Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2012,
in the following composition:
Geoff Thomson (England), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
X,
as Claimant
against the club,
Z,
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 25 July 2007, the country S player, X (hereinafter: the Claimant), and the country G
club, Z (hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid until 30 June 2011.
2.
The contract established inter alia a minimum monthly salary in the amount of
EUR 1,090 to be paid until the end of each month as well as a remuneration in the
amount of EUR 124,000, divided in 16 instalments.
3.
According to the statements of the Claimant and of the Respondent, both parties
agreed to terminate the contract by mutual consent in August 2009.
4.
On 19 August 2009, the Claimant and the Respondent concluded an agreement labelled
“Private Agreement” (hereinafter: the private agreement), which established that “it is
mutually agreed between the parties that Club Z and the Football Player on 01/07/2010
will sign a three (3) year professional contract until 30/06/2013.”
5.
The private agreement stipulated that the Respondent would undertake the obligation
to pay to the Claimant the following amounts:
EUR 80,000 for the first year, i.e. season 2010/2011;
EUR 90,000 for the second year, i.e. season 2011/2012;
EUR 100,000 for the third year, i.e. season 2012/2013.
6.
On 16 July 2010, the Claimant lodged a claim in front of FIFA against the Respondent,
requesting compensation for the alleged unilateral breach of the private agreement by
the Respondent. In particular, the Claimant claimed the amount of EUR 441,000 plus
interest of 5% as follows:
EUR 270,000 corresponding to the remuneration stipulated in the private
agreement;
EUR 150,000 corresponding to match and win bonuses he could have achieved
during the employment contract that should have been signed on 1 July 2010;
EUR 20,000 for professional and image damages;
EUR 1,000 for costs related to the present proceedings.
7.
According to the Claimant, in August 2009, considering that the Respondent allegedly
wanted to hire another foreign player for the season 2009/2010 and also in order to
respect the employment quota of foreign players, the Respondent had proposed to
amicably terminate the contract, with the promise to employ him again for the season
2010/2011. In this context, the parties terminated the contract and concluded the
private agreement.
8.
In this context, the Claimant asserted that, considering the fact that the Respondent
had not yet contacted him regarding his new employment contract that would start on
1 July 2010, he contacted the Respondent through letters dated 10 June and 6 July 2010
regarding the issuance of a new visa as well as to clarify the details for the beginning of
the execution of the private agreement. In this respect, the Claimant enclosed copies of
said letters and alleged having never received any answer from the Respondent.
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9.
Finally, the Claimant declared that the non-execution of the private agreement would
deprive him to earn the agreed remuneration as well as to find a new club for the
season 2010/2011.
10.
The Respondent remitted its position rejecting the claim. In this respect, the Respondent
held that it was not satisfied with the Claimant’s performance, reason why the parties
decided to early terminate the contract. Subsequently, the Respondent allegedly
decided to sign the private agreement only after the Claimant asked whether the
Respondent would be interested on signing with him in the future. The Respondent
further stated that the private agreement was not a binding agreement, thus it did not
create an obligation for the Respondent to sign an employment contract with the
Claimant.
11.
The Respondent held having being contacted by the Claimant, on 29 April and again on
11 May 2010, requiring inter alia the renewal of his visa as well as compensation in the
amount of EUR 135,000. Moreover, the Respondent held having answered to the
Claimant on 31 May 2010, stating that the only valid contract was already terminated
on 19 August 2009. In this regard, the Respondent attached copies of the
aforementioned notifications. In addition, the Respondent emphasized that there was
no other employment contract between the parties.
12.
In this regard, the Respondent emphasized that the private agreement could not be
considered as a new employment contract neither a condition imposed to the Claimant
in order to terminate the contract signed on 25 July 2007. According to the Respondent,
the private agreement was “a vague description of what could be the context of a
future contract” and allegedly did not contain any reference to remuneration or
obligations towards the Claimant. Furthermore, the Respondent stated that, in case it
wished to renew the contract, it would have signed a new Standard Super League
Contract along with a new Registration Form to be registered with the G Football
Federation.
13.
Additionally, the Respondent rejected being responsible for the fact that the Claimant
remained unemployed for the season 2010/2011. The Respondent believed that it
remained clear that it did not wish to employ the Claimant again. In conclusion, the
Respondent affirmed that there was no breach of contract, since there was no legally
binding contract between the parties.
14.
Finally, according to the statements of the Respondent, in case the Claimant’s claim
should be accepted by the DRC, the possible compensation should be calculated
considering inter alia the following facts:
the Claimant has never had an official contract with the Respondent after the
termination of the contract signed on 25 July 2007, thus he was free to
negotiate his transfer;
as of April 2010 or, at least, as of 31 May 2010 the Claimant could have seek a
new club, since he was informed that there was no binding contract between
the parties.
