Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 December 2012,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Philippe Diallo (France), member
on the claim presented by the player,
Player A, from country C
as Claimant
against the club,
Club B, from country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 29 August 2008, Player A, from country C (hereinafter: player or Claimant) and
Club B, from country D (hereinafter: club or Respondent) signed an employment
contract (hereinafter: contract) valid for the sporting seasons 2008/09 and 2009/10,
entering into force on the date of signature and coming to its end on 30 June 2010.
2.
The financial terms of the contract are stipulated in an annex signed by and
between the parties on the same date and which set forth that the player would
receive EUR 6,500 net per month between 29 August 2008 and 30 June 2009 as well
as an advance of EUR 10,000 upon signature. Additionally, and for the sporting
season 2009/10, the player would receive EUR 7,000 net per month as from 1 July
2009 until 30 June 2010.
3.
On 12 November 2008 and 22 May 2009, the player put the club in default of the
execution of the alleged oral promises it would have made on the occasion of the
negotiations following the termination of the contract by the club in September
2008.
4.
The player thereby requested the club to pay him, save the amount compensating
his moral damages, the agreed amount, which would correspond to the residual
value of the contract and which allegedly was to be paid in two installments by the
club.
5.
On 3 June 2009, the player lodged a claim before FIFA against the club, maintaining
that the club terminated the contract without just cause. In this respect, the player
held that the club’s coach informed him in September 2008 that he was no longer
needed in the team. The player explained that the club confirmed this information,
which, in the player’s opinion, consists of a termination of contract without just
cause. Also, the player stressed that the club promised to pay him the residual value
of the contract.
6.
The player underlined that the club only paid him EUR 5,000 when he left the club
and promised him to pay the rest as soon as possible, which it never did.
7.
Additionally, the player specified that apart from the aforementioned EUR 5,000,
the club had only paid him EUR 2,500 as part of the salary of August 2008 and EUR
4,000 as part of the “signing-on fee”.
8.
The player asserted that as the termination of the contract by the club during the
protected period is deprived of any sporting just cause, he is entitled to include in
his claim for compensation for breach of contract the residual value of the contract
on the basis of art. 17 of the FIFA Regulations on the Status and Transfer of Players.
Consequently, the player claims the total amount of EUR 400,500 as well as the
imposition of sporting sanctions upon the club.
Player A, from country C / Club B, from country D
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9.
In its reply to the claim, the club held that the player and the club signed an
agreement (hereinafter: agreement) on 15 January 2009 cancelling the contract and
stipulating that as from that date, the player and the club will not have any
financial claims against each other.
10.
The club presented the original version in country D language and a translation into
English of the agreement, which stipulates that “the [contract] is canceled from the
date 15.01.2009 with the agreement of both parties. […] The player will receive the
amount 5000 Eur in January and 5000 Eur in February. […] From (starting) the date
of 15.01.2009, both, [the player] as well as [the club] not have any financial claim.
[…] From the date of this Convention, the player may contract with any club or
association, without the financial claims from [the club].”
11.
The club underlined that by having signed the agreement, any financial claim from
the player based on a termination of the contract is groundless. Consequently, the
club rejected the player’s claim.
12.
The player denied having ever signed the agreement and held that the club created
this document and forged his signature, which is easily observable by way of
comparison with other samples of his signatures. The player concluded that in case
of doubt, an expert should be appointed and that said expert will logically confirm
the player’s opinion.
13.
Furthermore, the player held that it was not mentioned in the agreement that the
player was terminating the contract in order to be able to register for a new club,
nor did the club prove that the initiative of the termination of the contract comes
from the player. In this respect, the player stressed that he had no interest in
terminating the contract since the remuneration he was receiving under said
contract was better than the remuneration related to the contract that he signed
afterwards with a country E club on 12 March 2009.
14.
For its part, the club insisted that the contract was mutually terminated by means of
the agreement and stressed that it would accept to proceed to a forensic
examination of the document at stake. In this respect, the club pointed out that the
player’s signature is the same on all the documents it has in its possession.
15.
The club, in order to facilitate a comparison of signature, submitted a payment
receipt dated 6 October 2008 bearing the player’s signature.
16.
The club further submitted a statement dated 3 April 2009 signed by the players’
agent B, who allegedly was involved in the negotiations regarding the player, in
accordance with which the agent explained that he was present on 15 January 2009
and “participated” to the signature of the challenged agreement by means of
which the “two parties MUTUALLY agreed to rescind [the contract]”and that “the
player (…) has personally signed [the challenged agreement] in which he wished
Player A, from country C / Club B, from country D
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the amicable rescission of his contract with [the club], without any claims from the
latter in case of a possible transfer.”
II.
Considerations of the Dispute Resolution Chamber
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 3 June
2009. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2
of the Procedural Rules).
2.
