Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2012,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
S,
as Claimant
against the club,
B,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 26 June 2007, the player S from country G (hereinafter: Claimant or player) and
the club B from country L (hereinafter: Respondent or club) signed an employment
contract valid as of 1 July 2007 until 30 June 2010 (hereinafter: contract).
2.
According to the contract, the player was to receive from the club the net amount
of EUR 180,000 for the sportive season 2007/2008 and the following amounts for
the subsequent sportive seasons:
Seasons
2008/2009
2009/2010
Yearly amounts if the club is
competing in the 1st Division
EUR 250,000 net
EUR 250,000 net
Yearly amounts if the club is
competing in the 2nd Division
EUR 180,000 net
EUR 180,000 net
3.
On 29 January 2008, a loan agreement with a buying option (hereinafter: loan
agreement) was signed between the Respondent and the club C from country G
(hereinafter: C) for the temporary transfer of the player by the Respondent to C
until 30 June 2008. Said loan agreement between the club and C was also signed by
the player.
4.
Art. 6 of the loan agreement stipulates that it is the sole agreement existing
between the contracting parties and that there is no other agreement, promise or
obligation between them, be it oral or written.
5.
On the same day, 29 January 2008, an agreement (hereinafter: agreement) was
signed between the club and the player, in accordance with which, in case C
exercises the buying option, the Respondent undertook to pay to the Claimant the
amount of EUR 15,000 which would be incorporated in his payment sheet of July
2008.
6.
The agreement further stipulates that, should C not exercise the buying option, the
player would receive from the club the amount of EUR 195,000 net for the sportive
season 2008/2009.
7.
In addition to the foregoing, and also on 29 January 2008, a private agreement
(hereinafter: private agreement) was signed between the Claimant and the
Respondent.
8.
In the private agreement, it is recalled that both parties are linked by a contract
valid until 30 June 2010 and that as at 29 January 2008, the player has a credit
related to the sportive season 2007/2008 relating to his salary of January 2008,
representing the amount of EUR 15,000 net.
9.
It is further stipulated in the private agreement that the Claimant expressed the will
to terminate the employment contract against the payment of EUR 13,000 by the
Respondent.
2/9
10.
In article 2 of the private agreement, the parties indicated that the total amount of
EUR 28,000 net is owed by the club to the player, independently from any right
based on the employment contract, with the parties renouncing to claim from each
other anything relating to the 2007/2008 season at a later stage.
11.
On 10 June 2009, the Claimant lodged a claim before FIFA against the Respondent
and requested to receive the amount of EUR 15,000 net on the basis of the
agreement, plus interest at the legal rate as from July 2008.
12.
In this respect, the Claimant explained that as C exercised the buying option
contained in the loan agreement, the club should have paid him the amount of EUR
15,000 in July 2008. However, the club refused to pay even after two default notices
dated 12 November 2008 and 20 March 2009 were sent to the Respondent in
relation thereto.
13.
The player attached to his statement of claim a letter dated 15 April 2009 that he
received from the club in reply to the default notice dated 20 March 2009 and by
means of which the club explained the two reasons for its refusal to pay.
14.
In said correspondence, the Respondent explained that the obligation to pay the
Claimant EUR 15,000 on the basis of the agreement is annulled by the fact that the
player, who is a contracting party to the loan agreement signed on 29 January
2008, acknowledged that apart from the contents of the loan agreement, there is
no other agreement, promise or obligation, be it oral or written, between the
contracting parties, as per the contents of art. 6 of the loan agreement.
15.
The Respondent also asserted that the loan agreement does not contain any
provision establishing an obligation for the Respondent to pay an amount to the
Claimant should C exercise the buying option.
16.
In addition, the club referred in this letter to the fact that it considered the
agreement signed with the player as null and void as it, in view of the rules
governing national football, consists in an enrichment based on illegal grounds,
which is eventually, anyhow, superseded by the contents of the loan agreement
that the player signed.
17.
In the Claimant’s opinion, the Respondent is acting in bad faith and he considers
that the amount of EUR 15,000 is due to him based on the following reasons.
18.
First of all, the player explained that the payment of EUR 15,000 was meant to
compensate a decrease of his salary during his stay on loan with C, which is why it
was established that in case the loan leads to a definitive transfer, the player would
receive EUR 15,000 in July 2008.
19.
On the other hand, and in case the player returned to the club at the end of the
loan, the amount EUR 15,000 would be paid to him during the sportive season
3/9
2008/2009, i.e. increasing his yearly salary up to EUR 195,000 instead of the initial
EUR 180,000 established in the employment contract.
20.
In continuation, the player asserted that the club’s reasoning related to the
contents of art. 6 of the loan agreement is erroneous, since said clause, which is a
standard contractual clause, only has an effect towards the contractual parties to
said agreement, i.e. the club and C, and that he only co-signed the loan agreement.
