Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 August 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Monsen (Norw ay ), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 1 October 2014, the Player of Country B, Player A (hereinafter: the player or
Claimant) and the Club of Country D, Club C (hereinafter: Club C or Respondent)
signed an employment contract, valid as from 1 October 2014 until 30 June 2018
(hereinafter: the contract).
2.
According to the contract, the player was entitled to receive a yearly salary of
EUR 600,000 net for each of the seasons 2014-2015, 2015-2016, 2016-2017 and
2017-2018.
3.
Further, article 3 of the contract contains the following clause: ‘The parties […]
are committed to fully comply with the stipulations agreed upon in the relevant
collective bargaining agreement […], including, non-exhaustively, the following
provisions […] Article 3.4 and 3.6 […] art. 5.1 […]’.
4.
On 1 August 2016, Club C and the Club of Country E, Club F (hereinafter: Club F)
concluded a transfer agreement for the definitive transfer of the player from
Club C to Club F for a transfer compensation of EUR 3,500,000.
5.
Article 6 of the transfer agreement holds the following: ‘The Contract is
suspensively conditioned to the signature between Club F and the Player of an
employment agreement’.
6.
Article 9 of the transfer agreement contains the following clause: ‘The player
signs this agreement for acceptation and states not to have anything to claim
from Club C with reference to the employment agreement filed at League of
Country D’.
7.
On 8 November 2016, the player lodged a claim before FIFA against Club C,
claiming outstanding remuneration in the total amount of EUR 120,000 to be
paid by Club C, which according to the player corresponds to the outstanding
salaries for the months of June and July 2016. Further, the player requested 5%
interest p.a. as from 6 October 2016, as well as legal costs to be paid by Club C
and the imposition of sporting sanctions, or any other sanction the DRC deems
relevant based on art. 12bis par. 4 FIFA Regulations, on Club C.
8.
In his claim, the player explains that except for the 2014-2015 season, he
received his yearly salary in ten instalments of EUR 60,000 each. Furthermore,
the player states that ‘in late July 2016 or thereabout’, he was informed by Club
C that Club F was interested in concluding a contract with him. After
negotiations between Club C and Club F in a hotel in a City of Country D, on 1
August 2016, ‘around 10pm’, the player was informed that a transfer agreement
was concluded between Club C and Club F. According to the player, also on 1
August 2016, ‘around 10.30pm’, he was asked by the clubs to come to the hotel,
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Player A, Country B / Club C, Country D
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to co-sign the transfer agreement, which the player confirms to have done. In
addition, the player explains that on 2 August 2016, he signed an employment
contract with Club F.
9.
What is more, the player holds that at the moment he co-signed the transfer
agreement, his monthly salaries for June and July 2016 in the amount of EUR
60,000 each were outstanding. After having asked for the payment of these
salaries ‘in late September 2016’, according to the player, Club C refused to pay
said salaries, holding that the player waived his right to receive these salaries,
based on article 9 of the transfer agreement signed on 1 August 2016. (cf. point
6. above).
10.
Furthermore, on 6 October 2016, the player put Club C in default for the
payment of the outstanding salaries, stating that he did not accept argument of
the Club C that he waived his right to receive the salaries for June and July 2016
and providing Club C with a 10 days’ deadline to pay him the requested
amounts, however to no avail.
11.
Subsequently, the player explains that his claim has to be accepted, since (a)
Club C was in breach of art. 12bis FIFA Regulations, (b) the transfer agreement
was not binding on the player, (c) article 9 of the transfer agreement is
‘inconsistent and repugnant with the object and intention of the Transfer
Agreement’ and (d) article 9 of the transfer agreement is in any case to be
considered null and void.
12.
Regarding the breach of art. 12bis, the player explains that Club C without any
plausible explanation, failed to pay him two monthly salaries.
13.
With respect to the transfer agreement, the player refers to article 10 par. 1 of
the FIFA Regulations and the jurisprudence of the DRC and CAS, based on which
– according to the player – ‘his signature does not change the scope, object and
purpose of the transfer agreement’. As a result, the player concludes that the
transfer agreement is not binding on him.
14.
In relation the article 9 of the transfer agreement, the player refers to article 18
of the Swiss Code of Obligations and argues that the transfer agreement
‘should in this regard be discerned by reading it as a whole and not merely in
isolation of clause 9’. According to the player, if one reads the transfer
agreement as a whole, this would lead to the conclusion that while signing the
transfer agreement, it was not the intention of the parties to agree upon the
waiving of the rights of the player to receive his monthly salaries.
