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 S, from country B
as Claimant
against the club,
Club M, country R
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 15 June 2010, Player S, from country B (hereinafter: Claimant) lodged a claim
against Club M, from country R (hereinafter: Respondent) in front of FIFA,
maintaining that, on 8 April 2010, he concluded an employment contract with the
Respondent valid from 8 April 2010 until 30 November 2012, under which the
Respondent allegedly undertook to pay the Claimant a monthly salary of EUR
38,300 for the term of the contract. In order to support his claim, the Claimant
submitted a copy of the alleged contract signed only by him.
2.
In addition, the Claimant submitted a document named “Declaration”, dated 8
April 2010, bearing only one signature just over the typed name of the Respondent.
Said document, inter alia, stipulates that the Respondent undertakes to respect a
three year/season contract with the Claimant, and indicates that such contract had
been signed yesterday on the 7th April in country R language and that it has started
the day before and shall expire on the 30th November 2012. It further specifies,
inter alia, the parties as well as the remuneration. Further, according to the
“Declaration”, the Claimant was to receive an annual salary amounting to Euro
400,000 paid as follows: an advance payment of EUR 80,000 and the remaining
yearly salary, ie EUR 320,000, split in equal monthly instalments.
3.
According to the Claimant, his International Transfer Certificate (ITC) was requested
by the Football Union of country R on 8 April 2010 and issued by the country P
Football Federation on 13 April 2010, following which he made himself available to
the Respondent at the beginning of April 2010 to start work. Once in country P, the
Claimant asserted that he took part in all of the Respondent’s training sessions and
claimed that he was even summoned to participate in the official match against
Club N scheduled for 6 May 2010 in country R. However, the Claimant reported that
in the early hours of 6 May 2010 he was allegedly forced to leave the hotel, where
the Respondent’s team was staying ahead of the said match, taken to the airport
and provided with a plane ticket country R-country P scheduled to departure at 5:30
am, on 6 May 2010. The Claimant stated that he was not given any explanations as
to the reason for his sudden departure.
4.
Subsequently, once in country P, the Claimant sought clarification from the
Respondent through a letter sent by his lawyer to the Respondent on 7 May 2010. In
the letter, it was stressed that there was a contract in place and that the Claimant
intended to fulfill his obligations thereunder. Similarly, the Respondent was asked
whether it intended to honor the contract. However, according to the Claimant, the
letter remained unanswered. Therefore, a week later, on 14 May 2010, the Claimant
sent another letter along the same lines. This letter set 21 May 2010 as the deadline
for the Respondent to confirm that the Claimant would be reinstated and the
Player S, from country B / Club M, from country R
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contract enforced. A failure to do this, the letter warned, would result in the
Claimant unilaterally terminating the contract without further notice and seeking
redress before the competent bodies. The Claimant stated that the letter of 14 May
2010 also remained unanswered. In addition, the Claimant reported in his claim that
the Respondent had not paid any salary instalments. The Claimant stated that as a
consequence he gave notice of termination on 24 May 2010.
5.
In view of the above, the Claimant claims that the Respondent had unilaterally
terminated the contract without just cause and that, as a result, the Respondent
shall be liable for damages and compensation due to its breach of the contract.
Therefore, the Claimant is asking the Dispute Resolution Chamber (DRC): i) to award
him compensation amounting to EUR 1,225,600 for financial, moral and sporting
damages suffered by the Claimant as a consequence of the unlawful termination by
the Respondent; ii) to order the Respondent to return the personal belongings of
the Claimant (left at the Claimant’s former place of residence in country R); and iii)
to declare the breach without just cause by the Respondent as well as the ensuing
legal termination of the contract by the Claimant.
6.
In reply to the claim, the Respondent provided a different account of the facts.
According to the Respondent, on 7 April 2010, the Claimant’s representative, Mr J,
approached the Respondent with a proposal to transfer the Claimant from Club Q
to the Respondent. In response, the Respondent made the continuation of
negotiations dependent on a number of requirements being met, namely the
successful passing of a medical examination and the completion of the transfer
before the closing of the winter registration period in country R, ie 8 April 2010.
7.
In this respect, the Respondent stated that the Claimant underwent a medical
examination on 8 April 2010 in country G, but that the results were unsatisfactory.
Also, the Respondent underlined that no contract was signed and no ITC was
requested “during the period till 08.04.2010”, in the Respondent’s own words, and
therefore the Claimant was not registered to participate with the Respondent in the
Championship of country R. The Respondent claimed that the Claimant’s
representative was duly informed of the Respondent’s decision. Notwithstanding
this, on 23 April 2010, the Claimant and Mr J unexpectedly arrived in country R.
Three days later, Mr J left while the Claimant stayed in country R. Being things so,
the Respondent indicated it “naturally” allowed the Claimant to train with the
team, so that he could keep fit, as well as to use the canteen while warning the
Claimant that there was no employment relationship in place and that he should
return to country P. Faced with the Claimant’s passivity, the Respondent booked a
flight country R-country P scheduled on 6 May 2010. On 5 May 2010, the team flew
charter to country R for its match against Club N and the Claimant was invited to fly
to country R as there were no direct flights country R-country P. Once in country R, a
member of the Respondent’s staff took the Claimant to the airport.
