Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 23 September 2013,
by Mr Theo van Seggelen (The Netherlands), DRC judge,
on the claim presented by the player
Player J, from country A
as Claimant
against the club
Club L, from country C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 31 July 2009, Player J, from country A (hereinafter: the Claimant), and Club L, from
country C (hereinafter: the Respondent), concluded an employment contract (hereafter:
the first contract), valid as from the date of signature until 31 May 2011.
2.
The first contract provided, inter alia, the following benefits towards the Claimant:
- EUR 45,000 for the season 2009/2010 payable in ten equal monthly instalments of
EUR 4,500 each, due on the last day of each consecutive month, the first instalment
becoming due on 30 August 2009;
- EUR 65,000 for season 2010/2011 payable in ten equal monthly instalments of EUR
6,500 each, due on the last day of each consecutive month, the first instalment
becoming due on 30 August 2010;
- bonus payments “according to the internal regulations of the club”;
- accommodation;
- one flight ticket per year for the Claimant and for two members of his family
“connecting country A – country C – country A”;
- health insurance for the Claimant’s wife and son (clause handwritten in the contract).
3.
On 31 July 2009, both parties signed a second employment contract (hereinafter: the
second contract), as well as an agreement. Article 2 of the second contract provided
that the Claimant “shall be employed by the Club for season 2009/2011, thus from the
date of signing of the present until 31/5/2011 or after the last game of the
Championship (2009-2011), whichever is the latest. Further it is agreed by both parties
that the first 12 month’s of the Player’s contract are considered as probation according
to the Termination Law of 1967”.
4.
Furthermore, art. 30 of the second contract provided that the Claimant would be
entitled to the following remuneration:
Season 2009/2010:
EUR 10,000 gross, payable in ten equal instalments of EUR 1,000 each, “the first
instalment payable on 30 August 2009 and the next on the last day of each consecutive
month”;
Season 2010/2011:
EUR 10,000 gross, payable in ten equal instalments of EUR 1,000 each, “the first
instalment payable on 30 August 2010 and the next on the last day of each consecutive
month”.
5.
Moreover, art. 38 of the second contract provided that “Any modifications or
amendments to this contract become valid only if they are in written form and signed
by both parties. Any previous agreement between the club and the player is null and
void”.
6.
Art. 1 of the agreement established the following remuneration:
Player J, country A / Club L, from country C
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Season 2009/2010:
EUR 35,000 divided in ten equal instalments as from 30 August 2009 until 31 May 2010.
Season 2010/2011:
EUR 55,000 divided in ten equal instalments as from 30 August 2010 until 31 May 2011.
7.
On 2 July 2010, the Respondent sent the Claimant “by personal service” a letter by
means of which it terminated the second contract referring to art. 2 of the second
contract (cf. point I. 3).
8.
On 7 July 2010, the Claimant lodged a complaint against the Respondent for
terminating the contract without just cause before FIFA and, after amending his claim,
requested EUR 78,094 plus 5% interest as from 2 July 2010, composed of the following
amounts:
- EUR 9,000 as outstanding salary for May and June 2010 in virtue of the first contract;
- EUR 214 as rent allowance for May 2010 and health insurance;
- EUR 1,900 as bonus payments in accordance to the club’s internal regulations;
- EUR 720 composed of “EUR 260 as stamp duties” for the first contract and “EUR 460
for submission” of the first contract with the country C Football Association;
- EUR 1,260 for one flight ticket to country A, as per the first contract;
- EUR 65,000 as compensation, for the remaining season 2010/2011, in accordance with
the first contract.
The Claimant further requested costs and legal expenses and sporting sanctions to be
imposed on the Respondent.
9.
In this respect, the Claimant held, inter alia, that the Respondent induced him to sign
the second contract and the agreement, affirming that he was told that their contents
were the same as the first contract, but that they had to be submitted to the country C
Football Association. Furthermore, the Claimant alleged that it did not agree to a 12
month probation period.
10.
Consequently, the Claimant claimed that the sole valid contract is the first contract,
since the second contract and the agreement were signed based on an alleged fraud
and misrepresentation committed by the Respondent.
11.
In this respect, the Claimant held that the last salary he received from the Respondent
was in April 2010 and provided all payment receipts of salaries received as from August
2009 until April 2010 composed as follows: EUR 1,500 dated 6 August 2009; EUR 3,500
dated 25 August 2009; EUR 4,000 dated 1 September 2009; EUR 5,414 dated 29
September 2009; EUR 5,414 dated 30 October 2009; EUR 5,514 dated 30 November
2009; EUR 4,714 dated 17 December 2009; EUR 100 dated 5 January 2010; EUR 4,714
dated 28 January 2010; EUR 4,714 dated 26 February 2010; EUR 600 as rent dated 30
March 2010; EUR 114 as “insurance for wife” dated 30 March 2010; EUR 4,000 dated 30
March 2010; EUR 4,714 dated 29 April 2010.
