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
Mario Gallavotti (Italy), member
Sofoklis Pilavios (Greece), member
Carlos Soto (Chile), member
Theo van Seggelen (The Netherlands), member
on the claim presented by the player
D,
as Claimant
against the club
FC I,
as Respondent
regarding a contractual dispute arisen between the player and the club.
I. Facts of the case
1.
On 14 March 2008, the female R player, D (hereinafter: the Claimant) lodged a
formal complaint at FIFA against the U club, FC I, (hereinafter: the Respondent)
claiming the establishment of the fact that no contractual relationship existed
anymore between her and the club.
2.
The Claimant, who is allegedly a member of the U-19 R Women National Team,
explained to have been approached by the Vice President of the Respondent, Mr
M, who proposed her to play for the Respondent until the end of the 2007 season.
The Claimant affirms to have subsequently signed several documents from the
Respondent in English which were apparently necessary for her visa application.
The Claimant furthermore explains that as she does not master English, she relied
on the verbal agreement agreed upon with the Respondent. After the end of the
2007 season, when the Claimant assumed that the validity of her employment
relationship had expired, the Respondent informed her that she would have to
report for the pre-season training with the Respondent in 2008. In order to check
the expiration date of the employment relationship and as she did not have a copy
of her contract, the Claimant requested from the Respondent a copy of her
contract. The Respondent provided her with copies of several employment
contracts in some of which the terms and conditions were not specified. Also, the
contracts showed an expiration date of end of October 2009. The Claimant
subsequently requested a copy of her contract from the U Soccer Federation. The
contract was then, however, not provided to her by the U Soccer Federation but by
the Respondent. To her great astonishment, this contract was different from those
she had received earlier; some terms and conditions were written with a black pen.
The expiration date on this contract was also end of October 2009. The Claimant
then requested the U Football Federation again to provide her with a copy of the
officially filed and registered contract which she then received (hereinafter: the
standard contract). The Claimant states that the registered contract contains
discrepancies as it establishes a period of validity from April 2008 until October
2009 but at the same time states that the contract lasts three seasons (and not
two). The Claimant continues that all these documents did not correspond to the
verbal agreement reached between her and the Vice President in R. The Claimant
suggests that the Respondent had made her sign even though the terms differed
from the ones agreed upon orally.
3.
The Claimant requests the establishment of the fact that the contractual
relationship expired at the end of the 2007 season, in accordance with the verbal
agreement reached between the parties. Alternatively, if the Dispute Resolution
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Chamber (DRC) ruled that the standard contract with the date of validity until 31
October 2009 was valid, the Claimant requests the determination of her status
(amateur or professional) with the Respondent.
4.
Regarding her second application, the Claimant underlines that according to clause
2 of the standard contract which refers to Addendum B, no salary is payable to the
Claimant. The Claimant adds that the sole fact that the contract bears the title
“Standard Contract for Professional Players” does not determine her status as
professional. The Claimant emphasises that she was currently in R but the
Respondent had requested her to rejoin the squad in the U.
5.
In its reply to the claim, the Respondent requests that the claim of the Claimant be
dismissed and that it be determined that the Claimant is contractually bound to it
until 31 October 2009. The Respondent furthermore states the following:
The Claimant was transferred from WFC S to it in December 2006 as professional
player, i.e. against payment of a transfer compensation. The International Transfer
Certificate (ITC) was issued by the R Football Union on 19 January 2007 for the
Claimant. A U Soccer Federation standard professional contract (hereinafter: the U
Soccer Federation standard contract) was signed by the parties which provided for
a period of validity of three seasons, namely until 31 October 2009. As the U does
not require clubs to provide salary information, the Respondent informs to have
submitted copies of the contract with salary information blacked out. In addition
to this contract, the parties signed another contract (hereinafter: the player
contract) by which the Claimant was entitled to receive, beyond her base salary,
additional benefits such as a flight ticket from R to the U, paid accommodation in
the U and a performance bonus. The Respondent further put forward that it had
moved its headquarters to a different city and had switched from its old league to
a new league (W-League). Therefore, the Respondent asked the Claimant to sign a
standard W-League contract so that it could submit a new registration to the U
Soccer Federation reflecting the change to the new league. And again, as the U
Soccer Federation does not require salary information and in order to prevent
confusion with the existing contract, the Respondent simply wrote “0” in the salary
section. At that time, the Respondent proposed a new contract to the Claimant
intending to reflect her performance in the 2007 season. However, as the Claimant
did not sign the proposed new contract, the old one remained in force. The
Respondent emphasises that it had carefully explained all the documents to the
Claimant in both English and R, had provided her with time to verify the meaning
of the documents and had provided her with copies of every document. The
Respondent continues that it had not heard from the Claimant since November
2007. It suggests that the Claimant had been approached by a R club which
encouraged her to breach the contract concluded with it. The Respondent sums up
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that there could be no question that the Claimant is registered with it as a
professional player and that the employment contract is still valid.
