Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 21 September 2012,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Thilina Panditaratne (Sri Lanka), member
on the claim presented by the player,
Player V, from country W
as Claimant/Counter-Respondent
against the club,
Club N, from country O
as Respondent/Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 30 July 2010, player V (hereinafter: the Claimant/Counter-Respondent), and the
club of country O, club N (hereinafter: the Respondent/Counter-Claimant), signed
an employment contract (hereinafter: the contract) valid as from 1 August 2010
until 30 June 2011.
2.
According to art. 7.1 of the contract, the Claimant/Counter-Respondent is entitled
to a monthly remuneration of 580 (currency of country O).
3.
The Claimant/Counter-Respondent provided FIFA with a letter of the club, dated
14 October 2010, signed by the Respondent/Counter-Claimant’s chief of the staff
department, by the chief of its finance department and bearing its stamp and
letterhead, according to which it “Is given to player V, to confirm that he really is
the footballer of professional Football Club ‘club N’ on the base of contract from
02.08.2010 till 30.06.2012 and his salary makes 10,000 (ten thousand) USD”.
4.
On 4 April 2011, the Claimant/Counter-Respondent lodged a claim in front of FIFA
against the Respondent/Counter-Claimant, requesting compensation for breach of
contract in the total amount of USD 70,000, corresponding to his salaries of
January 2011 until August 2011, based on the Respondent/Counter-Claimant’s
letter of 14 October 2010.
5.
In his claim, the Claimant/Counter-Respondent alleges that, in spite of having
requested it several times, he never received a copy of the signed contract,
allegedly sent by the Respondent/Counter-Claimant for registration, the only
document in his possession related to his employment being the
Respondent/Counter-Claimant’s letter of 14 October 2010.
6.
According to the Claimant/Counter-Respondent, on 25 December 2010 he was
informed by the Respondent/Counter-Claimant’s manager that he would possibly
be transferred to another club and should only present himself again to the club
on 12 January 2011. On the appointed date, he was not allowed into the
Respondent/Counter-Claimant’s premises and, in addition, found out that the
team had departed to country T for trainings.
7.
On 14 February 2011, the Respondent/Counter-Claimant’s management allegedly
informed the Claimant/Counter-Respondent that he had been dismissed from the
club. The Claimant/Counter-Respondent stressed that, by then, the transfer
window was already closed, preventing him from signing a new employment
contract.
Player V, from country W / Club N, from country O
2/12
8.
In its response, the Respondent/Counter-Claimant provides FIFA with a signed copy
of the employment contract, valid as from 1 August 2010 until 30 June 2011,
which establishes a monthly salary of 580 currency of country O, being, according
to the Respondent/Counter-Claimant, the only salary that was agreed by the
parties.
9.
According to the Respondent/Counter-Claimant, in its letter dated 14 October
2010, enclosed to the Claimant/Counter-Respondent’s claim, “his salary was
written wrongly because of technical mistakes and the club worker who prepared
such reference was punished for such mistake”. The Respondent provided FIFA
with another letter dated 15 July 2011, signed by its vice-president, according to
which “reference is given to player V, to confirm that he really is paid salary in
amount of 580 currency of country O (five hundred and eighty) every month”.
10.
In addition, the Respondent/Counter-Claimant argues that the Claimant/CounterRespondent, as per his own request, was given permission to find another club
during the winter break from 25 December 2010 until 9 January 2011; the
Respondent/Counter-Claimant promised to the Claimant/Counter-Respondent not
to object to his transfer to another club. In case he would fail to do so, he should
return to the Respondent/Counter-Claimant’s headquarters and attend the
training sessions to be held in country T, from 10 to 20 January 2011. In this
respect, the Respondent/Counter-Claimant provided a copy of a ticket reservation
made on behalf of the Claimant/Counter-Respondent, dated 17 December 2010,
regarding a trip from Baku to Antalya on 10 January 2011 and from Antalya to
Baku on 20 January 2011. In spite of the alleged Respondent/Counter-Claimant’s
warnings, the Claimant/Counter-Respondent did not join the trainings and left the
club without permission.
11.
The
Respondent/Counter-Claimant
equally
states
having
paid
the
Claimant/Counter-Respondent’s salary of January 2011 and in this respect it
encloses a declaration of the Bank of country O, dated 10 May 2011, according to
which “there is an active salary card belonging to a player of club N player V in
our bank”.
