Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 November 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Jean-Marie Philips (Belgium), member
Ivan Gazidis (USA), member
Mick Mc Guire (England), member
Philippe Piat (France), member
on the claim presented by the player
D., South Africa,
represented by F., South Africa,
as Claimant
against the club
M., Russia,
as Respondent,
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
The player, D., approached FIFA on 6 April 2005, stating that he had signed a
three-year employment contract with M. from March 2004 to January 2007. The
player submitted three documents in Russian and English that had been signed by
both parties and entitled “Additional Agreement”. The first document was dated
28 January 2004 and provided for a bonus system to be paid to the player by the
club from 20 March 2004 up to 20 January 2005:
-
2.
before 20 March 2004:
Before 31 March 2004:
Before 20 April 2004:
Before 20 May 2004:
Before 20 June 2004:
Before 20 July 2004:
Before 20 August 2004:
Before 20 September 2004:
Before 20 October 2004:
Before 20 November 2004:
Before 20 December 2004:
Before 20 January 2005:
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
8,000
20,000
8,000
8,000
8,000
8,000
8,000
8,000
8,000
8,000
8,000
4,000
The second document was dated 1 December 2004 and provided for a bonus
system to be paid to the player by the club from 20 January 2005 up to 20 January
2006 (in brackets if he played in less than 50% of the club’s official matches):
-
3.
Before 20 January 2005:
Before 20 February 2005:
Before 28 February 2005:
Before 20 March 2005:
Before 20 April 2005:
Before 20 May 2005:
Before 20 June 2005:
Before 20 July 2005:
Before 20 August 2005:
Before 20 September 2005:
Before 20 October 2005:
Before 20 November 2005:
Before 20 December 2005:
Before 20 January 2006:
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
4,000
9,000
20,000
9,000
9,000
9,000
9,000
9,000
9,000
9,000
9,000
9,000
9,000
4,500
(USD
(USD
4,000)
9,000)
(USD
(USD
(USD
(USD
(USD
(USD
(USD
(USD
(USD
(USD
(USD
9,000)
9,000)
9,000)
9,000)
9,000)
9,000)
9,000)
9,000)
9,000)
9,000)
4,500)
The third document was dated 1 December 2005 (sic) and also provided for a
bonus system to be paid to the player by the club from 20 January 2006 up to 20
January 2007: (in brackets if he played in less than 50% of the club’s official
matches):
-
Before 20 January 2006:
Before 20 February 2006:
USD
USD
4,500
10,000
(USD 4,500)
(USD 10,000)
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4.
Before 28 February 2006:
Before 20 March 2006:
Before 20 April 2006:
Before 20 May 2006:
Before 20 June 2006:
Before 20 July 2006:
Before 20 August 2006:
Before 20 September 2006:
Before 20 October 2006:
Before 20 November 2006:
Before 20 December 2006:
Before 20 January 2007:
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
20,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
5,000
(USD 10,000)
(USD 10,000)
(USD 10,000)
(USD 10,000)
(USD 10,000)
(USD 10,000)
(USD 10,000)
(USD 10,000)
(USD 10,000)
(USD 10,000)
(USD 5,000)
The player stated that the club disputed the existence of a contract that extended
longer the first twelve months and that year 2 (20 January 2005 to 20 January
2006) and year 3 (20 January 2006 to 20 January 2007) constituted only options for
prolonging the contract. There is, however, no mention of options in the three
documents. The player states that he was injured during the first season and
underwent an operation and physiotherapy. The club had been fully informed of
what was happening. When he returned, the club informed him that he was no
longer under contract. He then returned to South Africa. The player therefore
claimed the remaining contractual amount from January 2005 to the year 2007.
5.
On 3 May 2005, the Russian club confirmed that the parties had signed an
employment contract on 28 January 2004.
6.
The club explained that the contract had been signed in a 1+1+1 system, i.e. that
after the expiry of twelve months a new contract could be signed that would bind
the player to the club for another twelve months. The parties had thus signed an
employment contract on 1 December 2004 for the period 16 December 2004 to
15 December 2005. The club produced this employment contract in Russian with
an English translation. Art. 4.2. stipulated that the contract could only be
prolonged if both parties agreed in writing. The contract provided for a monthly
salary of RUB 8,300 (ca. USD 270). The contract also stated that a bonus system
would be arranged by the club's general manager. The contract also stipulated
that the contract and additional agreement would become invalid if any of the
following conditions arose (art. 7 of the contract):
-
the coach did not call the player to take part in the pre-season
preparations for the 2005 season;
-
the player did not send the club a document certifying that he had a basic
command of Russian by 15 December 2004;
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-
the player did not sent the club a document by 15 December 2004 proving
that he had played in at least ten "A" national team matches for South
Africa.
7.
The contract also stipulated that if any one of these conditions was not fulfilled,
the employment agreement between the player and the club would be regarded
as having been annulled as from 15 December 2004 with no further entitlement to
claims between the parties.
8.
The club therefore pointed out that as the player had not fulfilled these
conditions, the contract had been annulled and the player had been able to sign
an employment contract with a club of his choice without demanding a transfer
fee. Moreover, the club had fulfilled all of its commitments for the 2004 season.
The annexes to the contract could not be regarded as independent documents and
had only been signed to confirm the future bonus system to the player. The club
finally submitted a document in which the player confirmed that the club had
fulfilled all of its commitments up to 15 December 2004.
