Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), Member
Zola Majavu (South Africa), Member
Philippe Diallo (France), Member
Philippe Piat (France), Member
on the claim presented by the player
Xxx, Xxx,
Represented by Mr Xxx, Lawyer,
as Claimant
against the club
Xxx, Xxx,
Represented by Dr Xxx, Attorney at Law,
as Respondent
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 30 May 2007, the Xxx player Xxx (hereinafter: the Claimant) submitted a
complaint at FIFA against the Xxx club Xxx (hereinafter: the Respondent) in
connection with the early termination of an employment contract written in Xxx,
signed by the Claimant, his agent and the Respondent, dated 18 January 2007 and
valid from that date until 30 June 2011.
2.
In this respect, the Claimant requested that it should be established that he had
terminated the employment contract in question for just cause and, as a
consequence, he should be immediately released from the employment contract
binding him to the Respondent.
3.
Furthermore, the Claimant asked for an unspecified amount of compensation in
case the Respondent should be found in breach of contract.
4.
In particular, the Claimant confirmed that he had signed the relevant employment
contract, but argued that he had not understood the contents of the said contract
written in Xxx, a language that he apparently does not know. Consequently, the
Claimant stated that he had not been conscious that an allegedly orally stipulated
clause regarding the termination of the contract in case of the Respondent’s
relegation to the second division of the Xxx League was not contained in the said
contract.
5.
Equally, the Claimant stated that after he had signed the contract in question two
additional terms in handwriting, in particular, a buy-out clause and special
payment terms were added to the contract by the Respondent without his
knowledge and consent.
6.
According to the relevant employment contract the Claimant was entitled to
receive a monthly salary of EUR 700, three bonus payments each in the amount of
one monthly salary, amenities and further remuneration for the complete term of
the contract in the total amount of EUR 351,333, payable in 13 instalments.
7.
Furthermore, the relevant employment contract contains a handwritten buy-out
clause which stipulates that “ … During the present contact, if the player brings an
offer from a Xxx or foreign club, equal to EUR 1,000,000, then Xxx is obliged to
transfer him”. Finally, the relevant contract provides handwritten special payment
terms, according to which “ … The above-mentioned payments will be paid to the
player, in case the player participates in 10 official matches of Championship or
Cup [as a starter or a substitute]”.
8.
Moreover, the Claimant argued that he had never received a copy of the
employment contract after the Respondent had signed it and, therefore, the latter
had been able to modify the terms of the contract.
Player Xxx, Xxx / Club Xxx, Xxx
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9.
In view of the above-mentioned reasons, the Claimant argued that he had been
deceived by the Respondent and, therefore, he had had the right to unilaterally
terminate the relevant contract with just cause in order to continue his career with
another club.
10.
In its response, the Respondent rejected the Claimant’s reasons for the early
termination of the contract with just cause. In particular, the Respondent stated
that the contractual parties never agreed on a clause regarding the termination of
the contract in case of the Respondent’s relegation to the second division of the
Xxx League.
11.
Furthermore, the Respondent argued that the Claimant had been fully aware of
all the existing terms of the contract due to the fact that during the relevant
negotiations and the following signing act he had been accompanied by his
players’ agent, Mr Xxx, who allegedly knew English.
12.
In this regard, the Respondent affirmed that the undated document signed only
by the Claimant and his agent, which had been submitted by the Claimant and did
not contain the handwritten clauses in question, was only a pre-draft of the
relevant contract that had been given to the Claimant at the beginning of the
negotiations.
13.
Finally, the Respondent stated that the Claimant had not received a copy of the
relevant contract due to the fact that he had never asked for its delivery.
14.
On account of all the above, the Respondent requested that the Claimant based
on the relevant employment contract should immediately resume duty with it.
15.
In case that the Claimant should fail to return to the club, the Respondent claimed
the payment of compensation in the amount of EUR 1,400,000 for breach of
contract and the imposition of sporting sanctions, in particular, the Claimant’s
suspension for 6 months.
16.
In this regard, the Respondent stated that both the allegedly contractually
stipulated amount of compensation for the subsequent transfer of the Claimant to
a new club, i.e. the relevant buy-out clause in the amount of EUR 1,000,000, and
the Claimant’s contractually assured remuneration should be taken into
consideration for the calculation of the compensation to be paid by the Claimant
for breach of contract.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyze whether it was
competent to deal with the matter at stake. In this respect, it referred to art. 18
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Player Xxx, Xxx / Club Xxx, Xxx
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Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 30 May 2007, as a consequence the Chamber concluded that
the revised Rules Governing Procedures (edition 2005) to matters pending before
the decision making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in combination with art. 22 b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a player and a club 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 Xxx player and a Xxx club regarding a
dispute in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players 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 for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed on 18 January 2007 and the claim was
lodged at FIFA on 30 May 2007. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereafter: the Regulations) are applicable to the case at hand as to
the substance.
