Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 April 2011,
in the following composition:
Geoff Thompson (England), Chairman ad interim
Michele Colucci (Italy), member
Jon Newman (USA), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on the claim presented by the player,
E,
as Claimant
against the club,
V,
as Respondent
regarding a dispute between the parties
I.
Facts of the case
1.
According to the player, E (hereinafter: player or Claimant), on 13 June 2008, he
entered into an employment contract with the club, V (hereinafter: club or
Respondent), duly authenticated before a notary public, and allegedly valid
during the 2008-09 and 2009-10 seasons.
2.
The Claimant maintains that in accordance with this alleged employment contract
he was to receive the total amount of EUR 130,000 for the two seasons.
3.
Along with his statement of claim, the Claimant presented a copy of an invoice
dated 13 June 2008 issued by a notary public to the club referring to a “signature
recognition”.
4.
Furthermore, the Claimant submits that, on that day, the Respondent announced
the hiring of the player on its official website.
5.
However, according to the Claimant he was never given a copy of said
employment contract.
6.
The Claimant asserts that, in July 2008, the Respondent announced via the media
that it was no longer interested in the player’s services, without having informed
him personally. On 4 August 2008, he wrote to the Respondent asking for an
amicable solution. The Respondent then answered inter alia denying that an
employment contract was signed between the parties, as negotiations had been
cut off after the club had received confirmation that the player was still
contractually bound to his former club, as opposed to the information given by
the player. The Claimant, however, asserts that such statement is incorrect and
that the Respondent has always been informed about the situation with his
former club.
7.
On account of the above, on 6 October 2008, the Claimant lodged a claim against
the Respondent in front of FIFA asking that it be established that the club acted in
breach of the employment contract. Furthermore, the Claimant asks to be
awarded payment of compensation amounting to EUR 130,000 plus the amount
of EUR 10,000 for moral damages.
8.
In addition, the Claimant asks that the club be sanctioned for its misconduct and
ordered to present a copy of the relevant employment contract.
9.
In reply to the claim, the Respondent admits that it started negotiations with the
representative of the Claimant, during which negotiations the club had
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communicated its condition that the player had to be without contractual ties to
another club. The representative of the Claimant had allegedly assured that the
player was not legally bound to any other club.
10.
Considering the intention to employ the Claimant, the Respondent announced
such fact on its website during the negotiations stage.
11.
According to the Respondent, during the negotiations stage, however, it received
an e-mail from the player’s former club explaining that the player was still bound
to the latter.
12.
In the light of the player’s representative’s misrepresentation of the facts
surrounding the player’s contractual ties to his former club, the Respondent
decided to cease the negotiations.
13.
The Respondent points out that even if the negotiations had been concluded, this
situation would have been a just cause “impeditive of the agreement’s legal
value”.
14.
For these reasons, the Respondent rejects the player’s claim.
15.
In his replica, the Claimant points out that the copy of the e-mail presented by the
club in support of its position does not indicate his former club as a sender and,
furthermore, it contains false assumptions. He asserts that the Respondent had
been duly informed about his situation with his former club, namely, that he had
left his former club as the latter had not paid him his salaries, as a result of which
he was claiming those salaries in front of a labour court and that he had been
bound to his former club for at least 3 years and therefore was able, under the
FIFA regulations, to leave and register with another club.
16.
The Claimant further points out that the Respondent has not disputed the invoice
issued by the notary public (cf. point I./3. above) and, thus, the Respondent
recognizes the authentication of the player’s signature, which, according to the
Claimant, is required when presenting the employment contract to the
professional league for registration.
17.
Furthermore, the Claimant asks that the Dispute Resolution Chamber orders the
Respondent to present the pertinent employment contract and hears the
testimonial of two persons indicated in his claim.
18.
The Claimant finds it odd and uncommon that prior to signing on a player, a club
would announce the hiring of a player while still being in negotiations, as such
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statement, apart from being false, could have legal implications and put a club in
a more fragile bargaining position.
19.
Finally, the Claimant points out that in the hypothetical situation that he would
not have informed the club in detail of his contractual ties with his former club, a
club would always be obliged to verify such facts prior to employing a player.
20.
In its duplica, the Respondent reiterates that it cancelled the negotiations with
the player and decided not to sign any employment contract with him in order to
avoid any possible financial and sporting consequences relating to the contractual
situation of the player with his former club.
21.
It also points out that should such employment contract, as claimed by the player,
exist, it would have been registered with the P Football Federation and P
professional league, which never happened as can be confirmed by such
institutes.
22.
For these reasons, in particular, the inexistence of an employment contract
between the parties, the Respondent rejects the claim put forward by the
Claimant.
