Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 June 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
Theo van Seggelen (the Netherlands), member
John Didulica (Australia), member
on the claim presented by the player
A, X,
as Claimant
against the club
B, Y,
as Respondent
regarding a contractual dispute.
I.
Facts of the case
1.
On 13 August 2004, the player A, the Claimant, and the club B from Y, the
Respondent, signed two employment contracts, both providing for a salary
amounting to USD 10,000 for the Claimant and apparently valid for one year.
2.
On 18 April 2006, the Claimant lodged a claim against the Respondent at FIFA
demanding the amount of USD 577,000 for the Respondent’s alleged breach of
contract.
3.
According to the Claimant, on 13 August 2004, he signed two contracts with the
Respondent, both drafted in two languages he does not understand. The
Claimant explained that he signed the aforementioned contracts, since the agent
(who apparently does not obtain a licence) affirmed that their contents would be
the same (particularly regarding the salary and the duration of one year), that
they would need two contracts because the company, C (hereinafter: the
company) would pay his salaries and that they would need them immediately in
order to proceed with his registration. Copies of the two contracts, which are
both duly signed by the respective parties, were submitted to FIFA.
4.
According to art. 1 of the employment contract signed between the Claimant,
the Respondent and the company (hereinafter: contract 1) and according to art. 2
of the employment contract signed between the player and the company
(hereinafter: contract 2), the player’s monthly salary amounted to USD 10,000.
5.
The Claimant explained that after the last game of the season, i.e. 8 May 2005,
the club manager had told him that his monthly salary had to be reduced to USD
5,000 in order to stay in the next season, which would start in August 2005, what
he did not accept. The Claimant added that the aforementioned club manager
explained him that after having rejected the salary reduction, the stated salary of
USD 10,000 in the employment contract has not been approved by the Board of
Directors of the club, and therefore he was told to leave immediately and that he
had to go to the company in order to settle his leaving.
6.
The Claimant asserted that when he went to the company in order to settle his
leaving accompanied by a compatriot player, who was capable to understand the
language, he came to learn at that moment that the contract 2 was of a four year
duration, instead of the one year duration he was explained at the signing.
7.
Art. 2 of the contract 1 establishes that the contract 1 is valid from 1 September
2004 to 31 August 2005 and art. 19 of contract 2 stipulates “the contract will be
valid for four years with effect from its signing”.
8.
Furthermore, the Claimant related that the company offered him USD 20,000 for
his release on condition that he would reimburse such amount when he signs
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with another club and that he returns for the season 2006/07 to play for the
Respondent or to be negotiated in accordance with the contract 2. The Claimant
affirmed that since he had no money to live he accepted to sign two documents
in order to receive the amount of USD 20,000. One confirming that he had
received everything he was entitled to from the respondent club, and another
one indicating that he had paid USD 40,000 to the company and from that
amount he had retained USD 20,000 which he should reimburse when he was
loaned to another club for one year, compromising himself to return after this
year. In this respect, the Claimant presented copies of the two said documents
plus a declaration of the aforementioned compatriot player who accompanied
him to the company corroborating the aforementioned facts.
9.
The Claimant further maintained that when he returned to his country in May
2005, he could not sign any contract with a new club, since the amount
postulated by the Respondent for the loan was around USD 200,000.
Furthermore, the Claimant underlined that only after the decision had been
taken by the Single Judge of the Players’ Status Committee on 14 February 2006
with regard to his registration in his country, he was able to sign with D, from
where, later on, he was transferred to a club in Z.
10.
The Claimant maintained that he was deceived by the agent and the Respondent,
since they made him sign the contract 2 although they never were interested in
using his services for more than one year, but they intended to obtain undue
economic gain, negotiating amounts of transfers with other clubs or demanding
from players to give up amounts they were entitled to.
11.
The Claimant is of the opinion that the contract 2 is null and void since FIFA rules
do not allow a company, which is not affiliated to a national association to
contractually appear in the condition of the employer of a professional player.
12.
