Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 December 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
John Bramhall (England), member
Mario Gallavotti (Italy), member
on the claim presented by the club,
Club A, country B,
as Claimant / Counter-Respondent
against the player,
Player C, country D,
as Respondent 1 / Counter-Claimant
and the club,
Club E, country F
as Respondent 2
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 25 July 2014, the player from country D, Player C (hereinafter: the Respondent 1 /
Counter-Claimant or the player), and the club from country B, Club A (hereinafter:
the Claimant / Counter-Respondent or Club A), signed an employment contract valid
from 1 August 2014 until “the end of the season 2015/2016”, i.e. 30 June 2016.
2.
In accordance with the employment contract, the player was inter alia entitled to
receive the following remuneration:
a. 30,000 per month for the 2014/15 season;
b. 30,000 per month for the 2015/16 season;
c. 2,104,000 as a sign-on fee payable:
i. 35% upon receipt of the ITC;
ii. 35% on 31 December 2014;
iii. 30% on 30 June 2015;
d. 2,440,000 payable in three instalments.
3.
The contract provided in its article 7 that “for the duration of the contract, and if
[Club A] receives an offer of a higher value than USD 800,000, [Club A] commits to
release the Player C”.
4.
On 11 November 2014, the player and Club A signed a mutual termination
agreement providing in its clause 2 that “after the signature of the present
termination agreement, the player declares having received all arrears and has no
claim to make and consequently discharges [Club A]”. The mutual termination
agreement equally provided in its clause 3 that “the Player C declares that it has been
agreed that he will pay [Club A] the amount of USD 150,000 within ten days of him
signing a new professional player’s contract with his new club” and that “in case the
Player C does not respect this release provision [Club A] reserves its right to oppose
the delivery of the ITC and the amount shall remain due until the end of the initial
contract”.
5.
On 17 November 2014, the player sent notice to Club A that he contested the signed
mutual termination agreement stating that the termination is disproportionate,
adding that Club A had never paid the salaries of October or November 2014, or even
the first portion of the sign-on fee. He therefore states that Club A is in default of
736,400 and the two monthly salaries in the total amount of 60,000, and notes that
Club A claims to be owed USD 150,000 from the player. He states that he considers
the mutual termination to be null and void, and will not request the allegedly
outstanding remuneration as long as Club A does not request the USD 150,000 and
unconditionally issues the player’s ITC.
6.
On 8 June 2015, Club A lodged a claim against the player and his new club from
country F, Club E (hereinafter: the Respondent 2 or Club E), claiming the following:
a. USD 150,000 on the basis of the mutual termination agreement, plus 5%
interest from the date the player and Club E signed their employment
contract;
Club A, country B / Player C, country D / Club E, country F
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b. USD 650,000 as compensation;
c. EUR 10,000 as legal fees.
7.
Club A asserted that after having participated the in pre-season and the opening
games of the 2014/15 sporting season, on 4 November 2014, the player allegedly
verbally informed Club A of his will to mutually terminate the employment contract
tying him with Club A. It continued by stating that in light of the prejudice caused to
Club A, it would allow the contract to be mutually terminated on the condition that
should the player find employment elsewhere during the time the contract was set to
last, he would have to pay the club USD 150,000 within ten days of signing said new
employment contract.
8.
Club A further asserted that on 20 December 2014, the player and Club E signed an
employment contract. Club A notes that Club E requested the delivery of the player’s
ITC on 19 January 2015, which Club A refused in consideration of having not received
the amount of USD 150,000 allegedly owed by the player.
9.
Club A claimed that in line with the legal principle of pacta sunt servanda, the player
owes it USD 150,000 in line with the mutual termination agreement, and considers
that Club E should be considered jointly liable to pay said amount in consideration of
the obligation of each club to perform due diligence in establishing whether the
player is free of contract. It claimed that Club E was undoubtedly aware of the
mutual termination agreement made between Club A and the player.
