Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player
B
as Claimant
against the club
FC K
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 28 January 2007, the C player B (hereinafter: the Claimant), born on 17 January
1983, and the S club FC K (hereinafter: the Respondent) concluded an employment
contract stipulating a term of validity from 28 January 2007 to 30 June 2008.
2.
In the above-mentioned contract, the parties agreed upon the following salary
payments:
2006 – 2007 season: EUR 1,300 net per month
2007 – 2008 season: EUR 1,400 net per month
With regard to the aforementioned salary payments the parties agreed that they are
calculated for 11 months per year.
3.
Furthermore, article 10 e) of the employment contract stipulates that the Respondent
could unilaterally terminate the said contract if “[…] the experts decide that the
player is not willing to play, does not want to do his best and does not want to
engage at the playground […]”.
4.
On 5 June 2007, the Respondent informed the Claimant in writing, inter alia, that it
would terminate the contractual relationship between itself and the player, invoking
article 10 e) of the employment contract concluded on 28 January 2007, with
immediate effect.
5.
On 22 February 2008, the Claimant and the Respondent signed two documents,
“obligations to employees and dependant persons (FP.03.02)”, according to which
“[…] Football Club K has not any obligations towards B […]” for the years 2006 and
2007.
6.
On 12 July 2007, the Claimant lodged a complaint, an amended version of which was,
upon request, submitted to FIFA on 7 March 2008, against the Respondent in front of
the Dispute Resolution Chamber. The Claimant requested to order the Respondent to
pay the Claimant the amount of EUR 18,200 as compensation for unilateral breach of
contract, plus default interest accruing at a rate of 14 % per year, as of the date of
bringing the decision to the day of payment as well as the imposition of sporting
sanctions on the Respondent.
Player B / Club FC K
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7.
On 14 April 2008, the Respondent for its part stated that, when leaving the club, the
Claimant signed a licence form “obligations to employees and dependant persons
(FP.03.02)” for the year 2006 and the same form for the year 2007, according to which
the Claimant confirmed that the obligations of the Respondent towards the Claimant
were completely and duly fulfilled for the respective period of time.
8.
On 28 April 2008, the Claimant explained that the statements made by the
Respondent, according to which he, when leaving the Respondent, had signed
documents confirming that the Respondent had fulfilled all its financial obligations
towards him for the years 2006 and 2007, were completely incorrect. Besides from the
aforementioned statements submitted by the Respondent being incorrect, the
Claimant also states that the documents referred to by the Respondent in its response
follow the single goal of avoiding financial and disciplinary responsibility of the
Respondent for the unilateral termination of contract at his detriment. In particular,
the Claimant holds that he was forced by the Respondent to sign the aforementioned
documents, otherwise the Respondent would not have issued the necessary
documents in order for him to be registered with another club. Therefore, the
Claimant holds that he had by no means waived his right to request for payment of
the claimed amount, since signing the said documents was the only way for him to
obtain the necessary documents in order for him to continue his career.
9.
In continuation, the Respondent adhered to its position, stating that he does not have
any obligations towards the Claimant and that it works in accordance with the legal
norms in its country and the norms of FIFA.
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 12 July 2007. 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. article 18 par.
2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to article 3 par. 1 of the
Procedural Rules and confirmed that in accordance with article 24 par. 1 and 2 in
combination with article 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber shall adjudicate on
employment related disputes between a club and a player that have an international
dimension.
Player B / Club FC K
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3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation involving a C player and a S club regarding an employmentrelated dispute between the parties.
4.
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 article 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2008)
and considering that the present claim was submitted on 12 July 2007 and that the
contract at the basis of the present dispute was signed in January 2007, the previous
version of the regulations (edition 2005; hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
5.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the case. The
members of the Chamber duly noted that the Claimant and the Respondent had
signed an employment contract, which, according to the Claimant, was terminated by
the Respondent without just cause. In particular, the Claimant holds that the abovestated art. 10 e) of the contract concluded between himself and the Respondent
conflicts with the principles that contracts must be respected, that contracts cannot be
terminated during the course of the season and that, in the event of termination
without just cause, compensation should be payable and that such compensation
should be mentioned in the contract. Therefore, the Claimant maintains that he
should be paid monetary compensation in the amount of EUR 18,200, totalling the
sum of monthly contractual compensation which would have been payable to him if
the contract between the parties in question had not been unilaterally terminated.
6.
