Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 May 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Gerardo Movilla (Spain), member
Philippe Diallo (France), member
Ivan Gazidis (USA), member
on the claim presented by the player,
X, XX,
represented by Mr ….., attorney-at-law,
as “Claimant”
against the club,
Y, YY,
as “Respondent”
regarding a contractual dispute arisen between the parties involved.
I.
Facts of the case
1.
On 7 December 2005, the XXian player, X (hereinafter: the player or the Claimant),
born on 15 November 1988, signed an employment contract with the YY club, Y
(hereinafter: the club or the Respondent).
2.
A copy of the employment contract was remitted to the Dispute Resolution
Chamber.
3.
The contract was for five-and-a-half years, from 15 January 2006 to 15 June 2011.
It was due to take effect after the player had obtained his visa and arrived in YY.
4.
The contract provided for the following monthly salary for the player:
first 6 months (trial) USD 1,000, 1st year USD 1,500, 2nd year USD 1,500, 3rd year
USD 2,000, 4th year USD 2,500, 5th year USD 3,000.
5.
The employment contract was signed on club letterhead by the president, Mr P,
on behalf of the club, and by the player’s legal representative Mr DDDD.
6.
On 1 March 2006, the player himself, without the assistance of a representative,
signed a new document with the club, that was also entitled a contract but not on
club letterhead, stating that the player would be loaned to the club with the
permission of C.
7.
In the document signed by the two parties, the club agreed to pay the player USD
2,500 for March, April and May (without any mention of the year).
8.
Furthermore, the document stated that the club would decide on 20 May (no
mention of any year) if it would keep the player or not. If the club decided not to
keep the player, he would be required to return to his country and the club would
not be obliged to pay any sum either to the player or to C. The last paragraph of
the document stated that the contract signed by the parties on 7 December 2005
was no longer valid and thus imposed no further obligations on the parties.
9.
On 19 July 2006, the player lodged a claim with FIFA against the club, asserting
that it had compelled him to amend his employment contract dated 7 December
2005 and to sign a new employment contract dated 1 March 2006.
10.
The player had returned to XX, without the club having renewed his employment
contract.
Player X, XX / Club Y, YY
2
11.
According to the player, the club had paid him only USD 732 (USD 500 on 20
February 2006 and USD 232 on 5 May 2006).
12.
The player described the club’s conduct as unacceptable. On the one hand, it had
not fulfilled its financial obligations, regardless of which contract was concerned.
Furthermore, it had signed an employment contract on 1 March 2006 with a minor
in the absence of a legal representative.
13.
On 22 June 2006, the player sent an official notification to the club, claiming
payment of USD 19,768 (USD 3,000 for the first contract, USD 7,500 for the second
contract, USD 10,000 compensation ex aequo et bono, minus the amount of USD
732 already received).
14.
On behalf of the club, the YY Football Federation stated in a letter dated 13
October 2006 that its member club had informed that it had not signed a contract
with the player and that it had not registered him. The YY Football Federation
confirmed this information in the letter.
15.
The player expressed surprise at the club’s statement and again asserted that the
two employment contracts that he had submitted to FIFA had been signed by the
club’s president. He had also sent the original plane tickets as well as a copy of his
passport, showing that he had been in YY.
16.
Furthermore, he sent a cutting from a YY sports publication, ……..sport extra,
from 2006, showing a picture of the members of the club’s team, including the
player.
17.
In a letter dated 2 February 2007, sent via the YY Football Federation, the club
claimed that the player had gone to YY in February 2006 for a trial period. The
costs of his trip and hotel had been paid for privately by a Mr P, who had also
signed the contract with the player. Mr P had never been president of the club
and was not authorised to sign the contracts on its behalf. To back up its claim,
the club sent an extract of the Capital Registry Court of YY, showing that from
December 2005 to March 2006 the club’s general manager had been a Mr Z and
only he was authorised to sign contracts on behalf of the club. Furthermore, the
club pointed out that it had not signed a valid contract with the player as his
performance during the trial trainings had been unsatisfactory.
18.
The player sent another claim from his own boss, stating that he had signed a
valid employment contract with the club on 7 December 2005. This employment
contract on club letterhead had been signed by its president (Mr P). The player
cannot be blamed for the fact that Mr P was not authorised to sign. The player
Player X, XX / Club Y, YY
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pointed out that he could prove that he went to the club and that he had received
payments from it.