9.
The player disputed the 1+1+1 system presented by the club. This had never been
discussed in this way. The player also rejected the statement that the additional
agreements could not be regarded as separate. The additional agreements were
independent of one another and confirmed that the parties had consented to a
valid and binding contract until 2007. Art. 7 of the contract did not apply to the
additional agreements. The claim that the additional agreements were only
intended as confirmation for future bonus systems was untenable. It was therefore
disputed that the contract had been annulled in December 2004. The player
therefore reaffirmed his claim and demanded the amounts in the additional
agreements for the period from 1 January 2005 to 20 January 2007. As he had
already found a new club, he was prepared to withdraw his claim against payment
of the amount of USD 69,000. This sum corresponded to the amounts that he
would have earned with the Russian club between January and June 2005 in
accordance with the additional agreement. He had been unemployed for this
period of six months and had received no income whatsoever. If this proposal for
an amicable agreement was not accepted, the entire sum would be claimed in
accordance with the contract.
10.
On 28 July 2005, the club reaffirmed its legal claim and rejected the proposal for
an amicable solution as the contract had been annulled on 15 December 2004.
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II.
Considerations of the Dispute Resolution Chamber
1.
Since the claim at hand had been lodged prior to 1 July 2005 and concerns an
employment contract concluded on 1 December 2004, the September 2001 edition
of the Regulations for the Status and Transfer of Players (hereinafter the
Regulations) shall apply (cf. art. 26 par. 1 of the July 2005 Regulations).
2.
The Dispute Resolution Chamber of the FIFA Players’ Status Committee shall
review disputes coming under its jurisdiction pursuant to art. 42 of the Regulations
at the request of one of the parties to the dispute.
3.
According to art. 42 par. 1 lit. (b) (i) of the Regulations, the triggering elements of
the dispute (i.e. whether a contract was breached, with or without just cause, or
sporting just cause), will be decided by the Dispute Resolution Chamber.
4.
If an employment contract is breached by a party, the Dispute Resolution Chamber
is responsible to verify whether a party is accountable for compensation and
outstanding payments.
5.
Therefore, the members of the Dispute Resolution Chamber at first confirmed to
be competent to pass a decision in this matter. In addition, the Chamber
acknowledged the above-mentioned facts as well as the further documentation
contained in the file.
6.
Subsequently, and entering into the substance of the matter, the Chamber
considered that the player D. and the club M. were uncontestedly in a contractual
relationship as from 20 March up to 20 January 2005, that the player duly
rendered his services for the club and that all due amounts for this period had
been paid to the player.
7.
The Chamber also noted that the parties duly signed the four following
documents, which have to be considered for the decision in the present case:
-
an employment contract for the period 16 December 2004 up to 15
December 2005 (handed out by the club);
-
an additional agreement to the employment contract for the period 20
March 2004 up to 20 January 2005 (handed out by the player);
-
an additional agreement to the employment contract for the period 20
January 2005 up to 20 January 2006 (handed out by the player);
-
an additional agreement to the employment contract for the period 20
January 2006 up to 20 January 2007.
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8.
In this regard, the Chamber pointed out that the documents entitled “additional
agreement” can only deploy legal effects, if the basic employment contract is
legally binding. The Chamber took note that the employment contract concluded
on 1 December 2004 for the period 16 December 2004 to 15 December 2005 is not
contested by the player and is therefore the principal document on which the
Chamber has to base its decision.
9.
In the case at hand, the employment contract signed on 1 December 2004
contained several conditions, which had to be fulfilled that the contract deploys
legal effects over its whole duration such as the call to take part in the pre-season
preparations by the coach of the club and the delivery of documents by the player
(a certificate for the basic command of the Russian language and a proof of ten
line-ups in the “A” national team for South Africa). The Chamber emphasised that
the first condition cannot be backed but left open the question if the club could
invoke this condition and whether the club would be still legally bound by the
contract or not in the case of non-fulfilment of the first condition.
10.
However, the Chamber asserted that the two other conditions (the delivery of the
language certificate and the proof of the ten line-ups for South Africa) have not
been fulfilled by the player within the stipulated timeframe until the 15 December
2004, thus a fortnight after the signature of the contract on 1 December 2004. The
Chamber took into account that the parties clearly stipulated that in case of nonfulfilment of one of these conditions, the contract would “not come into legal
force from 16 December 2004”.
11.
Subsequently, the Chamber stated that the player did not contest that he did not
furnish the club with the abovementioned documents within the stipulated
fortnight-long timeframe and pointed out that he did not provide FIFA with any
proof regarding the fulfilment of these contractual conditions.
12.
As a result, the Chamber unanimously concluded that the employment contract
concluded on 1 December 2004 does not deploy legal effects and that the club is
no more legally bound to the player as from 16 December 2004. Therefore, the
documents entitled “additional agreement” cannot be taken into consideration.
13.
Consequently, having thus analysed the various aspects of the player’s claim, as
well as the club’s defence statement, the Dispute Resolution Chamber concluded
its deliberations by announcing that the player’s claims amounting to the
equivalent of the salaries from January 2005 to January 2007 have to be rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player D. is rejected.
2.
According to art. 60 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 10 days of receiving notification of this decision and
has to contain all elements in accordance with point 2 of the directives issued by
the CAS, copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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:
Urs Linsi
General Secretary
Encl.
CAS directives
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