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 X,
represented by A
as Claimant
against
Club Y,
as Respondent
regarding compensation for contractual breach.
I.
Facts of the case
1.
On 26 August 2004, the player X (date of birth: Z) turned to FIFA requesting the
examination of his contractual situation with the club Y. In this regard, the player
asked FIFA to confirm by decision of the Dispute Resolution Chamber that his
employment contract signed on 28 August 2003 with club Y terminated on
27 August 2004 and he was therefore free to sign a new employment contract
with any club of his choice.
2.
Essentially, at first, the player maintained that the four-years employment contract
which had been presented to him by the club Y was forged and that on the basis
of the true contract signed on 28 August 2003, with a validity of one year only, he
had to be considered free from all contractual engagement as from 27 August
2004. In this regard, the player provided the FIFA administration with copies of the
two aforementioned versions of the employment contract, one of which foresaw a
four years duration and one with a one year duration only. The player underlined
that he would never have accepted the employment contract with the duration of
four years, since the remuneration sharply decreased after the first year.
3.
Upon request of the FIFA administration and in order for the club to demonstrate
that the employment contract with the four years duration contained the
authentic signature of the player, the club Y provided FIFA with the original copy
of the relevant employment contract signed by the parties involved on each single
page. The document even bore the finger print of the player at the last page.
4.
This four-years employment contract was signed on 28 August 2003. According to
this contract, the club Y committed to pay to the player X a salary of USD 100,000
in the first year of employment, payable in 10 instalments. The player was also
granted bonuses of USD 10,000 per championship won. Additionally, the parties
agreed on the payment of a signing-on fee to the player of USD 170,000. Finally,
for the remaining years of the employment, the club committed itself to pay to
the player the amount of USD 60,000 per year.
5.
According to art. 20 of the said employment contract, the club Y reserved its right
to rescind the employment contract at any time by sending a letter to the player
and by giving him a one month’s notice. In such a case, the player would have no
entitlement to compensation or to the remaining salaries.
6.
According to art. 4 of this employment contract, the player would not be entitled
to the right of unilaterally terminating the contract. In the case of an early
termination, the player would be held liable to reimburse the transfer
compensation and other costs incurred by the club with regard to his employment
as well as to compensate the club for damages.
7.
According to the player X, he had always departed from the assumption that the
employment would run until 27 August 2004, i.e. for one year only.
8.
Furthermore, the player pointed out that the contract greatly favours the club Y
by awarding it the right to rescind the engagement at any time and without
consequences. Here too, the player affirmed that he would never have accepted
such a provision.
9.
The legal representative of the player X has also indicated that if the player
indeed signed this disputed employment contract, he would have done so without
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being represented by an advisor and without having sufficient knowledge of the
English language to recognise the extent of this engagement. It would escape all
logic if the player should have accepted such a contract under normal conditions.
10.
In this regard, the player highlighted the involvement of a certain Mr. B, agent
mandated by the club Y, who, however, assisted the player X in this transaction.
(Note: Mr. B has no players’ agent license).
11.
According to the player X, the day after signing the employment contract, he
went accompanied by Mr. B and an employee of club Y to the bank. In this
context, the player affirmed having encashed the signing-on fee check in the
amount of USD 170,000 and given the amount forthwith to the employee of the
club. The player affirmed that he was told by Mr. B to do so. Furthermore, he has
knowledge of the fact that Mr. B was due to receive USD 250,000 from another
club C for an envisaged loan of the player.
12.
Furthermore, the player X asked the FIFA administration to examine the case of
the player D who had also signed a one-year employment contract with the club Y
and who is now being confronted with a four-years engagement as well.
13.
The FIFA administration rejected this request, outlining that such an investigation
would only take place if either club Y or the player D presented a claim before
FIFA’s deciding bodies.
14.
The player X also explained that he left the country of club Y for the summer
break with the instructions of club Y to remain in contact with the club’s director,
so as to discuss a new engagement. However, when he did revert to the club
during the summer holidays, he was unable to reach any of the responsible staff
and, therefore, assumed that there was no more interest of the club. He then
affirmed having departed to another country, to join the club C. The player insists
that this shows that neither party had considered his employment to run for more
than one year.
