Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 November 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Theodore Giannikos (Greece), member
Mohamed Al-Saikhan (Saudi Arabia), member
on the claim presented by the player,
Player 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 case
1.
On 22 November 2013, the player from country B, Player A (hereinafter player or
Claimant) and the club from country D, Club C (hereinafter club or respondent)
signed an employment contract valid as from 15 December 2013 until 15
November 2014.
2.
According to the contract, the club inter alia undertook to pay the player a net
monthly salary of USD 6,000.
3.
According to art. 3 of the contract, the club undertook to pay the player the
amount of 127,000 as “return airfare compensation”, “to be paid to player on
signing/arrival”.
4.
Art. 4 of the contract refers to an agent named Agent E and a fee payable to him.
5.
On 7 January 2014 and 10 January 2014 respectively, the player wrote two letters
to the club maintaining that whereas art. 3 of the contract provides that “the club
shall provide to the player, on the moment of the signing/arrival, with a return
flight ticket from country B to country D”, the club never contacted him in order
to organise his travel to country D.
6.
In the same letter, the player also highlighted that he was still willing to execute
the contract and he granted the club a time limit until 13 January 2014 to inform
him as to whether it intended to execute the contract or to explain its reasons not
to do so. The player specified that in the absence of answer from the club, he will
(i) consider the contract as terminated by the club without just cause, (ii) consider
himself free to join another club and (iii) lodge a claim against the club.
7.
On 14 January 2014, the club explained to the player by email that as the player’s
aforementioned agent had informed the club on 30 November 2013 that “for
Player A, we will move on, since he is not going there for trials at all”, the club
considered its commitment towards the player as cancelled and the “pre-contract”
signed with the player as null and void. The club added that, in good faith, it
stopped all contacts with the player and that it had proceeded to recruit as many
foreign players as the applicable quota allowed, as the club was unaware that the
player was actually willing to execute the contract until it received the player’s
notices.
8.
On 14 January 2014, by email, the player rejected the club’s argumentation
maintaining that the agent was not in a position to terminate the employment
contract, which he considered to be a valid and binding employment contract.
9.
By means of an email dated 16 January 2014, the club replied that it had no other
contact person but said player’s agent to communicate with the player. In this
Player A, country B / Club C, country D
2
respect, the club held that the player was informed to buy his flight ticket and that
the club would reimburse him upon his arrival.
10.
On 3 February 2014, the player lodged a claim for breach of contract against the
club before FIFA maintaining that the club is to be held liable for the termination
of the contract without just cause as it no longer was interested in his services.
Therefore, the player asked to be awarded compensation in the amount of USD
66,000, i.e. the eleven monthly payments provided for in the contract, plus interest
to be applied as from 16 January 2014.
11.
Furthermore, in addition to the payment of the player’s legal costs to be fixed ex
aequo et bono, the player asked that sporting sanctions be imposed upon the club.
12.
In his statement of claim, the player stressed that the document signed by and
between the player and the club is a binding employment contract. However, the
club terminated said contract unilaterally “or, alternatively, assumed the contract
to be terminated, without even informing or agreeing such a termination with the
player”. In this respect, the player stressed that the club knew that the player was
still willing to execute the contract at hand.
13.
In continuation, the player held that the club wrongly believed that the agent was
entitled to terminate the contract on the player’s behalf. In this respect, the player
specified that said intermediary was not acting in this transaction as the licensed
player’s agent, as he is “not even” a licensed players’ agent, “but merely as an
intermediary”. In this regard, the player held that there is no representation
agreement between him and said intermediary and that the latter is not presented
as the player’s agent in the contract. However, should it be considered that the
intermediary “acted in the present transaction merely in the interest of the player,
which is strongly denied”, he was not able to waive the player’s rights or to sign a
termination agreement on the player’s behalf.
14.
Furthermore, the player asserted that the club lacked diligence as it did not try, for
instance via said intermediary, or via the Football Federation from country B, to
contact the player.
15.
Bearing in mind the club’s reference to trials, the player stated that even if the
contract had contained a related provision, the validity of an employment contract
cannot be subject to the performance of a successful test by the player.
16.
In the player’s opinion, since he refused to undergo a test, the club did not want
to recruit him any longer, which is allegedly confirmed by the club’s own
statement that it had recruited as many foreign players as its quota allowed. In this
respect, the player deemed that by having done so, the club breached the contract
with the player as it deprived him of the possibility to join the club.
Player A, country B / Club C, country D
3
17.
In spite of having been invited to present its position in relation to the claim
lodged against it, no response was received from the club within the given timelimit. However, after the closure of the investigation phase related to the matter
at hand, the club presented its reply to the claim.
18.
The club asserted that it only communicated with the player through the
intermediary involved in the negotiations and stopped after “the player himself
was informed that a full contract would not be committed to until after the player
had held a trial with the club on arrival in country D.” Afterwards, the club
indicated having been informed by the intermediary on 30 November 2013 that
“we wouldn’t move forward with [the player] and that [the intermediary] had
informed [the player] that all obligations had been terminated.