6.
Upon FIFA’s request to submit documentary evidence in support of the alleged
payment of salaries to the Claimant such as copies of pay slips, the Respondent
replied that it does not use payslips which the Claimant signs upon receipt of the
money but instead pays through electronic transaction into the Claimant’s bank
account. It enclosed a listing with the alleged deposits made by the Respondent
into the Claimant’s bank account in the total amount of USD 20,150 and a copy of
the final “W-2 form” that is allegedly required by the U government at the end of
each year for every employee who was paid wages.
7.
In her comments thereto, the Claimant stated that the Respondent had submitted
two new versions of contracts which made three contracts in total:
- the standard contract dated 27 October 2007 (submitted by the Claimant);
- the U Soccer Federation standard contract dated 27 December 2006 (submitted
by the Respondent)
- the player contract dated 25 August 2006 (submitted by the Respondent).
8.
The Claimant states that the payment evidence provided by the Respondent was
issued by the Respondent and not by a bank and therefore could have been
printed easily by the Respondent. The employee report shows that the Respondent
allegedly paid USD 20,150 to the Claimant. If the standard contract dated 27
October 2007 was considered as the valid contract, the Respondent would have
overpaid the Claimant by USD 20,150. If the player contract dated 25 August 2006
was considered to be the valid one, the Respondent would have overpaid the
Claimant by USD 16,500. If the U Soccer Federation standard contract dated 27
December 2006 was considered to be applicable, the Respondent would be in
breach of contract as there would be an outstanding balance of USD 13,450 which
would equal to three outstanding monthly salaries which would have to be
interpreted as unilateral breach of contract by the Respondent. The Claimant
enclosed an email dated 15 December 2006 from the Vice President of the
Respondent, Mr M, by which the latter instructs the Claimant to scan the contract
which was enclosed to the email, sign it and return it to the Respondent. He told
the Claimant in the email that she did not have to fill out the terms of the contract
as he would do that later. Mr M further informed the Claimant that he would pay
her USD 300. The Claimant states that all the main conditions including the names
of the parties, the contract terms and the salary were left blank. She also mentions
that if the date and signatures were compared, it was clear that this contract is
identical with the U Soccer Federation standard contract dated 27 December 2006.
According to the Claimant, this email and the attached contract clearly showed
that the Respondent tried to deceive the Claimant into signing a completely blank
contract.The
Respondent
had
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taken these signed blank contracts and had later, by hand, entered the contract
terms, including the salary details, by hand, without the consent of the Claimant.
9.
The Claimant summarises that the three contracts with their conflicting terms as to
the period of validity and the salary could not exist together and that the DRC will
have to establish which one of them is valid. The Claimant deems that the standard
contract dated 27 October 2007 filed with the U Soccer Federation is the valid
contract as it also appears to be the final contract which overrides the previous
versions. By means of its fax dated 29 February 2008, the U Soccer Federation had
provided a copy of the contract and had clearly confirmed that this was the official
contract.
10.
The Claimant claims that all contracts concluded between the parties should be
considered terminated and the Respondent be ordered to compensate the
Claimant in the amount of USD 100,000 plus further compensation for the lost
opportunity to play football in the period of the ongoing dispute and the legal
costs incurred in this proceeding.
11.
The standard contract dated 27 October 2007 should be declared to be the only
valid contract which would mean that the Claimant’s status is the one of an
amateur.
12.
Alternatively, if the DRC decides that the contract dated 27 December 2006 is valid,
it should be declared that the Respondent committed a breach of contract as four
monthly salaries were outstanding.
13.
