Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 14 August 2013,
by Mr Theo van Seggelen (The Netherlands), DRC judge,
on the claim presented by the player
Player J, from country S
as Claimant
against the club
Club T, from country K
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
Player J, from country S (hereinafter: the Claimant), and Club T, from country K
(hereinafter: the Respondent), signed an undated employment contract
(hereinafter: the contract), by means of which its validity is not specified.
2.
On 1 February 2009, a supplementary agreement (hereinafter: the agreement), was
signed by both parties, by means of which its validity is not specified.
3.
Clause 1 of the agreement provided that for the season 2009, the Claimant was
entitled to the total remuneration of USD 60,000 payable in two equal instalments
of USD 15,000 each, being the first instalment due before 15 April 2009 and the
second instalment due before 15 August 2009. The remaining remuneration shall be
paid in 10 monthly instalments of USD 3,000 each, due by “no later than the 15th of
each month”.
4.
On the same day, a second supplementary agreement (hereinafter: the second
agreement) without validity specified was concluded and it established, inter alia,
that the Claimant would be entitled to rent allowance of USD 900, as well as two
flight tickets routing “country S-country K-country S”.
5.
On 21 April 2009, the Claimant lodged a claim before FIFA, against the Respondent
for termination of the contract without just cause, and after amending his claim,
the Claimant claimed the total amount of USD 64,050 plus 5% interest as of due
date, composed as follows:
- USD 18,900 as outstanding amount according to the first agreement due from 1
February 2009 until 31 July 2009 plus 5% interest of USD 900;
- USD 15,750 as outstanding amount due on 15 April 2009 as per the agreement
plus 5% interest of USD 750;
- USD 15,750 due on 15 August 2009 also as per the agreement plus 5% interest of
USD 750;
- USD 12,750 as compensation for the residual value of the contract, in which
“USD 750” is added as 5% interest;
- USD 900 as rent allowance specified in the second agreement;
In addition, the Claimant also requested currency of country G 204.70 as translation
costs as well as currency of country G 2,411.23 as legal costs.
6.
In this respect, the Claimant held that in reliance to the contract, he obtained a visa
and had his professional “playing documents” sent to country K, but was allegedly
informed that the Respondent sought to terminate the contract without just cause
and without paying him any monies. A copy of the visa provided by the Claimant
was as from 12 February 2009 until 30 July 2009. The Claimant believes that the
Respondent found a new replacement and therefore “decided it no longer
wanted” him.
Player J, from country S / Club T, from country K
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7.
In its reply, the Respondent asserted to have concluded with the Claimant a
contract which was neither final nor complete in order to help the Claimant “obtain
a work visa to travel to country K as well as for the club to have an opportunity to
request his international transfer certificate”. Furthermore, the Respondent held
that the Claimant presented the first page and the last page of the contract which
does not list the remuneration conditions and therefore this proves that the
Claimant was not provided with a complete or valid contract by the Respondent. In
this respect, the Respondent further affirmed that the Claimant requested “a little
vacation to go home and sort out personal issues” which was granted, conditioned
to his return before 26 February 2009 in order to officially pass the application
process with the Respondent, however, that the Claimant did not return.
8.
Moreover, the Respondent stated that an agreement (hereinafter: the third
agreement) was signed by both parties on 18 February 2009, which conditioned the
contract’s validity and completion to the Claimant’s return. The third agreement
provided that the “Club at the instance of Player J gives the vacation without salary
for personal problems adjustment in country S. Player J is obliged to arrive to the
club’s location at the latest on 26.02.2009, for signing full version of the contract,
his execution and registration in Football Federation of country K. As well as: In
case of nonappearance of Player J in scheduled time the penalty at a rate of 7 000$
(seven thousand US dollars) is imposed on him. In case of employee nonappearance
before the final date of the Application (05.03.2009) all earlier signed documents
(additional agreement, incomplete contract) will be considered invalid. Club does
not carry any financial obligations in the face of employee. Club reserves the right
demand indemnity of all financial (payment for aero-ticket, hotel, etc.) and moral
costs”.
9.
In his replica, the Claimant maintained that the employment contract is valid and
that the remuneration is mentioned in the first and second agreement. In this
context, the Claimant alleged that if the contract was not valid, the country K
embassy would not have issued for him a working visa, and consequently he would
not have had his ITC request accepted and transferred to the country K Football
Association.
10.
Furthermore, the Claimant affirmed not having signed any other agreement, that
is, the third agreement, which would condition the contract’s validity to his return
or further conditions. In particular, the Claimant questions the fact that the third
agreement presented by the Respondent was handwritten, and alleged that the
signatures could “have been lifted from another document”.
11.
Finally, the Claimant asserted that on 12 February 2009, the Respondent’s director
ordered him to leave the country and specified that they no longer wished his
Player J, from country S / Club T, from country K
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services. Consequently, he left the country on 24 February 2009 and the Respondent
contacted his agent in February 2009 demanding the contractual termination.
12.
In its final comments, the Respondent maintained its previous argument, affirming
that the third agreement signed by both parties was concluded during a training
session and that is why it was not typed.
13.
On 24 June 2009, the Claimant signed a contract with the Club B, from country S,
valid as from 24 June 2009 for two years and “shall expire in 2011, as of the first day
of summer-winter transfer window of 2011”. According to the new employment
contract’s annex, the Claimant was entitled to receive, inter alia, EUR 20,000 for
season 2009/2010 and EUR 20,000 for season 2010/2011.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 21 April 2009. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 par.
2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a country S player and a country
K club.
