Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2011,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Jon Newman (USA), member
Theodoros Giannikos (Greece), member
Thilina Panditaratne (Sri Lanka), member
on the claim presented by the player
A,
as “Claimant”
against the club
P,
as “Respondent”
regarding an employment-related dispute
between the parties.
I.
Facts of the case
1.
On 11 August 2008, the player A (hereinafter: the Claimant) and the club P
(hereinafter: the Respondent) signed an employment contract (hereinafter: the
contract) that was valid from the date of its signature until 31 May 2010 and
according to which the Claimant was entitled to receive from the Respondent,
inter alia, the total amount of USD 400,000 for the football season 2008/2009 and
USD 450,000 for the football season 2009/2010 as follows: USD 200,000 on 11
August 2008; USD 200,000 in 10 monthly instalments of USD 20,000 each, the first
one to be paid on 30 August 2008 and the last one on 30 May 2009; USD 225,000
on 1 June 2009 and USD 225,000 in 10 monthly instalments of USD 22,500 each,
the first one to be paid on 30 August 2009 and the last one on 30 May 2010.
2.
On 7 July 2009, a termination agreement was concluded (hereinafter: the
termination agreement), by means of which the Claimant and the Respondent
terminated their contractual relationship, and in accordance with which the
Claimant was entitled to receive from the Respondent the total amount of USD
200,000 as follows: USD 5,000 on 7 July 2009; USD 15,000 on 15 August 2009; USD
20,000 on 15 September 2009; USD 20,000 on 15 October 2009; USD 20,000 on 15
November 2009; USD 20,000 on 15 December 2009; USD 20,000 on 15 January
2010; USD 20,000 on 15 February 2010; USD 20,000 on 15 March 2010; USD 20,000
on 15 April 2010; USD 20,000 on 15 May 2010.
3.
In this respect, the termination agreement was signed by the Claimant, and by Mr
X on behalf of the Respondent.
4.
Art. 3 a), b) and d) of the termination agreement stipulated, in its translated
version, that “The agreement [i.e. the contract] with the commencement date of
August 11th 2008 and with the expiry date of May 31st 2010, which has been
concluded by and between the parties, has been terminated mutually. B shall, free
of charge, allow transfer of the football player […]. Upon payment of USD 200,000
whose breakdown is stated above, to the football player by the club, the football
player declares that he has no other receivables from and rights against the club
and declares that he has released the club from its debts and liabilities”. Finally, it
was stated in art. 3 f) of the termination agreement, in its translated version, that
“In case delays, which are longer than 30 days period, occur in the payments; the
delayed payment concerning the related month shall be paid to the football
player, including 5% more of the delayed payment”.
5.
On 21 May 2010, the Claimant lodged a claim with FIFA against the Respondent
requesting from the latter the payment of the total amount of USD 245,250, plus
“5% interest per month”, arguing that the Respondent had never paid the
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amount in accordance with the termination agreement. In this respect, the
Claimant explained that the total amount claimed corresponded to:
“- USD 5,000 on 7 July 2009, plus USD 2,500 interest,
- USD 15,000 on 15 August 2009, plus USD 6,750 interest,
- USD 20,000 on 15 September 2009, plus USD 8,000 interest,
- USD 20,000 on 15 October 2009, plus USD 7,000 interest,
- USD 20,000 on 15 November 2009, plus USD 6,000 interest,
- USD 20,000 on 15 December 2009, plus USD 5,000 interest,
- USD 20,000 on 15 January 2010, plus USD 4,000 interest,
- USD 20,000 on 15 February 2010, plus USD 3,000 interest,
- USD 20,000 on 15 March 2010, plus USD 2,000 interest,
- USD 20,000 on 15 April 2010, plus USD 1,000 interest,
- USD 20,000 on 15 May 2010”.
6.
In its response dated 2 July 2010, the Respondent rejected the Claimant’s claim in
its entirety. In this respect, the Respondent argued that the Claimant had received
the amount of USD 400,000 for the first year and had then signed a contract
without its ”official permission“ with another club at the beginning of the second
year. Furthermore, the Respondent alleged that its vice president, who had signed
the termination agreement, had ”no authority to sign contract or such an
agreement“. In addition, the Respondent claimed that there was ”no official
stamp of the club in the document”. Consequently, the Respondent deemed that
the termination agreement had no “legal force”. In this connection, the
Respondent referred to paragraph 10.6.3 of its internal regulations according to
which the president was authorised to sign official documents.