Player J, country A / Club L, from country C
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12.
In continuation, the Claimant stated not having received EUR 1,900, amount allegedly
due in the event the Respondent wins the country C Football Association 2nd Division
Championship accounting to the internal rules of the Respondent composed as follows:
EUR 100 for a victory in the regular season and EUR 150 for a victory during the playoff,
as per match list provided on file.
13.
In its reply, the Respondent asserted having agreed to sign with the Claimant an
employment contract and agreement dated 31 July 2009 and that any previous
contracts and agreements between the parties are null and void as per art. 38 of the
second contract.
14.
Furthermore, the Respondent asserted having paid the Claimant all salaries and that the
contract was terminated as per correspondence dated 2 July 2010 notified to the
Claimant. Finally the Respondent requested the claim to be dismissed as well as alleged
“that both of the valid agreements and/or contracts were submitted to country C
Football Association and therefore it has no responsibility and/or liability for the
submission of any other cancelled and/or void agreement by the player”.
15.
In his replica, the Claimant alleged that the first contract was registered with the
country C Football Association, referring to the stamp in the first contract, and thus, has
an exact date, while the second contract was not stamped. Furthermore, the Claimant
asserted that the Respondent did not prove that the second contract was registered.
Moreover, the Claimant states that the probation period of one year listed in the
second contract is invalid.
16.
Despite being invited to do so, the Respondent did not provide its final position.
17.
On 25 August 2010, the Claimant signed a new employment contract with Club D, from
country A, valid as from 1 August 2010 until 30 June 2011. According to the new
employment contract, the Claimant is entitled to a monthly salary of currency of
country A 4,000 as well as currency of country A 157 as bonus.
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 7
July 2010. 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).
Player J, country A / Club L, from country C
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2.
Subsequently, the DRC judge referred to art. 3 par. 2 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 an country A player and a country C 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 and 2009), and considering that
the claim was lodged on 7 July 2010, the 2009 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.
5.
First and foremost, the DRC judge took note that it remained uncontested that the
Claimant and the Respondent signed on 31 July 2009 two contracts and an agreement
(cf. points I.1 and I.3). The first contract specified, inter alia, that the Claimant would be
entitled to EUR 45,000 for the season 2009/2010 and EUR 65,000 for the season
2010/2011. The second contract specified that that the Claimant would be entitled to
EUR 10,000 for the season 2009/2010 and EUR 10,000 for the season 2010/2011.
However, the second contract provided in its art. 2 that “the first 12 month’s of the
Player’s contract are considered as probation according to the Termination Law of
1967”.
6.
Subsequently, the DRC judge acknowledged that the Claimant lodged a claim against
the Respondent for terminating the first contract without just cause and requested the
payments by the Respondent of the total amount of EUR 78,094 on the basis of the first
contract plus default interest of 5% as well as costs and legal expenses.
7.
In this regard, the DRC judge noted that the Claimant based his claim on the first
contract, affirming that it was the only contract valid between the parties, and
requested outstanding remuneration in the total amount of EUR 13,094, which is
composed of EUR 9,000 as outstanding salary for May and June 2010; EUR 214 as rent
allowance for May 2010 and health insurance; EUR 1,900 as bonus payments; EUR 720 as
costs for stamp duties and the contractual submission to the country C Football
Association and EUR 1,260 for one flight ticket to country A. In addition, the DRC judge
acknowledged that the Claimant requested the amount of EUR 65,000 as compensation
for the remaining season, i.e. season 2010/2011.
Player J, country A / Club L, from country C
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8.
After having analysed the aforementioned contracts and agreement, the DRC judge
highlighted that the Claimant considered that the only valid contract is the first
contract, which was registered with the country C Football Association, and that the
second contract and agreement were signed based on an alleged fraud committed by
the Respondent since the Claimant did not agree with a 12 month probation period
established in its contents. Furthermore, the judge took note that the Claimant
provided receipts of payments made by the Respondent to the Claimant.
9.
On the other hand, the DRC judge acknowledged that the Respondent rejected the
Claimant’s claim by alleging that the valid contracts would be the second contract as
well as the agreement, in accordance with art. 38 of the second contract that specified
that “Any modifications or amendments to this contract become valid only if they are in
written form and signed by both parties. Any previous agreement between the club
and the player is null and void”. Additionally, the Respondent held that the valid
contracts were allegedly terminated in writing on 2 July 2010, in conformity with art. 2
of the second contract that specified a probation period of 12 months.
10.
Finally, the DRC judge took into account that the Claimant insisted that the first
contract was the only valid between the parties and the Respondent, even though
invited to provide its final comments, did not submit further comments or evidence.