15.
On the other hand, according to club Y, the player X had signed an employment
contract with a duration of four years, starting on 28 August 2003 and running
until 27 August 2007. Therefore, the club Y maintained that the player X
unilaterally broke the employment contract by disappearing after only one year
and that, in this context, he should be held liable to compensate the club.
16.
In accordance with the four-years employment contract, the player received on
28 August 2003 the amount of USD 170,000 as a signing-on fee (receipt provided
is signed by the player), the amount of USD 100,000 as salary for the first year
(receipts provided are signed by the player) and USD 40,000 for winning
championships (receipts provided are signed by the player). Thus, it appears that
the player received the total amount of USD 310,000 from club Y. (Note: The
player himself confirmed having been paid correctly during that year in question
and did not contest any above-mentioned payment).
17.
The employment contract was issued in four copies, which all bear the stamp of
the public authority for youth and sports.
18.
Based on the fact that the player X disputed the validity of the four-years
employment contract and rejected to return to the country of club Y, and that, on
the other hand, the club Y did not ask for the player’s return but for financial
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compensation, FIFA, on 16 September 2004, provisionally authorised the player’s
registration with the club of his choice. The player was, however, made aware of
the possible financial consequences of this premature termination of contract as
well as the fact that the Dispute Resolution Chamber may judge the case at hand
under the terms of the articles 21 and following of the Regulations for the Status
and Transfer of Players (edition September 2001).
19.
On 13 December 2004, club Y specified its claim and claimed the total amount of
USD 1,265,465 from the player X. The claim was composed of the following
amounts: USD 170,000 as signing-on fee, USD 100,000 as salaries, USD 40,000 as
winning rewards, USD 70,000 as commission for the agent, USD 17,758 as hotel
accommodation, USD 3,342 as the annual fee for car rental (annual contract),
USD 9,405 as apartment rent (two-years contract), USD 120,000 for contracting
another player, USD 14,560 for air tickets, USD 70,400 for losing the chance to
qualify for a specific tournament, USD 500,000 for affecting the reputation of the
club Y and finally USD 150,000 for losing the chance to transfer the player.
20.
On 15 July 2005, the FIFA administration asked the player to provide its final
statement to the dispute, in particular, to take position on the receipts provided
by the club and to provide the original version of the employment contract with
the duration of one year.
21.
On 26 August 2005, changing his point of view, the player informed the FIFA
administration that, at that time, he was deceived by the club Y and on 28 August
2003 signed a “document” in which the period of duration was four years,
thinking that he was signing a one-year employment relationship only. In order to
corroborate this alleged fraud committed by the club, the player explained that
the contract was signed before 08:00 o’clock in the morning at the Marriot Hotel
in the country of club Y, the club’s representative being in a hurry and the player
himself without knowledge of the English or the country of club Y’s language. In
addition, the player maintained that the disorder of the articles stipulated in the
four-years contract had the only purpose to mislead him. In fact, the said contract
mixed up clauses, in particular the ones referring to the remuneration of the
player, without following a logical structure. Finally, in clear contradiction to his
previous position, the player maintained that he never signed the one-year
contract, but the four-years contract only. Yet, according to the player, the oneyear employment contract had been set up subsequently by the club by using the
signatures of the original four years employment contract. According to the
player, shortly after, a copy of the falsified one-year employment contract, which
he rejects having signed, was given to him by club Y. Taking the above-mentioned
into account, the player did not provide the FIFA administration with the original
one year employment contract.
22.
Attached to the above-mentioned statement, the player X provided the FIFA
administration with an expertise ordered in Brazil. Therein, the expert affirmed
that the employment contract with a validity of one year was, with no doubt, a
forgery. With regard to the question concerning the authorship of the forgery,
the expert affirmed that all evidences indicated that both contracts had been
printed in the same print machine, however, it was “not possible to give a
categoric answer to that question.”
23.