15.
In his replica, the Claimant provided FIFA with his final comments, by means of which
he denied the Respondent’s allegation that the private agreement was only a
description of the conditions in case a new employment contract should be signed.
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16.
Furthermore, the Claimant added that the private agreement contains the word
“agreement” and therefore it should be considered as such, as well as that the contents
of the private agreement should be respected by the parties involved. Finally, the
Claimant alleged that he would have had no reason to accept the termination of his
previous existing contract, which was valid until 30 June 2011, if the Respondent would
have offered him only a possibility to renew the contract, considering that the
collaboration between the parties was satisfactory.
17.
The Respondent remitted us its final comments insisting in its previous arguments.
18.
Furthermore, the Respondent rejected the claim for bonuses, arguing that no
compensation should be awarded based in future and uncertain events. Finally, the
Respondent held that if any compensation should be awarded, it should be considered
that the Claimant could have signed a new employment contract after being informed
that there was no valid contract to be executed.
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 16 July 2010, thus after
1 July 2008. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. article 21 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 and 2 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
(edition 2010), and considering that the present claim was lodged on 16 July 2010, the
2009 edition of the Regulations on the Status and Transfer of Players (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 doing so, the
Chamber started to acknowledge the facts of the case as well as the documents
contained in the file.
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5.
In this respect, the Chamber acknowledged that it was undisputed by the parties that,
on 25 July 2007, the Claimant and the Respondent concluded an employment contract
valid until 30 June 2011, in accordance with which the Claimant was to receive a total
remuneration amounting to EUR 124,000 as well as monthly salaries in the amount of
EUR 1,090 each (cf. point I.1 and 2).
6.
In continuation, the DRC noticed that it also remained undisputed by both parties, the
fact that they mutually agreed to terminate the employment contract signed on
25 July 2007, even though no document concerning the alleged termination of contract
was provided by any of the parties.
7.
Moreover, the members of the Chamber acknowledged that, on 19 August 2009, the
parties signed a document labelled “Private Agreement”, by means of which the
aforementioned parties agreed that, on 1 July 2010, they would sign a professional
contract valid until 30 June 2013. In particular, the DRC remarked that the private
agreement established that the club would remunerate the player with the amount of
EUR 80,000, for the season 2010/2011, the amount of EUR 90,000, for the season
2011/2012, and the amount of EUR 100,000, for the season of 2012/2013 (cf. points
I.4 and 5).
8.
At this point the members of the Chamber reviewed the claim of the Claimant, who
asserted that the Respondent is to be held liable for the breach of the private
agreement, since it failed to comply with its terms. In this regard, the Chamber noted
that the Claimant alleged to be entitled to receive a compensation from the
Respondent amounting to EUR 441,000, consisting of EUR 270,000, corresponding to the
remunerations
stipulated
in
the
private
agreement
(cf.
point
I.5.),
EUR 150,000, corresponding to bonuses that he could have achieved; EUR 20,000, as
compensation for professional and image damages, as well as EUR 1,000, for the costs
related to the present proceedings.
9.
In this context, the DRC proceeded to analyse the arguments of both parties. First, the
Chamber took note that the Claimant affirmed that the parties amicably terminated the
contract signed on 25 July 2007 and concluded the private agreement, as a result of a
proposal of the Respondent that wanted to employ another foreign player for the
season 2009/2010 and had to respect the quota of foreign players. The Claimant held
that the Respondent then offered him to sign a new employment contract for the
season 2010/2011.
10.
Furthermore, the Chamber remarked that the Claimant declared having contacted the
Respondent in June 2010, concerning the beginning of the private contract, which
would start on 1 July 2010. To this effect, the members of the DRC took note that the
Claimant enclosed copies of his letters dated 10 June 2010 and 6 July 2010, by means of
which he allegedly asked the Respondent to issue a new visa and to provide him with
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information concerning the beginning of the private agreement. Equally, the DRC
noticed that the Claimant alleged that the Respondent never replied to him.
11.
Subsequently, the DRC acknowledged the position presented by the Respondent, by
means of which it rejected the Claimant’s claim. To this effect the Chamber took note
that the Respondent affirmed that the parties mutually terminated the contract signed
on 25 July 2007 because the Respondent was not satisfied with the Claimant’s
performance. Moreover, according to the Respondent, only after the Claimant asked if
it would be interested to employ him again in the future, the Respondent agreed to
sign the private agreement. In any case, the Respondent held that the private
agreement was not to be considered as a binding agreement, thus the Respondent did
not have to sign another employment contract with the Claimant on 1 July 2010.
12.