In its final arguments, the Respondent states that there is only one valid contract
which clearly provides for a monthly salary. Also the Respondent states that the
Claimant did not deny to have received salary payments. The Respondent points
out that it had submitted the Claimant’s W-2 form and a list with the deposits
made to the Claimant’s account. The submitted W-2 forms are filed with the U
Internal Revenue Service and should be considered as sufficient proof. The
suggestion that it would submit incorrect information to the U government was
offensive and not logical as the penalties for fraud would be severe. The assertion
of the Claimant that the amounts paid did not match with the amounts listed in
the contract is incorrect. The Respondent emphasises that the paid amounts related
to the months in which the Claimant was in fact present in the U and was
performing at the Respondent. The Respondent adds that the Claimant argued
that she was underpaid by suggesting that she should have been paid for periods
after the season was completed which was not correct. The Respondent also
mentions that the Claimant had never raised this issue with the Respondent and
that she just wanted to fabricate a dispute now in order to confuse the main issue.
The Respondent asserts that there is one single contract which applies which clearly
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sets forth a monthly salary. The player contract was only submitted to show that
the Claimant earned additional amounts beyond the U Soccer Federation standard
contract. The Respondent affirms that it was not true that the Claimant was
coerced into signing a blank contract. The relevant email to the Claimant clearly
stated that it was a copy for registration purpose only which did not have any
bearing on the original contract. According to the Respondent, the Claimant just
tried to walk away from valid contracts without having to pay compensation to the
Respondent. The Respondent again requests the dismissal of the claim.
14.
Upon request, the Respondent informed FIFA of the dates of the season in the U:
2007: 19 May - 14 August (Claimant expected to report by 5 May)
2008: 16 May - 25 August (Claimant expected to report by 25 February).
The Respondent informs that in 2007, the Claimant was paid for the two months
preceding the season (March and April), the entire season (May until August) and
half of September at which time the Claimant flew back to R. Additionally, the
Respondent sent, upon request, a copy of the transfer agreement concluded
between it and WFC S which provides for a transfer compensation of USD 10,000
for both the Claimant and another player, T.
15.
The Claimant informed FIFA, upon request, that she had earned random payments
of a total of USD 12,700 in 2007. The Claimant mentions that this sum is much
lower than the one stated by the Respondent, USD 20,150. Being invited to provide
a breakdown of this amount, the Claimant stated that it was difficult to state what
period and what purpose the payments related to as they were made randomly in
cash. The Claimant emphasized that all payments were effected in cash and never
through electronic transaction as claimed by the Respondent. Upon request to
specify the amount of compensation claimed, the Claimant emphasised that she
was one of the top world players and that she was paralysed in this legal dispute.
She could expect a salary of USD 100,000 per year in R or in any other leading
women’s football league.
16.
Even though the parties were informed that the investigation in the present
matter was terminated, the Claimant referred to the statement of the Respondent
that the salaries were only due during the actual playing season and stated that
there was no such provision in any contract and that it did not make sense that she
was entitled to only 6 to 7 monthly salaries per year while the Respondent held her
registration for the full 12 months of the year.
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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 14 March 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the 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 R player and a U club.
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 14 March
2008, the current version of the regulations (edition 2008; 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 all
further documentation contained in the file. In particular, the members took note
that the Claimant considers that the employment contract concluded with the
Respondent expired at the end of the 2007 season or, alternatively, that her status
with the Respondent is determined as amateur; in any case, the Claimant requests
the determination of the fact that she is not contractually bound to the
Respondent anymore. Furthermore, the Claimant requests to be compensated by
the Respondent in the amount of USD 100,000 for the damages she sustained due
to the lost opportunity to play football in the period of the ongoing legal dispute
as well as for the incurred legal costs.
5.
On the other hand, the Chamber took note that the Respondent requests that the
claim of the Claimant be dismissed as it considers that the Claimant is registered
with it as a professional and contractually bound to it until 31 October 2009 and
that the player therefore has to return to it.
6.
The Chamber stated that, in view of these contradictory positions, it first had to
analyze whether a valid employment contract had been concluded between the
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two parties, whether or not the Claimant was registered as a professional and in
the affirmative, to determine when the employment contract expires.
7.
In continuation, the Chamber took note that the parties had submitted different
employment contracts, all of which were signed by both parties.
8.
In this respect, the members acknowledged the fact that the Claimant had never
contested to have signed the contracts. Therefore, the members concluded that the
signatures on the contracts were authentic.
9.
The Chamber then, however, turned its attention to the argument of the Claimant
that the employment contracts did not correspond to the verbal agreement
reached between her und the Respondent and that as she did not master English,
the Respondent had made her sign these contracts even though their contents
differed from the agreement reached with the Respondent verbally.
