Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 October 2012,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
David Mayebi (Cameroon), member
Damir Vrbanovic (Croatia), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player,
Player V, from country S
as Claimant
against the club,
Club A, from country I
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
Player V, from country S (hereinafter: Claimant or player) and Club A, from country
I (hereinafter: Respondent or club), signed a document referred to as “precontract” valid as from the “date of signature until 1st July 2012”. According to the
player said “pre-contract” was concluded on 22 July 2011.
2.
The pre-contract reads as follows: “This is a pre-contract for employment of Player
V as football player hereinafter the player in Club A hereinafter the club. Both
parties agree on major points of the contract. The details will be signed later in
country I (…)
The club agrees on
Duration of the contract is for one season from date of signature until 1 st
July 2012 (…)
Signing fee – 50,000 USD
Salary for the season 100 000 USD (…)
The player agrees on
Follow club regulations and disciplinary code of conduct
Do his bests on and off the pitch to help the team”
3.
Moreover, the pre-contract states that it “will be valid after signature of both
parties and when player passes the medical test routines successfully”.
4.
On 7 September 2011, the player lodged a claim before FIFA against the club
maintaining that the latter had not respected the agreed contractual relationship.
5.
According to the player, in early July 2011, he had agreed on a “pre-contract” with
the club which was to become binding upon the parties signature. Furthermore,
the player indicates that the club, on 23 July 2011, had provided him with a flight
ticket from country S to country I, via country T. However, upon his arrival in
country I, he was apparently refused entry for not being in possession of the
required visa. The country I authorities subsequently proceeded with the player´s
immediate deportation.
6.
On 9 August 2011, upon his enforced return home, and after having tried to call
the club on several occasions, the player formally notified the club of the course of
events, whilst requesting the latter to take on all necessary actions and
arrangements for his feasible entry in country I.
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7.
On 24 August 2011, astonished by the club´s lack of response and interest, the
player through his legal counsel, formally notified the club once again, requesting
“on the one hand, all the documents useful and necessary of which a visa ad hoc
allowing Player V to enter without difficulty to country I; In addition, by email, a
complete data of a fly ticket reserved to the profit to Player V from country S to
country I”. However, the club once again, failed to provide any kind of explanation
or response.
8.
As a result of the club´s apparent early contract termination without just cause, the
player requested the following:
USD 50,000 corresponding to the signing on fee;
USD 100,000 corresponding to his contractually stipulated salary;
Sporting sanctions to be imposed on the club.
9.
In reply, the club asserts that the pre-contract is “frustrated” and claims that it is
not obliged to pay any remedies for non-performance, as no subsequent contract
was ever signed between the parties.
10.
According to the club, and after an in-depth investigation in the matter at hand, it
was apparently discovered that the pre-contract was not signed by the club´s
signatories but by the club´s head coach instead, using the club´s letterhead;
subsequently implying, that the persons in charge of providing the “necessary visa
ad hoc allowing the player´s entry to country I”, had not been informed of the
player´s arrival.
11.
In this respect, and in reference to the club´s “notice of decisions” dated 5 April
2010 which reads as follows: “The signature of all papers, valuable and binding
deeds including checks and drafts are valid with the signature of the chairman of
the board of directors or managing director and permanent signature or financial
deputy of the institute (…), Together with the seal of the institute, and ordinary
papers and correspondences are valid with the signature of managing director
accompanied with seal of the institute”, the club sustains that the signature of the
club´s head coach does in no manner whatsoever demonstrate the club´s
expression of intent and thus should have no legal effect; the conclusion of a
contract requires mutual expression of intent by the parties.
12.
Notwithstanding the above and presuming that the club´s head coach had indeed
been authorized to conclude a contract on behalf the club, the club is of the firm
belief that the pre-contract presented by the player would still not be binding as
“although the head coach has stated all the essential terms in the context of the
pre-contract, the conception of the context demonstrates that the offeror only
intend to illustrate the circumstances and conditions for the offeree nothing else
more, he has expressed his intention for a conditional or suspended contract not
for an absolute conveyance he has declared that the pre-contract will be valid after
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signature of the both parties and when player passes the medical test therefore
the head coach has expressed his intent to create legal relation after the player
would passes the medical test successfully”.
13.
