Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 April 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Theo van Seggelen (Netherlands), member
Philippe Diallo (France), member
Jean-Marie Philips (Belgium), member
on the claim presented by
Club S.
as Claimant
against
Player G.M.
as Respondent 1
and
Club G.
as Respondent 2
regarding the non-execution of an employment contract
./…
Facts of the case
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In January 2003 the club S. observed the player G.M., who was contractually bound
to the club G. until 31 December 2003.
On 16 June 2003 the club S. sent an offer for the immediate transfer of the
federative rights to the player, G.M., to G.. The club G. made a counter offer, which
was then again counter offered by S.. Eventually, the negotiations came to a
positive conclusion.
The player, G.M., and the club, S., signed a non-dated document called “PreContract” valid for a period of three years, i.e. for the 2003/2004, 2004/2005 and
2005/2006 seasons. The relevant agreement contained also clear indications with
regard to the player’s remuneration. Clause 3 and 4 of the “Pre-contract” stated
that it would only be valid after having S. received the international transfer
certificate for the player, G.M., and having the player successfully undergone the
medical examination.
According to the club S., it was agreed that the player, G.M., and the representative
of the club G., would fly to I. in order to sign the definitive transfer agreement and
the employment contract on 26 June 2003. The club S. claims having pre-paid the
flight tickets for the player and his representative. Yet, the player and his lawyer
never flew to I.
On 26 June 2003, thus on the date chosen for the meeting, S. received a fax signed
by the President of G., confirming the agreement on the terms for the transfer and
guaranteeing that a representative of the club G. and the player would travel to the
country of the club S. on 29 June 2003 in order to sign the relevant documents. Yet,
again none of them arrived in I.
In view of the anti-professional attitude of the player, S. has decided to renounce to
his services. The club claims, however, having suffered a considerable financial and
moral damage. In particular, it spent a lot of money for flight tickets, phone calls
and reservation of high-class hotels. Moreover, the club S. is of the opinion that the
“Pre-Contract” already constituted a valid agreement with the player.
On account of the above, the club S. asks the Dispute Resolution Chamber to
condemn the player, G.M., and the club, G., to pay jointly compensation in the
amount of USD 50’000. Furthermore, sports sanctions should be imposed on the
player.
In its answer the club G., states that its approval to the transfer of the federative
rights to the player, G.M., had been made subject to the player agreeing to the
financial conditions proposed by the club, S.. In fact, in the letter dated 18 June 2003
the President of G. had explicitly remarked that “The “agree to” of this private
instrument [the transfer agreement], shall only be effective with the player’s express
and financial agreement. In case that he does not agree with that, it will not be
effective, without financial burden or penalty.” The player’s decision did, however,
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not depend on G..
Furthermore, G. claims that it was very interested in concluding the relevant
transaction. However, everything depended on the player, G.M., who, apparently,
had preferred to wait until the expiry of his contract with G. before moving to a
new club of his choice. The club G. emphasises that the player’s decision had
prevented it from receiving any compensation for the transfer of the federative
rights to the player.
Club S. / Player G.M. and Club G.
Page 2 of 7
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In continuation, the club G. explains that by means of the letter dated 26 June 2003
its President had confirmed the arrival of the player, G.M., and of a representative
of G. to I. on 29 June 2003 under the condition that the player would agree to his
engagement with S.. Yet, since the player did not accept the offer made by the club
S., the trip became obsolete.
G. points out that the “Pre-Contract” had been concluded between the player and
the club S. Yet, it does not bear the signature of any representative of G.
Consequently, it does only affect the position of the relevant parties, i.e. the player,
G.M., and the club, S. As a result, the club G. deems that even if the player should in
deed have breached the relevant agreement, G. cannot be made anyhow liable for
such action.
Finally, the club G. states that, in its opinion, the club S. and the player, G.M., did
not understand each other. G. does not know the reasons why the player did not
agree to the conclusion of the definitive employment contract. However, it
emphasises that, probably, the amount of salary offered (according to the “PreContract” USD 10’000 for the first year of the contract) was too little.
On account of all the above, G. demands the Dispute Resolution Chamber to
establish that the club G. does not owe any compensation to the club S.
