Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 October 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
Peter Friend (Australia), member
on the claim presented by
Player P, country x
as Claimant/Counter-Respondent
against the club
Club C, country y
as Respondent/Counter-Claimant
regarding a contractual dispute arisen between the player and the club.
I.
Facts of the case
1.
On 16 June 2005, the player P (hereinafter: the Claimant) and the club C
(hereinafter: the Respondent) signed an agreement bearing the title “Promissory
employment contract” (hereinafter: the contract), with the (translated)
introductory sentence: “The club and the player hereby execute an individual
job contract to be ruled by the following clauses:…”
2.
This contract which has been signed by the Claimant and a representative of
the Respondent provides for a validity of one year, from 1 July 2005 until 30 June
2006. The contract provides, inter alia, for a basic yearly salary of EUR 50,000,
payable in ten monthly instalments of EUR 5,000 net.
3.
The following clauses are, inter alia, included in the contract:
Clause 6 of the (translated) contract reads: “If the athlete rescinds the
contract unilaterally, he shall be automatically obliged to pay to Club C
an indemnification of EUR 500,000.”
Clause 9 of the (translated) contract reads: “The club declares that the
player has an updated medical record with the club, ….”
Clause 13 of the (translated) contract stipulates: “If, after medical exams,
the Clinical Department of the Club C does not rate the athlete as
capable beyond any limitations for the practice of professional football,
this contract shall be considered null.”
4.
On 18 August 2005, the Claimant lodged a formal complaint at FIFA, claiming
that it is to be declared that the Respondent had breached the contract with
him without just cause and that he had duly terminated the contract on 1
August 2005. Furthermore, the Claimant requests payment of a total amount of
EUR 50,000, taking into account the remaining period of the contract and that
disciplinary sanctions are to be imposed on the Respondent.
5.
The Claimant explains that after having signed the contract on 16 June 2005, for
formal reasons he had signed another contract with the Respondent on 29 June
2005 before a notary public in Y. However, the Claimant affirms not having
received a copy of the second contract. The Claimant asserts that after the
signing the second contract, he was submitted to medical examination and
then returned to X.
6.
The Claimant continues that his agent, A (hereinafter: the agent of the player or
the agent), became aware in the beginning of July 2005 through the Y press
that the Respondent was no longer interested in him on the allegation of
negative medical examination results. Some telephone conversations were
carried out between the agent of the player and the Respondent whereby the
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latter insisted on its position of not wanting to hire the Claimant anymore. As a
consequence of the breach of contract allegedly committed by the
Respondent, the Claimant explains having terminated the labour relationship
with the Respondent on 1 August 2005.
7.
In its response to the claim, the Respondent rejects the claim of the Claimant in
full and explains that its president, V, had been contacted by the agent of the
player and was presented by him three players and shown the DVDs of the
players. The agent then invited the president and the coach of the Respondent
to X in order to evaluate the three players in a live match. After arriving in X, the
agent told the president and the coach that it was already publicly known that
the Respondent was interested in the services of the Claimant and that it was
best if the Claimant did not play the next day because the supporting fans
would not like the situation if they knew that representatives of the Respondent
were present at the match. Despite this fact, the agent proposed that a
contract would be signed in order to end all speculations.
8.
Furthermore, the Respondent explains that its president had informed the agent
that in addition to his signature, the contract would have to be signed by two
other board members of the Respondent in order for the contract to be valid
and in order for the contract to be registered with the Professional Football
League of Y and the Y Football Federation. The agent of the player affirmed
that he understood the statement and that he perfectly knew the Y legislation
as he had other players playing in Y.
9.
The Respondent summarises that no valid contract had been signed between it
and the Claimant but only a contract of promise with the commitment that a
proper contract would be signed by three board members after the Claimant
would have passed the medical examination. The Respondent affirms that the
medical examination had shown that the Claimant suffered from serious injuries
that were limiting his ability of playing. The Respondent explains that the injuries
were so serious that the insurance company refused to insure the player. In
support of this statement, the Respondent submitted a copy of the medical
report and a copy of the report of the insurance company informing that the
Claimant could not be insured by it.
10.
