Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 August 2015,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Mario Gallavotti (Italy), member
on the matter between the player,
Player A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 18 July 2011, the Player A (hereinafter: the Claimant), born on 13 October
1989, concluded a “Promissory employment contract between the club and the
professional player” (hereinafter: the contract), with the Club of Country D, Club
C, (hereinafter: the Respondent), establishing the duration of the “future
employment contract” as from 1 January 2012 “until the end of the 2014/2015
season”.
2. In accordance with the contract, the Claimant was entitled to the following
monthly remuneration, to be paid in ten monthly instalments:
- Season 2011/2012: EUR 3,000;
- Season 2012/2013: EUR 3,000;
- Season 2013/2014: EUR 3,000;
- Season 2014/2015: EUR 3,000.
3. In addition, section 10 of the contract established the following:
“10ª. – Durante a vigência de cada época de Contrato, o Atleta terá direito a
receber duas viagens de vinda e regresso ao seu país de origen – Country B.
10th. - During the term of each contract period, the [Claimant] will be entitled to
receive two round trips to his country of origin – Country B” (free translation from
Language of Country D).
4. Furthermore, the contract included, inter alia, the following clauses:
“O Contrato definitivo de Trabalho será outorgado em dia, hora e local a designar
pelo 1º Contratante, por meio de notificaçao a efectuar ao 2º Contratante, por
qualquer forma que se possa considerar adequada e idónea a essa formalidade. No
caso de recusa de qualquer uma das partes na concretizaçao do Contrato
prometido, aplicar-se-à a Clausula penal prevista na alínea 18ª do presente
Contrato Promessa, além de outros danos que as partes possam ter causado
(...)
18ª.- A titulo de Cláusula penal para eventualidade de incumprimento da
celebraçao do Contrato definitivo, acordam e establecem reciprocamente o
montante de 100.000,00€ (Cem Mil €uros) a pagar pela parte faltosa à contraparte.
The final employment contract will be awarded on a day, time and place to be
determined by the first contracting party [i.e. the Respondent], by means of a
trustworthy and appropriate notification given to the second contracting party
[i.e. the Claimant]. In case of refusal of any party in implementing the Promissory
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Player A, Country B / Club C, Country D
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Agreement, the penalty clause as outlined in section 18 of this Promissory
Agreement shall be applied, as well as any other damages that the parties may
have caused
(...)
18ª.- In the event of a failure to conclude a definitive agreement, the parties have
agreed to establish a penalty clause in the amount of € 100,000.00 (one hundred
thousand euro), to be paid by the party in default to the counterparty” (free
translation from Language of Country D).
5. On 28 June 2013, the Claimant lodged a claim before FIFA against the Respondent,
and requested the payment of a total amount of EUR 100,000, plus 5% interest,
due to the Respondent’s failure to conclude a final employment contract, in
accordance with clause 18 of the contract. In this regard, the Claimant explained
that, in December 2011, he tried to contact the Respondent via telephone, but
that he received no reply and he consequently returned to his former club on 1
February 2012, after the closure of the transfer window in Country D.
6. In addition, the Claimant requested the imposition of sporting sanctions on the
Respondent.
7. In its reply, the Respondent contested the Claimant’s claim by stating that it was
time-barred, since the contract was signed on 18 July 2011 and the Respondent
was notified of the claim on 24 July 2013.
8. As to the substance of the case, the Respondent considered that the Claimant
never presented himself at the Respondent’s facilities, “despite numerous
telephone contacts” with him. The Respondent stated that the Claimant’s alleged
manager in Country D explained that “the [Claimant] wasn’t now interested in
signing”. Consequently, the Respondent considered that the Claimant failed in
signing the definitive agreement, and that, consequently, he should be
condemned to pay the amount of EUR 100,000.
9. After being requested by FIFA to clarify the nature of its apparent counterclaim,
the Respondent did not provide any further comments.
10. In his replica, the Claimant insisted that the claim was not time-barred, since his
right to claim any financial compensation began on 1 January 2012, when the
definitive employment agreement should have been signed. In addition, the
Claimant explained that he did not travel to Country D because the Respondent
did not send him the air tickets that were necessary to do so, as established in the
contract.
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Player A, Country B / Club C, Country D
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11. In its final comments, the Respondent stated that the contract should not be
considered because it is not the original document and the signatures of the
parties are not recognized by a legal authority, and that it is unknown if the
provided translation is reliable.
12. Notwithstanding the above, the Respondent insisted that it is not true that the
Claimant contacted it to sign the definitive agreement, and that in any case the
Respondent did not commit to send the airplane tickets, since that would be done
after the signing of the definitive agreement.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
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 28 June
2013. Consequently, the 2012 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2012, 2014
and 2015 editions 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 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players, edition 2015, 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 Player of Country B and a Club of Country D.
3. The Chamber then reverted to the argument of the Respondent, according to
whom the present matter is barred by the statute of limitations on the basis of the
Regulations on the Status and Transfer of Players. In this regard, the members of
the Chamber referred to art. 25 par. 5 of the Regulations, according to which, inter
alia, the Dispute Resolution Chamber shall not hear any case subject to the said
Regulations if more than two years have elapsed since the event giving rise to the
dispute. The present claim having been lodged in front of the DRC on 28 June
2013 and the event giving rise to the dispute, that is, the conclusion of the
contract between the Claimant and the Respondent, having occurred on 18 July
2011, the members of the Chamber had to reject the respective argument of the
Respondent and confirmed that the present petition was lodged in front of the
DRC within said two years’ period of time. The matter is, thus, not barred by the
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statute of limitations in accordance with art. 25 par. 5 of the Regulations on the
Status and Transfer of Players (edition 2015).