23.
For the sake of completeness, the Respondent points out that employment
related disputes between players and clubs participating in the P first professional
league fall within the competence of the parital committee of the P professional
football league in accordance with the P collective bargaining agreement and the
template clause inserted in all standard employment contracts. This would
prevent the Dispute Resolution Chamber from entering into the substance of the
claim.
24.
In reply to FIFA’s request for information, the P Football Federation pointed out
that there is no professional contract signed between the parties involved in the
present matter in their records.
*****
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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 6 October 2008. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: 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 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 a dispute with an international dimension
between a player and a club in relation to an alleged employment relationship
between the two aforementioned parties invoked by the player.
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 2009 and 2010), and considering that the present claim was lodged on 6
October 2008, the 2008 edition of the 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 took note that, according to the Claimant, the parties had allegedly
entered into an employment contract on 13 June 2008, which - so the Claimant was terminated without just cause by the Respondent. Consequently, the
Claimant asks that the Respondent be ordered to pay compensation for breach of
contract. The Respondent, on the other hand, categorically denies that an
employment contract was concluded by and between the parties and, therefore,
fully rejects the claim of the Claimant.
5.
In view of the dissent between the parties in respect of the basic and preliminary
question as to whether or not an employment contract between them had been
concluded, the members of the Chamber firstly referred to art. 12 par. 3 of the
Procedural Rules, according to which any party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. The application of this
principle in the present matter led the members of the Dispute Resolution
Chamber to conclude that it was up to the player to prove that the employment
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contract, on the basis of which he claims compensation for breach of contract
from the club, indeed existed.
6.
Having stated the above, the Dispute Resolution Chamber recalled that the
Claimant maintained not having received any copy of the employment contract he
asserts having signed with the Respondent. However, the Claimant had submitted
certain documents in support of his claim, which were in continuation examined
in detail by the members of the Chamber.
7.
In this respect, the Chamber took note of the invoice dated 13 June 2008 issued by
a notary public to the club that refers to a “signature recognition” (cf. point I./3.
above), which, according to the Claimant, would demonstrate that an
employment contract was signed between the parties and authenticated before a
notary public, allegedly in accordance with the registration rules of the
professional league. The members of the Chamber noted, however, that, whereas
the invoice appears to be addressed to the Respondent, it does not refer
whatsoever to the Claimant or to the signature of an employment contract. It
merely indicates the certification of a signature without any further reference. In
the light of these circumstances, the Chamber concurred that such document
cannot be considered to corroborate the Claimant’s assertion that he had entered
into an employment contract with the Respondent.
8.
The Chamber then turned its attention to the document presented by the
Claimant, which consists of a print-out of the internet homepage of the
Respondent dated 13 June 2008, which refers to the hiring by the Respondent of
the Claimant (cf. point I./4. above).
9.
In this context, the Chamber recalled that the Respondent admitted having
entered into employment negotiations with the Claimant and, during this stage,
having announced such fact on its internet homepage, but that negotiations were
broken off as soon as the Respondent became aware of the Claimant’s contractual
ties with his former club, which made the Respondent decide not to sign an
employment contract with the Claimant. The Chamber also noted that the
Claimant acknowledged that he started proceedings against his former club in
front of a labour court and that he asserted having duly informed the Respondent
of the situation with his former club. In this regard, the members of the Chamber
could follow the Respondent’s line of defence.
10.
On account of the above and in particular of the fact that the Claimant failed to
present any other document proving beyond doubt that in fact an employment
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contract had been duly signed by and between the Claimant and the Respondent,
the Chamber agreed that an internet communication, i.e. the print-out of the
Respondent’s internet homepage, could not be considered sufficient evidence
demonstrating a contractual link between the parties.
11.
In respect of the foregoing, the members of the Chamber had to conclude that
the documents presented by the Claimant were not able to prove beyond doubt
that the Claimant and the Respondent had signed a valid and binding
employment contract. In this regard, the Dispute Resolution Chamber was of the
opinion that, in fact, said documentation could not be considered as evidence
strong enough to refute the Respondent’s line of argument that the parties
involved had conducted negotiations on the player’s employment, but finally not
concluded any employment contract.
12.
As a consequence, the Dispute Resolution Chamber decided that, since the Claimant
had not been able to prove beyond doubt that an employment contract had validly
been concluded between himself and the Respondent, there was no possibility for the
Chamber to enter into the question whether or not such alleged employment
contract had been breached.
13.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, E, is rejected.
*****
Note relating to the motivated decision (legal remedy):
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According to art. 63 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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