21.
What is more, and should it be considered that the player was bound by the terms
of the loan agreement, quod non, art. 6 can only have an effect on previous
agreements, whereas the agreement between the player and the club is not
anterior.
22.
Finally, the player stressed that as a general principle, contracts shall be interpreted
in good faith. Therefore, the player is of the opinion that the club would have been
of bad faith if it had been already anticipating at the time of the signature of the
agreement that its terms would actually nullify the obligation to pay to the player
EUR 15,000 on the basis of the agreement.
23.
In its reply to the claim, the Respondent acknowledged that it signed a contract on
26 June 2007 with the player, valid as of 1 July 2007 until 30 June 2010 and on the
basis of which the player would receive a monthly salary in the amount of EUR
15,000.
24.
The Respondent also acknowledged having signed the agreement, the loan
agreement and the private agreement the player referred to in his statement of
claim.
25.
The club rejected the Claimant’s claim and maintained that the terms of the
agreement were superseded by the terms of the loan agreement and the private
agreement.
26.
In this respect, the Respondent stressed that the loan agreement was accepted and
signed by the Claimant and underlined that said loan agreement does not contain
any provisions regarding payments to be made to the player. Also, the club
highlighted that, in accordance with the contents of its art. 6, the loan agreement
represented the entire and sole agreement existing between the parties.
27.
Additionally, the Respondent underlined that, via the private agreement, both
parties waived their right to claim against each other with regard to monies related
to the sportive season 2007/2008 with the exception for the amount of EUR 28,000,
corresponding to EUR 15,000 as salary for the month of January 2008 and EUR
13,000 corresponding to a compensation for the early termination of the contract
between the Respondent and the Claimant. In this regard, the Respondent
submitted documentation related to a payment to the Claimant of the amount of
EUR 28,000 in two installments, respectively in the amount of EUR 15,000 on 7 May
4/9
2008 and EUR 13,000 on 17 June 2008. In the Respondent’s opinion, the Claimant
received all his dues and is not entitled to any other payment.
28.
Moreover, the Respondent pointed out that the Claimant failed to comply with the
principle of the burden of proof as he did not demonstrate that the agreement had
been signed after the private agreement.
29.
Finally, and in case it was found that the agreement was applicable, the
Respondent asserted that since the Claimant’s definitive transfer to C took place on
the basis of financial terms other than the ones stipulated in the loan agreement,
the Claimant is not entitled to receive any amounts from the Respondent on this
basis.
30.
In his comments on the position held by the club, the player rejected the club’s
reasoning and maintained his initial claim.
31.
The player asserted that it would not have made any sense to sign on the same day
an agreement that would have been neutralized by the contents of another. If this
had been the case, the parties would have mentioned that the private agreement
was cancelling the agreement.
32.
In this context, the Claimant clarified that the loan agreement was only signed
between the Respondent and C with regard to his loan to the latter and that he
only countersigned this loan agreement as a kind of informative statement.
33.
Furthermore, the Claimant held that the private agreement between him and the
Respondent is related to monies regarding the sportive season 2007/2008 only, and
did not encompass any future payments.
34.
Moreover, the Claimant reiterated that the agreement includes the payment of EUR
15,000 net in July 2008 in case the transfer would be definitive. Therefore, as the
definitive transfer had transpired, the amount of EUR 15,000 was to be paid to him
in July 2008.
35.
Accordingly, the Claimant deemed that the payment of EUR 15,000 was related to
the sportive season 2008/2009, which is why the payment date was set in July 2008
or would intervene over the sportive season 2008/2009, his yearly salary being
exceptionally EUR 195,000 net instead of EUR 180,000 net in case the definitive
transfer to C did not occur.
36.
In its final position, the Respondent asserted that the Claimant had not brought any
evidence in support of his position in accordance with which the alleged payment
was due and outstanding and fully maintained its previous position. The
Respondent concluded by holding that the Claimant’s claim has to be rejected.
II.
Considerations of the Dispute Resolution Chamber
5/9
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 10 June 2009, thus after 1 July 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the
matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
In continuation, 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 stake, which concerns an employment-related dispute with
an international dimension between a player from country G and a club from
country L.
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
(editions 2009 and 2010), and considering that the present claim was lodged on
10 June 2009, the 2008 edition of said regulations (hereinafter: 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 and started
to analyse the contents of the respective positions submitted by the Claimant
and the Respondent as well as the contents of the documentation the
aforementioned parties submitted in support of their respective statements.
5.
By doing so, the Chamber turned its attention to the Claimant’s statement of
claim and noted, inter alia, that the Claimant was requesting to receive from
the Respondent the amount of EUR 15,000 net, plus interest, as a result of the
Respondent’s failure to execute its obligations contained in the signed
agreement dated 29 January 2008 (cf. points I./5. and I./6. above).
6.