7.
In his second submission dated 27 September 2010, the Claimant rejected the
Respondent’s allegations and reiterated his claim. In this respect, the Claimant
argued that the Respondent had not raised any objections with regard to his
transfer to the new club and that the relevant ITC had been issued without any
objections whatsoever. Furthermore, the Claimant added that the termination
agreement was valid because there was ”a fiduciary relationship between the vice
president“ and him and because he had been able to register with the new club.
In addition, the Claimant explained that the termination agreement had been
signed during a trip of the team in country T that the vice president had attended
as “the top level representative of the club” so that he had ”rightfully assumed“
that the club’s vice president was authorised to sign the document.
8.
Finally, the Claimant referred to the “legal principle of culpa in contrahendo” and
argued that ”a party to a negotiation for a contract has to compensate casual
damages incurred by the other party, if it has infringed on its own fault its
obligation to act in good faith during the negotiations and thereby breached the
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confidence of the other party in the negotiations.“ Consequently, the Claimant
reasoned that if the termination agreement was considered invalid by the
Respondent, the latter had to “be hold responsible” for the behaviour of its vice
president because he had signed a document “knowing the legal effects of its
unauthorized signature and not act rightfully but having the intention to deceive
the player”.
9.
In its final statement dated 5 November 2010, the Respondent reiterated the
content of its previous correspondence. In addition, the Respondent stated that it
was not financially responsible for ”self-willed actions of the vice-president and
other workers”. Furthermore, the Respondent argued that since the contract had
been signed by its president, the Claimant should have known that he [i.e. the
president of the club] or ”an attorney representative of his“ would also have had
to sign the termination agreement.
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 May 2010, 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 May
2010, the 2009 edition of the Regulations on the Status and Transfer of Players
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(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 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 11 August
2008, the parties to the dispute had concluded an employment contract
(hereinafter: the contract) that was originally valid until 31 May 2010.
6.
Equally, the Chamber took note that, on 7 July 2009, the Claimant and the vice
president of the Respondent, had signed a document (hereinafter: the
termination agreement) by means of which the contract was prematurely
terminated. Furthermore, the Chamber also remarked that, in accordance with the
termination agreement, the Claimant was entitled to receive from the Respondent
the total amount of USD 200,000 as follows: USD 5,000 on 7 July 2009; USD 15,000
on 15 August 2009; USD 20,000 on 15 September 2009; USD 20,000 on 15 October
2009; USD 20,000 on 15 November 2009; USD 20,000 on 15 December 2009; USD
20,000 on 15 January 2010; USD 20,000 on 15 February 2010; USD 20,000 on 15
March 2010; USD 20,000 on 15 April 2010; USD 20,000 on 15 May 2010.
7.
In continuation, the Chamber observed that, in his claim to FIFA, the Claimant had
inter alia requested from the Respondent the payment of the amount of USD
200,000 in accordance with the termination agreement, arguing that the latter
had failed to pay it. Besides, the Chamber took note that, for its part, the
Respondent had contested the validity of the termination agreement and accused
the Claimant of having breached the contract by signing with a new club without
its “permission”.
8.
On the basis of the aforementioned allegations, the Chamber considered that the
question of whether the termination agreement had been validly concluded
between the parties to the reference had to be addressed.
9.
In this context and first of all, the Chamber stated that an agreement has to be
signed by both parties in order to be valid and binding. In this respect, the
Chamber remarked that none of the parties concerned had ever contested the fact
that that the termination agreement had been signed by the Claimant and by the
vice president of the Respondent. Thus, the Chamber reasoned that the
termination agreement appeared to have been duly signed by the contracting
parties.
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10.
In continuation, the Chamber turned its attention to the Respondent’s allegation
that the termination agreement had not been signed by its competent
representative in accordance with its internal regulations, i.e. apparently its
president, and that, consequently, said document could not be considered as legal
and binding. Besides, the Chamber acknowledged that, according to the
Respondent, the Claimant had been aware of the fact that the termination
agreement had to be signed by its president in order to be valid.
11.
