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,
R,
as Claimant
against the club,
Z,
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 3 February 2008, the country B player, R (hereinafter: Claimant or player) and
the country H club, Z (hereinafter: Respondent or club) signed an agreement
designated “pre-contract agreement” in accordance with which “[…] the parties
wish to pre-define the future labour contract conditions […]“. Furthermore, the
parties “[…] bind themselves to sign a labour contract on the following
conditions:”
inter alia:
a. Duration as of 1 February 2008 until 30 June 2010;
b. Monthly net salary of EUR 20,000;
c. Various match and championship bonuses;
d. Car;
e. Four air tickets per season.
2.
The “pre-contract agreement” was also signed by the investment company “X”,
which was included as a party to the agreement.
3.
Art. g) of the “pre-contract agreement” stipulates that it is valid only “on the
settlement of the transfer and the receipt of the ITC (International Transfer
Certificate) […]”
4.
On 3 April 2008, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract.
5.
The Claimant submitted that after the signing of the employment contract (i.e. the
“pre-contract agreement”) he stayed in country B waiting for the club to have the
relevant air tickets issued, which allegedly never transpired.
6.
By fax dated 18 February, 3 March, 5 March and 7 March 2008 the Claimant’s agent
contacted the Respondent to inquire about the situation concerning the Claimant
and outstanding payments to be made to the agent and the Claimant.
7.
By fax dated 11 March 2008, the Claimant’s lawyer asked the club to present its
position regarding the continuation of the employment contract, to issue the flight
tickets in order for the Claimant to join the Respondent and to pay his salary of
EUR 20,000 that fell due on 3 March 2008.
8.
In reply, on 14 March 2008, the Respondent informed the Claimant that they only
signed a pre-contract and that no employment contract had been entered into
with the Claimant. That same day, by fax, the Claimant objected to such
interpretation insisting on receiving the Respondent’s final position as regards the
continuation of the employment contract. According to the Claimant, such request
remained unanswered.
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9.
In this respect, the Claimant submitted that the parties entered into a valid
employment contract as they “exchanged a common manifestation of intent and
that the relevant mutual aim covered all essentialia negotii of an employment
contract.”
10.
The Claimant further pointed out that the Respondent had already paid part of
the agent’s commission.
11.
For these reasons, the Claimant claimed compensation for breach of contract in the
total amount of EUR 580,000 corresponding to the remuneration that he would
have received during the term of the “pre-contract agreement”.
12.
In addition, the Claimant asked to be awarded payment of interest of 5% p.a. as of
the date of signature of the “pre-contract agreement”.
13.
Furthermore, the Claimant asked that disciplinary sanctions be imposed on the
Respondent.
14.
In reply to the claim, the Respondent submitted that it concluded a pre-contract
with the Claimant referring to the preamble of the relevant agreement, according
to which the object of the pre-contract was to set forth the provisions of a
prospective employment contract.
15.
The Respondent further pointed out that the pre-contract would only take effect if
“the counter-value of the right to use the Claimant’s registration was paid to
company X”.
16.
In addition, according to the Respondent, it emphasised several times to the
Claimant and the representatives of company X that it could only pay if its main
sponsor would transfer the sponsorship monies, which, in fact, allegedly had not
transpired.
17.
As a result, the Respondent did not pay the “counter-value of the right to use the
Claimant’s registration” and it did not ask for the Claimant’s international transfer
certificate (hereinafter: ITC). Consequently, the transfer did not transpire.
18.
The Respondent also found it odd that company X had indicated the amount of
EUR 600,000 as the “counter-value for the use of the Claimant’s registration”, from
which it follows that the Claimant had a valid contract with his former club, club F.
The Respondent claims that since it did not pay such amount, the employment
contract between the Claimant and club F was not terminated and, in that case, it
could not have executed an employment contract with the Claimant. The
Respondent wondered on what grounds, if the Claimant was not under contract
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with club F and was free to register with another club, company X asked for a fee
to use the Claimant’s registration.
19.
