Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 June 2008,
in the following composition:
ALOULOU Slim (Tunisia), Chairman
MC GUIRE Mick (England), member
COLUCCI Michele (Italy), member
VIEIRA ROCHA Caio Cesar (Brazil), member
MAJAVU Zola (South Africa), member
on the claim presented by the club
T
as Claimant/Counter-Respondent
against the player
A
as Respondent/Counter-Claimant
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 16 November 2005, the T Club (hereinafter: the Claimant), and the B player,
A (hereinafter: the Respondent), signed a pre-contract, valid as of the date of the
signature until the labour agreement regarding the seasons 2006 and 2007 is
signed by and between the contractual parties.
2.
According to the above-mentioned pre-contract the Claimant and the
Respondent agreed that a formal labour agreement shall be signed by and
between the contractual parties, under which the Respondent shall render his
services to the club during the seasons 2006 and 2007.
3.
Furthermore, the said pre-contract contains a clause of exclusivity forbidding the
Respondent to sign with any other club for the period in question. In return for
the granted exclusive right to sign the Respondent, the Claimant undertakes to
pay him a so-called “sign fee” in the amount of USD 500,000, by 10 January 2006
(point 3.2. of the pre-contract).
4.
Moreover, the parties agreed on a termination and penalty clause. On the one
hand, it was stipulated that should the Respondent decide to terminate the precontract in question, the Claimant shall be entitled to receive an indemnification
in the amount of USD 500,000. On the other hand, the parties established that
should the Claimant decide to terminate the pre-contract it shall not have to pay
any amount to the Respondent, however, the Respondent shall also not be
obliged to return the “sign fee” to the Claimant (point 14.2. of the pre-contract).
5.
Finally, the parties determined the Respondent’s yearly salary and bonus for the
seasons 2006 and 2007 (USD 1,500,000 as salary for the season 2006, between
USD 1,500,000 and USD 1,800,000 as salary for the season 2007, USD 2,000 for
each victory of the Claimant as bonus, USD 1,000 for each draw of the Claimant
as bonus, USD 10,000 for the Respondent becoming the best scorer of the JLeague as bonus and an amount to be determined for the team’s performance as
bonus).
6.
On 7 August 2006, the Claimant lodged a claim against the Respondent at FIFA
for unilateral breach of the relevant pre-contract without just cause. In this
respect, the Claimant argued that the Respondent failed to sign the relevant
labour agreement with it for the season 2006 and 2007 but signed with the I
club, A, instead. In particular, the Claimant emphasised that the Respondent,
after his own draft of the employment contract had been accepted by the club,
allegedly failed to show up at a meeting scheduled for 9 January 2006, which he
was invited to attend by the club on 6 January 2006, in order to sign the
employment contract, without giving any explanation. Furthermore, the
Claimant emphasised that the relevant pre-contract had the objective to
establish the basis of an employment contract with the Respondent for the
seasons 2006 and 2007.
T Club / Player A
2
7.
Therefore, the Claimant, on the basis of the relevant pre-contract, claimed from
the Respondent a penalty fee in the amount of USD 500,000 as well as indemnity
in the amount of USD 1,000,000 for image/credibility losses and damages
incurred. Furthermore, the Claimant requested that sanctions shall be imposed
against the Respondent for engaging the services of a non-licensed players’
agent.
8.
In his response of 25 November 2006, the Respondent rejected the Claimant’s
claim. In particular, the Respondent argued that, not he, but the Claimant had
breached that relevant pre-contract by not having paid him the “sign fee”.
Therefore, the Respondent/Counter-Claimant (hereinafter: the Respondent)
lodged a counter-claim against the Claimant/Counter-Respondent (hereinafter:
the Claimant) claiming the allegedly outstanding “sign fee” in the amount of
USD 500,000 plus interests at a rate of 5% as of the due date, i.e. 10 January
2006, compensation in the amount of USD 1,000,000 for breach of contract
allegedly committed by the Claimant as well as the payment of legal expenses
allegedly incurred in the amount of USD 10,000.
9.
In this regard, the Respondent stated that in accordance with the relevant precontract, in particular its points 3.2. and 14.2, the Claimant committed itself to
pay the amount of USD 500,000 exclusively for the “right of first refusal”, i.e. the
preference to sign him for the seasons 2006 and 2007. Consequently, the
stipulated payment of the “sign fee” was allegedly not meant to be conditional
upon the signing of the subsequent labour agreement.
10.
Furthermore, the Respondent assured that he had fully complied with the terms
of the pre-contract, i.e. he had not signed an agreement with any other club
until the contractually stipulated deadline for the payment of the “sign fee”, i.e.
10 January 2006. However, the Claimant did allegedly not fulfil its contractual
obligation to pay him the “sign fee” as contractually stipulated, i.e. until 10
January 2006. Therefore, the Respondent was of the opinion that,
thenceforward, the pre-contract had to be considered as rescinded by the
Claimant without just cause and consequently he was released from his
contractual obligations towards the club and free to continue his career with
another club, i.e. the I club, A, with which, on 12 January 2006, he entered into
an employment contract, without prejudice to his right to claim the “sign fee”.
11.
Moreover, in order to justify the claimed compensation, the Respondent stated
that due to the pre-contract allegedly not fulfilled by the Claimant he had
remained without negotiating any employment contract and suffered damages.
12.
