Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 May 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Maurice Watkins (England), Member
Paulo Rogerio Amoretty Souza (Brazil), Member
Gerardo Movilla (Spain), Member
Theo van Seggelen (Netherlands), Member
on the claim presented by
the player, X
as Claimant
against
the club, Y
as Respondent
regarding a contractual dispute between the parties involved
./…
Facts of the case:
− The parties signed an employment contract on 31 January 2004 for the period from
31 January 2004 until 31 December 2004, providing the club with the possibility to
unilaterally renew the contract for another three years, one year at a time.
− On 1 February 2005 FIFA was contacted by the player with a complaint concerning
the unilateral renewal of his contract by the club, which apparently refused to
negotiate the terms and conditions beforehand.
− The player explained that on 21 December 2004 the club announced, in writing, its
unilateral renewal of the contract until 31 December 2005.
− On 30 December 2004 the player wrote to the club, stating his refusal to accept such
unilateral renewal of the contract but declaring that he was prepared to negotiate a
renewal under new, mutually acceptable terms.
− These negotiations were apparently unsuccessful, but in the meantime, in the hope
and good faith that they would result in a mutually acceptable new contract, the
player did continue to participate with the team until 3 February 2005, when he
finally abandoned the club. By then it had become evident that the club had no
intentions of signing a new contract under different financial terms.
− The respondent contests the termination of the employment contract and insists it
has automatically been renewed for another year as of 1 January 2005. It explains
that the player’s contract was renewed in accordance with the contractual provisions
as well as the national labour law.
− The club has moreover pointed out that on 22 December 2004 (two days after the
contract’s renewal) the player allegedly accepted a payment of EUR 1’950 in relation
to his renewed contract, and has already participated in a number of official matches
for the club during the new contractual term.
− On 1 April 2005 FIFA received a request for intervention from the Football
Association of Z due to the fact that its club Q wishes to register X as a non-amateur.
− The Y Football Federation has refused to issue the player’s international registration
transfer certificate due to the fact that its club considers he is still under contract
with them until December 2005.
− The Dispute Resolution Chamber is asked to decide upon the claimant’s contractual
situation and whether or not he may be registered for the new club of his choice.
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Considerations of the Dispute Resolution Chamber
The Dispute Resolution Chamber of the FIFA Players’ Status Committee shall review
disputes coming under its jurisdiction pursuant to Art. 42 of the FIFA Regulations for
the Status and Transfer of Players (hereafter: FIFA Regulations) at the request of one of
the parties to the dispute.
According to Art. 42 of the FIFA Regulations for the Status and Transfer of Players, the
triggering elements of the dispute (i.e. whether a contract was breached, with or
without just cause, or sporting just cause), will be decided by the Dispute Resolution
Chamber of the FIFA Players’ Status Committee.
Consequently, the Dispute Resolution Chamber is the competent body to decide on the
present litigation concerning the alleged termination of the contract between the
claimant and the respondent.
Entering into the substance of the matter, the Chamber noted that the principle ground
on which X bases his claim and conviction that there has been no valid renewal of the
employment contract he signed with Y on 31 January 2004, is the fact that no new
contractual terms have been negotiated or agreed upon by the parties.
X considers it is unacceptable to proceed to an automatic renewal of the contract under
its initial terms, without prior negotiations or signing of a new contract.
The Dispute Resolution Chamber began its deliberations on this point of debate by
analysing the relevant text in the employment contract that was signed by the parties
on 31 January 2004.
The relevant clause in the contract was found to be art. 2 of the chapter entitled
‘Special Financial Conditions’, which reads, according to its official English translation:
“This contract is valid from 31.01.2004 until 31.12.2004 with three (3) years unilateral
renewal disclosed to the footballer by a legal inspector with simultaneous disclosure to
the Football Association of Professional Footballers and the Association of Football
Clubs, at least five (5) days ahead of the transfer period, as laid down by the RPF.
The following shall be specified under penalty of invalidation:
a) the financial conditions of renewal
b) the manner of renewal e.g. if the renewal shall be continuous or interrupted—
annually / six monthly)”
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Most notable about this provision is that it gives the club the right to unilaterally renew
the contract, but also provides that such renewal shall not be valid unless the financial
conditions of renewal are specified (see point a of the provision).
In its considerations regarding the nature of art. 2 of the contract, the Chamber recalled
that a clause which gives one party the right to unilaterally cancel or lengthen it,
without providing the other party to the contract with similar rights, is a clause with
disputable validity.
It follows that art. 2 of the contract in question should either have been respected in all
of its terms, including the specification of new financial conditions accepted through
negotiation by both parties, or else the clause must be considered to be invalid due to
its potestative nature.
In this regard the Chamber pointed out that the declaration of renewal presented to
the claimant by the club on 21 December 2004 did not provide any financial conditions
of renewal, nor was there a separate written agreement in which these conditions were
laid out. It was therefore evident that negotiations had not taken place, or had in any
case not been brought to a successful conclusion.
Hence, by virtue of the formalities stipulated in art. 2(a) of the employment contract, no
valid renewal of the contract had taken place.
The Chamber also rejected the Respondent’s allegations according to which the player
would have accepted the unilateral renewal of the contract by action implying
intention, since he participated in the club’s activities until 3 February 2005. The
Chamber was of the opinion that the player had in good faith hoped for a successful
outcome of the negotiations on new financial conditions. Under such circumstances it
appears to be logical that the player stayed with the club for a certain period of time
reasonably required for the relevant negotiations. However, when he realised that the
club did not have real intentions to re-negotiate the financial terms of the contract he
left the club. Moreover, the Chamber pointed out that the club could not present any
valid argument which would have discredited the player’s position.
On account of the foregoing, the Dispute Resolution Chamber decided that the contract
signed on 31 January 2004 between the parties had formally expired on 31 December
2004 and that no valid renewal of this contract had taken place beyond that date.
As a result, the Chamber established that X is authorized to be registered to play with
the club of his choice with immediate effect.
Upon receipt of the request for the player’s international registration transfer
certificate from the association of the player’s prospective new club, the Y Football
Federation is therefore asked to comply with it without further delay.
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Decision of the Dispute Resolution Chamber
1. The claim lodged by the Claimant is accepted.
2. The contract concluded between the Claimant and the Respondent terminated on 31
December 2004.
3. The Claimant is authorized to be registered to play with the club of his choice, with
immediate effect.
4. 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
CH-1012 Lausanne
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.
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