Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 January 2014,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player C, from country B
as Claimant
against the club,
Club O, from country G
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
Facts relating to the preliminary issue of competence:
1.
On 30 August 2008, the player C (hereinafter referred to as player or Claimant) and
Club O (hereinafter referred to as club or Respondent) signed a standard country G
Super League employment contract (hereinafter: contract) valid for one year as
from 30 August 2008 until 30 June 2009.
2.
According to the contract, both parties recognise, respect and comply “with the
Statutes, Regulations and Decision of FIFA, UEFA and country G Football Federation
and the relevant Professional Association.”
3.
Furthermore, art. 10 of the contract stipulates that all “disputes between the Parties
are Settled exclusively from the Appeals Committee for the resolution of financial
disputes PEEOD of the country G Football Federation (hereinafter: PEEOD) at first
instance, and the court of Arbitration of the country G Football Federation at
Second Instance.”
4.
In addition to the contract, and on the same date, the parties signed a “Private
Agreement” (hereinafter: agreement) which is valid for the same period of time as
the contract.
5.
On 9 January 2009, the player lodged a claim for breach of contract against the club
in front of FIFA.
6.
In its reply, the club rejected the jurisdiction of FIFA’s deciding bodies to deal with
the matter at hand. In this respect, the club referred to art. 10 of the contract and
specified that the relevant deciding bodies of the country G Football Federation are
operating in conformity with the criteria set forth in art. 22 of the FIFA Regulations
and the FIFA Circular nr. 1010.
7.
Additionally, the club mentioned that, on 28 December 2008, it filed an application
for the termination of the contract in front of the aforementioned PEEOD of the
country G Football Federation, which led to a decision of the PEEOD dated 12
January 2009.
8.
In this decision, it is ruled that “the contract” between the player and the club is
considered terminated at the player’s sole fault on 29 December 2008.
9.
The club also asserted that, to its knowledge, this decision was not appealed
against.
10.
The player, however, deemed that the PEEOD and the Court of Arbitration of the
country G Football Federation do not have jurisdiction over employment-related
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disputes opposing a club and a player invoking the country G Code of Civil
Procedure and that art. 10 of the contract is to be considered as null and void.
11.
Furthermore, the player asserted that country G Football Federation’s decisionmaking body and their rules of procedure are not in line with the FIFA Regulations,
the National Dispute Resolution Chamber Rules or the FIFA Circular nr. 1010.
12.
On the other hand, the player insisted that based on art. 22 b) of the Regulations on
the Status and Transfer of Players, FIFA’s deciding body is competent to deal with
the matter at hand.
13.
For its part, the club explained that if it is true that the country G Code of Civil
Procedure excludes the recourse to arbitration in relation to labour disputes, there
is an exception to this rule with regard labour disputes connected to professional
football, as such disputes, unless stipulated in a different way in the contract, are
subject to the jurisdiction of the relevant body of the country G Football Federation.
14.
In continuation, the club explained that the PEEOD of the country G Football
Federation respects the criterion of equal representation as one of its members is
appointed by the clubs, one member is designated by the football players, and its
presidency is given to a “Single Judge of the Civil Courts.” Also, the club indicated
that the decisions rendered by the PEEOD are “fully executable within the frame of
the Federation.”
Facts related to the substance of the matter:
15.
16.
According to the terms of the contract, valid as from 30 August 2008 until 30 June
2009, the player was to receive the following remuneration:
Monthly salaries in the net amount of EUR 750 each, payable at the end of
each month (12 x per year);
Three bonuses: one Christmas bonus (equal to one monthly salary), an
Easter bonus as well as a holiday benefit (both equal to half of a monthly
salary, i.e. EUR 375);
The amount of EUR 9,500 payable in two installments, the first one in the
amount of EUR 4,500, payable on 30 October 2008, and the second one of
EUR 5,000, payable on 30 December 2008.
The agreement, which is valid for the same period of time as the contract, stipulates
the following remuneration for the player:
The amount of EUR 20,000 payable upon signature of the agreement;
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Four payments of EUR 10,000 each, payable on 30 October 2008, 30 January
2009, on 28 February 2009 and on 30 March 2009;
Two payments in the amount of EUR 15,000 each, payable on 30 November
2008 and on 30 April 2009;
Three flight tickets.
