Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2015,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Leonardo Grosso (Italy), member
John Bramhall (England), member
on the claim lodged by the club,
Club A, Country B,
as Claimant
against the player,
Player C, Country B
as Respondent I
and the club,
Club D, Country E
as Respondent II
and the club,
Club F, Country G,
as Respondent III
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 9 August 2012, the Player of Country B, Player C (hereinafter: the Respondent I),
and the Club of Country B, Club A (hereinafter: the Claimant or Club A), concluded
a “fixed-term” employment contract (hereinafter: the contract), valid as of the date
of signature until 30 June 2014.
2.
On the same day, the parties concluded an agreement (hereinafter: the agreement),
also valid as of 9 August 2012 until 30 June 2014.
3.
Pursuant to the contract, the Respondent I was entitled to receive a monthly
remuneration of 2,100,000.
4.
Clause 2.2 of the contract further provides that “[i]n case the [Respondent I] does
not comply totally or partially with the present contract, he will pay to the
[Claimant] a compensation that will include the damnum emergens which consists
in the total value of the amounts due as per the labour relationship as of the
termination until the end of the contract and the lucrum cessans which will consist
in the return of the value of the sporting rights that the parties consider being
equivalent to USD 2,000,0000 (…)” (note: free translation).
5.
As per the agreement, the Claimant undertook to pay the Respondent I the amount
of 1,400,000 as monthly bonus as well as the amount of 750,000 as accommodation
allowance.
6.
On 16 April 2014, the Respondent I, referring to art. 46 of the Labour Code of
Country B, informed the Claimant that he had no intention to prolong the
contractual relationship that was due to expire on 30 June 2014.
7.
On 22 April 2014, the Claimant offered a new contract to the Respondent I for two
more years, increasing his remuneration by 200%.
8.
On 8 and 21 August 2014, the Respondent I returned to the Claimant the amount of
1,050,000 and 2,280,000 respectively that the latter had just deposited in his bank
account, while stressing that he was no longer bound to it.
9.
On 25 August 2014, the Claimant replied to the Respondent I emphasising that it
did not accept his “resignation letter” dated 16 April 2014 and that therefore he
was still bound to the Claimant.
10.
On 21 November 2014, the Respondent I and the Club of Country E, Club D
(hereinafter: Club D or the Respondent II), entered into an employment contract,
Club A, Country B / Player C, Country B / Club D, Country E / Club F, Country G
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valid as of the date of signature until 31 August 2016 and according to which the
Respondent I was entitled to receive a monthly remuneration of 15,000.
11.
On 13 January 2015, the Single Judge of the Players’ Status Committee of FIFA
authorised the provisional registration of the Respondent I with Club D.
12.
On 20 April 2015, the Claimant lodged a claim in front of FIFA against the
Respondent I, Club D and Club F (hereinafter: Club F or the Respondent III), holding
them jointly and severally liable for breach of contract without just cause and
inducement to the breach respectively. In particular, Club A requests the amount of
USD 4,750,097, plus interests as of the respective due dates, broken down as
follows:
- USD 9,800 corresponding to the residual value of the contract until December
2014, plus interests as well as the unknown value of the contract concluded with
Club F;
- USD 3,050,000 as lucrum cessans, broken down as follows:
USD 50,000 as training compensation that is theoretically due by a club of
category IV such as Club D;
USD 1,000,000 as transfer fee paid by Club F to Club D and that Club A should
have received;
USD 2,000,000 corresponding to the lucrum cessans as per clause 2.2 of the
contract;
- USD 40,297 as damnum emergens, broken down as follows:
USD 2,692 as attorney fees;
USD 37,605 corresponding to the damnun emergens as per clause 2.2 of the
contract considering the residual value of the contract until May 2016;
- USD 1,650,000 as loss of a chance, broken down as follows:
USD 1,000,000 as the transfer fee that it would have received if it had
transferred the Respondent I to a Club of Continent H;
USD 650,000 as training compensation that it would have received if it had
transferred the Respondent I to a Club of Continent H.
13.
In addition, the Claimant requests the imposition of disciplinary sanctions as well as
sporting sanctions on the Respondent I, the Respondent II and the Respondent III.
14.
