Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 24 October 2011,
by Mr Theo van Seggelen (Nehterlands), DRC judge,
on the claim presented by the player,
J,
as Claimant
against the club,
D,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 7 December 2010, the player J (hereinafter: the player or the Claimant), and the
club D (hereinafter: the club or the Respondent), signed a pre-contract valid as from
1 February 2011 until 30 June 2011.
2.
According to par. 2 of the pre-contract, the club undertakes to provide the player,
inter alia, with a monthly remuneration of USD 10,000, bonuses and a flight ticket.
3.
According to par. 3 of the pre-contract, “D via video, already recognized the
personal football ability of J, so D exempted trail for J. The validity of this precontract will be subjected to the passing of medical check on the player. If the
player failed to pass the medical check when he arrives in country C, this precontract will be voided automatically”.
4.
Furthermore, par. 4 of the said pre-contract establishes that “the pre-contract is
temporarily agreement, an official employment contract will be signed when the
player arrives in country C and passes the medical check”.
5.
According to the player, on 13 January 2011, after his arrival in country C, the
conclusion of his medical exams and his participation in a training camp, he was
orally informed by the club’s coach that the president of D did not wish him to join
the club. D, thus, refused to sign an official employment contract with the player.
6. On 1 February 2011, the player found new employment with the club Z, and signed
an employment contract valid as from 4 February 2011 until 30 November 2011. The
player is entitled to receive a monthly salary in the amount of 2,625.
7.
On 10 May 2011, the player lodged a claim in front of FIFA, alleging unilateral
breach of contract without just cause by the club and requesting the payment of
the total amount of USD 55,000, made up of:
- USD 50,000 as compensation, corresponding to the player’s salaries for the
entire duration of the contract, i.e. 5 months, plus interests of 5% p.a.;
- USD 5,000 of legal fees.
8.
Furthermore, the player requests that sporting sanctions should be applied to the
club, including but not limited to the ban of all transfers until the total debt
towards the player has been acquitted.
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9.
The player argues that, after his arrival in country C, in spite of having successfully
completed all medical exams, as required in the pre-contract, and participated in
the training camp organized by the club, he was rejected by the club’s president,
without explanation, having been granted solely a one-way flight ticket back to
country L.
10. Furthermore, the player stressed that, even though an official employment contract
has never been concluded, the pre-contract had indeed been signed by both parties
and is, therefore, a binding agreement. However, none of the amounts specified in
the pre-contract have been paid to the player.
11. As a consequence, the player’s agent sent two letters to the club, dated 28 January
2011 and 6 April 2011, in which he reminds the club of its delay in signing an
official employment contract with the player and of its arrears arising from the precontract, in the amount of USD 50,000, respectively. However, the club never
responded to such reminders.
12. In its response, the club states that the pre-contract was only concluded because the
player’s former club Z, insisted on it as an indispensable condition for the player to
go to country C. According to the club, the pre-contract is an interim agreement
and is not binding.
13. After the player’s arrival in country C, the coach realised his performance was very
different from the one shown on video and previously sent to the club; thus, “the
club thinks that the video is completely false”.
14. The pre-contract was terminated due to the fact that the player’s agent is not a
licensed and registered agent at the Football Association C, as required on Chapter
XIII of the interim provisions for registration.
15. In his replica, the player states not having been aware of any condition imposed by
his former club Z, concerning his transfer to the club D and provided a statement
dated 7 June 2011, in which the club Z confirmed this information.
16. Moreover, Z and the Respondent had, on 2 December 2010, already signed the
contract for the transfer of the player, for the amount of USD 15,000, according to
which he would be playing with the club D from 1 February 2011 until 30 June
2011.
17. Furthermore, the player states that the video sent to the club D is not falsified, but
shows the player in a real match. The player reaffirms the good quality of his
performance and points out that he is a candidate to the national football team of
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country L as well as captain of Z facts which are known by the club D. In addition,
the club did not bring any proof of its allegations concerning the player’s allegedly
unsatisfying performance.
18. Finally, the player rejects the club’s argumentation related to the player’s agent and
the fact the he is allegedly not licensed. The player points out that the agents
initially involved in the transfer are not parties in the claim. Furthermore, the precontract has been duly signed by the player himself and the club D, being perfectly
binding for both parties.