According to the Claimant, as from March 2008 until July 2010 he was employed as
follows:
a. As from 24 March 2008 until 10 December 2008 with Club A, monthly salary of
12,000;
b. As from 1 January 2009 until 30 June 2009 with Club B, monthly salary of
38,000;
c. As from 7 July 2009 until 31 December 2009 with Club C, monthly salary of
20,000;
d. As from 7 January 2010 until 3 May 2010 with Club C, monthly salary of
30,000.
20.
At FIFA’s request for further information on the contractual situation with the
club, F, the Claimant indicated inter alia that the employment contract with club F
was terminated by mutual agreement in January 2008.
II.
Considerations of the Dispute Resolution Chamber
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA on
3 April 2008. 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. article 21 par. 2 and 3 of
the Procedural Rules, edition 2008, in combination with 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 2010) 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 and a club.
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
(editions 2010 and 2009), and considering that the present claim was lodged on 3
April 2008, the 2008 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
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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 acknowledged that the Claimant and the Respondent signed an
agreement, on 3 February 2008, designated “pre-contract agreement”, in
accordance with which the parties agreed to define the conditions of a “future
labour contract”.
5.
In fact, according to the “pre-contract agreement”, the parties established, among
other details, that the employment would last as from 1 February 2008 until 30
June 2010 and that the Claimant would be entitled to receive, inter alia, a monthly
salary of EUR 20,000 net and various match and championship bonuses. The
Claimant maintained that, in fact, an employment contract was entered into and
that, as such, the Respondent is to be held liable for its early termination by having
failed to execute the terms of the employment contract, including the failure to
pay the Claimant’s remuneration.
6.
In this respect, the members of the Chamber took note of the Claimant’s default
notices dated 11 and 14 March 2008 addressed to the Respondent by means of
which the Claimant informed the latter that he considered the “pre-contract
agreement” signed between the parties to be a valid and binding employment
contract and that such contract was not being respected by the Respondent. The
Chamber also took note of the Respondent’s letter dated 14 March 2008 addressed
to the Claimant by means of which the former asserted that no employment
contract had been concluded between the parties.
7.
From the outset, the members of the Chamber highlighted that there does not
seem to be any disagreement between the parties as to the fact that the terms of
the agreement were not performed, including the payment of the remuneration
established therein. The Respondent did not contest such allegation made by the
Claimant. The fundamental disagreement between the Claimant and the
Respondent – and the central issue to the present dispute – is whether the “precontract agreement” signed between the parties established a valid and binding
employment contract between the parties.
8.
The Chamber noted that according to the Respondent, as opposed to the Claimant,
no legally binding employment contract had come into effect between the
Claimant and the Respondent, as the parties merely signed a “pre-contract”
(emphasis added) the object of which, according to its own preamble, was simply
to set forth the provisions of a prospective employment contract.
9.
Consequently, the Chamber, first and foremost, focused its attention on the
question as to whether a legally binding employment contract had been concluded
by and between the Claimant and the Respondent.
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10.
In this regard, the Chamber recalled 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 and their role, the duration of the
employment relationship, the remuneration and the signature of both parties.
After a careful study of the “pre-contract agreement” presented by the Claimant,
the Chamber concluded that all such essential elements are included in the
pertinent document, in particular, the fact that the contract establishes that the
Claimant is entitled to receive remuneration, including a monthly salary, in
exchange for his services to the club as a player.
11.
In addition, the Chamber deemed it important to highlight that the “pre-contract
agreement” was signed by both parties on 3 February 2008, whereas according to
the “pre-contract agreement” the duration of the employment relationship was as
from 1 February 2008. In other words, the alleged pre-contract (emphasis added)
was signed after the commencement of the employment relationship.
12.
The Chamber then reverted to the argument of the Respondent relating to the
fact that the transfer of the player had actually not transpired as no compensation
was paid and no ITC was requested and that, consequently, a condition precedent
of the “pre-contract agreement” was not fulfilled, rendering it invalid.
13.
The members of the Chamber recalled that according to art. g) of the “precontract agreement”, it is valid only “on the settlement of the transfer and the
receipt of the ITC (International Transfer Certificate) …”
14.