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Player A, Country B / Club C, Country D
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15.
Further, the player states that it was never the object and intention of the
transfer agreement to conclude that the player would waive several rights. This
also follows from:
-
-
-
the commercial background of the transfer agreement, which was focused
at transferring the player for an amount of EUR 3,500,000 from Club C to
Club F;
the context of the transfer agreement, which contains 8 clauses regarding
the rights and obligations of Club C and Club F, and only 1 clause referring
to rights of the player;
the circumstances, behaviour and backgrounds of the parties, based on
which criteria, the player states that it is clear that on 1 August 2016, Club
C never addressed the issue of unpaid salaries and only asked the player to
co-sign the transfer agreement.
16.
Moreover, the player argues that article 9 of the transfer agreement is null and
void, because it contravenes the mandatory provision of article 341 Swiss Code
of Obligations, and also states that article 9 of the transfer agreement
contravenes the principle of good faith, and that it is vague, ambiguous and
unenforceable. In this respect, the player explains that the clause does not
explicitly refer to the unpaid salaries for June and July 2016, nor to the exact
amount due or the reasons for the player to waive his rights in this period.
17.
In its reply, Club C denies the player’s allegations and argues that the player
wanted to leave Club C, even after he was offered an extension of the contract.
Further, Club C argues that the player was very well aware of the contents of
the transfer agreement, since the negotiations already started in the beginning
of July 2016 and moreover, because of the fact that he player co-signed the
transfer agreement on 4 August 2016, three days after the initial signing of the
transfer agreement by Club C and Club F. In this respect, Club C submitted two
witness statements, from Negotiator G (negotiator on behalf of Club F) and
Secretary H (General Secretary of Club C) as well as a copy of an interview the
player had with ‘the Press of Country D’, allegedly confirming said
circumstances.
18.
Furthermore, Club C holds that in the transfer agreement, it was also agreed
that ‘Club F would take care of all the outstanding sums due to the Player by
Club C, with the relevant Player’s release/waiver in favour of Club C’. Club C
argues that it follows from article 9 of the contract that the parties implicitly
agreed that the player would waive his rights to receive his salaries of June and
July 2016. Moreover, Club C states that it never breached art. 12bis of the FIFA
Regulations, as the player explicitly waived his right to receive the salaries for
June and July 2016. Further, Club C states that it is ‘standard practice within the
football environment to settle any pending debts/right/claim with a player at
the same time when he is transferred to another club’. In addition, Club C holds
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Player A, Country B / Club C, Country D
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that it did not ask the player to sign the transfer agreement ‘as an expression of
his consent’ to the transfer, since such consent was already expressed by the
player by signing an employment contract with Club F.
19.
Moreover, Club C is of the opinion that the clause in article 9 of the transfer
agreement is valid, since the FIFA Regulations are applicable, as well as the
principle of pacta sunt servanda. Furthermore, Club C states that the wording of
article 9 of the transfer agreement is self-explanatory and that the reasons why
the player’s signature was on the transfer agreement are ‘expressly addressed’.
Subsequently, Club C argues that the player does not submit proof of which
mandatory provision of the contract ‘would have been violated through the
player’s execution of the transfer agreement in light of article 9 thereof’ and
that the waiver can be upheld, because the player received ‘a significant
increase of salary when he moved to Club F’.
20.
In addition, Club C states that the player was only entitled to a monthly salary
of EUR 50,000 net, as the yearly amount of EUR 600,000 was payable in 12 equal
instalments of EUR 50,000 each, which also follows from the fact that the
sporting season in Country D runs from 1 July until 30 June.
21.
In his replica, the player holds that he never met or spoke with Negotiator G
and Secretary H and that as a result, their statements are ‘completely irrelevant’.
Further, the player alleges that the date of 4 August 2016 on the transfer
agreement is handwritten by either Club C or Club F on the contract, and that in
the period between 1 and 4 August 2016, he first had to undergo a medical
examination with Club F.
22.
In addition, the player explains that Club C ‘made a habit of delaying the
Claimant’s salaries and making partial payments […]’ and that Club C continued
to pay him amounts belonging to the 2015-2016 season until 29 September
2016, on which date an amount of EUR 13,417 was paid to him. As a result, the
player concludes that Club C with making payments long after the transfer
agreement was concluded, effectively confirmed that the outstanding monies
owed by Club C to the player, were still payable.
