Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 October 2018,
in the following composition:
Geoff Thom ps on (England), Deputy Chairman
Muzam m il Bin Moham ed (S ingapore), member
Joaquim Ev angelis ta (Portugal), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 28 June 2017, the Player of Country B, Player A (hereinafter : the Claimant),
received, via his agent a contract proposal (hereinafter: the proposal), signed by the
Club of Country D, Club C (hereinafter: the Respondent).
2.
In accordance with the proposal, the Respondent offered the following:
a “2 years contract”;
EUR 5,000 net per month;
bonuses ”for winning the Cup of Country D”, “for qualifying in Play off”, and
“for winning the Championship of Country D”.
3.
Moreover, according to the proposal “the [Claimant] is free if the team is relegated
from the top Division of the League of Country D”.
4.
According to the documentation on file, the proposal was stamped and signed by the
General Manager of the Respondent and reads “We are waiting for your answer”.
5.
On the same day, the Claimant, via his agent, submitted a document to the Respondent
titled “COUNTER-PROPOSITION”(hereinafter: the counterproposal).
6.
The counterproposal reads as follows:
“Dear Sir, I would like to thank you for the contract offer of today regarding Player A
and I am writing to officially communicate our counter-proposition for a work contract
of 2 years with the following conditions:
7.
1st year net of tax salary of EUR 5,000 (2017-2018)
2nd year net of tax salary of EUR 6,000 (2018-2019)
Transfer clause of EUR 300,000
Apartment paid by the club
Car paid by the club”
On 7 July 2017, the Claimant, via his agent, sent an email to the Respondent, which
reads as follows: “Please find enclosed the work contract countersigned by the
[Claimant] Mr Player A. Please arrange the registration and send us the plane tickets. If
you have prepared a more detailed version of the work contract, please feel free to
send it so we can already have a look”.
Player A, Country B/ Club C, Country D
2/7
8.
According to the documentation on file, the abovementioned email enclosed a signed
version of the proposal by the Claimant.
9.
On 17 July 2017, the Claimant put the Respondent in default requesting that the
Respondent “take the necessary actions to proceed to the invitation / registration of
[The Claimant] within 48 hours”. The Claimant argued that since the proposal contains
the following elements ”the parties and their role, the duration of the employment
relationship; the remuneration and the signature of both parties”, it is a “valid and
binding work contract”.
10.
On 23 August 2017, the Claimant put the Respondent in default a second time. The
Claimant argued that the Respondent never complied with his first notice and
informed the Respondent that he had signed an employment contract (hereinafter: the
new contract) with the Club of Country E, Club F, “for a monthly salary of 1,000
starting from 27 July 2017 and ending on the 31 May 2018”. The Claimant requested
that the Respondent pay him within 10 days, “EUR 4,500 for the month of July
corresponding to the difference between the contract breached and his current salary
in Country E”, stating that otherwise he would lodge a claim in front of FIFA.
11.
On 22 February 2018, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the following:
“to establish that the Parties had signed a valid and binding work contract and that
the Respondent has been in breach of the said contract and is the only party causing
the non-performance of the work contract”;
that the Respondent is ordered to pay the following:
12.
EUR 120,000 corresponding to 24 monthly salaries of EUR 5,000, “from which the
current contract’ salary of 500 can be deducted until May 2018”,
EUR 30,000 as “additional compensation” corresponding to 6 monthly salaries, in
application of art. 337c para. 3 of the “Code des Obligations”,
Plus 5% interest on the whole amount “due from the time of the contract breach
(7 July 2017)”.
In his claim, the Claimant explained having received the proposal of the Respondent on
28 June 2017 and submitting his counterproposal to it on the same day. In this regard,
the Claimant held that since the Respondent did not reply to his counterproposal, he
assumed that “the [Respondent] had no intention to raise their offer” and therefore,
on 7 July 2017 “he decided through his agent to agree on the contract offer initially
signed by the [Respondent]”, and sent it a signed version of the proposal.
Player A, Country B/ Club C, Country D
3/7
13.
The Claimant claimed that by signing it and sending it back to the Respondent 10 days
after the proposal was received, the Claimant had made the proposal binding and valid
as an employment contract. Furthermore, the Claimant argued that according to art. 5
para. 1,2 &3 of the Swiss Code of Obligations “an employment contract sent without
any deadline clearly engages the [Respondent] until an acceptance or refusal is
formulated by the [Claimant]”.
14.
Moreover, the Claimant argued that in application of art. 337c para. 3 of the Swiss
Code of Obligations, the amount of compensation due to him should be increased as a
consequence of “specificity of sport”.
