Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 February 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by
the player O
as Claimant
against
the club, P
as Respondent
regarding an employment-related
dispute arisen between the parties
I.
Facts of the case
1.
On 28 August 2006, the player O (hereinafter: the player or the Claimant) lodged
a claim against the club P (hereinafter: the club or the Respondent).
2.
The player explained that, in summer 2006, he had been approached by the
Respondent’s coach in order for him to play for the club during the seasons
2006/2007 and 2007/2008. Interested in the offer, the player had terminated his
contract with his then current club, stipulating an original validity period from 1
January 2006 until 30 June 2007 and a monthly salary of EUR 1,000 as well as a
premium per victory of EUR 350.
3.
The player maintained that he had then travelled in order to participate in the
club’s preparation for the season 2006/2007. According to the Claimant, a contract
dated 31 July 2006 was presented to him for signature by the club. The document
submitted to FIFA by the player in this respect appears to be a standard contract
of the professional football league, in which inter alia the name and address of
the football club P (as one of the contracting parties), the date of the contract
(“31.07.2006”), the validity period of the contract (“31.07.2006 until 30.06.2008”)
as well as the financial terms of the contract have been inserted in handwriting.
According to clause 6 b) of the contract, “the football player” is entitled to receive
the total amount of EUR 84,000 in 12 monthly instalments of EUR 3,250 each and
one instalment of EUR 45,000 (on 30 March 2008). The contract does not mention
the name of the Claimant, but bears his signature in the space provided for the
signature of “the football player”. The contract is not signed by any other party.
4.
With respect to the remuneration allegedly agreed upon with the Respondent,
the player asserted that his contractual remuneration for two sporting seasons
amounted to EUR 90,000 in total. According to the Claimant, the reason that the
contract indicates a total remuneration of only EUR 84,000 is that, on 4 August
2006, the player received a cheque in the amount of EUR 6,000 from the club’s
president (copy of the cheque dated 4 August 2006 on file, indicating the player as
beneficiary). In this regard, the player explained that he and the club agreed that
he would receive the amount indicated on the cheque upon arrival since, when he
had presented the cheque to a bank in order to cash it, the bank had not been in
a position to disburse it.
Player O / Club P
2
5.
The player furthermore held that, after having participated in the preseason
preparation with the Respondent, the club informed him on 16 August 2006 that
it did not count on his services anymore and that it would therefore not execute
his contract. Consequently, the player had to return immediately in order to find a
new club.
6.
According to the player, he had suffered an important financial prejudice since,
apart from having renounced the remuneration which was contractually agreed in
order to join E, he had neither received any remuneration as per the contract
allegedly concluded with the Respondent nor any reimbursement of the costs he
incurred in order for him and his partner to travel to the club. Consequently, the
player claims the amount of EUR 45,000 from the club in order to cover his loss of
contractual remuneration for the season 2006/2007 as well as compensation
amounting to EUR 10,000 for the damage suffered because he terminated his
contract with his old club.
7.
On 3 October 2006, the player informed FIFA that he had in the meantime, on 31
August 2006, signed a contract valid for the seasons 2006/2007 and 2007/2008 with
another club, however stipulating unfavourable financial terms. The said
agreement (on file) provides for an annual remuneration of EUR 9,000, to be paid
in 12 monthly instalments of EUR 750 each, as well as for premiums of EUR 150 per
draw and EUR 300 per victory.
8.
After several requests of FIFA to present its position with regard to the player’s
claim, the Respondent contacted FIFA on 9 January 2008 and confirmed that the
Claimant had caught the club’s attention in summer 2006. After having held
negotiations, the parties had agreed on the terms of an employment contract
under the condition of the player’s prior trial.
9.
The club furthermore explained that only the player had signed the draft of the
employment contract. Furthermore, he had been given a cheque in the amount of
EUR 6,000 as an advance payment, under the condition that he would pursue trials
at the facilities of the club. The performance of the player at the trials had,
however, not been convincing, due to which the player had left the country
without raising any claims. Nor had the player cashed his cheque in the amount of
EUR 6,000 at the bank where it was payable. Subsequently, the president of the
club, who had drawn the cheque, revoked the mandate for payment of the
cheque allegedly in accordance with the national law.
10. The club concluded that the parties had never signed an employment contract
and therefore requested the Dispute Resolution Chamber to reject the player’s
claims.
Player O / Club P
3
II.
1.
Considerations of the Dispute Resolution Chamber
First of all, the Dispute Resolution Chamber 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 28 August 2006. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber,
edition 2005 (hereinafter: Procedural Rules), are applicable to the matter at hand
(cf. art. 18 par. 2 and 3 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 2008) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between the player O and the club P.
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
(edition 2008), and considering that the present claim was lodged on 28 August
2006, the previous version of the regulations (edition 2005; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
Having established its competence to deal with the matter at hand as well as the
regulations applicable, the Dispute Resolution Chamber proceeded to enter into
the substance of the case. In this respect, the Dispute Resolution Chamber
considered that it would have to focus on the question whether the player was, as
claimed, indeed entitled to receive compensation on the basis of the employment
contract he maintained having signed with the club.
5.