19.
The player also stated that the document dated 1 March 2006 was invalid as it had
been signed without his legal representative and that, at the time, he had been a
minor. Furthermore, the document had not declared the duration of the contract
nor the precise salary. He also pointed out that the clause regarding unilateral
extension of the contract by the club constituted a breach of FIFA’s jurisprudence
and of Swiss law. The player therefore regarded only the contract dated 7
December 2005 as valid and, in accordance with art. 18 par. 2 of the FIFA
Regulations for the Status and Transfer of Players, precisely for a period of three
years.
20.
The player pointed out that he had been with the club until the end of May 2006
and had not received the salary stipulated in the contract.
21.
As for the club, it reaffirmed that Mr P had never been the club’s president and
that he had no powers of signature. It added that it had only found out later that
Mr P sometimes invited players to sign employment contracts with the club. The
club claimed that it was normal for it to announce players’ arrivals on its website.
The club confirmed that it had not been informed of these dubious employment
contracts.
22.
The club also stated that it had informed the player that he would not be
engaged as a professional player unless he attained a certain standard during the
trial training. As this was not the case, the player had returned to his country
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution 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 19 July 2006. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18 par.
2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the 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 2008) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a XXian player and a YY club.
Player X, XX / Club Y, YY
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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 2008), and considering that the present claim was lodged on 19 July 2006,
the previous version of the regulations (edition 2005; hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the above-mentioned facts and
documentation contained in the file and took note that the Claimant and the
Respondent signed on 7 December 2005 an employment contract which was to be
valid as from 15 January 2006 until 15 January 2011.
5.
Furthermore, the members acknowledged that, according to the said employment
contract, the Claimant was, inter alia, entitled to receive as monthly salary for the
first six months (trial) USD 1,000, for the first year USD 1,500, for the second year
USD 1,500, for the third year USD 2,000, for the fourth year USD 2,500 and for the
fifth year USD 3,000.
6.
In continuation, the Chamber took note that the parties have signed on 1 March
2006 another document entitled as contract, providing for a monthly salary of the
Claimant of USD 2,500 during the months of March, April and May without,
however, mentioning the year. The relevant document also specifies that the
employment contract signed by and between the parties on 7 December 2005 was
no longer valid and thus imposes no further obligation on the parties.
7.
Subsequently, the Chamber took note that, according to the allegations of the
Claimant, he was compelled to sign the document dated 1 March 2006 entitled as
contract. According to the Claimant, the said document does therefore not deploy
any legal effects and that only the employment contract dated 7 December 2005
has to be considered as valid. What is more, the Claimant maintains that the
Respondent failed to comply with its financial obligations and thereby breached
the employment contract without just cause forcing him to return to XX.
8.
In this respect, the Chamber deemed it appropriate to clarify first of all that, as a
general rule, it is not competent to decide upon matters of criminal law, such as
the alleged forgery to sign an employment contract, but that such affairs fall into
the jurisdiction of the competent national criminal authority.
9.
In continuation, the members of the Chamber turned to the Respondent’s
argument that the person who signed on its behalf the relevant employment
Player X, XX / Club Y, YY
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contract(s) with the Claimant, Mr P, was not empowered to represent it and thus
the Claimant should turn against the aforementioned person to obtain the
claimed amount.
10.
In view of the above and in particular the divergent statements of the parties
involved with regard to the validity of the employment contract(s), the Chamber
stated that it had to analyse whether a valid and binding employment contract
had been entered into by and between the Claimant and the Respondent.
11.
First of all, the Chamber held that an employment contract has to be signed by
both parties in order to be valid and binding. In this respect, the deciding
authority remarked that the employment contract dated 7 December 2005 was
signed by both parties to the contract, the Claimant being represented by his legal
representative and the Respondent acting through its president, Mr P. Thus, the
relevant contract appears to have been duly signed by the contracting parties.
12.
Furthermore, the members of the Chamber emphasized that the above-mentioned
employment contract was drafted on the Respondent’s letterhead and the parties
apparently have agreed upon all principle elements such as the place of work, the
period of validity, the salary, vacation and which party has to bear the costs of the
Claimant’s travel expenses.
13.
