F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Todd Durbin (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the club, Club G, from country B as Claimant against the player, Player M, from country A as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Todd Durbin (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the club, Club G, from country B as Claimant against the player, Player M, from country A as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 16 February 2009, Player M, from country A (hereinafter: the Respondent) and Club G, from country B (hereinafter: the Claimant), concluded an employment contract (hereinafter: the contract) valid as from the date of signing until 31 December 2009. 2. On the same date, the Claimant and the Respondent also signed an addendum to the abovementioned contract (hereinafter: the addendum), in accordance with which the Respondent was entitled to a monthly salary of currency of country B 259,100 (approx. USD 145,000). 3. The parties signed the contract and the addendum as a consequence of a loan agreement (hereinafter: the loan agreement) concluded between the Claimant and Club R on 16 February 2009, by means of which the Respondent was loaned to the Claimant for the period of one country B football season, i.e. until 31 December 2009. 4. Prior to the signing of the loan agreement, on 10 February 2009, the Respondent and Club R had agreed, through a private agreement, the Respondent’s transfer on a loan basis to a third club until 31 December 2009. Clause 5 of such agreement stipulated that after 31 December 2009, if a third club would wish to hire the Respondent on a definitive basis, such club or the Respondent himself would have to pay a compensation in the amount of USD 1,000,000 to Club R. The obligation to pay the compensation could be undertaken by the football club or by the third party, for which the employee wished to continue his football career. 5. Clause 3 of the loan agreement indicated that “the player [the Respondent] is obliged to fulfill his labour liabilities in Club R after the expiration of the terms of employment contract with Club G [the Claimant]”. 6. Clause 4 of the loan agreement established that “the player [the Respondent] is obliged during the period of the employment contract with Club G [the Claimant] not to sign any contracts with other football clubs without Club R’s acceptance, and also to fulfill the conditions of the present contract and primarily signed employment contract”. 7. Clause 5 of the loan agreement stated that: “the employment contract between the player [the Respondent] and Club R [the Claimant] must be cancelled since 31.12.2009 and the player must be discharged due to expiration of the terms of the employment agreement”. 8. Clause 8 of the addendum established: “Club G [the Claimant] is entitled to enter into a new employment agreement with the player [the Respondent] for a period of 3 years, by paying to the player an amount in domestic currency equivalent to EUR 1,500,000 (…) with an agreed annual remuneration of a maximum of USD 1,400,000 for the first year, USD 1,500,000 for the second year and USD 1,600,000 for the third year.”. 9. Additionally, clause 8.1 of the addendum stated: “In the event Club G [the Claimant] chooses to enter into a new employment agreement pursuant to item 8 hereon, the player [the Respondent] is required to terminate his agreement with Club R as he is allowed to do pursuant to clause 5 of the agreement entered into by and between Club R and the Player on February 10th 2009”. 10. On 15 April 2010, the Claimant lodged a claim in front of FIFA alleging that the Respondent had unilaterally breached the contract by failing to sign the definitive employment contract in breach of clause 8 of the addendum. Consequently, the Claimant requested the following: - USD 6,546,500 corresponding to the stipulated salaries for the entire period of the new employment contract plus the signing fee (USD 4,500,000 + EUR 1,500,000); - USD 1,000,000 for moral and sporting damages; - default interests at the rate of 5% p.a. over the due amount since 1 January 2010. 11. The Claimant explained that at the end of the loan period, in December 2009, it decided to exercise the option provided in clause 8 of the addendum and therefore sign the definitive employment agreement with the Respondent, which had already been negotiated between the parties. Consequently, the Claimant informed the Respondent of such decision and asked for the account details in order to pay the amount of EUR 1,500,000 as agreed upon in the addendum. According to the Claimant, the Respondent never replied and left the Claimant without any notice. 12. On 29 December 2009, the Claimant filed an official claim before a country B Labour Court requesting the fulfillment of the contract from the Respondent, and deposited the amount of EUR 1,500,000 at the Labour Court’s order on behalf of the Respondent “having requested for the player [the Respondent] to be officially notified that such amount was at his entire disposal”. The Claimant added that said amount was at the Respondent’s disposal as from 29 December 2009 until February 2010. 