Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 July 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Sofoklis Pilavios (Greece), member
on the claim presented by the
Player X,
as “Claimant”,
against the
Club Y,
as “Respondent”,
regarding an employment-related dispute arisen between the parties.
./…
I.
Facts of the case
1.
The player X (hereinafter: the Claimant or the player) signed an employment
contract with the Club Y (hereinafter: the Respondent or the club), on 1 August
2005. This contract was due to expire on 30 June 2006.
2.
According to the Claimant, this employment contract contained an option for an
extra, second season, i.e. until June 2007. The player enclosed a document that
specified this alleged option. This document, which is also dated 1 August 2005
and which according to him is an appendix of the employment contract, was only
signed by the Respondent’s former General Secretary.
3.
This document, which would allegedly consist of amendment to the employment
contract, explicitly stated that the Respondent and the Claimant had already
agreed on an option for an extra season, following on from the initial contractual
period, i.e. for the 2006-2007 season.
4.
The Claimant asserts that he exercised the option for a second year on 22 January
2006. The player also enclosed a letter dated 22 January 2005 (sic) addressed to the
Respondent, which was only signed by the Claimant, in which, according to him,
he confirmed his consent to the option for the 2006-2007 season being exercised.
5.
According to the Claimant, on 28 January 2006, he was informed of his
disqualification by the coach and by a member of the club management, who had
both refused to notify him in writing, which, according to the Claimant,
represented a unilateral termination of his employment contract. According to the
Claimant, the only reason for his disqualification was because the Respondent
wanted to register another foreign player.
6.
The Claimant explained that, on 6 February 2006, the Respondent contacted him
and offered to pay him the four remaining months of his contract for the 20052006 season. The Claimant rejected this offer. The Claimant added that the club
had then made him another offer.
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7.
The player affirmed that, on 14 February 2006, the management of the club
changed its opinion once again and asked the player to take note of and sign a
new contract stipulating the following:
•
•
•
8.
a cancellation of the option;
the final and binding disqualification of the player;
the conclusion of negotiations and the obligation for the player to stay in
the country of the club until the end of his contract.
Consequently, the Claimant lodged a claim before FIFA on 11 February 2006 in
order to document the situation as follows:
•
•
•
his contract had been terminated unilaterally and without just cause by the
club;
he was demanding payment, in full, of his employment contract which was
valid until June 2007, i.e. EUR 195,000 for the final three months of the
2005-2006 season plus EUR 1,687,500 for the 2006-2007 season;
he was demanding compensation and interest amounting to three monthly
salaries from the second year, i.e. 3 x EUR 168,750 (EUR 506,250).
9.
In its position dated 28 February 2006, the Respondent confirmed that it would
meet its commitments until 30 June 2006. Furthermore, the club stated that the
player was taking part in training sessions, that he was receiving his salary at the
end of each month, and that the club was willing to re-register the player
according to the rules of domestic competitions.
10.
The Respondent asserted that it had not signed a new contract to extend the
player’s contract for the 2006-2007 football season, and that if it had, the Claimant
would have submitted to FIFA a contract that had been correctly signed.
Furthermore, the Respondent stated that the player had accepted the alleged
offer in January 2006, whereas this offer was from August 2005.
11.
The Respondent stated that the player was only basing his claim on a unilateral
promise from the club’s former General Secretary and that this could not be
considered a contract. The club also stated that it had no intention of unilaterally
terminating the employment contract, as the player had claimed.
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12.
The club also noted that if reference was made to the English wording of the
contract and to the wording of the letter that had stipulated the option, there was
no reason to believe that the letter in question was an appendix to the contract
and that there was nothing to indicate the complementary nature of the letter,
which had simply been a one-off promise.
13.
With its statement, the Respondent also enclosed a letter from Club Z dated 13
February 2006, stating that the player was contracted to the Club Z and that he
had been loaned to the Club Y. In this letter, the Club Z also stated that “in an
agreement dated 29 July 2005, we agreed to loan you the player, […], for the
2005-2006 season”.
14.
