Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 February 2020,
in the following composition:
Om ar Ongaro (Italy), Deputy Chairman
Jérôm e Perlem uter (France), member
S téphane Burchkalter (France), member
on the matter between the player,
Leandro Gabriel Torres , Argentina,
represented by Mr Javier Tebas Llanas
as Claimant / Counter-Respondent
and the club,
FC Dy nam o Bres t, Belorussia
as Respondent / Counter-Claimant
and the club,
Club Atlético de S an Luis , Mexico
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 21 March 2017, the Argentinian player, Leandro Gabriel Torres (hereinafter: the
player) born on 4 November 1988, signed an employment contract (hereinafter:
contract) with the Belarusian club, FC Dynamo Brest (hereinafter: FC Dynamo) valid
as from the date of signature until 20 March 2018.
2.
According to clause 2.18 of the contract, the player shall not “enter into
negotiations regarding a transfer to any other club […] during the effective period
hereof without the permission of [FC Dynamo]. Should [the player] get any proposal
to conduct negotiations from any third party, [the player] shall immediately inform
[FC Dynamo] in writing about such proposal”.
3.
In accordance with clause 2.25 of the contract, the player shall “not later than one
month before the expiration of the effective period hereof, inform [FC Dynamo] in
writing about his decision on either to continue or to terminate the employment
relationship”.
4.
Clause 3.11 of the contract stipulated the following: “The employee has the right
to unilaterally terminate the contract after 17.07.2017.”
5.
By means of clauses 4 and 5, the player was entitled to a monthly salary of USD 585
“according to staff pattern”, which equals USD 500 “net”, to be paid on “the 10th
day of every month in the currency of” Belarus.
6.
Clause 16 of the contract stipulated the following: “This Contract shall not be
terminated unilaterally neither by the Employee nor by FC “Dynamo Brest” during
the football season except for the cases specified in paragraph 18 hereof. In case
of early termination of this Contract by either party, FC “Dynamo Brest” shall
inform the Association within 7 (seven) days stating the reasons for early
termination of this Contract. In case of early termination of this Contract by the
Employee, the Employee shall pay to the Employer compensation for early
termination in amount of 500 000 (five hundred thousand) Euro.
7.
On 1 July 2017, the player and FC Dynamo signed an “Additional Agreement No. 1
to the contract dd. March 21” (hereinafter: additional agreement).
8.
By means of clause 1 of the additional agreement, the parties agreed to amend the
validity of the contract to 21 March 2017 until 30 June 2019.
9.
By means of clause 4 of the additional agreement, the player was entitled to a
monthly salary of USD 2,907 “according to staff pattern”, which equals USD 2,500
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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“net in accordance with the official exchange rate fixed by the national bank of the
Republic of Belarus”.
10.
By means of the final clause of the additional agreement, the parties agreed that
“other provisions of the employment contract […] shall remain unchanged”.
11.
On 13 November 2017, FC Dynamo bought the player flight tickets for him to travel
on 7 December 2017 to Argentina, as well the return to Belarus on 14 January 2018.
12.
On 12 December 2017, the player informed FC Dynamo in writing that it was his
“intention” to terminate the employment relationship as per 14 January 2018 in
accordance with Clauses 2.25 and 3.11 of the contract. In said letter, the player
further requested FC Dynamo to provide a “letter of freedom” as from 14 January
2018.
13.
On 12 January 2018, the player sent an email to FC Dynamo, reminding it that the
“rescission will be effective next January 14th”. The player further held that “in
order that you don’t incur in an irregular situation blockade, I request you to send
to this email in the next 48 hours: […] Letter of freedom”. Finally, the player
requested FC Dynamo to accept “in the FIFA ITMS system any transfer that provides
a valid contract with [the player] signed after January 13th”.
14.
On 15 January 2018, the player informed FC Dynamo via email that the contract
had been terminated on 14 January 2018. In said email, the player requested the
“letter of freedom”, as well as accepting “in the FIFA ITMS system any transfer that
provides a valid contract with [the player] signed after January 13th”.
15.
On 16 January 2018, FC Dynamo informed the player via email that it “has been
participating in Belorussian Championship starting from 13th of January”. The
Respondent/Counter-Claimant further reminded the player that, in accordance
with clause 16 (2) of the contract, “this contract shall not be terminated […] during
the football season”. Thus, as per FC Dynamo “the contract shall not be terminated
unilaterally by [the player]”.
16.
