Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 November 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
John Didulica (Australia), member
Gerardo Movilla (Spain), member
Mohamed Mecherara (Algeria), member
Essa M. Saleh Al Housani (United Arab Emirates), member
on the claim presented by
Player A
represented by Mr XYZ, Attorney at Law
as Claimant
against
Club B
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
On 28 July 2006, the Player A (hereinafter: the player) and the Club B, signed an
agreement.
2.
The player submitted a XY version of this agreement signed by the player, the
player’s agent and the General Manager of the Club B which stipulates the
following:
•
•
•
Article 2: “The club will sign a contract with the player which will expire on
31 May 2007”
Article 9: “The present contract is part of the federative contract which will
be signed afterwards and will be valid once the International Transfer
Certificate (ITC) has arrived with the Football Federation of Club B”
The contract provides for a payment of net USD 300,000 with a payment plan
as following:
o
o
o
o
o
o
•
USD 50,000 upon signature of the contract
USD 50,000 on 25 October 2006
USD 25,000 on 25 November 2006
USD 25,000 on 25 February 2007
USD 75,000 as salary (USD 7,500 x 10 months starting in August 2006)
USD 75,000 as match bonus divided by 34 matches
The contract furthermore stipulates an additional payment of USD 50,000
when the player plays 24 matches in the league
3.
On 17 January 2007 the player filed a claim against Club B at FIFA. The player
explained that the contract concluded with the Club B was a preliminary contract
and provided for an annual salary of USD 75,000, a contract-premium of USD
300,000, USD 50,000 as a premium for attendance, a furnished apartment, 2 flight
tickets and sporting bonuses at an estimated amount of USD 50,000. The claimant
maintained that the Club B had not sent the necessary documents to the Football
Federation of Club B for requesting the ITC and that therefore the Club B
breached the contract without just cause.
4.
Consequently, in view of the violation of the club’s contractual obligations, the
player requested compensation in the amount of USD 475,000, composed of his
aforementioned alleged entitlements, as well as 5% interest on the said amount.
Furthermore, the player requested that the contract be terminated and that the
Club B be sanctioned.
Player A / Club B
2
5.
FIFA contacted Club B asking the club for its position with regard to the relevant
player’s claim. Club B also submitted a copy of the contract in an XY version but
signed only by the Club B and bearing a stamp from the club. The Club B referred
to article 9 of the agreement in the XY version (“This contract is valid, after the
parties sign TFF uniform contract, contract been approved by the federation and
the players International Certificate arrives to the Football Federation of Club B”)
and held that this clause never was fulfilled. The player never signed the Football
Federation of Club B uniform contract and therefore the club never requested the
ITC.
6.
Moreover, Club B emphasised that article 2 of the preliminary contract states that
the player and the club shall sign a contract expiring on 30 May 2007, and article 9
of the same contract defines that this preliminary contract is valid after the parties
sign the Football Federation of Club B uniform contract. The player did not sign
the contracts stated in the preliminary contract, and therefore the validity of the
preliminary contract terminated according to article 9.
7.
Furthermore, Club B explained that the player was transferred in August 2006 to
the Club C, and that there is no legal basis for his claim.
8.
On 21 September 2006, the Football Federation of Club B stated that its affiliated
club did not have any additional comments to be added to the file.
9.
The player submitted his position with regard to Club B’s answer to his claim and
declared that the preliminary contract is not a normal preliminary contract, since it
constitutes an employment contract with all its legal consequences and stipulates
the clear will of the parties. The arguments of Club B are against the principles of
“good faith” and “Venire contra factum proprium”. Furthermore, the player held
that he signed with the Club C an employment contract with an annual salary of
USD 93,000 (CHF 112,000).
10.
As a consequence of the contract signed with Club C the player amended the
amount claimed from Club B to USD 382,000.
11.
With the final statement the Club B referred to its explanations and still rejected
the player’s claim.
Player A / Club B
3
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber referred to art. 18
paras. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 17 January 2007, thus after 1 July 2005. Therefore, the
Dispute Resolution Chamber concluded that the revised Rules Governing the
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 para. 1
of the above-mentioned Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of arts. 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 para. 1 in connection with art. 22 lit. b of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employment
related disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving Player A and Club B regarding an
employment-related dispute between the parties.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 paras. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant player’s claim
had been lodged with FIFA on 17 January 2007 and that the agreement was
signed on 28 July 2006, i.e. after 1 July 2005. In view of the aforementioned, the
Dispute Resolution Chamber concluded that the FIFA Regulations 2005 for the
Status and Transfer of Players are applicable to the substance of the present case.
