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), Chairman
S tefano La Porta (Italy ), member
Muzam m il Bin Moham ed (S ingapore), member
Tom is lav Kas alo (Croatia), 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
arisen between the parties
I.
Facts of the cas e
1.
According to the Player of Country B, Player A (hereinafter: the Claimant), he
and the Club of Country D, Club C (hereinafter: the Respondent), entered
into an employment relationship by signing an offer on 19 May 2016
(hereinafter referred to as: the alleged contract), valid “for the season
2016/2017”.
2.
According to the alleged contract, “the value of the contract for the season
2016/2017 is US$ 600000”. In addition, the alleged contract provided, inter
alia, that “all financial conditions will be applied after the [Claimant]
successfully passed the medical and technical tests upon his arrival to Country
D”.
3.
The alleged contract further stipulates that “the final conditions of the
contract and its final approval subject to executive board of [the
Respondent]” and that “this offer is valid for a period of 10 days Only”.
4.
By letter dated 1 August 2017, the Claimant informed the Respondent that
the year before, in August 2016, the latter had unilaterally terminated the
alleged contract without just cause and requested to be paid “a
compensation of half of the contractual value”, i.e. USD 300,000.
5.
On 18 May 2018, the Claimant lodged a claim against the Respondent in
front of FIFA, maintaining that the Respondent had terminated the alleged
contract without just cause and requesting to be awarded the total amount
of USD 300,000 as compensation, plus 5% interest p.a. “as of 13 August 2016
until the date of effective payment”.
6.
More specifically, the Claimant recalled that, back in May 2016, he had been
contacted by the Respondent and that, “after some talks”, on 19 May 2016
the latter presented him an offer which allegedly contained the essentialia
negotii of a contract. Moreover, the Claimant explained that, after having
evaluated other offers, he accepted and signed the one received from the
Respondent.
7.
The Claimant explained that he “started to doubt if the [Respondent] wished
to honour the concluded employment contract because all communication
between the parties stopped for about two months”. However, he added,
the Respondent eventually sent him the entry VISA and the flight tickets to
join the team in Country E on 9 August 2016 for the preseason training camp.
Player A, Country B / Club C, Country D
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8.
Moreover, the Claimant recalled that, on said date, he flew to Country E,
passed the medical exams and joined the team. However, “to his big
surprise”, after a few days, he was allegedly sent back to Country B because
the Respondent’s coach “did not like his performance”.
9.
The Claimant further pointed out that the Respondent’s stance caused him
financial damages since he had to terminate the employment relationship he
had in place with his former club and refused other good offers received at
the time.
10.
In its reply, the Respondent asked that the claim be rejected in its entirety.
11.
More in particular, the Respondent argued that it never signed any contract
with the Claimant. In this respect, the Respondent explained that the offer
made it clear that the Claimant had to pass the medical tests before any
employment contract could be signed. The Respondent added that the
Claimant never went to Country D and that, in any case, given its 10-days
validity, the offer could not be considered as an employment contract.
12.
In continuation, the Respondent pointed out that the Claimant never
provided it with his acceptance on time. In this regard, the Respondent
underlined that the Claimant did not submit any evidence of his timely
acceptance and that his signature on the copy of the offer he attached to his
claim could have been done “even by today’s date”. The Respondent
explained that, not having received the Claimant’s reply, it had considered
that the latter had refused the offer and this was the reason why it had not
sent him the VISA for Country D.
13.
Moreover, the Respondent argued that, after the Claimant had contacted the
team’s director in July 2016, it issued his entry VISA to go to Country D, but
the Claimant “gave excuses” not to go there. The Respondent added that,
subsequently, after the Claimant had manifested his intention to join the
team in Country E, it sent him flight tickets to Country E in order to proceed
with the medical tests there. The Respondent specified that the Claimant
knew he was flying to Country E specifically to undergo medical tests.
14.