What is more, the Respondent does not deny in its statement that the Claimant
passed, according to its understanding, trial trainings with the team but that his
performances were not good enough and the Claimant therefore went back to
XX. Moreover, the Respondent also stated in its submissions that it was normal to
announce players’ arrivals on its website.
14.
In view of the above, the Dispute Resolution Chamber concluded that the relevant
person acting on behalf of the Respondent in connection with the Claimant’s
engagement as a player of the Respondent’s team gave the impression to the
Claimant of being duly authorized by the Respondent to act on its behalf and, in
this capacity, to conclude employment contracts with players.
15.
Furthermore, the deciding authority established that from the circumstances
surrounding the involvement of the person acting on behalf of the Respondent,
the Claimant could in good faith understand that this person, Mr P, was duly
empowered by the Respondent to represent the latter. In particular, as agreed
upon in the relevant employment contract dated 7 December 2005, the contract
starts on 15 January 2006. As not contested by the Respondent, the Claimant came
to YY and trained with the Respondent’s team, thus it made use of the Claimant’s
services. What is more, the Respondent does not deny that it announced the
Claimant’s arrival on its website. Moreover, the Claimant had no signs based on
Player X, XX / Club Y, YY
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which he should have guessed or doubted that the person acting on behalf of the
Respondent lacked of authorization to represent the latter. Therefore, the
deciding body concluded that the Claimant certainly could in good faith assume
that Mr P was allowed to represent the Respondent in concluding the employment
contract with him. In fact, the Respondent’s stance in connection with the
engagement of the Claimant backed such understanding.
16.
Moreover, the members of the Chamber could not grasp how the person acting on
behalf of the Respondent could have concluded the employment contract with the
Claimant without the Respondent having taken notice of it. In this respect, the
Chamber reiterated that, as exposed above, after the signature of the
employment contract dated 7 December 2005, the Claimant came to YY and
started to train with the Respondent’s team.
17.
In view of the above, the Chamber was strengthen in its conviction that the
Respondent, with the relevant dutiful caution and attention, should have been
aware of Mr P’s proceedings and consequently could have prevented the latter
from acting on its behalf if it had wished to do so. Yet, on the contrary, as shown
above, by its stance, it signalised that it accepted the actions of that person.
Therefore, the Dispute Resolution Chamber considered that the relevant
employment contract dated 7 December 2005 concluded by Mr P on behalf of the
Respondent with the Claimant has to be assigned to the Respondent. In fact, it is
to be considered as a valid employment contract due to the above-mentioned
elements and due to the fact that the said employment contract fulfilled all the
relevant prerequisites and was signed by the legal representative of the player.
18.
The members of the Chamber deduced thereof that, as a general rule, both parties
to this valid employment contract must comply with the terms they agreed
therein. In particular, the Respondent has, inter alia, the obligation to comply with
its financial obligations towards the Claimant.
19.
In continuation, the Chamber focussed its attention on the document dated 1
March 2006 signed by the Claimant, without the involvement of his legal
representative, and the Respondent. In this respect, the members of the Chamber
first of all held that the aforesaid document indicates as parties the Claimant and
the Respondent. No indications as regards Mr P representing the Respondent in his
capacity as president of the latter are on hand in the relevant document.
Furthermore, contrary to the employment contract the parties signed on 7
December 2005, the document dated 1 March 2006 does not contain the stamp of
the Respondent. Moreover, the Chamber emphasized that the document in
question was not drafted on the Respondent’s letterhead but only a mere blank
paper. Most notably, the members of the Chamber held that the Claimant, even
though being a minor of age, was not represented by his legal representative in
Player X, XX / Club Y, YY
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the signing of the said document like he was when signing the employment
contract with the Respondent on 7 December 2005.
20.
In addition to the above, the deciding body lend emphasis on the clause contained
in the relevant document dated 1 March 2006 providing the Respondent with the
possibility to unilaterally decide whether or not to extend the duration of the
contractual relationship with the Claimant.
21.
In this context, the Dispute Resolution Chamber stressed that, as a general rule, a
clause which gives one party the right to unilaterally cancel or lengthen an
employment contract, without providing the other party to the contract with
similar rights, is a clause with disputable validity.
22.