On 15 January 2018, the player signed an employment contract with the Mexican
club, Atletico San Luis (hereinafter: San Luis) valid as from the date of signature
until 31 December 2018.
17.
By means of Clause 4.1 of the employment contract signed between the player and
San Luis, the player was entitled to the total amount of USD 60,000, payable in 11
instalments “as from January”.
18.
On 18 January 2018, San Luis requested the player’s International Transfer
Certificate (ITC) via the Transfer Matching System (TMS).
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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19.
On 31 January 2018, the Mexican League informed San Luis that the ITC request as
regards the registration of the player with San Luis was rejected by the Belarussian
Football Association alleging that the player “had a valid contract with [FC
Dynamo] until 30 June 2019”.
20.
On 31 January 2018, FC Dynamo contacted San Luis with regard to the ITC request
of the latter regarding the registration of the player. As per FC Dynamo, the 2018
season in Belarus began on 13 January 2018. Thus, as per FC Dynamo, the player’s
unilateral contract termination as per 14 January 2018 violated Clauses 2.18 and 16
of the contract.
21.
Furthermore, in said letter, FC Dynamo reminded San Luis of its obligations under
art. 18 para. 3 of the FIFA Regulations on the Status and Transfer of Players, namely
that it must inform the player’s current club in writing before entering into
negotiations with the player. As per FC Dynamo, neither the player nor San Luis
had contacted FC Dynamo regarding negotiations.
22.
On 28 February 2018, the Single Judge of the FIFA Players’ Status Committee
authorized the Mexican Football Federation (FMF) to provisionally register the
player for San Luis. In said decision, the Single Judge of the FIFA Players’ Status
Committee inter alia emphasized that “at no point during the ITC procedure has
[FC Dynamo] requested the return of the player […] These circumstances led the
Single Judge to conclude that [FC Dynamo] does not appear to be genuinely and
truly interested in maintaining the services of the player anymore, but is rather
looking for financial compensation”.
23. The player lodged a claim against FC Dynamo in front of FIFA for breach of contract,
and requested the amount of USD 19,500 corresponding to “the salary he did not
receive [from San Luis] during the period of professional inactivity provoked by the
contractual breach [of FC Dynamo]”, as follows:
-
USD 6,500 for the period “15 January 2018 – 31 January 2018;
USD 13,000 for the period “1 February 2018 – 1 March 2018”.
24.
Furthermore, the player requested the imposition of sporting sanctions on FC
Dynamo.
25.
The player held that, as per the contract signed with San Luis, he was entitled to
the total amount of “USD 143,000 payable in 11 monthly instalments”. As per the
player, this amount corresponded to both the amount he is entitled to under “the
employment contract as well as the amount corresponding [to him] for image
rights”.
26.
The player argued that he terminated the contract with FC Dynamo correctly in
accordance with clause 3.11 of the contract.
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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27.
According to the player, FC Dynamo’s sole objective in this matter was to obstruct
the player’s career, following his rightful unilateral contractual termination with FC
Dynamo.
28.
Upon having being informed that the player had initiated proceedings against it,
FC Dynamo filed a counterclaim against the Player and San Luis. FC Dynamo
underlined that it had always complied with its contractual obligations vis-à-vis the
player.
29.
In this context, FC Dynamo held that it was clear that it was both its intention and
the player’s to continue their employment relationship, as is demonstrated by the
signing of the additional agreement on 1 July 2017. However, as per FC Dynamo,
“the player terminated the […] contract unexpectedly and stopped to perform his
labour duties [and] never returned to [FC Dynamo]”.
30.
In continuation, FC Dynamo made particular reference to clause 16 of the contract
and highlighted that the contract shall not be terminated during the football
season. In this regard, FC Dynamo held that the player terminated the contract on
14 January 2018, whereas the football season in Belarus started on 13 January 2018.
31.
In continuation, FC Dynamo referred to art. 16 of the FIFA Regulations on the Status
and Transfer of Players, and stated that a contract cannot be unilaterally
terminated during the course of a season. Furthermore, FC Dynamo referred to the
player’s termination notice of 12 December 2017, and held the following:
-
The termination notice contained no reasons or clarifications as to the
termination;
The notice was not signed by the player or given by the player;
The notice was signed by the player’s lawyer, however “no confirmation of his
authorities as a representative [of the player] were provided thereof”.
32. Consequently, as per FC Dynamo, the unilateral termination was not properly
executed by the player.
