Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 September 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Johan van Gaalen (South Africa), member
Leonardo Grosso (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 23 July 2010, the player from country B, Player A (hereinafter: the Claimant),
concluded an employment contract with the club from country D, Club C
(hereinafter: the Respondent), valid as from the date of signature until 30 June
2014.
2. Subsequently, on 24 July 2012, the Respondent concluded an agreement with the
club from country D, Club E, for the transfer of the Claimant, with an option to
return to the Respondent.
3. Moreover, on 24 July 2012, the Claimant concluded a new employment contract
(hereinafter: the contract) with the Respondent, valid as from 1 July 2013 until 30
June 2014.
4. In accordance with the third clause of the contract, the Claimant was entitled to a
global remuneration in the amount of EUR 700,000, to be paid in 12 monthly
instalments (i.e. EUR 58,333 per month).
5. In addition, the contract included, inter alia, the following clause:
“SEXTA (…)
En lo no previsto en el presente contrato, se estará a lo dispuesto en el Real
Decreto 1006/1985 de 26 de Junio, por el que se regula la relación laboral especial
de los deportistas Profesionales, Convenio Colectivo vigente y demás normas de
aplicación.”
“SIXTH (…)
“In matters not covered by this contract, the provisions of the Decree 1006/1985
of 26 June, on special employment relationships for professional athletes, as well
as the provisions of the current Collective Bargaining Agreement and other
applicable regulations shall apply” (free translation from Spanish).
6. On 21 August 2013, the Respondent and the Claimant concluded a transfer
agreement (hereinafter: the transfer agreement) with the club from country F,
Club G (hereinafter: Club G).
7. According to the fourth clause of the transfer agreement, the aforementioned
clubs agreed upon a transfer compensation for the Claimant in the amount of
EUR 1,800,000.
8. In addition, the transfer agreement included, inter alia, the following clauses:
“2. (…) [the Respondent] (…) undertakes to terminate the [Claimant]’s contract
and will transfer the registration of the [Claimant] to Club G (…) on the 21th
August 2013 under the terms set out below.”
“5. (…) Following the signing of this agreement and subject to the conclusion of
an early termination agreement between [the Respondent] and [the Claimant],
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Player A, country B / Club C, country D
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the parties undertake all steps necessary in a timely manner so that the
International Transfer Certificate can be issued (…)”
9. On 27 August 2013, the Claimant lodged a claim before FIFA against the
Respondent, requesting the payment of an unspecified amount of outstanding
salaries, corresponding to the months of July and August 2013, and the imposition
of sporting sanctions on the Respondent.
10. In particular, the Claimant explained that the Respondent was trying to make him
to sign a waiver, dated 21 August 2013, by means of which he would abdicate
from any outstanding salaries.
11. On 13 June 2014, the Claimant sent a correspondence named “Submission
Complementing Claim Filed on 27 August 2013”, by means of which he detailed
his claim.
12. In this respect, the Claimant requested the DRC to condemn the Respondent to
pay him the total amount of EUR 386,666, calculated as follows:
- EUR 58,333, corresponding to the salary for the month of July 2013, plus 5%
interest as from 31 July 2013;
- EUR 58,333, corresponding to the salary for the month of August 2013, plus 5%
interest as from 28 August 2013;
- EUR 270,000, corresponding to 15% of the transfer compensation paid by Club G
to the Respondent, plus 5% interest as from 28 August 2013.
13. In this respect, the Claimant stated that, due to his refusal to sign the waiver, the
Respondent refused to sign a termination agreement for the contract, despite the
fact that it would be obliged to do so in accordance with the transfer agreement,
in order for Club G to obtain the International Transfer Certificate (ITC).
14. Subsequently, the Claimant acknowledged that he finally signed the waiver, but
under duress, on 28 August 2013 because he had no other option in order to
ensure that he could finally transfer to Club G, alleging that the Respondent was
using this possibility as a “blackmail”.
15. In particular, the waiver stated, inter alia, the following:
“El CLUB C y el JUGADOR resuelven el contrato que unía a las partes y que estaba
vigente para la temporada 2013/2014 sin que el JUGADOR pueda reclamar
cantidad de la presente temporada al Club C.”
"[Respondent] and the [Claimant] agree to terminate the contract concluded
between the parties and which was in force for the 2013/2014 season, whereas
the [Claimant] cannot claim any amount for the current season.” (free translation
from Spanish)
16. In relation to the signed waiver, the Claimant explained that he initially lodged
his claim before FIFA on 27 August 2013, precisely, “to make sure that FIFA
understood that the content of the Involuntary Waiver did not reflect, in any way
whatsoever, his wish, will or intent”.
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Player A, country B / Club C, country D
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17. In reference to the requested amount corresponding to 15% of the transfer
compensation paid by Club G to the Respondent, the Claimant grounded his claim
on the basis of country D’s legislation, specifically, the Decree 1006/1985.
