Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 16 November 2012,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
Player A, from country S,
as Claimant
against the club,
Club O, from country X
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 8 January 2009, the player A from country S (hereinafter: the Claimant),
and the club O from country X, (hereinafter: the Respondent) concluded an
employment contract (hereinafter: contract one) valid as from the date of
signature until 30 June 2009.
2.
The Claimant and the Respondent signed an additional contract (hereinafter:
contract two) valid as from 1 July 2009 until 30 June 2011.
3.
According to contract two, the Claimant was entitled to receive, inter alia:
- a monthly salary of EUR 800;
- Christmas bonus of EUR 800;
- Easter bonus of EUR 400;
- Holiday bonus of EUR 400;
- EUR 140,000 to be paid in eight instalments;
- bonus of EUR 20,000 if the team comes back to the 1st division in the season
2009/2010 and if the Claimant participates in 50% of the matches.
4.
On 1 August 2009, the Claimant lodged a claim before FIFA for breach of
contract by the Respondent, and after amending it, requested from the
Respondent the total amount of EUR 1,182,400 plus interest, made up of the
following amounts:
- EUR 19,200 for the salaries as of 1 July 2009 until 30 June 2011 (24 x EUR 800);
- EUR 3,200 for two Christmas, Easter and Holiday bonus each;
- EUR 140,000;
- EUR 20,000 bonus;
- EUR 1,000,000 as compensation for the rest value of the contract since he was
unemployed.
5.
In his arguments, the Claimant stated that the Respondent was no longer
interested in his services when he returned from his vacations in July 2009,
since the Respondent’s president changed and no longer paid the Claimant any
salaries, in view of the fact that he was claiming that contract two was not
valid.
6.
In this respect, the Claimant claims that he and his wife were asked to return
to country S and in this respect provided a flight ticket receipt for the flight
scheduled from city of country X to city of country S on 14 September 2009.
7.
Moreover, the Claimant argued that at the time when the Respondent
terminated the contract, his wife was pregnant and that due to the stress
caused she lost the child.
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8.
In addition, the Claimant provided a letter he received from the Respondent
dated 31 July 2009, according to which the latter states that the parties had a
contract, which expired on 30 June 2009 and that the parties did not renew
the contract.
9.
In its reply, the Respondent rejected the Claimant’s claim and explained that it
was no longer contractually bound to the Claimant after the expiry of contract
one, and that contract two is only to be regarded as a draft, since:
a) it allegedly bears no date;
b) the Claimant’s signature is allegedly missing;
c) it was not issued in three original copies which would be distributed to the
Hellenic Football Federation, the club and the Claimant;
d) it was subsequently cancelled because the parties failed to reach an
agreement.
10.
In his replica, the Claimant argues that since a valid contract has been signed
by the parties the Respondent has to fulfill its obligations. Moreover, the
Claimant replies to the Respondent’s arguments as follows:
a) the date of contract two is stated in its point 2.2.: “The employment period
of the player starts on the 1.07.2009 (during the transfer period) and ends
on the 30.06.2011 (one day before the beginning of the transfer period)”;
b) the Claimant’s and Respondent’s signature is visible on all four pages of
contract two;
c) the Claimant sent one copy of the contract to FIFA with his claim, which
fulfils the prerequisites;
d) the Respondent did not provide any documentary evidence as to the alleged
cancellation of contract two.
11.
In its final position, the Respondent maintained its previous arguments and
stated that the parties only signed a simple draft, which has no legal effects for
either of the parties and never lead to the signature of a final official
employment contract. Moreover, the Claimant did not play in any of the
Respondent’s matches between 1 July 2009 and 30 June 2011.
12.
As to the simple draft signed between the parties, the Respondent stated that
there is no date of signature in the document, but only the period of the
possible duration of their cooperation in the future with the Claimant as
stated in point 2.2. Also, the parties should have issued six original copies if it
was an official contract, this being one original copy to the Claimant and five
original copies to the Super League.
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13.
Upon FIFA’s request, The Claimant stated having found new employment with
the club R from country Z, as of 1 July 2010 until 15 June 2012. According to
said employment contract, the player is entitled to receive a monthly salary of
either CHF 5,000 if the club is in the Challenge League or CHF 8,000 if the club
is in the Super League.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or the DRC) analysed which Procedural Rules were applicable to the
case at hand. In this respect, it took note that the present matter was
submitted to FIFA on 1 August 2009. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber, edition 2008 (hereinafter: the Procedural Rules), are applicable to
the matter at hand (cf. article 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 2010, 2009 and 2008), the Dispute Resolution Chamber is
competent to adjudicate on an employment related dispute between a player
of S nationality and a club from country X.