19. In its final comments, the club maintains its previous position and states that the
agent did play a relevant part in the negotiation at hand, namely by putting all
parties in contact.
20. In addition, the club points out that the pre-contract signed with the captioned
player is not a formal employment contract, but an interim agreement, enabling
the player to go to country C and pass his exams with the club in that country, but
has no legal effects.
21. Finally and for the sake of good order, the Football Federation L informed FIFA that
it has never received an International Transfer Certificate (hereinafter: ITC) request
from the Football Association C with regards to the transfer of the captioned player
from Z to the Respondent.
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 10 May 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 judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that, in accordance with art. 24 par. 1 and par. 2 in conjunction with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010)
(hereinafter: the Regulations), he is competent to decide on the present litigation,
which concerns an employment-related dispute with an international dimension
between a player from country L and a club from country C.
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3.
Furthermore, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that, in
accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2010) and
considering that the present matter was submitted to FIFA on 10 May 2011, the
2010 edition of said Regulations is applicable to the present matter as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing so, he
started to acknowledge the facts of the case as well as the documents contained in
the file.
5.
In this respect, the DRC judge acknowledged that it was undisputed by the parties
that they had signed a pre-contract, on 7 December 2010, valid as of 1 February
2011 until 30 June 2011, in accordance with which the player was entitled to
receive, inter alia, monthly remuneration in the amount of USD 10,000, bonuses
and a flight ticket.
6.
Furthermore, the DRC judge noted that it was also undisputed by the parties that,
on 13 January 2011, the Respondent terminated the pre-contract with the
Respondent, by informing him orally that it was no longer interested in his services
and, therefore, an official employment contract would not be signed.
Consequently, the pre-contract was also considered as terminated.
7.
The DRC judge further noted that, on the one hand, the Claimant claims that, the
Respondent unilaterally and without just cause terminated the pre-contract and
refused to offer him an official employment contract, although he had successfully
completed all medical exams, as stipulated in par. 3 of the pre-contract.
8.
In continuation, the DRC judge took note of the fact that the Claimant deems that,
although an official employment contract was never concluded, the pre-contract
was duly and uncontestably signed by both parties and shall therefore be
considered as a binding contract, establishing inter alia the obligation of the
Respondent to pay the Claimant a monthly remuneration of USD 10,000.
9.
As a consequence, the Claimant requests from the Respondent the payment of the
total amount of USD 55,000, i.e. USD 50,000 as compensation for the club’s
unilateral breach of contract without just cause, corresponding to his monthly
salaries for the entire duration of the pre-contract, plus interests of 5% p.a., and
USD 5,000 as legal fees. Furthermore, the player requests that sporting sanctions
should be applied to the club until the total debt towards him has been acquitted.
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10. The DRC judge equally noted that the Respondent, on the other hand, states that
the pre-contract is of interim nature and was signed exclusively with the purpose of
enabling the Claimant to go to country C and make tests with the Respondent. In
addition, the Respondent argues that, because of the unsatisfactory performance of
the player on the field, it had no interest in concluding a permanent contract with
him. Therefore, the Respondent rejects the Claimant’s request as well as to pay him
any type of compensation.
11. Having established the aforementioned, the DRC judge deemed that the underlying
issue in this dispute, considering the claim of the player and the allegations of the
club, was to determine whether the parties were contractually bound, i.e. whether
the pre-contract could be considered as a valid and binding contract, producing all
due legal effects.
12. In this respect, the DRC judge deemed it crucial to examine the aforementioned
document and, in this respect, began by recalling the wording of par. 3 and 4 of
said pre-contract.
13. Firstly, the DRC judge took into account that par. 3 of the pre-contract states that
“D via video, already recognized the personal football ability of J, so D exempted
trail for J. The validity of this pre-contract will be subjected to the passing of
medical check on the player. If the player failed to pass the medical check when he
arrives in country C, this pre-contract will be voided automatically”.
14. The DRC judge further took note of the wording of par. 4 of the pre-contract,
which establishes that “the pre-contract is temporarily agreement, an official
employment contract will be signed when the player arrives in country C and passes
the medical check”.
15. At this point, the DRC judge deemed it appropriate to equally remind the parties of
the wording of art. 18 par. 4 of the Regulations which stipulates that “the validity
of a contract may not be made subject to a positive medical examination and/or the
granting of a work permit”.