In the case at hand, the extension option contained in the relevant document is
unilateral to the benefit of the club only, i.e. the stronger party in the
employment relationship. This gives the club unequal bargaining power whereas
there is no apparent gain for the player. Such a position of the employee is
inconsistent with the general principles of labour law.
23.
The Chamber also vehemently put in question the reasoning for the Claimant,
being in possession of an employment contract with the Respondent, i.e. the one
signed on 7 December 2005 for a duration of five years, to voluntarily conclude a
contract providing for a basic duration of three months only and concurrently
renounce to claim anything from the first employment contract.
24.
In view of all the above, the deciding body unanimously reached the conclusion
that the document dated 1 March 2006 should not be considered as valid and
binding. Therefore, the Chamber held that it will base its further considerations on
the employment contract signed between the parties on 7 December 2005 only.
25.
Having said that, as exposed above under II.18., the Chamber will focus on the
financial aspects of the players’ claim.
26.
In this respect, the Chamber reiterated that the Claimant requests payment of USD
19,768, i.e. USD 3,000 under the first contract, USD 7,500 under the second
contract, USD 10,000 as compensation minus the already received amount of USD
732.
27.
In this context, the members of the Chamber took note of the Claimant’s
statement, which were not contested by the Respondent, that he had stayed with
the Respondent until the end of May 2006. In view of the aforesaid, taking into
account that the employment contract dated 7 December 2005 is valid and
binding on the parties involved as well as considering the Claimant’s claim for
Player X, XX / Club Y, YY
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outstanding three monthly salaries, the members of the Chamber held that the
Respondent was obliged to pay the Claimant all outstanding remuneration until
the latter’s departure.
28.
Turning its attention to the Respondent’s position, the members of the Chamber
noted that the latter does not express itself with regard to the alleged nonpayment of three monthly salaries to the Claimant.
29.
As a result of the above, the Dispute Resolution Chamber reached the conclusion
that the Respondent failed to prove that the amounts claimed by the Claimant
were duly paid and thus remain unpaid.
30.
In continuation, the members of the Chamber stated that the persistent failure of
a club to comply with its financial obligations towards a player without valid
reasons, is generally to be considered as an unilateral breach of employment
contract without just cause.
31.
The deciding body, on the basis of the documentation at its disposal, could not
detect any valid reasons for the Respondent’s failure to comply with its financial
obligations and to pay the Claimant his monthly salaries.
32.
Consequently, the Chamber concluded that the behaviour of the Respondent in
the present case is to be considered as a persistent failure and therefore
constitutes an unjustified breach of contract.
33.
In view of the aforementioned conclusion, the Chamber went on to deliberate on
the consequences which should apply on the Respondent.
34.
In this respect, the members of the Chamber stated that the Respondent has to
pay the Claimant’s outstanding salaries in accordance with the employment
contract dated 7 December 2005, i.e. the amount of USD 3,000 (3x USD 1,000),
until the date the breach of contract occurred.
35.
Moreover, the Chamber had to verify and decide whether the Respondent is
accountable for compensation for breach of contract without just cause.
36.
In this respect and considering the objective criteria listed in art. 17 par. 1 of the
Regulations, the Chamber decided that a compensation of USD 10,000 is
adequate, taking in particular into consideration the behaviour of the Respondent
in the present procedure as well as the remuneration due to the Claimant.
37.
In light of the above, the Dispute Resolution Chamber decided that the
Respondent has to pay the Claimant the amount of USD 3,000 for outstanding
Player X, XX / Club Y, YY
9
salaries and USD 10,000 as compensation for breach of contract without just cause.
In total, the Respondent has to pay to the Claimant the amount of USD 13,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player X, is partially accepted.
2.
The Respondent, club Y, has to pay the amount of USD 13,000 to the Claimant,
player X, within the next 30 days as from the date of notification of this
decision.
3.
In the event that the due amount is not paid within the stated deadline, an
interest rate of 5% p.a. will apply as of expiring of the fixed time limit and the
present case shall be submitted to FIFA’s Disciplinary Committee for consideration
and a formal decision.
4.
The Claimant, player X, is directed to inform the Respondent, club Y, immediately
of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
5.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision and
has to contain all elements in accordance with point 2 of the directives issued by
the CAS, copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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:
Player X, XX / Club Y, YY
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Markus Kattner
Deputy General Secretary
Encl: CAS directives
Player X, XX / Club Y, YY
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