17.
The agreement further stipulates that the club reserves its “right to terminate this
private agreement for discipline reasons after having paid the player the
compensation which has been worked for and (1) month compensation”.
18.
On 26 December 2008, the player sent a letter to the club expressing his “serious
concerns” regarding the execution of the contract by the club. In this respect, the
player held that, let alone the constant delays in payment, the club had failed to
pay him his receivables of October 2008 based on the contract and the agreement
as well as his receivables for November 2008 in connection with the agreement.
19.
Furthermore, the player complained about the fact that after having been informed
by the club’s manager that he was released from the club and could travel to
country B, before returning to country G on 27 December 2008, the club would have
afterwards rescheduled his departure date to country B to 23 December 2008 and
canceled his return flight ticket to country G to force the player to agree on a
termination of the contract, without payment of compensation, due to his alleged
low performance.
20.
In said letter, the player urged the club to provide him with a return flight ticket, so
that he would be able to resume his duty at the club and rejected the club’s wish to
terminate the contract.
21.
Also, the player wrote that, for his part, he was still willing to execute the contract
despite the club’s repeated breaches of its obligations and he informed the club of
his lawyer’s contact details.
22.
According to the player, the aforementioned letter remained unanswered.
23.
In his claim for breach of contract against the club in front of FIFA, dated 9 January
2009, the player claimed the following amounts as outstanding salaries based on
the contract:
The monthly amount of EUR 750, which was due on 31 December 2008;
The amount of EUR 1,125 relating to the Christmas bonus (EUR 750) and the
holiday benefit (EUR 375);
The amount of EUR 5,000, which fell due on 30 December 2008.
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24.
Additionally, the player claimed that the following sums, which are stipulated in the
agreement, were also not paid by the club:
A remaining amount of EUR 3,074 out of the sum of EUR 10,000, which fell
due on 30 October 2008;
The amount of EUR 15,000 which fell due on 30 November 2008.
25.
As a result of the above, the player claimed the total amount of EUR 24,949 as
outstanding remuneration based on both the contract and the agreement.
26.
In continuation, the player claimed compensation for breach of contract, on the
basis of the contract, as follows :
27.
EUR 4,500 corresponding to his monthly salaries for the months of January
2009 up to 30 June 2009 (EUR 750 x 6 months);
EUR 750 for the Easter bonus 2009.
Furthermore, on the basis of the agreement, the player claimed compensation for
breach of contract in the amount of EUR 45,000, corresponding to the following
amounts:
The amount of EUR 10,000, payable on 30 January 2009;
The amount of EUR 10,000, payable on 28 February 2009;
The amount of EUR 10,000, payable on 30 March 2009;
The amount of EUR 15,000, payable on 30 April 2009.
28.
On account of the above, the player claimed the total amount of EUR 50,250 as
compensation for breach of contract by the club on the basis of the contract and
the private agreement.
29.
With regard to the substance of the player’s claim, the club replied that even
though all the players were informed that some trainings would be held by the club
during the Christmas period, except on Christmas Eve and on Christmas Day, and
that, hence, none of the players could go on holidays, the player was absent as from
22 December 2008 without valid reason and never returned to the club. It also
asserted that its attempts to locate the player, notably via his agent, Mr F, who is
also a signee of the agreement, or via the team manager, have all failed.
30.
The club specified that, on 24 December 2008, it asked the player directly, as well as
via his agent Mr F, to justify his absence from the club by 27 December 2008 and
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afterwards informed him, on 28 December 2008, also via his agent, of its claim
against him before the PEEOD.
31.
The club further explained that, in this context, it received the player’s letter dated
26 December 2008, which made the club understand that the player was actually in
country B, and to which it replied by sending a letter to FIFA on 31 December 2008
to present its opinion with regard to the player’s allegations.
32.
In its letter dated 31 December 2008, the club rejected the player’s assertions
regarding the alleged change by the club of his round trip flight tickets and denied
having ever intimidated the player to convince him to accept an early termination
of the contract without compensation.
33.
