Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 26 November 2015,
by Philippe Diallo (France), DRC judge,
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.
Player A from country B (hereinafter: the Claimant), and Club C from country D
(hereinafter: the Respondent), concluded an employment contract (hereinafter: the
contract) valid as from 8 June 2014 until 7 June 2019.
2.
The contract provided for a monthly salary of USD 1,000, payable to the Claimant
on the 10th of the following month.
3.
The contract also foresaw that the Respondent was to provide the Claimant with
accommodation and a return flight ticket Country B - Country D every season.
4.
On 18 June 2015, the Claimant informed the Respondent that he had not received
an invitation letter for a visa or a flight ticket to country D and it did not pay his
salary from the signing of the contract. The Claimant also questioned the
Respondent regarding the International Transfer Certificate (ITC). The Claimant
further explained that he “is stuck with an employment agreement but has not
received income. Due to the existing employment agreement no club is willing to
sign him”. The Claimant therefore offered the Respondent to sign a termination
agreement and “In the event [the Respondent] does not want to terminate the
employment agreement, but instead actually want to make use of the services of
[the Claimant] would need to apply for a visa and needs to receive a ticket”.
5.
On 23 June 2015, the Claimant put the Respondent in default, regarding the
outstanding amount of USD 11,000, granting it ten days to proceed to the payment.
6.
On 30 June 2015, the Claimant underlined the absence of reaction of the
Respondent and reiterated his will to play for the Respondent. The Claimant
informed the Respondent in this respect that he was still waiting for the invitation
letter for a visa and the flight ticket to country D. The Claimant also emphasised
that it had been almost a year without receiving any salary. The Claimant finally
warned the Respondent “in the event the current status doesn’t change the
[Claimant] will file a FIFA (DRC) petition by the end of this week”.
7.
On 7 July 2015, the Claimant lodged a complaint before FIFA against the
Respondent, requesting the following amounts:
USD 11,000 as outstanding salaries from 10 July 2014 until 10 May 2015, plus
5% interest p.a. as of 30 April 2015;
Player A, country B / Club C, country D
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USD 1,000 as salary due on 10 June 2015, plus 5% interest p.a. as of the date
of the decision.
Alternatively, in the event the Respondent claimed that it terminated the contract
with the Claimant, the latter requested compensation amounting to USD 55,200
corresponding to unpaid salaries and the remaining value of the contract, “minus
the estimated potential domestic income over the next 4 years”.
The Claimant also requested the imposition of sporting sanctions on the
Respondent as well as legal costs to be borne by the Respondent.
8.
According to the Claimant, as from the signing of the contract, the Respondent
never paid his salary.
9.
The Claimant then provided the statement of his former club, Club E, which
reported to the Football Association of country B on 10 July 2015 that the
Respondent had never requested the International Transfer Certificate (ITC) of the
Claimant until recently, although they concluded the transfer agreement on 23
October 2013.
10.
The Claimant subsequently acknowledged not having played for a year and
sustained that he had not received a proper training, resulting in his “development
being damaged seriously until he can resume competing in official matches”.
11.
The Claimant further asserted not being aware of any unilateral termination of the
contract by the Respondent but in the event that it replied that such is the case, the
Claimant was of the opinion that such termination was without just cause since he
alleged not having obstructed the execution of the contract.
12.
The Claimant also emphasised that in the best case scenario, and in order to limit
the income loss, he could conclude a “domestic contract” providing for a monthly
salary of USD 100, i.e. USD 4,800 over the next 4 years.
13.
In its statement of defence, the Respondent acknowledged that, in the first place, it
was interested in signing a professional contract with the Claimant and confirmed
its interest by sending to his agent, on 23 October 2013, an e-mail containing the
contract offer dated 8 June 2014. According to said offer, the employment contract
was to start on 8 June 2014, i.e. the day after the player turned 18 years old.
The Respondent further sustained that the Claimant arrived in country D on 25
January 2014 for trial and left the Respondent on 2 February 2014. In this respect,
the Respondent provided the Claimant’s e-ticket in order to corroborate its
allegations. During that period, the Respondent asserted that no professional
14.
Player A, country B / Club C, country D
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contract was signed as it was allegedly agreed with the Claimant that he “will settle
all the necessary documentation with visa and comes back to country D shortly
before 18 to sign professional contract with the [Respondent]”.
15.
The Respondent also acknowledged that “Before season 2014”, the Claimant was
“conditionally” included in its list of players in order to “make him allegeable to
play after signing of contract and receiving of International Transfer Certificate”.
16.