The player, G.M., emphasises that at the time of the negotiations with the club S.,
he was contractually bound to G. and that he never agreed to any definitive
conditions or clauses with the club S. Consequently, he had no obligations towards
S. deriving from whatever source.
In particular, the player, G.M., is of the opinion that the “Pre-Contract” cannot have
any legal effect since it does not even bear a date. He evokes a principle of the civil
law of his country, according to which only a clause expressing the will of both
parties to a contract may emit legal effects for a future event. He explains that he
never expressly agreed to the financial conditions offered by the club S. Moreover,
he is of the opinion that none of the documents presented by S. gives evidence for
the allegation that he accepted the terms of an employment contract proposed by
the club S. According to Mr G.M., the file remitted by S. only documents the
negotiations led between the two clubs. The player reiterates that there was no
contract binding him to S. due to the lack of a document expressing the congruent
will of both the parties.
The player recalls that the club S. had sent its offer to the club G. on 16 June 2003.
On 17 June 2003 G. had answered and made a counteroffer. On 18 June S. had
made another counterproposal, which was then accepted by the club G. by means of
a letter of its President of the same day. The agreement of G. was, however, made
dependent on the “player’s express and financial agreement. In case that he does
not agree with that, it will not be effective, without financial burden or penalty”.
In continuation, the player evokes the principle according to which at the end of a
contract a player is free to move to a new club of his choice, without any
compensation having to be paid to his former club (with the exception of a possible
training compensation). Is a player, however, moving during the course of his
contract, transfer compensation is due to the player’s former club. Furthermore,
penalty clauses for an early termination of the employment contract by the player
(so called “recession clauses”) had been recognised in previous cases, provided the
relevant national legislation legitimises them. In this respect, the player, G.M.,
Club S. / Player G.M. and Club G.
Page 3 of 7
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emphasises that the “Pre-Contract” does not contain any such penalty clause.
Therefore, he cannot be condemned to pay any compensation to S..
In reply to the answer of G., the club S., emphasises that the player, G.M., had given
his express consent to the transfer by signing the “Pre-contract”, and G. had
expressed its agreement to the transfer by means of more than one correspondence.
Furthermore, the club S. confirms that the “Pre-contract” does not bear any date.
However, it emphasises that the relevant document contains precise indications with
regard to the envisaged duration of the employment relation between G.M. and S..
With respect to the salaries contained in the “Pre-contract”, the club S. clarifies that,
obviously, the amounts mentioned corresponded to monthly salaries and not to
yearly remuneration.
Finally, and referring to the question of the applicable law, the club, S., maintains
that it is not feasible for the Dispute Resolution Chamber to apply national law. The
deciding body should apply the relevant FIFA regulations in order to justify its
decision.
Currently the player, G.M., is playing for the club G.E.
Considerations of the Dispute Resolution Chamber
The members of the Dispute Resolution Chamber were summoned to pass a decision on
this matter by the Chairman pursuant to art. 1 point 6) of the Rules Governing the
Practice and Procedures of the Dispute Resolution Chamber.
The deciding body started its deliberations by indicating that, as established in art. 42
par. 1 lit. (b) (i) of the FIFA Regulations for the Status and Transfer of Players
(hereinafter: the Regulations), it falls within the purview of the Dispute Resolution
Chamber (DRC) to determine whether one of the parties has committed an unilateral
breach of contract without just cause. In the case that the employment contract was
breached by a party, the DRC is responsible to verify whether this party is accountable
for outstanding payments and compensation. Furthermore, the DRC will establish the
amount of compensation to be paid and decide whether sports sanctions must be
imposed (cf. art. 42 par. 1 (b) (ii) and (iii) in connection with art. 22 and 23 of the
Regulations).
In view of the above, the DRC concluded that it was competent to decide on the
present litigation.
Subsequently, and entering into the substance of the matter, the Chamber
acknowledged that the central issue of the case at hand would be to establish whether
the so-called “Pre-Contract”, which had been signed by the player, G.M., and the club
S., is legally binding for the parties concerned and whether it unfolds any legal effects.
In this respect, the members present at the meeting duly considered that both parties,
i.e. the player as well as the club S., signed the relevant document. Furthermore, it was
noted that the “Pre-Contract” contains the essentialia negotii of an employment
contract concluded between a club and a football player. In particular, it indicates the
parties to the contract, the prospective duration of the relevant relationship as well as
the remuneration to which the player will be entitled.
Club S. / Player G.M. and Club G.
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In continuation, the Chamber emphasised, however, that the relevant agreement
clearly stated that it would come into effect only after having S. received the
international transfer certificate for the player, G.M..