23.
Further, the player explains that in his opinion, an employer who still has
contractual debts towards his employee, ‘[…] can only discharge itself from its
contractual duties through a settlement agreement exclusively entered into
with the employee […]’. With respect to the transfer agreement, the player
argues that for ‘a reasonable person’ it would be clear that the only purpose of
said agreement was to make arrangements on the definitive transfer of the
player from Club C to Club F for the amount of EUR 3,500,000.
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Player A, Country B / Club C, Country D
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24.
Moreover, the player holds that from the bank statements he submitted (cf.
point 22. above), it follows that in relation to the 2015-2016 season Club C paid
him the total amount of EUR 496,818 out of the amount of EUR 600,000 that
was due. As a result, the player insists on his original claim, however amends the
amount to be paid Club C to EUR 103,182.
25.
In its duplica, Club C denies the arguments of the player, stating that ‘its
consent to the transfer of the player to Club F was conditional upon said waiver’
and that it is not true that the player did not have the time to understand the
meaning and the consequences of the transfer agreement.
26.
Further, Club C draws the attention to the fact that the player and Secretary H,
the General Secretary of Club C, met ‘on a nearly daily basis throughout his stay
of 5 years with Club C’. In addition, Club C argues that the explicit wording of
article 9 of the transfer agreement clarifies the fact that the player had cosigned the transfer agreement.
27.
Moreover, Club C denies that it manually wrote the date of 4 August 2016 on
the transfer agreement. With respect to the payment of EUR 13,417 made on 29
September 2016 to the player, Club C explains that this payment is not related
to the waiver signed by the player (which only refers to contractual payments),
but that this payment was made in line with article 4.4 the Collective Bargaining
Agreement between the Club C and players. As such, the payment of EUR
13,417 had nothing to do with the contract.
28.
Finally, Club C concludes that the player ‘waived by signing the transfer
agreement’ the amount of EUR 100,000, and not EUR 120,000 as the player
states in his claim.
29.
After the closure of the investigation phase, the player submitted unsolicited
correspondence, arguing that the payment of EUR 13,417 was made in line with
the contract, since ‘bonuses were as a matter of fact part of the remuneration
due to the Claimant as spelt out in the Contract’.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In
this respect, it took note that the present matter was submitted to FIFA on 8
November 2016. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 1 and par. 2 of the Procedural Rules).
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Player A, Country B / Club C, Country D
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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 2016) 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 an Club of Country D.
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 2 of the Regulations on the Status and Transfer of Players (2016),
and considering that the present claim was lodged on 8 November 2016, the 2016
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. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent
for the assessment of the matter at hand.
5.
The members of the Chamber first of all acknowledged that the player and Club
C signed an employment contract, originally valid as from 1 October 2014 until
30 June 2018. Furthermore, the DRC noted that a transfer agreement dated 1
August 2016 was signed by the player, Club C and Club F, for the definitive
transfer of the player from Club C to Club F. Moreover, the members of the DRC
acknowledged that the player confirmed to have signed, on 2 August 2016, an
employment contract with Club F.
6.
The Chamber then reviewed the claim of the player, who maintains that he cosigned the transfer agreement dated 1 August 2016 in relation to his transfer to
Club F, however that he was still entitled to claim from Club C (parts of) the two
monthly salaries for June and July 2016, which allegedly remained outstanding.
Furthermore, the Chamber took note that the player holds that he did not
waive his rights to receive said salaries by co-signing the transfer agreement, as
article 9 of said agreement cannot have legal effect against him, as said clause
has to be considered null and void.
7.
In continuation, the members of the Chamber noted that Club C, for its part,
rejected the claim of the player and pointed out that by signing the transfer
agreement, the player waived all his financial claims towards Club C under the
employment contract signed on 1 October 2014. In this regard, Club C, apart
from its position that the player was fully aware of the contents of the transfer
agreement, invoked that the clause inserted in article 9 of the transfer
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Player A, Country B / Club C, Country D
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agreement is self-explanatory and clear. What is more, the player confirmed
that Club C informed him already in July 2016 about Club F’s interest in his
services. As a result, Club C holds that by signing the transfer agreement
without pressure and on his own free will, the player acknowledged that he had
no further financial claims towards Club C in connection with the employment
contract agreed between the parties on 1 October 2014.
8.
At this point, the Chamber wished to stress that it has remained undisputed that
the player duly received from Club C all amounts due under the contract, except
for (parts of) the monthly salaries for June and July 2016, as well as that at the
beginning of August 2016, the player signed the transfer agreement in relation
to his transfer from Club C to Club F.
