of the Regulations, the Chamber established that the player’s new
club, i.e. Club E, shall be jointly and severally liable for the payment of
compensation to Club C. In this respect, the Chamber was eager to point out that
the joint liability of the player’s new club is independent from the question as to
whether the new club has committed an inducement to contractual breach or any
other kind of involvement by the new club. This conclusion is in line with the wellestablished jurisprudence of the Chamber that was repeatedly confirmed by the
CAS.
23.
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 player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years
as well as the fees and expenses paid or incurred by the former club (amortised over
the term of the contract) and whether the contractual breach falls within the
protected period.
24.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party in the event of breach of contract. Upon careful
examination of said contract, the members of the Chamber assured themselves that
this was not the case in the matter at stake.
25.
In the calculation of the amount of compensation due by the player, the Chamber
firstly turned its attention to the remuneration and other benefits due to the player
under the existing contract and/or any new contract(s), a criterion which was
considered by the Chamber to be essential. In particular, the Chamber considered
Player A, country B / Club C, country D / Club E, country D
Page 8 of 10
the residual amounts of both player’s contracts with Club C and Club E, as detailed
in points I.1 until I.4 above, and the average between them.
26.
The Chamber further recalled that Club C, in its counter-claim, had limited its
request for compensation to the amount of EUR 50,000. In this respect, the
members of the Chamber took due note that said amount corresponds to the
second instalment of EUR 50,000 under the loan contract, due on 28 February 2015.
27.
In view of all the foregoing, the Chamber concluded that bearing in mind art. 17
par. 1 of the Regulations, after having duly taken into account the specificities of
the present case, a compensation of EUR 50,000 payable by the player to Club C,
would appear fair and proportionate.
28.
For all these reasons, the Chamber decided that the player, Player A, has to pay EUR
50,000 to the Club C, as compensation for the breach of contract. In this respect, the
Dispute Resolution Chamber also determined that the Club E is jointly and severally
liable for the payment of the above-mentioned amount of compensation to Club C.
29.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
player has to be rejected, as well as that Club C’s counterclaim is accepted.
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant / Counter-Respondent, Player A, is rejected.
2. The counterclaim of the Respondent / Counter-Claimant, Club C, is accepted.
3. The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant, within 30 days as from the date of notification of this decision, the
amount of EUR 50,000.
4. In the event that the amount due to the Respondent / Counter-Claimant in
accordance with the above-mentioned number 3. is not paid by the Claimant /
Counter-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 the FIFA Disciplinary Committee for consideration and a
formal decision.
5. The intervening Party, Club E, is jointly and severally liable for the aforementioned
payment.
Player A, country B / Club C, country D / Club E, country D
Page 9 of 10
6. The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent 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. 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 / Club E, country D
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