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Employment Contract

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The Jurisprudence of the FIFA Dispute Resolution Chamber

Part of the book series: ASSER International Sports Law Series ((ASSER))

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Abstract

This chapter looks at the employment contract between a player and a club. Not only can the employment contract not be made subject to a successful medical examination and/or the granting of a visa or a work permit, but jurisprudence also shows that there are also other invalid conditions precedent, which will be brought to the readers’ attention. In relation to the employment contract, the so-called essentialia negotii will be discussed. This chapter will also focus on the so-called Protected Period of an employment contract and the formal aspects of the employment contract, such as the form and minimum and maximum length of the contract. We will see that the current RSTP provides for various requirements regarding the validity of an employment contract. After the formal elements, the remunerations relating to the employment contract will be handled, such as the salary and bonuses. These issues will be dealt with in relation to the DRC’s point of view.

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Notes

  1. 1.

    DRC 2 November 2007, no. 117953a and b. See also DRC 22 June, no. 67286 and DRC 27 April 2007, no. 47216, no. 47321 and no. 47408.

  2. 2.

    See DRC 30 November 2007, no. 117311. As from the RSTP, 2008 edition, Article 18bis was introduced and stipulates that no club shall enter into a contract which enables any other party to that contract or any third party to acquire the ability to influence its employment and transfer-related matters, its independence, its policies or the performance of its team.

  3. 3.

    Although this discussion falls beyond the scope of this book, in the decision by first instance the German Labour court of Mainz in the so-called Müller case, it was decided that, despite having an employment contract for a predetermined period of time, Müller should have been employed by football club Mainz 05 for an indefinite period, which decision was based on national law implementing Directive 1999/70. See ArbG Mainz, AZ: 3 CA 1197/14, decision of 13 March 2015. This decision in first instance showed the impact of European law on football. However, on 17 February 2016, the Landesarbeitsgericht Rheinland-Pfalz ruled in appeal that the contested fixed term contract period between player and club can be justified based on the objective reason of the nature of the work; LAG Rheinland-Pfalz, 4 Sa 202/15, decision of 17 February 2016.

  4. 4.

    DRC 27 November 2014, no. 1114239.

  5. 5.

    See also DRC 18 March 2010, no. 310149.

  6. 6.

    DRC 18 March 2010, no. 310149. As a side-note, with regard to the differences between a loan agreement and a transfer agreement in respect of sell-on clauses, see CAS 2007/A/1219 Club Sekondi Hasaacas FC v. Club Borussia Mönchengladbach, award of 9 July 2007, and CAS 2012/A/2733 Stichting Heracles Almelo v. FC Flora Tallinn, award of 27 November 2012. With regard to the concept of ‘sell-on clauses’ in general, see also CAS 2005/A/848 Sport Club Internacional vs. Bayer 04 Leverkussen, award of 23 February 2006, CAS 2013/A/3054 Club Atlético River Plate v. US Città di Palermo, award of 13 September 2013, CAS 2014/A/3508 FC Lokomotiv v. Football Union of Russia & FC Nika, award of 23 March 2015, CAS 2012/A/2875 Helsingborgs IF v. Parma FC S.p.A., award of 28 February 2013, CAS 2010/A/2098 Sevilla FC v. RC Lens, award of 29 November 2010, and CAS 2009/A/1756 FC Metz v. Galatasaray SK, award of 12 October 2009. In CAS 2013/A/3054 Club Atlético River Plate v. US Citta di Palermo, award of 13 September 2013, it was decided by the CAS Panel that there is a duty of information of the club having control of the transfer when 2 clubs share the economic rights over a player. See also CAS 2015/A/4197 FC Utrecht B.V. v. Swansea Cify AFC Limited, award of 25 May 2016.

  7. 7.

    See also DRC 18 May 2010, no. 5101020. See also CAS 2008/A/1593 Kuwait Sporting Club v. Z. & FIFA, award of 30 December 200. As a side-note, it must be mentioned that a club is under no obligation to accept the player back during the period in which he was entitled to be contracted to the club on loan. The CAS Panel referred to Article 10 para 4 of the FIFA Commentary, which reads: “During the period that the player is on loan, the effects of the employment contract with the club of origin are suspended, i.e. the club of origin is not obliged to pay the player’s salary and to provide him with adequate training and/or privileges or entitlements as foreseen in the contract”.

  8. 8.

    RSTP, 2016 edition, Article 18 para 2. See also DRC 7 April 2011, no. 411852. In this case the Chamber emphasized that the respondent clearly was under the age of 18 when he signed this contract and, in this regard, referred to Article 18 para 2 of the RSTP, in accordance with which players under the age of 18 may not sign a professional contract for a term longer than 3 years. Any clause referring to a longer period shall not be recognized. See also CAS 2005/A/835 & 942 PSV N.V. v. FIFA & Federaçao Portuguesa de Futebol and PSV N.V. v. Leandro do Bomfim & FIFA, award of 3 February 2006.