12.
Therefore, the Respondent/Counter-Claimant deems that the Claimant/CounterRespondent’s claim should be rejected and lodges a counterclaim against him,
requesting that the DRC “punishes him according to the International Football
rules for leaving the club on his own wish” and “makes an appropriate disciplinary
decision about the player from country W […]”.
13.
In his replica, the Claimant/Counter-Respondent states that he did not leave the
Respondent/Counter-Claimant voluntarily and insists that the statement issued by
Player V, from country W / Club N, from country O
3/12
the Respondent/Counter-Claimant on 14 October 2010 should be taken into
account.
14.
Furthermore, the Claimant/Counter-Respondent states that a list of players subject
to transfer, in which his name figures, was published on the Respondent/CounterClaimant’s website on 27 December 2010. Even though several clubs from country
O were allegedly interested in his transfer, the Respondent/Counter-Claimant
refused to negotiate it. As the Claimant/Counter-Respondent questioned the vicepresident of the Respondent/Counter-Claimant about the reasons for such refusal,
the latter stated that the Claimant/Counter-Respondent had not been put for
transfer, but listed as a reserve player.
15.
The Claimant/Counter-Respondent further states never having received any air
tickets from the Respondent/Counter-Claimant. The debit card number under
which the Respondent/Counter-Claimant claims having deposited the
Claimant/Counter-Respondent’s salary allegedly does not exist.
16.
After the team returned from country T, the Claimant/Counter-Respondent tried
to discuss his situation with the Respondent/Counter-Claimant’s management, but
the latter allegedly tried to convince him to sign a document, confirming the
receipt of all his salaries from January until August 2011, in the total amount of
USD 80,000, but the Claimant/Counter-Respondent refused to sign said document.
17.
In its final comments, the Respondent/Counter-Claimant states that, during the
Claimant/Counter-Respondent’s contract with it, it has never been contacted by
another club interested in him. Even though he may have been in Baku between
12 January 2011 and 15 February 2011, the Claimant/Counter-Respondent
allegedly never contacted the Respondent/Counter-Claimant’s management nor
was he forced to leave the club.
18.
Moreover, the Respondent/Counter-Claimant states it has always been interested
in keeping the Claimant/Counter-Respondent and paid his salaries accordingly. In
this regard, the Respondent/Counter-Claimant provided FIFA with an undated
letter of the Bank of country O according to which “In a response to your letter
number SS/03/M-410/15 dated 18.07.2011, we inform that general quantity of
transferred amount into account number xxxxxx opened for player V, a player of
club N is as below-mentioned: xxxxxxxxxxxxxxxxxxx”.
19.
In its final position to the counterclaim, the Claimant/Counter-Respondent claims
that the Respondent/Counter-Claimant did not present any proof of its
allegations.
Player V, from country W / Club N, from country O
4/12
20.
Finally, the Claimant/Counter-Respondent
employment contract since January 2011.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the DRC analysed whether it was competent to deal with the case at
hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 4 April 2011. Consequently, the 2008 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 par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b)
of the Regulations (edition 2010), it is competent to decide on the present
litigation, which concerns an employment-related dispute with an international
dimension, between a player from country W and a club from country O.
3.
Furthermore, the DRC analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, the Chamber
confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition
2010) and considering that the present matter was submitted to FIFA on 4 April
2011, the 2010 edition of said Regulations is applicable to the present matter as to
the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, it
started to acknowledge the facts of the case as well as the documents contained
in the file.
5.
In this respect, the DRC acknowledged that it was undisputed by the parties that
the Claimant/Counter-Respondent and the Respondent/Counter-Claimant had
signed an employment contract, by the end of July 2010. Equally, it was
undisputed by the parties that the letter of 14 October 2010 had been signed by
the Respondent/Counter-Claimant. The parties’ positions, however, differ
fundamentally as to which document should be taken into account in order to
establish the Claimant/Counter-Respondent’s remuneration as well as the duration
of the employment relationship between the latter and the Respondent/CounterClaimant.
Player V, from country W / Club N, from country O
states
not
having
signed
any
5/12
6.