Furthermore, the Claimant argued that he was allowed to trust that both
contracts establish a duration of one year, since, firstly, the agent, although
representing the Respondent, as a fellow countryman said that he could rely on
him in the sense that everything was well and in conformity with the proposal
and with the signing of two contracts. Secondly, since the contract 2 establishes
misleadingly in art. 2 “…the first party shall settle all the payments before
31/08/2005”. With such strategy, the Respondent and the company made believe,
to someone who is not capable to understand the two languages concerned, that
the said art. 2 corresponding to art. 2 in contract 1 limited the validity of the
employment contract to 31 August 2005, since, if the words he did not
understand, at least the number he could comprehend. The Claimant underlined
that this practise is confirmed by the fact that the duration of the contract 2 is
established in art. 19 only in words. In addition, the Claimant outlined that by
doing so, the Respondent and the company imposed several contractual clauses
he was not informed: the validity of four years (art. 19), that the Claimant would
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play for any club they wanted (art. 1), the reduction of 50% of the salary at the
end of the first employment year (art. 20), etc. By doing this, the Claimant
affirmed having been deceived in accordance with art. 28 of the Swiss Code of
Obligations. Art. 28 of Swiss Obligations Code reads: “Intentional fraud. The
party induced to contract by means of intentional fraud of the other party is no
longer obligated, even if such error is not essential. The party who is victim of
intentional fraud of the other remains obligated, unless the other party did not
or could not know of the intention at the moment of the conclusion of the
contract.”
13.
On account of all of the above, the Claimant demands, as follows:
- the two contracts to be declared null;
- the Claimant to be declared free from any obligation with the company and
with the Respondent;
- the following amounts from the Respondent:
- USD 60,000 related to salaries owed until August 2005 and to the rewards
due for the two championships, which the Claimant allegedly was forced
to give up in trade of his release for one year plus 5% default interest since
18 May 2005;
- USD 300,000 for material damages due to the loss of employment
opportunities plus 5% default interest as of the date of the decision;
- USD 17,000 for his legal expenses plus 5% default interest and
- USD 200,000 for moral damages plus 5% default interest
Total USD 577,000
14.
The Respondent explained that it concluded with the Claimant a one year
contract, the obligations of which were duly fulfilled by it. The Claimant received
all his salaries or bonuses. In this respect, the Respondent presented a copy of a
“acquittance” duly signed by the Claimant (including finger print), according to
which the Claimant declared having received all financial dues from the
Respondent on 18 May 2005. Furthermore, the Respondent presented copies of
the payment receipts (September 2004 to April 2005, USD 10,000 each) duly
signed by the Claimant and some of them containing even the finger print of the
Claimant. Finally, the Respondent presented copies of two declarations, signed by
the Claimant on 5 and 22 September 2004, confirming the receipt of USD 200,000
each from the company as advance payments.
15.
Furthermore, and with regard to the problems the Claimant is encountering with
the company, the Respondent declared not being responsible for these problems,
since the company is a different legal body from the club.
16.
Finally, the Respondent underlined that it is one of the biggest clubs in the
continent and therefore is not in need at all for any company to support it in its
contracts.
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17.
The Claimant adhered to his position. He added that the fraud is obvious, since
the two contracts were drafted by the same person (same layout, etc.).
Furthermore, the Claimant raised the question why would the Respondent’s
association upon the request of the association of his country made on 16 and 23
January 2006 for the relevant International Transfer Certificate (ITC) for the
Claimant having denied twice its issuance with the explaining that the Claimant
has still engagements with its affiliate, the Respondent, if the Claimant and the
Respondent allegedly settled all financial terms on 18 May 2005. Obviously, since
they took at the basis of their statements the contract 2. The Claimant submitted
copies of the said request and answers to FIFA.
18.
The Respondent also adhered to its position. In addition, it outlined that the
above-mentioned agent was its representative in summer 2004 for the deal made
with the player F and that was the end of his representation of the Respondent.
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 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 18
April 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 are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned 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 combination with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated 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 from X and a club from Y
regarding a dispute in connection with an employment contract.
4.
In this context, the Chamber emphasized that in accordance with art. 22 to 24 of
the current FIFA Regulations for the Status and Transfer of Players, FIFA is not
competent to decide on disputes in connection with an employment contract
concluded between a player and a company. Consequently, the Chamber decided
to refer the Claimant to the competent national authorities in order to obtain a
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binding decision regarding his alleged claims derived from the employment
contract concluded with the company (“contract 2”; cf. point I.4. of the facts).
5.
Subsequently, the members of the Chamber analyzed 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 13 August 2004 and the claim was
lodged at FIFA on 18 April 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereafter: the Regulations) are applicable to the case at hand as to
the substance.
6.
In continuation, the members of the Chamber acknowledged the abovementioned facts as well as all the further documentation contained in the file.
7.
