Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 July 2012,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
G,
as “Claimant”
against the club,
A,
as “Respondent”
regarding an employment-related
dispute arisen between the parties
I.
Facts of the case
1.
On 21 October 2009, the country A player G (hereinafter: the Claimant) lodged a claim
with FIFA against the country G club A (hereinafter: the Respondent) for breach of
contract, requesting from the latter the payment of EUR 200,000 as compensation as
well as the payment of EUR 5,000 as compensation for the costs allegedly incurred. In
addition, the Claimant asked FIFA to impose sanctions on the Respondent in
accordance with art. 17 par. 4 of the Regulations on the Status and Transfer of Players.
2.
In this respect, the Claimant explained that in February 2009, he concluded an
employment contract (hereinafter: the contract) with the Respondent and submitted a
copy of the contract which is undated and which stipulates a validity as from 1 July
2009 until 30 June 2013, with the Claimant being entitled, inter alia, to receive from
the Respondent a monthly salary of EUR 826 as well as EUR 41,878.16 in four
instalments as follows: EUR 7,614.21 on 30 May 2010, EUR 13,959.39 on 30 May 2011,
EUR 10,152.28 on 30 December 2012 and EUR 10,152.28 on 30 June 2013.
3.
The contract was drafted on the letterhead of the “SUPERLEAGUE”, bore the stamp of
the Respondent and had been signed by Mr S [hereinafter: Mr S] “acting in the
capacity of President & Managing Director or legal representative of (..) club A” on the
Respondent’s behalf.
4.
Art. 4.11 of the contract stipulated that “In the event of termination of the contract
due to fault of the Club, without prejudice to the specific and minimum provisions of
par. 2 of the Article 17 of the Regulations, it is hereby stipulated that the
compensation due to the Player amounts to: a) During the protected period 200.000 €
(..)”.
5.
As to the facts of the case, the Claimant explained that, after having signed the
contract in February 2009, the Respondent had asked him to wait for further
instructions at home in country A and, eventually, despite his various enquiries, never
contacted him again. As a consequence, the Claimant could apparently never start
working for the Respondent.
6.
In this context and as proof of his allegations, the Claimant provided FIFA with three
letters dated 22 and 29 July as well as 10 August 2009 respectively, allegedly sent to
the Respondent, by means of which he had inquired about “when and where I have to
join the professional group of club A for the preparation of season 2009/2010”. In
addition, the Claimant provided FIFA with a correspondence dated 14 September
2009, by means of which his legal representative had apparently requested the
Respondent to pay EUR 200,000 as compensation for breach of contract. As to that,
the relevant correspondence also mentioned that the contract had been “concluded
and signed on 1st July 2009”.
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7.
In continuation, the Claimant specified that, at the beginning of the summer 2009, Mr
S had been replaced by Mr T (hereinafter: Mr T) as President of the Respondent. In the
Claimant’s opinion, this change in the Respondent’s management had to be
considered the reason behind the latter’s sudden loss of interest in his employment.
8.
As a consequence of all the above, the Claimant held that, by preventing him to play
as well as by failing to pay him his salary, the Respondent had breached the contract.
Hence, the Claimant considered that art. 4.11. of the contract applied and that the
Respondent had to pay him EUR 200,000 as compensation. In addition, the Claimant
stressed that, because the contract had been breached during the protected period,
FIFA should impose sanctions on the Respondent in accordance with art. 17 of the
Regulations on the Status and Transfer of Players.
9.
In its response dated 13 September 2010, the Respondent rejected the Claimant’s claim
in its entirety arguing that, at the time of the contract’s conclusion, i.e. on 1 July 2009,
Mr. S “was no longer the President of the club (..)” and, consequently, he had no
authority to sign a contract in its behalf. In view of the above, the Respondent was of
the opinion that all actions of Mr. S “at that time are irrelevant to club A and club A is
certainly not bound by any document signed by Mr. S on 1st of July 2009 (..)”.
Furthermore and in the same context, the Respondent stressed that “the fact that Mr.
S has put on the said contract the stamp of club A (..) has no consequences for the club
(..) since (..) Mr S was not an official or employee of club A anymore and his actions did
not bind club A in any way.” Besides, the Respondent maintained that “the player was
obviously in bad faith when lodging the claim and probably he was also in bad faith
when he was signing the document with Mr. S, or at least he was not diligent
enough”. In addition, the Respondent alleged that the Claimant’s legal representative,
“in his Formal Notice to the club of 14 September 2009 [cf. point 6 above]”, had
admitted that the contract had been concluded on 1 July 2009.
10.
