Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 May 2006,
in the following composition:
Slim Aloulou (Tunisia) – Chairman
Ivan E. Gazidis (USA) – Member
Paulo Rogerio Amoretty Souza (Brazil) – Member
Gerardo Movilla (Spain) – Member
John Didulica (Australia) – Member
on the claim presented by
the player, X
as Claimant
against
the club, Y
as Respondent
regarding a dispute about
the employment contract concluded between the parties
I. Facts of the case
1. On 22 August 2002 the player X and the club Y concluded a three-year agreement
according to which the club committed itself to correspond to the player the monthly
amount of EUR 1,240.
2. Article 5 of this agreement reads: this contract is not an employment contract.
3. After the expiry of the agreement, in the summer of the year 2005, the club merged
with two other clubs.
4. In the scope of this transaction, X was reportedly informed of the new club’s intention
not to extend the agreement with the player.
5. In light of the above, the player decided to go and seek employment opportunities in
England, though unsuccessfully.
6. Upon his return in January 2006, the player signed an agreement with another club, Z.
7. In view of the above, the player’s new club filed with the relevant Association a request
for the registration of the player.
8. The relevant Association replied that it was not in a position to register the player with
his new club, due to the fact that he was still bound by an employment contract to
another club.
9. In this respect, the aforementioned Association referred to a document which was
handwritten and attached to the agreement signed on 22 August 2002, whereby the
club and the player allegedly agreed to extend their agreement for another two
seasons.
10. Y further informed the player that he would be free from his contractual obligations
only upon payment by any interested club of EUR 12,500 in case of a temporary transfer
and EUR 20,000 in case of a definitive one.
11. According to X, he never signed the above-mentioned extension of the agreement,
which appears to have been fabricated by Y’s president.
12. Therefore, the player points out that the agreement concluded with Y on 22 August
2002 expired at the end of the season 2004/2005 and that he is consequently free to
join any club of his choice.
13. Above all, the player is eager to emphasise that, in accordance with its Article 5, the
aforementioned agreement was not an employment contract. As a matter of fact, not
only the monthly amount stipulated therein was a mere reimbursement of the expenses
incurred by the player, but also the club never paid the insurance or social security costs,
which are compulsory in case of a Professional player.
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14. In addition to that, the player maintains that, if he had been bound to an employment
contract until 2007, as maintained by Y, the latter could have taken action against him
for having left the club at the end of the season 2004/2005, which was not the case.
15. The relevant Association informed the player that, should he intend to take action
against Y or its president for having counterfeited the extension of the agreement until
the 2006/2007 season, the competent authority would be the ordinary courts.
16. The new club, informed FIFA that X has to be considered registered with them, as all
the players formerly registered with Y. Therefore, the player is still bound by an
employment contract until 2007, as agreed by means of the contract and the additional
document signed with Y.
17. The former President of Y confirmed to FIFA that Y ceased to exist following the
merging with two other clubs, which resulted in the creation of the new club and that
all the players formerly registered with Y have been automatically registered with the
new club. Consequently, the former President of Y confirmed that the player is still
bound by an employment contract until 2007 with the new club, as agreed by means of
the contract and the additional document signed between the player and the new club.
18. At FIFA’s specific request, the relevant Association stated that Y is no longer affiliated
to the said Association and expressed its view, that, according to the national
regulations, X has to be considered as a Professional player still bound by some sort of
employment contract (contract de louage d’ouvrage) to the new club on the basis of
the contract and the additional document previously signed with Y.
19. The Dispute Resolution Chamber is requested to establish whether or not X can be
considered bound by an employment contract to the new club.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Chamber analysed whether it was competent to deal with the matter at
stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. The
present matter was submitted to FIFA on 24 January 2006, as a consequence the
Chamber concluded that the revised Rules Governing Procedures (edition 2005) on
matters pending before the decision making bodies of FIFA apply to the matter at
hand.
2. With regard to the competence of the Chamber, art. 3 par. 1 of the above-mentioned
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the
light of articles 22 to 24 of the current version of the Regulations for the Status and
Transfer of Players (edition 2005). In accordance with art. 24 par. 1 in connection 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.
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3. As a consequence, the Dispute Resolution Chamber is the competent body to decide on
the present litigation involving a club and a player with different nationalities
regarding a dispute in connection with an employment contract
4. Subsequently, the members of the Chamber analysed which edition of the Regulations
for 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 Regulations for the Status and Transfer of Players (edition 2005) and, on the other
hand, to the fact that the relevant contract at the basis of the present dispute was
signed on 22 August 2002 and the claim was lodged at FIFA on 24 January 2006. In view
of the aforementioned circumstances, the Chamber concluded that the current FIFA
Regulations for the Status and Transfer of Players (edition 2005, hereafter: the
Regulations) apply to the case at hand as to the substance.