5.
In continuation, and entering into the substance of the matter, the Chamber took
note that the Claimant, his agent and the Respondent had signed an employment
contract written in Xxx, dated 18 January 2007 and with a duration from that date
until 30 June 2011.
6.
In this regard, the Chamber acknowledged that, on the one hand, the Claimant
requested that it should be established that he had terminated the relevant
employment contract for just cause and, consequently, he should be immediately
released from the employment contract binding him to the Respondent. On the
other hand, the Chamber acknowledged that the Respondent, first of all,
requested that the Claimant based on the relevant employment contract should
immediately resume duty with it.
7.
Taking into consideration the parties’ requests, the Chamber deemed that, first
and foremost, it had to focus on the question whether the relevant contractual
Player Xxx, Xxx / Club Xxx, Xxx
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relationship between the Claimant and the Respondent had to be considered as
valid and, therefore, legally binding for the Claimant or not.
8.
In this respect, the Chamber pointed out that the Claimant requested, in principle,
to be released from the employment contract binding him to the Respondent due
to the fact that he had terminated the relevant employment contract in
accordance with a clause regarding the termination of the contract in case of the
Respondent’s relegation to the second division of the Xxx League. In particular,
the Chamber noted that the Claimant argued that he had not understood the
contents of the said contract written in Xxx, a language that he apparently does
not know and, consequently, he had not been conscious that the said termination
clause, which had allegedly been orally stipulated between the parties, had not
been included in the relevant employment contract.
9.
Moreover, the Chamber observed that the Respondent argued that the Claimant
had been fully aware of all the existing terms of the contract due to the fact that
during the relevant negotiations and the following signing act he had been
accompanied by his players’ agent who allegedly knows English. In particular, the
Chamber acknowledged that the Respondent contested the existence of such a
termination clause at all.
10.
In this regard, the Chamber emphasised that a party signing a document of legal
importance without knowledge of its precise contents, as a general rule, does so
on its own responsibility. As a consequence, the Chamber was of the opinion that
the fact that the Respondent might not have understood the contents of the
relevant document he had signed for language reasons, was irrelevant with
regard to the legal effect of the employment contract.
11.
Furthermore, with regard to the disputed existence of the relevant termination
clause the Chamber referred to art. 12 par. 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber,
in accordance with which a party deriving a right from an alleged fact shall carry
the burden of proof. In this respect, the Chamber established that the Claimant
was not able to prove the existence of such a termination clause.
12.
As a consequence, the Chamber reached the conclusion that the alleged
termination clause could not be taken into consideration as a reason for the early
termination of the contract.
13.
In view of the above, the Chamber decided that the fact that the Respondent had
been relegated to the second division of the Xxx League did not provide for the
Claimant the right to terminate the employment contract.
14.
Finally, the Chamber considered the second reason for the early termination of
the contract put forward by the Claimant, in particular, the fact that allegedly two
Player Xxx, Xxx / Club Xxx, Xxx
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additional terms, i.e. a buy-out clause and special payment terms (cf. point I. 7.),
were added to the contract by the Respondent without his knowledge and
consent and, thus, he had been deceived by the Respondent.
15.
In this regard, the Chamber emphasised that the employment contract binding the
Claimant to the Respondent had to be considered as valid regardless whether the
two above-mentioned additional clauses had been added before or after the
conclusion of the contract and, consequently, had to be considered as valid or not.
In particular, the Chamber determined that therefore it did not have to
pronounce itself with regard to the validity of the two additional clauses in
question.
16.
In conclusion, the Dispute Resolution Chamber decided that the employment
contract as such was still valid and legally binding and, as a consequence, the
Respondent had to respect this contract and to fulfil his contractual obligations
towards the Claimant.
***
Player Xxx, Xxx / Club Xxx, Xxx
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Xxx, is rejected.
2.
It is established that there is a valid contractual relationship between the
Respondent, Xxx, and the Claimant, Xxx.
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
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
General Secretary
Encl.
CAS directives
Player Xxx, Xxx / Club Xxx, Xxx
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