Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 July 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player
G from M,
represented by Mr T, Attorney at Law and
Mrs A, Attorney at Law
as Claimant
against the club
L from C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 27 March 2007, the player G (hereinafter: the Claimant) lodged a claim with
FIFA against the club L (hereinafter: the Respondent) for an alleged breach of
contract.
2.
The Claimant explained that on 19 January 2006, he and his former club, O, had
received from the Respondent a written proposal for an employment contract.
According to this proposal, the Claimant would be entitled to an amount of USD
600,000 as signing fee, USD 200,000 as salary to be paid in ten monthly
instalments of USD 20,000 each, bonuses amounting to USD 100,000, business-class
flight tickets for the Claimant and his family as well as a furnished house and a
car.
3.
According to the Claimant, on 15 January 2006 the parties signed a document
entitled “provisional contract” in which it was stated that a formal employment
contract would be signed by 28 January 2006. After signing the aforementioned
document, the Claimant explained that on 22 January 2006, he travelled to C with
his agent in order to sign the final employment contract with the Respondent and
to travel with the squad to Y, as it had allegedly been previously agreed.
4.
The Claimant argued that as soon as he arrived at the Respondent on 24 January
2006, he started taking part in the training sessions. Two days after his arrival, the
Claimant’s agent requested information from the Respondent about the
Claimant’s alleged contract and was informed by the Respondent that the said
contract would be signed and that the Claimant would be paid in Y since the
banks in C were closed for the C new year.
5.
However, on 2 February 2006, the day the team was supposed to travel to Y, the
Claimant was apparently informed that he could not travel with the rest of the
team since he had to organise all the arrangements for his house, the car and his
wife’s travel. The Respondent allegedly told him that it would only be able to sign
the player’s employment contract on 8 February 2006.
6.
The Claimant held that since he had still not received an employment contract to
sign by 8 February 2006, his agent asked the Respondent to inform them about
the matter. In its reply received by the Claimant on 14 February 2006, the
Respondent apparently said that its president would soon be back and that the
contractual details of all foreign players would be made known by 20 February
2006. Again, the Claimant claimed that on the agreed day, he did not receive an
employment contract to sign.
7.
Consequently, on the same day, the legal representative of the Claimant
requested the Respondent to fulfil the terms of the provisional contract allegedly
signed between the parties and to provide the Claimant with the alleged
promised final employment contract. By means of a letter dated 21 February 2006,
the Respondent apparently informed the Claimant that it had not signed any
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contract on 15 January 2006 with the Claimant and that the provisional contract
allegedly signed between the parties was counterfeited. Again, on 1 March 2006,
the legal representative of the Claimant requested the Respondent to provide him
with his alleged employment contract and attached a copy of the provisional
contract to its letter. The Claimant claimed that the Respondent, once again,
denied that it had signed a contract on 15 January 2006 with him.
8.
The Claimant argued that not only had the Respondent made a proposal to him
and his former club, which had been accepted by both of them, but also that the
Respondent had duly signed a provisional contract with him. Consequently, the
Claimant deemed that the Respondent had violated the contract signed on 19
January 2006 and requested the total value of the contract, amounting to USD
900,000, from the Respondent as well as USD 2,160 as hotel expenses. The
Claimant also asked FIFA to impose disciplinary sanctions on the Respondent for
having failed to comply with the terms of the contract allegedly entered into
between the relevant parties.
9.
On 29 August 2007, the Respondent provided its comments in response to the
claim against it and explained that it had sent, on 14 January 2006, a letter to the
agent of a company called ”E”, which had apparently recommended the Claimant
to the Respondent, in order to invite the Claimant to travel to C for a trial. The
Respondent further claimed that it had then received a letter from ”E”, stating
that the Claimant had apparently accepted the offer and would travel to C before
23 January 2006.
10.
The Respondent explained that after the Claimant had arrived at the club on 25
January 2006 and had trained with the Respondent for several days, it eventually
decided not to sign a definitive contract with him. The Respondent admitted that
it had received a letter on 20 February 2006 from the legal representative of the
player, inviting it to provide the Claimant with an employment contract as it had
allegedly been agreed in the provisional contract, but replied on 21 February 2006
that it had never signed any such provisional contract on 15 January 2006.
Furthermore, the Respondent replied to the Claimant’s letter dated 1 March 2006
by saying again that it had not signed any contract.
11.
Except for the trial invitation, the Respondent maintained that it had never made
any proposal or signed any contract with the Claimant. In this respect, the
Respondent argued that four of the annexes (2, 3, 4 and 5) provided as evidence
by the Claimant in his initial claim could not be from the Respondent as it noted a
number of graphical inconsistencies, a fact which indicated that the documents
submitted by the Claimant were not authentic, or, in other words, forged.