In this context, the Dispute Resolution Chamber acknowledged that the Claimant,
the Respondent and the company signed an employment contract on 13 August
2004 valid from 1 September until 31 August 2005 (“contract 1” according to
point I.4. of the facts). To that regard, the Chamber reiterated that claims derived
from a contract concluded with a company cannot be taken into consideration
due to the lack of competence of the present deciding body. Therefore, the
Chamber decided not to take into account all allegations and claims of the
litigating parties regarding the company in the present case.
8.
As regards the existing employment relationship between the Claimant and the
Respondent, the Chamber stated that it is uncontested by both the Claimant and
the Respondent that the contract 1 was of a one year duration. Furthermore, the
Chamber noticed that it is uncontested by both parties that the Claimant
rendered his services to the Respondent until the latest match of the Respondent,
i.e. on 8 May 2005, signed the above-mentioned “acquittance” with the
Respondent on 18 May 2005 and then, still in May 2005, left the Respondent’s
country in order to find a new club in his country. Therefore, the Chamber
established that the contractual relationship between the Claimant and the
Respondent in fact terminated on 31 May 2005.
9.
Furthermore, the members of the Chamber turned their attention to the
allegedly outstanding salaries due until August 2005 put forward by the Claimant
and the allegedly outstanding rewards due for the two championship, which the
Claimant was allegedly forced to give up in trade of his release for one year. In
this respect, the Chamber, first and foremost, emphasized that these claims have
to be rejected since the Claimant, omitted to specify his claims (cf. art. 9 of the
FIFA Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber). This is more, since the player is claiming for salaries
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until August 2005, although he only rendered his services to the Respondent until
8 May 2005 as established above (cf. point II.8.) and is claiming for rewards which
neither fall into the above-established contractual relationship existing between
the parties concerned. Furthermore, the Chamber stated that the respective
claims have to be rejected also, since the Claimant, carrying the burden of proof
(which is a basic principle in every legal system, according to which a party
deriving a right from an asserted fact has the obligation to prove the relevant
fact; cf. art. 12 par. 3 of the FIFA Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber) did not present any
documentary evidence in order to corroborate his aforementioned alleged
entitlements.
10.
The Chamber then analysed the payment receipts and the “acquittance” put
forward by the Respondent (cf. point I.14. of the facts). In this respect, the
Chamber stated that by means of the said documents, which were all duly signed
by the Claimant and some of them even contain the Claimant’s fingerprint, the
Claimant confirmed on 18 May 2005 having received all financial dues from the
Respondent until the expiry of the contract on 31 August 2005. In particular, the
Chamber noted that according to the “acquittance” the Claimant confirmed the
receipt of the amount of USD 20,000 as bonus and the amount of USD 40,000 as
salaries until the end of the contract.
11.
In this context, the Chamber turned its attention to the Claimant’s argument
according to which he was forced to sign the above-mentioned “acquittance”,
since he had no money to live and by signing this document he had received the
amount of USD 20,000. To that regard, the Dispute Resolution Chamber stated
that the argument put forward by the Claimant cannot be considered as a
justifying cause which would invalidate the aforementioned “acquittance”.
12.
On account of the established considerations, the Dispute Resolution Chamber
decided to reject the Claimant’s demand for outstanding salaries and rewards in
the amount of USD 60,000.
13.
With regard to the claimed amounts of USD 500,000 in total for “material and
moral damages”, the Chamber considered that the Claimant did not specify the
said damages nor presented any documentary evidence in order to corroborate
his claims which the Chamber could have taken into consideration even though
in connection with the contractual relationship existing between the Claimant
and the Respondent only. Consequently, and in virtue of the legal principle of
the burden of proof, the Chamber decided to reject the Claimant’s claim also to
that regard.
14.
Finally, the Chamber turned its attention to the claimed legal expenses in the
amount of USD 17,000 and stated that the Claimant did not provide any proving
document in this regard. Consequently, the Chamber decided to not award these
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claimed remunerations. Notwithstanding the aforementioned, the Chamber also
considered to reject the claim with regard to the covering of any legal or other
fees because in accordance with its well-established jurisprudence no procedural
compensation shall be awarded in proceedings in front of the Dispute Resolution
Chamber.
15.
As a result of all of the above, the Dispute Resolution Chamber decided to fully
reject the Claimant’s claim.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant is rejected.
2.
According to art. 61 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:
__________________________________
Markus Kattner
Deputy General Secretary
Enclosed: CAS directives
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