Player S, from country B / Club M, from country R
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8.
The Respondent therefore dismissed as a lie the accusations of violent conduct
against the Claimant. At the same time, the Respondent admitted that some of the
Claimant’s belongings were left behind in the hotel room and that they had been
stored and could be sent to the Claimant as soon as an address was provided.
9.
Also, the Respondent stated that it did reply, on 26 May 2010, to the Claimant’s
correspondence, by means of a letter which, inter alia, stipulated that “in addition
of the preliminary agreements the ITC was not sent out of Football Federation of
country P to the country R Football Union till 08.04.2010 -the last day of the
registration period of country R”. In addition, the Respondent requested in its reply
that the authenticity of the documents provided by the Claimant along with his
claim be verified as, according to the Respondent, it did not sign an employment
contract with the Claimant. In particular, the Respondent asserted that the
signature and seal in the document named “Declaration” had been forged.
10.
In conclusion, the Respondent requested that the Claimant’s claim for compensation
be dismissed on the basis that there was not a contract in place between the parties.
11.
In his replica, the Claimant addressed each and every one of the allegations of the
Respondent as follows: i) the Claimant reiterated that the request and issuance of
an ITC sufficed to prove that there exists a valid contract signed between the parties
and referred in support of his claim to art. 8 and art. 2 par. 1 of Annexe 3 of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations); ii)
the Claimant stated again that the parties had signed the contract, rejected that the
signature of the “Declaration” had been forged and asserted that the Respondent’s
letter of 26 May 2010, allegedly sent to the Claimant, supported this claim in that it
made reference to “preliminary agreements”. Also, even if the contract was never
signed or the signature of the “Declaration” was forged, the Claimant argued that
the validity of an employment contract is not limited to a signed version, i.e. oral
agreements are equally valid; iii) the Claimant stressed that the requirement
according to which the transfer had to be completed before the closing of the
winter registration period in country R, ie 8 April 2010, had been met because the
ITC had been requested on that date; v) regarding the Claimant’s failure to
successfully pass the medical examination, the Claimant maintained that the
Respondent’s claim as to the unsuitability of the Claimant due to his unfitness
following a knee joint operation is not proven, and outlined that such a claim is
against art. 18 par. 4 of the 2009 edition of the Regulations.
12.
In its duplica, the Respondent reiterated that the document named “Declaration” is
counterfeit and that the employment contract was never signed by the Respondent.
Further, the Respondent admitted having asked the country R Football Union to
request an ITC, but it did so because the transfer window in country R was coming
Player S, from country B / Club M, from country R
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to an end on 8 April 2010 and not because a contract with the Claimant had been
signed. As a matter of fact, the Respondent stated that upon the ITC request to the
country R Football Association, no contract was submitted but it only named the
alleged date of contract, which had not been signed yet. Also, the Respondent
outlined that the successful passing of the medical examination was a pre-condition
to enter into an agreement and not a condition upon which the validity of the
contract was made dependent.
13.
Therefore, regarding the compensation requested by the Claimant, according to the
Respondent, none could result from the alleged termination without just cause by
the Respondent, because no contract had been signed and thus there was no
contract in place.
14.
Lastly, after having been requested by FIFA to provide the original version of the
document named “Declaration”, the Claimant vehemently rejected the accusation
of forgery and informed FIFA that he was not in possession of such original version,
because he was never provided with one by the Respondent. In addition, the
Claimant asked FIFA to access the Transfer Matching System (TMS) since, in the
Claimant’s view, the contract must have been submitted together with the ITC
request.
15.
Upon request, the player informed FIFA that, following the termination of his
contract with the club, he had been under contract with the following clubs:
a. Club V (country P), between 1 July 2010 and 17 February 2012, in exchange
for a gross monthly salary amounting to EUR 20,206.50 during the 20102011 season and EUR 21,681.20 during the 2011-2012 season; and
b. Club P (country P), from 14 August 2012 to 30 June 2013 in exchange for a
gross monthly salary of EUR 2,454.
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 15 June
2010. 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. article 21 par. 2 and 3 of
the Procedural Rules).
Player S, from country B / Club M, from country R
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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 2012) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns a dispute with an international dimension between
a country B player and a country R club in relation to an alleged employment
relationship between the two aforementioned parties, invoked by the Claimant.
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 (editions
2009, 2010 and 2012), and considering that the present claim was lodged on 15 June
2010, the 2009 version of 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. In doing so, the
members of the Chamber started by acknowledging that, according to the
Claimant, he had, on 8 April 2010, concluded with the Respondent an employment
contract valid from 8 April 2010 until 30 November 2012, in accordance with which
the Respondent allegedly had undertaken to pay him the total amount of EUR
1,225,600, ie 32 monthly salaries of EUR 38,300 each. Further, the Chamber also
took note of the Claimant’s allegations according to which the Respondent had de
facto terminated the alleged contractual relationship by forcing the Claimant to
leave country R, on a plane bound for country P, on 6 May 2010. Therefore, the
Claimant asked to be awarded, inter alia, compensation for breach of contract by
the Respondent in the amount of EUR 1,225,600 for the financial, moral and
sporting damages suffered.