In continuation, the Respondent stressed that it would never sign a “four years
contract with a minor, since the contracts with minors cannot be of longer duration
than 3 years” and asserted that the contract had never been submitted to the
“country G Superleague and/or the Football Federation H, as it is obligatory by country
G Law in order for a contract to be valid and to take effect”.
11.
Likewise, the Respondent explained that the correspondence received by the Claimant
had remained unanswered because its employees had “thought in the beginning”
that the latter “had confused club A with another club, since they knew that they
have not signed any such player (..)” and Mr. T “was obviously well aware that he had
no communication with the said player, who was totally unknown to him”. Equally,
the Respondent maintained that it had not been in possession of the contact details of
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the Claimant and that, nevertheless, there had not been any reason to reply to the
latter’s correspondence.
12.
In his second submission on 6 October 2010, the Claimant reiterated the content of his
claim and, in particular, stressed once again that the contract had been signed in
February 2009 and not on 1 July 2009 as claimed by the Respondent.
13.
In addition, the Claimant pointed out that Mr S had signed the contract as President
and Managing Director of the Respondent and added that the contract itself bore the
stamp of the Respondent and had been drafted on the letterhead of the country G
Super League. Therefore, the Claimant deemed that, when the contract was signed, he
had no reason to doubt that Mr S was indeed entitled to act on the Respondent’s
behalf. Besides, the Claimant mentioned that, before concluding the contract, he had
even received from the Respondent, via the former country A player Z, an advance of
EUR 20,000. As to that, the Claimant provided FIFA with the copy of the corresponding
payment receipt dated 19 January 2009 in its original version, i.e. in G language, as
well as with its translation in F language, in accordance with which the Respondent
confirmed having given EUR 20,000 to Mr Z in view of the signature of the contract
with the player. Furthermore, the Claimant provided FIFA with a letter, dated 29
October 2008 and addressed to the “country G Embassy”, written on the letterhead of
the Respondent, by means of which the issuance of a Visa had been requested in order
for the Claimant “to travel to country G for trials with our football club”.
14.
Finally, the Claimant stressed that the Respondent had had his contact details and that
it had been the latter’s responsibility to comply with the formal requirements linked to
the conclusion of an employment contract concluded with a player.
15.
In its final statement dated 5 November 2010, the Respondent mainly reiterated the
content of its previous submission. In addition, the Respondent stressed that the
payment receipt for the amount of EUR 20,000 provided by the Claimant did not
mention his name and had only been signed by Mr S. Furthermore, the Respondent
pointed out that the Claimant had not provided any evidence in support of the
allegation that the contract had been signed in February 2009.
16.
In continuation, the Respondent argued that the letter addressed to the country G
Embassy (cf. point 13 above) seemed to have been signed by Mr S “while [he] was still
President of the club” but was “totally unknown to anyone else in the club”. As to
that, the Respondent further specified that “while Mr. S was probably interested in
the player G, no one else was aware of the said interest at that time and definitely
there was no sporting strategy behind Mr. S’ interest.”
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17.
Likewise, the Respondent mentioned that, in any case, the Claimant “never came to
country G for any trial” and did not come to country G at the beginning of July 2009
“to present himself to the club (..) as he should have done, if it was true he had a valid
contract with the club or that he thought this to be the case.”
18.
Finally, the Respondent stated that the amount of EUR 200,000 claimed by the
Claimant was “totally disproportionate” considering that, in accordance with the
contract, the latter was only entitled to receive “less than 80,000 euros.”
19.
Lastly, asked about his labour situation as from the time of the alleged breach of
contract until the expiry of the contract, the Claimant informed FIFA that he had been
unemployed until 26 January 2011 and that, on this date, he had concluded an
employment contract with the country G club X earning EUR 826 per month.
Furthermore, the Claimant explained that from 1 August 2011 until 31 July 2012, he
had worked for the country A club Y and received a monthly salary of EUR 700.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) 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 21 October
2009, thus after 1 July 2008. Consequently, the DRC concluded that the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber, edition 2008 (hereinafter: the Procedural Rules), are applicable
to the matter at hand (cf. article 21 par. 1 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 2010) the
Dispute Resolution Chamber is competent to deal with the matter at sake, which
concerns an employment-related dispute with an international dimension between a
player and a club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players 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 2009 and 2010
editions of the Regulations on the Status and Transfer of Players, and considering that
the present claim was lodged with FIFA on 21 October 2009, the 2009 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
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4.
The competence of the Chamber and the applicable regulations having been
established and entering into the substance of the matter, the Chamber started his
analysis by acknowledging the facts of the case and the arguments of the parties as
well as the documents contained in the file.
5.
