Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player
C,
as Claimant
against the club,
FC M,
as Respondent
regarding an employment-related contractual dispute
arisen between the player and the club
I.
Facts of the case
1.
On 26 August 2006, the B player, C (hereinafter: “Claimant” or “player”), and the
R club, FC M (hereinafter: “Respondent” or “club”), signed an employment
contract valid from the date of signature until 31 December 2010.
2.
According to art. 6.2 of the employment contract, the player had the right to
receive, inter alia, an incentive payment in the amount of USD 550’000 to be paid
by the club until 1 February 2007.
3.
On 20 August 2007, the Respondent, the Claimant and the P club, S, signed an
“Agreement for the loan and subsequent permanent transfer of the player”
(hereinafter: “loan agreement”) valid from 21 August 2007 until 30 June 2012.
4.
The loan agreement stipulates in art. 2.4 that “S shall provide the Player with the
salary and other costs during the Loan period, according to the professional
contract (labour contract), which shall be concluded between S and the Player. No
remuneration is to be paid to the Player by FC M. As far as the present Agreement
is concluded, all FC M’s obligations before the Player under the labour contract
are cancelled”.
5.
Art. 4.1 of the loan agreement stipulates that the loan of the player for the period
from 21 August 2007 to 30 June 2012 is without compensation.
6.
On 8 May 2008, the player contacted FIFA arguing that the Respondent only paid
USD 350’000 of the incentive payment instead of USD 550’000 as agreed in the
employment contract.
7.
As a result, the Claimant demanded payment of the amount of USD 200’000, plus
default interest.
8.
In its reply, the Respondent informed FIFA that according to art. 2.4 of the loan
agreement it had no obligations towards the Claimant, which was the club’s main
precondition to accept the player’s registration with S without S having to pay a
loan fee.
9.
Moreover, the club emphasised that the loan agreement was also signed by the
player, since they mutually agreed to cancel all the club’s obligations.
10.
In reply thereto, the Claimant pointed out that art. 2.4 of the loan agreement only
refers to salaries and costs during the loan period. The incentive payment in the
amount of USD 550’000, however, was to be paid until 1 February 2007 by the
Respondent and the loan agreement was only signed on 21 August 2007.
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Therefore, the obligations out of the employment contract with the Respondent
were still due.
11.
The Respondent, for its part, stated that the Claimant misinterpreted art. 2.4 of
the loan agreement. The club stressed that the interpretation of this article leaves
no doubt that all obligations towards the Claimant were to be cancelled. It points
out that the same art. 2.4 of the loan agreement includes a sentence stipulating
that no remuneration is to be paid to the player by FC M, so there would not have
been any reason to include something else. Furthermore, there is no need to
stipulate that only future obligations are to be cancelled as the employment
contract between the parties was automatically suspended by signing the loan
agreement.
12.
Furthermore, the Respondent stressed that art. 2.4 of the loan agreement is
dedicated to labour relationships and therefore all obligations which have arisen
out of the employment contract are included in that clause.
13.
The Claimant replied that the club misinterpreted art. 2.4 of the loan agreement,
as there are numberless loan contracts, which stipulate that the club which
transfers a player on a loan basis is responsible for the payment of the salary or
part of it.
14.
Moreover, the Claimant argued that art. 2.4 of the loan agreement cannot be
interpreted separately from the loan agreement, but only in the context of the
loan agreement, by which the clause refers to future salaries and not to the
Respondent’s obligations which were overdue.
15.
In the Respondent’s final position, the club argued that art. 2.4 of the loan
agreement is to be interpreted in accordance with R national legislation, by which
there is no possibility to pay salary to someone who is no longer employed by the
club.
16.
Therefore, the Respondent stated that it has no obligation towards the Claimant
during the loan period, as the latter is not an employee of the club. Consequently,
the Respondent stated that all and every obligations towards the Claimant are
cancelled, irrespectively of the time and the basis of the arising of any such
obligations.