19.
Therefore, the club deemed that none of the parties had obligations towards the
other as from 30 November 2013 and stressed that it did not hear from the player
until 10 January 2014, i.e. about 40 days after it had understood that the parties
were no longer having any obligations towards each other.
20.
In continuation, the club held that its obligations towards the player were “null
and void” and referred in this respect to the email exchanged with the player’s
legal representative in January 2014.
21.
The club rejected the player’s claim for compensation and stressed that, if the
player deemed that he was contractually bound to the club, he should have
travelled to country D and have started executing the contract as from December
2013, which he never did.
22.
On 12 February 2014, the player signed an employment contract with the club
from country B, Club F, entering into force on the same date and initially valid
until 28 November 2014, in accordance with which the player was to receive a
monthly salary in the amount of 1,000 (USD 414).
23.
However, the player explained that the above-mentioned contract was mutually
terminated on 10 June 2014 and that he remained unemployed since then.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 3 February 2014. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 of
the Procedural Rules).
Player A, country B / Club C, country D
4
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 and par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014), 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 player from country B and a club from country
D.
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 2014), and considering that the present claim was lodged on 3 February
2014, the 2012 edition of said regulations (hereinafter: 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 available on file. 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.
5.
Subsequently, the DRC observed that the Respondent, for its part, in spite of
having been invited to do so, failed to present its response to the claim of the
Claimant within the relevant time-limit. In fact, the reply of the Respondent was
only received after the investigation-phase of the matter had already been
concluded.
6.
As a result, the DRC decided not to take into account the reply of the Respondent
and established that, in accordance with art. 9 par. 3 of the Procedural Rules, the
DRC shall take a decision upon the basis of those documents on file that were
provided prior to the closure of the investigation-phase, in casu, upon the
statements and documents presented by the Claimant.
7.
In continuation, the DRC acknowledged that the parties signed an employment
contract valid as from 15 December 2013 until 15 November 2014. However, the
Chamber took into consideration that according to the Claimant, the Respondent
failed to organise the Claimant’s travel to country D in order for him to start
rendering his services to the Respondent.
8.
Also, the Chamber duly noted that the Claimant stressed that the club wrongfully
relied on some apparent intermediary’s statement to erroneously consider that the
contract signed by and between the parties had been terminated.
Player A, country B / Club C, country D
5
9.
Having recalled the aforementioned, the Chamber deemed it relevant to turn its
attention to the terms of the employment contract signed between the parties
and could verify in this regard that art. 3 of the contract at stake reads “return
airfare compensation of 127,000 – to be paid to player on signing/arrival”.
10.
In this context, the Chamber firstly deemed that contrary to the Claimant’s
statement that the Respondent would have acted in breach of contract by not
having provided him with a flight ticket to join the club in country D, said
provision actually stipulated that the amount of such fare could either be paid at
the moment of the signature of the contract or upon the Claimant’s arrival at the
Respondent’s premises in country D.
11.
As a result of the aforementioned, the Chamber unanimously concluded that the
Respondent did not commit any breach of contract by not having proactively
provided the Claimant with the flight ticket he needed to join the club.
12.
In view of the above, the members of the Chamber agreed that the Claimant’s
argument in this respect was to be rejected.
13.
What is more, and bearing in mind that the contract at stake was signed on 22
November 2013, the DRC had difficulties to understand how the Claimant could
possibly remain silent and wait until 7 January 2014, i.e. 45 days after the signing
of the contract, or, more importantly, 23 days after said contract had already
entered into force, to contact the Respondent to reproach it the non-transmission
of a flight ticket that, as previously established, the club was not necessarily
contractually bound to provide to the Claimant in advance.
14.
In view of the foregoing, the DRC members unanimously agreed that the nonexecution of the employment contract at hand resulted of the Claimant’s lack of
diligence and failure to execute his own contractual obligation of joining the
Respondent on 15 December 2013 at the latest, i.e. on the date of commencement
of the employment relationship according to the contract signed between the
parties. Indeed, the Chamber held that should the Claimant have really wished to
start executing the contract, as he declares he was, it was his contractual
responsibility to join the Respondent at his own costs before asking the
reimbursement of his flight ticket, as per the contractual terms at stake.
15.
More generally, the Chamber was convinced that the Claimant’s above-described
behaviour revealed his absence of bona fide intention to join the Respondent to
execute the contract at stake, which is corroborated by the fact that on 12
February 2014, the Claimant committed to join another club within the framework
of an employment contract valid until 28 November 2014.
16.
In view of the aforementioned considerations, the Dispute Resolution Chamber
decided that the claim lodged by the Claimant against the Respondent is rejected.
Player A, country B / Club C, country D
6
*****
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is rejected
*****
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
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
7