The Respondent is of the opinion that only a promissory contract had been
signed between the parties which did not have any legal effects. The
Respondent furthermore states that the contract even had a clause stipulating
that
the
passing
of the medical test was a condition of the conclusion of the contract. Therefore,
the Respondent considers not to have any financial obligations towards the
Claimant and stresses that it had covered all travel and lodging expenses of the
Claimant.
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11.
In his comments thereto, the Claimant maintains his position that a valid and
binding employment contract had been concluded between him and the
Respondent and not just a pre-contract as all the principal elements of a
definite contract were contained in the contract: the duration, the salary, the
bonus, a penalty clause and the choice of jurisdiction. Furthermore, the
Claimant explains that the contract was not conditioned by the signature of
another “definite” contract which means that the contract is final and binding.
The Claimant furthermore refers to Clause 9 of the contract which states that he
had all the required conditions for the practice of Football and which was in
clear contradiction with Clause 13 which states that the contract shall be null in
case he did not pass the medical tests. The Claimant alleges that the
Respondent had named the contract “Promissory contract” with the bad
intention to justify a possible invalidation of the contract if the Claimant did not
pass the medical examination. In addition, the Claimant mentions that Clause 6
of the contract establishes a contractual penalty of EUR 500,000 in case he
would breach the contract.
12.
Moreover, the Claimant reiterates that he had not been submitted to any
medical test before signing the contract and by that, the Respondent had
taken the risk. According to the FIFA Regulations, the validity of a contract could
not be made subject to a positive medical examination. Regarding the issue of
the signatures, the Claimant comments that neither him nor his agent were told
that more than one signature would be needed to validate the contract and
that the Respondent had not submitted any documentary evidence. The
Claimant reiterates that a second contract had been signed before a notary
public in Y. He furthermore mentions that an agreement had been concluded
between the Respondent and his agent by means of which the Respondent
committed to pay EUR 24,200 to the agent as a commission fee for his transfer
and the transfer of the players Q and R. The Claimant concludes that it is not
reasonable for the Respondent to sign an agreement with his agent if it did not
consider the contract to be final and binding.
13.
In its comments thereto, the Respondent replies that the Claimant and the two
other players (Q and R) had construed a strategy in order to damage it.
14.
The Respondent recalls the facts of the case as follows: The agent of the player
had entered into contact with it and had pictured all three players as top level
professional players and had shown DVDs of them. On 16 June 2005, the
president and the coach of the Respondent travelled to X to see the players
performing live. The day before, the Respondent had expressly informed the
Claimant and his agent that the medical examination would be an absolute
condition prior to any binding agreement. Once arrived in X, the president and
the coach of the Respondent had been prevented from seeing the Claimant
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and the two other players playing but the agent had proposed to sign a precontract immediately. The Respondent had informed each player and the
agent that it was not a valid and definitive employment contract but only a
promissory contract. The Respondent did not want to sign an employment
contract before having conducted the medical test and the president had
anyway not been empowered to validate the contract with his sole signature.
The signature of two other board members would have been needed. The
players and the agent had fully understood the situation. Later, the medical
exam showed that the Claimant was suffering from serious injuries and so the
club decided not to enter into a definitive employment contract.
15.
The Respondent emphasizes once again that the parties had only signed a precontract which was named “promise of contract”. This contract was subject to
positive medical results which is, according to the Respondent, a fully legitimate
condition. The Respondent mentions that as a small size club, it would never sign
an employment contract with unknown players whom it had never really seen
playing but only seen them on DVD. According to the Respondent, it was the
intention of both parties to sign a definitive employment contract only after the
positive outcome of the medical examination. The Respondent also stresses that
the contract is printed on white paper without any official heading of the
Respondent. Also, the contract provides for space for three signatures as it
contains three lines for the signatures. In order to corroborate its statement, the
Respondent submitted a sample of a standard employment contract, provided
by the Y Football Federation, on official paper of the club. In addition to that,
the Respondent mentions that Art. 48 of its Statutes rules that documents which
create obligations for the Respondent need to be furnished at least with the
signature of the President and one of the Vice Presidents or the Delegate
President. The Respondent reiterates that the parties had not signed any
contract before a public notary in Y. Regarding the agreement concluded
between it and the agent, the Respondent explains that it had entered into the
agreement for the event that a definitive employment contract would be
signed with the Claimant.
16.
