Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 October 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mick McGuire (England), member
Carlos Soto (Chile), member
Zola Majavu (South Africa), member
Ivan Gazidis (USA), member
on the claim presented by
the player, C,
as Claimant
against
the club, P,
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
2.
On 7 January 2008, club P FC (hereinafter: the club) and the player C (hereinafter:
the player) signed a “Private Agreement” that was valid from 7 January 2008 until
30 June 2010, with the following content:
-
From February to June 2008 (5 months), the player would receive salary
payments of EUR 7,000 on the 15th of each month, that is, a total of EUR
35,000;
-
From September 2008 to June 2009 (10 months), the player would receive
salary payments of EUR 10,000 at the end of each month, that is, a total
of EUR 100,000;
-
From July 2009 to April 2010 (10 months), the player would receive salary
payments of EUR 10,000 at the end of each month, that is, a total of EUR
100,000;
-
In addition to the above-mentioned amounts, the player would receive
EUR 1,000 (net) per month for personal expenses;
-
The parties also agreed that the club would have the right to terminate
the contract on 30 June 2008 without any further financial obligations
(“both contracting parties agree that during the contracting period the
Club holds the right to summon The Player to proceed in the termination
of the Contract on 30/6/2008 with no further obligation, or any other kind
towards The Player”);
-
If the club terminated the player’s contract on 30 June 2009, the player
would receive compensation of EUR 5,000 from the club. The club would
then hold no further obligations (“In the case the Club summons The
Player to proceed in the termination of the contract on 30/6/2009, The
Player will be compensated by The Club with the amount of € 5.000 and
The Club will hold no further obligation”).
In a letter dated 1 February 2008, the club informed FIFA of the following:
-
The club had agreed on the basic contents of a contract with the player
on 7 January 2008, at which time the player commenced training;
Shortly afterwards, the player returned to B to take care of personal
matters, after which he was to return to G, sign an official contract and
play for the club;
Player C / Club P
2
-
3.
4.
The player never returned from B to fulfil his obligations and sign the
contract.
On 5 February 2008, the player submitted a claim against the club to FIFA and
asserted the following:
-
According to the “Private Agreement” of 7 January 2008, the player was
to receive a salary of EUR 235,000 for the full term of the contract, plus all
of the bonuses set out in the club’s regulations, plus EUR 1,000 net per
month for personal expenses;
-
The club failed to register the player at the H Football Federation and
arrange for the player’s return to G.
Consequently, should he not be able to return to the club, the player requested
the Dispute Resolution Chamber to order P FC to pay EUR 263,000 for breach of
contract. This sum was calculated by the player as follows:
-
EUR 235,000, which corresponds to the player’s salary;
EUR 30,000, which corresponds to 30 monthly instalments from January
2008 to June 2010;
minus EUR 2,000 received as advance payment.
5.
In a letter dated 13 February 2008, the player’s legal representative stated that the
player was still in a “stand-by position” in B at that time and was also awaiting
news from the club.
6.
In its reply dated 15 February 2008, the club asserted that, according to the H
Football Federation’s Regulations, a contract only comes into force when it is
issued in a standard form and has been certified and approved by the
Superleague. The player may only be registered at the H Football Federation once
the contract has been approved.
7.
Therefore, if the club had submitted the “Private Agreement” in question, it
would have been rejected by the Superleague and the player would not have
been registered.
8.
The club concluded that the “Private Agreement” alone was not binding and
never came into force. Consequently, the club was not obliged to compensate the
player on account of this contract alone.
Player C / Club P
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9.
Furthermore, in a letter dated 18 March 2008, the club stated that it was no
longer interested in bringing the employment contract with the player into force.
10.
In a letter dated 3 April 2008, the club reiterated its statement that it had not
signed an employment contract with the player. Furthermore, it had never
requested an international transfer certificate for the player and it was absurd
that the player was claiming the full amount of EUR 263,000. If, contrary to
expectation, the player’s claim were to be accepted, any compensation could only
be based on the value of the contract until June 2008.
11.
In subsequent correspondence, the parties adhered to their respective positions.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, it took note that the player’s claim was
submitted to FIFA on 5 February 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18 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 2008), 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 B player and a G 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
(edition 2008), and considering that the present claim was lodged on 5 February
2008, the current version of the regulations (edition 2008; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
In continuation, and entering into the substance of the present matter, the
members of the Chamber started by acknowledging the established facts of the
case and the arguments of the parties as well as the documentation contained in
the file, and in this respect, in view of the circumstances of the present case, first
of all stated that the following three questions had to be tackled:
Player C / Club P
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I.
Has a valid and binding employment contract existed between the parties
of the dispute?
II.
If yes, who is responsible for the termination of the employment contract
and was there a just cause for such termination?
III.
In case of unjustified breach of contract: which are the consequences
thereof?
5.