5. In continuation, and entering into the substance of the matter, the Chamber
acknowledged the documentation contained in the file and, primarily, focussed its
attention on the three-year agreement the player and the club concluded on 22 August
2002.
6. In this respect, the Chamber took note of the financial terms of the agreement,
whereby the club committed itself to correspond to the player the monthly amount of
EUR 1,240.
7. The uncertainty of the Chamber as to whether or not, under such conditions, the above
agreement had to be considered as an employment contract was made clear by the
wording of Article 5 of this agreement, which states: this contract is not an employment
contract.
8. Subsequently, the Chamber noted that, after the expiry of the agreement, in the
summer of the year 2005, the club merged with two other clubs so to create the new
club and that, in light of the above, the player decided to go and seek employment
opportunities in England, though unsuccessfully.
9. It was then noted that, upon his return, in January 2006, the player signed an
agreement with Z, but the transfer could not take place, due to the fact that he was
allegedly bound by an employment contract to the new club on the basis of the
contract and an additional document previously signed with Y.
10. The deciding body went therefore on to analyse the contents of the document dated
15 March 2004, which was handwritten and attached to the agreement signed on
22 August 2002, whereby the club Y and the player allegedly agreed to extend their
agreement for another two seasons.
11. The Chamber acknowledged X’s position, whereby he never signed the abovementioned extension of the agreement, which appears to have been fabricated by Y’s
president and, therefore, the agreement concluded with Y on 22 August 2002 expired
at the end of the season 2004/2005, as a consequence of which, he is free to join any
club of his choice.
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12. In view of the player’s allegation of signature forgery, the DRC emphasised that, as a
general rule, it has no competence to adjudicate on alleged criminal offences, such as
forgery of signature or documents. In consequence, in such cases, the DRC would
normally refer the parties to the competent national criminal authorities.
13. Notwithstanding the above, the Chamber thoroughly scrutinised the document dated
15 March 2004 and realised that, even irrespective of any evaluation with respect to the
validity of the player’s signature, the above paper unmistakably shows a number of
irregularities.
14. In particular, the Chamber noted that this handwritten document is hardly legible and
spoilt by several corrections made to some crucial points of the text, such as the
duration of the agreement and the amount agreed upon.
15. Emphasis was especially lent by the deciding body to the indication of the seasons by
which the agreement has been prolonged. The first additional season is indicated as
2005/2006, whereas the second supplementary season was indicated as 06/07. The
Chamber noted that, even at a first glance, the indication of the season 06/07 appeared
to be added ex post.
16. The above-mentioned considerations led the Dispute Resolution Chamber to conclude
that the document dated 15 March 2004, which was handwritten and attached to the
agreement signed on 22 August 2002 cannot be considered and, therefore, is not
binding for the player.
17. In addition to that, the members of the Chamber observed that, when X went to seek
employment opportunities in England until January 2006 after Y merged with two
other clubs so to create the new club, Y could have taken action against him for
contractual breach, but this was not the case. The former President of Y first, and then
the new club, only claimed the existence of an agreement with the player six months
after his departure on occasion of the player’s possible transfer to another club.
18. According to the Chamber, the above-circumstances show the complete lack of interest
of the new club in the player, but also the club’s mere intention to make money out of
a possible transfer of the player. In this respect, the DRC strongly reproached the
behaviour of the new club, which prevented the player from carrying on with his career
during the season 2005/2006.
19. Finally, the Chamber deemed it appropriate to state that, anyway, it was questionable
whether the employment contract concluded by a player with a specific club could be
transferred to a new club (new employer, new legal subject) without the express
consent of the player.
20. In view of the above-mentioned circumstances the Dispute Resolution Chamber decided
that the agreement concluded between Y, and consequently the new club and X on 22
August 2002 is terminated and that the player is free from any contractual obligation.
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III. Decision of the Dispute Resolution Chamber
1. The claim of the player, X, is accepted.
2. The agreement concluded on 22 August 2002 between Y, and consequently the new
club, and X is terminated.
3. The player, X, is free from any contractual obligation.
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 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:
Château de Béthusy
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00, Fax: +41 21 613 50 01
[email protected], www.tas-cas.org
For the Dispute Resolution Chamber:
Urs Linsi
General Secretary
Encl.
CAS directives
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