  9. 9.

    See also a DRC decision of 12 January 2007, no. 17606.

  10. 10.

    FIFA Commentary, explanation Article 13, p. 38.

  11. 11.

    RSTP, 2016 edition, Article 17 para 3, last sentence.

  12. 12.

    FIFA Commentary, explanation Article 17, p. 50, Footnote 87.

  13. 13.

    DRC 17 August 2012, no. 812482.

  14. 14.

    Reference can also be made to CAS 2004/A/642 Hertha BSC Berlin v. G. and Club Atlético River Plate & RCD Mallorca, award of 1 March 2005. In this case, the CAS Panel decided that if the meaning of a provision is clear, parties are not allowed to adduce evidence of their intentions. Furthermore, we can derive from this case that it is relevant who drafted the contract.

  15. 15.

    DRC 23 January 2013, no. 01131666.

  16. 16.

    See also CAS 2012/A/2738 FK Teplice a.s. v. Eintracht Frankfurt Fussball AG, award of 16 July 2012. From this case it follows that the interpretation rule according to which a disputed provision should be comprehended in favour of the party who is not the drafter of the contract, has no material relevance in a case where the wording of the provision in question is sufficiently clear. See also CAS 2009/A/1773 Borussia Vfl 1900 Mönchengladbach v. Club de Fútbol América S.A. de C.V. (Asociación Atlética Argentinos Juniors/Argentina) and CAS 2009/A/1774 Borussia Vfl 1900 Mönchengladbach v. Club de Fútbol América S.A. de C.V. (Club Atlético Independiente/Argentina), award of 3 November 2009.

  17. 17.

    See DRC 12 January 2006, no. 16830, DRC 26 October 2006, no. 1061318, DRC 12 October 2006, no. 1061118, DRC 23 February 2007, no. 27409, DRC 23 February 2007, no. 27409, DRC 15 February 2008, no. 28079, and DRC 21 September 2012, no. 912213.

  18. 18.

    According to Article 1 of the RSTP, 2016 edition, this provision is binding on a national level.

  19. 19.

    FIFA Commentary, explanation Article 18 para 3, p. 54.

  20. 20.

    TAS 2007/A/1314 Ali Bouabé & Sporting Lokeren Oost-Vlaanderen c. Association Sportive des Forces Armées Royales (ASFAR) and TAS 2007/A/1315 Hassan El Mouataz & Sporting Lokeren Oost-Vlaanderen c. Association Sportive des Forces Armées Royales (ASFAR), award of 31 January 2008.

  21. 21.

    DRC 27 November 2014, no. 1114239.

  22. 22.

    DRC 13 May 2005, no. 55484.

  23. 23.

    DRC 25 August 2006, no. 86712.

  24. 24.

    DRC 26 October 2006, no. 1061118.

  25. 25.

    DRC 2 November 2007, no. 1171309.

  26. 26.

    DRC 28 September 2007, no. 9719.

  27. 27.

    DRC 23 February 2007, no. 27409.

  28. 28.

    In CAS 2014/A/3573 Damian Alejandro Manso v. Al Ittihad Club, award of 29 January 2015, the CAS Panel appreciated that in some countries and in some cultures it may be considered particularly offensive or even outrageous if an employee simultaneously negotiates in parallel with more than one potential employer. However, the CAS found in this case it was not for them to criticise any such cultural or moral attitude. For the purposes of the case this attitude was irrelevant.

  29. 29.

    DRC 26 October 2006, no. 1061318.

  30. 30.

    DRC 27 November 2014, no. 1114239.

  31. 31.

    DRC 27 November 2014, no. 1114239.

  32. 32.

    DRC 23 September 2005, no. 95121.

  33. 33.

    DRC 9 November 2009, no. 114707. See also DRC 12 January 2006, no. 35712. See also CAS 2008/A/1453 Elkin Soto Jaramillo & FSV Mainz 05 v. CD Once Caldas & FIFA and CAS 2008/A/1469 CD Once Caldas v. FSV Mainz 05 & Elkin Soto Jaramillo, award of 8 July 2008.

  34. 34.

    DRC 27 August 2009, no. 89733. See also DRC 16 July 2010, no. 791002.

  35. 35.

    DRC 25 October 2012, no. 10121176.

  36. 36.

    DRC 15 March 2013, no. 03132656.

  37. 37.

    DRC 23 July 2015, no. 0715452 and DRC 7 February 2014, no. 0214780.

  38. 38.