In the same statement, the player X refused the claim put forward by club Y in the
amount of USD 1,265,465, particularly refusing the payment of any allowance
fees, car rent fees and hotel expenses. Moreover, the player himself specified his
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financial claim by requesting the payment of USD 1,250,000 plus reimbursement
of additional expenses in connection with the present proceeding (amount to be
determined by FIFA) from club Y. The amount was composed by 30 months
salaries of USD 28,000 each, bonuses in the amount of USD 160,000 as well as the
compensation for moral damages in the amount of USD 250,000.
24.
In addition, the player X requested the production of the following proofs: to
force the club Y to present the other three original versions of the four years
contract; to be allowed the deposition of witnesses in the persons of other players
with a similar legal dispute, i.e. Mr. D and E; to force the club Y to present the
original contracts signed with the aforementioned players; to allow a technical
exam to confirm the veracity of the facts alleged in relation to the elaboration of
the forged employment contract with a duration of one year, and finally; to be
heard in an inquiry procedure before the Dispute Resolution Chamber.
25.
On 16 September 2005, the parties to the dispute were duly informed by the FIFA
Administration that the present case was going to be submitted to the Dispute
Resolution Chamber for a formal decision on 23 September 2005.
26.
On 19 October 2005, the parties to the dispute were duly informed by the FIFA
Administration that the Dispute Resolution Chamber dealt with the present
matter at its meeting held on 23 September 2005. However, on the occasion of the
said reunion the members of the Dispute Resolution Chamber concluded that
some important aspects of the case should be further investigated and therefore
referred the matter back to the FIFA Administration.
27.
After having obtained specific further information mainly related to the player’s
career history as from him joining the club Y until the day of the decision, the FIFA
Administration informed the parties to the dispute that the case at hand would
once again be submitted to the Dispute Resolution Chamber for consideration and
a formal decision on 2 November 2005.
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II.
Considerations of the Dispute Resolution Chamber
1.
The members of the Dispute Resolution Chamber were summoned to pass a
decision on this matter by the Chairman pursuant to art. 1 point 6) of the Rules
Governing the Practice and Procedures of the Dispute Resolution Chamber (edition
February 2002).
2.
The Dispute Resolution Chamber of the FIFA Players’ Status Committee indicated
that, as established in art. 42 § 1 lit. (b) (i), (ii) and (iii) in connection with art. 21
and following of the FIFA Regulations for the Status and Transfer of Players
(edition September 2001) (hereinafter: the Regulations), it falls within the purview
of the Dispute Resolution Chamber to determine whether one of the parties has
committed an unilateral breach of contract with or without just cause and if so, to
verify whether this party is accountable for outstanding payments and whether
sport sanctions must be imposed.
3.
Consequently, the Dispute Resolution Chamber is the competent body to decide
on the dispute for breach of contract between the player X and club Y.
4.
Having established this, the Chamber took note that on 16 September 2005, both
parties involved were duly informed by the FIFA administration that the present
case was going to be submitted to the Dispute Resolution Chamber for a formal
decision on 23 September 2005.
5.
However, the Chamber took note of the last correspondence received from the
player one day before the first meeting, i.e. on 22 September 2005, stating that
the present case had to be withdrawn from the list of cases to be decided in order
to proceed to further examine the facts of the case through additional technical
reports. The player demanded that FIFA appoint an expert.
6.
In view of these circumstances, after having carefully studied the facts of the case
and even postponed the decision to the next meeting of the Dispute Resolution
Chamber in order to further clarify specific aspects of the case, the members of the
Chamber were of the opinion that the investigation of the case at hand had now
been fully completed and that there were no reasons to further delay a decision.
7.
Subsequently, and entering into the substance of the matter, the Chamber took
note of the fact that, the player X, apparently confronted with two employment
contracts with different periods of validity, approached FIFA on 26 August 2004 in
order to have his contractual situation with club Y clarified. In this context, the
members of the Dispute Resolution Chamber observed that at that time, the
player strongly maintained having signed an employment contract with club Y
with a period of validity of one year only. Since club Y challenged the validity of
that contract by presenting a four-years employment contract, the latter insisted
that FIFA should confirm that his employment contract with club Y had expired
and he was free to sign with any club of his choice.
