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 W, from country S
as Claimant
against the club,
Club M, from country E
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 15 January 2012, Player W, from country S (hereinafter: the player or the
Claimant), and Club M, from country E (hereinafter: the club or also referred to as
the Respondent), signed an employment contract (hereinafter: the contract) valid
for the season 2011-2012.
2.
According to the Transfer Matching System (TMS), the season 2011-2012 in
country E started on 20 July 2011 and ended on 15 May 2012.
3.
In accordance with the third part of the contract (financial provision), the player
was entitled to receive a total amount of USD 175,000 payable in six instalments as
follows:
a.
b.
c.
d.
e.
f.
USD 90,000 on 01.02.2012;
USD 15,000 on 06.03.2012;
USD 15,000 on 06.04.2012;
USD 15,000 on 06.05.2012;
USD 15,000 on 06.06.2012;
USD 25,000 on 05.07.2012.
4.
In addition, art. 10 of the contract provides that “the club has the right to inform
the player in writing to terminate the contract between them at the end of the
season during its validity within fifteen days after last national official match for
the club. In this case the player does not deserve any compensation for the rest of
the period of the contract the player will receive his financial dues up to the end
of the contract.”
5.
On 11 November 2012, the player lodged a claim in front of FIFA, requesting from
the club a total outstanding remuneration in the amount of USD 175’000.
6.
According to the player, no salary was ever paid and when the International
Transfer Certificate (ITC) was received he was not registered for the club.
7.
Furthermore, the player pointed out that on 1 May 2012 he was released from the
club and free to join any club of his choice as a free player. In particular, the player
argued that the “releasing document”, dated 1 May 2012, submitted by the club
was to be considered as “an official cancellation” of the contract concluded
between the parties.
8.
On 6 December 2012, the club replied explaining the circumstances of the present
matter. According to the club, they were about to sign with the player for six
months and requested via the country E Football Association the ITC from the
Association of Football Federations of country A. The club further stated that they
Player W, from country S / Club M, from country E
2/6
were surprised when the Association of Football Federations of country A
answered that the player was still under contract with his former club until the
season 2013/2014, and therefore the ITC was not sent to the country E Football
Association. Furthermore, the club brought up the fact that during the
aforementioned procedure, after the match between Club A and Club M, the
country E league was suspended.
9.
The club stated that the player, taking into consideration that the ITC has not
been issued, asked for evidence that he is not contracted nor recorded with the
club for the season 2011/2012. According to the club, the player participated in
matches with his club of origin during the period 2011/2012.
10.
On 30 December 2012, the player provided FIFA with information of his
employment situation as of the alleged breach of the contract signed until the
original expiry of the contract. According to the player, as of 1 June 2012, he
signed a new contract with the Club N, from country A. The contract in question is
valid as from the date of its signature until 1 June 2013 and the player was
entitled to receive the total amount of USD 320,000 payable as follows:
USD 50,000 to be paid immediately after signing;
USD 50,000 to be paid until 1 August 2012;
USD 20,000 to be paid to the manager of the football player;
USD 200,000 to be paid in 12 monthly instalments, i.e. USD 16,666 per
month.
11.
According to information contained in the TMS the player and Club N signed an
employment contract with start date 2 May 2012. In the relevant transfer
instruction also a release letter from the Club M was uploaded, which is dated
10 February 2012.
12.
The country E Football Association confirmed by a letter dated 18 July 2013 that
the first division league, in which the club was participating, was suspended from
2 February 2012 until 2 February 2013 when the new season started. Furthermore,
the country E Football Association confirmed that the player was not registered
for the club since the ITC was granted after the accident occurred at the Port Said
Stadium (resulting in the league suspension).
13.
In this regard, according to the information in TMS, the player was registered at
the country E Football Association in May 2012. In fact, the “provisional
registration” of the player was confirmed in TMS by the country E Football
Association on 30 May 2012 based on the decision of the Single Judge of the
Players’ Status Committee dated 24 February 2012. As registration date “1 May
2012” was inserted in the system.
Player W, from country S / Club M, from country E
3/6
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
11 November 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.
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 11 November 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 members of the Chamber started by acknowledging the facts of the
case, as well as the documentation contained in the file. In this respect, the
Chamber recalled that the parties had signed an employment contract on
15 January 2012, valid for the season 2011-2012, in accordance with which the
player was entitled to receive a total amount of USD 175,000 payable in six
instalments.
5.
In this context, the Chamber noted that the Claimant based his claim on an
alleged breach of the employment contract by the Respondent on 1 May 2012. In
this respect, the members of the Chamber acknowledged that the Claimant
argued that the Respondent never paid his remuneration in the amount of
Player W, from country S / Club M, from country E
4/6
USD 175,000 and failed to register him when the International Transfer Certificate
(ITC) was received.
6.
The DRC then turned its attention to the arguments of the Respondent and
acknowledged that, according to the club the relevant ITC was requested via the
country E Football Association but never issued. Furthermore, the Chamber took
note that the Respondent pointed out that during the course of the relevant ITC
procedure the country E league was suspended.
7.
The members of the Chamber continued their deliberations by establishing that
the country E league was indeed suspended from 2 February 2012 until 2 February
2013. In this respect, the Chamber took due note that the country E Football
Association therefore, despite the authorisation by the decision of the Single
Judge of the Players’ Status Committee dated 24 February 2012, only proceeded to
provisionally register the player on 1 May 2012, just before the player had signed
a new employment contract with Club N, from country A, on 2 May 2012.
8.
In view of the foregoing, the Chamber concluded that the player’s registration for
the Respondent at the country E Football Association was only a technical act in
order for the player to be subsequently transferred back to the Club N affiliated to
the Association of Football Federations of country A. Consequently, the DRC
deemed that due to the suspension of the country E league the player was never
actually registered at the country E Football Association with the Respondent for
playing purposes and the execution of the relevant contract had, thus, never
started.
9.
On account of all of the above-mentioned considerations, the members of the
Chamber decided that the Respondent can not be held liable for the failure to
execute the employment contract. Consequently, and taking also into account
that the Claimant does not appear to have offered his services to the Respondent,
the DRC decided to reject the claim put forward by the Claimant.
*****
Player W, from country S / Club M, from country E
5/6
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player W, 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
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player W, from country S / Club M, from country E
6/6