In his response, the Claimant stated that the extension of his employment contract
for the 2006-2007 football season was valid because the Respondent, by signing
the relevant employment contract, agreed to extend the labour relationship for a
further year, which he himself had then exercised on 22 January 2006. The player
also confirmed that he was receiving his salaries correctly.
15.
In its rejoinder, the Respondent mentioned that the player had admitted and
confirmed that he had received his salaries correctly, and that he was contradicting
himself on this point because on the one hand, he was claiming that the club had
unilaterally terminated his contract, while on the other hand, he had clearly stated
that he had received his salaries. Consequently, the club asked how the player
could possibly be claiming his contract had been unilaterally terminated when he
was still receiving his salaries.
16.
With regard to re-registering the player, the club stated that article 30 of the
sporting statutes governing the organisation of national and local tournaments
gave the club the right to re-register players for national tournaments and to
therefore keep players and contracts with them, which meant that disqualifying
players on the basis of internal regulations did not amount to a contractual
termination. The club also noted that the player was still training with the club
and that the club had decided to re-register the player.
17.
Consequently, the Respondent asked FIFA to reject the player’s allegations
regarding contractual termination, to reject the player’s claim for compensation
on the basis of it being unfounded, and to reach a decision rejecting the player’s
allegations regarding the existence of a contract that extended its validity for the
2006-2007 football season.
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18.
In a fax dated 26 July 2006, and in response to a request from FIFA, the player
stated that he was claiming the following:
•
•
•
Cup bonus:
Salary for the 2006-2007 football season:
Compensation and interest:
EUR 40,000
EUR 1,687,500
EUR 506,205
19.
In a fax dated 21 July 2006, the Football Federation of Club Z asked FIFA to contact
the Football Association of Club Y to obtain the International Transfer Certificate
of the player X for its affiliated club, the Club Z. In its request, the Football
Federation of Club Z enclosed a letter written by the club on 20 July 2006 which
stated that “this player was temporarily loaned to [Club Y] for the 2005-2006
season, without the option to purchase”.
20.
On 11 October 2006, the Respondent sent a new communication to FIFA with
regard to the latest comments of the Claimant.
21.
On 8 January 2008, FIFA informed the parties involved that the investigation of
the present case was closed and that the case would be submitted to the Dispute
Resolution Chamber for a formal decision at its next possible meeting.
22.
On 25 June 2008, FIFA informed once more the parties involved that the present
case would be submitted to the Dispute Resolution Chamber for consideration and
a formal decision on the occasion of its next meeting, on 3 July 2008.
23.
On 30 June 2008, the alleged legal representative of the player, due to his recent
nomination, asked the Dispute Resolution Chamber to postpone the submission of
the present case to a later date in order for him to be informed of all the elements
of the present matter.
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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 11 February 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 player X and a club Y.
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 11 February
2006, the previous version of the regulations (edition 2005; hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
In connection with the request by the alleged legal representative of the player X
to postpone the submission of the present case to a later date, the Dispute
Resolution Chamber stressed that the right of each party to a hearing had been
respected in these proceedings. Furthermore, the members of the Chamber
highlighted that in a letter dated 8 January 2008, more than five months before
this request by the legal representative of the player, FIFA had informed the
parties that the investigation of the case at hand had been completed and that
the case would be submitted to the relevant decision-making body at the next
possible meeting. Moreover, on 25 June 2008, FIFA had once again informed the
parties that the case at hand would be submitted to the Dispute Resolution
Chamber at its meeting on 3 July 2008. Consequently, and considering that the
legal rights of the parties had been observed in the application of art. 5 par. 8 of
the Procedural Rules, the Dispute Resolution Chamber decided to reject the
request to postpone the case at hand to a later meeting.
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5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and took into
consideration all the statements and documents presented by the parties during
the relevant investigation. The members of the Chamber started by
acknowledging that the Claimant and the Respondent signed an employment
contract on 1 August 2005, which was due to expire on 30 June 2006.
6.