    DRC 28 June 2013, no. 06131375.

  39. 39.

    See also DRC 31 October 2013, no. 1013136.

  40. 40.

    DRC 10 May 2012, no. 512476.

  41. 41.

    See also DRC 25 September 2014, no. 09142368.

  42. 42.

    DRC 1 March 2012, no. 3121034.

  43. 43.

    DRC 28 March 2012, no. 3121533.

  44. 44.

    DRC 28 March 2012, no. 3122702.

  45. 45.

    DRC 28 June 2013, no. 06132647.

  46. 46.

    DRC 27 November 2014, no. 1114239. See also DRC 12 April 2005, no. 45406, DRC 28 July 2005, no. 75860, DRC 13 June 2008, no. 681246, DRC 10 January 2008, no. 18745, DRC 24 October 2011, no. 10111169, DRC 26 October 2006, no. 1061098, DRC 26 October 2006, no. 1061097, DRC  26 October 2006, no. 1061118, DRC 26 November 2004, no. 114124. With regard to the difference between a ‘contract’ and a ‘pre-contract’, see CAS 2008/A/1589 MKE Ankaragücü Spor Külübü v. J., award of 20 February 2009. See also CAS 2004/A/691 FC Barcelona SAD v. Manchester United FC, award of 9 February 2005.

  47. 47.

    DRC 24 October 2005, no. 105874(2) and no. 105874.

  48. 48.

    DRC 4 February 2005, no. 25820. See also CAS 2013/A/3207 Tout Puissant Mazembe v. Alain Kaluyituka Dioko & Al Ahli SC, award of 31 March 2014.

  49. 49.

    See CAS 2013/A/3091 FC Nantes v. FIFA & Al Nasr Sports Club, award of 2 July 2013, CAS 2013/A/3092 Ismaël Bangoura v. Al Nasr Sports Club & FIFA, award of 3 June 2013, CAS 2013/A/3093 Al Nasr Sports Club v. Ismaël Bangoura & FC Nantes, award of 2 July 2013.

  50. 50.

    DRC 22 July 2004, no. 7472A.

  51. 51.

    DRC 22 July 2004, no. 74165. See also DRC 24 October 2005, no. 105874(2).

  52. 52.

    DRC 26 October 2006, no. 1061318.

  53. 53.

    DRC 4 April 2007, no. 47139.

  54. 54.

    FIFA Commentary, explanation Article 18 para 2, p. 53. RSTP, 2016 edition, Article 18 para 2, last 2 sentences.

  55. 55.

    DRC 22 July 2004, no. 74234.

  56. 56.

    DRC 11 March 2005, no. 35144 b.

  57. 57.

    DRC 26 October 2006, no. 106672.

  58. 58.

    DRC 11 March 2005, no. 35144b.

  59. 59.

    DRC 23 March 2006, no. 36619.

  60. 60.

    DRC 12 April 2005, no. 45196.

  61. 61.

    DRC 23 March 2006, no. 36619.

  62. 62.

    DRC 23 March 2006, no. 36882.

  63. 63.

    See also CAS 2007/A/1429 Bayal Sall v. FIFA and IK Start and CAS 2007/A/1442 ASSE Loire v. FIFA and IK Start, award of 25 June 2008. As also follows from the latter case, the stating of an incorrect date of birth does not make a contract invalid.

  64. 64.

    DRC 28 September 2007, no. 97938.

  65. 65.

    DRC 10 August 2007, no. 871283. Handwritten additions that are only undersigned by one of the parties will not be taken into consideration by the DRC. See DRC 30 November 2007, no. 1171304. See also CAS 2007/A/1429 Bayal Sall v. FIFA and IK Start and CAS 2007/A/1442 ASSE Loire v. FIFA and IK Start, award of 25 June 2008. From the latter case it follows that the absence of initials of the parties on every separate page of the contract does not lead to an invalidity of the contract.

  66. 66.

    DRC 26 October 2006, no. 106399.

  67. 67.

    DRC 26 October 2006, no. 1061097.

  68. 68.

    See also DRC 20 July 2012, no. 7121848.

  69. 69.

    DRC 7 May 2008, no. 58996.

  70. 70.

    DRC 11 March 2005, no. 35239. See also DRC 9 January 2009, no. 19968.

  71. 71.

    In a case before the DRC of 8 June 2007, the Chamber emphasized that FIFA is not competent to decide upon matters of criminal law, such as document forgery. Consequently, the Chamber decided to refer the respondent to the competent national authorities in order to obtain a binding decision regarding the alleged forgery of the relevant confirmation. DRC 8 June 2007, no. 67344. See also DRC 27 April 2007, no. 47126.

  72. 72.

    DRC 27 April 2006, no. 46294.