10.
In this regard, first of all, the members stated that the Claimant had not submitted
any evidence in support of her assertion that the parties had verbally agreed upon
different contractual terms than the ones contained in the employment contracts
(cf. art. 12 par. 3 of the Procedural Rules).
11.
Secondly, and more importantly, the members stated as a general principle, a party
signing a document of legal importance without knowledge of its precise contents
does so on its own responsibility. As a consequence, the Chamber was of the
opinion that the fact that the Claimant might not have understood the contents of
the relevant documents she had signed for language reasons, was irrelevant with
regard to the legal effect of the employment contract. The Chamber concluded
that for this reason, the argument of the Claimant that she did not master English
and that the Respondent had made her sign contracts which she did not agree
with, had to be rejected.
12.
The members of the Chamber then turned their attention to the employment
contracts which were submitted to the services of FIFA: The standard contract,
dated 27 October 2007 which provides for a period of validity from 1 April 2008
until 31 October 2009, the U Soccer Federation standard contract dated 27
December 2006, with a period of validity from 1 April 2007 until 31 October 2009
and the player contract, dated 25 August 2006, with a period of validity until 31
October 2007 with the option to extend the contract for two years, i.e. until 31
October 2009.
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13.
After a careful analysis of the aforementioned contracts, the members
acknowledged that all the employment contracts stipulated a period of validity
until 31 October 2009.
14.
With regard to the player contract signed by the parties on 25 August 2006 with a
period of validity until 31 October 2007 and the option for extension of the
contract until 31 October 2009, the Chamber added that it was a general legal
principle that more recent contracts supersede older ones. Therefore, as the player
contract was signed previous to the U Soccer Federation standard contract, the
latter superseded the player contract.
15.
Equally, the Chamber stated that the U Soccer Federation standard contract was
the contract which was officially registered with the U Soccer Federation.
16.
With regard to the standard contract which does not provide any salary payments,
the Chamber took the fact into consideration that the Claimant had acknowledged
to have received salary payments from the Respondent. Therefore, the Chamber
concluded that the U Soccer Federation standard contract which contained the
indication of salary payments was to be applied.
17.
Having established that the U Soccer Federation standard contract is the valid
employment contract, the Chamber summed up that the period of validity of the
contract lasted until 31 October 2009.
18.
In continuation, the Chamber turned its attention to the alternatively submitted
application of the Claimant by which the latter requests that her status with the
Respondent be declared as amateur.
19.
In this respect, the members turned its attention to art. 2 par. 2 of the Regulations
which stipulates that a professional is a player who has a written contract with a
club and is paid more for his footballing activity than the expenses he effectively
incurs. All other players are considered to be amateurs.
20.
The members of the DRC took note of the fact that the Claimant had
acknowledged to have received salary payments of a total of USD 12,700 in 2007.
The Chamber further took into consideration that according to the employment
contract concluded between the two parties, the Claimant had started to play with
the Respondent on 1 April 2007.
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21.
In view of the aforementioned salary payments received by the Claimant, the
members considered that the Claimant had received more than the expenses she
effectively incurred and therefore had to be considered a professional.
22.
Furthermore, the members acknowledged the fact that according to the transfer
agreement submitted by the Respondent, the latter had paid a compensation to
the player’s former club, WFC S, for the transfer of the player.
23.
The members stated that as amateurs are per se not contractually bound to any
club, no transfer compensation is payable for the transfer of such players to their
former clubs. The members concluded that the payment of a transfer
compensation was - in addition to the salary payments to the player - another
indication that the player was registered as a professional.
24.
On account of all the above, the members decided that the status of the player
with the Respondent was professional.
25.
Having decided that the player is registered with the Respondent as a professional
player and having established that the U Soccer Federation standard contract
concluded between the Claimant und the Respondent on 27 December 2006 is the
valid and legally binding contract, the members of the DRC decided that the
Claimant is contractually bound to the Respondent until 31 October 2009 and
therefore has to respect the aforementioned employment contract and fulfill the
respective contractual obligations towards the Respondent.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the R player D is rejected.
2.
It is established that a valid contractual relationship exists between the Claimant,
D, and the Respondent, FC I, until 31 October 2009.
3.
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 (CAS)
Avenue de Beaumont 2
CH-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
Enclosed: CAS directives
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