16. Based on the clear wording of the aforementioned article of the Regulations, the
DRC judged was eager to emphasize that par. 3 and 4 of said pre-contract are to be
considered as ambiguous and its application as arbitrary, since they lead to an
unacceptable result based on non-objective criteria, which entitles the Respondent
to unilaterally terminate the contract depending on the positive results of a medical
examination carried out after the signature of the contract. Therefore, the DRC
judge concluded that such clause inserted in an employment contract could not be
considered as valid and pointed out that the lack of objective criteria by the
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application of the relevant rule would lead to an unjustified disadvantage of the
Claimant’s financial rights and to the destabilization of a contractual relationship
concluded in good faith by both parties.
17. Notwithstanding, the DRC judge was equally eager to stress that the pre-contract,
according to the explicit wording of its par. 4, is a temporary agreement and that
such condition was known to the Claimant by the time of its signature. By having
agreed to sign the pre-contract, the player also accepted the condition of its
provisory nature and of its possible, but not necessary, conversion into a permanent
employment relationship with the Respondent, in case certain pre-requisites should
be fulfilled.
18. Furthermore, the DRC judge pointed out that the pre-contract was valid as from 1
February 2011 until 30 June 2011, for a period of five months, and was orally
terminated by the Respondent on 13 January 2011, i.e. even before it would have
come into force.
19. In this context, the DRC judge also took note of the fact that, on 1 February 2011,
the player found new employment with the club Z having signed an employment
contract valid as from 4 February 2011 until 30 November 2011. In this respect, the
DRC judge observed that the new employment contract between the player and Z
was signed only 19 days after the Claimant had been informed of the
discontinuance of his employment relationship with the Respondent, and on the
same date where the pre-contract with D would have come into force, had it not
been previously terminated.
20. At this point, the DRC judge deemed it appropriate to remind the parties of the
basic elements of a 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 judge 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.
21. Bearing in mind the aforementioned principles as well as the particular
circumstances of the present case, the DRC judge observed that neither the
Respondent nor the Claimant have been able to prove their legitimate intention to
create legal relations with their counterparties.
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22. On the one hand, the DRC judge pointed out that the Respondent never offered
the Claimant an employment contract of permanent nature and that, even before
the pre-contract could come into force, it was terminated by the club. On the other
hand, the DRC judge also observed that the Claimant has also not been able to
prove his interest in establishing a contractual relationship with the Respondent,
since a few days after the termination of the pre-contract and on the very day the
latter was supposed to come into force, he entered a new employment relationship
with another club.
23. In view of the aforementioned, the DRC judge concluded that the essential
elements of the contract, in particular the willingness to create a legally binding
agreement and establish legal relations to a counterparty, were not present in the
case at hand and, therefore, neither can the pre-contract be considered as binding
nor can the Respondent be considered obliged to engage the Claimant on a
permanent basis, by offering him an official contract.
24. Moreover and taking into account the fact that the Claimant entered a new
employment contract on the very date on which the pre-contract would have come
into force, the DRC judge deemed that the termination of the pre-contract and the
fact that a permanent contract was not offered by the Respondent did not produce
harmful consequences to the player’s career or to his labour rights.
25. Therefore, the DRC judge concluded that the pre-contract was of provisory nature
and did not even enter into force, since it was terminated on 13 January 2011, i.e.
18 days before the beginning of its term. Furthermore, the DRC judge established
that the Respondent was not obliged to conclude a permanent employment
contract with the Claimant and that by no means such an obligation, clearly
contrary to the principle of contractual freedom, could derive from the precontract.
26. Therefore, the DRC judge deemed that, under the particular circumstances of the
case at hand, the issue of whether the pre-contract was terminated with or without
just cause does not have to be raised, since the agreement at stake never became
binding.
27. In view of all the aforementioned, the DRC judge concluded that the Claimant was
not entitled to receive from the Respondent any compensation for breach of
contract.
28. Consequently, the claim of the Claimant for the imposition of sporting sanctions on
the Respondent was also rejected by the DRC judge.
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29. Finally, the DRC judge held that the Claimant’s claim pertaining to legal costs is
rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s respective longstanding jurisprudence.
III. Decision of the DRC judge
The claim of the Claimant, J, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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
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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
Jérôme Valcke
Secretary General
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