11.
Considering the opposite position of the parties, the DRC deemed that it had to
establish, first and foremost, whether the first contract, on the basis of which the
Claimant lodged his claim, was valid and binding between the parties.
12.
Having stated the aforementioned, the Chamber wished to highlight that in order for
an employment contract to be considered as valid and binding, 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, the remuneration and the
signature of both the employer and the employee. After careful study of the contract
presented by the Claimant, the Chamber concluded that all such essential elements are
included in the pertinent employment contract, in particular, the fact that the contract
establishes that the Claimant has to render his services towards the Respondent, which
in counterpart has to pay to the Claimant a monthly remuneration.
13.
In this respect, the DRC judge highlighted that the Respondent did not provide any
comments after the Claimant insisted that the first contract was the only one valid and
thus, the latter argument remained uncontested by the Respondent.
14.
In continuation, the DRC judge referred the parties to the legal principle of the burden
of proof (cf. 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, and
considered that the club had failed to submit any evidence to demonstrate that the first
contract was not valid as well as that it did not provide enough substantial evidence
that the second contract should be considered as the valid employment contract.
Player J, country A / Club L, from country C
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15.
Additionally, the DRC judge highlighted that the first contract was duly signed by both
parties as well as that the Claimant was able to provide substantial proof that the
Respondent made payments in accordance with the amounts established in the first
contract, providing payment receipts (cf. point I.11).
16.
For the sake of good order, the DRC judge referred to art. 38 of the second contract
that specified inter alia that “Any previous agreement between the club and the player
is null and void” and considered that both contracts had the same date, i.e. 31 July
2009. Therefore, the first contract remained valid.
17.
In conclusion, the DRC judge considered that the first contract was valid and binding
between the parties.
18.
In continuation, the DRC judge emphasized that it remained unanswered that the
Respondent had unilaterally terminated the contract in writing, on 2 July 2010.
19.
Having established the aforementioned, the Chamber deemed that it was necessary to
determine whether the first contract had been unilaterally terminated with or without
just cause by the Respondent, and which party was responsible for the early termination
of the contractual relationship in question. The DRC judge also underlined that,
subsequently, if it were found that the employment contract was terminated by the
Respondent without just cause, it would be necessary to determine the financial
consequences for the party that caused the breach of the relevant employment
contract.
20.
In view of the above, the DRC judge firstly noted that the Respondent justified the
termination of the employment relationship on art. 2 of the second contract.
21.
In this respect, the DRC judge recalled the wording of art. 2 of the second contract,
which stipulates that, “[…] the first 12 months of the player’s contract are considered as
probation according to Termination Law of 1967”.
22.
Subsequently, the DRC judge deemed appropriate to analyse the question of whether
such clause inserted in an employment contract could be considered valid. In that
regard, the DRC judge deemed that the application of the above-mentioned rule was
arbitrary, since it leads to an unacceptable result based on non-objective criteria, which
entitled the Respondent to unilaterally terminate the contract during the first 12
months of the contract. The DRC judge emphasized that the lack of objective criteria by
the application of the relevant rule leads to an unjustified disadvantage of the
Claimant’s financial rights.
23.
In this regard, the DRC judge considered that the possibility granted to the Respondent
to prematurely terminate the contract within its first year, without the need to indicate
any reasons for it and only based on the fact that such period is to be considered as a
Player J, country A / Club L, from country C
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probation period, appeared to be of a highly subjective nature, entailing that, de facto,
it is left to the complete and utter discretion of the Respondent whether or not it was
willing to continue the contractual relationship.
24.
In view of the foregoing, the DRC judge was of the opinion that art. 2 of the second
contract, invoked by the Respondent in order to put an end to the employment
contract, was clearly potestative and is not acceptable: Consequently, the respective
argumentation of the Respondent could not be upheld by the DRC judge.
25.
Therefore the DRC judge rejected the arguments provided by the Respondent and
considered it had terminated the contract without just cause.
26.
Having established that the Respondent was to be held liable for breach of the
employment relationship without just cause, the DRC judge focused its attention on the
consequences of such breach of contract.
27.
Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that
the Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract in addition to any outstanding payments on the
basis of the relevant employment contract.
28.
On account of the above, the DRC judge held that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the
employment contract concluded with the Claimant and, consequently, pay the
outstanding remuneration, which is due to the latter.
29.