The club asserted that the payment of his salary of November 2008 had not yet
fallen due under the Regulations of the country G Football Federation, which it
considers applicable to the contract. The club further highlighted since the player
left the club on 23 December 2008 without prior notice or authorization, it already
started disciplinary proceedings in front of the relevant bodies of the country G
Football Federation.
34.
As to the amounts claimed by the player, the club replied that, in its opinion, only
the total amount of EUR 1,864.70 had fallen due and remained unpaid when the
player left.
35.
In this respect, it asserted that on the basis of the contract, the player was actually
only entitled to receive the net amount of EUR 11,350 for the period of time
between September 2008 and December 2008.
36.
Furthermore, with regard to the player’s claim based on the agreement, as from
September 2008 until December 2008, the club deemed that the player was entitled
to receive the total amount of EUR 20,000 net.
37.
In continuation, the club deemed that the amount of EUR 4,000 net (EUR 5,000
gross) on the basis of the contract, and payable on 30 December 2008, as well as the
amount of EUR 12,000 net (EUR 15,000 gross) based on the agreement, and payable
on 30 November 2008, have to be deducted since, according to the Rules and
Regulations of the country G Football Federation, clubs may postpone payments
until “at least one month after the date indicated in the contract”.
38.
The club further held that the amount of EUR 13,485.30 was paid to the player.
39.
In light of the above, the club considered that at the time when the player left the
club, only the amount of EUR 15,350 had already fallen due and out of which the
player had already received EUR 13,485.30, therefore leaving a balance in the
player’s favour of EUR 1,864.70 only.
Player C, from country B / Club e
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40.
In view of the above, the club held that the amount it owed to the player at the
time when he left the club did not entitle him to “seek the termination of his
contract”.
41.
In its conclusions, the club stressed that the player’s claim should be rejected as a
result of FIFA’s lack of jurisdiction to deal with the matter at hand as well as due to
the fact that the PEEOD of the country G F already decided that the contract was
terminated at the player’s fault.
42.
It further added that should the club be found to have breached its financial
obligations towards the player, it shall not be liable for any payment corresponding
to the period of time starting after 29 December 2008, since the contract between
the parties has been legally considered terminated by the PEEOD of the country G
Football Federation as of that date. Additionally, the club pointed out that the
player signed a new contract with another club on 1 January 2009.
43.
In his replica, the player held that the club is contradicting itself, as it stated in its
reply that the player started to be absent as of 22 December 2008, whereas it
referred to 23 December 2008 in its letter of 31 December 2008 allegedly sent to
FIFA.
44.
Also, the player pointed out that the club did not use any of the available measures,
such as written warnings, fine(s) and/or suspension(s) that can be taken before
initiating a process of termination of a contract, which has to remain the last
option.
45.
On the contrary, the club started a legal action against him on 28 December 2008
with the purpose of terminating the contract despite the fact that the player had
only been absent for four days and regardless of the fact that the player had
mentioned in his letter dated 26 December 2008, i.e. before the beginning of the
local procedure, that he was willing to return to the club and to execute the
contract until the end.
46.
In continuation, the player highlighted that he always complied with his obligations
towards the club, whereas the latter was already in breach of its financial
obligations towards him.
47.
The player also rejected the club’s calculation of the monies that are payable to him
and asserted that the amounts agreed upon were net and payable on the stipulated
dates without any grace period. In this regard, the player inter alia stressed that the
club failed to prove that it made any payment of taxes to the State authority in
connection with the player’s remuneration.
48.
In view of the above, the player concluded that the repeated breaches of the
contract by the club have caused the termination of the contract and the agreement
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at the club’s fault and that the club itself acknowledged that it did not correctly
execute its contractual obligations.
49.
In its duplica, in connection with tax-related questions, the club held that at the
time of its reply to the claim, payment of the player’s taxes had not yet fallen due
and that according to country G tax law, all financial agreements are stipulated as
gross amounts unless indicated otherwise.
50.
In relation to payments and due dates, the club referred to the payment list it
presented along with its reply and explained that the payments were made in
accordance with the rules and regulations of the country G Football Federation.
51.
What is more, the club held that if some payments were not made on the relevant
date, it is not a cause for breach of contract or a proof of the club’s failure to
comply with its obligations since “after all, the money were indeed paid.”
52.
