Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Brendan Schwab (Australia), member
Alejandro Marón (Argentina), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
J,
as Claimant
against the club,
FC C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 13 August 2008, the player J (hereinafter referred to as “player” or
“Claimant”) and the club FC C (hereinafter referred to as “club” or
“Respondent”) signed an employment contract valid until 31 July 2011 as well as
an annex to the contract (hereinafter referred to as “Annex”).
2.
According to the terms of the Annex, the player would receive, inter alia, a
monthly salary in the amount of EUR 3,000 on the 30th day of each month.
3.
The player was also to receive accommodation, food, and a return flight ticket to
the country U.
4.
In its article 5, the Annex stipulates that the player would be obliged to accept a
unilateral termination of the employment contract by the club on the basis of a
notice of such termination by the club until 15 December 2008.
5.
By a letter dated 26 November 2008, bearing the reference “Information on onesided termination on Agreement on Professional relation”, the club informed the
player that it decided to terminate the employment contract with the player. The
letter refers to article 5 of the Annex and mentions that “you have undertaken to
unconditionally accept one-sided termination of the Agreement”. The letter was
signed by the player.
6.
On 2 December 2008, the player lodged a claim against the club in front of FIFA,
requesting to receive outstanding salaries in the amount of EUR 12,605 and, on
11 November 2009, he presented a modified claim including compensation as
follows:
EUR 605 as remainder of his salary for the month of August 2008;
EUR 12,000 as outstanding salaries for the months of September until 15
December 2008, date on which the player states he finally left the club after
having been seeking to be released from his contract with the club;
The amount of EUR 27,000 as compensation corresponding to the 9 months
during which the player states he could not find a new club, because the club
had not issued the necessary documents regarding the player’s official
release;
The amount of USD 900 for a flight ticket to country U that the player alleges
he had to pay;
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Various non-specified compensation related to lack of transportation,
accommodation and food.
7.
In its reply, the club acknowledges that it terminated the contractual relation on
26 November 2008 on the basis of the contents of article 5 of the Annex. The club
asserts that since the termination intervened before the expiry of the contractual
time limit, i.e. 15 December 2008, the termination is valid and that the club does
not have any obligations towards the player any more. It adds that it handed the
relevant letter to the player who signed it and fully accepted it.
8.
The club further explains that since it did not obtain a working permit for the
player, it had to put an end to the contractual relation.
9.
In his replica, the player pointed out that the club obviously breached the
employment contract and mentioned the following elements in support of his
position.
10.
First, the player asserts that he had a working visa which permitted him to stay in
country S.
11.
Furthermore, the player agreed to begin “the process of termination” on 26
November 2008, which process was not finalised until 18 September 2009 though,
date on which a document referred to as “Certificate of deletion from the
register” was issued by the “Commission for player registration of the Football
Association B”.
12.
The player presented various documents relating to his administrative release
from the club in support of his position that the contractual relationship with the
club in fact ended in summer 2009 instead of November 2008.
13.
The player then highlighted that the issuance of the administrative documents
regarding his release in summer 2009 only resulted in him staying unemployed
for a long period of time whereas various clubs had showed their interest in the
player.
14.
In its duplica, the club held that the player had acknowledged that all the
obligations the club had towards him had ceased on 27 November 2008. In
support of this assertion, the club refers, inter alia, to an “Agreement” dated 27
November 2008 and duly signed by the player and the signed termination letter
dated 26 November 2008.
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15.
In this respect, the club underlines that item 4 of the “Agreement” dated 27
November 2008 mentions that the club “has fulfilled all liabilities towards player
J.”
16.
Consequently, the club considers that it had done everything to permit the player
to find another club and that, by signing this “Agreement”, the player
acknowledged that the club had discharged all liabilities it had towards him.
17.
The club points out that the player only reverted to the club regarding the
administrative formalities in August 2009, when he had found a new club.
18.
Furthermore, the club mentions that the document the player identifies as a
work permit can not be considered as a proper work permit since it has to be
completed by an employment contract which was never signed.
19.
