Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 6 December 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Eirik Monsen (Norw ay ), member
Jérôm e Perlem uter (France), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1. On 18 January 2016, the Futsal Player of Country B, Player A (hereinafter: the
Claimant or the player), and the Club of Country D, Club C (hereinafter: the
Respondent or the club), signed an employment contract valid as from its date of
signature until 30 April 2017 (hereinafter: the contract).
2. According to art. 3, par. 3.1 of the contract, the Claimant was entitled to a
monthly salary of 45,000 payable on the 10th day of the following month.
3. On a not specified date, the Claimant and the Respondent signed an
amendment to the contract (hereinafter: the amendment) whereby they agreed
that the player was entitled to certain bonuses, amongst which a monthly bonus
of USD 8,000 payable as follows:
-
“for 5 months in the 2015-2016 season (January 2016 – May 2016 included)”;
-
“for 9 months in the season 2016-2017 season (August 2016 - April 2017
included)”.
4. On 11 December 2016, the Claimant sent a letter to the club’s general officer
(Manager E) whereby he stated that the club had proposed him to terminate the
contract with the payment of two monthly salaries. In the same letter, the
Claimant proposed to terminate the contract with the payment of
“compensation corresponding to November, December [2016] and January
2017”.
5. By means of the “agreement for termination of Employment Agreement no. 14
of January 18, 2016” dated 30 December 2016 (hereinafter: the termination
agreement), the Claimant and the Respondent terminated the employment
contract with immediate effect.
6. Article 2 of the termination agreement provides that “the club and the player
have no mutual claims to each other, including financial claims” while, according
to article 3 of the termination agreement, the Claimant “confirms he has
received all the amounts from the Club and that the Club has fulfilled all its
obligations with regard to [the player]”.
7. On 15 February 2017, the Claimant sent a letter to the Respondent, by means of
which he affirmed that, on 5 December 2016, the Respondent informed him that
it had the intention to terminate the employment contract. “As a result of said
intention”, the Claimant acknowledged that the Respondent paid him his salary
of December 2016 and a flight ticket from Country D to Country B. The Claimant
further stated that he left Country D in December 2016, without concluding any
termination agreement with the Respondent. As a consequence, the Claimant
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Player A, Country B / Club C, Country D
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requested the Respondent to clarify, within five days, if the “employment
contract with the club [was] still in force” and, in the affirmative, to inform him
“when the club will be sending him his flying back ticket to Country D”.
8. On 7 March 2017, the Claimant sent a further letter to the Respondent,
reiterating his requests as per his letter of 15 February.
9. On 18 March 2017, the Claimant sent an e-mail to the alleged club’s interpreter,
with the following content: “Dear Manager E and Interpreter F, as per as your email and whatsapp message sent on March 18, if I do not sign, the document
that you sent me, I will not be able to play for any club nor receive any salary
until the end of April 17, therefore, there is no other solution to me than sign,
under duress, said document! I do not agree with its terms, but as informed
before, Club C didn’t gave me any other alternative than signing it. As a
consequence, please, find attached hereto the signed document. Please send my
counterpart of the document so that I will be able to prove that I am not under
contract to Club C anymore (sic). I would ask you to issue my ITC as soon as
possible, in order to allow me to keep playing futsal!”.
10. On 26 May 2017, the Claimant lodged a claim against the Respondent for breach
of contract in front of FIFA, requesting the amount of USD 108,800 plus 5%
interest p.a. as from the due dates, broken-down as follows:
a) USD 32,000 as compensation for breach of contract, corresponding to the
residual value of the contract for the period between January and April 2017;
b) USD 28,800 as compensation for the breach of contract during the protected
period;
c) USD 48,000 for moral damages.
In the alternative to points a), b) and c) above, the Claimant requested
outstanding remuneration for the period between January and 18 March 2017,
in the amount of USD 20,000, plus 5% interest p.a. as from the due dates.
Furthermore, the Claimant requested sporting sanctions on the Respondent.
11. In his claim, the Claimant affirmed that the Respondent terminated the contract
without just cause on 5 December 2016, as it allegedly requested the player to
sign a termination agreement on that date.
12. In continuation, the Claimant alleged that, as a consequence of his refusal, the
club started “to threaten” him that his salary for December 2016 will not be paid
until he signed the termination agreement.
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Player A, Country B / Club C, Country D
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13. Furthermore, the Claimant stated that he left Country D in December 2016 and
that he sent his letter to the club on 7 March 2017 (cf. point 8 above) because he
received an offer from a Club of Country B, but the Respondent “denied issuing
his ITC”.
14. In this regard, the Claimant maintained that the Respondent, on 16 and 17
March 2017, informed him that, in order to be transferred to a new club, he
should sign the termination agreement.
15. In this context, the Claimant also averred that, on 18 March 2017, the
Respondent sent him the termination agreement and that he had “no option
but to sign” it. Consequently, as he allegedly signed the document “under
duress”, the player argued that his signature was invalid.
16. Finally, the Claimant stressed that, after he signed the termination agreement,
the Respondent paid him the salary of the month of December 2016 and, on 24
March 2017, his new Club of Country B received the ITC and he eventually signed
his new employment contract.
17. In its reply, the Respondent rejected the Claimant’s argumentations and, first,
pointed out that it agreed with the player to terminate the contract with effect
as of 30 December 2016, date on which the latter signed the termination
agreement. Moreover, the Respondent affirmed that it bought a flight ticket to
Country B for the player, who eventually left on 14 December 2016.