10. Furthermore, Club A claimed that Club E was an accomplice to the termination of the
employment contract. It asserted that, knowing that the release of the player from
his obligations with Club A was only possible upon payment of USD 800,000, Club E
induced the player to breach the contract so as to not have to pay the
aforementioned amount. Club A therefore considers Club E and the player should
pay the difference between the amount set in the release clause of the contract and
the amount set during the mutual termination, i.e. USD 650,000, notably as Club A
would never have accepted to release the player for less than 20% of the value of the
initial release clause.
11. In his reply to the claim, the player asserted that after signing the employment
contract Club A had not respected its obligations on multiple occasions, notably by
not paying the first portion of the sign-on fee, and consequently sought to have the
contract mutually terminated. He states that he had understood that the mutual
termination would be made without any mutual obligations, notably that the player
would not claim any of the allegedly outstanding remuneration in return for being
considered a free player. He subsequently contested the mutual termination signed
between the parties.
12. The player claimed that he signed the mutual termination under duress stating that
he was subject to threats and various pressures, before adding that the mutual
termination is clearly imbalanced and disproportionately in favour of Club A and
should be considered null and void. In addition, the player asserted that his
knowledge of French was insufficient to fully understand the document he was
signing. In spite of the fact that the termination should be considered null and void,
Club A, country B / Player C, country D / Club E, country F
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the player asserted that he should not have to return to Club A and should continue
his employment relationship with Club E.
13. The player asserted that Club A had not provided any substantiating evidence that
Club E and the player had together sought to avoid the payment of USD 800,000 in
accordance with the contract’s article 7 and therefore rejects the claim for
compensation of USD 650,000. He additionally claimed that if the application of the
principle of pacta sunt servanda were to apply to the mutual termination agreement,
then any request for additional compensation shall be rejected in light of the specific
clause contained in said agreement, i.e. the payment of USD 150,000 only.
14. Consequently, the player lodged a counterclaim against Club A stating that the
mutual termination agreement was void, thereby entitling him to the entire value of
the contract minus 30,000 which he acknowledges were paid to him, totalling
5,204,000. The player lodged a subsidiary counterclaim whereby he requested to be
paid the outstanding remuneration and outstanding portion of the sign-on fee,
which he considers to be “1,175,450”. Finally, the player also claims that the fact that
he was not paid between the signing of his contract with Club E and his official
registration on 11 March 2015 is due to the clear bad faith of Club A, who must
assume the responsibility for his loss in earnings: consequently, he requests to be paid
a total of 383,000 pertaining to four monthly salaries as well as the portion of the
sign-on fee due. He equally claims to be owed EUR 10,000 as legal fees.
15. In response to the player’s counterclaim, Club A asserted that the mutual termination
agreement was balanced and bilaterally negotiated. It stated that, in signing the
termination agreement, Club A would lose out on the possibility of receiving USD
800,000 which was provided for in the contract as a condition for the release of the
player. Club A further notes that the player had not presented any evidence
concerning the alleged duress under which he was supposed to have signed the
mutual termination agreement. Furthermore, Club A contests that the player’s
capacities to speak French were limited, noting that he is from country D, where the
official language is French, and that he spent nine years in country G in various clubs.
Club A continued by reasserting its aforementioned arguments.
16. In spite of having been invited to do so, Club E did not provide any comment for the
duration of the procedure.
17. From the information contained on the Transfer Matching System, the player signed
an employment contract with Club E, valid from 1 January 2015 until 31 May 2015,
during which time he would be entitled to a monthly salary of USD 30,000. The
player does not appear to have signed any other contract.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 8 June 2015.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
Club A, country B / Player C, country D / Club E, country F
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and the Dispute Resolution Chamber (2015 edition; hereinafter: the Procedural Rules)
are applicable to the matter at hand (cf. art. 21 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 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2016
edition) 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 from country D, a club from country B and a club from
country F.
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 (2016 edition),
and considering that the present claim was lodged on 8 June 2015, the 2015 edition
of said regulations (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 Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the aforementioned facts as well as the
arguments and the documentation submitted by the parties. The Chamber, however,
emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand. In particular, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching System
(TMS).