In this respect, the members of the Chamber examined the arguments and
documentation presented by the parties to the present dispute and first of all
acknowledged that it was uncontested that the Claimant and the Respondent
had, in summer 2006, entered into negotiations in view of possibly concluding an
employment agreement and that the player had, in this context, put an end to his
then ongoing contract in order to travel to his prospective new club and
participate in its preseason preparations.
6.
In addition, the Chamber recapitulated that it had not been disputed that a draft
contract between the parties had been prepared and handed to the player as well
as a cheque which had been issued by the Respondent’s president but had not
been able to be cashed by the player. Furthermore, the members of the Chamber
took due note that the parties agreed in that the player had finally been informed
that the club did not need his services and had therefore travelled back.
Player O / Club P
4
Consequently, the Claimant requests compensation due to the losses he allegedly
incurred on account of the aforementioned events.
7.
With regard to the player’s claim, the Chamber took note that the club, on its
part, asserted that the parties had “agreed on the terms of [the player’s] contract
under the condition of his prior trial” and that it admitted having given the player
a cheque for the amount of EUR 6,000 under the condition that he would go
through trials with the Respondent. However, the player, who had apparently not
convinced the club of his skills during the trials, left the country without raising
any claims or cashing his cheque, whereupon the president of the club “revoked
the mandate for payment of the check”. Above all, the club affirmed never having
signed any contract with the player.
8.
On account of the foregoing, the members of the Dispute Resolution Chamber
proceeded to deliberate on the document which the player claimed to be his
employment contract with the Respondent. The Chamber recalled that the
Respondent did not deny having written this draft contract and presented it to
the player, but rather pointed out that it had not been signed by both parties. In
this regard, the members of the Chamber, upon careful examination of the
document in question, acknowledged that the contract was indeed only signed by
the player and that it did not carry a signature of a club representative on any of
its pages. Bearing in mind that the parties’ signature is in principle the essential
element confirming the parties’ will to adhere to the terms as set out in a written
contract, the members of the Dispute Resolution Chamber determined that in the
present case no written agreement had been concluded between the parties to
the dispute, as the contract presented by the player was only signed by himself.
This led the Chamber to conclude that the player could not derive any
entitlements against the club directly from the said draft contract.
9.
However, the Dispute Resolution Chamber was eager to stress that during their
contract negotiations the parties had found themselves in a pre-contractual
relationship which had led the player to make, in good faith relying upon an
imminent conclusion of contract with the Respondent, several significant
arrangements, such as the termination of his contract, the purchase of tickets in
order to travel and the participation in the club’s preseason preparation and trials
during a certain period of time. In doing so, the Claimant had changed his
employment situation to his detriment and incurred in costs. However, at the end
of the contract negotiations and trials, the player had remained unemployed and
not received any compensation for his considerable expenses.
Player O / Club P
5
10.
In this regard, the Chamber referred to the legal doctrine of culpa in contrahendo
which imposes a mutual duty of care on parties negotiating a contract and can,
under certain circumstances, result in the liability of a party preventing a contract
from being concluded for damages suffered by the other party whilst relying on
the validity of the forthcoming contract.
11.
In this context, the members of the Chamber recalled that the player had, having
undisputedly been invited to come to play for the club and been handed a draft
contract as well as a cheque for an “advance payment”, in good faith been led to
rely on the conclusion of a contract with the Respondent, which had however
finally not been signed by the latter, entailing damages on the part of the
Claimant who had terminated his previous employment contract and incurred in
costs for his travel and stay. In this respect, the Dispute Resolution Chamber
pointed out that even the Respondent had recognized that the player had to be
financially compensated, allegedly for his participation in the club’s trials, due to
which he had been given a cheque in the amount of EUR 6,000. However, the
president of the club had revoked the mandate for the payment of the cheque
although, to the knowledge of the Chamber, there was no legitimate reason to
withhold the payment.
12.
On account of the considerations above, the Dispute Resolution Chamber
concluded that, apart from having admitted that the player was entitled to
compensation of EUR 6,000, the club was partly responsible for the costs and
damages incurred by the player whilst in good faith relying on the conclusion of
an employment contract with the club and was therefore liable to pay
compensation to the player.
13.
Turning its attention to the amount of such compensation, the Dispute Resolution
Chamber carefully took into account the circumstances of the present case, in
particular the amount of EUR 6,000 admittedly due to the player by the club, the
approximate costs for his travel to and lodging and the fact that during the season
2006/2007 he would have been entitled to at least the amount of EUR 12,000
under his terminated contract as well as that his new contract concluded provided
for less beneficial financial terms. In doing so, the members of the Chamber
decided that the amount of EUR 10,000 was to be considered a reasonable and
justified amount of compensation to be paid to the player in the present case.
14.
Finally, the Dispute Resolution Chamber concluded its deliberations on the matter
at hand by rejecting all further claims of the player.
Player O / Club P
6
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the player O, is partially accepted.
2.
The Respondent P shall pay the amount of EUR 10,000 to the Claimant O within 30
days as of notification of the present decision.
3.
In the event that the above-mentioned amount is not paid within the indicated
deadline, interest at a rate of 5% per annum will apply and the present matter
shall be submitted upon request to FIFA’s Disciplinary Committee for its
consideration and decision.
4.
Any further claim of the Claimant is rejected.
5.
The Claimant is instructed to inform the Respondent directly and immediately of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
6.
According to art. 61 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:
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
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player O / Club P
7