On 20 January 2009, the player signed an employment contract with Club A, from
country B, valid as from the same date and coming to an end on 4 May 2009.
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 9 January
2009. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and par. 3
of the Procedural Rules).
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of
the Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2012). The Chamber confirmed that in accordance with
art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations,
the Dispute Resolution Chamber would, in principle, be competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a country B player and a country G club.
3.
However, the DRC acknowledged that the Respondent contested the competence of
FIFA’s deciding body, invoking that the DRC has no jurisdiction to deal with the
matter at hand. In this respect, the club referred to the above-cited PEEOD and the
fact that it filed an application against the player in front of such deciding body,
which passed a decision on 12 January 2009, in accordance with which the contract
was considered terminated at the player’s fault on 29 December 2008.
Player C, from country B / Club e
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4.
The Chamber noted that the Claimant, for his part, rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
In this respect, first and foremost, the Chamber outlined that the standard Greek
Super League employment contract signed by and between the Claimant and the
Respondent on 30 August 2008 contains a clause in accordance with which all
disputes between the parties are settled exclusively by the Appeals Committee for
the Resolution of Financial Disputes (PEEOD) at first instance and the Court of
Arbitration of the country G Football Federation at second instance.
6.
Having said that, the Chamber further took into account that, on 22 July 2013, the
Court of Arbitration for Sport (CAS) issued an award, whereby it decided that the
national arbitration bodies of the country G Football Federation fulfill the
requirements of equal representation and of an independent chairman and
guarantees fair proceedings. Furthermore, the CAS underlined in said award that
FIFA’s deciding body is not an appeal body.
7.
In continuation, the Chamber took note that the Greek deciding body at the basis
of the aforementioned CAS decision is the same deciding body as the one included
in the exclusive jurisdiction clause of the standard country G Super League
employment contract signed by and between the Claimant and the Respondent,
which, apart from the agreement, is at the basis of the Claimant’s claim.
8.
In addition, the Chamber deemed it appropriate to briefly recall that on the basis of
the principle of res iudicata, a decision-making body is not in a position to deal with
the substance of a matter, in the event that another deciding body has already
dealt with the same subject matter by passing a final and binding decision.
9.
In this regard, the DRC noted that in addition to the Super League employment
contract, the Claimant and the Respondent signed, on 30 August 2008, an
agreement which, in addition to the contract, is at the basis of the Claimant’s claim
in front of FIFA.
10.
What is more, the DRC took due note of the fact that in its decision dated 12
January 2009, the PEEOD did not refer to the agreement, but only to “the
contract”, which the members of the Chamber had to assume is the standard
country G Super League employment contract and excludes the agreement.
11.
On account of the above, the DRC first established that the claim of the Claimant
based on the standard country G Super League employment contract appears to be
a res iudicata, as a result of which the DRC is not competent to deal with this
specific part of the Claimant’s claim, due to the facts that a) the country G Super
League contract contains a clear and exclusive jurisdiction clause in favour of the
national arbitration body of the country G Fooball Federation, b) the CAS confirmed
that the relevant country G deciding body fulfills the requirements of equal
representation and of an independent chairman and guarantees fair proceedings,
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i.e. the relevant country G deciding body is competent to adjudicate disputes
between players and clubs like the matter at hand, and c) said competent national
deciding body already passed a decision as to the substance of the matter as far as
the standard country G Super League contract is concerned.
12.
In continuation, the Chamber was eager to point out that as opposed to the country
G Super League contract, the agreement does not contain any clause related to
jurisdiction or resolution of disputes.
13.
On account of the above, the DRC held that, as no decision was yet rendered in
relation to the agreement signed by the parties and in the absence of a jurisdiction
clause in the agreement, the Dispute Resolution Chamber is competent to deal with
the Claimant’s claim, insofar it is based on the agreement signed by and between
parties on 30 August 2008.
14.
Having so found, 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 is competent to deal with
the matter at stake between a country B player and a country G club, insofar as it is
based on the aforementioned agreement.
15.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter.
16.
In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (2012), and considering that the
claim was lodged on 9 January 2009, the 2008 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
17.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
18.