Therefore, it considered that the claim of the Claimant should be rejected. It also
deemed that since the Claimant had apparently joined the club F of B on 20 March
2006 and then R thereafter (31 August 2006), his claim for the total amount of
USD 902,160 was unreasonable and should be dismissed.
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12.
In his second submission dated 30 October 2008, the Claimant responded by
refuting the allegations of the Respondent in their entirety and claimed that the
Respondent had not provided any evidence proving that it had not signed the
provisional contract. Therefore, he deemed that the Respondent had undisputedly
breached the valid contract entered into by the parties and should be liable to pay
compensation and damages to the Claimant in the amount of USD 902,160. He
also maintained that disciplinary sanctions should be imposed on the Respondent
for the alleged breach of contract.
13.
In its final comments submitted on 10 November 2008, the Respondent argued
that the letter dated 14 February 2006 apparently sent by the Respondent’s
president to the agent of the Claimant and allegedly informing the latter that the
details of the employment contract would be ready by 20 February 2006, and
which was provided by the Claimant in his initial claim, had also been forged by
someone using the letterhead of the Respondent. It also claimed that the contact
person of “E” in C might have concealed information from the player.
14.
Furthermore, the Respondent pointed out that it had never asked the C Football
Association to assist them with the issuance of the relevant International Transfer
Certificate (ITC). This, according to the Respondent, showed that it had no
intention to sign an employment contract with the player.
15.
The Respondent also explained that upon arrival in C on or about 22 January 2006,
the Claimant and his agent had met with the Respondent. After having been
informed by the Respondent that it had decided not to sign a contract with the
Claimant, the latter provided the Respondent with a copy of the disputed
provisional contract. The Respondent claimed that it had told the Claimant that it
had never sent this document to him. Consequently, the Respondent maintained
that it had never sent or signed any contract with the Claimant and asked for his
claim to be rejected.
16.
Asked by FIFA to provide its services with the original documents listed as annexes
2 (written proposal for an employment contract dated 19 January 2006), 3
(Professional soccer player contract – financial terms), 4 (Provisional contract) and
5 (letter from the club dated 14 February 2006) in his initial claim, the Claimant
simply responded on 29 January 2009 that he did not have them, without,
however, explaining the absence of the requested original documents.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) analysed whether it was
competent to deal with the instant case. In this respect, it noted that the present
matter was submitted to FIFA on 27 March 2007. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
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Resolution Chamber (edition 2005; 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 and 2 in
connection with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber shall adjudicate, in the
presence of at least three members including the chairman, on employment
related disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a player and a club regarding an
employment related dispute between the parties.
4.
Subsequently, the members of the Chamber analysed which edition of the
regulations should be applicable as to the substance of the matter. In this respect,
the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations
on the Status and Transfer of Players (edition 2008) and, on the other hand, to the
fact that the relevant ‘provisional contract’ at the basis of the present dispute was,
as alleged by the Claimant, concluded on 15 January 2006 and that the claim was
lodged at FIFA on 27 March 2007. In view of the foregoing, the Chamber came to
the conclusion that the previous version of the regulations, the FIFA Regulations
for the Status and Transfer of Players (edition 2005, hereinafter: the Regulations),
are applicable to the case at hand as to the substance.
5.
Once its competence and the applicable Regulations were thus established, the
members of the Dispute Resolution Chamber went on to deal with the substance
of the matter and started by acknowledging the above-mentioned facts and
documentation contained in the file as well as carefully considered the arguments
submitted by both the Claimant and the Respondent.
6.
In particular, the Chamber noted that, on the one hand, the Claimant asserted
that he had concluded with the Respondent, on 15 January 2006, a provisional
contract in which it was stated that a formal employment contract would be
signed by 28 January 2006. Moreover, the DRC noted that the Claimant claimed
having received, on 19 January 2006, a written proposal for an employment
contract according to which he would have been entitled, inter alia, to an amount
of USD 600,000 as singing fee, USD 200,000 as salary to be paid in ten monthly
installments, as well as USD 100,000 as bonuses.
7.
The Chamber further noted that, on the other hand and contrary to the Claimant’s
assertions, the Respondent only acknowledged that it had invited the Claimant for
a trial by means of a letter sent to a players’ agent, which had apparently
recommended the Claimant to the Respondent, but denied having ever signed the
provisional contract dated 15 January 2006 nor the written proposal dated 19
January 2006. It was also acknowledged by the Chamber that the Respondent
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argued that a number of documents submitted by the Claimant could not have
come from the Respondent and might have been forged by somebody.
8.
