Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 October 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
Alejandro Marón (Argentina), member
on the claim presented by the player
S,
as Claimant
against the club
A,
as Respondent
I.
regarding an employment-related dispute between the parties
Facts of the case
1.
On 17 December 2007, the player S (hereinafter: the Claimant), lodged a claim
with FIFA against the club A (hereinafter: the Respondent), arguing that the
Respondent had not respected their agreed contractual relationship.
2.
More specifically, the Claimant explained that on 25 July 2007, he had signed a
document entitled “Club A pre-contract agreement” (hereinafter: the contract)
with the Respondent. This contract was signed by the Claimant and Mr V, who
appeared to be the Director of Football of the Respondent. The contract, which
stated that it was valid for the 2007-2008 season, provided, inter alia, for the
following benefits:
- a total salary of EUR 80,000 (EUR 10,000, payable as signing fee, and EUR
70,000, payable in 10 equal monthly instalments of EUR 7,000 each);
- a rented luxury flat as well as a car;
- bonuses according to the performance of the team.
3.
The Claimant further explained that on 1 August 2007 he had travelled from E to
O to take part in the Respondent’s pre-season training camp. While in O, on 9
August 2007, the Claimant had apparently been told by the coach that there were
no available spots on the team for him and that he should leave. The coach had
apparently advised him that he should sue the Respondent for the money owed
under the terms of the contract he had signed. The Claimant said that he refused
to leave the team since he wanted to honour his contractual relationship.
4.
The Claimant went on to state that, on 10 August 2007, the Respondent’s CEO, Mr
K, had apparently told him that he should not attempt to return to C from O with
the team since the necessary travel arrangements had been made for him to go
back to E. The Claimant said that he had refused the offer and had eventually
flown back with the team to C on 11 August 2007, where he was allegedly left in a
hotel near the airport. According to the Claimant, he had then been threatened
with bodily harm if he attempted to return to the team. In this respect, he
provided copies of e-mails allegedly sent by Mr K.
5.
Finally, on or about 15 August 2007, the Claimant, having received a one-way
ticket to E from the Respondent and fearing for his safety, had left C. The
Claimant further explained that Mr V has since left the Respondent and has
allegedly admitted that he had been treated inappropriately.
6.
The Claimant is consequently claiming from the Respondent EUR 80,000, 7,500 for
the ten months he did not receive the required car and housing and additional
compensation equal to three months’ salary (i.e. EUR 30,000).
7.
In its response to the claim, the Respondent submitted, on 5 November 2008, that
the pre-contract agreement dated 25 July 2007, signed between the Claimant and
Mr V, who had “no relation with A and […] did not have any authorisation or the
competence to sign any kind of agreement on behalf of the club”, only bound
those persons who had signed it but not the Respondent. Consequently, the
Respondent deemed that the claim of the Claimant should be rejected in full.
8.
In his reaction to the response of the Respondent, the Claimant argued that Mr V
had had the authority to act on behalf of the Respondent when he signed the
contract dated 25 July 2007, since it was clear that Mr V had negotiated contracts
with other players for the Respondent and that he had apparently appeared as
the Respondent’s representative on national television, radio programmes and
newspapers. In order to corroborate his allegations, the Claimant submitted a
sworn statement signed by Mr P, the Claimant’s agent.
9.
Furthermore, the Claimant submitted two articles, one dated 30 July 2007 which
discusses Mr V’s return to the Respondent as its director of football and which
states that he “has played a leading role in bringing in a large number of quality
players”, and another one dated 17 August 2007 which discusses the conflict that
apparently arose between Mr V and the person who was acting as coach of the
team at the time.
10.
Consequently, the Claimant maintained that Mr V had authority to act on behalf
of the Respondent and that his claim should therefore be accepted.
11.
On 5 January 2009, the Respondent provided its final comments and, in addition
to its response, argued that, according to C legislation and FIFA’s regulations, an
agreement is valid if it is signed, in the Respondent’s case, by the president and
the secretary of the club. In addition, the Respondent deemed that the press
articles could not prove that Mr V had the authority to sign the contract on its
behalf. The Respondent also held that even if the contract was considered valid, it
could not bind the Respondent since FIFA’s regulations “talk about the term
Contract/Agreement and not Pre-contract”. Consequently, the Respondent
rejected again the allegations of the Claimant and deemed that his claim should
be rejected.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) analysed whether it was
competent to deal with the present matter. In this respect, it noted that the
present case was submitted to FIFA on 17 December 2007. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005; hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. art. 18 par. 2 and 3 of the Procedural Rules in
combination with art. 21 par. 2 and 3 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber [edition
2008]).