In this respect, the Respondent maintained that the tests showed that the
Claimant was injured and, thus, was not “able to fulfil the team
requirements” and rebutted the Claimant’s argument that it was the coach
who decided to dismiss him. The Respondent recalled that, afterwards, the
Claimant “refused to travel to Country D and returned back”.
15.
Furthermore, the Respondent pointed out that the first correspondence it
received from the Claimant was only in August 2017, i.e. a year after the
abovementioned facts.
Player A, Country B / Club C, Country D
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16.
In his replica, the Claimant reiterated his position and added that, contrary to
what the Respondent stated, the medical results were all “normal” and no
indication of an injury was mentioned therein.
17.
Despite having been invited by FIFA to do so, the Respondent did not present
further comments on the matter.
18.
Upon request of FIFA, the Claimant informed that he signed an employment
contract with the Club of Country F, Club G, valid as from 6 September 2016
until 30 June 2017 for a monthly salary of 50,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 18 May 2018. Consequently, the DRC concluded that the
2018 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 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 2018), the Dispute Resolution Chamber is competent to
deal with the matter at stake, which concerns a dispute with an international
dimension between a Player of Country B and a Club of Country D in relation
to an alleged employment relationship between the parties.
3.
Subsequently, 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 2018), and considering that the present claim was
lodged on 18 May 2018, the 2018 edition of said 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, 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.
Player A, Country B / Club C, Country D
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5.
Having said that, the members of the Chamber acknowledged that, according
to the Claimant, on 19 May 2016 he had concluded an employment contract
with the Respondent valid “for the season 2016/2017” and pursuant to which
the Respondent allegedly had undertaken to pay him a total amount of USD
600,000. The Respondent had allegedly not been interested in his services
after the signing of the alleged employment contract and, therefore, the
Claimant asked to be awarded compensation for breach of contract by the
Respondent in the amount of USD 300,000.
6.
On the other hand, the DRC noted that the Respondent, for its part,
categorically denied the conclusion of an employment contract with the
Claimant. The Respondent admitted that it had forwarded an offer to the
Claimant but that said offer had made it clear that, prior to the conclusion of
an employment contract, the Claimant had to pass medical exams.
7.
Moreover, the Chamber observed that, according to the Respondent, the
Claimant had failed to send back the offer with his signature in a timely
manner and, therefore, the Respondent believed that the offer had been
refused by the Claimant.
8.
In light of the above, the members of the Chamber observed that the pivotal
issue in this dispute, considering the diverging position of the parties, was to
determine as to whether or not an employment contract had been concluded
between the Claimant and the Respondent. The DRC further observed that,
only if this was to be answered in the affirmative, it would be necessary to
determine whether the contract had been terminated without just cause by
the Respondent as claimed by the Claimant and, if so, to decide on the
consequences thereof.
9.
Against such background, the Chamber wished to highlight first and
foremost 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, their role, the duration of the
employment relationship and the remuneration. After a close look at the
document presented by the Claimant, the members of the Chamber were
satisfied with the conclusion that all such elements were included, given that
said offer contained: i. a clear reference to the parties; ii. the parties’
acceptance of the conditions outlined therein, manifested through their
respective signatures; iii. in particular, the obligation for the Claimant to
render his services towards the Respondent in turn of a remuneration.
Player A, Country B / Club C, Country D
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10.
In respect of the above, and considering the Respondent’s position on the
point, the DRC deemed it worthwhile to spend a few more words on the
issue concerning the Claimant’s signature. In this respect, bearing in mind art.
12 par. 3 of the Procedural Rules, in accordance with which any party
claiming a right on the basis of an alleged fact shall carry the burden of
proof, the members of the Chamber concluded that the Claimant had
produced satisfactory evidence demonstrating that he had indeed
countersigned the offer on the same date in which it had been sent to him by
the Respondent.
11.
In this context, and mindful that an offer bearing all the above described
components is tantamount to a contract with regards to the obligations
arising among the parties who signed it, the DRC turned its attention to
further circumstances emerged throughout the course of the proceedings.
12.
