Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 December 2013,
in the following composition:
Geoff Thompson (England), Chairman
Todd Durbin (USA), member
Theodore Giannikos (Greece), member
Eirik Monsen (Norway), member
Johan van Gaalen (South Africa), member
on the claim presented by the player,
Player V, from country S
as Claimant
against the club,
Club S, from country M
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 19 December 2011, Player V, from country S (hereinafter: the Claimant),
and Club S, from country M (hereinafter: the Respondent), signed, according
to the Claimant, an employment contract (hereinafter: the contract) valid as
from the day of signing and throughout the following three years. The alleged
contract, which is drafted on the letterhead of the Respondent and signed by
both parties as well as stamped by the Respondent, reads as follows:
“
Player:
Agreement:
Salary first year:
Salary second year:
Salary third year:
Club S, GTO. A; 19/DIC/11
Player V
3 years of contract
$15.500 dls. T/c 12,50
$17.500 dls. T/c
$19.500 dls.
Contribution for rent $7.500 currency of country M a month
If the club promotes to the first League increase of salary with 65%
Payment for the termination of contract and the purchase of the federative
rights is set on $350.000 dls
2 flights (return) country M-country U “por Torneo”
[Signatures]”
2.
On 21 November 2012, the Claimant lodged a claim against the Respondent in
front of FIFA, claiming that the Respondent had unilaterally terminated the
contract without just cause, and requested to be awarded with compensation
in the amount of USD 1,124,640 plus 5% interest as from 27 December 2011 as
well as legal and procedural costs, according to the following breakdown:
- USD 350,000 as the outstanding “signing-on fee” allegedly agreed
between the Respondent and the Claimant;
- USD 630,000 as outstanding remuneration for the value of the contract
([15,500 x 12] + [17,500 x 12] + [19,500 x 12]);
- USD 19,440 as the accommodation expenses for the whole term of the
contract (currency of country M 7,500 x 36 months);
- USD 8,200 for the flight tickets of the Claimant and his family that he had
to purchase “to reach country M and sign the employment contract and
to travel to country U after the club’s breach”;
- USD 117,000 as specific compensation for the specificity of sport (USD
19,500 x 6 months).
Player V, from country S / Club S, from country M
2/11
3.
The Claimant explained that the same day of the signing of the contract, he
began to train with the team and he continued to train daily until 26
December 2011, when “a club’s representative unofficially contacted the
player by telephone” and informed him that, due to a change of the
Respondent’s management, the Respondent did not want the services of the
Claimant anymore. According to the Claimant, in this same conversation, he
was informed that he was free to look for another club.
4.
Furthermore, the Claimant declared that the next morning he went to train as
usual but the Respondent did not let him enter the training facilities “without
any valid reason”. Thereafter, the Claimant allegedly tried to contact the
Respondent, however unsuccessfully, and he did not receive any explanation
of the situation. Therefore, on 30 December 2011, the Claimant and his family
were obliged to leave country M and travelled to country U.
5.
On account of the above, the Claimant filed a claim before the Dispute
Conciliation and Resolution Commission of the country M Football Federation
for breach of contract, however the country M Football Federation rejected
the claim by stating that the Claimant was not registered within this football
association and therefore it could not deal with the matter.
6.
In its response, the Respondent rejected the claim and argued that the
contract was not a valid contract because it was signed by the accountant of
the Respondent, who, according to it, does not have enough capacity to
assume obligations on behalf of the Respondent.
7.
In addition, the Respondent declared that the contract never existed, this is,
that the Claimant and the Respondent never had an employment relationship
and that no contract was registered with the country M Football Federation.
According to the Respondent, the contract that the Claimant enclosed to his
claim was not a real and valid contract i.e. an employment contract, but was
only a document with the conditions that both parties were negotiating upon,
i.e. a letter of intention.
8.
Moreover, the Respondent indicated that the Claimant never rendered his
services to the Respondent and that there was not any kind of labour
relationship between the Claimant and the Respondent. In this regard, the
Respondent denied all the facts described by the Claimant alleging that they
are “false”.
9.
In view of all the above, the Respondent requested to dismiss the claim.
10.
The Claimant provided his replica and alleged that he acted in good faith by
trusting the capacity of the person that signed the contract to act on behalf of
- and bind - the Respondent. In this regard, the Claimant referred to the
Player V, from country S / Club S, from country M
3/11
following decisions: DRC no. 811295 of 10 August 2011 and CAS 2011/A/XXXX
Club I v. Club D. Moreover, the Claimant indicated that the person that signed
the contract was not the accountant as invoked by the Respondent, but the
executive vice-president of the Respondent, as stated on the business card he
gave the Claimant during the negotiations. In this respect, the Claimant
enclosed a business card of the person that signed the contract on behalf of
the Respondent which indicated that he was the “Vice-President”.
11.
Additionally, the Claimant stated that the contract contains all the essentialla
negotii of an employment contract and that he even began to train with the
team and rendered his services to the Respondent, therefore, giving the
contract the character of valid and binding. Furthermore, the Claimant
indicated that the Respondent had already presented him to the press.
12.