5.
The DRC furthermore took due note of the fact that the Respondent, on its part,
had categorically denied the conclusion of an employment contract with the
Claimant. In this regard, the Chamber observed that whereas the Respondent had
admitted that the Claimant’s representative, Mr J, approached the Respondent with
a proposal to transfer the Claimant from Club Q to the Respondent, the latter had
made the continuation of negotiations dependent on a number of requirements
being met, namely the successful passing of a medical examination and the
completion of the transfer before the closing of the winter registration period in
country R, ie 8 April 2010. However, the Respondent declared that finally no
employment contract had been concluded due to the unsatisfactory results of the
medical examination underwent on 8 April 2010, that did not meet the
Respondent’s requirements.
Player S, from country B / Club M, from country R
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6.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them had been concluded, the
members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. The application of the said principle in the
present matter led the members of the Dispute Resolution Chamber to conclude
that it was for to the Claimant to prove that the employment contract, on the basis
of which he claims compensation for breach of contract from the Respondent,
indeed existed.
7.
Having stated the above, the DRC recalled that the Claimant maintained that he
never received a copy duly signed by both parties of the employment contract he
asserts having signed with the Respondent. However, the Claimant had submitted a
document in support of his claim which was in continuation examined by the
members of the Chamber.
8.
Firstly, the DRC deemed it important to highlight that, in order for an employment
contract to be considered as valid and binding, it must bear the signature of both
the employer and the employee. In this respect, the DRC observed that the Claimant
was unable to provide the Chamber with a copy of the employment contract duly
signed by both the player and the club.
9.
Furthermore, the Chamber took note of the document named “Declaration”, dated
8 April 2010, bearing only one signature just over the typed name of the
Respondent. In this regard, and given that the Claimant had been unable to
produce an executed copy of the alleged employment contract between the parties,
the Chamber noted that the core element of the present dispute is to examine
whether or not the said “Declaration”, regarded by the Claimant as a preliminary
agreement and proof of the subsequent conclusion of an employment contract, can
indeed establish the existence of an employment relationship between the club and
the player.
10.
As to the content of the “Declaration”, the DRC noted that not only the payment
scheme but also the overall remuneration set out in the “Declaration” differs from
that provided for in the contract (cf. point I/par. 1 and 2).
11.
At this stage, the DRC considered appropriate to remark that since each party has a
completely antagonistic position in this respect, this Chamber is not in a position to
consider and decide on the present case without first of all being clarified the issue
of the authenticity of the “Declaration” dated 8 April 2010. In this respect, the DRC
took into account that the Respondent is contesting the authenticity of the
“Declaration” dated 8 April 2010.
Player S, from country B / Club M, from country R
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12.
Furthermore, the Chamber observed that the Claimant, having been requested by
FIFA to provide the original version of the document named “Declaration”,
informed FIFA that he was not in possession of such original version, because he was
never provided with one by the Respondent.
13.
In addition and in relation to the Claimant’s request to access the information
contained in the TMS, the Chamber outlined that the provisions related to the TMS
only entered into force on 1 October 2010, ie when the 2010 edition of the
Regulations came into force. Considering that the present matter revolves around
facts occurred prior to 1 October 2010 and that the use of TMS became mandatory
as from 1 October 2010 only, the Chamber emphasised that there was no regulatory
basis for it to examine any information contained in the TMS.
14.
In view of all the aforementioned, taking into account the arguments raised by the
Respondent as well as taking into account that the Claimant could not provide the
original version of the “Declaration”, the Chamber decided that this document
could not be considered.
15.
Having duly taken note of the aforementioned documentation presented by the
Respondent and the Claimant, the members of the Chamber held that in order for
the Chamber to be able to assume that the Claimant and the Respondent had
indeed been bound through a contractual relationship with the terms as described
by the Claimant, it had to be established, beyond doubt, by documentary evidence,
that the said parties had indeed entered into a respective labour agreement, and, if
so, under which terms. In general, the members of the Chamber held that they
could not assume that an employment contract had been concluded by and
between parties simply based on circumstances which, in general, may be likely but
are not certain to indicate the signing of a contract. In addition, the members of the
Chamber agreed that the Dispute Resolution Chamber must be very careful with
accepting documents, other than the employment contract, as evidence for the
conclusion of a contract.
16.
In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove beyond doubt that the
Respondent and the Claimant had validly entered into an employment contract.
17. As a consequence, the DRC decided that, since the Claimant had not been able to
prove beyond doubt that an employment contract had validly been concluded
between himself and the Respondent, there was no possibility for the Chamber to
enter into the question whether or not such alleged employment contract had been
breached.
Player S, from country B / Club M, from country R
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18. All the above led the DRC to conclude that the claim of the Claimant has to be
rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player S, is rejected.
*****
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player S, from country B / Club M, from country R
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