The Respondent claims that the Claimant and his agent were hiding information
on the physical problems of the Claimant such as his serious alcohol problems
which and that the agent did everything to prevent the representatives of the
Respondent from seeing the players playing. Therefore, the Respondent should
be compensated for the damage it had suffered. By means of a counter-claim,
the Respondent requests to be reimbursed for all expenses which it had covered
for the Claimant such as the flight expenses from X to Y, the hotel expenses in X
and Y as well as the medical expenses in the total amount of EUR 60,000. The
Respondent adds that the Claimant was jointly and severally liable with the
players Q and R to reimburse the amount of EUR 60,000.
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17.
In his comments, the Claimant rejects the counter-claim of the Respondent and
all allegations made by the Respondent. He mentions that it is hard to believe
that the president of the Respondent would travel to X for negotiations but that
his signature would not be sufficient to bind the Respondent. Just after the
representatives went to X, the Respondent had organised the travel of the
Claimant to Y in order to present him to the club. The Claimant adds that all
expenses had indeed been paid by the Respondent which acted as an
employer but that the Respondent had acted at its own risk by going to X to hire
the players. The Claimant remarks that the Respondent had not submitted any
evidence to prove the allegation that he and his agent where fully aware of the
situation when signing the contract.
18.
The Respondent rejects the claim of the player and is claiming the amount of
EUR 60,000 for the damage it suffered.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC). The present matter was submitted to FIFA on 18
August 2005, as a consequence the Chamber concluded that the revised Rules
Governing Procedures (edition 2005) on matters pending before the decision
making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the Regulations
for the Status and Transfer of Players (edition 2005). In accordance with art. 24
par. 1 in combination with art. 22 (b) of the aforementioned Regulations, the
Dispute
Resolution Chamber shall adjudicate on employment-related disputes between
a club and a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a Xian player and a Portuguese club
regarding a dispute arisen in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at
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the basis of the present dispute was signed on 16 June 2005 and the claim was
lodged at FIFA on 18 August 2005. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereinafter: the Regulations) are applicable to the case at hand
as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging the above mentioned facts and all
further documentation contained in the file. In particular, they took note that a
contract called “promissory contract” had been signed by the Claimant and
the president of the Respondent which provided for a period of validity from 1
July 2005 until 30 June 2006.
6.
Furthermore, the Chamber noted that the Claimant claims that a valid and
binding employment contract had been concluded between him and the
Respondent and that the contract had been breached by the Respondent
wherefore he claims payment of compensation in the amount of EUR 50,000
equal to the salaries of the whole contractual period.
7.
On the other hand, the members of the Chamber acknowledged that the
Respondent claims that no valid contract had been signed between it and the
Claimant and that by means of a counter-claim, the Respondent claims
payment in the amount of EUR 60,000 from the Claimant (joint and several
liability
with
the
players R and Q) for sustained damages as the Claimant had allegedly been
hiding information about his physical problems.
8.
The Chamber stated that it first had to analyse whether a valid and binding
employment contract had been concluded between the parties and, in a
second step, to determine whether any party is accountable for compensation
and/or sporting sanctions.
9.
The Chamber stated that a contract has to be signed by both parties in order to
be valid and binding. In this respect, the Chamber noted that the contract had
been signed by the Claimant and one representative of the Respondent,
namely the club’s president, therefore it had been signed by both parties.
10.
The Chamber drew its attention to the argument of the Respondent that two
other board members would have had to sign the contract in order for the
contract to become valid. The Respondent further alleged that the Claimant
had been informed that the sole signature of the club’s president was not
sufficient for the validity of the contract. The Chamber took note of the fact that
this allegation was contested by the Claimant.
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11.
In this regard, the Chamber stated that the alleged necessity of three signatures
for the validity of an employment contract is a club-internal proxy rule which is
not known to third parties and therefore does not have any legal effects on the
validity of the present contract unless the contracting partner, in casu the
Claimant, is clearly informed about the respective rule. The Chamber noted that
the Respondent had failed to provide any kind of evidence in order to
corroborate its allegation that the Claimant had indeed been informed that the
signature of the president of the Respondent was not sufficient for the validity of
the contract. The Chamber also stated that the Claimant did not have the
obligation to verify whether or not the president of the Respondent was
empowered to solely sign a contract. As in the present case the signature of the
club’s president is concerned, the Claimant could assume that as the highest
possible representative of the club, he is authorised to sign individually.