In reaction, the player reaffirms his initial stance whilst emphasising that the precontract signed by the parties, contains all the “essentialia negotii” of an
employment contract i.e. duration, remuneration and parties’ signature. This is
further reinforced by the pre-contract clause which states that “Both parties agree
on major points of the contract; the details will be signed later in country I”.
14.
Moreover, and in reply to the club´s allegations that the pre-contract was signed by
a person with no legal authority, the player assures that the pre-contract was
signed on the club´s official paper, whilst underlining that it is the club who must
bear the consequences of the actions perpetrated by one of its members who has
allegedly exceeded his competence. The player deems to have acted in good faith
and to have been unaware that the person signing the pre-contract on the club´s
letterhead was apparently not authorized to do so.
15.
Furthermore, the player argues that the validity of a contract may not be made
subject to a successful medical examination and/or the granting of a work permit,
especially taking into account that upon his arrival in country I, due to the sole
negligence of the club, the former was allegedly deported back to his home
country, without having been given the opportunity to undergo a medical.
16.
In spite of having been invited by FIFA to do so, the club did not present any
further comments.
17.
Finally, in reply to FIFA’s request regarding the player’s employment situation as of
August 2011 until July 2012, the player indicated that on 10 February 2012, he
concluded an employment contract with the Club G, from country B, valid as from
the date of signature until 3 December 2012, in accordance with which he was
entitled to receive a monthly salary of currency of country R 27,500,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) 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
7 September 2011. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
par. 2 and 3 of the Procedural Rules).
Player V, from country S / Club A, from country I
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2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2010) 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 country S player and an country I club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2010), and considering that the present claim was lodged on 7 September
2011, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to
the substance of the matter at hand.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber acknowledged that the Claimant and the Respondent signed an
agreement on or about 22 July 2011, designated “pre-contract”, in accordance
with which the parties agreed “on major points of the contract. The details will be
signed later in country I (…)” and “that this pre-contract will be valid after
signature of both parties and when the player passes the medical test routines
successfully”.
5.
According to the “pre-contract”, the parties established, among other details, that
the employment would last for one season as from the date of signature until 1
July 2012 and that the Claimant would be entitled to receive, inter alia, a signingon fee of USD 50,000 and a salary of USD 100,000 for the duration of the contract.
The Claimant maintained that, in fact, an employment contract was entered into
and that, as such, the Respondent is to be held liable for its early termination by
having failed to execute the terms of the employment contract, including the
failure to pay the Claimant’s remuneration.
6.
In this respect, the members of the Chamber took note that on 23 July 2011, the
Claimant, after having been provided by the Respondent with a flight ticket to
country I, was refused entry by the countries authorities, for not being in
possession of the required visa. Moreover, the Chamber also acknowledged the
Claimant’s default notices dated 9 and 24 August 2011 addressed to the
Respondent by means of which the Claimant requested the Respondent to take all
necessary actions and arrangements for his feasible entry into the country.
7.
From the outset, the members of the Chamber highlighted that there does not
seem to be any disagreement between the parties as to the fact that the terms of
the agreement were not performed, including the non-payment of the
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remuneration established therein. The fundamental disagreement between the
Claimant and the Respondent – and the central issue to the present dispute – is
whether the “pre-contract” signed between the parties established a valid and
binding employment contract between the parties.
8.
The Chamber noted that according to the Respondent, as opposed to the Claimant,
no legally binding employment contract had come into effect between the parties.
The Respondent considered the pre-contract to be “frustrated” whilst claiming not
to be obliged to pay any remedies for non-performance.
9.
According to the Respondent, it was discovered, only after an in-depth
investigation, that the pre-contract was not signed by the club´s signatories but by
the club´s head coach instead, further stating that the conclusion of a contract
requires mutual consent of expression of intent by the parties; something clearly
missing in the matter at hand as the signature of the head coach does in no
manner whatsoever express the club´s expression of intent.
10.
Consequently, the Chamber, first and foremost, focused its attention on the
question as to whether a legally binding employment contract had been concluded
by and between the Claimant and the Respondent.
11.
In this regard, the Chamber recalled that in order for an employment contract to
be considered as valid and binding, apart from the signature of both the employer
and the employee, 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 and the remuneration. After a careful study of the “precontract” presented by the Claimant, the Chamber concluded that all such essential
elements were included in the pertinent document, in particular, the contract
contained i) the parties to the contract, ii) the Claimant’s remuneration in
exchange for his services to the club as a player, iii) the duration of the contract,
and iv) the signatures of both parties.