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
connection with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber (DRC) shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension. As a consequence, and since the Claimant holds the E
nationality and the Respondent is a C club, it was confirmed that the Dispute
Resolution Chamber is the competent body to decide on the present litigation.
3.
Subsequently, the members of the Chamber analysed which edition of the
regulations 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
on the Status and Transfer of Players (edition 2008) and, on the other hand, to the
fact that the relevant employment contract at the basis of the present dispute was
allegedly concluded on 25 July 2007 and that the claim was lodged with FIFA on
17 December 2007. In view of the foregoing, the Chamber came to the conclusion
that the previous version of the regulations, the FIFA Regulations for the Status
and Transfer of Players (edition 2005, hereinafter: the Regulations), shall apply to
the case at hand as to the substance.
4.
Once its competence and the applicable Regulations were thus established, the
members of the Dispute Resolution Chamber went on to deal with the substance
of the matter and started by acknowledging the above-mentioned facts and
documentation contained in the file as well as carefully considered the arguments
submitted by the parties involved in the present dispute.
5.
In particular, the Chamber noted that the entire dispute centered around the
question as to whether a contractual relationship had come into existence
between the Claimant and the Respondent. In this respect, the members of the
Chamber underlined that the Claimant had argued, on the one hand, that a
contractual relationship had duly been initiated by the signing of the contract, on
25 July 2007, between himself and Mr V, whereas, on the other hand, the
Respondent had primarily sought to argue that Mr V had no authority to act on its
behalf and that, consequently, no contractual relationship had ever existed
between the Claimant and the Respondent.
6.
With the aforementioned considerations in mind, the Chamber held that it would
thus have to address the question as to whether the contract signed between Mr V
and the Claimant had any binding effect on the Respondent and, in the
affirmative, whether the Respondent had, by its dealings, breached the
contractual relationship between the parties. Finally, in case a breach could be
established, the Chamber would have to consider the issue of compensation to be
paid by the liable party to the injured party.
7.
First of all, the Chamber analysed if the contract (i.e. Club A pre-contract
agreement) constituted a legally binding agreement. On the face of it, the
members of the Chamber were unanimously satisfied that the contract had all the
necessary elements in order for it to be a legally binding agreement between the
parties that had signed it. This said, the Chamber found it important to underline
that although a document might be entitled differently than ‘Contract’ or
‘Agreement’ this could, in any case, not invalidate its legal effect if all the relevant
elements of a contract were present. Consequently, the members of the Chamber
unanimously concurred that the document in question was in fact a duly signed
employment contract by which the Claimant had agreed to undertake certain
duties for the other signatory in return for a specified wage and benefits.
8.
With this established, the Chamber assessed the question whether Mr V, whose
signature, name and title (i.e. Director of football) appeared on the contract, had
been given the authority to act on behalf and for the Respondent. As a
preliminary remark, the Chamber observed that the contract had been marked by
the distinctive office stamp of the Respondent as well as bore the standard
letterhead of the Respondent. This, the Chamber further observed, had not been
denied by the Respondent. More importantly, the DRC noted that the Respondent
had not provided any evidence whatsoever corroborating the allegation that Mr V
had “not relation with the Club A” and “did not have any authorization or the
competence to sign any kind of agreement on behalf of the club”, let alone given
any explanation as to why Mr V had been in possession of the Respondent’s office
stamp and letterhead.
9.
In addition, the members of the Chamber also pointed out that the evidence in
the form of two press articles submitted by the Claimant had not been rebutted by
any counter-evidence that could have led this Chamber to express doubt that Mr V
had indeed been given the authority to act on behalf of the Respondent.
As for the argument that any agreement has to be signed by the Respondent’s
president and secretary in order to be considered valid, the Chamber was left
unconvinced that such requirement would invalidate the contract as such specific
national requirements, even if correct, could not prevail over FIFA’s own set of
rules, which, in that particular issue, did not specifically ask for such a
10.
requirement. Consequently, the Chamber held that the Respondent could not
avail itself of that argument in order to set aside the contract.