12.
Furthermore, the DRC turned its attention to the argument of the Respondent
that the contract provides for three lines, i.e. allegedly space for three
signatures. The Chamber stated by simply providing space for three signatures,
it could not be concluded that the Respondent had informed the Claimant
about the necessity of three signatures from the club.
13.
In conclusion of the aforementioned, the Chamber stated that the
Respondent’s argument that the contract is not valid due to the missing of two
signatures, has to be rejected and that the contract has therefore been duly
signed by both parties.
14.
In continuation, the Chamber stated that in order to determine whether or not a
valid and binding employment contract was concluded between the parties, it
furthermore has to verify whether all principle elements (“essentialia negotii”)
were contained in the relevant document.
15.
After analysing the contract, the Chamber concluded that the parties had
agreed in the contract upon all principle elements such as the place of work,
the period of validity, the salary, a penalty clause etc., and therefore decided
that the contract is valid and binding.
16.
For the sake of good order, the Chamber added that for the interpretation of a
contract its content is relevant and not its title (in casu “promissory employment
contract”).
17.
Furthermore, the Chamber took note of the Respondent’s allegation that the
player had been hiding information on his physical condition. In this respect, the
members of the Chamber stated that the Respondent had not provided any
evidence in this respect. Furthermore, it added that in order for a club to be
informed about a player’s physical condition, it usually conducts a medical
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examination prior to the signing of the employment contract. Therefore, the
Chamber rejected the argument of the Respondent that the Claimant had
been hiding information on his physical condition.
18.
The Chamber furthermore took note of the fact that the contract is only
conditioned by one Clause, namely Clause 13, which states that if, after
medical exams, the athlete is not rated as capable for the practice of
professional football, the contract shall be considered null. The Chamber noted
that this Clause was in contradiction with Clause 9 of the contract which states
that “the club declares that the player has an updated medical record with the
club,…”.
19.
In this respect, the Chamber referred to art. 18 par. 4 of the Regulations which
stipulates that the validity of a contract may not be made subject to a positive
medical examination. The Chamber stated that the condition in Clause 13 of
the contract clearly contravenes art. 18 par. 4 of the Regulations and therefore,
has to be considered null and void, i.e. not legally binding.
20.
The Chamber noted that it was an undisputed fact that the Claimant had not
undergone the medical examination until after the signing of the contract and
that the results were not positive. The members of the DRC stated that by not
conducting the medical examination before the signing of the contract, the
Respondent had taken the risk of a possible negative outcome of the
examination as negative examination results do not constitute a valid reason for
unilaterally terminating an employment contract.
21.
In view of all the above, the Chamber concluded that by not implementing the
employment contract concluded with the Claimant due to the negative
outcome
of
his medical examination, the Respondent had breached the relevant
employment contract without valid reason.
22.
In conclusion of the fact that the Respondent had breached the contract
without just cause, the Chamber decided that the Claimant is entitled to
receive compensation from the Respondent for breach of contract committed
by the club.
23.
In this respect, the Chamber, however, added that the Respondent apparently
had believed that it had only concluded a “promissory contract” with the
Claimant and not a final contract. The Chamber deemed that this should have
a mitigating effect on the compensation which is to be paid by the Respondent.
24.
The Chamber took into consideration that the employment contract concluded
between the parties provided for a period of validity of one year.
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25.
With regard to the compensation due for breach of contract without just cause
committed by the Respondent, the Chamber decided that taking into account
all the aforementioned considerations (points II.20 to II.24), the Respondent has
to pay to the Claimant the lump sum of EUR 20,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player is partially accepted.
2.
The Respondent has to pay the total amount of EUR 20,000 as compensation to
the player within 30 days following the date of the communication of the
present decision.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the relevant
time-frame and the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
4.
Any further claims submitted by the Claimant are rejected.
5.
The Claimant is directed to inform the Respondent directly and immediately of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
6.
The counter-claim submitted by the Respondent is fully rejected.
7.
According to art. 61 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:
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
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www.tas-cas.org
For the Dispute Resolution Chamber:
____________________________
Urs Linsi
General Secretary
Enclosed: CAS directives
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