For these reasons, the club rejects the claim put forward by the player.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber) 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 2
December 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. art. 21
par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the members of the Dispute Resolution 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 2009), the Chamber is competent to deal with the matter at
stake, which concerns an employment-related dispute with an international
dimension between an 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 2009), and considering that the present claim was lodged on 2 December
2008, the 2008 edition of the 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 Dispute Resolution Chamber started by acknowledging that, on 13
August 2008, the parties in the dispute at stake concluded an employment
contract as well as an Annex providing, inter alia, for a monthly salary of EUR
3,000 on the 30th day of each month.
5.
In his statement of claim, the player asserted that the club failed to pay him
salaries as from August 2008 until mid December 2008 in the amount of EUR
12,605 and that the club proceeded to the issuance of various administrative
documents allowing him to register with another club only one year after the
contract termination. On account of this latest assertion, the player also claims
compensation in the amount of EUR 27,000, corresponding to the period of time
during which he was prevented to join another club because of the club’s alleged
late issuance of administrative documents.
6.
The Respondent, for its part, rejects the claim put forward by the Claimant and
confirmed that it terminated the employment contract by means of a termination
letter dated 26 November 2008 on the basis of article 5 of the Annex of the
employment contract.
7.
In this respect, the Chamber noted that the club does not put forward any reason
or cause for the said unilateral termination, but merely refers to the fact that the
player had committed himself to accept a unilateral termination decided by the
club if it did so before 15 December 2008 in accordance with the aforementioned
article 5 of the Annex of the employment contract.
8.
In addition, the Respondent holds that the Claimant had fully accepted the
termination of the employment contract by the club by personally countersigning the termination letter of 26 November 2008.
9.
The Chamber noted that in support of its position, in addition to the said
termination letter, the Respondent submitted a document referred to as
“Agreement” dated 27 November 2008 and duly signed by the player, which,
inter alia, stipulates that the Club “has fulfilled all liabilities towards the player”.
In this regard, the Chamber highlighted that the Claimant had not contested the
validity of the “Agreement” or its translation.
10.
After a careful analysis of the documents presented by the Respondent in its
defence, in particular the above-mentioned “Agreement”, the members of the
Chamber came to the conclusion that the Claimant, in fact, had accepted the
early termination of the employment contract. What is more, in accordance with
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item 4 of the said “Agreement”, the Claimant confirmed that the Respondent
had fulfilled all of its obligations towards the Claimant.
11.
Furthermore, the members of the Chamber recalled and wished to emphasize
that the Claimant’s request for compensation, in fact, is based on the alleged late
delivery of official documents allowing him to register with another club and not
on breach of contract (cf. number I./6. above) in accordance with the Regulations.
Such circumstance was considered to confirm the Chamber’s conclusion that the
Claimant had accepted the early termination of the employment contract.
12.
At this stage, for the sake of good order, the Chamber deemed it important to
highlight that article 5 of the Annex, in accordance with which the Claimant was
obliged to accept a unilateral termination of the employment contract if so
decided by the Respondent in a timely manner, is not acceptable due to its
potestative character. Indeed, such article appears to be unilateral and to the
benefit of the Respondent only, who, according to the wording of the said article
5, was able to terminate the contractual relation with the Claimant at its sole
discretion and without any justification. In the light of such potestative character
of the pertinent contractual clause, the members of the Chamber agreed that
article 5 of the Annex is not acceptable and could not be validly invoked as a
legal basis for a unilateral termination of the employment contract.
13.
However, in the specific case at hand, article 5 of the Annex was considered
irrelevant since the Claimant, who had not contested the validity of article 5 of
the Annex, had obviously agreed to the early termination of the employment
contract as established above.
14.
On account of all the above, the Chamber established that by signing the
“Agreement” dated 27 November 2008, the Claimant waived his right to claim
against the Respondent, the Respondent having fulfilled all of its obligations
towards the Claimant as per the “Agreement”.
15.
On account of all the above, the Chamber unanimously decided that the
Claimant’s claim was to be rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, J, is rejected.
*****
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Note relating to the motivated decision (legal remedy):
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:
___________________
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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