Moreover, the Claimant referred to the FIFA Regulations on the Status and
Transfer of Players and the DRC jurisprudence and argued that it was the duty
of the Respondent to request the relevant International Transfer Certificate
(ITC) and to subsequently register it with the country M Football Federation.
Consequently, the Claimant considered he should not suffer any harm due to
the Respondent’s negligence.
13.
The Claimant furthermore stated that the signing fee he claims as part of his
outstanding salaries, is due because the Respondent did not have to pay any
transfer compensation to the Claimant’s former club and, as a result, according
to the Claimant, the Respondent consented to pay him such amount as an
advance payment.
14.
In its duplica, the Respondent reiterated its previous arguments and added
that the Claimant did not train with the team as he establishes, but only made
some tests as a result of the negotiations that the parties were holding. In this
regard, the Respondent declared that the document the Claimant provided as
the contract does not include all the essentialla negotii of an employment
contract, but only contains the conditions under which a valid agreement
would have taken place.
15.
Furthermore, the Respondent alleged that the business card enclosed by the
Claimant allegedly belonging to the person that signed the contract on behalf
of the Respondent, was a false document created by the Claimant, which
according to the Respondent, proved the Claimant’s bad faith. In this respect,
the Respondent enclosed another business card of the person that signed the
contract on behalf of the Respondent which indicated that he was the
“secretario tecnico”. In addition, the Respondent stated that it never assumed
any payment compromise for the concept of a signing fee or for any other
concept, as it never had the intention of signing the Claimant.
Player V, from country S / Club S, from country M
4/11
16.
Finally, the Respondent declared that it was not a negligent act not to request
the relevant ITC or not to proceed with the registration of the contract.
According to the Respondent, it did not do so because there was no will of the
Respondent to sign the Claimant and since there was simply no valid
employment contract to register.
17.
Upon request of FIFA, the Claimant confirmed that he entered into three new
employment relationships, with the following conditions and duration:
Employment contract with country C Institute of Technology F.C. valid as
from 8 March 2012 until 9 November 2012, according to which the
Claimant received a total remuneration for the whole term of the
contract of USD 56,000.
Employment contract with Club J valid as from 28 January 2013 until 31
July 2013, according to which the Claimant was entitled to receive a
monthly salary of currency of country U 24,940 (approx. USD 1,260), which
makes a total remuneration for the whole term of the contract of
currency of country U 149,640 (approx. USD 7,560).
Employment contract with the Club B, form country I valid as from 3
September 2013 until 30 June 2014, according to which the Claimant was
entitled to receive a total remuneration for the whole term of the
contract of EUR 125,000.
Player V, from country S / Club S, from country M
5/11
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 21 November 2012. Consequently, the previous edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 par. 3 of the 2012 edition 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 2012) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
In continuation, the Chamber analysed which edition of the Regulations on
the Status and Transfer of Players should be applicable as to the substance of
the matter. In this respect, it referred, on the one hand, to art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2010 and
2012), and, on the other hand, to the fact that the present claim was lodged in
front of FIFA on 21 November 2012. Therefore, the DRC concluded that the
2010 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the 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 members of the Chamber entered into the substance of the
matter. They started by acknowledging that, according to the Claimant, the
parties to the dispute had signed, on 19 December 2011, an employment
contract valid as from the day of signing and throughout the following three
years.
5.
The members of the Chamber noted however that the Respondent
categorically rejected that such document provided by the Claimant
constituted a valid employment contract.
6.
In this respect, the Dispute Resolution Chamber deemed it important to
highlight that in order for an employment contract to be considered as valid
and binding, apart from the signature of both the employer and the
employee, it should contain the “essentialia negotii” of an employment
contract, such as the parties to the contract, their role, the duration of the
employment relationship as well as the remuneration.
Player V, from country S / Club S, from country M
6/11
7.
After a thorough study of the document presented by the Claimant, which
bears the signatures of both parties involved in the dispute, the Chamber
concluded that all such essential elements are included, in particular, the
contract establishes the parties, a term of validity, remuneration for the
Claimant and even a specified a monthly amount for the Claimant in order to
cover accommodation expenses.
8.
Consequently, the Chamber concluded that the parties had signed a valid and
binding employment contract, since the document provided by the Claimant
contains all the “essentialia negotii” to be considered a valid employment
contract.
9.
In continuation, the Chamber turned its attention to the additional position of
the Respondent, according to which the employment contract had no legal
effects since it had been signed on behalf of the Respondent by a nonauthorized person.
10.
In this regard, the members of the Chamber decided that such argumentation
cannot be upheld due to the fact that in accordance with the principle of good
faith, “bona fide”, to be respected by the parties during the conclusion of
contracts, the Claimant was in good faith to believe that the person signing
the relevant contract on behalf of the Respondent was legally authorized to
sign it, regardless of whether that person was in fact the Respondent’s “VicePresident” or not. In this respect, the Chamber wished to point out that the
agreement was drafted on the Respondent’s letterhead, was stamped by the
Respondent and that the person signing the agreement on behalf of the
Respondent had done so as the club’s “Vice-President”. Equally, and in
accordance with the principle of the burden of proof, the DRC outlined that
the Respondent did not provide documentary evidence demonstrating that the
Claimant was aware of the situation outlined by the Respondent at the
moment of signing the pertinent contract. Hence, the Respondent’s argument
in this respect cannot be upheld.