In this regard, the Chamber took note of the fact that, on the one hand, the
Claimant/Counter-Respondent claims that, in spite of his several requests, he never
received a copy of the employment contract signed with the Respondent/CounterClaimant, and indicates that a letter from the Respondent/Counter-Claimant,
dated 14 October 2010, signed by the chief of the staff department, by the chief
of the finance department and bearing the stamp and the letterhead of the
Respondent/Counter-Claimant, shall be considered as the fundamental document,
and the only one in his possession, to establish the contractual obligations
between the parties.
7.
The DRC noted that, according to the aforementioned letter, provided by the
Claimant/Counter-Respondent, the contract between the parties was allegedly
signed on 2 August 2010, valid until 30 June 2012, and established the amount of
USD 10,000 as the Claimant/Counter-Respondent’s salary.
8.
Based on the information contained in the aforementioned letter of 14 October
2010, the Claimant/Counter-Respondent lodged a claim against the
Respondent/Counter-Claimant, requesting the payment of compensation for
breach of contract in the amount of USD 70,000, corresponding to his salaries of
January 2011 until August 2011. In his claim, the Claimant/Counter-Respondent
alleges that the Respondent/Counter-Claimant orally terminated the employment
contract, on 14 February 2011, unilaterally and without just cause. Prior to
terminating the contract, the Respondent/Counter-Claimant had allegedly
informed the Claimant/Counter-Respondent of his possible transfer to another
club and consequently authorised him to search for new employment. Finally, the
Claimant/Counter-Respondent was allegedly forbidden to join the team’s trainings
on 12 January 2011, while the entire team had departed to country T for trainings.
Since on 14 February 2011 the transfer window had already been closed, the
Claimant/Counter-Respondent was not able to sign a new employment contract
and found himself unemployed.
9.
On the other hand, the Chamber observed that the Respondent/Counter-Claimant
provided FIFA with a copy of the employment contract dated 30 July 2010 and
signed by both parties, valid as from 1 August 2010 until 30 June 2011, and
according to which the Claimant/Counter-Respondent is entitled to a monthly
remuneration of 580 currency of country O. The members of the DRC equally
noted that the Respondent/Counter-Claimant claims that the employment
contract of 30 July 2010 is the only document that should be taken into account in
order to establish the contractual relationship between the parties.
10.
The members of the DRC further took note of the fact that the
Respondent/Counter-Claimant claims that the letter dated 14 October 2010,
Player V, from country W / Club N, from country O
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provided by the Claimant/Counter-Respondent, was drafted by mistake by a club’s
employee and subsequently corrected by means of a new letter dated 15 July
2011, signed by its vice-president, according to which “reference is given to player
V, to confirm that he really is paid salary in amount of 580 currency of country O
(five hundred and eighty) every month”.
11.
Subsequently, the Chamber took note of the arguments of the
Respondent/Counter-Claimant regarding its alleged breach of contract. In this
respect, the Chamber took note that the Respondent/Counter-Claimant claims
that the Claimant/Counter-Respondent was given permission, as per his own
request, to find another club during the winter break as from 25 December 2010
until 9 January 2011. However, in case the Claimant/Counter-Respondent failed to
find new employment, he was to resume trainings with the Respondent/CounterClaimant to be held in country T, from 10 to 20 January 2011, according to the air
ticket issued on his behalf, dated 17 December 2010, which the Claimant/CounterRespondent allegedly failed to do. In addition, the Respondent/Counter-Claimant
alleges having paid the Claimant/Counter-Respondent’s salary for January 2011,
and in this respect it encloses a declaration of the Bank of country O, dated 10
May 2011.
12.
For having abandoned his activities without permission, in spite of the alleged
warnings of the Respondent/Counter-Claimant, the latter rejects the
Claimant/Counter-Respondent’s claim and lodges a counterclaim against him,
requesting that the DRC “punishes him according to the International Football
rules for leaving the club on his own wish” and “makes an appropriate disciplinary
decision about the player from country W […]”.
13.