In its claim, the Claimant explains that the Respondent I’s refusal of the offer made
on 22 April 2014 has to be considered as a breach of his duty of professional loyalty,
all the more considering the investment made to train the Respondent I since he
was 12 years old. In this respect, Club A asserts that according to the
FIFA’sRegulations on the Status and Transfer of Players, in case a club has offered a
new contract to a player before the expiry of its previous contract, the latter has the
obligation to accept it. In view of the above, and in particular considering the
significant salary increase offered, Club A alleges that the Respondent I had the
obligation to accept the offer and remain with Club A.
Club A, Country B / Player C, Country B / Club D, Country E / Club F, Country G
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15.
Furthermore, Club A points out that in accordance with art. 46 of the Labour Code
of Country B, the fixed-term contract was automatically renewed for the same
period of time as initially agreed.
16.
In continuation, the Claimant sustains that irrespective of the above, the
Respondent I was obliged to remain with it at least until the end of the protected
period, i.e. December 2014 which corresponds to the end of the 2014 closing
tournament in Country B.
17.
In light of the foregoing, Club A concludes that when the Respondent I entered into
a contract with Club D, i.e. in November 2014, he was still bound to Club A and
should therefore be held liable for breach of contract and Club D for inducement to
the breach.
18.
Moreover, the Claimant stresses that the Respondent I only played for one and a
half month with Club D, which, according to Club A, evidences that the signing was
only made with the aim of reducing the training compensation payable.
19.
Finally, Club A maintains that Club F was aware of the contractual dispute between
the Respondent I and the Claimant and should have therefore waited for the
dispute to be solved before entering into a contract with the Respondent I.
Consequently, and having failed to do so, the Claimant affirms that Club F should
also be held liable for the breach of contract.
20.
In his reply to Club A’s claim, the Respondent I stresses that on 16 April 2014, he
expressed his intention to leave the Claimant at the expiry of the contract, i.e. 30
June 2014. In this regard, the Respondent I outlines that, in response to his letter,
the Claimant’s president sent a text message stating to his representative the
following: “Hello Mr I, we have received [the Respondent I’s] correspondence. We
regret it, but as per the terms of the latter, we have to accept it, at the expiry of the
contract”.
21.
In addition, the Respondent I points out that according to art. 46 of the Labour
Code of Country B, a fixed-term contract is automatically renewed if, and only if,
none of the parties has expressed, with a 30-day notice, its will of not prolonging
the contractual relationship.
22.
In view of the above, and in particular considering the notice given on 16 April
2014, the Respondent I concludes that his contract with the Claimant expired on 30
June 2014 and that as of that date, he was free to conclude a contract with another
club.
23.
For its part, Club D rejects the Claimant’s argument as to the automatic renewal of
the contract and insists that when it concluded a contract with the Respondent I,
the latter was a free agent.
Club A, Country B / Player C, Country B / Club D, Country E / Club F, Country G
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24.
Furthermore, Club D emphasises that the concept of protected period aims at
maintaining the contractual stability, but not at prolonging the duration of the
contract mutually agreed between the parties.
25.
Finally, Club D reiterates the arguments put forward by the Respondent I.
26.
For its part, Club F first highlights that when it entered into a contract with the
Respondent I, it was not aware of any contractual dispute.
27.
In continuation, Club F asserts that it cannot be considered as the new club for the
purposes of art. 17.2 of the Regulations on the Status and Transfer of Players.
Consequently, Club F concludes that the Dispute Resolution Chamber lacks
jurisdiction over it in this matter.
28.
In its replica, the Claimant affirms that it has never accepted the Respondent I’s
resignation.
29.
In addition, Club A reiterates that Club F should have been aware of the dispute
since it was indicated in the International Transfer Certificate.
30.
Finally, Club A refers to several decisions of the FIFA Dispute Resolution Chamber
and of the Court of Arbitration for Sport allegedly confirming the Respondent I’s
obligation to remain with it in case of a favourable offer, and its right to
compensation since the Respondent I used a third club as a bridge to leave it.
31.
In their respective final comments, Club D and Club F reiterate their position.
32.
In spite of having been invited to do so, the Respondent I did not submit any final
comments.
33.