15.
Finally, the Claimant clarified that in the absence of an answer from the Respondent,
he signed a contract with the Club of Country E, Club F, valid as from 27 July 2017 until
31 May 2018.
16.
Despite being asked to do so, the Respondent did not reply to the claim of the
Claimant.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 22 February 2018.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 of the Procedural Rules, edition 2018).
2.
In this respect, the sub-committee was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 8 October 2018, by means of which the
parties were informed of the composition of the sub-committee, the member Tomislav
Kasalo refrained from participating in the deliberations in the case at hand due to
professional circumstances. In order to comply with the prerequisite of equal
representation of club and player representatives, also the member Stephano La Porta
refrained from participating and thus the sub-committee adjudicated the case in
presence of three members.
3.
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 par. 2 in conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2018), 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 Player of Country B and a Club of Country D.
Player A, Country B/ Club C, Country D
4/7
4.
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 2018),
and considering that the present claim was lodged on 22 February 2018, the 2018
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
5.
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 started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
6.
In this regard, the Chamber established that the present dispute revolves around the
question as to whether or not an employment relationship had come to exist between
the Claimant and the Respondent. Indeed, the Claimant for his part, express the view
that the proposal had been signed by both parties and should thus be considered as a
final and binding agreement between the Respondent and him. Furthermore, the
Claimant insisted on the fact that the proposal he received was signed by the
Respondent and that seeing that the Respondent never replied to his counter proposal,
he signed the initial proposal and sent it back to the Respondent, making it binding
and valid as an employment contract. Therefore, the Claimant claimed that he should
be compensated for the alleged breach of the relevant contract by the Respondent.
7.
Furthermore, the DRC noted that the Respondent had been given the opportunity to
reply to the claim submitted by the Claimant, but that the Respondent had failed to
present its response in this respect. In this way, the DRC deemed that the Respondent
renounced to its right of defense.
8.
As a consequence of the preceding consideration, the Chamber established that in
accordance with art. 9 par. 3 of the Procedural Rules, the Chamber should take a
decision upon the basis of the documents on file.
9.
On account of the above, the DRC observed that on 28 June 2017, the Claimant had
received a signed proposal via email from the Respondent, according to which the
Claimant would be entitled to 2 years contract with a monthly salary of EUR 5,000 and
various bonuses.
10.
The DRC further observed that on the same day, the Claimant sent a counterproposal
to the Respondent amending the terms of the proposal. In accordance with the
counterproposal, the Claimant requested to receive a monthly remuneration of EUR
5,000 for the first season and of EUR 6,000 for the second season, plus a transfer clause
of EUR 300,000, as well as an apartment and a car paid by the club.
Player A, Country B/ Club C, Country D
5/7
11.
The Chamber took note that in the absence of a reply from the Respondent to his
counterproposal, the Claimant sent to the Respondent the original proposal that he
signed. Moreover, the Chamber observed that in the absence of a reply to the signed
proposal, the Claimant signed an employment contract with his new club, the Club of
Country E, Club F, on 27 July 2017.
12.
Taking into account all of the above, the Chamber was of the opinion that by sending a
counter proposal to the Respondent and modifying the content of the proposal
explicitly requesting several other benefits, the Claimant had clearly rejected the
proposal of the Respondent. The DRC was of the unanimous opinion that an offer
regarding an employment contract can only be accepted in full and not part of it only.
As such, the DRC was eager to underline that the Claimant cannot claim rights under a
proposal he rejected first. In particular, the DRC deemed that the parties never agreed
on the same terms of the proposal at the same time and as such, the parties were not
bound by an employment contract.
13.
Consequently, the Dispute Resolution Chamber came to the conclusion that the
Claimant and the Respondent were not bound by an employment contract and that no
breach of contract had been committed by the Respondent.
14.
In conclusion, the Chamber decided that, in view if the absence of a breach of contract
by the Respondent, the claim of the Claimant clearly lacks grounds and thus that he is
not entitled to any compensation in accordance with art. 17 par. 1 of the Regulations.
Therefore, the Chamber decided that the claim of the Claimant must be rejected in its
entirety.
15.
In the light of all of the above, the Dispute Resolution Chamber decided that it must
reject the claim put forward by the Claimant in its entirety.
Player A, Country B/ Club C, Country D
6/7
III.
Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 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:
Emilio García Silvero
Chief Legal Officer
Encl.: CAS directives
Player A, Country B/ Club C, Country D
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