  73. 73.

    See also Vandellos. With regard to the provision for a handwriting expert, see also CAS 2012/A/2957 Football Club Khimki v. Eljver Raça, award of 5 February 2014. See also DRC 30 July 2014, no. 0714210. See also CAS 2014/A/3852 Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahda Sports and Cultural Club, award of 11 January 2016.

  74. 74.

    DRC 4 April 2007, no 47345.

  75. 75.

    DRC 21 August 2008, no. 88210. See also DRC 10 July 2013, no. 07131183.

  76. 76.

    See also DRC 4 October 2013, no. 1013417.

  77. 77.

    DRC 17 January 2014, no. 0114844.

  78. 78.

    See also DRC 2 July 2015, no. 0715381.

  79. 79.

    DRC 4 February 2005, no. 25820.

  80. 80.

    DRC 30 November 2007, no. 117311. See also DRC 6 May 2010, no. 510141.

  81. 81.

    See DRC decisions of 28 September 2007, no. 97460 and no. 971002. See also DRC 22 June 2007, no. 67675. See also CAS 2009/A/1956 Club Tofta Itróttarfelag, B68 v. R., award of 16 February 2010, CAS 2013/A/3375, KSC Lokeren v. Omer Golan & Maccabi Petach Tikva FC, and CAS 2013/A/3376, Omer Golan & Maccabi Petach Tikva FC v. KSC Lokeren, award of 22 August 2014.

  82. 82.

    DRC 10 August 2007, no. 871283.

  83. 83.

    DRC 15 June 2011, no. 611025.

  84. 84.

    DRC 10 July 2013, no. 0713775.

  85. 85.

    See also DRC 14 August 2013, no. 08132573.

  86. 86.

    DRC 8 June 2007, no. 6733.

  87. 87.

    DRC 28 September 2006, no. 96157.

  88. 88.

    DRC 26 October 2006, no. 106678.

  89. 89.

    DRC 12 January 2007, no. 171082.

  90. 90.

    DRC 11 March 2005, no. 3542.

  91. 91.

    DRC 27 April 2006, no. 46290.

  92. 92.

    DRC 12 January 2006, no. 16107.

  93. 93.

    DRC 12 January 2007, no. 17848.

  94. 94.

    DRC 14 September 2007, no. 9729. See also DRC 22 June 2007, no. 671086.

  95. 95.

    DRC 27 April 2006, no. 46831. See also DRC 20 August 2014, no. 08143653.

  96. 96.

    DRC 16 November 2012, no. 11121922.

  97. 97.

    See also DRC 12 December 2013, no. 12131160.

  98. 98.

    DRC 18 December 2014, no. 1214600.

  99. 99.

    DRC 28 March 2015, no. 0314132.

  100. 100.

    DRC 17 January 2014, no. 01143342. See also CAS 2014/A/3679 FC Dacia Chisinau v. Goran Stankovski, award of 17 February 2015.

  101. 101.

    DRC 9 November 2004, no. 114441.

  102. 102.

    DRC 1 June 2005, no. 6526.

  103. 103.

    DRC 26 November 2006, no. 116336.

  104. 104.

    DRC 30 November 2007, no. 1171304.

  105. 105.

    Handwritten additions that are only undersigned by one of the parties will not be taken into consideration by the DRC. See DRC 30 November 2007, no. 1171304.

  106. 106.

    DRC 29 November 2013, no. 11133071.

  107. 107.

    DRC 7 February 2014, no. 0214728.

  108. 108.

    As a side-note, in proceedings before the PSC regarding disputes between coaches and clubs, it is worth mentioning that coaches are (only) entitled to receive bonuses for results achieved while they are still working for their clubs. However, if the claim is related to the results achieved during the rest of the season, i.e. when the coach is no longer working for the club, the coach should not be entitled to receive any additional compensation (unless this was contractually agreed to otherwise). See PSC 19 March 2013, no. 0313992.

  109. 109.

    DRC 9 May 2014, no. 05141729.

  110. 110.

    DRC 30 July 2014, no. 0714643.

  111. 111.

    See also TAS 2015/A/3871 Sergio Sebastián Ariosa Moreira c. Club Olimpia and TAS 2015/A/3882 Club Olimpia c. Sergio Sebastián Ariosa Moreira, award of 29 July 2015.

Reference

  • Vandellos A, Josep F, Forgery in football-related disputes. Football Legal (www.football-legal.com) 2 December 2014

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  1. Legal Counsel, Dutch Federation of Professional Football Clubs (FBO), Zeist, The Netherlands

    Frans de Weger

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de Weger, F. (2016). Employment Contract. In: The Jurisprudence of the FIFA Dispute Resolution Chamber. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-126-5_6

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