33. In addition, FC Dynamo stated that, prior to his termination notice, the player “never
demonstrated his intention to terminate the contract and/or claimed infringement
of his labour rights as [FC Dynamo’s] employee”. In this context, FC Dynamo
underlined that the player never sought “any agreement […] as to the termination
of the contract […] and no just cause to terminate the contract has ever occurred”.
34. Moreover, according to FC Dynamo, the player entered into contractual
negotiations and signed an employment contract with San Luis while he was still
employed by FC Dynamo. As per FC Dynamo, even if it were considered that the
contract was terminated on 14 January 2018, it should be highlighted that the player
signed with San Luis on the next day.
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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35. According FC Dynamo, the behaviour from the player and San Luis demonstrate that
they negotiated “within the duration of the contract between [the player and FC
Dynamo]”.
36. In continuation, FC Dynamo referred to the letter dated 31 January 2018 it sent to
San Luis, and held that San Luis had not replied to said letter.
37. Given the above, FC Dynamo argued that it is entitled to the amount of EUR 500,000
as compensation for breach of contract, which it believes to comply “with common
practice in football at the global level”, and submitted that San Luis should be held
jointly and severally liable
38.
Finally, FC Dynamo held that the contract was unilaterally terminated within the
protected period.
39.
In his replica, the player held that as per the UEFA calendar, the season in Belarus
commenced “in the month of March”.
40.
With respect to FC Dynamo’s position that the player and San Luis had negotiated
while the employment contract with FC Dynamo was still valid, the player argued
that FC Dynamo had not provided any evidence in this regard.
41.
The player then referred to art. 18 par. 3 of the FIFA Regulations on the Status and
Transfer of Players and stated that “a professional shall only be free to conclude a
contract with another club if his contract with the present club […] is due to expire
within six months”. In light of this, the player argued that he was free to negotiate
with another club, given that the contract was going to expire on 14 January 2018.
42.
In its duplica, FC Dynamo reiterated that the 2018 season in Belarus commenced on
13 January 2018, and maintained that the player never denied having negotiated
with San Luis prior to unilaterally terminating the contract.
43.
In its comments to the matter at hand, San Luis firstly held that the it was only
approached by the player on 10 January 2018 “as a free agent, presenting [San Luis]
with a copy of his employment contract and the termination letter dated 12
December 2017”.
44.
According to San Luis, it was informed by the player that FC Dynamo had never
responded to the termination notice dated 12 December 2017, and pointed out
that FC Dynamo never responded with regard to the player’s “specific requests” of
12, 15 and 16 January 2018.
45.
In continuation, San Luis referred to FC Dynamo’s correspondence dated 16 January
2018 sent to the player, and argued that FC Dynamo never requested the player to
return to FC Dynamo and resume his duties.
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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46.
Moreover, with regard to the correspondence by FC Dynamo dated 31 January
2018, San Luis pointed out that the again FC Dynamo failed to request the return
of the player.
47.
Finally, San Luis referred to the decision of 28 February 2018 by the Single Judge of
the FIFA Players’ Status Committee, and highlighted that such decision emphasized
that FC Dynamo had not requested the player to return.
48.
Subsequently, San Luis argued that it cannot be held jointly liable for damages
“because the unilateral termination was properly executed”. In this regard, San Luis
held that, by means of the termination notice dated 12 December 2017, FC Dynamo
had full knowledge and consciousness of the termination will of the player.
Moreover, as per San Luis, Clause 3.11 of the contract “does not specify the form of
the notice for termination”.
49.
According to San Luis, given that the player properly exercised his right to
terminate, San Luis cannot be reasonably be found to have induced the player to
breach the contract.
50.
With regards to FC Dynamo’s argument that the 2018 season started on 13 January
2018, San Luis pointed out that the return flight ticket for the player, and bought
by FC Dynamo, was scheduled for 14 January 2018.
51.
Given the above, San Luis determined that it did not play a role in the player’s
decision to terminate the contract with FC Dynamo and that, as a consequence, no
sporting sanctions can be imposed on it.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 24
January 2018. Taking into account the wording of art. 21 of the 2019 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
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 par. 2 in
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition January 2020), the Dispute Resolution Chamber is competent to
deal with the matter at stake, which concerns an employment-related dispute with
an international dimension between an Argentinian player, a Belarusian club and
a Mexican club.
