Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 February 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Zola Majavu (South Africa), member
on the claim presented by the player,
S,
as Claimant/Counter-Respondent
against the club,
X,
as Respondent/Counter-Claimant
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 14 September 2006, the player, S (hereinafter: “Claimant/CounterRespondent” or “player”) and the club X (hereinafter: “Respondent/CounterClaimant” or “club”) signed a “pre-agreement” (hereinafter: “preagreement”) concerning a future employment contract beginning on 14
September 2006 and ending on 30 May 2007.
2.
According to the pre-agreement, the player had the right to receive the total
amount of USD 150,000, made up of the following amounts:
- monthly salary of USD 15,000 gross payable as of 14 September 2006 until 30
- May 2007,
- an unspecified amount of USD 30,000,
- school fees of 30,000.
3.
Furthermore, art. 1 lit. k) of the pre-agreement provided as follows: “In case
team arises to first division the player will continue play with club at the same
contract with all terms and conditions with the total value of USD 450'000
after bussing all medical test.”
4.
According to art. 1 lit. l) of the pre-agreement “Should in case the club culifide
to the first division the player will continuo with club with the same condition
after he pass the medical test.”
5.
In addition, art. 1 lit. m) of the pre-agreement states that “The first party will
pay the second party 30,000 for the School.”
6.
On the same day, the player and the club signed an employment contract
(hereinafter: “employment contract”) valid as of 1 September 2006 until 30
May 2007.
7.
According to the employment contract, the player was to receive, inter alia,
the total amount of USD 300,000, made up of the following amounts:
- USD 100,000 signing-on fee,
- USD 100,000 payable in the middle of the employment contract’s duration,
- USD 100,000 after the “CUP”,
- three sets of return tickets (D – P – D) in business class for him, his
wife and his three children,
- furnished accommodation,
- a car.
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8.
Furthermore, art. VII par. 6 [Sickness and Accident] of the employment contract
states that “The Player must be insured by the Club against sickness and
accidents. Insurance must include coverage for any matches and training
sessions with national representative teams, in accordance with FIFA’s
regulations governing this matter. Any supplementary insurance is at the
Player’s expense.”
9.
According to the player, the employment contract was signed between the
parties in case the club would be promoted to the X first division. In that case,
the employment contract would be prolonged for another year with the same
conditions, provided that the player successfully passed the medical tests.
10.
On 27 July 2007, the player contacted FIFA arguing that the club breached the
employment contract without just cause. The player explained that he had
been injured while playing for the club in a match against the Q national team
on 17 April 2007.
11.
The player pointed out that it was a relatively serious tendon injury and that
according to the medical authorities he was likely to be unavailable until the
end of September 2007, from which date onwards he would be fit to play
again according to the medical authorities.
12.
In the meantime, on the pretext of the player’s inability to pass the medical
tests, the club had refused him the second year of the employment contract
and had informed him of the expiry of the employment contract they had
signed.
13. Consequently, the Claimant/Counter-Respondent requests, inter alia, that the
Respondent/Counter-Claimant be ordered to provide him with his
remuneration and accompanying benefits as from 1 June 2007, the date from
which he had not been paid, until the date he recovered from his injury, the
date from which he was ready to play again.
14. With regard to medical insurance as agreed in the employment contract, the
player claims that it would appear that the club had not provided for a medical
insurance on his behalf and must therefore pay damages in this respect.
15.
As a result and in the light of the club’s breach of contract, the player claims
the total amount of USD 630,000 as follows:
- USD 15,000 monthly gross salary for each month as from 1 June 2007,
- USD 450,000 compensation for the season 2007/2008.
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16. Furthermore, the player asked to be reimbursed the amount of 30,000 for
school fees of his children to be paid before 4 September 2007, the date on
which the school year commenced.
17. In its response, the X club contests the allegations of the player and requests
that the player be ordered to pay all the costs of the proceedings.
18. The Respondent/Counter-Claimant mentions that the pre-agreement signed by
the parties is null and void. The Respondent/Counter-Claimant explained that
in accordance with art. 1 lit. b) of the pre-agreement, “The full terms and
conditions of the above-mentioned future ‘Football Players Contact ‘ will be
specified in the same Contract that will be signed by the Parties immediately
after that the Player will have passed the required medical tests and
examinations with the medical staff decided by the Club as well as the medical
examination requested by the State of country Q for the acquisition of a work
resident permit according with the country Q Labour Law. Consequently, the
Player expressly recognises and accepts the Club’s right to make any necessary
investigation, studies, tests and/or medical examination himself. ”
19. The Respondent/Counter-Claimant argued that this clause was necessary,
because in order to be able to work in country Q it is obligatory to undergo a
medical examination and to obtain a visa.
20. Furthermore, the Respondent/Counter-Claimant asserted that art. XIV par. 1 of
the employment contract stipulates that “The invalidity of individual contract
clauses does not affect the validity of the rest of the Contract. All previous
agreements between the Club and the Player are hereby cancelled” and
therefore only the employment contract signed by the parties is valid.
21. Moreover, the Respondent/Counter-Claimant claimed that even if the preagreement was valid, the continuation of the pre-agreement depended on two
conditions according to art. 1 lit. k), namely that the club was promoted to the
first division, which took place, but the player did not pass all medical tests
because of his injury.
22. In addition, the Respondent/Counter-Claimant asserted that it respected all its
contractual obligations towards the Claimant/Counter-Respondent according
to the employment contract. The Respondent/Counter-Claimant provided
receipts signed by the player, showing that it paid the player USD 300,000 in
three instalments of USD 100,000 each on 17 September 2006, 28 February
2007 and at the end of the contract. The club explained that the receipt for the
final payment, signed by the player, indicates that the payment corresponds to
the end of the employment contract and that the player therefore
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acknowledged that the employment contract would expire at the end of the
season 2006/2007.
23. Consequently, the Respondent/Counter-Claimant asserts that the contractual
relationship was terminated on 30 May 2007.
24. In continuation, the Respondent/Counter-Claimant stated that it paid the
player a salary of USD 15,000 per month during the period of 16 September
2006 until the end of May 2007 in the total amount of USD 135,000 and
submitted receipts signed by the player. However, the club explained that such
salary was incorrectly paid to the player, which constitutes an unjustified gain.
The Respondent/Counter-Claimant submitted that they provided the player
with a villa and a car and provided a receipt of 30,000 paid on 2 October 2006
to the player for school fees as an additional benefit.
25. With regard to the player’s claim for damages relating to the alleged absence
of a medical insurance, the Respondent/Counter-Claimant stated that it paid all
costs of his medical treatment, operation, medicine, physiotherapy, etc. and
that it also paid the player the amount of 36,363 for other medical treatment
and also provided airline tickets.
26. As a consequence, the Respondent/Counter-Claimant requests that the
Claimant/Counter-Respondent
be
ordered
to
reimburse
the
Respondent/Counter-Claimant the amount of USD 135,000 for the salary
received without any legal entitlement and thus constitutes an illegitimate
gain.
27. In his replica, the Claimant/Counter-Respondent maintained his previous
position and rejected the club’s counterclaim. He argued that art. XIV par. 1 of
the employment contract, which stipulates that “… All the preceding contracts
signed by the club and the player are hereby null and void” is not applicable in
this case. He explains that the term “preceding” is ambiguous, because both
contracts were signed on the same day, namely 14 September 2006, so one
contract does not precede the other.
28. Furthermore and with regard to the club’s counterclaim, the player explained
that the salary he received from the club does not constitute an unjustified
gain, but was only in strict accordance with the employment contract.
29. In its duplica, the club stressed that if the pre-agreement was signed on the
same day as the employment contract, it was signed before and is therefore
earlier because in several clauses, such as in art. 1 lit. d), lit. f) and lit. h) it refers
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to the future “Football Player’s Contract”. After the player passed the medical
tests, which took place directly after the signature of the pre-agreement, the
pre-agreement became null and void.
30. In his final statement regarding the club’s counterclaim, the player did not
make any additional comments.
