Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
David Mayebi (Cameroon), member
Thilina Panditharathne (Sri Lanka), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the player
S,
as Claimant
against the club
C,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 22 August 2005, the player, S (hereinafter: the Claimant) and the club, C
(hereinafter: the Respondent), signed an employment contract (hereinafter: the
contract) valid until 30 June 2009. The contract stipulated that the Claimant would
receive the gross amount of EUR 137,004.59 for the 2005-2006 season. For the
remaining seasons, the contract provided for a gross remuneration of EUR
208,992.87 per season.
2.
On 1 January 2006, the Claimant was loaned to the club, V, until the end of the
2005-2006 season.
3.
On 22 January 2007, the Claimant filed a claim with FIFA, alleging that the
Respondent had unilaterally terminated the employment contract dated 22 August
2005. According to the Claimant, the Respondent decided to terminate his
employment contract without just cause after sealing promotion from the second
division to the first division football. The Respondent had then presented him an
agreement for termination by mutual consent (hereinafter: the agreement),
apparently containing the signatures of both parties and dated 17 July 2006.
However, the Claimant claims that he had never signed the agreement. This
agreement stipulated, inter alia, that the parties had reached an agreement to
terminate the contract dated 22 August 2005 without any compensation being due
and the parties having settled all their respective obligations.
4.
According to the Claimant, he had been in country X on 17 July 2006 and therefore
he could not have been in country I to sign the agreement.
5.
The Claimant stated that because he had not signed the agreement, the
Respondent had terminated the contract unilaterally and without just cause during
the protected period. Therefore, the Claimant is claiming:
a.
that the Respondent be ordered to pay him EUR 626,768.61 [sic] (allegedly
3 x EUR 208,992.87), corresponding to the remaining value of the contract, as
compensation for breach of contract without just cause by the Respondent;
b.
that the Respondent be ordered to pay him EUR 104,496.43, corresponding
to six monthly salaries, by way of extra compensation in accordance with the
relevant provisions of the Code of Obligations;
c.
that sporting sanctions be imposed on the Respondent (a ban on registering
players for two registration periods).
6.
In its response, the Respondent stated that it had not terminated the contract
unilaterally but that the Claimant gave his consent to the mutual termination of the
contract by signing the agreement.
7.
The Respondent stated that the Claimant had not played at the level required by
the Respondent, which is why he had been loaned to the club V until 30 June 2006.
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8.
After securing promotion to the first division, the Respondent submitted the
agreement signed by the Claimant to the country I league authorities, who
confirmed the termination of the contract with effect as from 19 July 2006.
9.
In his reply, the Claimant reiterated that he had never signed the agreement. He
requested that the Respondent be asked to produce the original version of the
agreement and reiterated his initial claims.
10.
The Respondent has submitted the original version of the agreement and stands by
its position on the allegations made by the Claimant.
11.
Thereupon, the Claimant as well as the Respondent were invited to provide further
documentary evidence they might deem appropriate to corroborate their respective
positions in the present proceeding. However, neither the Claimant nor the
Respondent submitted any further documentary evidence or comments related to
the present affair.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber referred to art. 21 par. 2
and 3 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 22 January 2007, thus before the aforementioned Rules came into force
on 1 July 2008. Therefore, the Dispute Resolution Chamber referred to art. 18 par. 2
and 3 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2005; hereinafter: Procedural Rules) in
combination with art. 21 par. 2 and 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008) and
concluded that the 2005 edition of the Procedural Rules is applicable to the matter
at hand.
2.
With regard to the jurisdiction of the Dispute Resolution Chamber, art. 3 par. 1 of
the Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players. In accordance with art. 24 par. 1 in combination with art. 22 b)
of the aforementioned Regulations, the Dispute Resolution Chamber shall
adjudicate on employment related disputes between a club and a player that have
an international dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation involving a player holding the X nationality and a club
from the country I regarding a dispute between the parties in connection with an
employment contract.
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4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations on the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand, to
art. 26 par. 1 and 2 of the 2009 and 2008 editions of the Regulations on the Status
and Transfer of Players and, on the other hand, to the fact that the employment
contract at the basis of the present dispute had been concluded on 22 August 2005
and that the Claimant’s complaint had been lodged with FIFA on 22 January 2007.
In view of the foregoing, the Dispute Resolution Chamber concluded that the 2005
edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter:
the Regulations) is applicable as to the substance of the case at hand.
5.