In this respect, the Chamber started by acknowledging all the above-mentioned
facts as well as the arguments and the documentation submitted by the parties in
connection with the Claimant’s claim based on the agreement.
19.
However, the Chamber 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.
20.
First of all, the members of the Chamber acknowledged that, on 30 August 2008,
the Claimant and the Respondent concluded an agreement valid as from 30 August
2008 until 30 June 2009.
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21.
The Chamber further observed that, on 9 January 2009, the Claimant lodged a claim
in front of FIFA against the Respondent seeking payment of outstanding
remuneration of EUR 18,074, asserting that the Respondent had not fulfilled its
contractual obligations towards him.
22.
More specifically, the Claimant indicated that the Respondent had partially or
totally failed to pay him his remuneration stipulated in the agreement for the
months of October 2008 and November 2008, respectively, and would have
cancelled his return flight from country B to country G after the Claimant had
already left the club on 23 December 2012.
23.
Consequently, apart from payment of outstanding remuneration, the player seeks
payment of compensation for breach of contract in the amount of EUR 45,000.
24.
In continuation, the Chamber observed that the Respondent, who considered that
the player was in breach of contract, insisted that it had never allowed the player to
leave on said date and to be absent during the Christmas period, as some trainings
would be held by the club during said period of time.
25.
Additionally, the Chamber duly noted that the Respondent rejected the amount of
the outstanding remuneration claimed by the player. In particular, the Respondent
asserted that only the amount of EUR 1,864.70 had remained unpaid when the
player left the club.
26.
Bearing in mind the parties’ conflicting positions, the Chamber observed that the
Claimant had not presented any evidence that he had indeed been authorised by
the Respondent to leave as of 23 December 2008, so as to return to country B.
27.
In this context, the Chamber recalled that, in accordance with art. 12 par. 3 of the
Procedural Rules, any party claiming a right on the basis of an alleged fact shall
carry the burden of proof.
28.
Additionally, the Chamber found that the Claimant had not presented any
documentary evidence that the Respondent had bought the flight ticket at stake or
that, afterwards, the Respondent would have cancelled the Claimant’s return flight
to country G.
29.
In continuation, reverting to the player’s financial claim, the Chamber concurred
that at the time of Claimant’s departure from country G, a relatively small portion
of his remuneration was apparently outstanding, i.e. a residual part of his October
salary in the amount of EUR 3,074 and EUR 15,000 corresponding to the month of
November 2008.
30.
Similarly, the DRC observed that at the time of the Claimant’s return to country B in
December 2008, the aforesaid amounts had been outstanding for less than two
months, which is a relatively short period of time.
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31.
Equally, the DRC duly noted that the Claimant only put the Respondent in default
of payment of his remuneration after the Claimant had already left the club.
32.
In continuation, the Chamber also noted that the Claimant signed an employment
contract with another club on 20 January 2009, i.e. less than a month after he had
left the Respondent.
33.
On account of the above considerations, the members of the Chamber established
that the Claimant terminated the agreement with the Respondent by having left
country G on 23 December 2008 without the club’s approval and that he had no just
cause to do so.
34.
In view of the foregoing, the Chamber decided that the Claimant’s request to be
granted compensation for breach of contract by the Respondent shall be rejected.
35.
Notwithstanding the above, the DRC recalled that in accordance with the general
legal principle of pacta sunt servanda, the aforementioned considerations shall not
exempt the Respondent from fulfilling its outstanding financial obligations as per
the agreement up and until the date of termination of the contract, if any.
36.
In this respect, the DRC referred once more to art. 12 par. 3 of the Procedural Rules
and concluded that the Respondent had not provided any convincing evidence that
the amount of EUR 13,485.30 it alleges having paid to the Claimant actually
corresponded to the agreement-related installments the Claimant claims as having
remained unpaid.
37.
In view of the above, the DRC established that the Respondent has to pay to the
Claimant the amount of EUR 18,074 as outstanding remuneration based on the
agreement signed by and between the Claimant and the Respondent.
38.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player C, is partially accepted, insofar as it is admissible.
2.
The Respondent, Club O, has to pay to the Claimant outstanding remuneration in
the amount EUR 18,074 within 30 days as from the date of notification of this
decision.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry
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of the aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.: CAS directives
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