With regard to the first question, the Dispute Resolution Chamber observed that
the respective accounts of the two parties as to the existence of a contractual
relationship were diametrically opposed. Indeed, the club insisted on the fact that
according to the rules and regulations of the H Football Federation, a contract, in
order to be valid, must be put into a standard form and certified by the H
Superleague. Therefore, the club came to the conclusion that, the player having
failed to sign such standard contract, there could not be any contractual
relationship between the parties. The player, however, stated that he had
considered the “Private Agreement” signed on 7 January 2008 as binding and
that, after his return to B, he had been waiting for further instructions from the
club in order to fully comply with his contractual obligations.
6.
In view of the above, and in order to properly assess the existence of a contractual
relationship between the parties, the members of the Chamber paid close
attention to the contents of the “Private Agreement” signed by the parties on 7
January 2008. Having done so, the members of the Chamber found that this
agreement contained all the essential elements of a binding contract, i.e. the
denomination of the parties, the subject of the contract, the duration of the
contract and the salary payable to the player.
7.
In addition, the panel considered the argument of the club, which stated that
according to the rules and regulations of the H Football Federation, a contract, in
order to be valid, must be put into a standard form and certified by the H
Superleague, and that the player had failed to sign this standard form. In this
respect, the Dispute Resolution Chamber made a clear distinction between the
employment contract and the certification of this contract by the H Superleague in
view of the player’s registration. Therefore, the Chamber ruled that the signature
of the standard form issued by the H Superleague was not relevant in the present
case, and could not be considered as being a condition to the validity of the
employment contract.
Player C / Club P
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8.
In consideration of all of the above, the members of the Chamber came to the
conclusion that the “Private Agreement” signed by the parties of the dispute on 7
January 2008 should be considered as a binding and valid employment agreement.
9.
With regard to the second question, the members of the Chamber took into
consideration several elements of the facts of the case. In this regard, the Chamber
first of all pointed out that the player, after having returned to B, did not return
to G. The player stated that he had stayed in B in a “stand-by position” because he
was waiting for further instructions from the club. However, in the Chamber’s
opinion, the player, who was bound by a valid employment contract, should have
returned to G, even though the club did not pay for his return ticket. Indeed, in
principle, the player had the obligation to offer his services to the club.
10.
However, the members of the Chamber observed that the club, after having
agreed with the player that he should return for a few days to his own country,
showed a particular lack of interest as to the return of the player to the club, and
had not been able to prove that it had in fact summoned the player to return to
G. In this respect, the panel emphasized the fact that the club did not even
respond to the player’s notifications in order to register his employment contract
with the H Football Federation and to be able to render his services to the club.
Moreover, the club, who particularly insisted on the fact that the player did not
sign the standard form issued by the H Superleague, could have sent this form to
the player in B, in order to comply with the formalities regarding his registration
or arranged for his immediate return to G. Indeed, it was the club which was
aware of the respective registration formalities and should have taken the
necessary steps. Finally, the members of the Chamber took note of the
contradictory behavior of the club, which, after having lodged a claim with FIFA in
the present matter, subsequently stated that it did not recognize the existence of
a valid employment contract between the club and the player.
11.
In view of all of the above, and having thoroughly analyzed the documents of the
file as well as the circumstances surrounding the present matter, the members of
the Chamber came to the firm conclusion that both parties in the present dispute
were partly responsible for the outcome of the present matter, and that none of
them had showed sufficient interest in the execution of the employment
relationship. Consequently, the members of the Chamber considered that any
contractual relationship between the parties must be considered as terminated.
Furthermore, the panel deemed that none of the parties could be established as
solely responsible for breach of contract, but that the club should be considered as
predominantly responsible for the said breach.
Player C / Club P
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12.
Furthermore, the members of the Chamber were eager to emphasize that the
clause contained in the “Private Agreement”, according to which, if the club
terminated the player’s contract on 30 June 2008, it would hold no financial
obligations, was a potestative clause which was not acceptable as such. Therefore,
the responsibility of the club could not be diminished by reference to this clause.
13.
Finally, with regard to the third question, the members of the Dispute Resolution
Chamber deemed that the player should receive compensation for breach of
contract. In order to calculate the amount of compensation due to the player, the
panel took into account the circumstances of the present case, in particular the
remuneration due to the player under the terms of the “Private Agreement” as
well as the facts that the player shared a minor part of the responsibility for the
termination of the contract, and that the contract at the basis of the present
dispute had never been executed.
14.
Consequently, on account of the above, the Dispute Resolution Chamber decided
to award the amount of EUR 80,000 as compensation for breach of contract to the
player.
15.
Finally, the Dispute Resolution Chamber decided to reject all further claims of the
player.
******
Player C / Club P
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III.
Decision of the Dispute Resolution Chamber
1.
2.
The claim of the Claimant, C, is partially accepted.
The Respondent, P FC, has to pay the amount of EUR 80,000 to the Claimant
within 30 days as from the date of notification of this decision.
Any further claims lodged by the Claimant are rejected.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the parties’ request to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
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.
3.
4.
5.
Note relating to the motivated decision (legal remedy):
According to article 63 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
Player C / Club P
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Encl.
CAS directives
Player C / Club P
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