8.
Thereupon, the Chamber acknowledged that, although being in possession of the
original employment contract with a period of validity of four years, i.e. running
until 27 August 2007, FIFA, due to the fact that the player strongly refused to
return to club Y and that the club itself had not explicitly asked for the players’
return, provisionally authorised the player on 16 September 2004 to register with
the club of his choice. In this context, the members of the Dispute Resolution
Chamber pointed out that the player was informed that the original employment
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contract with a validity of four years did not give rise to the assumption that there
had been a forgery on that document. Therefore, FIFA, at that time, had warned
the player that the case at hand may be judged once under the terms of the
articles 21 and following of the Regulations.
9.
Then, the members of the Chamber pointed out that the player had obviously
changed his point of view during the course of the investigation and maintained
having signed a four-years employment contract only but having been deceived by
club Y in this respect. In this regard, the members took note that the player
maintained having signed the four-years employment contract thinking that it was
a one-year employment contract only. Moreover, the Chamber acknowledged that
according to the player, he signed the said contract before 08:00 o’clock in the
morning in country of club Y, apparently without being able to read and/or speak
neither the English language nor the country of club Y’s language. In addition, the
representative of club Y was, according to the player, in a hurry.
10.
Thereupon, the members of the Chamber took note of the contents of the
expertise provided by the player to the FIFA administration. In this context, after
carefully studying the said document, the members observed that the expert
declared the four-years employment contract signed by the parties involved to be
genuine and the one-year employment contract to be a forgery. Moreover, the
Chamber acknowledged the fact that according to the expertise, the question
concerning the authorship of the forged one-year employment contract remained
unclear and subject to speculation.
11.
Taking into account all of the above, the members of the Dispute Resolution
Chamber affirmed that the employment contract signed by the parties involved on
28 August 2003, with a validity of four years, had to be qualified genuine and
therefore legally binding upon both parties involved. The members underlined
that the player himself admitted, at the end of the investigation, having signed
the four-years employment contract. However, the members also took into
consideration the claims of the player that he had been deceived by club Y and its
agent, Mr. B. Nevertheless, the Chamber pointed out that the player X acted
highly negligently by signing an employment contract without having apparently
understood its content and far reaching consequences.
12.
As a result, the members of the Chamber rejected the player’s financial claim and
unanimously decided that the player X had unilaterally breached the employment
contract signed with club Y on 28 August 2003 by leaving the club after only one
season, i.e. on August 2004. In this context, the members pointed out that the
player had breached the employment contract without just cause during the socalled protected period as provided for in art. 21 §1 lit. (a) of the Regulations.
13.
The Chamber then focussed its analysis on the amount of compensation due by
the player to the club for the breach of contract, in accordance with art. 21§1 lit.
(a) of the Regulations, as well as on the sport sanctions to be imposed on the
player in accordance with art. 23§1 lit. (a) of the Regulations. The Chamber
decided to start by establishing the compensation amount.
14.
Therefore, the Chamber examined the objective criteria listed in art. 22 of the
Regulations, in order to verify their relevance in the case at stake. For the sake of
good order it is recalled that the list of criteria is not exhaustive and that the
deciding body is entrusted to analyze and consider supplementary criteria while
deciding on the dispute.
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15.
The first factor taken into consideration was the remuneration and other benefits
under the employment contract signed by the player with club Y.
16.
The Chamber noted that, in accordance with the duly signed and legally valid
four-years employment contract concluded with club Y on 28 August 2003, the
player X received, in his first year, the amount of USD 170,000 as a signing-on fee,
the amount of USD 100,000 as salary and USD 40,000 for winning championships.
With regard to the three remaining years of the contract, the Chamber took note
that the player would have been entitled to receive the amount of USD 60,000 per
year, adding up to USD 180,000.
17.
The second and third factor taken into consideration was the length of time
remaining on the existing contract as well as any amount or fee paid by the club
to the player to be amortised over the length of the contract.
18.
In this context, the Chamber observed that at the time the breach of contract took
place, the employment contract was still to run for three more years and the
remaining value of the same was of USD 180,000, i.e. the remuneration for three
seasons of USD 60,000 each.