In this respect and first of all, the Chamber acknowledged that, on an unknown date,
the Claimant and Mr S (hereinafter: Mr S) “acting in the capacity of President &
Managing Director or legal representative” of the Respondent, had signed an
employment contract (hereinafter: the contract) valid from 1 July 2009 until 30 June
2013. Besides, the Chamber observed that the contract bore the stamp of the club and
had been drafted on the letterhead of the country G Superleague.
6.
In his claim to FIFA, the Claimant had requested from the Respondent the payment of
the amount of USD 200,000 as per art. 4.11. of the contract, arguing that the latter
had breached their contractual relationship by preventing him from playing and by
failing to pay him his salary of July, August and September 2009.
7.
In continuation, the Chamber took note that, according to the Respondent, however,
at the time of the contract’s conclusion, Mr S was no longer its president and,
consequently, the latter was no longer entitled to sign such a document on its behalf.
8.
On the basis of the aforementioned allegations, the Chamber considered that the first
question to be addressed in the present matter was whether the contract had been
validly concluded between the parties to the reference or not.
9.
In this context and first of all, the Chamber recalled that it was uncontested that the
contract had been signed by the Claimant and by Mr S, who, at some point, had
undisputedly been the President of the Respondent.
10.
As to that, the Chamber further acknowledged that in the Claimant’s opinion, when
the contract was signed, there had not been had any reason for him to question Mr S’s
entitlement to conclude the relevant document on the Respondent’s behalf as its
president.
11.
Furthermore, the Chamber observed that the parties disagreed on when exactly the
contract had been signed, i.e. on February 2009 according to the Claimant, and on 1
July 2009 as per the Respondent.
12.
With those considerations in mind, the Chamber first of all recalled that, regardless of
the exact date on which the contract was concluded, the relevant document had been
signed by Mr S “acting in the capacity of President & Managing Director or legal
representative of (..) club A” and bore the stamp of the Respondent. Furthermore, the
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Chamber stressed that the contract had been drafted on the letterhead of the country
G Superleague.
13.
Bearing in mind the aforementioned, in accordance with the principle of bona fide,
which has to be respected by parties when concluding an agreement, considering that
Mr S had signed the contract as President of the Respondent as well as taking into
account that the contract bore the stamp of the Respondent and had been drafted on
the letterhead of the country G Superleage, the Chamber determined that it could be
safely assumed that, at the time of its conclusion, the Claimant had been in good faith
entitled to believe that the person signing the relevant agreement on behalf of the
Respondent, i.e. Mr S, was indeed acting as its President and was legally authorized to
sign the document in question on behalf of the Respondent.
14.
Notwithstanding the above and for the sake of good order, the Chamber was eager to
emphasize that the Respondent had not provided FIFA with any official document in
support of the allegation that when the contract had been signed, Mr S was no longer
its President.
15.
In view of all the above, considering the content of art. 12 par. 3 of the Procedural
Rules, which stipulates that the burden of proof has to be carried by the party
claiming a right on the basis of an alleged fact as well as taking into account that the
Respondent had not sufficiently demonstrated that the person representing it under
the contract was no longer empowered to do so and bearing in mind that the
Claimant had been in good faith entitled to believe that Mr S was legally authorized
to sign the contract on behalf of the Respondent, the Chamber came to the conclusion
that the parties had signed a valid and binding employment contract.
16.
In addition, the Chamber found it worthwhile to underline that, in accordance with its
jurisprudence, the validity of an employment contract cannot be made conditional
upon the execution of (administrative) formalities, such as, but not limited to, the
registration procedure with the league or the association concerned, which are of the
sole responsibility of a club and on which a player has no influence. Consequently, the
Chamber emphasized that the Respondent’s assertion that the contract had never
been registered with the country G Superleague nor with the Football Federation H
could not be taken into account.
17.
Having established that a valid and legally binding employment contract had been in
force between the Claimant and the Respondent, the Chamber went on to analyse as
to whether such contract had been breached and, in the affirmative, which party is to
be held liable for breach of contract.
18.
To this end, the Chamber stressed that, given that the Claimant had undisputedly
offered his services to the Respondent as well as considering that the latter had not
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contested not having performed any of its obligations under the contract and that, in
fact, it had only disputed the legal validity of such agreement, the conclusion that a
valid and legally binding employment contract had been entered into unavoidably
leads to the decision that such contract was breached by the Respondent. In fact, the
Chamber took into account that, according to the Claimant, he had never received his
salaries under the contract and, as a matter of fact, he never got the chance to
actually start working for the Respondent as the latter had failed to contact him after
the conclusion of the contract and never replied to his various letters, an allegation
which is not contested by the Respondent. To this, the Chamber recalled that, de
facto, the Respondent had acknowledged having received the relevant
correspondence of the Claimant and had admitted having decided not to answer.
19.
