Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player O, from country B
as Claimant
against the club,
Club V, from country R
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 29 August 2011, Player O, from country B (hereinafter: the Claimant), and
Club V, from country R (hereinafter: the Respondent), entered into an
employment contract and a “Financial Appendix to the Agreement”, valid
from 7 September 2011 until 30 June 2014.
2.
According to the contract, the Respondent agreed to pay the Claimant, inter
alia, the following:
3.
-
between 7 September 2011 and 30 June 2012, an amount of EUR 220,000,
to be paid in one instalment of EUR 40,000 upon passing the relevant
medical exams and the remaining amount in monthly instalments of EUR
18,000;
-
between 1 July 2012 and 30 June 2014, salary in the amount of EUR
480,000, to be paid in 24 equal monthly instalments of EUR 20,000.
On 9 November 2011, the Claimant lodged a claim against the Respondent in
front of FIFA alleging that, as a consequence of the Respondent’s contractual
breaches, he was forced to unilaterally terminate the contract with just cause.
Therefore, the Claimant requested FIFA to:
- establish that the contract was valid and binding to both parties;
- establish that the Respondent has unlawfully breached the contract
during the protected period;
- establish that he unilaterally terminated the contract with just cause;
- impose a sporting sanction on the Respondent consisting of a ban from
registering players for two registration periods; and
- order the Respondent to pay compensation in the amount of EUR
1,000,000; EUR 700,000 corresponding to all the salaries he was entitled
to until the end of the contract and EUR 300,000 for image and moral
damages.
4.
According to the Claimant, soon after his arrival to the Respondent, the latter
informed him that due to a transfer ban imposed by FIFA, it was prevented
from registering him with the national association and, thus, prevented from
fielding him in official competitions.
5.
In continuation, the Claimant asserted that, on 24 September 2011, he was
informed by the Respondent’s general manager that he had to leave the
Respondent. In addition, the Claimant stated that he was provided by the
Player O, from country B / Club V, country R
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Respondent with flight tickets in order to immediately return to country P. The
Claimant sustained that, therefore, he was forced to leave the Respondent
against his will.
6.
Following the above, the Claimant sent a letter dated 28 September 2011 to
the Respondent asserting that despite the existence of a valid employment
contract with the Respondent, the latter had forced his departure to country P
without any justification.
7.
On 5 October 2011, the Respondent replied to the Claimant stating that FIFA
had banned it from registering new players. In said letter the Respondent
sustained that, in its view, the ban imposed by FIFA had already expired on 5
September 2011, but that FIFA had a different position and informed the
Respondent that the ban would only be lifted on 25 January 2012.
8.
On 6 October 2011, the Claimant replied to the Respondent informing it that,
unless he was re-integrated in the team and all outstanding payments were
performed, he would be forced to unilaterally terminate the contract.
9.
The Respondent replied to the Claimant on 7 October 2011 stating that it
considered the contract to have been concluded “under an essential error”
and, thus, to be null and void. The Respondent stated that it had signed the
contract under the assumption that the transfer ban which had been imposed
by FIFA would end on 5 September 2011 and that both the Claimant and the
agents involved in the transfer were aware of this fact.
10.
By letter dated 12 October 2011, the Claimant terminated his contract
unilaterally invoking just cause.
11.
The Claimant considered that the Respondent had violated the contract by i)
failing to pay his remuneration, ii) failing to register him in order to
participate in official matches, iii) failing to recognize the validity of the
employment contract and iv) by forcing him to leave country R. The Claimant
pointed out that the unilateral termination was preceded by 2 letters of notice
and that, as such, the Respondent had been placed in contractual default
before the termination, in accordance with FIFA and CAS’ jurisprudence.
12.
On 26 January 2012, the Respondent presented its position to the claim of the
Claimant asserting that, when signing the contract, the Claimant was fully
aware that:
Player O, from country B / Club V, country R
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a) the Respondent was banned by FIFA from registering players until 5
September 2011 (last day of the respective registration period in country R),
and
b) he could only be registered after such date, pursuant to the exception
provided by article 6 par. 1 of the FIFA Regulations on the Status and
Transfer of Players.