In continuation, the DRC took note of the arguments contained in the
Claimant/Counter-Respondent’s replica, according to which he did not leave the
Respondent/Counter-Claimant voluntarily and insists that the letter of 14 October
2010 should be taken into account to establish the parties contractual
relationship. The Claimant/Counter-Respondent equally claims that, in spite of the
fact that several clubs of country O were allegedly interested on his transfer, the
Respondent/Counter-Claimant refused to negotiate it, based on the argument
that he had been listed as a reserve player, and thus was not available for transfer.
Furthermore, the Claimant/Counter-Respondent claims never having received an
air ticket to country T, nor his salary for January 2011, since the debit card number
to which the transfer was allegedly made would not exist. In addition, the
Claimant/Counter-Respondent alleges having been obliged by the RespondentCounter-Claimant to sign a document confirming the payment of his salaries from
January until August 2011, in the total amount of USD 80,000, to which he
refused.
Player V, from country W / Club N, from country O
7/12
14.
Finally, the Chamber noted that, in its final comments, the Respondent/CounterClaimant denies having been contacted by any club interested in the
Claimant/Counter-Respondent’s transfer as well as having in any way forced the
Claimant/Counter-Respondent to leave the club. In addition, the Chamber
acknowledged that Respondent/Counter-Claimant stated having always paid the
Claimant/Counter-Respondent’s salaries correctly, as stated in an undated letter of
the Bank of country O according to which “In a response to your letter number
SS/03/M-410/15 dated 18.07.2011, we inform that general quantity of transferred
amount into account number xxxxxx opened for player V, a player of club N is as
below-mentioned: xxxxxxxxxxxxxxxxxx”.
15.
Having established the aforementioned, the members of the DRC deemed that
the underlying issue in this dispute, considering the claim of the
Claimant/Counter-Respondent and the counterclaim of the Respondent/CounterClaimant, was first to determine which document was to be considered as valid
and binding between the parties, and consequently fundamental, to establish the
salary contractually due to the Claimant/Counter-Respondent by the
Respondent/Counter-Claimant.
16.
Consequently, and in order to establish which document should be considered at
the basis of the employment relationship between the parties, the Chamber
focused its attention on the documentation and the argumentation presented by
them and, in this respect it acknowledged the existence of three undisputed
documents related to the parties contractual relationship, namely: an employment
contract signed between the parties, dated 30 July 2010, a letter of the
Respondent/Counter-Claimant, dated 14 October 2010, and a letter of the
Respondent/Counter-Claimant, dated 15 July 2011.
17.
Subsequently, the Chamber deemed it appropriate to remind the parties of the
content of the aforementioned documents. In this regard, the members of the
DRC firstly referred to the employment contract signed between the parties and
provided by the Respondent/Counter-Claimant. In this respect, the Chamber noted
that the aforementioned contract, signed on 30 July 2010 by both parties, was
valid as from 1 August 2010 until 30 June 2011, and established a monthly
remuneration for the Claimant/Counter-Respondent in the amount of 580
currency of country O.
18.
In continuation, the members of the DRC took note of the letter of the
Respondent/Counter-Claimant, dated 14 October 2010, provided by the
Claimant/Counter-Respondent, according to which the contract between the
parties was signed on 2 August 2010 and was valid until 30 June 2012, for a salary
of USD 10,000. The Chamber further noted that the aforementioned letter was
Player V, from country W / Club N, from country O
8/12
signed by the chief of the staff department, by the chief of the finance
department and bore the stamp and the letterhead of the Respondent/CounterClaimant.
21.
Finally, the Chamber acknowledged the content of the Respondent/CounterClaimant’s letter, dated 15 July 2011, signed by its vice-president, and also bearing
the Respondent/Counter-Claimant’s letterhead, which, according to the
Respondent/Counter-Claimant, rectified the letter of 14 October 2010, by
confirming that the Claimant/Counter-Respondent’s monthly salary amounted to
580 currency of country O.
22.
In view of the multitude of documents presented by the parties to establish their
contractual relationship, the DRC deemed it appropriate to remind the parties of
the basic elements of a valid and binding contract, namely an offer, consisting of
an expression of willingness to contract on a specific set of terms, with a view that
they are accepted by its counterparty and that both sides will become
contractually bound, and an acceptance of said offer, consisting of an expression
of absolute and unconditional agreement to all the terms set out in the offer.
Moreover, the DRC recalled that the parties to an agreement must necessarily
intend to enter a legally binding relationship, which they shall either state
explicitly or which can, in certain cases, be inferred from the circumstances under
which the agreement was made.