12.
With this established, the Chamber then reverted to the argument of the
Respondent relating to the fact that the “pre-contract” had been signed by a nonauthorized member of the club.
13.
In this regard, the Chamber decided that such argumentation of the Respondent
can, in accordance with the principle of good faith, not be upheld. The Chamber
deemed that, at the moment of concluding the contract, the Claimant was in good
faith to believe that the person signing the relevant contract on behalf of the
Respondent was indeed legally authorized to sign such document. Taking into
account that the relevant contract was drafted on an official paper bearing the
letterhead of the Respondent, the Chamber deemed that there was no reason for
the Claimant to question the legitimacy of the contract offered to him and could,
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in good faith, equally assume that the representative of the Respondent was in
fact authorized to sign the pertinent contract on behalf of the Respondent.
14.
On account of all of the above, the members of the Chamber concluded that by
having signed the “pre-contract”, a valid and legally binding employment contract
had been entered into by and between the Claimant and the Respondent.
15.
Having established that a valid and legally binding employment contract had been
in force between the Claimant and the Respondent, the Chamber went on to
analyse as to whether such contract had been breached and, in the affirmative,
which party is to be held liable for breach of contract.
16.
To this end, the Chamber was eager to emphasise that, given that the Respondent
did not contest that it had not performed any of its obligations under the
employment contract and that, in fact, it merely disputed the legal validity of such
contract, the conclusion of the Chamber that a valid and legally binding
employment contract had been entered into, unavoidably leads to the decision
that such contract was breached by the Respondent. In fact, the Chamber took into
account that, according to the Claimant, the Respondent had failed to provide him
with the relevant entry visa whilst subsequently also failing to provide him with
any of the amounts stipulated in the contract.
17.
In this respect, for the sake of completeness, the members of the Chamber referred
to art. 18. par. 4 of the Regulations, which clearly indicates that the validity of the
contract may not be made subject to a successful medical examination and/or the
grant of the work permit.
18.
Furthermore, the Chamber highlighted the basic principle of labour law, according
to which it is the obligation of an employer to take all the necessary administrative
measures, such as applying for a visa and/or work permit, in order for the employee
to be in a position to render his services to the employer. Consequently, the club
was in breach of its obligations when it failed to provide the Claimant with the
required visa, which would have enabled him to enter the country and thus fulfil
his contractual duties towards the Respondent.
19.
On account of the above circumstances, the Chamber concluded that the
Respondent had in fact failed to respect the mutually agreed contractual
obligations and had therefore breached the contract without just cause.
20.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber focused
its attention on the consequences of such termination. Taking into consideration
art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled
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to receive from the Respondent an amount of money as compensation for breach
of contract.
21.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the Chamber 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.
22.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. In this regard, the Chamber established that no such compensation clause
was included in the employment contract at the basis of the matter at stake.
23.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract until 1
July 2012 and concluded that the Claimant would have received a total
remuneration of USD 150,000 had the contract been executed until its expiry date.
24.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount
of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
25.
Indeed, on 10 February 2012, the Claimant found employment with Club G, from
country R. In accordance with the pertinent employment contract, which has been
made available by the Claimant, valid until 3 December 2012, the Claimant was
entitled to receive a monthly salary of currency of country R 27,500,000.
Consequently, the Chamber established that the value of the new employment
contract concluded between the Claimant and Club G for the period as from
February 2012 until and including June 2012 amounted to currency of country B
137,500,000.
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26.
In accordance with the constant practice of the Dispute Resolution Chamber and
the general obligation of the player to mitigate his damages, such remuneration
under the new employment contract shall be taken into account in the calculation
of the amount of compensation for breach of contract. What is more, the Chamber
also considered it important to point out that, although the employment contract
was fully valid and enforceable, the execution of the contract actually never
started, an element which equally should be taken into consideration in the
calculation of the amount of compensation.
27.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC decided that the Respondent must pay
the Claimant the amount of USD 45,000 which was to be considered a reasonable
and justified amount of compensation for breach of contract without just cause in
the matter at hand.
28.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim filed by the Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player V, is partially accepted.
2.
The Respondent, Club A, has to pay to the Claimant the amount of USD 45,000
within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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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:
Jérôme Valcke
Secretary General
Encl: CAS directives
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