In this regard, bearing in mind art. 18 par. 4 of the Regulations, the Chamber
considered relevant to recall its jurisprudence in accordance with which the validity
of an employment contract cannot be made conditional upon the execution of
(administrative) formalities, such as, but not limited to, the registration procedure
in connection with the international transfer of a player, which are of the sole
responsibility of a club and on which a player has no influence. As regards the case
at stake, the club acknowledged that no ITC was requested. Bearing in mind that
according to Annexe 3 of the Regulations an ITC request depends on the new
club’s application to the new association to register a professional, the club is
actually in the position to prevent the occurrence of the condition precedent of
receipt of an ITC by willfully choosing not to proceed with the application for an
ITC request. By analogy, the same applies to the finalisation of documents or
procedures related to the transfer of a player, e.g. the signature of a transfer
agreement or the payment of a transfer compensation. For these reasons, the
members of the Chamber decided to reject the Respondent’s arguments in this
regard.
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15.
In continuation, the Chamber turned to the argument put forward by the
Respondent that, allegedly, at the time of the signature of the “pre-contract
agreement” between the Claimant and the Respondent, the Claimant possibly had
a valid employment contract with his former club and that, consequently, an
employment contract could not have been executed between the Claimant and the
Respondent.
16.
In this respect, the members of the Chamber highlighted the fact that a player who
has a valid employment contract signs another employment contract with a
different club, does not automatically render the subsequent contract invalid or
unenforceable. In this context, the Chamber inter alia referred to art. 18 par. 3 of
the Regulations in accordance with which a player may conclude a contract with
another club if his contract with his present club has expired or is due to expire
within six months. However, the Chamber pointed out that the signature by a
player of another employment contract covering the same period as his contract
with his present club would trigger consequences regarding a potential breach of
the present contract (cf. Chapter IV of the Regulations), but the intrinsic validity
and enforceability of the subsequent employment contract would, in principle, not
be affected and would create legal effects inter partes. The Chamber considered,
therefore, that the possible existence of a prior valid employment contract at the
time of signature of the “pre-contract agreement” between the Claimant and the
Respondent would not affect the latter’s validity and enforceability. Irrespective of
the above, the Chamber noted that according to the Claimant, his employment
contract with club F was terminated by mutual consent in January 2008 and, to this
end, he presented a document dated 28 January 2008, bearing the signature of
both the Claimant and club F, in accordance with which the player requested club
F’s consent to the termination of the employment contract.
17.
Therefore, the Chamber also decided to reject the Respondent’s argument in this
regard.
18.
On account of all of the above, the members of the Chamber concluded that by
having signed the “pre-contract agreement” a valid and legally binding
employment contract had been entered into by and between the Claimant and the
Respondent on 3 February 2008.
19.
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 breach of contract.
20.
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
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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. In fact, the Chamber took into account that,
according to the Claimant, his salaries as from February 2008 had remained unpaid
and that the Respondent had informed him that it did not intend to respect its
obligations as it did not consider the employment contract to be valid.
21.
On account of the above circumstances, the Chamber established that the
Respondent had obviously no longer been interested in the Claimant’s services by
sustaining that no valid employment contract existed between the parties and
failing to remit the Claimant’s salaries. The Chamber concluded that such conduct
clearly constitutes a breach of contract and, accordingly, decided that the
Respondent has produced the premature termination without just cause of the
employment contract entered into between the parties.
22.
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.
23.
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.
24.
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.
25.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract until 30
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June 2010 and concluded that the Claimant would have received in total EUR
580,000 as salaries had the contract been executed until its expiry date.
26.
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 player’s general
obligation to mitigate his damages.
27.
The Chamber noted that, on 24 March 2008, the Claimant had already signed an
employment contract with another club and that, from that date and until May
2010, he had had, almost uninterruptedly, professional labour relationships with
three different clubs enabling him to earn an income of approximately EUR
250,000 during said period of time.
28.
The Chamber also considered important to point out that, although the
employment contract was fully valid and enforceable, the execution of the
contract had never started.
29.
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 EUR 120,000 to the Claimant as compensation for breach of
contract.
30.
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, R, is partially accepted.
2.
The Respondent, Club Z, 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 EUR 120,000, plus 5% interest p.a. as of 1 March 2012 until the date of effective
payment.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.
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4.
Any further request filed by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent 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. 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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