Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player
P,
as Claimant
against the club
F,
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 31 August 2010, the country C player, P (hereinafter: the Claimant), and the
country S club, F (hereinafter: the Respondent), signed an employment contract with
a duration as from the date of signature until 31 January 2012. Furthermore, on the
same day, i.e. on 31 August 2010, the parties signed an “Annexe I“ (hereinafter: the
Annexe) to the employment contract.
2.
According to the Annexe, the Claimant was entitled to receive the total amount of
EUR 25,000 payable in 4 equal instalments for the period from September 2010 until
December 2010. Furthermore, the parties also agreed to stipulate in January 2011 the
remuneration for the period after December 2010.
3.
On 6 January 2011, the Claimant lodged a complaint before FIFA against the
Respondent alleging that he had just cause to terminate the contract in January
2011, that he should be considered as a free agent and that the Respondent should
pay him a compensation for prejudice.
4.
In particular, the Claimant stated that the contract was invalid as from January 2011,
since no salary was stipulated for the year 2011, even though an employment
contract has to include a remuneration. Consequently, the Claimant provided FIFA
with a copy of a letter dated 19 January 2011, apparently sent to the Respondent,
and by means of which he rejected the Respondent’s offer to pay him a monthly
salary of EUR 10,000 for the year 2011. On the one hand, the Claimant argued that
the contract was invalid as from 1 January 2011, since it did not mention the
remuneration for the following year; on the other hand, he informed the
Respondent that he terminated the contract with just cause.
5.
Furthermore, the Claimant mentioned that he could neither understand the contract,
nor the Annexe, since both were written in country S language.
6.
Moreover, the Claimant explained that the Respondent prevented him from finding
a new club for the period between January and June 2011, since it demanded an
excessive transfer compensation. In this respect, the Claimant provided FIFA with an
e-mail and an authorization of the Respondent. The e-mail was apparently sent to
the Claimant on 19 February 2011, in order to inform the latter player that the
Respondent would agree to transfer him to a country Q club for the amount of EUR
350,000. According to the authorization dated 16 February 2011, the Respondent
permitted a player’s agent to negotiate on its behalf with other clubs regarding a
possible transfer of the Claimant in the winter “transfer window” for a transfer
compensation amounting to EUR 100,000. The authorization was valid until 28
February 2011.
7.
As a consequence, the Claimant requested the total amount of EUR 120,000 plus
interest for prejudice, made up of 6 monthly salaries of EUR 20,000 each, which the
Claimant could have received from a new club.
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8.
In its statement of defence, the Respondent pointed out that the Annexe contained
the remuneration for the last four months in the year 2010, while the employment
contract stipulated that the parties would negotiate the salary for the year 2011 at
the end of 2010.
9.
Furthermore, the Respondent stated that in the middle of December 2010, it had
offered the Claimant a higher salary for the year 2011. Since the latter did allegedly
not accept said offer, the Respondent agreed to transfer him during the winter
“transfer window” for a transfer compensation amounting to EUR 100,000.
10.
With regard to the argument of the Claimant that he neither understood the
contract, nor the Annexe, the Respondent highlighted that the Claimant was living in
country S and played for the Respondent between the years 2004 and 2007, and,
would therefore understand country S language. Nevertheless, the Respondent had
allegedly asked the Claimant if he needed a translation of the documents, but the
latter had denied it.
11.
Moreover, the Respondent argued that the Claimant did not fulfill his obligations as
from 1 January 2011. Nevertheless, the Respondent did not want to hinder his career,
and, therefore, asked for a transfer compensation of EUR 100,000 only. According to
the Respondent, the Claimant himself was the reason why he did not find a new
club. During the negotiations, he allegedly always mentioned to be a free agent
what created confusion amongst the parties.
12.
Finally, the Respondent pointed out that it was still willing to find an agreement
with the Claimant on the alleged breach of contract, and to let him sign a new
employment contract with a third club for a transfer compensation of EUR 100,000.
According to the Respondent, said sum was composed of the money invested in the
Claimant, as well as “the affirmation of the [Claimant] in our club during
competition season of the UEFA Champions League”.
13.
With regard to his contractual situation as from 1 January 2011, the Claimant
negated having entered into a new labour relationship with a new club. On the
contrary, he affirmed that he had been registered at the job management office in
April 2011.
14.
Furthermore, the Claimant reiterated his statement that the Respondent
systematically demanded a transfer compensation fee from a potential new club.
Since then, apparently only the country A club, L, was willing to hire the Claimant. In
this respect, the Claimant stated that his registration for club L was refused, because
it had been requested outside of the registration period.
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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, the Chamber referred to art. 21 par. 1 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.
The present matter was submitted to FIFA on 6 January 2011, thus, after the
aforementioned Rules entered into force on 1 July 2008. Therefore, the Chamber
concluded that the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (DRC) (hereinafter:
the Procedural Rules) is applicable to the matter in hand.
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 b) of the Regulations on the Status and Transfer of Players
(edition 2010), the Dispute Resolution Chamber is competent to decide on the matter
at stake, which concerns an employment-related dispute with an international
dimension between a player and a club.
3.
Furthermore, the Chamber analysed which edition of the regulations 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, on the other hand, to the fact that the present claim was lodged
in front of FIFA on 6 January 2011. 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 stake 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 and noted that,
on 31 August 2010, the parties had signed an employment contract with a duration
until 31 January 2012.
5.
In this respect, the Dispute Resolution Chamber deemed 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 also contain
the “essentialia negotii” of an employment contract, such as the parties to the
contract and their role, the duration of their employment relationship as well as the
remuneration. After a careful study of the contract in hand, the Chamber determined
that the parties did not agree upon the Claimant’s salary for the period between
1 January 2011 and 31 January 2012.
6.
Consequently, the Chamber concluded that the parties had signed a valid
employment contract, but only for the period between 31 August 2010 and
31 December 2010. As from 1 January 2011, the employment contract was no longer
binding due to the absence of the Claimant’s salary, which is one of the “essentialia
negotii” of a valid employment contract.
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7.
As a consequence, the Dispute Resolution Chamber decided that, since no validly
concluded employment contract was existing when the dispute between the parties
arose, this is in January 2011, there was no possibility for the Chamber to enter into
the question whether or not such alleged employment contract had been violated by
either party.
8.
All the above led the Dispute Resolution Chamber to conclude that the complaint of
the Claimant has to be rejected.
*****
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, P, 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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