4. The competence of the Chamber having been established, the Chamber 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, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (editions 2012, 2014 and 2015), and considering that the present matter
was submitted to FIFA on 28 June 2013, the 2012 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
5. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence which it considered
for the assessment of the matter at hand.
6. In this respect, the members of the DRC took note that, on 18 July 2011, a contract
was concluded between the Claimant and the Respondent, establishing the
conditions upon which the parties would conclude a “future employment
contract”.
7. Within this context, the members of the Chamber noted that, as acknowledged by
the parties at stake, the “future employment contract” outlined in the contract
was never concluded.
8. In view of the above, the Chamber took note of the Claimant’s claim, according to
which he requested the payment of the amount of EUR 100,000 by the
Respondent, corresponding to the penalty fee established in clause 18 of the
contract, due to the Respondent’s alleged failure to conclude the “future
employment contract” with the Claimant.
9. Bearing in mind the previous considerations, the Chamber went on to deal with
the possible consequences of the non-conclusion of the “future employment
contract”.
10. In doing so, the DRC highlighted, as a preliminary consideration, that there is no
provision in the Regulations entitling a party to compensation for the nonconclusion of a “future employment contract”.
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11. Nevertheless, the Chamber held that, in the absence of a specific rule applicable to
the case, it first of all had to clarify as to whether the 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 non-conclusion of a future
employment contract.
12. In this regard, the Chamber noted that, in accordance with the 18th clause of the
aforementioned contract, the parties agreed that, in case of failure to implement
the “future employment contract”, a penalty fee in the amount of EUR 100,000,
would be payable by the party in default to the counterparty.
13. Taking into account the previous considerations, the members of the Chamber
further analysed the provisions existing under the 18th clause of the contract. In
particular, the Chamber further examined the following provision, as written in
the aforementioned clause:
“O Contrato definitivo de Trabalho será outorgado em dia, hora e local a designar
pelo 1º Contratante, por meio de notificaçao a efectuar ao 2º Contratante, por
qualquer forma que se possa considerar adequada e idónea a essa formalidade.
(...)
The final employment contract will be awarded on a day, time and place to be
determined by the first contracting party [i.e. the Respondent], by means of a
trustworthy and appropriate notification given to the second contracting party
[i.e. the Claimant]. “
14. In this regard, the Chamber unanimously agreed that, in consideration of the
specific formulation of the relevant provision, the Claimant and the Respondent
agreed that it was the Respondent’s duty to make all necessary arrangements for
the conclusion of the “future employment contract”.
15. Within this context, the Chamber observed that, according to the Respondent, the
Claimant failed in signing the contract despite its “numerous telephone contacts”
and that, consequently, he should be held liable for the non-conclusion of the
“future employment contract”.
16. In this respect, the DRC recalled the basic principle of burden of proof, as
stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective burden of
proof.
17. According to this, the Chamber noted that the Respondent did not substantiate its
defense, as it did not present any evidence in support of its allegation that it took
all necessary steps to conclude the “future employment contract”.
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Player A, Country B / Club C, Country D
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18. Consequently, the members of the Chamber unanimously agreed that the 18 th
clause of the contract is applicable to the matter at stake, and that, consequently,
the Respondent should be held liable towards the Claimant for the non-conclusion
of the “future employment contract”.
19. In continuation, the Chamber focussed its attention on the consequences of the
non-conclusion of the “future employment contract”, attributable to the
Respondent. In this regard, the Chamber recalled the contents of the penalty
clause in the contract.
20. After due deliberation, the members of the Chamber concluded that penalty
clauses may be freely entered into by the contractual parties and may be
considered acceptable, in the event that the pertinent written clause meets certain
criteria such as proportionality and reasonableness. In this respect, the Chamber
highlighted that in order to determine as to whether a penalty clause is to be
considered acceptable, the specific circumstances of the relevant case brought
before it shall also be taken into consideration.
21. In this regard, the Chamber outlined that the wording such clause was clear, and
that it was freely, reciprocally and mutually agreed upon between the parties. In
particular, the Chamber noted that, in his statement of defense, the Respondent
suggested that the Claimant should be held liable for the payment of the penalty
fee. Consequently, the members of the Chamber had no other option than to
consider that the penalty fee was acceptable in view of its mutual applicability.
22. Consequently, the Chamber unanimously decided that, in accordance with the
general legal principle of pacta sunt servanda, the Respondent is liable to pay to
the Claimant a penalty fee in the total amount of EUR 100,000.
23. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of EUR 100,000 as
from 28 June 2013 until the date of effective payment.
24. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the parties.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, compensation for breach of contract in the
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Player A, Country B / Club C, Country D
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amount of EUR 100,000, plus 5% interest p.a. as from 28 June 2013 until the date
of effective payment.
3. In the event that the amount plus interest set forth in point 2. is not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4. Any further claim lodged by the Claimant is rejected.
5. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance under point 2. 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. 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 (CAS)
Avenue de Beaumont 2
CH-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
Acting Deputy Secretary General
Enclosed: CAS directives
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