On account of the above circumstances, the Chamber established that the Respondent
had obviously no longer been interested in the Claimant’s services and had
consequently tried to resolve the situation by simply ignoring the latter in order to
prevent him from actually being in the position to start performing his obligations
under the contract. Hence, the Chamber concluded that such behaviour clearly
constitutes a breach of contract. Accordingly, the Chamber decided that the
Respondent had produced the premature termination without just cause of the
contract.
20.
Having established that the Respondent is to be held liable for the early termination
of the contract without just cause, the Chamber turned its attention to the possible
consequences of such termination. As to that and taking into account the content of
art. 17 par. 1 of the Regulations, the Chamber determined that the Claimant is
entitled to receive from the Respondent financial compensation for breach of
contract.
21.
The aforementioned having been established, the Chamber went on to assess the
amount of compensation due by the Respondent for having breached the contract. In
doing so, the members of the Chamber first of all took note that the Claimant had
inter alia requested the payment of EUR 200,000 in accordance with art. 4.11. of the
contract while the Respondent had contested such request arguing that the amount
claimed was disproportionate because higher than the whole salary provided under
the contract.
22.
In view of the above, the Chamber recalled in the first place that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the dispute,
with due consideration for the law of the country concerned, the specificity of sport
and further objective criteria, including, in particular, the remuneration and other
benefits due to the Claimant under the existing contract and/or the new contract, the
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time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
23.
In application of the relevant provision and to begin with, the Chamber recalled that
the contract did contain a provision by means of which the parties had beforehand
agreed upon an amount of compensation payable in the event of breach of contract.
In this respect, the Chamber noticed that, in accordance with the relevant clause, i.e.
art. 4.11. of the contract, the Respondent had to pay to the Claimant compensation in
the amount of EUR 200,000 in case it terminated the contract without just cause
during the protected period. The Chamber was of the view that the relevant amount
of compensation provided in the contract was exceptionally high taking into account
that it was significantly higher than the total remuneration due to the Claimant as
salary over the entire duration of the contract. Therefore, in the Chamber’s
judgement, such a high amount had to be considered excessive. Hence, the Chamber
concluded that the compensation clause contained in art. 4.11 of contract could not
be taken into account at all for the aforementioned reason.
24.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
compensation in accordance with the other criteria contained in art. 17 par. 1 of the
Regulations. In doing so, the Chamber took into account the monies payable to the
Claimant under the terms of the contract until 30 June 2013 and concluded that the
latter would have received in total EUR 81,526.16 as remuneration had the contract
been executed until its expiry date, i.e. EUR 826 x 12 months x 4 years plus EUR
41,878.16.
25.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means
of which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for
breach of contract in connection with the player’s general obligation to mitigate his
damages.
26.
The Chamber noted that, on 26 January 2011, the Claimant had signed an
employment contract with the club X earning EUR 826 per month until August 2011,
and that subsequently he was employed by another club, club Y, receiving a salary of
monthly EUR 700 until the end of July 2012. Therefore, the Chamber calculated that
between January 2011 and July 2012, the Claimant had apparently earned the total
amount of EUR 13,356.
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27.
In continuation, the Chamber considered important to mention that, although the
contract was fully valid and enforceable, the execution of the agreement had never
started.
28.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber came to the conclusion that the amount
of EUR 20,000 constituted a reasonable and justified amount of compensation for
breach of contract.
29.
Hence, the Chamber decided that the Respondent must pay the amount of EUR 20,000
to the Claimant as compensation for having prematurely terminated their contractual
relationship without just cause.
30.
In continuation and as to the Claimant’s claim for the payment of EUR 5,000 as
compensation for the costs allegedly incurred, the Chamber recalled the provisions of
art. 18 par. 4 of the Procedural Rules, which clearly stipulate that “No procedural
compensation is awarded in proceedings of the Players’ Status Committee and the
DRC”. Therefore, the Chamber decided that the Claimant’s claim regarding costs
incurred has to be rejected.
31.
Lastly, the Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that the claim of the Claimant is partially accepted and that the
Respondent has to pay to the Claimant EUR 20,000 as compensation for breach of
contract
III
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, G, is partially accepted.
2.
The Respondent, club A, has to pay to the Claimant, G, compensation for breach of
contract in the amount of EUR 20,000 within 30 days as from the date of notification
of this decision.
3.
Any further claims lodged by the Claimant, G, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
5.
The Claimant, G, is directed to inform the Respondent, club A, immediately and
directly of the account number to which the remittance is to be made and to notify
the Dispute Resolution Chamber of every payment received.
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*****
Note relating to the motivated decision (legal remedy):
According to article 67 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
Jérôme Valcke
Secretary General
Encl. CAS Directive
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