13. On 4 January 2010, the Respondent informed the Claimant that his federative and economic rights belonged again to Club R, pointing out that he considered clause 8 of the addendum null and void. Later on, on 11 January 2010, Club R informed the Claimant through a letter, that up to 31 December 2009 it had not received any correspondence from the Claimant stating its intention of acquiring the Respondent’s rights. On 20 January 2010, Club C, from country I informed the Claimant about a transfer agreement reached between them and Club R by means of which the Respondent was hired by said Club C. 14. In conclusion, the Claimant considered that it had the right to exercise the option to sign a new employment contract with the Respondent with the only condition of paying the sum of EUR 1,500,000 to the Respondent. According to the Claimant, clause 8 was not a mere contractual clause of unilateral renewal but it was an option right to sign a completely new employment contract on a definitive basis, alleging that such clause had the nature of a “promise of contract”. Therefore, according to the Claimant, the Respondent refused to comply with the promised contract agreed by the parties and so he unilaterally breached the contract. 15. The Respondent, in its response to the claim, firstly stated that clause 8 of the addendum was an invalid unilateral option clause according to the FIFA DRC and CAS jurisprudence, as it allowed one party to force another to contract, contrary to what is established by the principle of “freedom of contract”. 16. In this respect, the Respondent argued that the necessary following criteria of the FIFA DRC jurisprudence, which, according to the Respondent, allow the validity of an unilateral option clause, were not met: a) There must be a gain for the player. b) Financial conditions must expressly be specified. c) Option will be valid if the player constructively accepts said clause. d) The player should expressly accept the activation of the clause. e) The increase in salary must be substantial. f) The option will be exercised within an acceptable deadline before the expiry of the current contract. g) The salary reward deriving from the option right must be defined in the original contract. h) One party will not be at the mercy of the other party with regard to the contents of the employment contract. i) The option will be clearly established and emphasised in the original contract so the player is conscious of it at the moment of signing. 17. Additionally, the Respondent alleged that the Claimant, with its attitude, attempted to induce him to breach the still existing contract with Club R. He referred to the FIFA Regulations on the Status and Transfer of Players, which holds the importance of the maintenance of contractual stability, and indicated that allowing the Claimant to activate a clause which forces an employee to breach a valid employment contract and force him to contract with another party, would be contrary to the principle of contractual stability. 18. Furthermore, the Respondent indicated that the Claimant acted in bad faith by allegedly notifying the Respondent about its wish to enforce the abovementioned clause 8, only two days before he had to return to Club R. The Respondent declared that this communication was made in the vacation period and so he received it on 4 January 2010 only, three days after his employment contract had recommenced with Club R. 19. Moreover, the Respondent stressed the contents of clause 5 of the loan agreement, which established that the Respondent should return to Club R following 31 December 2009, upon the expiration of the contract. 20. Therefore, based on the previous considerations, the Respondent requested FIFA to dismiss the claim of the Claimant declaring him free of any liability and to impose sporting sanctions on the Claimant for its attempt to induce the Respondent to breach his valid contract with Club R. 21. Subsequently, the Claimant replied to the Respondent’s position, reaffirming the legal validity of clause 8 of the addendum as, according to the Claimant, it has “the substantive nature of a true promise of contract (despite missing the necessary formalities) instead of a mere and common “stricto sensu” contractual clause of unilateral contractual renewal”. The Claimant defends that it had the option right to sign the “promised new employment contract freely negotiated, accepted and concluded by all the intervening parties” and that, the fact that the Respondent signed the addendum involves a wish and authorization from the Respondent to sign a new contract with the Claimant. 22. In addition, the Claimant asserted there would have been a financial benefit for the Respondent, contrary to what the latter stated. According to the Claimant, the remuneration agreed on the contract for the season 2009 was a gross remuneration, while the salary established in the “promised new employment contract, clearly established NET salaries”. This is, according to the Claimant, there was a financial benefit in favor of the Respondent with the new employment contract, as the amounts were specified as net and therefore, free of any further taxes which, according to the Claimant, would have been of a 30% over the Respondent’s income at that time. 23. Furthermore, with regard to the criteria invoked by the Respondent concerning the validity of clause 8, the Claimant stated that the DRC has not applied or even mentioned such criteria anymore since January 2007. 24. Moreover, the Claimant declared that it did not exercise the option earlier than December 2009, because it did not have at its disposal the amount of EUR 1,500,000. Additionally, the Claimant indicated that the Respondent failed to inform and officially notify them about his intention of returning to Club R, alleging that the Respondent had the legal obligation to officially notify such decision to the Claimant in advance. 