11.
Having established that a valid and legally binding employment contract had
been in force between the Claimant and the Respondent, the Chamber went
on to analyse as to whether such contract had been breached and, in the
affirmative, which party is to be held liable for the breach of contract.
12.
To this end, the Chamber was eager to emphasize that, given that the
Respondent did not contest that it had not performed any of its obligations
under the employment contract and that, in fact, it merely disputed the legal
validity of such contract, the conclusion that a valid and legally binding
employment contract had been entered into unavoidably leads to the decision
that such contract was breached by the Respondent. Moreover, the Chamber
Player V, from country S / Club S, from country M
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took into account that, according to the Claimant, he began to train with the
team and continued to do so for several consecutive days until the day in
which the Respondent informed him that his services were not needed
anymore.
13.
On account of the above circumstances, the Chamber established that the
Respondent had obviously no longer been interested in the Claimant’s services.
The Chamber concluded that such conduct clearly constitutes a breach of
contract and, accordingly, decided that the Respondent is to be held liable for
the early termination of the employment contract without just cause.
14.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber
focused its attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract in addition to any outstanding payments
on the basis of the relevant contract.
15.
First of all, the Chamber reverted to the Claimant’s financial claim, which
includes outstanding remuneration relating to flight tickets in accordance with
the employment contract. The members of the Chamber recalled that the
contract provides for two return flight tickets for the route country M –
country U “per championship” and took note that the Claimant provided an
invoice for three flight tickets country M - country U, two of which amounted
together to the total amount of USD 2,800.
16.
Consequently, taking into account the documentation remitted by the
Claimant to substantiate his claim and the fact that the employment contract
stipulated the entitlement of the Claimant to two flight tickets in the
aforementioned conditions, the DRC decided that the Respondent is liable to
pay to the Claimant the amount of USD 2,800 relating to the payment due to
him for his flight ticket, plus 5% interest.
17.
Subsequently, the Chamber turned its attention to the Claimant’s request for
the concept of an alleged outstanding signing fee. In this regard, the members
of the Chamber, first and foremost, established that the amount of USD
350,000 stipulated in the contract cannot be clearly considered as a signing fee
due to the Claimant. The Chamber, referring to the principle of the burden of
proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, also stressed
that the Claimant had not submitted any convincing documentary evidence
that could demonstrate that the aforementioned amount was agreed by the
parties as a signing fee. Consequently, the members of the Chamber agreed
that such claim is to be rejected due to a lack of legal basis.
Player V, from country S / Club S, from country M
8/11
18.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
so, the members of the Chamber firstly recapitulated that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at
the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including, in
particular, the remuneration and other benefits due to the Claimant under the
existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
19.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains a
provision by means of which the parties had beforehand agreed upon an
amount of compensation payable by the contractual parties in the event of
breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
20.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment
contract until and including December 2014 and concluded that the Claimant
would have received in total USD 649,440 as salaries plus accommodation
allowances, had the contract been executed until its expiry date.
21.
In continuation, the Chamber verified as to whether the Claimant had signed
an employment contract with another club during the relevant period of time,
by means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the
Claimant’s general obligation to mitigate his damages.
22.
The Chamber noted that, on 8 March 2012, the Claimant had signed an
employment contract with another club and that, from that date and until 30
June 2014, he had had and still has, almost uninterruptedly, professional
labour relationships with three different clubs enabling him to earn an income
of approximately USD 228,560 during said period of time.
23.
Furthermore, in the context of the Claimant’s obligation to mitigate damages,
the Chamber highlighted that the Claimant still has six more months between
the end of his current employment contract until the day in which the contract
with the Respondent would have terminated, i.e. December 2014, allowing
him to find other employment as from June 2014 at the latest and thus
Player V, from country S / Club S, from country M
9/11
mitigate his damages. Consequently, the members of the Chamber agreed that
the amount of USD 117,000, which represents the income which the Claimant
would have earned with the Respondent as from June 2014 until December
2014, shall be taken into account in the calculation of the amount of
compensation for breach of contract payable by the Respondent to the
Claimant in the present matter.
24.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the Respondent
must pay the amount of USD 300,000 to the Claimant as compensation for
breach of contract, which it considered to be a fair and justified amount of
compensation.
25.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of compensation as of the date of the present decision, i.e. 12
December 2013 until the date of effective payment.
26.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player V, is partially accepted.
2.
The Respondent, Club S, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of USD 2,800 plus 5% interest p.a. on said amount as of 21 November
2012 until the date of effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract in the
amount of USD 300,000 plus 5% interest p.a. on said amount as of 12
December 2013 until the date of effective payment.
4.
If the aforementioned sums plus interests are not paid by the Respondent
within the stated time limits, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
Player V, from country S / Club S, from country M
10/11
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are 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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player V, from country S / Club S, from country M
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