Finally, the Respondent requested that the I club, A, should be included in the
present proceedings and be jointly and severally liable if he was required to pay
any compensation to the Claimant.
T Club / Player A
3
13.
In its statement, the I club rejected the Respondent’s request. In this respect, the
I club argued that, when signing the Respondent, it was not aware that the
latter had previously signed a pre-contract with the Claimant. In particular, the I
club emphasised that the Respondent, on 12 January 2006, had explicitly
declared not to be contractually bound to any club. Furthermore, the I club
stated that it could not be considered as jointly and severally liable for any
possible compensation for breach of contract committed by the Respondent, if
any, due to the fact that the pre-contract in question did not constitute a “sport
labour contract” and, therefore, art. 17 par. 2 of the FIFA Regulations were not
applicable. Subsidiary, the I club also pointed out that such agreement, since it
was never entered into the international transfer system, could only produce
effect between the subscriber parties but not to any third party.
14.
In its replica, the Claimant rejected the Respondent’s counter-claim.
15.
In its duplica, the Respondent basically reiterated his previous position.
Furthermore, he withdrew his request for the I club, A, to be considered as
jointly liable to pay possible compensation.
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 7 August 2006. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005; 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 club and a player.
3.
Furthermore, the Chamber analyzed 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 7 August
2006, the previous version of the regulations (edition 2005; hereinafter:
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 that, on 16 November 2005,
T Club / Player A
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the parties signed a pre-contract, according to which the contractual parties, the
Claimant and the Respondent, agreed that a formal labour agreement shall be
signed between them, without establishing a specific time limit for them to do
so.
5.
Furthermore, the Chamber acknowledged that the said pre-contract provided
the right for the Claimant to exclusively sign the Respondent. However, the
Chamber took also note that the Claimant in order to acquire this exclusive right
undertook to pay the so called “sign-fee” in the amount of USD 500,000 to the
Respondent, by no later than 10 January 2006.
6.
In continuation, the Chamber observed that the Claimant claimed from the
Respondent a penalty fee in the amount of USD 500,000 and compensation in
the amount of USD 1,000,0000, i.e. overall the amount of USD 1,500,000, for
alleged breach of the pre-contract in question. In particular, the Chamber
acknowledged that the Claimant argued that the Respondent had failed to sign
the relevant labour agreement with it but signed with the I club, A, instead.
7.
In this regard, the Chamber acknowledged that the Claimant had not
accomplished the contractually stipulated payment in the amount of USD
500,000 for the exclusive right to sign the player within the stipulated time limit,
i.e. 10 January 2006.
8.
Therefore, the Chamber came to the conclusion that in this way, i.e. by not
having respected the deadline to make the relevant payment, the Claimant had
not reserved its exclusive right to sign the Respondent but rather renounced the
said right to exclusivity.
9.
As a consequence, the Chamber decided that after the Claimant had renounced
the contractually stipulated exclusive right to sign the Respondent the
Respondent had no more contractual obligation to sign the actual labour
agreement with the Claimant but was free to sign with another club of his
choice.
10.
Taking into account all the above, the Chamber concluded that the fact that the
Respondent had failed to sign the actual labour agreement with the Claimant
without giving any explanation did not constitute a breach of the pre-contract.
11.
Consequently, the Chamber decided that there were no legal grounds for the
Claimant to receive any penalty fee or compensation from the Respondent.
12.
Subsequently, the Chamber drew its attention to the Respondent’s counterclaim. In particular, the Chamber noted that the Respondent claimed the
allegedly outstanding “sign fee” in the amount of USD 500,000 plus interests at
a rate of 5%, compensation in the amount of USD 1,000,000 for breach of
T Club / Player A
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contract as well as the payment of legal expenses allegedly incurred in the
amount of USD 10,000.
13.
In this regard, the Chamber took due note of the argument of the Respondent
that the Claimant committed itself to pay the amount of USD 500,000 for the
exclusive right to sign him, independently of the signing of the subsequent
labour agreement.
14.
However, the Chamber emphasised that the Claimant had only the right but no
obligation to acquire its exclusive right to sign the Respondent. In this respect,
the Chamber recalled that the Claimant, by not having paid the “sign fee” of
USD 500,000 within the contractually stipulated time limit, had renounced its
exclusive right to sign the Respondent (point II.8.).
15.
As a consequence, and taking into consideration that the pre-contract did not
foresee a specific period of validity, the Chamber decided that after the
conclusion of an employment contract between the Respondent and the I club,
A, i.e. 12 January 2006, the Claimant had no reason to pay the “sign fee” to the
Respondent, as it could not make use of any exclusive right to sign the
Respondent anyway.
16.
In view of the above, the Chamber concluded that the Claimant was not found in
breach of the pre-contract and, consequently, the Respondent was neither
entitled to claim the relevant “sign fee” nor any compensation from the
Claimant.
17.
Moreover, as regards the legal expenses claimed by the Respondent, the
Chamber referred to art. 15 par. 3 of the Procedural Rules as well as to its wellestablished jurisprudence, in accordance with which no procedural compensation
shall be awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to not award these claimed expenses.
18.
In conclusion, the Chamber decided that both the Claimant’s claim and the
Respondent’s counter-claim had to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, T Club, is rejected.
2.
The claim of the Respondent/Counter-Claimant, A, is rejected.
T Club / Player A
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***
Note relating to the motivated decision (legal remedy):
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 Secretary General
Encl.
CAS directives
T Club / Player A
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