3.
In continuation, the Chamber analysed which regulations were 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 2010, 2009 and 2008), and considering that the present claim
was lodged on 1 August 2009, the 2008 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
regard, the members of the Chamber started by acknowledging the abovementioned facts and documentation contained in the file.
14.
First and foremost, the Chamber noted that the parties were uncontestably
bound by a first employment contract (contract one) valid as from the date of
signature until 30 June 2009.
15.
Furthermore, according to the Claimant, a second employment contract
(contract two) was concluded between the parties, stipulating a duration as
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from 1 July 2009 until 30 June 2011. However, upon return from his holidays in
July 2009, the management of the club apparently changed and refused to
execute contract two, and subsequently ordered the Claimant to return to
country X.
16.
The Claimant thus claimed that the Respondent had breached contract two
without just cause and requested the payment of the total amount of EUR
1,182,400 plus interest, made up of the following amounts:
- EUR 19,200 for the salaries as of 1 July 2009 until 30 June 2011 (24 x EUR 800);
- EUR 3,200 for two Christmas, Easter and Holiday bonus each;
- EUR 140,000;
- EUR 20,000 bonus;
- EUR 1,000,000 as compensation for the rest value of the contract since he was
unemployed.
5.
The Chamber acknowledged that the Respondent, on the other hand,
considered that it was no longer contractually bound to the Claimant, since
contract two is not to be regarded as a valid employment contract, but only as
a draft. In this regard, the Respondent argues that contract two bears no date,
the Claimant’s signature is missing, it was not issued in three original copies
which should have been distributed to the Hellenic Football Federation, the
Respondent and the Claimant as well as that it was subsequently cancelled
because the parties failed to reach an agreement.
6.
The Chamber took into account, that the Claimant, in his replica, rejects the
Respondent arguments and insists that contract two is a valid employment
contract, because the date of contract two is stated in point 2.2. of contract
two: “The employment period of the player starts on the 1.07.2009 (during the
transfer period) and ends on the 30.06.2011 (one day before the beginning of
the transfer period)”, the Claimant’s and Respondent’s signature is visible on
all four pages of contract two, the Claimant sent one copy of the contract to
FIFA with his claim, which fulfills the prerequisites, and finally the Respondent
did not provide any documentary evidence as to the alleged cancellation of
contract two.
7.
In its final position, the Respondent maintained its previous position that the
parties only signed a simple draft, which has no legal effects for either of the
parties and never lead to the signature of a final official employment contract.
Moreover, the Claimant did not play in any of the Respondent’s matches
between 1 July 2009 and 30 June 2011.
Considering the above statements presented by both parties, the DRC stated
thatit first had to analyse whether or not contract two was to be considered as
a valid and legally binding employment contract and in the affirmative, to
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determine whether contract two was breached by one of the parties, i.e. by
the Respondent, as claimed by the Claimant.
8.
In this respect, the Dispute Resolution Chamber deemed important to
highlight 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 also contain the essentialia negotii of an employment
contract, such as the parties to the contract and their respective obligations, as
well as the duration of their employment relationship.
9.
After a careful study of contract two presented by the Claimant in support of
his claim, the Chamber concluded that all such essential elements are included
in the pertinent contract, i.e. the parties, the duration, the signature of both
parties as well as the agreed obligations of the parties, in particular, the
remuneration payable by the Respondent to the Claimant.
10.
Furthermore, the Chamber was eager to emphasise that, contrary to the
Respondent’s assertion, the date of signature of the employment contract is
not strictly a prerequisite for its validity, as long as the date of entry into force
of such contract is clearly defined, like it is the case in contract two.
11.
Equally, the DRC underlined that the issuance of various copies to be
distributed to the relevant federation does not in any way affect the validity of
the contract signed between the parties but rather corresponds to a formality
which a club must fulfill after having concluded the relevant contract.
In view of the above, the members of the DRC unanimously concluded that
contract two clearly represents the basis of an employment relationship as well
as contained all the essential elements of an employment contract.
12.
13.
On account of the above-mentioned, the Chamber decided that contract two ,
was to be considered as a valid and a legally binding contract that created
obligations towards the parties.
14.
In continuation, the DRC proceeded to analyse whether or not the Respondent
had breached the contract two as alleged by the Claimant.
15.
In this respect, having determined that contract two was to be held as valid
and legally binding, the members of the DRC took note that the Respondent
never proceeded to fulfill its contractual obligations as of 1 July 2009, not even
after having been contacted by the Claimant.
16.