18. Moreover, the Respondent pointed out that the existence of an agreement on
the termination of the contract was confirmed by the fact that the player did
not show up at the restart of the team’s preparation after the winter break, on 4
January 2017.
19. In this context, the Respondent alleged that the Claimant, since 4 January 2017,
started to train and play with a new club, the Club of Country B Club G and, only
in March 2017, when he decided to be registered with it, the Claimant requested
the Respondent to deliver to the new club the documentation attesting the
termination of the contract. Finally, the Respondent acknowledged that the
Claimant returned a signed copy of the termination agreement to it.
20. Furthermore, the Respondent highlighted that the correspondence allegedly
sent by the Claimant to the Respondent could not be taken into account as it
was sent to persons not authorised to represent the club. In particular, the
Respondent averred that, pursuant to the club’s internal instructions allegedly
notified to each player at the signature of the contract, the correspondence had
to be addressed to the club’s General Director (Director H, who signed the
contract) or the official e-mail address of the Respondent.
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Player A, Country B / Club C, Country D
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21. Along those lines, the Respondent affirmed that it paid the Claimant the salary
for the month of December 2016 “in two tranches till February 1, 2017” and
that, by signing the termination agreement, the player and the club agreed they
did not have any claim towards each other.
22. In his replica, the Claimant contested the arguments of the Respondent and
maintained that the termination agreement was executed on 18 March 2017 and
not on 30 December 2016, as alleged by the Respondent.
23. Moreover, the Claimant affirmed that he left the club during the winter holidays
with the latter’s authorisation and he did not return for the restart of the
preparation on 4 January 2017 because, despite his alleged requests, the
Respondent neither informed him about the starting date of the team’s
preparation nor provided him with a return flight ticket from Country B.
24. In its duplica, the Respondent reiterated his previous arguments and affirmed
that, on 5 December 2016, “a technical council of the club took place, at which it
was informed about the reached agreement on the termination of the contract
by mutual agreement with the player”.
25. Moreover, the Respondent affirmed that, on 13 December 2017, all the players
had been notified by the club’s coach about the start of the trainings on 4
January 2017.
26. Upon request of the FIFA administration, the Claimant informed that he was
unemployed as from 30 December 2016 until 29 March 2017 and that, on 29
March 2017, he signed an employment contract with the club, Club J. According
to such employment contract, valid as from its date of signature until 15
December 2017, the Claimant was entitled to a monthly salary of 8,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 26 May 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
hereinafter: 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 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
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Player A, Country B / Club C, Country D
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Players (edition 2018), 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 of Country B and a Club of Country D.
3. In continuation, 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 2018), and considering that the present claim was lodged on 26 May
2017, the 2016 edition 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 this
respect, the Chamber started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation submitted by the parties.
However, the Chamber 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.
5. First, the Chamber noted that the Claimant and the Respondent concluded an
employment contract valid as from 18 January 2016 until 30 June 2017.
6. Furthermore, the members of the Chamber took note that that it remained
undisputed that the player left the club in December 2016 and that the
termination agreement, indicating the date of 30 December 2016, was signed by
the Claimant and the Respondent.
7. Having acknowledged the above, the DRC took note that the Claimant alleged
that he signed the termination agreement under duress and, what is more, only
on 18 March 2017. In particular, the Claimant affirmed that the Respondent
would not release the ITC for the transfer to another club until he signed the
aforementioned termination agreement. On account of the above, the Claimant
maintained that the Respondent terminated the contract without just cause and
requested the payment of compensation for breach of contract and moral
damages.
8. The Dispute Resolution Chamber equally took due note of the fact that the
Respondent, for its part, refuted the Claimant’s allegations and affirmed that
the termination agreement had been validly concluded on the date indicated
therein, namely on 30 December 2016.
9. In view of the aforementioned dissent positions of the parties in respect of the
question as to whether the agreement on the termination of the contract had
been signed under duress by the Claimant and on which date, the members of
the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according
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Player A, Country B / Club C, Country D
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to which any party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof.
10. With the above in mind, the members of the Chamber concurred on the fact
that it was up to the Claimant to demonstrate that he signed the termination
agreement under duress and, consequently, that said agreement had not been
validly concluded.
11. Having stated the above, the members of the Chamber turned their attention to
the evidence submitted by the Claimant in order to support his argumentations
and noted that the latter only provided an e-mail dated 18 March 2017 (cf. point
I.9. above) whereby he stated that he signed the termination agreement under
duress.
12. On account of the above-mentioned considerations and in view of the
documentation submitted by the Claimant, the members of the Chamber
concurred that such documentation was not sufficient to demonstrate, in and on
itself, that he signed the termination agreement under duress.
13. Consequently, the members of the Chamber concluded that, in accordance with
the principle of the burden of the proof, the Claimant did not prove that he
signed the termination agreement under duress. Moreover, the members of the
Chamber were comforted with such conclusion by the fact that, according to the
correspondence sent by the Claimant to the Respondent on 11 December 2016
(cf. point I.4.), the player himself was willing to conclude a termination
agreement with the club.
14. Therefore, on account of all the aforementioned considerations, the Dispute
Resolution Chamber decided that, since the Claimant had not been able to prove
that the termination agreement had not been validly concluded between
himself and the Respondent, there was no possibility for the Chamber to enter
into the question whether or not the relevant employment contract had been
breached.
15. All the above led the Dispute Resolution Chamber to conclude that the claim of
the player has to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
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Player A, Country B / Club C, Country D
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Note relating to the m otiv ated decis ion (legal remedy):
According to article 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:
Emilio García Silvero
Chief Legal Officer
Encl.: CAS directives
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