First of all, the members of the Chamber considered of utmost importance
the circumstance that the Respondent itself confirmed that, after it had sent
the offer to the Claimant, it invited the latter to Country E, where the team
was undergoing training camps, in order to undergo medical tests.
13.
Consequently, the DRC concluded that, not only from the Claimant’s
perspective but also from the Respondent’s point of view, the parties had
signed an employment contract and bound themselves to an employment
relationship. In the Chamber’s opinion, the Respondent would have not had
any reason to obtain a VISA for the Claimant and send it to him together
with the flight tickets in order for the latter to be in Country E for the
preseason training camp if it was not convinced that the parties had signed
an employment contract already.
14.
In this respect, the members of the Chamber further observed that the
Claimant, for his part, had undeniably showed his willingness to start
rendering his services for the Respondent by flying to Country E and joining
the team there in August 2016.
15.
Moreover, the members of the Chamber observed that, in its reply to the
claim, the Respondent maintained that the medical examinations carried out
in Country E showed that the Claimant was injured and, thus, was not “able
to fulfil the team requirements”. In light of this very statement, the members
of the DRC wished to emphasise that on the basis of art. 18 par. 4 of the
Regulations and the Chamber’s respective jurisprudence, a club wishing to
employ a player has to exercise due diligence and carry out all relevant
medical examination prior to entering into an employment contract with a
player.
Player A, Country B / Club C, Country D
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16.
In light of all the aforementioned considerations, the members of the
Chamber concluded that the Respondent and the Claimant had validly
concluded a contract and, thus, entered into a binding employment
relationship by signing, on 19 May 2016, the above-mentioned offer and that
the parties were necessarily aware of it when they met in Country E.
17.
Consequently, the Chamber decided that the Respondent substantially
refused to accept the Claimant’s services without any valid reason and, thus,
is to be held liable for the early termination of the employment contract
without just cause.
18.
In continuation and having established the above, 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.
19.
In this context, 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.
20.
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 contract at the basis of the matter at stake.
21.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the Respondent to the Claimant had to be
assessed in application of the other parameters set out in art. 17 par. 1 of the
regulations. Bearing in mind the foregoing, the Chamber proceeded with the
calculation of the monies payable to the Claimant under the terms of the
employment contract as from its termination and concluded that the
Claimant would have been entitled to receive USD 600,000 as remuneration
had the employment contract been executed until its regular expiry date, i.e.
the end of the season 2016/2017.
22.
In continuation, the Chamber assessed 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 able to reduce his loss of
income. According to the constant practice of the DRC, such remuneration
Player A, Country B / Club C, Country D
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under a new employment contract(s) 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.
23.
In respect of the above, the Chamber recalled that the Claimant signed an
employment contract with the Club of Country F, Club G, valid as from 6
September 2016 until 30 June 2017 for a monthly salary of 50,000. Therefore,
the DRC concluded that the Claimant was able to mitigate his damages
during the relevant period for the amount of 450,000.
24.
Having said that, the Chamber referred to its constant practice and the
general obligation to mitigate damages and pointed out that, although the
relevant employment contract was fully valid and enforceable, the execution
thereof had actually never started. The Chamber deemed that such
circumstance should be taken into consideration in the calculation of the
amount of compensation for breach of contract, and decided that, after
currency conversion and mitigation, the amount of USD 189,989 as
compensation was to be considered reasonable and justified.
25.
Consequently, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amount of USD 189,989
to the Claimant as compensation for breach of contract.
26.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber
decided that the Respondent must pay to the Claimant interest of 5% p.a. on
the amount of compensation as of the date on which the claim was lodged,
i.e. 18 May 2018, until the date of effective payment.
27.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, compensation for breach of contract
in the amount of USD 189,989, plus 5% interest p.a. as from 18 May 2018
until the date of effective payment.
Player A, Country B / Club C, Country D
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3.
In the event that the amount plus interest due to the Claimant in accordance
with the above-mentioned number 2. is not paid by the Respondent 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 remittances are to be made and to
notify the Dispute Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (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 (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
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