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 M, from country I
as Claimant
against the club,
Club N, from country S
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 22 December 2008, Player M, from country I (hereinafter: Claimant or player), and
Club N, from country S (hereinafter: Respondent or club), concluded an employment
contract.
2.
The employment contract contained the following clauses:
1) “The duration of this contract is 18 months starting from 1st January 2009 to the
end of country S´s football season”.
2) “In consideration, the Club will pay to the Player a total amount of US$ 1000000
(One Million American Dollars) for the stipulated period. This amount will be
paid as follows:
a) US$ 150.000 (One Hundred Fifty Thousand American Dollars) are to be
paid to the Player after passing the medical examination, receiving the
International Transfer Certificate and signing the official contract.
b) US$ 350.000 (Three Hundred Fifty Thousand American Dollars) are to be
paid to the Club of the Player after signing the contract.
c) US$ 500.000 (Five Hundred Thousand American Dollars) represents the
total of his monthly salaries for the stipulated period”.
3.
On 23 March 2010, the player lodged a claim before FIFA against the club maintaining
that the latter had not respected the agreed contractual relationship.
4.
The player stressed that by letter dated 21 December 2008, the club´s chairman sent
the employment contract, detailing the agreed terms to his agent and that, according
to the contents of the letter, the contract was “binding, final and irrevocable to all
parties after your signature. Once the contract is signed, the player becomes
committed to all the provisions mentioned therein and shall take all action to embark
on his job immediately”.
5.
After the signing of the contract and during the month of January 2009, the agent was
apparently in continuous contact with the club´s chairman whom kept informing him
that the player´s visa was to be issued shortly. According to the player, his agent even
travelled to country S as to ensure his smooth transition to the country. However, upon
his arrival, the agent was informed by the club´s officials that, for political reasons, the
player would be unable to obtain a visa at that time. Nonetheless, the agent was
assured that measures would be taken to ensure that the player´s visa would be
granted by the summer of 2009 at the latest.
6.
On 21 January 2009, the club provided the agent of the player with a letter that stated
“Based on our contract with professional player M, we would like to confirm that we
have no objections to his playing – on loan basis – inside or outside the country I under
this contract. All the player´s activities in this regard must have the prior agreement of
Club N. Financial arrangements in all cases shall be made by Club N as well. This is an
Player M, from country N / Club N, from country S
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authorization to you in order to facilitate your work searching for clubs that wish to
contract the player on loan basis”.
7.
Furthermore, on the same day, the club provided the agent of the player with another
letter by means of which it agreed to pay the player through the agent as an
intermediary, a total sum of USD 250,000 as compensation for the purported delay in
the player´s move to the club until the summer. This payment was to be paid to the
player, via his agent, in two installments. However, and besides the agent´s apparent
requests, the club egregiously failed to make any payment.
8.
The player stressed that, during the summer of 2009, his agent was contacted by the
club´s chairman who informed the former that it would no longer be pursuing the
player´s visa application, whilst also stating that the club would not be making
payment of any contractual sums due to the player under the contract, as it firmly
believed that the club was not at fault; the player´s unsuccessful visa application was
due to political issues.
9.
In this respect, the player claimed that after having waited for over six months for the
issuance of his visa, which was now clearly not forthcoming, he was left with no other
alternative but to look for another club.
10.
To conclude, the player deemed that the club had flagrantly failed to honour its
obligations under the contract and averred that the contract was valid, final and
binding on the parties as:
- The contract contained the “essentiali negotii “of an employment contract;
- By the two letters dated 21 January 2009, the club clearly considered the player to
be contracted to it;
11.
Consequently, and as a result of the club´s failure to respect and honor the contractual
relationship, the player requested to be awarded the following:
a) USD 1,000,000 in relation to the loss of earnings minus any deductions considered
necessary, “together with interest calculated at the prevailing daily rate (from 1
January 2009 to the date of payment)”;
b) Compensation for damage done on his career and reputation;
12.
Furthermore, the player requested the club to pay all legal costs and expenses as well
as sporting sanctions to be imposed on the club.
13.
In its reply, the club acknowledged that in December 2008, they had started
negotiations with the agent which resulted in the signing of the player´s contract.
14.
Furthermore, the club recognized to have applied for the player´s entry visa, and
considers to have completed all the required procedures to recruit the player.
However, the visa application was rejected by the countries governmental authorities,
Player M, from country N / Club N, from country S
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and subsequently, the club maintains that it should not bear any legal consequences as
the matter at hand fell beyond the club´s scope of authority or control.
15.
Equally, and in reference to the player´s statement of claim, the club also sustains that
in order not to jeopardize the player´s career, he was granted permission to play in or
out of I.R. Iran for another club on a loan basis.
16.
In addition, the club maintains that the player violated the terms of his contract by
subsequently signing for another club, without its consent.
17.