However, according to the Respondent, “Due to contact with [the Claimant] as well
as its representatives and contact persons was lost”, the Claimant never came back
to country D after 2 February 2014 and the Respondent thus could not conclude a
professional contract with the player. The Respondent underlined that the copy of
the contract offer was only remitted to it by the Claimant, bearing his signature, on
18 June 2015.
17.
In addition, and as a consequence of the foregoing, the Respondent stressed that it
did not register the Claimant with the Football Federation of country D or
requested his ITC. In this regard, the Respondent provided a statement from the
Football Federation of country D, specifying that “the professional transfer (…) was
never requested” and “his professional contract was never registered in Football
Federation of country D”.
18.
The Respondent therefore deemed that, since there was “no originally signed
professional contract” between the parties to date, it had no obligation to provide
the Claimant with visa documents. Also, referring to the Country D labour law
according to which “no organization can pay salary to foreign citizen before it
receive work and residence permit”, the Respondent emphasised that it was not
able to apply for a work permit for the Claimant since the latter never came back to
country D since 2 February 2014.
19.
Consequently, the Respondent rejected the Claimant’s claim, especially as regards
the payment of his salary as from June 2014.
20.
Notwithstanding the above, the Respondent maintained that it was still interested
in the Claimant’s services and was willing to “finalize signing of professional
contract” with him, under the same conditions offered beforehand.
21.
In his replica, the Claimant acknowledged that he was not in country D on 8 June
2014 to sign the contract with the Respondent and that the contract was dated 8
June 2014 and was signed by him in country B, at the same time as the transfer
agreement dated 23 October “2015” between himself, Club E and the Respondent
Player A, country B / Club C, country D
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“for the definitive transfer of [the Claimant]”. In this respect, the Claimant provided
a copy of the said transfer agreement dated 23 October 2013.
22.
According to said transfer agreement, the Respondent had to pay to Club E a
transfer compensation of USD 100,000 by 28 October 2013. The relevant transfer
agreement also provided that its validity was subject to the signing of the
employment contract between the Claimant and the Respondent. Therefore, the
Claimant deemed that it was unlikely that the Respondent was unaware of the
employment contract signed by both parties, before 18 June 2015.
23.
Moreover, the Claimant explained that between 7 July 2015, i.e. subsequent to his
claim before FIFA, and 13 July 2015, the Respondent and the Claimant exchanged emails, the Claimant mainly discussing the visa options and the Respondent stressing
the urgency of dealing with the transfer first since the “window close in 8 days”.
24.
Subsequently, the Claimant sustained that, on 14 July 2015, the Respondent made
him an offer to sign a new contract, which he refuted due to provisions which he
considered as a “severe deterioration” of his rights. The Claimant provided the email dated 14 July 2015 in this regard.
25.
On the same date, the Respondent replied to the Claimant, offering to amend the
relevant provisions and emphasising upon the Claimant’s former club, which was
the one apparently obstructing his transfer the previous year. In this respect, the email dated 14 July 2015 from the Respondent was provided by the Claimant.
26.
In view of the foregoing, the Claimant deemed that, up to its reply to his claim
before FIFA, the Respondent did not deny the existence of an employment contract
with the Claimant. Therefore, the Claimant maintained his previous request and
added a further amount of USD 4,000 as outstanding salary from 10 July to 10
October 2015.
27.
Finally, the Claimant reiterated that he was willing to comply with the terms of the
contract but reserved his right to terminate the said contract with the Respondent,
on the basis of the Respondent’s breach and, thus, to claim for compensation.
28.
In spite of having been invited to do so, the Respondent did not provide its final
comments as per the matter at stake.
29.
Upon FIFA’s request, the Claimant confirmed that he “has not terminated the
contract with the [Respondent] nor signed a contract with another club”.
Player A, country B / Club C, country D
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II.
Consideration of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 7 July 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
With regard to the competence of the DRC judge to decide on the present matter,
the DRC judge referred to art. 3 par. 2 and par. 3 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 2015) the
DRC judge 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.
Moreover, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in
the present dispute which value does not exceed CHF 100,000.
4.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2015), and considering that the present claim was lodged on 7 July 2015, the 2015
version of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC judge
started by acknowledging the above-mentioned facts as well as the documentation
contained in the file. However, the DRC judge emphasised that in the following
considerations he will refer only to facts, arguments and documentary evidence
which he considered pertinent for the assessment of the matter at hand.
6.