Consequently, the Chamber reached the conclusion that, in the present case, it
is established that the Respondent seriously violated the terms of contract two
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by deliberately refusing to honour its obligations towards the Claimant
without any valid reason, and thus that the Respondent breached contract two
without just cause.
17.
In view of all the aforementioned considerations, having concluded that the
Respondent has breached the contract two without just cause, the Chamber
concurred that the Respondent and is liable to pay to the Claimant
compensation for the early termination of contract without just cause.
18.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber
focused its attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract.
19.
According to art. 17 par. 1 of the Regulations, the amount of compensation for
breach of contract 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 as to whether contract two contained a provision by means of
which the parties had beforehand agreed upon an amount of compensation
payable by the contractual parties in the event of breach of contract. The
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
21.
Therefore, in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account, inter alia, in line
with art. 17 par. 1 of the Regulations, the remuneration due to the Claimant in
accordance with the contract, the time remaining on the same contract as well
as the professional situation of the Claimant after the early termination which
occurred.
22.
In this context, the Chamber took into account that the Claimant would have
been entitled to receive a monthly remuneration amounting to EUR 800 until
30 June 2011, a Christmas bonus of EUR 800 per season, an Easter bonus of
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EUR 400 per season, a holiday bonus of EUR 400 per season, EUR 140,000 to be
paid in eight instalments as well as a bonus of EUR 20,000 of the team comes
back to the 1st division in the season 2009/2010 and if the player participates in
50% of the matches.
23.
In this regard, the Chamber found the remaining value of the contract two
valid until 30 June 2011 to be the amount of EUR 162,400 (i.e. salaries totalling
EUR 19,200, EUR 3,200 for two Christmas, Easter and Holiday bonus each and
EUR 140,000), a fair and appropriate amount to serve as the basis for the final
determination of the amount of compensation for breach of contract.
24.
Equally, in this respect, the Chamber recognised that the Claimant found
employment with the club R from country Z as of 1 July 2010. In accordance
with the relevant employment contract, which has been made available by the
Claimant, the Claimant was entitled to receive until 30 June 2011, the total
amount of (currency of country Z) 60,000 and therewith enabled to reduce his
loss of income. Consequently, according to the constant practice of the DRC,
such remuneration under the new employment contract shall be taken into
account in the calculation of the amount of compensation for breach of
contract.
25.
Finally, the Chamber also considered important to point out that, although the
employment contract was fully valid and enforceable, the execution of the
contract had never started.
26.
Taking into account all of the above, the Chamber concluded that the amount
of compensation for breach of contract without just cause to be paid by the
Respondent to the Claimant was to be fixed at EUR 70,000, which was to be
considered reasonable and justified as compensation for breach of contract.
27.
Subsequently, the DRC analysed the request of the Claimant corresponding to
a compensation for professional damage in the amount of EUR 1,000,000. In
this regard, the Chamber deemed it appropriate to point out that the request
for said compensation presented by the Claimant had no legal basis, nor did
the latter provide evidence that demonstrated the damage suffered. In this
context, the members of the Chamber referred to the general legal principle
of the burden of proof, according to which a party deriving a right from an
alleged fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of
the Procedural Rules). Moreover, the members of the DRC recalled that it had
already granted a compensation for the breach of contract two in the amount
of EUR 70,000 and, for that reason the Claimant could not claim any further
compensation. On account of the aforementioned, the DRC decided that the
request for compensation related to professional and image damages shall be
rejected.
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28.
Moreover, the Chamber analysed the request of the Claimant to be awarded
with possible bonuses that he could have achieved amounting to EUR 20,000.
The DRC considered that the new employment relation as agreed in contract
two, never came into effect, thus the Claimant could not have participated in
the matches played by the Respondent. Therefore, in accordance with its wellestablished jurisprudence, the members of the Chamber decided to reject the
claim for bonuses.
29.
On account of all the above, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay him an amount of EUR
70,000 as compensation for breach of contract plus 5% interest per year on the
said amount as from the date of this decision until the date of effective
payment.
30.
The Chamber concluded its deliberations by deciding that any further claims of
the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player A, is partially accepted.
2.
The Respondent, club O, is ordered to pay to the Claimant, player A, within
30 days as from the date of notification of this decision, compensation for
breach of contract in the amount of EUR 70,000, plus interest of 5% p.a. on
said amount as of the date of this decision until the date of effective payment.
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3.
If the aforementioned sum plus interest is not paid within the abovementioned time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for its consideration and a formal decision.
4.
Any further claims lodged by the Claimant, player A, are rejected.
5.
The Claimant, player A, is directed to inform the Respondent, club O,
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 motivated decision (legal remedy):
According to art. 67 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
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