In this respect, the Chamber additionally remarked that according to the Respondent,
the private agreement never represented a new employment contract and for that
reason, the private agreement allegedly never referred to salaries or obligations
towards the Claimant. On the contrary, the Respondent set forth that had it wished to
renew the contract with the Claimant, it would have signed a new Standard Super
League Contract.
13.
Moreover, the members of the DRC noted that the Respondent accepted having been
contacted by the Claimant, but it alleged that it replied to the Claimant on
31 May 2010, informing him that the contract concluded between the Claimant and
itself was terminated on 19 August 2009 as well as that between said parties there was
no other contract in force.
14.
The members of the Chamber took also note that the Respondent held that it did not
wish to employ the Claimant again as well as that it was not responsible for the breach
of contract or for the unemployment of the Claimant, since there was no valid and
binding contract. Equally, the DRC further observed that the Respondent affirmed that,
in case the claim should be accepted, the possible compensation awarded should take
into consideration inter alia that the Claimant never had an official contract with the
Respondent and that at least as of 31 May 2010, he was aware that the Respondent did
not wish to conclude a new employment contract with him, therefore he could have
negotiated his transfer with any other new club.
15.
Consequently, the members of the DRC remarked that in reply to the position presented
by the Respondent, the Claimant submitted his comments emphasizing that the private
agreement should be considered as an employment contract. Moreover, the Chamber
noticed that, according to the Claimant, the collaboration between the parties was
satisfactory, thus he would have had no reason to accept to terminate the previous
existing contract, which was valid until 30 June 2011, in exchange of a mere possibility
to renew the employment contract in the future.
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16.
Furthermore, the DRC took note that the Respondent presented its final position
insisting on its arguments alleging that the Claimant is only trying to take advantage of
the club. Additionally, the Chamber noted that the Respondent affirmed that the
Claimant’s claim for bonuses shall also be rejected, since no compensation should be
awarded based in future and uncertain events. In any case, it should be considered that
the Claimant could have signed a new employment contract with a new club in order to
mitigate his damages.
17.
As a consequence, considering the above statements presented by both parties, the
member of the DRC first and foremost understood that the Claimant alleged that the
parties concluded the private agreement and that said private agreement was breached
by the Respondent, while the Respondent considered that there was no legally binding
agreement or contract between the parties.
18.
At this point, the DRC stated that, in view of the contradictory positions of the parties, it
first had to analyse whether or not the private agreement was to be considered as a
valid and legally binding agreement and in the affirmative, to determine whether the
private agreement was breached by one of the parties, i.e. by the Respondent, as
claimed by the Claimant.
19.
Having stated the aforementioned, the Chamber wished 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 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.
20.
After a careful study of the private agreement presented by the Claimant, the
Chamber concluded that all such essential elements are included in the pertinent
agreement, the parties, the duration, the signature of both parties as well as the
agreed obligations of the parties, in particular, the remuneration. Therefore, the
members of the DRC concluded that the private agreement clearly represents the basis
of an employment relationship as well as contained all the essential elements of an
employment contract. Furthermore, the DRC highlighted that the parties could not have
changed these essential elements when signing the employment contract on
1 July 2010, as established in the private agreement.
21.
On account of the above-mentioned, the Chamber decided that the private agreement
concluded by the parties on 19 August 2009, was to be considered as a valid and a
legally binding agreement that created obligations towards the parties.
22.
In continuation, the DRC proceeded to analyse whether or not the Respondent had
breached the private agreement as alleged by the Claimant.
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23.
In this respect, having determined that the private agreement was to be held as valid
and legally binding, the members of the DRC took note that the Respondent did not
proceed to sign a new professional contract with the Claimant on 1 July 2010, not even
after having been contacted by the Claimant, and thus clearly disrespecting the terms of
the private agreement.
24.
Consequently, the Chamber stated that the Respondent failed, without any valid
reason, to sign an employment contract with the Claimant as agreed on the private
agreement, breaching its contractual obligations.
25.
In view of all the above, the Chamber considered that, in the present case, it is
established that the Respondent seriously violated the terms of the private agreement
by clearly disrespecting its obligations. As a consequence, the members of the DRC
reached the conclusion that the Respondent breached the private agreement.
26.
Having established that the Respondent is to be held liable for the breach of the private
agreement, the Chamber focussed its attention on the consequences of such breach.
Therefore, in accordance with art. 17 par. 1 of the Regulations, the Chamber decided
that the Respondent is liable to pay compensation for the damages suffered by the
Claimant as a consequence of said breach.
27.
In continuation, the DRC focussed its attention on the calculation of the amount of
compensation for breach of the private agreement 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.
28.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent private agreement contained 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 the private agreement. In this
regard, the Chamber established that no such compensation clause was included in the
private agreement at the basis of the matter at stake.