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 27 July 2007. Consequently, the 2005 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter
at hand (cf. article 21 par. 2 and 3 of the Procedural Rules, edition 2008, in
combination with 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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2009) 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 and a club.
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 2008 and 2009) and considering that the present claim was lodged on 27
July 2007, the 2005 edition of the 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. The
members of the Chamber started by acknowledging the above-mentioned
facts and documentation contained in the file.
5.
In this respect, the Chamber held that, considering the position of the parties
in the present matter, it had to be established as to whether the
Respondent/Counter-Claimant had acted in breach of the employment contract
and, if so, it would be necessary to determine the financial and/or sporting
consequences for breach of contract.
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6.
To that regard, the members of the Chamber deemed appropriate to gather
an overview of the events leading to the present dispute. In this respect, the
Dispute Resolution Chamber firstly took due note that, on 14 September 2006,
the parties had signed a pre-agreement valid until 30 May 2007 stipulating a
prolongation option for one season with the condition that the club’s team
qualifies for the first division and that the player passes all medical tests. On
the same day, the parties signed an employment contract valid as from 1
September 2006 until 30 May 2007, according to which, inter alia, all previous
agreements between the parties are deemed to be cancelled.
7.
In this respect, the members of the Chamber took due note that, on the one
hand, the Claimant/Counter-Respondent demands that the option clause of
the pre-agreement is to be declared valid and hence is of the opinion that the
employment relationship was prolonged for another year. The
Claimant/Counter-Respondent argued that the Respondent/Counter-Claimant
was still bound by the employment contract it signed with the player after 30
May 2007 and breached the contract without just cause, since the
Respondent/Counter-Claimant had refused the contractual continuation for
the second season and the latter did not fulfil its contractual obligations as of
1 June 2007. In this context, the Claimant/Counter-Respondent requests that he
shall be awarded the total amount of USD 630,000 plus 30,000 school fees as of
1 June 2007, as well as damages for medical insurance which the club allegedly
did not obtain for the player.
8.
The members of the Chamber acknowledged that, on the other hand, the
Respondent/Counter-Claimant asserted that it fulfilled its contractual
obligations towards the player and that the pre-agreement is to be declared
invalid, since the employment contract states that all previous agreements are
cancelled. Furthermore, the Respondent/Counter-Claimant claims that even if
the option clause of the pre-agreement was to be considered valid, one of the
two requirements to prolong the employment relationship was not met, which
was that the player was injured and did not pass the medical test. The
Respondent/Counter-Claimant in his position stated that, consequently, it was
in any case no longer contractually bound to the Claimant/CounterRespondent after 30 May 2007. In addition, the Respondent/Counter-Claimant
claims that it voluntarily paid the Claimant/Counter-Respondent the amount of
USD 135,000 in excess of its contractual obligations while the player did not
play with the club anymore and therefore lodged a counter-claim against the
player and requested to have the said amount reimbursed Claimant/CounterRespondent.
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9.
In view of the argumentation put forward by the Claimant/CounterRespondent and the Respondent/Counter-Claimant, the members of the
Chamber deemed that, in order to be able to establish whether the parties had
still been contractually bound after 30 May 2007, it was crucial to examine the
aforementioned documents and to establish whether the relevant option
clause in the pre-agreement to prolong the contractual relationship for
another season is to be considered valid or not.
10.
In this respect, the Chamber took due note that it was uncontested by the
parties that, on 14 September 2006, they had signed a pre-agreement and on
the same day an employment contract being valid as from 1 September 2006
until 30 May 2007.
11.
Furthermore, the Dispute Resolution Chamber took due note that it was
undisputed by the parties that the club fulfilled all its obligations towards the
player until the date of expiry of the employment contract, i.e. until 30 May
2007.
12.
In continuation, the members of the Chamber took into account that art. 1 lit.
k) of the pre-agreement states that: “In case team arises to first division the
player will continue play with club at the same contract with all terms and
conditions with the total value of USD 450'000 after bussing all medical test.”