3.
Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (editions 2012, 2010, 2009 and
2008), and considering that the claim was lodged on 21 April 2009, the 2008 edition
of the said regulations is applicable to the matter at hand as to the substance
(hereinafter: the Regulations).
4.
The competence of the DRC judge and the applicable regulations having been
established and entering into the substance of the matter, the DRC judge
acknowledged the above-mentioned facts as well as the documentation contained
in the file.
Player J, from country S / Club T, from country K
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5.
In this regard, the DRC judge noted that the Claimant lodged a claim against the
Respondent requesting the payment of a total of USD 64,050 plus 5% interest as
due date based on the contract, the agreement and the second agreement as well
as a total of currency of country H 2,615.93 for translation and legal costs.
6.
In this context, the DRC judge noted that, the Claimant alleged that despite having
concluded a valid contract and agreements as well as having been rendered a
working visa, the Respondent terminated the contract without just cause and did
not pay him any monies.
7.
On the other hand, the DRC judge argued that the Respondent rejected the claim
of the Claimant, since it never concluded a valid, final or complete employment
contract with the Claimant and stated that the latter could not provide sufficient
documents in order to prove any contractual relationship.
8.
In this context, the DRC judge, first and foremost, focussed its attention on the
question as to whether a legally binding employment contract had been concluded
by and between the Claimant and the Respondent. In the affirmative, he would
have to establish as to whether the relevant employment contract, agreement and
second agreement was breached and, if so, which party is to be held liable for
breach of contract and which are the consequences thereof.
9.
Having stated the aforementioned, the DRC judge wished to highlight 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 and
additional conditions established between the parties.
10.
Consequently, the DRC judge recalled art. 12 par. 3 of the Procedural Rules, which
stipulates that any party claiming a right on the basis of an alleged fact shall carry
the burden of proof.
11.
In this regard, the DRC judge started to carefully analyse the documentations
provided by the Claimant in order to prove that a contractual relationship was
established between him and the Respondent. In view of this, the DRC judge
acknowledged that the contract provided by the Claimant did not specify its validity
nor was it complete, since it contained only the first and last page which was signed
by both parties.
12.
In view of the aforementioned, the DRC judge came to the conclusion that the
contract lacked one of the essentialia negotii, i.e. the date of signature as well as
the specific duration of the employment relationship in order to be considered as a
valid employment contract.
Player J, from country S / Club T, from country K
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13.
Furthermore, the DRC judge noted that the Claimant provided an agreement which
also did not specify its validity, however, listed that for season 2009 the Claimant
would be entitled to a total remuneration of USD 60,000
14.
In addition, the DRC judge also noted that a second agreement provided by the
Claimant did not specify its validity, however, listed that the Claimant would be
entitled to a rent allowance of USD 900 as well as two flight tickets.
15.
Moreover, the DRC judge acknowledged that the Respondent provided a third
agreement allegedly signed by the parties according to which “In case of
nonappearance of Player J in scheduled time the penalty at a rate of 7 000$ (seven
thousand US dollars) is imposed on him. In case of employee nonappearance before
the final date of the Application (05.03.2009) all earlier signed documents
(additional agreement, incomplete contract) will be considered invalid. Club does
not carry any financial obligations in the face of employee. Club reserves the right
demand indemnity of all financial (payment for aero-ticket, hotel, etc.) and moral
costs”.
16.
After careful study of the contract and the agreements presented by the parties,
the DRC judge concluded that the essential elements of an employment contract
were not included in the pertinent employment contract and agreements. In
particular, the DRC judge noted that neither the contract nor the agreements
clearly defined the date of entry nor the entire duration of the contract.
17.
Moreover, the DRC judge analyzed that the agreement and the second agreement
did indeed established the remuneration of the Claimant for the season 2009,
however, they failed to establish a valid start and finish date of any possible
employment relationship and thus a validity of any possible contractual relationship
could not be established.
18.
Despite having concluded that the essentialia negotii of the contract and the
agreements were not present, the DRC judge deemed proper to consider the
information provided by the Claimant, who alleged that the country K embassy
provided him with a working visa. In this regard, the DRC judge analysed whether
the document provided by the Claimant could establish that an employment
relationship existed between the parties (cf. art. 12 par. 3 of the Procedural Rules).
19.
In this regard, the DRC judge noted that the visa rendered to the Claimant by the
country K embassy was valid as from 12 February 2009 until 30 June 2009, however,
did not specify if it is a working visa. Instead, it can only be noted from said
document that it is a “Visa” issued on behalf of the Claimant, without specifying
whether it is a working or tourist visa.
Player J, from country S / Club T, from country K
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20.
In view of all the above and recalling the principle of art. 12 par. 3 of the
Procedural Rules, the DRC judge concluded that Claimant did not provide enough
documentary evidence that an employment relationship had been established.
21.
In conclusion, the Chamber decided that, in view of the absence of a breach of
contract by the Respondent, the claim of the Claimant clearly lacks ground and thus
he is not entitled to any compensation in accordance with art. 17 par. 1 of the
Regulations. Therefore, the Chamber decided that the claim of the Claimant must
be rejected in its entirety.
22.
Finally, the DRC judge decided to reject the Claimant’s claim pertaining to legal
costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence in this regard.
*****
III.
Decision of the DRC Judge
The claim of the Claimant, Player J, is rejected.
*****
Player J, from country S / Club T, from country K
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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 DRC judge
Jérôme Valcke
Secretary General
Encl. CAS directives
Player J, from country S / Club T, from country K
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