II.
Considerations of the Dispute Resolution Chamber
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1.
First of all, 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 8 May 2008. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2005; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3
of the Procedural Rules, edition 2008, in combination with art. 18 par. 2 and 3 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. b) of the Regulations on the Status and Transfer of
Players (edition 2009) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player and a club.
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 2009), and considering that the present claim was lodged on 8 May 2008,
the 2008 edition of the said regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the above-mentioned facts and
documentation contained in the file.
5.
In this respect, the members of the Chamber took due note that, on the one hand,
the Claimant demands to be awarded payment by the Respondent of the amount
of USD 200’000 as outstanding incentive payment, plus default interest.
6.
The Respondent, for its part, denies that it owes the Claimant any monies,
referring to the loan agreement signed with the player and the P club, S, and, in
particular, to art. 2.4 of the loan agreement.
7.
The Chamber recalled that art. 2.4 of the loan agreement reads as follows: “S shall
provide the Player with the salary and other costs during the Loan period,
according to the professional contract (labour contract), which shall be concluded
between S and the Player. No remuneration is to be paid to the Player by FC M. As
far as the present Agreement is concluded, all FC M’s obligations before the Player
under the labour contract are cancelled”.
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8.
In this regard, the Chamber acknowledged that, according to the Claimant, art. 2.4
of the loan agreement only refers to salaries and costs during the loan period and
thus would exclude the incentive payment which fell due on 1 February 2007, i.e.
prior to the signing of the loan agreement. On the other hand, the Respondent
holds that art. 2.4 of the loan agreement must be interpreted as a waiver by the
Claimant of any obligations of the Respondent towards the Claimant.
9.
In the light of the diverging position of the parties relating to the said art. 2.4 of
the loan agreement, the Chamber proceeded with a more detailed analysis of the
said article, which is at the basis of the present dispute.
10.
In doing so, the members raised doubts as to whether the transfer of the player to
S was in fact a loan or definitive, as the duration of the loan agreement largely
exceeds the duration of the employment contract between the Respondent and
Claimant.
11.
In continuation and with regard to the transfer of the Claimant to S, the Dispute
Resolution stressed that no loan compensation was to be paid by S to the
Respondent. The members of the Chamber were unaware of the precise
circumstances which made the Respondent and Claimant agree on the transfer of
the Claimant 3,5 years prior to the date of expiry of the employment contract with
the Respondent. However, the members of the Chamber deemed it plausible that
the Claimant and the Respondent had agreed to mutually end their employment
relationship allowing the Claimant to transfer to another club without any loan
compensation falling due and the Claimant waiving any right he possibly had
towards the Respondent. In other words, the Chamber concurred that the free
transfer of the player sheds light on the interpretation of art. 2.4 of the loan
agreement, in particular, “As far as the present Agreement is concluded, all FC M’s
obligations before the Player under the labour contract are cancelled.”
12.
In addition, the Chamber deemed that should, at the moment of signing the loan
agreement, the Respondent still have owed the Claimant USD 200’000, the
Claimant might have chosen to specifically exclude such amount from the contents
of art. 2.4 of the loan agreement and not to accept the inclusion of the sentence
“As far as the present Agreement is concluded, all FC M’s obligations before the
Player under the labour contract are cancelled.”
13.
In view of the foregoing, in accordance with art. 2.4 of the loan agreement, the
Chamber found no basis for concluding that a claim against the Respondent is to
be accepted, since the parties clearly specified that all obligations of the
Respondent towards the Claimant in accordance with the employment contract
are cancelled, i.e. also obligations that arose before signing the loan agreement.
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14.
On account of all the aforementioned considerations, the members of the Dispute
Resolution Chamber decided to reject the claim of the Claimant in its entirety.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, C, is rejected.
*****
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Note relating to the motivated decision (legal remedy):
According to article 63 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
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