Subsequently, the members of the Dispute Resolution Chamber referred to art. 3
par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1
and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2012) the Chamber is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international
dimension between a country C player and a country D 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 par. 2 of the Regulations on the Status and Transfer of Players
(editions 2012, 2010 and 2009), and considering that the present claim was lodged
on 3 June 2009, the 2008 edition of said regulations (hereinafter Regulations) is
applicable to the matter at hand as to the substance.
4.
In continuation, and entering into the substance of the matter, the members of the
Chamber firstly acknowledged that, on 29 August 2008, the Claimant and the
Respondent concluded an employment contract valid during 2 sporting seasons, i.e.
as from 29 August 2008 until 30 June 2010.
5.
The Chamber further noted that the Claimant asserted that the club unilaterally
decided to put an end to the contractual relationship with the player in September
2008 as, reportedly, the player was not needed by the club any longer. Furthermore,
the Chamber noted that this assertion was not denied by the club.
6.
The members of the Chamber further acknowledged that the Respondent rejected
the player’s claim for breach of contract without just cause lodged against it as, on
15 January 2009, the parties signed an agreement inter alia cancelling the abovementioned contract and containing a clause by means of which both parties
undertook not to lodge any financial claim against each other in the future in
connection with said contract.
Player A, from country C / Club B, from country D
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7.
In this respect, the Chamber duly noted that the Claimant, for his part, denied
having signed the agreement at hand and stressed that the Respondent forged his
signature. Consequently, the Claimant contested the authenticity of the agreement.
8.
In view of the above, the Chamber concurred that it firstly had to proceed to an
analysis of the contents of the agreement and in particular, to assess its validity. In
this respect, the DRC emphasized that the original of the agreement is on file.
9.
After having analysed the stipulations of the agreement, the Chamber found that
the terms of its art. 1 were indeed putting an end to the contractual relationship
based on the contract that had been signed by and between the parties on 29
August 2008.
10.
Equally, the Chamber found that art. 3 of the agreement clearly indicated that
within the context of the termination of the contract, the two parties had accepted
not to lodge any financial claim against each other in the future in connection with
the employment contract.
11.
In this context, and this stage, the members of the Chamber therefore unanimously
agreed that the agreement submitted by the club was an agreement on the mutual
termination of the contract containing a waiver by its signees to lodge any financial
claim against each other as from 15 January 2009, i.e. prior to the date on which the
Claimant lodged his claim against the Respondent before this decision-making
body.
12.
Following its analysis of said agreement, the Chamber reverted to the Claimant’s
argumentation, in accordance with which the agreement submitted by the
Respondent is invalid as it would be a forgery.
13.
In this regard, the DRC emphasized that, as a general rule, it is not the competent
body to decide upon matters of criminal law, such as allegedly falsified signatures
or documents, but that such affairs fall within the jurisdiction of national penal
courts.
14.
In continuation, the DRC recalled that all documentation remitted shall be
considered with free discretion and, therefore, focused its attention on the
termination agreement as well as the other documents containing the player’s
signature. After a thorough analysis of the aforementioned documents, in
particular, comparing the relevant signatures, the DRC had no other option but to
conclude that for a layman, and in the contrary of the player’s point of view, the
player’s signatures on the various documents available, including the challenged
document, seem to be alike.
15.
In view of all of the above, and based on the documentation currently at its
disposal, the DRC unanimously came to the conclusion that, unless proven
otherwise by a decision of the competent national criminal authority, the relevant
Player A, from country C / Club B, from country D
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termination agreement dated 15 January 2009 is to be considered valid and shall,
thus, be taken into consideration.
16.
As a consequence, the Chamber decided that the claim for compensation for breach
of contract without just cause lodged by the Claimant against the Respondent is
rejected.
17.
Notwithstanding the above, the Chamber reverted to the contents of the
agreement at stake and noted that said agreement contained financial terms which,
prima facie, did not appear to have been fully complied with.
18.
In particular, the DRC wished to recall that according to art. 2 of the agreement
dated 15 January 2009, the Respondent undertook to pay to the Claimant the
amounts of EUR 5,000 in January (2009) and EUR 5,000 in February (2009).
19.
However, the Chamber noted that in his statement of claim, the Claimant had inter
alia indicated having received EUR 5,000 from the Respondent upon his leaving the
club and nothing else afterwards.
20.
On the other hand, the Chamber found that the Respondent had not specifically
contested this assertion of the Claimant nor proven that in fact, the
aforementioned two installments of EUR 5,000 each as per the agreement had been
paid to the Claimant.
21.
As a result of the above, the Chamber concluded that the Respondent had partially
failed to execute its obligation to pay what it owed to the Claimant on the basis of
the termination agreement signed on 15 January 2009.
22.
Consequently, the Chamber decided that the Respondent is liable to pay to the
Claimant the amount of EUR 5,000 corresponding to the second installment
stipulated in art. 3 of the termination agreement dated 15 January 2009.
23.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant the amount of EUR 5,000 within
30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned
Player A, from country C / Club B, from country D
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time limit and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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:
______________________
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player A, from country C / Club B, from country D
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