The Chamber duly analysed the document at the centre of the case at hand, and
put forward by the Claimant, concerning the option to extend the duration of the
employment contract by a season. It noted that this document, dated 1 August
2005, had only been signed by the Respondent’s former General Secretary and not
by the two parties, as had been the case in the initial employment contract, also
dated 1 August 2005. With this in mind, the members of the Chamber pointed out
that for a contractual employment relationship to be valid, it must be set out in
writing and signed by both parties.
7.
The Chamber also considered this document in terms of the real intention of the
parties and concluded that the document in question merely set out the possibility
of prolonging the contractual relationship by a football season. The Chamber
stressed that if the parties had then wished to extend the contractual relationship
by a season, they would have jointly signed another contractual document
stipulating when this extension for the 2006-2007 season would have come into
effect.
8.
Moreover, the Dispute Resolution Chamber stressed that if the real intention of
the parties had been for the duration of this contract to be extended to the 20062007 season automatically, they would have explicitly stated this additional
duration in the initial employment contract dated 1 August 2005, and would have
deemed that it was valid until the end of the 2006-2007 season and not simply
until 30 June 2006.
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9.
In view of the foregoing, the members of the Chamber concluded that the
document stipulating a possible extension of the contractual relationship was to
be considered as a declaration, which would then have had to be validated
through the joint signature of a new contractual document providing for the
effective extension until the end of the 2006-2007 season.
10.
Moreover, in order to show that the document containing the alleged option was
only a declaration of intention, the members of the Dispute Resolution Chamber
took into consideration that in a fax dated 21 July 2006, the Football Federation of
Club Z had asked FIFA to contact the Football Association of Club Y to obtain the
player’s international transfer certificate for its affiliated club. Moreover, the
members of the Chamber took into account the content of a letter enclosed by the
Club Z on 20 July 2006, which stated that “this player was temporarily loaned to
[Club Y] for the 2005-2006 season without the option to purchase”. Equally and in
order to strengthen its opinion, the members of the Dispute Resolution Chamber
took into account the letter dated 13 February 2006 from Club Z, and enclosed by
the Respondent, in which the relevant club mentioned that “in an agreement
dated 29 July 2005, we agreed to loan you the player, […], for the 2005-2006
season”.
11.
In view of the foregoing, the Chamber concluded that the player in question had
not contested this contractual relationship with the Club Z and consequently it was
established that the player was contracted to the Club Z at the beginning of the
2006-2007 season, after the expiry of the relevant loan.
12.
The foregoing considerations show that the document presented by the player in
support of his claim (cf. point I.2. above) was a simple declaration of intention by
the Respondent and not a contract that stipulated that this option would actually
be exercised.
13.
Therefore, and taking into account the above considerations, the Chamber
concluded that the employment contract signed on 1 August 2005 between the
Claimant and the Respondent had expired on 30 June 2006 and that the club had
not prolonged the contractual relationship in question for an additional season.
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14.
Consequently, and given the above-mentioned conclusions drawn by the Dispute
Resolution Chamber, the latter turned its attention to the financial aspect of the
employment contract signed between the player and the Respondent on 1 August
2005 and valid until 30 June 2006.
15.
In this connection, and taking into account the respective positions of the two
parties, the Chamber concluded that the Claimant had stated and did not dispute
the fact that the Respondent had met its financial obligations towards him up to
the termination of the employment contract on 30 June 2006, and that
consequently the Respondent had not breached the employment contract
unilaterally and without just cause.
16.
Equally and concerning the claim by the player for an Cup bonus of EUR 40,000,
the Chamber concluded that by applying the principle of burden of proof, the
player had not been able to provide any proof of his right to receive this amount.
17.
As a result of the above, the Chamber rejected the Claimant’s complaint in its
entirety.
18.
Moreover, the members of the Chamber deemed it appropriate to mention, for
the sake of completeness only, that the Claimant’s request for EUR 506,205 for
damages and interests cannot be accepted in the light of the findings under point
II.15. above, i.e. the club had not breached the employment contract unilaterally
and without just cause.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is rejected.
*****
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:
Jérôme Valcke
Secretary General
Encl. CAS directives
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