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 club,
Club L, from country A
as Claimant
against the player,
Player W, from country S
as Respondent
and the club,
Club M, from country E
as Intervening party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 4 February 2011 Club L, from country A (hereinafter: the club or the Claimant),
signed an employment contract (hereinafter: the country A contract) with Player W,
from country S, (hereinafter: the player or also referred to as the Respondent) in
country A language duly authenticated before a notary public, valid as from the date of
its signature until 31 December 2012.
2.
Article 7 of said contract stipulates that the monthly wage of the player is of currency of
country A 2,100.
3.
Country A contract does not contain any clause relating to the payment of
compensation in the event of breach of contract by either of the contractual parties.
4.
On 5 February 2011 the player and the country A club signed an employment contract
in English language (hereinafter: the English contract) valid as from the date of its
signature until 31 December 2011.
5.
Article 3 of the English contract establishes that “the first party [the club] undertakes to
remunerate the second party [the player] with a total amount of US 535,000 … to be
paid as follows”:
USD 325,000 “… will be paid to the [former] club for the transfer certificate”;
USD 50,000 in February 2011;
USD 100,000 as salaries in 10 monthly instalments for the period of the
contract;
USD 60,000 in October 2011;
“The second party agrees will be pay to the first party only [USD] 300,000 … for
his transfer certificate, if the second party left the club after 5 or 10 months”.
6.
On 30 January 2012, the club sent a complaint, based on the country A contract, in front
of FIFA particularly requesting that the player be obliged to return to them and to
prevent from signing with another club.
7.
The club maintained that the player committed several times disciplinary faults. In
particular, he allegedly left the team in March 2011 and was unavailable for a crucial
league match against Club B on 4 April 2012, came back from his vacation to country A
on 15 January 2012 instead of 6 January 2012 without any reasonable grounds and then
refused to join the team in the training-preparation camp in country T, on 17 January
2012.
8.
The club stated that on 29 January 2012 they found out that the player had signed a
contract with Club M, from country E, although he still had a valid contract with them
until 31 December 2012.
Club L, from country A / Player W, from country S / Club M, from country E
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9.
The club held that on 24 February 2012, they received a copy of the decision of the
Single Judge of the Players’ Status Committee, according to which the country E
Football Association was authorised to provisionally register the player.
10.
Moreover, the club sustained that after the country E league was suspended due to riots
in a match of 1 February 2012, they contacted the player and organised him a visa and
flight tickets so that on 13 April 2012 he finally returned to the camp of the club and
started to train with the first team. In this regard, the club highlighted that they
continued to fulfil all their contractual obligations towards the player. In this respect,
the club argued having paid the player’s monthly salaries.
11.
On 6 May 2012 the club found apparently out from the media that the player had
signed with Club N, from country A, and that the player was of the opinion that he was
not bound to the club anymore according to the relevant decision of the Single Judge
of the Players’ Status Committee.
12.
On 15 May 2012, the club lodged an amended claim against the player in front of FIFA
asserting that the player had breached the contract concluded with them unlawfully.
Therefore the club requested that the player be obliged to pay compensation in the
amount of USD 325,000, which is equivalent to the amount paid for the transfer of the
player up to this day, and “currency of country A 24,126.10 (USD 30,698.56)”, which is
the total amount of salaries paid to the player up to this day. In addition, the club
requests that the player should be banned from taking part in any football related
activity for the period of one year.
13.
In reply to the claim, the player requested to fully dismiss the claim filed by the club and
to fix a sum to be paid by the club to him, in order to pay his defence fees and costs. In
particular, the player stated that in January 2011 he concluded two contracts with the
club, one in English language and one in country A language. In this respect, the player
emphasised that on 4 February 2011 he concluded a contract with the club in country A
language for administrative purposes. However, he stated that despite of the contract
being signed before a notary, no translator assisted him during the signing of the
contract in country A language. According to the player, on 5 February 2011, he and the
president of the club signed the English contract, which he thought was the same as the
country A version signed the day before. In this regard, the player sustained that he
accepted to sign the country A contract on 4 February 2011 in good faith but with a
fundamental error that renders it invalid, null and void. According to the player, the
club actually induced him by fraud to sign two documents. The player emphasised that
the English contract expired on 31 December 2011, and thus he was free to sign with
any other team.