In response to the above, the Respondent, for its part, does not explicitly deny that it
unilaterally terminated the pertinent employment contract invoking art. 10 e) of the
employment contract, but holds that, by signing the form “obligations to employees
and dependant persons (FP.03.02.)” for the periods as from 1 January 2006 to 31
December 2006 and from 1 January 2007 to 31 December 2007, respectively, the
Claimant declared, according to the contents of the said form, that the Respondent
does not have any obligations towards the Claimant whatsoever.
7.
Replying to the above, the Claimant held that the Respondent’s comments are entirely
incorrect, since the two forecited forms were only produced to avoid financial and
disciplinary responsibility of the Respondent for unilateral termination of contract.
The Claimant furthermore maintains that he only signed the two aforementioned
forms in order to obtain the necessary documents from the Respondent to be
registered with a new club and to continue his career. According to the Claimant, this
behaviour of the Respondent being discriminatory and unprofessional, leads to the
Player B / Club FC K
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conclusion that the statements contained in the Respondent’s response must be
dismissed.
8.
In view of the argumentation put forward by the Claimant, the members of the
Chamber deemed that, in order to be able to establish whether the Respondent
would have to be ordered to pay compensation for an alleged breach of contract, it
was crucial to closely examine the aforementioned forms, by means of which the
Respondent claimed to have been liberated from any obligation towards the Claimant
in connection with the contractual relationship between the parties concerned.
9.
In this context, the Dispute Resolution Chamber first and foremost duly noted that the
Claimant never contested to have signed the aforementioned forms. Thus, the
Chamber established that, by signing the aforementioned forms, the Claimant
confirmed that all the obligations of the Respondent towards the Claimant were duly
fulfilled. In other words, the Claimant was informed by the Respondent in summer
2007, i.e. by a letter dated 5 June 2007, that the Respondent would terminate the
employment agreement concluded between itself and the Claimant with immediate
effect, invoking art. 10 e) of the above-mentioned employment contract. Thus,
according to the Chamber, the Claimant had been notified the unilateral termination
of the relevant employment contract eight months before signing the forms stating
that the Respondent duly fulfilled all the obligations it had towards the Claimant,
since the said forms are dated 22 February 2008 and are duly signed by the Claimant.
10.
With regard to the clause stipulated in art. 10 e) of the employment contract, the
Chamber deemed it appropriate to recall that an unsatisfactory level of performance
is, as a general rule, no just cause to terminate an employment contract. Therefore,
any such clause contained in a contract between a professional player and a club can,
in principle, not be acceptable since it has to be considered as being potestative.
11.
However, and reverting to the Claimant’s argument according to which he only signed
the aforementioned forms dated 22 February 2008 in order to obtain the necessary
documents from the Respondent in order to continue his career with another club, the
Dispute Resolution Chamber was eager to emphasize that the fact that the Claimant
considered the signature of the said documents was necessary to obtain the relevant
documents in order for him to continue his career with another club, does not change
anything with regard to the principle that a party signing a document of legal
importance, as a general rule, does so on its own responsibility.
Player B / Club FC K
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12.
This being established, the Chamber unanimously explained that, by signing the
aforementioned forms, the Claimant waived his right to any claim in connection with
the contractual relationship between himself and the Respondent. This is, by means of
the declaration signed by the Claimant on 22 February 2008, according to which “[…]
Football Club K has not any obligations towards B […]”, the Claimant declared that he
had nothing to claim from the Respondent for any action of the Respondent during
the year 2007. In particular, the Chamber was eager to point out that, by signing the
said documents, and also bearing in mind the considerable period of time elapsed
between the alleged breach of contract in June 2007 and the signing of the waiver
declaration on 22 February 2008, the Claimant did not only renounce to any
remuneration as agreed in the employment contract concluded between the parties,
but he also resigned to any claim for compensation in connection with an alleged
breach of contract committed by the Respondent. In this respect, the Chamber
emphasized that the claim for compensation for breach of contract, if any, had arisen
in the moment the breach of contract effectively occurred, in casu this would have
been in June 2007. Thus, by stating on 22 February 2008 that the Respondent does not
have any obligations towards the Claimant, the latter declared to waive his right for
any claim he would possibly have had against the Respondent and which would have
arisen in 2007.
13.
On account of the above, the Chamber furthermore deemed that the question
whether the Respondent breached the contract it had concluded with the Claimant
without just cause could stay open, since the Claimant waived his right to any claim
which might possibly have arisen from a possible breach of contract committed by the
Respondent in 2007.
14.
Finally, the aforementioned considerations led the Dispute Resolution Chamber to
conclude that the Claimant’s claim for compensation for breach of contract has to be
rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, B, is rejected.
***
Player B / Club FC K
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Note relating to the motivated decision (legal remedy):
According to article 63 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
Player B / Club FC K
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