In this respect, the members of the Chamber acknowledged that the club S. never even
asked its association to request from the federation of club G. the issuance of the
relevant certificate. As a consequence, the deciding body concluded that a clear
precondition for the validity of the so-called “Pre-Contract” had not been fulfilled due
to S.’s deliberate choice not to ask for the issuance of the relevant international transfer
certificate for the player, G.M..
On account of the above, the member of the Chamber present at the meeting were of
the unanimous opinion that the document called “Pre-Contract”, which had been
signed by the player, G.M., and the club, S., never came into effect and as a result, the
player concerned could not have breached it.
The Chamber decided thus that the player, G.M., is not liable to pay any compensation
for breach of contract to the club S.
On the basis of this first conclusion, the deciding body explained that due to the fact
that no contractual breach had been committed by the player, the club G., could not be
made responsible for any kind of cooperation in that respect.
The Chamber then continued its deliberations in order to establish whether, on account
of their stance, the player, G.M., and/or the club, G., would have to pay compensation
to S. for the attitude maintained during the relevant negotiations.
In that respect, the members present at the meeting considered that, undisputedly, the
player had at least signalised to the club S. that he was seriously considering signing an
employment contract with them. By signing the relevant document called “PreContract” he had given them the impression that a positive conclusion of the transfer
was close to being found. As a consequence, the Chamber was of the opinion that the
player, G.M., is partially responsible for the efforts made by and, in particular, the
expenses occurred to S. in order to bring the relevant transaction to a positive
conclusion.
Subsequently, the Chamber turned to analyse the role of the club G., and in this respect,
particularly emphasised the fact that in its letter of 18 June 2003 the President of the
club G. had agreed to the offer made by S. in relation to the transfer of the player,
G.M.. However, the club’s President also explicitly remarked that the agreement to the
player’s transfer was subject to the player accepting the offer for an employment
contract made by S..
To that regard, the deciding body pointed out that, as a general legal principle, in order
for a player to transfer during the validity of an existing employment contract the
explicit written consent of the two clubs and the player are necessary. As a
consequence, the remark of the President of G. only confirmed the relevant principle.
Furthermore, the Chamber stated that, as also indicated by G. in its statements, in fact,
it would have been much more convenient for the club G. to transfer the player, G.M.,
Club S. / Player G.M. and Club G.
Page 5 of 7
to S. in summer 2003, when he still had a valid contract with G., than to have to wait
until the end of the relevant employment contract. The fact that the player was
transferred to a new club only after the expiration of the employment contract binding
him to the club G., prevented the latter from demanding any compensation due to the
early termination of the relevant relationship.
In continuation, the Chamber acknowledged, however, that in the fax dated 26 June
2003, the President of G. had, on the one hand, confirmed the agreement on the terms
for the relevant transfer and, on the other hand, also guaranteed that the
representative of the club G. and the player would travel to the country of the club S.
on 29 June 2003. As a consequence, the members present at the meeting deemed that
the club G. also has some responsibilities with regard to the expenses occurred to S.
within the scope of the presumed finalisation of the transfer of the player, G.M..
Moreover, the deciding body acknowledged that the club S. had maintained having
pre-paid the flight tickets for the player and his representative to I. for the meeting on
which the final agreements should apparently have been signed. That allegation had
remained uncontested.
On account of all the above, the DRC decided that the player, G.M., and the club, G.,
shall be deemed jointly and severally liable for the refund of the expenses incurred by S.
with regard to the relevant flight tickets.
Based on the information gained by the FIFA administration, the Chamber concluded
thus that for two return business class flight tickets S.P. – I. – S.P., S. is entitled to receive
the total amount of USD 9’000.
Club S. / Player G.M. and Club G.
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Decision of the Dispute Resolution Chamber
1.
The claim of the club S. is partially accepted.
2.
The club S. is entitled to receive the total amount of USD 9’000.
3.
The player G.M. and the club G. are jointly and severally liable for the payment of
the aforementioned amount.
4.
The sum indicated under point 2 of the present decision shall be paid to the club S.
within 30 days as from the date of notification of the present decision.
5.
If the relevant sum is not paid within the aforementioned deadline, a default
interest rate of 5% per annum shall apply and the present matter shall be
submitted to the Disciplinary Committee of FIFA, so that the necessary disciplinary
sanctions may be imposed.
6.
According to art. 60 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 10 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
For the Dispute Resolution Chamber:
Urs Linsi
General Secretary
Encl.
Club S. / Player G.M. and Club G.
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