In this respect, the DRC judge noted that the Claimant had honoured the contract until
the premature termination by the Respondent on 2 July 2010 and that, according to the
Claimant, he had not received the monthly salaries for May and June 2010. In this
context, the DRC judge recalled the contents of art. 12 par. 3 of the Procedural Rules
and considered that the Respondent had failed to demonstrate having paid the salaries
claimed, since it did not provide documentary evidence. As a consequence, the DRC
judge deemed that, on the basis of the documents on file, the Respondent had not
honoured the salaries of May and June 2010 of EUR 4,500 each. Furthermore, relating
to the other outstanding amounts, the DRC judge rejected such requests, since the
amounts requested were neither specified in the contract nor did the Claimant provide
enough documental evidence that he was actually entitled to them.
30.
On account of all of the above, the DRC judge considered that the Respondent had not
paid the Claimant the total amount of EUR 9,000 as outstanding salaries.
31.
In continuation, the DRC judge noted that the Claimant furthermore claimed 5%
interest p.a. as of 2 July 2010, i.e. date of the premature contractual termination by the
Respondent.
Player J, country A / Club L, from country C
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32.
Concerning the interests claimed by the Claimant, the DRC judge noted that the first
contract did not provide for any specific interest rate in case of late payment.
Consequently, the DRC judge decided to award, in accordance with the constant
practice of the Dispute Resolution Chamber, default interest at a rate of 5% p.a. as of 2
July 2010, as requested by the Claimant.
33.
In conclusion, the DRC judge decided that the Respondent has to pay the total amount
of EUR 9,000 as outstanding remuneration plus 5 % interest p.a. on said amount as of 2
July 2010 until the date of effective payment.
34.
In continuation, the DRC judge analysed the request of the Claimant for compensation.
In doing so, the DRC judge firstly recapitulated that, in accordance with art. 17 par. 1 of
the Regulations, the amount of compensation shall be calculated, in particular and
unless otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and further
objective criteria, including, in particular, the remuneration and other benefits due to
the Claimant under the existing contract and/or the new contract, the time remaining
on the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
35.
In application of the relevant provision, the DRC judge held that it first of all had to
clarify as to whether the pertinent employment 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 breach of contract. In this respect, the Chamber
established that no such compensation clause was included in the employment contract.
36.
As a consequence, the DRC judge determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge recalled
that the said provision provides for a non-exhaustive enumeration of criteria to be
taken into consideration when calculating the amount of compensation payable.
Therefore, other objective criteria may be taken into account at the discretion of the
DRC judge.
37.
In order to evaluate the compensation to be paid by the Respondent, the DRC judge
took into account, inter alia, in line with art. 17 par. 1 of the Regulations, the
remuneration due to the Claimant in accordance with the employment contract and the
time remaining on the same contract, as well as the professional situation of the
Claimant as from the early termination of the employment contract, i.e. 2 July 2010
until 31 May 2011.
38.
In continuation, the DRC judge noted that the Claimant, for his part, claims
compensation for breach of contract until the expiry of the contract in the amount of
EUR 65,000, as well as a flight ticket in the amount of EUR 1,260.
Player J, country A / Club L, from country C
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39.
Considering the above, the DRC judge recalled that the remaining value of the first
contract was EUR 65,000 as well as that the first contract specified that the Claimant
would have been entitled to a flight ticket back to his homeland country A.
40.
In addition, the DRC judge took into account that the Claimant entered into a new
employment contract valid as from 1 August 2010 until 30 June 2011 with Club D, from
country
A,
for
a
monthly
salary
of
currency of country A 4,000 and currency of country A 157 as bonus.
41.
As a consequence and on account of all the above-mentioned considerations and the
specificities of the matter at hand, the DRC judge decided that the Respondent must
pay the Claimant for breach of contract the amount of EUR 58,200 as compensation
plus 5% interest p.a. as of the date of the decision.
42.
Furthermore, the DRC judge decided that the Claimant’s claim for legal costs is rejected
in accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution
Chamber’s respective longstanding jurisprudence
43.
The DRC judge concluded its deliberations in the present matter by establishing that
any further claims lodged by the Claimant are rejected.
********
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player J, is partially accepted.
2.
The Respondent, Club L, has to pay to the Claimant, Player J, within 30 days as from
the date of notification of this decision, the outstanding amount of EUR 9,000 plus 5 %
interest p.a. on said amount as of 2 July 2010 until the date of effective payment.
3.
The Respondent, Club L, has to pay to the Claimant, Player J, within 30 days as from
the date of notification of this decision, compensation for breach of contract in the
amount of EUR 58,200 plus 5% interest p.a. on said amount as of the date of this
decision until the date of effective payment.
4.
If the aforementioned amounts plus interest (cf. points 2 and 3) are not paid, the
present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
Player J, country A / Club L, from country C
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5.
Any further claims lodged by the Claimant, Player J, are rejected.
6.
The Claimant, Player J, is directed to inform the Respondent, Club L, immediately and
directly of the account number to which the remittance is to be made and to notify the
DRC judge 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
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
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player J, country A / Club L, from country C
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