On the other hand, the Chamber took due note that the Respondent, for its
part, recognised having signed, inter alia, the agreement at stake but rejected
the claim of the Claimant maintaining that the terms contained in said
agreement are superseded by the terms of the loan agreement and the private
agreement, which were both signed on 29 January 2008. In addition, referring
to the private agreement, the Respondent asserts having paid the amount of
EUR 28,000 to the Claimant and it presented relevant documentation in this
respect. As a result thereof, the Respondent held that it does not owe any
monies to the Claimant, whose claim has, therefore, to be rejected.
7.
In light of the foregoing, the members of the Chamber reverted to the
documentation on file and, in particular, the loan agreement.
6/9
8.
After a careful analysis of the loan agreement, the members of the Chamber
firstly found that the document at stake bears the Respondent’s stamp and
signature, the signature of C as well as the Claimant’s signature.
9.
What is more, focussing its attention on the preamble of the loan agreement,
the Chamber duly noted that the loan agreement only refers to the Respondent
and C as being the contractual parties. In other words, and even though the
Claimant obviously was involved in the conclusion of the loan agreement, the
parties bound by the terms of the loan agreement are exclusively the
Respondent and C.
10.
It follows from the aforementioned that the loan agreement, and in particular,
the clause set forth in paragraph 6, which, inter alia, is invoked by the
Respondent in its defence, does not bind the Claimant and only produces its
effects towards the Respondent and C. Consequently, the members of the
Chamber concurred that the loan agreement must be considered irrelevant to
the appreciation of the matter at hand.
11.
In view of the above considerations, the Chamber concluded that the
Respondent’s argumentation based on the terms of the loan agreement must
be rejected.
12.
In continuation, the Chamber turned its attention to the Respondent’s
argumentation based on the private agreement dated 29 January 2008, which
was signed by and between the Claimant and the Respondent. In this respect,
the Chamber duly noted that the Respondent held that both parties had waived
their right to claim against each other with regard to monies related to the
sportive season 2007/08, with the exception of the amount of EUR 28,000, which
had already been paid to the Claimant.
13.
In this regard, the members of the Chambers reverted to the contents of the
private agreement and noted that in its article 2, both parties had expressed
their will to definitely renounce to claim from each other monies relating to the
season 2007/08.
14.
In view of the aforementioned, the Chamber concurred that a strong
contradiction was resulting from the comparison of the terms stipulated in the
agreement in accordance with which the Respondent undertook to pay EUR
15,000 to the Claimant in the event of C exercising the buying option, and in
the private agreement.
15.
What is more, the Chamber highlighted that both the private agreement and
the agreement were signed on 29 January 2008 and that it was impossible to
ascertain, on the basis of the documentation on file, which of the two
documents at hand had been signed prior to the other.
7/9
16.
Following its analysis of the situation at hand, the Chamber considered that, as
pointed out by the Claimant, it makes no sense that on the same day, the
parties would have agreed, on the one hand, that the Respondent would pay
EUR 15,000 to the Claimant at the end of the loan period with C in the event
that C would exercise the buying option and, on the other hand, that the
Claimant would have accepted to sign a waiver relating to the aforementioned
sum of EUR 15,000. In this regard, the Chamber agreed with the Claimant that if
this would have been the clear and common intention of the parties, the
insertion of a clause in the private agreement in order to cancel the
Respondent’s financial obligations resulting from the terms of the agreement
would have easily permitted to clarify the parties’ respective obligations
towards each other.
17.
In view of the above-described situation, the members of the Chamber referred
to the general rule in accordance with which ambiguous contract terms are
interpreted against the party who drafted the contract.
18.
In this context, the Chamber wished to specify that both the agreement and the
loan agreement were drafted in the language of country L, i.e. the country in
which the Respondent is located, whereas the player is of G nationality.
Additionally, the Chamber noted that the agreement is handwritten and
drafted on a paper bearing, on its top end, the Respondent’s name and symbol.
19.
As a result of the aforementioned considerations, the Chamber concluded that,
most likely, it is the Respondent who drafted the terms of the two agreements
at stake and that, in view of the ambiguity resulting of their coexistence, the
interpretation of their conflicting contents was to be made in favour of the
Claimant.
20.
At this stage, the Chamber recalled that it was undisputed that C had exercised
the buying option referred to in the agreement.
21.
Consequently, the Chamber decided to accept the claim of the Claimant and
that the Respondent is liable to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 15,000 plus interest at
5% per year as from 31 July 2008 until the date of effective payment.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, S, is accepted.
2.
The Respondent, B, has to pay to the Claimant within 30 days as from the date
of notification of this decision the amount of EUR 15,000 plus interest at 5% per
year as from 31 July 2008 until the date of effective payment.
8/9
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4.
The Claimant is directed to inform the Respondent 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.
Note relating to the motivated decision (legal remedy):
According to art. 67 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
9/9