18. In this regard, and according to the Claimant, article 13 of the Decree 1006/1985
states that, “in the absence of an express agreement to that end, the player is
entitled to a minimum amount of 15% of the agreed transfer compensation”, and
referred to CAS jurisprudence in which said regulation was apparently applied.
19. Concerning the applicability of the Decree 1006/1985, the Claimant stated that
the DRC should apply the Regulations on the Status and Transfer of Players on a
primary basis, “whilst taking into account the relevant laws and/or collective
bargaining agreements that exist at national level”, as established in article 25
paragraph 6 of the aforementioned Regulations.
20. In its reply, the Respondent explained that, in its opinion, the contract with the
Claimant was valid until 30 June 2014, and that the transfer agreement was in any
case subject to a sine qua non conclusion of a separate early termination
agreement between the Respondent and the Claimant, as stipulated in the fifth
clause of the transfer agreement.
21. In addition, the Respondent denied the Claimant’s allegation that he signed the
waiver under duress, and explained that, in consideration of the fifth clause of
the transfer agreement, if he didn’t agree with the contents of the waiver, then
he should simply not have accepted the transfer. The Respondent explained that,
if the Claimant would not have signed the waiver, then the transfer to Club G
would not have occurred, and that, consequently, the Claimant would have been
required to stay with the Respondent until the expiration date of the contract.
22. In reference to the outstanding salaries, the Respondent explained that the
Claimant did not join the Respondent’s trainings on 11 July 2013 as required, but
that he did so on 13 July 2013, and that he stopped training on 21 August 2013.
23. Consequently, the Respondent stated that, even if it had to pay any amount to
the Claimant, he would only be entitled to the amounts of EUR 33,870.77 for the
month of July 2013 and EUR 39,515.90 for the month of August 2013 (EUR
73,386.67 in total).
24. Regarding the amount claimed by the Claimant, corresponding to the 15% of the
agreed transfer compensation between the Respondent and Club G, the
Respondent mentioned that in none of his previous communications prior to the
claim, the Claimant ever mentioned this amount. In addition, the Respondent
considered that there is no legal basis for the DRC requiring it to apply non-Swiss
national legislation. In particular, the Respondent considered that, although FIFA
may take into account particular national rules, it is not subject to them. Finally,
the Respondent stated that, even if the DRC considers that this amount is due, it
shall be paid by the acquiring club, in accordance with country D’s legislation.
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Player A, country B / Club C, country D
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.
25. In his replica, the Claimant insisted that the DRC should apply country D’s law, as
specified in FIFA’s own regulations, and quoted DRC jurisprudence in this regard.
In addition, the Claimant considered that the parties agreed in the contract to
apply the Decree 1006/1985. The Claimant also denied the Respondent’s
allegation stating that, if any, the payment of the 15% of the transfer
compensation should be made by the acquiring club, since the jurisprudence of
country D has apparently stated that, in cases of transfers to foreign clubs, this
payment should be made by the clubs from country D.
26. Furthermore, the Claimant argued that clause 2 of the transfer agreement already
implied the termination of the contract, and that clause 5 of said agreement
should not be understood as establishing any further condition prior to the
termination of the contract.
27. Finally, the Claimant adjusted his claim in relation to the outstanding salaries and
requested the DRC to condemn the Respondent to pay him the following
amounts:
- EUR 58,333, corresponding to the salary for the month of July 2013, plus 5%
interest as from 1 August 2013;
- EUR 37,634, corresponding to the salary for twenty days of August 2013, plus 5%
interest as from 22 August 2013, or subsidiarily, EUR 28,226, plus 5% interest as
from 22 August 2013.
28. In its final comments, the Respondent insisted that the transfer agreement did not
settle the termination of the contract, since the transfer agreement was proposed
and written by Club G. In this regard, the Respondent also insisted that the
conclusion of a separate termination agreement with the Claimant was a
necessary condition prior to the entry into force of the transfer agreement.
29. In reference to the amount claimed by the Claimant, corresponding to the 15% of
the agreed transfer compensation between the Respondent and Club G, the
Respondent stated that, if the Claimant would have been entitled to the said
right, he should have claimed it before country D’s local courts, and not before
FIFA, which is bound by its own rules as well as by Swiss laws.
30. Furthermore, the Respondent confirmed its previous position regarding the
outstanding salaries.
31. Finally, after the closure of the investigation-phase, the Claimant sent an
unsolicited correspondence, by means of which he provided additional decisions
of country D’s courts in relation to the amount corresponding to the 15% of the
agreed transfer compensation between the Respondent and Club G.
32. According to the information available on the TMS, the ITC for the Claimant’s
transfer from the Respondent to Club G was issued on 29 August 2013.
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Player A, country B / Club C, country D
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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 27
August 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 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 from country B and a club from country
D.