Finally, the Chamber observed that, for his part, the Claimant had denied having
known that only the Respondent’s president was empowered to sign such a
document on the latter’s behalf.
12.
With those considerations in mind, the Chamber recalled that, as a general rule
and in accordance with its well-established jurisprudence, the internal proxy rule
of one of the party to a contract cannot have any legal effect on the validity of
the contract itself unless the contracting partner has been duly informed of its
content.
13.
In this context, the Chamber recalled that the Respondent had not provided any
evidence in support of the allegation that the Claimant had been ever informed of
the content of its internal proxy rule. Consequently and also bearing in mind the
wording 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, the Chamber concluded that it could safely be assumed that, at the time the
termination agreement was concluded, the Claimant had no knowledge of the
Respondent’s internal proxy rule.
14.
Bearing in mind the aforementioned and considering that the termination
agreement had been signed by one of the highest possible representative of the
Respondent on its behalf, i.e. its vice president, the Chamber considered that the
Claimant could in good faith assume that this person was duly authorized to act
and sign on the latter’s behalf.
15.
Taking into account all the above, the Chamber held that the termination
agreement had been signed by the Claimant and the Respondent and was
therefore valid and binding on the parties.
16.
In view of the all the above and in accordance with the legal principle of Pacta
sunt servanda, which in essence means that agreements must be respected by the
parties in good faith, and bearing in mind that, according to the termination
agreement, the Respondent had to pay to the Claimant the amount of USD
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200,000 as final settlement, the Chamber established that the Claimant is entitled
to receive from the Respondent the amount of USD 200,000.
17.
Additionally and with regard to the claimed default interest requested by the
Claimant, the Chamber referred to its well-established jurisprudence
concerning the payment of interest and decided that the Respondent has to
pay to the Claimant interest of 5% p.a. on each of the installments due in
accordance with the termination agreement as of the day following the day
on which the respective amount had fallen due.
18.
In view of all the above-mentioned considerations, the Chamber decided that the
claim of the Claimant is partially accepted and that the Respondent has to pay to
the Claimant the total amount of USD 200,000 plus interest at 5% p.a. until the
date of effective payment as follows:
- 5% p.a. as of 8 July 2009 over the amount of USD 5,000;
- 5% p.a. as of 16 August 2009 over the amount of USD 15,000;
- 5% p.a. as of 16 September 2009 over the amount of USD 20,000;
- 5% p.a. as of 16 October 2009 over the amount of USD 20,000;
- 5% p.a. as of 16 November 2009 over the amount of USD 20,000;
- 5% p.a. as of 16 December 2009 over the amount of USD 20,000;
- 5% p.a. as of 16 January 2010 over the amount of USD 20,000;
- 5% p.a. as of 16 February 2010 over the amount of USD 20,000;
- 5% p.a. as of 16 March 2010 over the amount of USD 20,000;
- 5% p.a. as of 16 April 2010 over the amount of USD 20,000;
- 5% p.a. as of 16 May 2010 over the amount of USD 20,000.
19.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
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III
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, P, has to pay to the Claimant, A, within 30 days as from the date
of notification of this decision the amount of USD 200,000 plus interest at 5% p.a.
until the date of effective payment as follows:
- 5% p.a. as of 8 July 2009 over the amount of USD 5,000;
- 5% p.a. as of 16 August 2009 over the amount of USD 15,000;
- 5% p.a. as of 16 September 2009 over the amount of USD 20,000;
- 5% p.a. as of 16 October 2009 over the amount of USD 20,000;
- 5% p.a. as of 16 November 2009 over the amount of USD 20,000;
- 5% p.a. as of 16 December 2009 over the amount of USD 20,000;
- 5% p.a. as of 16 January 2010 over the amount of USD 20,000;
- 5% p.a. as of 16 February 2010 over the amount of USD 20,000;
- 5% p.a. as of 16 March 2010 over the amount of USD 20,000;
- 5% p.a. as of 16 April 2010 over the amount of USD 20,000;
- 5% p.a. as of 16 May 2010 over the amount of USD 20,000.
3.
If the aforementioned sum, plus interest, is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
4.
Any further claims lodged by the Claimant, A, are rejected.
5.
The Claimant, A, is directed to inform the Respondent, P, 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 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
Jérôme Valcke
Secretary General
Encl. CAS Directives
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