14.
Furthermore, the player denied to have ever committed any disciplinary infringement
during his stay in the club and stated that he was therefore never sanctioned.
Club L, from country A / Player W, from country S / Club M, from country E
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15.
According to the player, the last paragraph of art. 3 of the English contract is unclear
and confusing and seems to provide for a penalty clause in case he unilaterally
terminates the contract with the club. In this case this did not happen, since he
remained in the club until 31 December 2011. However, the paragraph in question is to
be considered null in application of the principle “in dubio pro operario”.
16.
The player further stated that the club never paid him the amount of USD 352,000 and
he did not know whether the amount was paid to his former Club U, from country R for
the transfer certificate. Furthermore, the player held that the monthly agreed salaries
were paid to him partly in cash and partly through the salary card that the club
provided.
17.
In addition, the player pointed out that as of August 2011 the club approached him on
several occasions and proposed him to extend the contract for one more year. However,
the player maintained that he refused to sign the extension of the contract and thus
the club denied him the access to the premises of the club and the training sessions. On
12 August 2011, the player sent a first fax to the club, in which he requested the club to
immediately cease all the abusive actions towards him. According to the player, he sent
a second fax on 18 August 2011, as the club persisted with the abovementioned actions.
18.
According to the player, he was allowed to join the team again as of October 2011 and
was fielded to play official matches. The player stated that as of 31 December 2012 he
left the club since his contract had expired and that his plane ticket was paid by the club
as agreed by art. 4.C of the contract.
19.
The player asserted that on 15 January 2012, he and Club M, from country E, concluded
an employment contract. However, a few weeks later the football league ceased in
country E due to an event that occurred during a football match on 2 February 2012.
20.
On April 2012, according to the player, the club contacted him and proposed him to
sign a new contract and thus invited him to travel to country A assuming all the costs.
The player maintained that he accepted the invitation and travelled to country A.
However, the player clarified that he never returned to be at the disposition of the club,
but just to negotiate with the club. The player further stated that since those
negotiations were not successful he signed an employment contract with the Club N,
from country A.
21.
The player pointed out that the bank account provided by the club belongs to the club
and not to the player, thus the club can withdraw the money that is paid through bank
transfer. He further maintained that the bank excerpts are neither complete nor sealed
by the bank and do not show what amounts were credited or debited. Thus, the player
requests that the Chamber does not accept the relevant documents as evidence unless a
full, original and clear version is filed.
Club L, from country A / Player W, from country S / Club M, from country E
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22.
Moreover, with regard to the salary stipulated in the country A contract, the player held
that he would never have accepted moving from the country R first division to country
A for a monthly salary of currency of country A 2.100 and neither the club would have
paid USD 325,000 for the transfer of a player with “a value of only currency of country
A 2.100 per month”.
23.
The club submitted his replica, stating that it paid USD 325,000 to the former club of
the player, which was accomplished through its official bank account. The club added
that it had sent the contract in country A language and its notary certified translation
via e-mail to the player’s lawyer Mr M before the player signed it. The club also argued
that the player indeed returned to the disposition of the club. The club further
maintained that, since their contract with the player was valid until 31 December 2012,
the transfer of the player to Club N was realised by fraud with the help of the
Association of Football Federations of country A.
24.
The player claimed in his duplica that the club attached as Annexes some illegible
pages, most of which were irrelevant and not listed nor identified. He further stated
with regard to the alleged payment of a transfer fee from the club to Club C that such
payment had no relevance in the present case and merely confirmed that the parties
agreed exclusively on the terms of the English contract. The player vehemently denied
having ever received any other translation of the country A contract than the English
contract of 5 February 2011. The player reiterated that the sole purpose of flying back
to country A was to negotiate with the club and that the Annexe attached by the club
with press articles are of no evidentiary value. Finally, the player sustained that the
claim of the club seemed to be a true act of revenge against him for the fact that he
decided to join the club N.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the
Chamber) 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 30 January 2012.