Once its jurisdiction and the applicable regulations were established, the Dispute
Resolution Chamber, entering into the substance of the matter, examined the
documentation presented by the parties throughout the proceedings and took note
that the parties involved in the present dispute had, on 22 August 2005, signed an
employment contract valid until 30 June 2009, providing for the following
payments:
a) for the 2005-2006 season a gross remuneration of EUR 137,004.59;
b) for the three remaining seasons a gross remuneration of EUR 208,992.87
per season.
6.
In this context, the members of the Chamber duly noted that, according to the
Claimant, the employment contract was terminated by the Respondent without just
cause. In particular, the Claimant holds that, since the employment contract was
terminated by the Respondent without just cause, compensation should be payable
and that such compensation should be totalling the sum of EUR 626,768.61,
corresponding to the remaining value of the contract, in addition to extra
compensation amounting to EUR 104,496.43.
7.
With regard to his claim, the Claimant held that the Respondent decided to
terminate the contract without just cause after having been promoted from the
second division to the first division football. According to the Claimant, the
Respondent had then presented to him an agreement for termination by mutual
consent, which, however, the Claimant claims to never have signed. In this regard,
and with respect to his alleged signature contained on the agreement, the Claimant
points out that, on the date the agreement had allegedly been signed, i.e. on 17
July 2006, he was in country X and could therefore not have been in country I to
sign the agreement, reason for which he did, contrary to the contents of the
agreement, not renounced to any claim deriving from the employment relationship
he entered into with the Respondent, in particular not to a claim for compensation
due to breach of contract without just cause by the Respondent.
8.
In response to the above, the Respondent, for its part, denies that it unilaterally
terminated the pertinent employment contract, and rather contends that the
Claimant, by signing the agreement dated 17 July 2006, mutually agreed to the
termination and that, therewith, he explicitly waived any claim in relation with
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their employment relationship and that it (the Respondent) does not have any
obligations towards the Claimant whatsoever. Equally, the Respondent submitted
that, after having been promoted to the first league and after the agreement had
been concluded with the Claimant, it submitted the agreement to country I league
authorities on 19 July 2006.
9.
Replying to the above, the Claimant held that the Respondent’s comments are
entirely incorrect and that he never signed any such agreement as invoked by the
Respondent. Equally, the Claimant requested that the Respondent be asked to
produce the original version of the agreement.
10.
In its duplica, the Respondent reiterated its previous position and submitted the
original version of the agreement.
11.
In view of the argumentation put forward by the Claimant, the members of the
Chamber deemed that, in order to be able to establish whether the Respondent
would have to be ordered to pay compensation for an alleged breach of contract, it
was, first of all, crucial to closely examine the aforementioned agreement, by means
of which the Respondent claimed to have been liberated from any obligation
towards the Claimant in connection with the contractual relationship between the
parties concerned.
12.
In this context, the Dispute Resolution Chamber first and foremost duly noted that
the Claimant contested to have signed the aforementioned agreement.
13.
With respect to claims pertaining to falsification, the members of the Chamber
deemed it important to highlight that it is beyond the Chamber’s competence
to determine as to whether a document or signature has been falsified or
tampered with. In fact, such matters would fall within the competence of a
penal court.
14.
Notwithstanding the foregoing, in the event of a party invoking arguments of
falsification, the Chamber, as a standard procedure, asks that the original of the
disputed document be made available.
15.
The Respondent presented the original version of the above-mentioned
agreement. Although, as stated above, it falls within the competence of a penal
court to establish the authenticity of a document, after a comparison of the
signature on the agreement with the player’s signature on the employment
contract concluded with the Respondent, the Chamber was of the opinion that
essential parts of the player’s signature on both of these documents are
identical and that therefore, and since no further documentary evidence was
provided by the Claimant in order to corroborate his allegations of falsification,
referring to art. 12 par. 3 of the Procedural Rules, which establishes that any
party claiming a right on the basis of an alleged fact shall carry the burden of
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proof, it had no alternative but to conclude that the signature contained on the
termination agreement dated 17 July 2006 is the one of the player.
16.
Thus, the Chamber established that, by signing the aforementioned agreement, the
Claimant confirmed that all the obligations of the Respondent towards the
Claimant were duly fulfilled and that therefore, the Claimant had no claims
whatsoever towards the Respondent in relation with their contractual relationship.
17.
To conclude, the Chamber deemed that any further questions raised by the
Claimant could stay open, since the Claimant waived his right to any claim which
might possibly have arisen from the parties’ employment relationship.
18.
On account of the above, the Dispute Resolution Chamber decided that the
Claimant’s claim is rejected.
***
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, S, is rejected.
***
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Note relating to the motivated decision (legal remedy):
According to article 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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