Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 August 2013,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player A, from country G
as Claimant
against the club,
Club D, from country C
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
The Player A, from country G (hereinafter: player or Claimant) and Club D, from
country C (hereinafter: club or Respondent), signed an employment contract,
allegedly valid as from 31 January 2011 until 31 December 2012 (hereinafter:
contract).
2.
Article 1 of the contract stipulates that ``if both party happy with each other, the
contract will extend to 31 December 2012’’.
3.
In accordance with the contract, the player was entitled to receive, inter alia, for the
2012 season, EUR 700,000 net in twelve equal monthly instalments.
4.
According to the player, during the holiday period, in December 2011, he contacted
the club with respect to the pre-season trainings for the 2012 season. On 6 and 10
January 2012 the player sent two faxes to the club requesting information as to
where and when he should join the team.
5.
The player maintained that, on 13 January 2012, the club sent him a letter explaining
that the contract had expired on 31 December 2011 and that the club had no
intention of renewing the contract for another season, as the new head coach had
``his own plan to build the team’’. Moreover, reference was made to art. 11.3 of the
employment contract, which according to the club stipulates that in case of
termination of the contract upon expiration, both parties shall sign a new contract.
Finally, in the letter the club stated that the player was no longer its employee.
6.
An employment contract was enclosed to the club’s above-mentioned
correspondence, bearing both parties’ signature, with validity until 31 December
2011.
7.
According to the player, during negotiations between the parties, a first draft of the
contract was presented by the club to the player. The player maintained that he did
not agree with the wording of art. 1, relating to the contractual duration, and art. 8
par. 1 of the draft contract, which were then allegedly modified in the final version.
8.
In his correspondence of 13 January 2012 addressed to the club, the player explained
that he never accepted to sign a contract for only one sporting season and that its
position was an infringement of the obligations stipulated in the contract signed.
Moreover, the player stated the following: ``the contents of your fax dated of today
results in a contract termination without just cause’’.
9.
On 1 March 2012, the player lodged a complaint before FIFA against the club,
claiming that the club terminated the contract without just cause and he requested
the Dispute Resolution Chamber to order the club to pay compensation in the
amount of EUR 700,000.
Player A, from country G / Club D, from country C
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10.
In addition, the player requested to be awarded 5% interest on the above amount as
well as that the club bears the procedural costs.
11.
In spite of having been invited by FIFA to do so, the club did not present any
response to the player’s claim.
12.
On 19 January 2012, the player signed an employment contract with the club, Club V,
from country S, valid as of the date of signature until the winter registration period
in 2014, a copy of which was presented by the Claimant.
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 1 March 2012.
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. 2 and par. 3 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
conjunction with art. 22 lit. b) 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 an employment-related dispute with an
international dimension between a country G player and a country C club.
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 par. 2 of the Regulations on the Status and Transfer of Players (editions
2012 and 2010), and considering that the present claim was lodged on 1 March 2012,
the 2010 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. The members of
the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file.
5.
The Chamber acknowledged that the Claimant and the Respondent signed an
employment contract, valid as from 31 January 2011.
Player A, from country G / Club D, from country C
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6.
At this stage, the Chamber observed that, according to the Claimant, the contract
was set to expire on 31 December 2012 in accordance with the document that he
presented in support of his statement of claim (cf. the document under number I./1.
above). The members of the Chamber further noted that the Claimant alleges that
the Respondent terminated the employment contract without just cause, since the
latter refused to accept his services for the 2012 season and that, therefore, the
Respondent shall be held liable to pay compensation for breach of contract in the
amount of EUR 700,000.
7.
Subsequently, the Chamber took due note that the Respondent, for its part, failed to
present its response to the claim of the Claimant, in spite of having been invited to
do so. Consequently, the DRC deemed that the Respondent had renounced its right
to defence.
8.
Furthermore, as a consequence of the aforementioned consideration, the members
of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural
Rules, a decision shall be taken upon the basis of the documents already on file.
9.
Turning its attention to the documentation presented by the Claimant, the Chamber,
first and foremost, acknowledged that the Claimant had submitted a copy of the
employment contract (cf. the document under number I./1. above) as well as a letter,
dated 13 January 2012, sent to him by the Respondent explaining that the contract
had expired on 31 December 2011 and to which another copy of the employment
contract was enclosed.
10.
In this respect, the members of the Chamber highlighted that both copies of the
employment contract were duly signed by the parties and identical with the main
exception of the first provision, which determines the duration of the employment
contract.
11.
The members of the Chamber noted that art. 1 of the first mentioned contract
stipulates that ``The term of the contract is from 2011-01-31, until 2012-12-31’’ and
``If both party happy with each other, the contract will extend to 31.12.2012’’,
whereas the copy of the contract enclosed to the club’s correspondence of 13
January 2012, to the Claimant clearly stipulates that the contract is valid until 31
December 2011 with the possibility of extending it until 31 December 2012.
12.
As regards the duration of the contract which is at the basis of the Claimant’s
petition, the members of the Chamber highlighted that the contractual terms
dealing with the duration of such contract (cf. number I./1. above) are contradictory.
Indeed, on the one hand there is an indication relating to a date of expiry of 31
December 2012, whereas, on the other hand, in the same contract it was explicitly
included that ``If both party happy with each other, the contract will extend to
31.12.2012’’.
Player A, from country G / Club D, from country C
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13.
Having taken note of the divergent data provided in relation to the contractual
duration and in light of the contradictory documentation on file, the members of the
Chamber concluded that it was essential to consult the information contained in the
Transfer Matching System (TMS).
14.
In this respect, the Chamber referred to art. 1 par. 5 of Annexe 3 of the Regulations
which, inter alia, stipulates that the use of TMS is a mandatory step for all
international transfers of professional male players within the scope of eleven-a-side
football.
15.
The Chamber outlined that the use of TMS has been mandatory since 1 October 2010
and that, in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, within the
scope of proceedings pertaining to the application of the Regulations, FIFA may use
documentation or evidence generated by or contained in TMS or obtained by FIFA
TMS GmbH on the basis of their investigation powers in order to properly assess the
issue at stake.
16.
In light of the above, the Chamber examined the information and documentation
contained in TMS and observed that the data that had been inserted indicated a
total contractual duration of one year.
17.
Moreover, the DRC noted that the employment contract uploaded in TMS was duly
signed by both parties and valid as of 31 January 2011 until 31 December 2011 and
``If both party happy with each other, the contract will extend to 31.12.2012’’.
18.
In addition, the members of the Chamber acknowledged that a document referred
to as ``Confirmation’’, dated 31 December 2011 and issued by the Respondent, was
uploaded in TMS, which stated that the employment contract’s end date was 31
December 2011 and that the player was free to transfer in the ``winter transfer
period 2012 and this without compensation’’.
19.
In view of all of the above, it appears that the parties had actually signed an
agreement valid for one year, until 31 December 2011, and only by mutual
agreement, i.e. “both parties are happy”, the contract would have been extended
for a second year until 31 December 2012. The Respondent clearly informed the
Claimant that it did not wish to extend the contractual relation. On account of the
above, the Chamber established that the employment relation between the parties
ended on 31 December 2011 and that, consequently, there is no basis for the
Claimant to claim compensation from the Respondent for the 2012 season.
20.
Taking into account all of the above, the members of the Chamber decided to reject
the Claimant’s claim in its entirety.
Player A, from country G / Club D, from country C
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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 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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player A, from country G / Club D, from country C
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