13.
Thus, according to the Respondent, all parties were in agreement that the
previous contractual situation of the Claimant would enable the Respondent
to register him outside of the registration period in country R, pursuant to art.
6 par. 1 of the FIFA Regulations.
14.
In continuation, the Respondent sustained that it signed the contract with the
Claimant “in full respect of the situation which it believed was the one existing
at the moment the contract was signed” and that it was fully determined to
execute the contract at that time.
15.
Hence, the Respondent sustained that it signed the contract under the
assumption that the transfer ban imposed by FIFA would not prevent it from
registering the Claimant and that it concluded the contract “under an essential
error”. This, according to the Respondent, rendered the contract null and void.
16.
The Respondent reaffirmed that the Claimant was aware of the situation
regarding the transfer ban and that, as such, he is acting in bad faith when
submitting his claim.
17.
According to the information provided by the Claimant, he remained
unemployed until 31 December 2011, date on which he signed an employment
contract with Club F, country P providing for a monthly salary of EUR 10,350.
The Claimant further stated that said contract was terminated by mutual
consent on 1 March 2012, and a subsequent contract was signed with the Club
C, from country B on 20 March 2012, valid until 31 December 2013, providing
for a monthly salary of currency of country B 5,000.
18.
On 1 February 2013, the Claimant was asked for an update of his contractual
situation after which the Claimant, on 7 February 2013, informed FIFA that he
remained contractually bound with Club C.
19.
However, according to the information contained in the Transfer Matching
System (TMS), Club A, country S engaged the Claimant on loan from Club C as
from 24 January 2013 until 30 June 2013. The relevant employment contract
with Club A was signed on 25 January 2013 and indicated that the Claimant
Player O, from country B / Club V, country R
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would receive a signing-on fee of USD 150,000 as well as a monthly salary of
USD 70,000.
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, the Chamber took note that the present matter was
submitted to FIFA on 9 November 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 of the 2008 and 2012 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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2012), 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 B player and a country R club.
3.
Furthermore, 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, the Chamber confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2010 and 2012), and considering that the claim was lodged on 9 November
2011, the 2010 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the
documentation contained in the file. 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.
First of all, the members of the Chamber acknowledged that, on 29 August
2011, the Claimant and the Respondent had concluded an employment
contract valid as from 7 September 2011 until 30 June 2014.
Player O, from country B / Club V, country R
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6.
The Chamber further observed that the Claimant unilaterally terminated the
contract on 12 October 2011 invoking just cause, and that he subsequently
lodged a claim in front of FIFA against the Respondent seeking payment of the
amount of EUR 1,000,000, corresponding to the complete value of the contract
as well as to image and moral damages. In this respect, the Claimant indicated
that the Respondent had i) not registered him with the country R Football
Federation, ii) had not paid him any of his salaries, and iii) had forced him to
leave the club against his will.
7.
Furthermore, the Chamber observed that the Respondent, for its part, was of
the opinion that the contract was to be considered null and void, since it was
concluded “under an essential error”. More specifically, the Respondent stated
that, following a transfer ban imposed by FIFA which it believed had ended on
5 September 2011, it was under the assumption that it could already register
players again as of that date. However, FIFA had informed it that it could only
register players as of 25 January 2012, date on which the transfer ban would
be lifted.
8.
The Respondent explained that the Claimant was fully aware of the situation
of the Respondent and that the Claimant acts in bad faith by lodging a claim
in front of FIFA.
9.
Having established the aforementioned, the Chamber observed that the
fundamental issue in the present dispute, considering the claim of the
Claimant and the allegations of the Respondent, is to determine whether the
fact that the Respondent was under the assumption that it could register
players again, while it was not, rendered the contract null and void.
10.
In this respect, the Chamber recalled that the parties had signed the
employment contract on 29 August 2011, but that the Respondent never
registered the Claimant with the country R Football Federation due to the still
pending transfer ban imposed on the Respondent by FIFA.
11.
