Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 May 2012,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player
E,
as Claimant
against the club
X,
as Respondent
I.
regarding an employment-related dispute
arisen between the parties
Facts of the case
1.
The document dated 3 September 2008 (hereinafter: the contract) describes an
employment
contract
between
the
country
S
player,
E
(hereinafter: the Claimant), and the country B club, Club X (hereinafter: the
Respondent), providing for a duration from 3 September 2008 until 31 May 2009
and from 1 September 2009 until 31 May 2010.
2.
According to clause 19 of the contract, the monthly remuneration of the Claimant
for his services should have been USD 4,000 “inclusive”.
3.
On 31 August 2008, the Respondent sent a fax with flight details to the Claimant
and invited him to country B for a trial. The Claimant joined the Respondent on
4 September 2008 and after having completed the trial, the Respondent allegedly
decided to offer him a contract for the season 2008/09. After having discussed the
contents of the contract with his agent, the Claimant decided not to sign it unless
some points have been changed. Subsequently, a new version of the contract was
submitted to the Claimant, whereupon, he allegedly signed the contract. Equally,
the Claimant explained that the Respondent's manager was not able to sign the
contract due to personal circumstances. Hence, the player and his agent travelled
again to country B on 9 October 2008 in order to achieve the deal. Before signing
the contract, the Respondent informed the Claimant that his salary would be
decreased by the amount of USD 1,000. Therefore, the Claimant declined the
Respondent's offer. After having accepted the country B club's proposition to pay
him for the whole period he was in country B, i.e. from 3 September 2008 until
12 October 2008, the player left.
4.
In the “Final Settlement & Release” (hereinafter: the settlement) dated 12 October
2008 signed by both parties, the Claimant agreed having received “from [the
Respondent] in full and final settlement, due to [him] for [his] entire period of
service with the said club (from 3 September 2008 to 12 October 2008)”.
Furthermore, the Claimant confirmed that “neither [he has] any claims or rights or
indemnities whatsoever against [the Respondent] nor the [Respondent] has any
claims against [him]”.
5.
On 28 October 2008, the Claimant submitted a claim in front of the Dispute
Resolution Chamber (DRC), requesting the total amount of USD 8,800, as set out
below:
a. USD 8,000 as compensation corresponding to two monthly instalments
“till the next transfer period”;
b. USD 800 “5% interest over the period on two years”.
6.
In particular, the Claimant pointed out that he had allegedly already been
registered with the Football Association X (FAX), since the association of his new
club, i.e. the Football Federation M, had to request the International Transfer
Certificate (ITC) from the Football Association X in order to register him.
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7.
Finally, the Claimant stated that he had signed the settlement since the
Respondent had told him that otherwise he would neither get the salary for one
month nor receive his passport. Thus, his agent “told him to sign and start the case
by the FIFA”.
8.
In its response, the Respondent stated that the Claimant would not be entitled to
receive any compensation as the parties have never signed any contract and the
player was in country B on trial basis only. According to the Respondent, it had
paid the Claimant for the complete period he was in country B on trial, which,
ultimately, the Claimant did not pass. Furthermore, the Respondent referred to
the settlement, by means of which the Claimant confirmed that there were no
remaining financial claims towards the Respondent.
9.
In his reply, the Claimant reiterated that the Respondent had asked the Football
Association X to request the ITC from the previous association. Therefore,
according to the Claimant, “it was counted as a transfer […]”. Equally, the
Claimant emphasised that the Respondent only commented the fact that the
contract was not signed. “That means that they know it, also the printed fax
report above the contract shows that it´s coming from the fax of the
[Respondent]. By the date of the fax you can see that it was sent on 21-09-2008
(After 18 days exactly from the date which they decided to contract the
[Claimant])…(18 days test!!!).”
10.
In its rejoinder, the Respondent maintained its position adding that the Claimant
had returned to his country on 12 October 2008 as a result of the deterioration of
his level of performance in accordance with the report issued by the technical
committee. Furthermore, the Respondent stated that the Claimant had willingly
signed the settlement.
11.
With regard to his contractual situation, the Claimant explained that he had
signed an employment contract with the country M club, A, with a duration from
13 January 2009 until 12 July 2010. However, the Claimant refused to provide a
complete copy of his new employment contract, i.e. his salary is unknown.
Nevertheless, he confirmed not having signed any other contract between 12
October 2008 and 13 January 2009.
*****
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II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC
judge) analysed whether he was competent to deal with the matter at stake. In
this respect, he took note that the present matter was submitted to FIFA on
28 October 2008. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 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 (editions
2010 and 2009), he is competent to decide on the present litigation, which
concerns an employment-related dispute with an international dimension
between a player and a club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players (editions 2010 and 2009), the DRC judge confirmed
that he may adjudicate in the present dispute which value does not exceed
CHF 100,000.
4.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and 2 of Regulations on the Status and Transfer of Players (editions
2010 and 2009), and considering that the present claim was lodged on 28 October
2008, the 2008 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.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, he acknowledged that first of all, based on the contradictory statements
of the parties, he had to consider whether the parties had concluded a valid
employment contract. In particular, the judge observed that the relevant
document provided by the Claimant was not signed by either party. For that
reason, the Respondent concluded that no valid employment contract had
materialised.
6.
Having stated the aforementioned, the DRC judge focused his attention on the
document dated 3 September 2008 and in particular analysed whether this
document contained all the essentialia negotii of an employment contract. In this
respect, the DRC judge wished to emphasise that in order for an employment
contract to be considered as valid and binding, it must at least contain the name
of the parties, the object, the duration of the employment relationship, the salary
and the signature of the parties.
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7.
In view of the aforementioned, the judge came to the conclusion that the abovementioned document lacked one of the essentialia negotii, i.e. the signature of
the parties, in order to be considered as a valid employment contract.
8.
Therefore, the Dispute Resolution Chamber judge established that none of the
parties was bound by the document dated 3 September 2008, and that
consequently, no breach of contract has been committed.
9.
Moreover, the DRC judge referred to the settlement, which had also been
provided by the Claimant and in this respect, observed that by signing said
document, the player E had even confirmed not having any claim against the
Respondent.
10.
Consequently, on account of all of the above-mentioned considerations, the DRC
judge decided to reject the player's claim.
*****
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III.
Decision of the DRC judge
The claim of the Claimant, E, is rejected.
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 DRC judge
Jérôme Valcke
Secretary General
Encl. CAS directives
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