Consequently, the previous edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a club
and a player that have an international dimension.
Club L, from country A / Player W, from country S / Club M, from country E
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3.
In continuation, the Chamber analysed which edition of the regulations should be
applicable as to the substance of the matter. In this respect, it referred, on the one
hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2010 and 2012), and, on the other hand, to the fact that the present claim was
lodged in front of FIFA on 30 January 2012. Therefore, the DRC concluded that the 2010
edition of the Regulations on the Status and Transfer of Players (hereinafter: the
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 members of the Chamber entered into the substance of the matter. The
member of the Chamber started by acknowledging the facts of the case, the arguments
of the parties as well as the documentation contained in the file.
5.
In this respect, the Chamber noted that the club claims to be entitled to receive
compensation in the amount of USD 325,000 and the amount of currency of country A
24,126.10 as a result of the player’s breach of his contractual obligations contained in
the country A contract, more precisely due to the fact that the player left the club when
he still had a valid contract with them. Moreover, the Chamber took into account that
the Claimant equally requests that sporting sanctions be imposed on the player.
6.
On the other hand, the Chamber also noted that the player asserted that the Claimant
induced him by fraud to sign two contracts. In this regard, the members of the Chamber
acknowledged that according to the Respondent, the country A contract was signed
before a notary, but no translator assisted him during the signing process and he
thought that the English contract was the same he signed in country A language.
Hence, the Respondent held that the country A contract was signed with a fundamental
error that renders it invalid and he was free to sign with another club upon expiry of
the English contract on 31 December 2011.
7.
In continuation, the DRC took note that the parties had submitted two different
employment contracts both signed by the Claimant and the Respondent. In this respect,
the members acknowledged that neither of the parties contested to have signed the
contracts. Therefore, the members concluded that the signatures on the contracts were
authentic.
8.
Nevertheless, the Chamber referred to the fact that according to the Respondent only
the English contract was valid, while the Claimant considered the country A contract to
be valid. Hence, there was a disagreement with regard to the validity of the first
employment contract signed on 4 February 2011 in country A language.
9.
The members of the Chamber therefore turned their attention to both employment
contracts which were submitted. In this respect, the Chamber confirmed that the first
contract concluded on 4 February 2011 is in country A language, uploaded in the
transfer matching system (TMS) and provides for a period of validity of approximately
Club L, from country A / Player W, from country S / Club M, from country E
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two years with a remuneration of currency of country A 2,100 per month. The second
contract dated 5 February 2011 is in English language, stipulates a period of validity of
approximately one year with a remuneration of approx. USD 10,000 per month.
10.
After a careful analysis of the aforementioned contracts, the members acknowledged
that both employment contracts do not refer to each other and stipulate a different
period of validity as well as a different remuneration.
11.
With regard to the country A contract signed by the parties on 4 February 2013 with a
period of validity until 31 December 2012, the Chamber added that it was a general
legal principle that more recent contracts supersede older ones. Therefore, the Chamber
concluded that since the country A contract was signed previous to the English contract,
the latter superseded the country A contract.
12.
What is more, the Chamber noted that the Claimant had never contested the existence
or the validity of the English contract.
13.
Having said that, the DRC took also note of the fact that in August 2011 the Claimant
appeared to have offered to the Respondent an extension of their contract and
relationship for another season, which the Respondent refused. In this regard, the
members of the Chamber considered that, if the contract and relationship had had a
term of validity until December 2012, there would not have been any reason for such
offer.
14.
On account of all the above, the members of the Chamber concluded that the English
contract with a period of validity until 31 December 2011 was the one to be considered
as valid in the matter at stake.
15.
Consequently, having established that that the English contract is the one binding for
the parties, the members of the Chamber decided that the player was free to sign a
new contract as of 15 January 2012 and, thus, the claim put forward by the Claimant is
rejected.
*****
Club L, from country A / Player W, from country S / Club M, from country E
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III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Club L, 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
Club L, from country A / Player W, from country S / Club M, from country E
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