In this context, the Chamber considered it relevant to recall its jurisprudence in
accordance with which the validity of an employment contract cannot be
made conditional upon the execution of (administrative) formalities, such as,
but not limited to, the registration procedure in connection with the
international transfer of a player, which are of the sole responsibility of a club
and on which a player has no influence. In this regard, the DRC pointed out
that it is the responsibility of the new club to ensure that the player is properly
registered with his new club in order to be able to provide it with his services.
Player O, from country B / Club V, country R
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12.
In view of the above, the Chamber was of the unanimous opinion that it was
the responsibility of the Respondent to be aware whether or not it could
already register players again. Hence, the argument of the Respondent that
the contract was concluded “under an essential error” and that therefore the
contract should be considered null and void, must be rejected by this Chamber
since such “error” was fully attributable to the Respondent. As a consequence,
the Chamber considered that the contract concluded between the parties was
fully valid and thus the Respondent had no valid reason to refuse the
Claimant’s services.
13.
Thus, the Chamber established that the Claimant had terminated the
employment contract with just cause on 12 October 2011 and that,
consequently, the Respondent is to be held liable for the early termination of
the employment contact.
14.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the employment contract
with just cause by the Claimant.
15.
In this context, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Respondent compensation for breach of contract. The Chamber outlined that,
in accordance with said provision, 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 whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
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.
Subsequently and prior to assessing the relevant criteria in determining the
amount of compensation due to the Claimant by the Respondent, the
Player O, from country B / Club V, country R
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Chamber recalled that the Claimant is claiming, amongst others, the amount
of EUR 700,000 as compensation for breach of contract, corresponding to the
complete value of the employment contract.
18.
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
and concluded that the Claimant would indeed have received a total
remuneration of EUR 700,000 had the contract been executed until its expiry
date.
19.
In continuation, the Chamber remarked that the Claimant had found new
employment with Club F, from country P as from January 2012 until May 2012,
which was terminated in March 2012, establishing a monthly salary of EUR
10,350 and thus a total remuneration of EUR 20,700. Equally, a subsequent
contract was signed with Club C, from country B, on 20 March 2012 valid until
31 December 2013 providing for a monthly salary of currency of country B
5,000, which corresponds to approximately EUR 2,079 per month and, thus, for
the period March 2012 until January 2013, to the amount of EUR 22,869.
20.
What is more, and although the Claimant asserted that the had not entered
into any other employment relationship, the Chamber noted that it could be
established from the information entered into TMS that the Claimant had
signed a contract with Club A, country S, for the period as from 24 January
2013 until 30 June 2013, in accordance with which he would receive the total
amount of USD 500,000, which corresponds to approximately EUR 375,000.
Finally, after 30 June 2013, the Claimant would return to Club C, where his
contract would run for another 6 months, earning the amount of
approximately EUR 12,474.
21.
Consequently, in accordance with the constant practice of the Dispute
Resolution Chamber and the general obligation of the Claimant to mitigate his
damages, the remuneration under all three new employment contracts shall
be taken into account in the calculation of the amount of compensation for
breach of contract.
22.
In continuation, the Chamber also considered it important to point out that,
although the employment contract was fully valid and enforceable, the
execution of the contract had actually never started, an element which should
equally be taken into consideration in the calculation of the amount of
compensation.
Player O, from country B / Club V, country R
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23.
As a result, 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 the amount of EUR 90,000 to the Claimant as compensation for
breach of contract, which is considered by the Chamber to be a reasonable and
justified amount as compensation for breach of contract in the present matter.
24.
Furthermore, and in relation to the Claimant’s request for the amount of EUR
300,000 as moral damages, which was not specified by the Claimant, the
Chamber agreed that such claim is to be rejected due to a lack of legal basis.
25.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player O, is partially accepted.
2.
The Respondent, Club V, has to pay to the Claimant the amount of EUR 90,000,
within 30 days as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant in accordance with the
above-mentioned number 2. is not paid by the Respondent 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 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.
Player O, from country B / Club V, country R
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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
Player O, from country B / Club V, country R
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