According to the information uploaded into the Transfer Matching System, the
Respondent I and Club F entered into an employment contract, valid as of 1 January
2015 until 31 December 2017, according to which he was entitled to the following
annual gross remuneration:
- 2015: USD 50,000;
- 2016: USD 80,000;
- 2017: USD 100,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 20 April
2015. Consequently, the 2015 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Club A, Country B / Player C, Country B / Club D, Country E / Club F, Country G
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Procedural Rules) is 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. a) of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns a dispute between a club and a player as well as his
new clubs in relation to the maintenance of contractual stability where there has
been an ITC and a claim from an interested party regarding the payment of
compensation for breach of contract.
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
2015), and considering that the present claim was lodged on 20 April 2015, the 2015
version of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
4.
Furthermore, the DRC wished to point out that when deciding a dispute before the
DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this
regard the Chamber emphasised that the main objective of the FIFA regulations is to
create a standard set of rules to which all the actors within the football community
are subject to and can rely on. This objective would not be achievable if the DRC
would have to apply the national law of a specific party on every dispute brought to
it.
5.
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 submitted by the parties. 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.
6.
In doing so, the members of the Chamber acknowledged that, on 9 August 2012,
the Claimant and the Respondent I concluded an employment contract valid until 30
June 2014. The Chamber further observed that, according to the Claimant, the
contractual relationship with the Respondent I was extended beyond 30 June 2014.
In this regard, the DRC noted that the Claimant sustains that the renewal of the
contract was automatic and resulted from the Respondent I’s obligation to accept
its offer, increasing his salary by 200%, made on 22 April 2014. Furthermore, the
Chamber also took note of the Claimant’s allegations according to which the
Respondent I breached the alleged contractual relationship by signing a contract
with the Respondent II.
Club A, Country B / Player C, Country B / Club D, Country E / Club F, Country G
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7.
The DRC further took due note of the fact that the Respondent I, on its part, asserts
that the contractual relationship expired on 30 June 2014, highlighting the fact that
he had previously informed the Claimant that he had no intention to prolong the
contractual relationship after 30 June 2014.
8.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them was in force beyond 30
June 2014, the members of the Chamber firstly referred to art. 12 par. 3 of the
Procedural Rules, according to which any party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. The application of the said
principle in the present matter led the members of the Dispute Resolution Chamber
to conclude that it was to the Claimant to prove that the employment contract, on
the basis of which it claims compensation for breach of contract from the
Respondent I, indeed existed.
9.
Having stated the above, the Chamber first outlined that it is uncontested that the
Respondent I has never expressed a formal acceptance of the offer made by the
Claimant on 22 April 2014. In this regard, the DRC deemed it useful to underline
that on 16 April 2014, i.e. prior to the offer, the Respondent I had already expressed
his intention to leave the Claimant on 30 June 2014, which had been accepted by
the Claimant’s president.
10.
In continuation, the DRC turned its attention to the Claimant’s allegation regarding
the Respondent I’s obligation to accept the offer and the automatic renewal of the
contractual relationship resulting therefrom. In this respect, the Chamber was eager
to point out that the Claimant seems to misinterpret the provisions of the
Regulations to which it makes reference. Indeed, the Chamber emphasised that no
provision in said Regulations precludes a player from refusing an offer made by his
current club and thus, obliges him to remain at the club. In this respect, the
members of the Chamber stressed that the only provisions contemplating the
notion of offer and its consequences are applicable in the particular matter of
training compensation within the EU/EEA and only concern the former club’s right
to claim said training compensation but in no way impose obligations to players.
11.
In respect of the foregoing, the members of the Chamber held that the Claimant
did not prove that the Respondent I had accepted the offer made on 22 April 2014.
Consequently, the Chamber concluded that the contractual relationship had not
been prolonged and therefore came to an end at the expiry of the contract
concluded on 9 August 2012, i.e. on 30 June 2014.
12. As a consequence, the DRC decided that, since the Claimant had not been able to
prove that a contractual relationship was in force beyond 30 June 2014, there was
no possibility for the Chamber to enter into the question whether or not such
alleged employment contract had been breached.
13. All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
Club A, Country B / Player C, Country B / Club D, Country E / Club F, Country G
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Club 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
Club A, Country B / Player C, Country B / Club D, Country E / Club F, Country G
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