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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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 par. 2 of the Regulations on the Status and Transfer of Players
(edition January 2020), and considering that the present claim was lodged on 24
January 2018, the January 2018 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. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and documentation on file. However, the DRC emphasised that in
the following considerations, it will refer only to the facts, arguments, and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
The members of the Chamber started by acknowledging that the player and FC
Dynamo executed the contract on 21 March 2017, which was valid until 20 March
2018. Further, the DRC noted that the player and FC Dynamo executed on 1 July
2017 the additional agreement, by means of which the contract was amended to
both extent its term until 30 June 2019 and to change the player’s remuneration.
6.
To this extent, the DRC particularly observed the contents of the final clause of the
additional agreement, which established that the clauses of the contract remained
unchanged except for the amendments outlined above.
7.
Additionally, the Chamber gave due consideration to the fact that the player
terminated the contract on 14 January 2018 in writing, and that on 15 January 2018
the player and San Luis executed an employment contract valid until 31 December
2018. Moreover, is was noted by the Chamber that San Luis requested the player’s
ITC on 18 January 2018 and that by decision of the Single Judge of the Players’
Status Committee of 28 February 2018, the player’s provisional registration with
San Luis was allowed.
8.
In continuation, the Chamber noted that the player lodged a claim against the
Respondent for breach of contract, and requested the payment of USD 19,500 as
compensation corresponding to the salary the player did not receive from San Luis
during the period of professional inactivity “provoked by the contractual breach
[of FC Dynamo]”, i.e. the period during which the player’s registration was disputed
by San Luis and FC Dynamo.
9.
Thereafter, the members of the Chamber took note of the reply and counterclaim
of FC Dynamo, who alleged that the player could not terminate the contract during
the course of a season, and therefore should pay FC Dynamo compensation for
breach of contract in the amount of EUR 500,000 “and interests”. As such, it was
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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also noted by the Chamber that FC Dynamo requested that San Luis be deemed
jointly and severally liable for the payment of such compensation.
10.
The Chamber then acknowledged the contents of San Luis’ position on the matter,
according to which it bore no responsibility for the termination of the contract
between the player and FC Dynamo, which, as per San Luis, had taken place in
conformity with the contract’s relevant stipulations.
11.
From the outset, the Chamber established that the centre of the dispute at hand
concerns whether the player was contractually entitled to terminate the contract
on 14 January 2018. Accordingly, the Chamber reverted to clause 3.11 and 16 of the
contract, and noted that neither had been modified by virtue of the additional
agreement, as per the wording of its last clause.
12.
To this extent, the DRC then proceeded to examine in detail the tender of both
aforementioned clauses, and concluded that due to the unambiguous wording of
clause 3.11, the player was entitled to unilaterally terminate the contract as from
17 July 2017 without any consequences.
13.
Additionally, the Chamber took due consideration to the fact that on 13 November
2017, FC Dynamo bought the player flight tickets for him to travel on 7 December
2017 to Argentina, as well the return to Belarus on 14 January 2018, therefore
allowing the player to be absent during this period. In light of such circumstances,
the Chamber found that FC Dynamo could not invoke the fact that the season in
Belarus had started on 13 January 2018 as an impeditive of the player’s entitlement
to termination, as directed above.
14.
Consequently, the Chamber concluded that the player terminated the contract with
just cause, and having established that it then turned its attention to the question
of the consequences of the termination.
15.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the counterclaim of FC Dynamo should be rejected, as no breach was
committed by the player.
16.
With regards to the request for compensation by the player from FC Dynamo, the
Chamber noted that it reverts to salaries which were not paid by San Luis, therefore
arising from the employment agreement between San Luis and the player, to which
FC Dynamo was not a party.
17.
As such, the Chamber was eager to emphasize that any claims arising from the
aforementioned contract between San Luis and the player should be directed to
the parties thereto.
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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18.
In light of the foregoing, the Chamber decided that San Luis did not have standing
to be sued by the player in relation to salaries allegedly unpaid by San Luis, and
therefore decided that the claim of the player for compensation should be rejected
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Leandro Gabriel Torres, is partially
accepted.
2.
It is established that the Claimant / Counter-Respondent, Leandro Gabriel Torres, was
contractually entitled to terminate the employment contract with the Respondent /
Counter-Claimant, FC Dynamo Brest.
3.
The Claimant / Counter-Respondent’s claim for compensation is rejected.
4.
The counterclaim of the Respondent / Counter-Claimant, FC Dynamo Brest, is
rejected.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, FIFA may decide, at
the request of a party within five days of the notification of the motivated decision, to
publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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. 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.
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Leandro Gabriel Torres, Argentina / FC Dynamo Brest, Belorussia / Club Atlético de San Luis, Mexico
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