5.
Having established the above, the Chamber recalled that the player and Club A had
signed an employment contract valid from 25 July 2014 until “the end of the season
2015/2016”, i.e. 30 June 2016.
6.
Furthermore, the members of the Chamber acknowledged that the player and Club A
signed a termination agreement on 11 November 2014 providing inter alia that
“after the signature of the present termination agreement, the player declares
having received all arrears and has no claim to make and consequently discharges
[Club A]” and the player “will pay [Club A] the amount of USD 150,000 within ten
days of him signing a new professional player’s contract with his new club”.
7.
In continuation, the Chamber noted that Club A lodged a claim against the player
asserting he owes it USD 150,000 on the basis of the mutual termination agreement
and considering that the player signed a new contract with Club E. The DRC also
noted that Club A claimed that Club E should pay the difference between the release
clause in the employment contract and the amount established in the mutual
Club A, country B / Player C, country D / Club E, country F
5/9
termination agreement, since it was allegedly aware of the value of the release
clause and sought to avoid making the relevant payment by inducing the player to
terminate his employment relationship with Club A.
8.
On the other hand, the members of the Chamber noted that the player had
contested the termination agreement claiming that the reason for seeking to
terminate the employment contract was because Club A had not respected its
financial obligations towards him. The Chamber acknowledged that the Claimant
lodged a counterclaim against Club A by means of which he claims to be entitled to
the entire residual value of the employment contract, and subsidiarily claimed to be
owed his alleged outstanding remuneration.
9.
The DRC further noted that the player asserted having signed the mutual termination
agreement under duress, that he did not understand the language, and that the
clause contained in the mutual termination agreement is imbalanced, in favour of
Club A and should therefore be considered null and void. The Chamber also noted
that the player rejects Club A’s claim for further compensation on the basis of pacta
sunt servanda, and claims that any potential compensation payable should be limited
to USD 150,000.
10. The members of the Chamber also took note that Club E was given the opportunity
to reply to the allegations of the player and Club A, but that Club E had failed to
present its response in this respect. In this way, the Chamber deemed that Club E had
renounced to its right of defence and, thus, accepted the allegations presented.
Consequently, the Chamber established that in accordance with art. 9 par. 3 of the
Procedural Rules, it shall take a decision on the basis of the documentation on file,
i.e. the documentation presented by the player and Club A.
11. With regard to the above, the Chamber first deemed it important to note that the
terms of the mutual termination agreement signed between the player and Club A
unambiguously stipulate that Club A had fulfilled all of its financial obligations up to
the time of termination, i.e. 11 November 2014, and that the player had nothing to
claim against Club A. Indeed, the members of the Chamber deemed that clause 2 of
the termination agreement is clear and leaves no room for interpretation. The DRC,
therefore, rejected the player’s argument relating to alleged outstanding
remuneration and concluded that there were no outstanding sums owed to the
player.
12. In continuation, with regard to the player’s assertion that he had signed the contract
under duress, the Chamber noted that Club A rejects this allegation. In this regard,
and in reference to the aforementioned art. 12 par. 3 of the Procedural rules, the
DRC took into account that the player failed to present any documentary evidence in
support of his allegation that he had been forced to sign the mutual termination
agreement under duress. Consequently, the DRC decided that the Claimant’s
allegations in this regard cannot be accepted. Furthermore, for the sake of
completeness, the Chamber also decided to reject the player’s claim that the mutual
Club A, country B / Player C, country D / Club E, country F
6/9
termination agreement should not be valid in light of the language of said
document, which he allegedly did not understand, by emphasising that, in
accordance with its longstanding jurisprudence, a party signing a document of legal
importance without knowledge of its precise content, as a general rule, does so on its
own responsibility. In light of this, and the content of art. 12 par. 3, the Chamber
decided to reject the player’s argument in this regard.