19.
Taking the fourth factor listed in art. 22 of the Regulations into account, the
Chamber affirmed that the player broke the four-years employment contract after
the first year, i.e. during the protected period stipulated in art. 21 of the
Regulations.
20.
Subsequently, the Chamber stated that it falls under its responsibility to estimate
the damage suffered by club Y, not only in accordance with the above-stated
criteria, but also with the specificity of football.
21.
The Chamber has furthermore analyzed the stance of the two parties involved. On
one hand, the club has complied with all terms of the contract signed, particularly
with the financial terms. On the contrary, the attitude of the player can be judged
as particularly reproachable. In fact, the player signed a four-year contract with a
signing-on fee and favourable financial conditions in the first years, and he left
exactly after the end of the first season, when his yearly salary decreased to
USD 60,000. The damage caused by the player is not only of a financial nature, but
also a sporting one, since the club, in good faith, could rely on the services of the
player for further three years and had to find a replacement for the player by
investing in a new one, for which a transfer compensation was paid.
22.
The Chamber therefore concluded that when deciding on the compensation to be
paid by the player to his former club, the aforementioned considerations should
duly be taken into account.
23.
Taking the above-mentioned into account, the Chamber decided that the player X
must pay the amount of USD 615,000 to club Y.
24.
The reasoning put forward by the player X could not be followed and the claim
lodged by the player therefore had to be rejected.
25.
Subsequently, the Chamber focussed its analysis on the sports sanctions to be
imposed on the player in accordance with art. 23 § 1 lit. (a) of the Regulations. In
this context, the members of the Dispute Resolution Chamber deviated from the
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four months suspension stipulated in the relevant provision for several reasons.
The Chamber was of the opinion that the apparent sparse communication
between club Y and the player during the summer break after the season
2003/2004 had an impact on the developments in this case. Moreover, taking into
account the obvious unequal disposition of rights and duties in the employment
contract, the Chamber was convinced that the club Y abused of the ignorance of
the player as well as its bigger bargaining power at the moment of signing the
said document. Furthermore, the Chamber considered that the player remained
without being registered for a new club during a considerable amount of time,
and therefore concluded that it could deviate from the sanction provided for in
the Regulations. The consideration of these exceptional circumstances, has
however no prejudice effect on other cases, since every single case has to be
decided on its merits. Furthermore, a sanction imposed for a shorter timeframe
would allow to the player to resume playing faster and thus enable him to pay off
the compensation due to the club Y with the money earned.
26.
Therefore, the Chamber decided that under consideration of the exceptional
circumstances the player X had to be sanctioned with a restriction of 6 weeks on
his eligibility to participate in any official football matches as from the notification
of this decision.
27.
The Chamber concluded its deliberations by underlining that the present
investigation clearly brought to light that, club Y had used the services of a not
licensed agent, i.e. Mr. B, when contracting the services of the player X. However,
since not the Dispute Resolution Chamber but the Players’ Status Committee is
competent to judge this aspect of the case, this part will be the object of a
separate proceeding and the case shall be sent to the Players’ Status Committee
for consideration and decision on the involvement of the unlicensed agent.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player X is rejected.
2.
The counter-claim of club Y is partially accepted.
3.
The eligibility of the player X to participate in any official football matches shall be
restricted for 6 weeks as from the notification of this decision.
4.
The player X has to pay the amount of USD 615,000 to club Y within the next 30
days as from the date of notification of this decision.
5.
Any further claims lodged by club Y are rejected.
6.
If the aforementioned sum is not paid within the aforementioned deadline, a 5%
default interest rate per annum will apply and the present matter will be
submitted to FIFA’s Disciplinary Committee, so that the necessary disciplinary
sanctions may be imposed.
7.
Club Y is directed to inform the player X immediately of the account number to
which the remittance is to be made and to notify the Dispute Resolution Chamber
of every payment received.
8.
The file shall be remitted to the Players’ Status Committee for a decision regarding
club Y’s use of a non-licensed agent.
9.
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
Enclosed: CAS directives
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