In light of the above, and, in particular, in view of the fact that the parties had
diverging views as to whether they had indeed entered into a valid and binding
employment relationship, the members of the Chamber agreed that they would
have to decide, based on the documents contained in the file, whether such
employment relationship had existed and if so, whether such relationship had
been unjustifiably terminated.
9.
With those considerations in mind, the DRC went on to analyse chronologically
each of the documents submitted by the parties to the dispute. First, it took into
account the letter dated 14 January 2006 by means of which the Respondent had
invited the Claimant to travel to C for a trial, and was of the opinion that since the
Claimant had not denied its existence or validity, it could be confirmed that a
preliminary contact between the parties seems to have been established on the
basis of such a letter. In this respect, the Chamber was keen to emphasise that the
said letter was drafted in such a way that it only represented an invitation made
to the Claimant for a trial and that it did, consequently, not establish any further
rights and/or duties.
10.
Secondly, the Chamber looked at the actual content and wording of the
provisional contract dated 15 January 2006 (contained in annex 4 of the Claimant’s
submission), on the basis of which the Claimant had argued that he had been
promised by the Respondent a formal contract. In this respect, the members of the
Chamber noted that the said document did not stipulate how much the Claimant
would eventually be paid but only mentioned that a formal contract would be
signed between the parties as soon as he arrived in C.
11.
The Chamber was also eager to underline that the provisional contract stated, in
its art. 4 par. 3 and 4, that (quote) “If the judgement is passed that the player has
the problem to act as a player due to friction and discord with L […] the contract
related to joining can be terminated” and that “If the judgement is passed that
the player’s ability is far from movie clip (DVD or video etc.) […], the contract
related to joining can be terminated”. Consequently and based on the overall
terms of the aforementioned document, the DRC was of the view that it could not
be inferred from the said document that the parties had concluded anything else
than the promise that a contract could be signed between the Claimant and the
Respondent if the latter deemed that a number of prerequisites would eventually
be fulfilled.
12.
As for the written proposal dated 19 January 2006 (contained in annex 2 and 3 of
the Claimant’s submission), which the Claimant had provided in support of his
allegation that the parties had agreed on the financial terms of their employment
relationship, the Chamber noted that only the first page (i.e. annex 2) bore the
letterhead and signature of the Respondent and not the second page (i.e. annex
3), which mentioned the alleged agreed financial terms. Consequently, and in the
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absence of any signature of the Respondent on annex 3, the members of the
Chamber unanimously agreed that it could not reasonably be inferred that such
financial terms had been drafted and proposed by the Respondent to the Claimant
in view of the conclusion of an employment contract.
13.
Furthermore, the Chamber considered the argument raised by the Respondent
according to which a number of annexes submitted by the Claimant could not
have come from, let alone be drafted by, the club since they contained a number
of graphical inconsistencies. In this context, the members of the Chamber pointed
out that the letterhead of annex 2 (written proposal) and the one of annex 4
(provisional contract) had not the same layout. In particular, the Chamber noted
that the space between the emblem of the Respondent and ‘L’ on annex 2 was
much smaller than on annex 4. In addition, the word ‘Ltd.’ on annex 2 had been
placed on a second line, whereas this was not the case on annex 4.
14.
In light of the above, the members of the Chamber found it, for the least, odd
that two official letters allegedly sent by the Respondent at four days interval
should contain two slightly different letterheads. Consequently, the Chamber
formed the belief that one or both of the said letter(s) might have been drafted
by someone else than the Respondent. More surprisingly, the DRC further noted
that the letter effectively sent by the Respondent to the Claimant on 14 January
2006, by means of which the former had proposed to the latter to come to C for a
trial and which was uncontested by any of the parties, bore an entirely different
letterhead than the one used on annex 2 or on annex 4.
15.
In continuation, the Chamber observed that although asked by FIFA to provide the
original documents listed as annexes 2 (i.e. the written proposal), 3 (i.e.
Professional soccer player contract – financial terms), 4 (i.e. Provisional contract)
and 5 (i.e. letter allegedly stemming from the Respondent and dated 14 February
2006) - the authenticity of which had also been put into question by the
Respondent - the Claimant had simply stated that he did not have them, without
providing the DRC with any reason as to why they could not be submitted. In the
absence of any such original documents, the DRC was left unconvinced that the
Claimant had been able to successfully prove that he and the Respondent had
effectively entered into a binding contractual relationship (cf. art. 12 par. 6 of the
Procedural Rules).
16.
In view of all of the above considerations, the members of the Dispute Resolution
Chamber unanimously held that no employment relationship seems to have
existed between the parties and that therefore the Claimant’s request for
compensation for breach of contract could not reasonably be maintained and
that, consequently, his claim is rejected.
III.
Decision of the Dispute Resolution Chamber
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The claim of the Claimant G, is rejected.
*****
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
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