29.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application to the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision establishes a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may also be taken into account at the
discretion of the decision-making body.
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30.
On this basis, the members of the Chamber once more highlighted that the Respondent
breached the private agreement and, therefore, the Claimant never received any
amount as established in the latter. The Chamber deemed that it should consider this
fact in determining the amount of compensation to be paid by the Respondent.
31.
Equally, and in order to evaluate the compensation to be paid by the Respondent, the
Chamber took, inter alia, into account, in line with art. 17 par. 1 of the Regulations, the
remuneration due to the Claimant in accordance with the private agreement, the time
remaining on said agreement, as well as the contractual situation of the Claimant after
the breach of the contract occurred.
32.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
amount payable to the Claimant under the terms of the private agreement as from
1 July 2010 until 30 June 2013. Consequently, the DRC firstly considered that according
to the private agreement the Claimant was entitled to receive for the whole period a
total remuneration amounting to EUR 270,000.
33.
In continuation, the members of 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 Dispute Resolution Chamber, 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.
34.
In this respect, the members of the Chamber remarked that according to the Claimant,
initially he did not sign any new contract with any new club because he considered that
the private agreement was in force, but that, on 15 September 2011, he signed an
employment contract with the country R club, FC B. According to the contents of the
aforementioned contract, the Chamber observed that said contract started on
9 September 2011 valid until 30 June 2013, and that the Claimant was entitled to
receive a total remuneration amounting to EUR 21,000, comprehending a sign on fee of
EUR 10,000 as well as a monthly salary of EUR 500.
35.
Consequently, the members of the DRC took note that according to the new
employment contract of the Claimant it was to deduct from the compensation with
which the Claimant should be awarded, the amount of EUR 21,000 (cf. point II.34).
Finally, the Chamber observed as well that the employment relation based on the
private agreement was never executed and that the Claimant had three transfer
windows at his disposal in order to find a new club and sign a new employment
contract. On account of the aforementioned, the members of the Chamber determined
that the Claimant shall be awarded with a compensation for the breach of the private
agreement amounting to EUR 150,000.
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36.
Subsequently, the DRC analysed the request of the Claimant corresponding to a
compensation for professional and image damages in the amount of EUR 20,000. In this
regard, the Chamber deem it appropriate to point out that the request for said
compensation presented by the Claimant had no legal basis nor evidence that
demonstrated the damage suffered or its quantity. In this context, the members of the
Chamber referred to the general legal principle of the burden of proof, according to
which a party deriving a right from an alleged fact has the obligation to prove the
relevant fact (cf. art. 12 par. 3 of the Procedural Rules). Moreover, the members of the
DRC recalled that it had already granted a compensation for the breach of the private
agreement and, for that reason the Claimant could not claim any further compensation.
On account of the aforementioned, the DRC decided that the request for compensation
related to professional and image damages shall be rejected.
37.
Moreover, the Chamber analysed the request of the Claimant to be awarded with
possible match and win bonuses that he could have achieved amounting to
EUR 150,000. The Chamber noted, however, that neither the pertinent private
agreement nor the previous employment contract concluded between the parties on
25 July 2007 specified any bonus amounts. Furthermore, the DRC also considered that
the new employment relation as agreed in the private agreement, never came into
effect, thus the Claimant could not have participated in the matches played by the
Respondent. Therefore, the members of the Chamber decided to reject the claim for
bonuses.
38.
Also, the Chamber held that the Claimant’s claim for reimbursement of the procedural
costs in the amount of EUR 1,000 shall be rejected in accordance with art. 18 par. 4 of
the Procedural Rules as well as with the Chamber’s respective longstanding
jurisprudence.
39.
In conclusion, taking into account all the above-mentioned considerations and the
specificities of the case at hand the Chamber decided to partially accept the claim of the
Claimant and, as a consequence, that the Respondent is liable to pay to the Claimant
the total amount of EUR 150,000, as compensation for the breach of the private
agreement, as well as 5% interest p.a. over said amount as from the date of the
decision, i.e. 28 March 2012, until the date of effective payment.
40.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The Respondent, Club Z, has to pay to the Claimant, X, within
30 days as from the date of notification of this decision, the amount of EUR 150,000 as
well as 5% interest p.a. on said amount as from the date of the decision until the date
of effective payment.
3.
In the event of non-payment of the aforementioned amount plus interest by the
Respondent, Club Z, within the established deadline, the present matter shall be
submitted, upon request, to the FIFA’s Disciplinary Committee for consideration and a
formal decision.
4.
Any further claims lodged by the Claimant, X, are rejected.
5.
The Claimant, X, is directed to inform the Respondent, Club Z, 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.
*******
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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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