9.
Having said that, the Chamber recalled the contents of the clause contained in
article 9 of the transfer agreement, which holds the following wording: ‘The
player signs this agreement for acceptation and states not to have anything to
claim from Club C with reference to the employment agreement filed at League
of Country D’.
10.
In addition, the Chamber referred to the contents of art. 12 par. 3 of the
Procedural Rules, in accordance with which any party claiming a right on the
basis of an alleged fact shall carry the burden of proof.
11.
Bearing in mind the aforementioned article, the DRC first of all took note of the
of the player’s arguments, as per which he claims not to have waived his right to
receive any outstanding remuneration from Club C. In particular, the Chamber
noted that the player claims that the contents of the transfer agreement cannot
be upheld against him, as his signature on the transfer agreement does not
change the scope, object and purpose of said transfer agreement.
12.
In addition, the Chamber recalled the player’s arguments, that the only reason
the parties concluded the transfer agreement, was to effectuate the transfer of
the player from Club C to Club F and that is was never the object and intention
of the transfer agreement to conclude that the player would waive his right to
receive due remuneration. Further, the DRC noted that according to the player,
Club C never raised the issue about the possible waiving of salaries and simply
requested him to sign the transfer agreement.
13.
In this respect, the Chamber first of all pointed out that a party signing a
document of legal importance without knowledge of its precise contents, as a
general rule, does so on its own responsibility, and must bear any consequences
eventually arising from it. What is more, the DRC noted that argument of the Club
C that the document in question was signed by the player and that the player was
aware of the contents of the transfer agreement, since the negotiations already
started in the beginning of July 2016, remained uncontested by the player, as he
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Player A, Country B / Club C, Country D
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only pointed out that it was not the intention of the parties to agree upon waiving
of (financial) rights and confirmed to have been aware about the interest of Club F
in his services.
14.
In this respect, the members of the Chamber were not convinced of the player’s
argument that he was not well informed of the consequences of signing the
transfer agreement, as he also bore an own responsibility to verify the content
of the transfer agreement.
15.
What is more, the members of the Chamber further pointed out that the player
indicated that if Club C would have wanted to settle its debts with the player, it
should have concluded a separate agreement with him. With respect to the
player’s argument, the Chamber concurred that the player would also have had
the option to either not sign the transfer agreement or have the allegedly
outstanding payments explicitly excluded from the legal effects of the transfer
agreement, in case he was not in agreement with such provision.
16.
In conclusion, the members of the Chamber established that it is not disputed
that the player indeed signed the transfer agreement containing a waiver in its
article 9 and that it was under his responsibility to verify the content and the
possible legal consequences of signing such document.
17.
In addition to the foregoing considerations and reiterating the principle of
burden of proof established in art. 12 par. 3 of the Procedural Rules, the
Chamber concluded that the player had not presented any further documentary
evidence or any consistent legal argument, corroborating his statement that the
transfer agreement could not be upheld against him.
18.
Consequently, the members of the Chamber decided to dismiss the player’s
arguments and concluded that the consequences of signing the transfer
agreement and consequently accepting the contents of any clauses inserted in
said agreement, could be applied against the player.
19.
What is more, the members of the Chamber agreed that the aforementioned
clause, which was inserted in the last page of the transfer agreement, which
page was signed by Club C, Club F and the player, unambiguously stipulates that
the player has no further claims towards Club C under the pertinent
employment contract signed between them. In this respect, the members of the
Chamber pointed out that the wording of said clause is clear and unambiguous,
as it refers to the employment contract filed at the national league of Country
D. As a result, the Chamber established that the player, by signing the transfer
agreement waived his rights to receive any amounts under the employment
contract with Club C, which may have remained outstanding.
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Player A, Country B / Club C, Country D
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20.
On account of the all the above-mentioned circumstances as well as the
contents of the clause in article 9 of the transfer agreement, the Chamber could
not uphold the player’s arguments. As a result thereof, the Chamber established
that the player, by signing the transfer agreement dated 1 August 2016, waived
his right to receive his salaries that were not yet paid by Club C, i.e. the salaries
for the months of June and July 2016.
21.
On account of the above, the Chamber decided to reject the claim of the player
in its entirety.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 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:
Omar Ongaro
Football Regulatory Director
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Player A, Country B / Club C, Country D
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Encl. CAS directives
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