5.
Having established its competence to deal with the matter at hand and the
applicable Regulations, the Dispute Resolution Chamber entered into the
substance of the case. First of all, the members of the Chamber proceeded to
gather an overview of the events leading to the present dispute. In this respect,
the panel acknowledged that the player signed an agreement valid as of 1 August
2006 until 31 May 2007. According to the player, he had not received his annual
salary of USD 75,000, the alleged contract-premium of USD 300,000, USD 50,000
as an alleged premium of attendance and USD 50,000 as sporting bonuses and
Player A / Club B
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therefore he claimed a total amount of USD 475,000 for compensation as well as
5% interest on the claimed amount. Furthermore, the members of the Dispute
Resolution Chamber recognized that the player requested the contract be
terminated and the Club B be sanctioned because it breached the contract
without just cause by not sending all necessary documents to the Football
Federation of Club B for requesting the International Transfer Certificate.
6.
On the other hand, the members of the Chamber took note of the allegations of
the Club B according to which the Claimant did not sign the Football Federation
of Club B Uniform contract and that consequently and according to article 9 of the
signed agreement, the Club B was not obliged to request the ITC. However,
according to the Respondent, the “preliminary” contract terminated because the
player did not sign the contract as stated in this agreement.
7.
In continuation, the members of the Dispute Resolution Chamber acknowledged
that the player signed a new employment contract with a new club valid from 1
September 2006 until 30 June 2007.
8.
In view of all the above, the Dispute Resolution Chamber observed that the
agreement signed on 28 July 2006 between the player and the Club B contained
all essential prerequisites of an employment contract. Particularly the
characteristics as the parties involved, the salary, the duration of the contract and
the valid signatures.
9.
Moreover, the Dispute Resolution Chamber noted that the Club B had apparently
not arranged for the player in question to be registered with the Football
Federation of Club B, and that the ITC for the player therefore never could arrive
with the Club B.
10.
Furthermore and after having thoroughly analysed the documents on file as well
as the circumstances surrounding the present matter, the members of the
Chamber came to the firm conclusion that article 9 of the signed agreement on 28
July 2006 is an invalid clause because it is impossible that the contract can be
conditioned with the arrival of the ITC to the Football Federation of Club B. The
Dispute Resolution Chamber confirmed that the application to register a
Professional must be submitted by the New Club to the New Association and that
the player has no influence over the request for the ITC.
11.
In this respect, the panel was eager to emphasize that the signed contract
between the player and the Club B was a valid employment contract, except for
the article 9, with all its legal consequences. The employment contract was valid
from 1 August 2006 until 31 May 2007 with a value of USD 300,000.
Player A / Club B
5
12.
With regard to all the above and taking into consideration that the Claimant
signed a new employment contract , the Dispute Resolution Chamber decided that
the Club B has to pay to the player the amount of USD 207,000. In accordance
with the petition for interest by the Claimant, the Dispute Resolution Chamber
granted 5% interest on the amount due since the submission of the claim on 17
January 2007.
13.
Finally, the Dispute Resolution Chamber decided that the Club B not be sanctioned
because the breach of the contract happened no during the Protected Period.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the Player A, is partial accepted.
2.
The Respondent, Club B, must pay the amount of USD 207,000 with 5% interest
since 17 January 2007 to the Claimant within 30 days of the date of notification of
the present decision.
3.
In the event that the above-mentioned amount is not paid within the indicated
deadline, interest at a rate of 5% p.a. will apply and the present matter shall be
submitted to FIFA’s Disciplinary Committee for its consideration and decision.
4.
Any further claim of the Claimant is rejected.
5.
The Claimant, the player A, is instructed to inform the Respondent, the Club B,
directly and immediately of the account number to which the remittance is to be
made and to notify the Dispute Resolution Chamber of every payment received.
6.
According to art. 61 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:
Player A / Club B
6
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
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl.
CAS directives
Player A / Club B
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