In this respect, the DRC judge took note of the Claimant’s correspondence sent on
18 June 2015 to the Respondent, by means of which the Claimant inter alia
informed the Respondent that he had not yet received an invitation letter for a visa
or a flight ticket to travel to country D as well as it had not paid his salary from the
signing of the contract; thus offering the Respondent an option to terminate
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amicably the contract. The DRC judge also took into account the Claimant’s default
notice addressed to the Respondent on 23 June 2015.
7.
In continuation, the DRC judge noted that the Claimant lodged a claim against the
Respondent, claiming from the latter, in principal, his unpaid salaries as from the
signing of the contract and, alternatively, compensation corresponding to the
residual value of the contract. In particular, the DRC judge observed that the
Claimant asserted that the Respondent never paid him his salary, did not provide
him with a flight ticket in order to go to country D, and consequently could not play
for more than a year. The DRC judge also took note that the Claimant was not
aware of any unilateral termination by the Respondent but in the event it was the
case, the Claimant deemed that such termination was without just cause.
8.
The DRC judge also took note that the Respondent, on the other hand, deemed
that the relevant document serving as employment contract was part of an offer
made to the Claimant’s agent on 23 October 2013, and that no professional contract
was further concluded between the parties. The DRC judge further observed that
the Respondent alleged that the Claimant left the country on 2 February 2014 after
his trial with the Respondent and never came back to sign a “professional contract”
so that the Respondent was thus unable to provide him with visa documents, to
register him with the Football Federation of country D or request his ITC. The DRC
judge finally noted that the Respondent was still interested in the Claimant’s
services and was willing to sign a “professional contract” with the Claimant.
9.
From the outset, the DRC judged highlighted that there did not seem to be any
disagreement between the parties as to the fact that the terms of the agreement
were not performed. Thereafter, the DRC judge focused his attention on the
question as to whether a legally binding employment contract had been concluded
by and between the Claimant and the Respondent.
10.
In this respect, the DRC judge recalled 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 contain the essentialia negotii of an employment
contract, such as the parties to the contract and their role, the duration of the
employment relationship, the remuneration and the signature of both parties. After
a careful study of the document serving as employment contract presented by the
Claimant, the DRC judge concluded that all such essential elements are included in
the pertinent document, in particular, the fact that the contract established that the
Claimant was entitled to receive remuneration, i.e. a monthly salary in the amount
of USD 1,000, in exchange for his services to the club as a player.
Player A, country B / Club C, country D
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11.
In addition, the Chamber deemed it important to highlight that the employment
contract bore the signature of both parties, which was not contested by the
Respondent.
12.
Consequently, and regardless the date of signature of the employment contract at
the basis of the present dispute, the DRC judge decided that the Respondent’s
argument as to the fact that the parties had not signed a “professional contract”
was to be rejected and that the employment contract set to run as from 8 June 2014
until 7 June 2019 was valid and legally binding.
13.
Subsequently, the DRC judge outlined that it was uncontested that the Claimant left
country D after his trial with the Respondent ended on 2 February 2014 and did not
come back afterwards. In this regard, the DRC judge deemed it fit to emphasise that
if the Respondent was effectively interested in starting or continuing the
contractual relationship with the Claimant, it should have, in the first place,
requested his ITC, registered the player with the Football Federation of country D
and also urged the Claimant to travel back to country D by providing him a flight
ticket to do so, as explicitly foreseen in the contract. However, and instead of doing
so, the DRC judge stressed that the Respondent did not provide him with the
relevant flight ticket and remained inactive until the Claimant decided to lodge a
complaint in front of FIFA on 7 July 2015. In view of the above, the DRC judge held
that the Respondent’s attitude clearly demonstrated that it was no longer
interested in maintaining the contractual relationship.
14.
The DRC judge acknowledged, on the other hand, that albeit the Claimant
satisfactorily proved having informed the Respondent, on 18 June 2015 and 23 June
2015, of its non-compliance with the contract, the Claimant had remained silent
prior to that date and had not taken any other measure in order for the contract to
be executed until June 2015, i.e. for about a year, manifesting by doing so his
satisfaction with the situation and, like the Respondent, his lack of interest in
maintaining the contractual relationship.
15.
In light of the foregoing, the DRC judge held that both parties, by their respective
behaviour, manifestly expressed their intention of not executing their reciprocal
obligations and being no longer bound by the contractual relationship. Therefore
the DRC judge concluded that none of them could be held liable for the nonexecution of the contractual relationship.
16.
All the above led the DRC judge to conclude that the claim of the Claimant had to
be rejected.
Player A, country B / Club C, country D
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III.
Decision of the DRC judge
The claim of the Claimant 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 DRC judge:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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