Furthermore, according to art. 1 lit. l) of the pre-agreement: “Should in case
the club culifide to the first division the player will continue with club with the
same condition after he pass the medical test.”
13.
The Chamber further took into account that art. XIV par. 1 of the employment
contract states that “All previous agreements between the Club and the Player
are hereby cancelled.”.
14.
In this context, the DRC analysed that even though the pre-agreement and
employment contract were signed on the same day, the pre-agreement
mentions in several clauses the “future Football Player’s Contract” which thus
implies that it was signed prior to the employment contract. In continuation,
the Chamber referred to art. XIV par. 1 of the employment contract, according
to which “All previous agreements between the Club and the Player are
hereby cancelled.”.
15.
In this context, the members of the Chamber took due note that both the preagreement and the employment contract were signed by the player and the
club and thus, they were aware by signing the employment contract, of which
art. XIV par. 1 is a component, that they had put an end to all previous
agreements.
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16.
In light of the above, the Chamber concurred that by signing the employment
contract the parties had cancelled the legal effects of the pre-agreement. As a
result, the prolongation clause contained in the pre-agreement cannot be
validly applied.
17.
As a result, on account of the aforementioned considerations the Dispute
Resolution Chamber concluded that the employment relationship between the
Claimant/Counter-Respondent and the Respondent/Counter-Claimant ended
on 30 May 2007, i.e. cf. the date of expiry of the employment contract.
18.
In continuation, the DRC turned its attention to the argument of the
Claimant/Counter-Respondent that the Respondent/Counter-Claimant had not
taken out any medical insurance on his behalf as agreed in the employment
contract on which basis he claims that the club must pay damages.
19.
In this respect, the members of the Chamber noted that the
Respondent/Counter-Claimant stated that all costs of the player’s medical
treatment, surgery, medicine as well as physiotherapy were covered and paid
for by the club. Following the statements of the Respondent/Counter-Claimant,
the Claimant/Counter-Respondent did not contest such allegations and
therefore the members of the Chamber concluded that the Claimant/CounterRespondent implicitly admitted the club’s statements.
20.
On account of all of the above, the Dispute Resolution Chamber decided that
the Respondent/Counter-Claimant did not act in breach of the employment
contract. Therefore, the members of the DRC rejected the Claimant/CounterRespondent’s claim for breach of contract and compensation for breach of
contract.
21.
Finally, the members of the Dispute Resolution Chamber turned to the
counterclaim of the club and its arguments. The club argued that it paid to the
player, in addition to the financial benefits included in the employment
contract, a monthly salary of USD 15,000 for the period as from 16 September
2006 until the end of May 2007 as stipulated in the pre-agreement. Therefore,
the club explained that the salary of USD 135,000 was unwarrantedly paid to
the player, since he did not play for the club due to his injury and thus the sum
paid constitutes an unjustified gain.
22.
In this respect, the members of the Chamber analysed that no reasons have
been put forward by the club X explaining or justifying that the said payment
of USD 135,000 was unjustified. The club has merely indicated that it agreed to
pay the relevant sum on a voluntary basis to the player and that it claimed only
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at a later stage that there was no legal entitlement of the player to receive
such additional amount.
23.
In view of the above, the DRC concluded that the club was fully aware of the
payments of USD 135,000 to the player even though he was not playing for the
club and stressed the voluntary character of such payment. Therefore, the
members of the Chamber decided that the club’s counterclaim relating to the
reimbursement by the player of the amount of USD 135,000 must be rejected.
24.
Finally, the Dispute Resolution Chamber held that the Claimant/CounterRespondent’s claim pertaining to legal costs is rejected in accordance with art.
15 par. 3 of the Procedural Rules and the Chamber’s respective longstanding
jurisprudence.
25.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that the claim of the Claimant/Counter-Respondent and
the counterclaim of the Respondent/Counter-Claimant are rejected.
*****
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent/Counter-Respondent, S, is
rejected.
2.
The counterclaim of the Respondent/Counter-Claimant/Counter-Respondent, X,
is rejected.
*****
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Note relating to the motivated decision (legal remedy):
According to art. 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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