23.
Bearing in mind the aforementioned principles as well as the particular
circumstances of the present case, the Chamber observed that the contract signed
between the parties, on 30 July 2010, contained the undisputed expression of the
consent of the parties, which have both signed without reservations a document
containing the professional and financial obligations of both parties. By doing so,
the parties accepted the terms of the aforementioned contract and committed
themselves to abide by them. Therefore, the DRC was of the opinion that the
contract of 30 July 2010 contained all the essential elements of a valid and binding
contract and should be considered as such.
24.
Subsequently, the members of the DRC started to analyze the content and the
nature of the letter of the Respondent/Counter-Claimant, dated 14 October 2010,
and provided by the Claimant/Counter-Respondent. In this respect, the DRC
observed that, in spite of being signed by the chief of the staff department, by the
chief of the finance department and bearing the stamp and the letterhead of the
Respondent/Counter-Claimant, the letter of 14 October 2010 cannot be considered
as a result of the expression of consent of the engaging parties, does not contain
the signature of the player, does not establish rights and obligations for the
parties.
Player V, from country W / Club N, from country O
9/12
25.
In addition, such document, containing information that is completely different
from the one contained in the employment contract, was considered as issued by
mistake and consequently substituted by another letter, dated 15 July 2011, which
confirmed the terms of the employment contract signed between the parties on
30 July 2010.
26.
Furthermore, the Chamber took into account that the Respondent/CounterClaimant has provided substantial evidence, consisting of a statement of the Bank
of country O, according to which the Claimant’s salaries were regularly paid
during the period of August 2010 until December 2010. The DRC could establish
from the statements of the aforementioned bank that the salary amounts for
August until December 2010 were paid in accordance with the employment
contract dated 30 July 2010.
27.
Moreover, the Chamber also observed that, in spite of the aforementioned, the
Claimant/Counter-Respondent does not claim from the Respondent/CounterClaimant that the salaries paid to him as from August until December 2010 as per
the contract of 30 July 2010 should be complemented in accordance with the
letter of the 14 October 2010. Instead, the Claimant/Counter-Respondent only
claims compensation for breach of contract for the months of January until
August 2011, based on the values established on the Respondent/CounterClaimant’s letter of the 14 October 2010.
28.
In view of the aforementioned, the Chamber concluded that, by not claiming the
amounts corresponding to his past salaries as per the aforementioned letter of 14
October 2010, the Claimant/Counter-Respondent, accepted by means of his acts, to
receive as a monthly salary the amount established in the contract.
29.
In addition, the Chamber considered that the letter of 14 October 2010 was not
able to modify or substitute a valid and binding employment contract signed
between the parties and, as a consequence, it established that the claim of the
Claimant/Counter-Respondent did not contain a valid contractual basis and had to
be rejected.
30.
Finally, the Chamber turned its attention to the Respondent/Counter-Claimant’s
counterclaim and in this respect it noted that the Respondent/Counter-Claimant
did not substantiate its counterclaim regarding the alleged breach of contract by
the Claimant/Counter-Respondent with any documental evidence.
31.
At this point, the Chamber deemed it appropriate to remind the parties of the
content of art. 12 par. 3 of the Procedural Rules, according to which “Any party
claiming a right on the basis of an alleged fact shall carry the burden of proof”. In
Player V, from country W / Club N, from country O
10/12
this context, the Chamber observed that the Respondent/Counter-Claimant, in
spite of claiming having been interested in the Claimant/Counter-Respondent’s
services, did not provide any proof that it has warned the player of his breach, as
it alleges, or to have requested his return, once his absence was noted.
32.
Therefore, the Chamber deemed that the Respondent/Counter-Claimant did not
provide substantial evidence of the contractual breach of the Claimant/CounterRespondent and, thus, the counterclaim of the Respondent/Counter-Claimant had
to be rejected.
33.
The Chamber concluded its deliberations in the present matter by establishing
that both the claim of the Claimant/Counter-Respondent and the counterclaim of
the Respondent/Counter-Claimant are rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, player V, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, club N, is rejected.
*****
Player V, from country W / Club N, from country O
11/12
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 V, from country W / Club N, from country O
12/12