13. The Dispute Resolution Chamber subsequently went on to address the issue of the
validity of clause 3 of the mutual termination agreement. In this regard, the Chamber
recalled that whereas the player argued that since the clause is clearly imbalanced
and disproportionately in favour of the club, it should be considered null and void,
Club A stated that the mutual termination agreement was freely negotiated between
the parties and is proportionate in light of the release clause contained in the
employment contract. The DRC further recalled that Club A asserted it would not
have released the player had it not been for the clause contained in the termination
agreement.
14. In light of the above and the diverging opinions of the parties to the present matter,
the members of the Chamber then sought to determine whether the clause
contained in the termination agreement, i.e. the clause providing for the payment by
the player of USD 150,000 to Club A in case the player signs a new employment
contract, is valid or not.
15. In this regard, after due deliberation, the members of the Chamber were of the
opinion that clauses such as the one at hand may be freely entered into by the
contractual parties and may be considered acceptable in the event that the pertinent
written clause meets certain criteria such as proportionality and reasonableness. In
this respect, the Chamber emphasised that in determining whether such a clause is
valid or not, the specific circumstances of the relevant case brought before it shall
also be taken into consideration.
16. Consequently, in light of all the aforementioned considerations, in particular those to
be found in point II./12 above, the Chamber deemed that the relevant clause was
freely negotiated and accepted by the parties, thereby rendering each party fully
aware of the consequences of the player signing with a new club. Therefore, the
members of the Chamber deemed that said clause is valid and applicable, and that in
principle the player would have to pay Club A USD 150,000.
17. In continuation, the Chamber focused its attention on the proportionality of the
clause. In this regard, the Chamber took into account the amount the player had
earned before the termination, the residual value of the player’s contract at the time
of termination, i.e. approximately 4,400,000, as well as the release clause contained
in the employment contract, i.e. release conditioned by the payment of USD 800,000,
the freely negotiated clause providing for the payment by the player of USD 150,000
upon signing a new employment contract is considered by the members of the
Chamber to be proportionate and rejected the player’s arguments in this regard. For
Club A, country B / Player C, country D / Club E, country F
7/9
the sake of completeness, the Chamber sought to emphasise that the proportionality
of the relevant clause should be analysed at the moment of the signing of the mutual
termination agreement. Therefore, in the Chamber’s view, by determining an exact
and specific sum at the time of termination without establishing any provisions
relating to other future events, the parties themselves acknowledged the
proportionality of the relevant clause at the time of the termination.
18. Consequently, having established that such a clause is valid and applicable, and is to
be considered as proportionate in the present matter, the members of the Chamber
partially accepted Club A’s claim and decided that in accordance with the general
legal principle of pacta sunt servanda, the player is liable to pay to Club A the
amount of USD 150,000.
19. In addition, taking into consideration the Claimant’s claim and bearing in mind that
the player had signed an employment contract with Club E valid from 1 January 2015,
the Chamber decided that the player must pay to Club A interest of 5% p.a. on the
amount of USD 150,000 as of 1 January 2015 until the date of effective payment.
20. In continuation, the Chamber decided that the claim lodged by Club A against Club E
is rejected in light of the lack of any contractual basis.
21. Finally, with regard to the claimed legal expenses, the Chamber referred to art. 18
par. 3 of the Procedural Rules as well as to its long-standing jurisprudence, in
accordance with which no procedural compensation shall be awarded in proceedings
in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to
reject Club A’s request relating to legal expenses.
22. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further requests filed by Club A are rejected and that the
counterclaim of the player is also rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Club A, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Player C, is rejected.
3.
The Respondent / Counter-Claimant, has to pay to the Claimant / CounterRespondent within 30 days as from the date of notification of this decision, the
amount of USD 150,000 plus 5% interest p.a. from 1 January 2015 until the date of
effective payment.
4.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
Club A, country B / Player C, country D / Club E, country F
8/9
5.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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. 58 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:
Marco Villiger
Deputy Secretary General
Encl.: CAS directives
Club A, country B / Player C, country D / Club E, country F
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