3. 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 27 August 2013, the 2012 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4. 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 arguments and 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 pertinent for the assessment of the matter at hand.
5. In this regard, the Chamber took note that, on 24 July 2012, an employment
contract was concluded between the Claimant and the Respondent for the period
from 1 July 2013 until 30 June 2014.
6. In this respect, the Chamber took into consideration that according to the
Claimant, the Respondent had failed to pay his remuneration in the total amount
of EUR 95,967, corresponding to the unpaid salaries of July 2013 and August 2013
(i.e. EUR 37,634 per month). Consequently, the Claimant requested, inter alia, to
be awarded with the aforementioned amount.
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Player A, country B / Club C, country D
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7. In continuation, the Chamber also took note that, on 21 August 2013, the
Respondent, the Claimant and Club G concluded an agreement for the transfer of
the Claimant from the Respondent to Club G.
8. Moreover, the members of the Chamber observed that, on 28 August 2013, the
Claimant, as acknowledged by himself, signed a waiver dated 21 August 2013, by
means of which he terminated his contract with the Respondent and abdicated
from any outstanding salaries for the season 2013/2014.
9. In this regard, the Chamber noted that the Claimant alleged that said waiver was
signed by him, under duress from the Respondent, in order to be released by the
latter and obtain his transfer to Club G.
10. In this particular, the members of the Chamber wished to highlight that, in
accordance with clause 5 of the previously mentioned transfer agreement, the
signature of the waiver was not established as a condition for the transfer of the
Claimant from the Respondent to Club G, but only that the Respondent and the
Claimant should conclude an early termination agreement.
11. On the other hand, the members of the Chamber also noted that it was of the
Respondent’s firm opinion that the Claimant signed the document in question
without any type of coercion whatsoever and, consequently, rejected the claim
lodged against it.
12. In this regard, the members of the Chamber observed that, according to the
Claimant, the fact that the claim before FIFA was lodged on 27 August 2013 and
that the waiver was signed on the following day (i.e. 28 August 2013) should be
understood as a way to ensure that the contents of said document did not reflect
his wish, will or intent.
13. In this respect, and with reference to 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, the members of the Chamber unanimously agreed
that the aforementioned allegation raised by the Claimant is of a speculative
nature and, as such, it cannot be understood as a form of substantial evidence,
from which the members of the Chamber could infer any specific type of
intention arising from the parties in connection with the facts of the case.
14. Moreover, the Chamber also took into account that the Claimant failed to present
any other documentary evidence in support of his allegation that he had been
coerced by the Respondent, into signing the waiver.
15. Consequently, the DRC decided that the Claimant’s allegations as to the existence
of duress in the signature of the waiver cannot be accepted, and highlighted that
the Claimant acknowledged himself that he signed the aforementioned waiver.
16. Having determined the validity of the waiver, the members of the Chamber took
note that, according to said document, the Claimant abdicated from any financial
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Player A, country B / Club C, country D
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claim against the Respondent for the 2013/2014 season, including the months of
July and August 2013. In view of the above, the members of the Chamber
unanimously agreed that the Claimant’s request in connection with overdue
salaries must be rejected.
17. Subsequently, the members of the Chamber examined the Claimant’s request to
be awarded with an amount equivalent to 15% of the agreed compensation
between the Respondent and Club G for the transfer of the Claimant to the latter,
on the basis of country D’s national legislation.
18. In this regard, the Chamber deemed it appropriate to point out that the request
for said amount presented by the Claimant had no contractual basis, and pointed
out that no corroborating evidence had been submitted which could demonstrate
that the parties at stake agreed upon said remuneration.
19. Furthermore, and in reference to the alleged grounding of said request on the
basis of country D’s national legislation, the Chamber wished to point out that
when deciding a dispute before the DRC, FIFA’s regulations prevail over any
national law chosen by the parties. In this regard the Chamber emphasized that
the main objective of the FIFA regulations is to create a standard set of rules to
which all the actors within the football community are subject and can rely on.
This objective would not be achievable if the DRC would have to apply the
national law of a specific party on every dispute brought to it. In this respect, the
DRC wished to point out that it is in the interest of football that a player’s
remuneration is based on uniform criteria rather than on provisions of national
law that may vary considerably from country to country. Therefore, the Chamber
deemed that it is not appropriate to this case to apply specific aspects of a
particular national law but rather the Regulations on the Status and Transfer of
Players, general principles of law and, where existing, the Chamber’s wellestablished jurisprudence.
20. Consequently, the members of the Chamber unanimously agreed that the
Claimant’s request to be awarded with an amount equivalent to 15% of the
agreed compensation between the Respondent and Club G for the transfer of the
Claimant to the latter, must also be rejected.
21. The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
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Player A, country B / Club C, country D
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III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is rejected.
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:
Markus Kattner
Acting Secretary General
Enclosed: CAS directives
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Player A, country B / Club C, country D
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