11.
Furthermore, the members of the Chamber drew their attentions to the fact that
the Claimant had not only signed the contract but had subsequently been allowed
to travel to O to take part in a pre-season training camp organised by the
Respondent. It had then been in O that the Respondent had refused the Claimant
to be part of its team. In view of the above, the Chamber held that the contract
had in fact already started to be executed by the parties. In this context, the
Chamber deemed that the fact that the Respondent had allowed the Claimant to
participate in its training camp was clear and irrefutable evidence that it had
considered that the contract had started to be executed and that, consequently,
the Respondent should now not be allowed to disregard the contract on the
pretext that it had not been signed by the right person. In the Chamber’s opinion,
allowing such an argument would in essence amount to permitting a party to a
contract to decide, after having signed it, to unilaterally terminate it without any
consequence.
12.
On account of the above, and having, in particular, come to the conclusion that
the Respondent and the Claimant had concluded a legally binding agreement in
the form of an employment contract, the Chamber was satisfied that the
Respondent, by later denying the Claimant his rights under the contract, had in
fact failed to respect their mutually agreed contractual obligations and had
therefore breached the contract without just cause.
13.
Having concluded that the Respondent had caused the breach, the Dispute
Resolution Chamber then went on to deal with the issue of compensation to be
paid to the Claimant by the Respondent following the termination of the
employment contract without just cause by the latter. To this effect, the Chamber
referred to art. 17 of the Regulations and recalled that the said provision provides
for a non-exhaustive enumeration of criteria which may be taken into
consideration at the entire discretion of the relevant decision-making body when
calculating the amount of compensation payable.
14.
This being established, the Chamber noted that the Claimant had requested from
the Respondent the amount of EUR 80,000 representing the total amount of salary
that he would have received under the contract, another 7,500 for the
contractually agreed rental charge and car as well as an additional EUR 30,000
representing three monthly salaries as exemplary compensation for breach of
contract without just cause. Further, the Chamber took into account that the
Respondent had in fact never paid, or even claimed to have paid, any amount of
money to the Claimant.
15.
Having acknowledged the financial claims of the Claimant, the members of the
Chamber sought it important to recall that art. 17 bestows a discretionary power
upon the Dispute Resolution Chamber to take into account any element and
criterion deemed relevant in order to determine the amount of compensation to
be awarded to the injured party. This discretion was, in the Chamber’s opinion,
not only necessary in order to take into account the unique and particular
circumstances of each given case but also in order to prevent any party to a
contract to calculate and determine the amount of compensation for a breach of
contract in advance, thus undermining the concept of contractual stability
enshrined in the Regulations and advocated by this Chamber.
16.
Moreover, the members of the DRC held that any party claiming compensation for
breach of contract has a responsibility to mitigate the loss that it may have
suffered as a result of a breach. In this respect, the Chamber took note of the fact
that after having gone back to E, the Claimant had been able to conclude a
number of employment contracts with different E clubs, although for wages
significantly lower than what he would have been contractually entitled to had he
stayed with the Respondent.
17.
On account of the aforementioned circumstances, and, in particular, in view of the
fact that the Claimant had been able to mitigate his loss to some extend, the
Chamber concluded that a compensation amounting to a total of EUR 40,000
seemed an appropriate and reasonable compensation to be paid to the Claimant.
The Chamber, in its calculation of the aforementioned amount of compensation,
also took into account the length of the contract signed with the Respondent, its
total value, as well as the fact that the Claimant had never actually played matches
for the Respondent but had only participated in its training camp.
18.
In view of all of the above, the members of the Chamber decided that, bearing in
mind art. 17 par. 1 of the Regulations, as well as the particular circumstances of
the present case, the claim of the Claimant is partially accepted and that,
consequently, the Respondent has to pay to the Claimant the total amount of EUR
40,000, pertaining to compensation for breach of contract without just cause
payable by the Respondent.
19.
The Chamber concluded its deliberations 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, S, is partially accepted.
2.
The Respondent, A, has to pay to the Claimant, S, the amount of EUR 40,000
within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant, S, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
5.
The Claimant, S, is directed to inform the Respondent, A, 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.
*****
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
Markus Kattner
Deputy Secretary General
Encl. CAS Directives