Finally, the player informed FIFA that on 23 June 2009, he concluded an employment
contract with Club P, from country I, valid as from the date of signature, “for the
period of two competitive seasons (2009/2010 season and 2010/2011 season)” in
accordance with which he was entitled to receive currency of country I 2,500,000,000
(approx. USD 202,288) to be paid in the first year and currency of county I
3,000,000,000 (USD 242,745) to be paid in the second year.
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 23 March 2010.
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).
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 an
country I player and a country S 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 (editions 2009 and
2010), and considering that the present claim was lodged on 23 March 2010, the 2009
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 concluded an
employment contract on 22 December 2008 valid for “18 months starting from 1st
January 2009 to the end of the country S´s football season” and that the Claimant
Player M, from country N / Club N, from country S
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would be entitled to receive, for the duration of the contract, the total amount of USD
1,000,000.
5.
In this respect, the members of the Chamber took note that on 21 December 2008, the
Respondent provided the Claimant with a copy of the employment contract and a
letter which read as follows: “the contract was binding, final and irrevocable to all
parties after your signature. Once the contract is signed, the player becomes
committed to all the provisions mentioned therein and shall take all action to embark
on his job immediately”. Moreover, the Chamber also acknowledged the Respondent´s
letter dated 21 January 2009, addressed to the Claimant, by means of which the
Claimant was informed of the on-going bureaucratic problems regarding the
acquisition of his visa.
6.
From the outset, the members of the Chamber highlighted that there does not seem to
be any disagreement between the parties as to whether or not a valid contract was
concluded. The fundamental disagreement between the Claimant and the Respondent
– and the central issue in the present dispute – is whether the club´s failure to obtain
the player´s required visa, for apparent political reasons, can be understood as a valid
reason for the Respondent not to comply with its contractual obligations.
7.
The Chamber noted that according to the Respondent, it had effectively applied for
the player´s entry visa as well as completed all the required procedures for its effective
recruitment. However, after having insistently pursued the player´s visa application, it
was rejected by the countries governmental authorities. Having said this, the
Respondent deemed not to be at fault as the matter at hand fell beyond its scope of
authority or control.
8.
Consequently, and bearing in mind that the validity of the contract had, as such, not
been contested by the parties, the Chamber focused its attention on the question as to
whether the non-acquisition of the required visa application for reasons apparently
beyond the Respondent´s scope of authority and control, could be deemed as a valid
reason not to execute the employment contract concluded by the parties on 22
December 2008.
9.
In this respect, the members of the Chamber, first and foremost outlined that as soon
as an employment contract is signed between a club and a player, rights and
responsibilities ensue on both sides without being subject to any particular condition.
In this respect, the Chamber added that, as a general rule, it is the employer´s duty and
responsibility to act accordingly in order to obtain, if necessary, a work permit or a visa
for its employees to be able to legally enter a particular country.
10.
In continuation, the members of the Chamber referred to art. 18 par. 4 of the
Regulations, which stipulates, inter alia, that the validity of a contract may not be
subject to the grant of a work permit.
Player M, from country N / Club N, from country S
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11.
Equally, the Chamber referred to its well-established jurisprudence and emphasised
that the responsibility to obtain the necessary work permit or visa prior to the signing
of the employment contract or during its period of validity is incumbent on the club,
i.e. the Respondent.
12.
Hence, the Chamber came to the conclusion that the Respondent had failed to arrange
the necessary documents in order for the player to enter the country.
13.
On account of the above circumstances, the Chamber concluded that such conduct
constituted a breach of contract and, accordingly, decided that the Respondent was
responsible for the premature termination without just cause of the employment
contract entered into between the parties.
14.
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 to receive from the
Respondent an amount of money as compensation for breach of contract. In this
context, the Chamber wished to outline that although a valid contract was concluded
between the parties, such contract was in fact never executed.
15.
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.
16.
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.
17.
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 (i.e. 18
months as of 1 January 2009) and concluded that the Claimant would have received a
total remuneration of USD 1,000,000 had the contract been executed until its expiry
date.
Player M, from country N / Club N, from country S
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18.
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.
19.
Indeed, on 23 June 2009, the Chamber noted that the Claimant found employment
with Club P, from country I. In accordance with the pertinent employment contract,
which has been made available by the Claimant, valid as of the date of signature “for
the period of two consecutive seasons (2009/2010 season and 2010/2011 season)”, the
Claimant was entitled to receive currency of country I 2,500,000,000 (approx. USD
202,288) for the first season and currency of country I 3,000,000,000 for the second
season. Consequently, the Chamber established that the value of the new employment
contract concluded between the Claimant and Club P for the first season (i.e. 12
months) amounted to USD 202,288.
20.
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.
21.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
to the Claimant the amount of USD 270,000 plus 5% interest p.a. on said amount as of
25 October 2012, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
22.
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 M, is partially accepted.
Player M, from country N / Club N, from country S
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2.
The Respondent, Club N, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of USD 270,000 plus 5% interest p.a. as of 25
October 2012 until the date of effective payment.
3.
If the aforementioned sum plus interest is not paid within the stated time limit, the
present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
4.
Any further claim lodged 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.
*****
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 M, from country N / Club N, from country S
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