25. In short, the Claimant requested FIFA to reject all the arguments presented by the Respondent and reaffirmed its initial petition. 26. The Respondent, in its final position, indicated that, as recognized by the Claimant, clause 8 of the addendum lacks the compulsory formalities required to be considered a contractual promise instead of an unilateral option clause. Moreover, according to the Respondent, the purpose of clause 8 of the addendum was to establish the virtual conditions of an employment contract to be entered into between the parties, only if he wished to continue his career with the Claimant. 27. In addition, the Respondent stated that the judicial bodies of FIFA still use the abovementioned criteria that examine the validity of a contractual option. 28. Furthermore, the Respondent rejected the Claimant’s statements about the calculation of the salaries the Respondent would have received under the new employment contract. The Claimant alleged that the salaries established in the new employment contract, this is, the salaries the Respondent would have received, were specified as net amounts. However, the Respondent asserted that the documents enclosed by both parties do not specify this, so they should be considered gross amounts. 29. Finally, the Respondent repeated his previous arguments and requests set forth in his first response to the claim. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 15 April 2010. Consequently, the previous edition of 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. art. 21 par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, edition 2012). 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 2012) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. In continuation, 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 referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2009, 2010 and 2012), and, on the other hand, to the fact that the present claim was lodged in front of FIFA on 15 April 2010. Therefore, the DRC concluded that the 2009 edition of the Regulations on the Status and Transfer of Players (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, the members of the Chamber entered into the substance of the matter. They started by acknowledging that the parties to the dispute had signed an employment contract as well as an addendum to such contract on 16 February 2009, both valid until 31 December 2009. 5. Equally, the Chamber acknowledged that the Respondent was transferred on a loan basis to the Claimant and that, upon expiry of the loan agreement, the Respondent had to return to his club of origin, Club R. 6. Furthermore, the Chamber noted that the Claimant maintains that the Respondent unilaterally breached the contract by not entering into a new employment agreement, on the basis of what is established by clause 8 of the addendum signed by the parties. 7. Equally, the members of the Chamber took note that the Respondent considered the said clause 8 of the addendum as an unenforceable unilateral option clause, stating that it allowed one party to force another to contract, in violation of the principle of contractual stability. 8. In this regard, the Chamber noted that clause 8 of the addendum gives the Claimant the exclusive right to contract with the Respondent at the end of the employment contract, by notifying this decision to the Respondent and paying him the amount of EUR 1,500,000. 9. In this context, the Chamber took note of the argument of the Claimant, who declared that the referred clause 8 of the addendum was not a contractual clause of unilateral renewal, but it was an option right to sign a completely new employment contract, alleging that such clause had the nature of a “promise of contract”. 10. In this respect, the DRC acknowledged that the Respondent was still bound to Club R at the time of signing the employment contract and the addendum with the Claimant as well as at the time the originally agreed duration of the contract with the Claimant expired, i.e. 31 December 2009. Therefore, the Chamber was of the unanimous opinion that the Respondent could not have promised or committed himself to sign a new employment contract with the Claimant without the express agreement of his club of origin, Club R. In other words, the Chamber concluded that the Claimant and the Respondent were not in a position to contractually agree upon said “promise of a contract” since the Respondent was, at that time, still contractually bound to Club R. 11. In light of the above, the Chamber concluded that clause 8 of the addendum to the employment contract concluded between the Claimant and the Respondent cannot be considered in view of the fact that at the time of signing the addendum and in particular, also at the time the relevant clause could have deployed its effects, there was still an existing contractual relationship between the Respondent and Club R. 12. As a consequence, the Dispute Resolution Chamber concluded that the complaint of the Claimant has to be rejected and decided that, therefore, it did not have to enter into the remaining arguments raised by the parties. III. Decision of the Dispute Resolution Chamber The claim of the Claimant, Club G, is rejected. ** 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: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives