Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2013,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamazaki (Japan), member
Theodoros Giannikos (Greece), member
on the matter between the player,
Player G, from country B
as Claimant/Counter-Respondent
and the club,
Club D, from country U
as Respondent/Counter-Claimant
and the club,
Club S, from country P
as Intervening Party 1
as well as the club,
Club E, from country B
as Intervening Party 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 10 August 2009, Player G, from country B (hereinafter: the player or
Claimant / Counter-Respondent), and Club D, from country U (hereinafter: the
club or Respondent / Counter-Claimant) signed an employment contract
(hereinafter: the contract) valid as from the date of its signature until 9 August
2014. Art. 3 of the contract stipulates that: “The club shall pay the monthly
salary to the player in accordance with item 1 of Annex 1 to this Agreement.”
2.
On the same date, the player and a company named “XY MANAGEMENT Ltd.”
(hereinafter: the Company) signed an “agreement to the contract” (hereinafter:
the agreement). The preamble of the agreement stipulated that it was
“concluded by [the player] with [the Company] on salary and bonuses payment
as well as application of the penalty sanctions.”
3.
In accordance with the agreement, the Company undertook to pay the player
per year, the total amount of USD 500,000, to be paid in eleven equal monthly
installments and bonuses. Equally, the Company would provide the player with
“service apartments”.
4.
Moreover, art. 6 of the agreement stipulated the following sanctions:
- for absence of the player in the disposition of the team: penalty in amount
of 20 000 (twenty thousand) US dollars for every missed day (including for
every incomplete day);
- for unauthorized leaving/departure from the team training and/or
residential ground: penalty in amount of 50 000 (fifty thousand) US dollars
per each case;
- for non-compliance/non-observance of the instructions of the coaches of
the club or the club management: penalty in amount of 20 000 (twenty
thousand) US dollars per each case;
- for unsporting behavior before, during or after the matches and/or
trainings of the team: penalty in amount of 10 000 (ten thousand) UD
dollars per each case.
5.
On 16 September 2011, the player lodged a claim against the club in front of
FIFA claiming that, on 12 August 2011, he was left with no other option but to
unilaterally terminate the employment contract with just cause.
6.
The player explained that on 28 July 2011, he formally notified the club of its
arrears, apparently amounting to USD 66,432: USD 15,000 as part of his
February 2011 salary, USD 20,432 as part of his March 2011 salary, USD 25,000 as
part of his salary for May 2011 and USD 6,000 as monthly accommodation
allowances for May, June and July 2011. By means of said notice, the player
provided the club with a seven days deadline to comply with its contractual
obligations, or in defect he would have to terminate the labour relationship.
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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7.
Subsequently, on 4 August 2011, the club replied as follows:
- Regarding the salary for February 2011, the club claimed that it had
effectively been paid in advance, by mistake, together with his salary for
January 2011; an assumption which the player rejects as he claims that the
extra amount paid in January, was in fact part of a bonus payment.
- Regarding the salary for March 2011, the club apparently acknowledged
that it had failed to pay such an amount and that it would do so “together
with the next monthly payment”.
- Regarding the salary for May 2011, the club apparently withheld the
amount of USD 25,000 in connection with a fine that was apparently
imposed on the player for an alleged disciplinary infringement. In this
respect, the player rejects this argument, and claims to have never been
officially notified of any infringement nor of any disciplinary procedure
against him and even less about any decision implementing such alleged
disciplinary fine.
- Regarding the accommodation allowances, the club mentioned that such
amounts will be cancelled in due course.
- Also, the club refused to pay the money to the bank account indicated in
the letters of the player (i.e. the letters of his representative) as the bank
account was different.
8.
On 8 August 2011, the player provided the club with a second notice for
payment, granting it a three day deadline in order to comply with its relevant
outstanding financial obligations, failure of which would lead to the immediate
unilateral termination of the contract without further notice.
9.
On 11 August 2011, the club replied stating that it had held a meeting with the
player in the previous week and that all pending issues had been checked and
the procedure of settlement agreed. The player however underlined he had
never held a meeting nor discussed the situation with anyone linked with the
club.
10.
Subsequently, on 12 August 2011, the player formally notified the club of the
unilateral termination of the employment contract.
11.
Notwithstanding the above, the player acknowledges that on 16 August 2011
the club did proceed with the payment of the outstanding part of his salary for
March 2011.
12.
In view of all the above, the player requests to be awarded the following
amounts:
1)
Outstanding payments: USD 107,583.57 plus 5% interest p.a. “as from
the date they became due”:
- USD 15,000 corresponding to part of his salary for February 2011;
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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-
2)
USD 25,000 corresponding to part of his salary for May 2011;
USD 45,454.54 corresponding to his salary for July 2011;
USD 16,129,03 corresponding to 11 days of work in August 2011;
USD 6,000 corresponding to his accommodation allowances for May,
June and July 2011 (2,000 x 3).
Compensation: USD 1,454,545.50
13.
In its reply, the club stated that as of January 2011 the player’s performances
declined and he was sent to the reserve team. On 22 April 2011, the player
misbehaved by refusing to follow the instructions of the coach which resulted in
a reprimand. The club explains that the misbehavior continued and that the
player refused to take part in a team’s away game, and although having been
invited to explain himself for such behavior the player did not do so. Such
breach of internal discipline provided for a fine of USD 50,000, however the club
opted for a fine of only USD 25,000.
14.
Furthermore, on 20 June 2011, the player apparently returned from holidays
four days late, reason for which the player could have been fined USD 20,000
for each day of absence, however, the club opted for a more lenient approach,
consisting of a fine of USD 5,000. The player was once again granted the
opportunity to provide his reasoning for such a delay, but he failed to do so.
15.
Secondly, as to the allegations of the player in relation to the outstanding
amounts, the club states the following:
As to the salary for February 2011, the club explained that it had
mistakenly paid the player a surplus of USD 15,000 in January 2011,
reason why in February 2011, this surplus was consequently deducted
from his salary. This is confirmed by the payment receipt of January 2011,
which indicates that the player had received USD 63,036 (i.e. monthly
salary + USD 15,000 surplus + USD 3,000 in bonuses).
According to the club, “the actual payer of the relevant payments was
not the Club itself but its partner – the company “XY Management Ltd”,
located outside country U, which is licensed jointly with Club D by the
Football Federation of country U for participation in all country U
Football competitions (…)”. In January 2011, a mistake was made in favor
of the player (overpayment of USD 15,000) whereas in March 2011, the
mistake was made to the detriment of the player (underpayment of USD
20,000). Moreover, the club maintains that it was only after the player´s
first notice letter dated 28 July 2011 that it became aware of the latter’s
salary underpayment for March 2011; which was effectively paid two
weeks after the aforesaid notification.
As to the salary for May 2011, the amount of USD 25,000 was deducted in
accordance with the fine imposed.
As to the USD 6,000 concerning the monthly accommodation allowances
for May, June and July 2011, the club underlines that the club possesses a
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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specific pattern on rental payment procedures: “they are made on
quarterly basis (after each three months rental period). This procedure
was well-known by the player and followed by him for quite a while”.
Moreover, after the first notice letter issued by the player in July 2011,
the club reminded the player where he could go to get the
reimbursement for those expenses.
As to the salary for July 2011, the club provided proof of payment of USD
60,506.61 for July 2011 (20,059.61 regarding the March salary + 40,447 –
5,000 for the fine imposed on him, on 5 July 2011, after arriving late from
vacation).
16.
In brief, the club indicates that out of the USD 66,432 claimed by the player in
his first notice to the club, the only sum which was mistakenly underpaid was
the sum of USD 20,432, which was in fact paid to the player on 16 August 2011,
17 days after his first notification.
17.
As a result, the club is of the firm belief that this mistake should not be
considered a serious breach of contract, providing the player with just cause to
unilaterally terminate the contract.
18.
Subsequently, the club deems that the dispute at hand should be assessed in
light of art. 17 of the Regulations on the Status and Transfer of Players but vice
versa: “it was the Player, who without a good reason and just cause had
unilaterally terminated the Contract in breach of its binding nature; and the
consequences, provided by the art. 17, shall be applied to him”.
19.
Consequently, the club filed a counterclaim against the player, requesting to be
awarded the total amount of EUR 1,342,128.6 plus 5% p.a. as from 12 August
2011, based on the following:
- “the club paid to Club C [player´s previous club] as its part of the transfer
compensation EUR 2 200 000 for the transfer of the Player (this sum did
not include the solidarity contributions to third clubs); the solidarity
mechanism payments to the third clubs amounted to EUR 36 884
[evidence on file]. Thus the total amount paid by the Club for acquisition
of the Player makes EUR 2 236 881”.
- Moreover, “his yearly salary under the contract made USD 500 000
(payable in 11 equal and monthly instalments of USD 45 454 45). The
remaining term of the Contract, early terminated by the Player, without
just cause makes 36 months (3 years)”.
20.
Finally, the club indicated that the player was already negotiating terms with
Club S, from country P.
21.
In his duplica, the player indicated that most of the disciplinary infractions of
which he is accused of, are entirely false. Nevertheless, the player acknowledges
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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having returned from vacation with a delay of four days, which happened
against his will.
22.
With regard to the other accusations, in particular, the one that the player
refused to travel and participate in one of the club´s away games, the player for
his part categorically rejects this allegation.
23.
Also, in order for a club to impose a disciplinary sanction on a player, it first
needs to indicate a disciplinary procedure against such a person, granting him a
notice to submit his defence before reaching a decision and imposing a
sanction.
24.
Moreover, in connection with the documents presented by the club, the player
claims not to be aware of them as apparently, they had never been
communicated to him. The player also underlines that the documents presented
by the club are not signed by him, are not recognized by a public notary and,
more importantly, the club has failed to present any fax reports or registered
letters proving that the player had indeed been notified of such documents.
25.
Having said this, the player categorically refutes the allegations regarding the
USD 25,000 apparently discounted from his salary for May 2011.
26.
In connection with the amounts claimed, the player stated that the amount of
USD 15,000 was never erroneously paid in advance as part of his salary for
January 2011, but rather as a payment for match bonuses. Moreover, as to the
salary for March 2011, in the amount of USD 20,432, the player wishes to
reiterate that the club only cancelled USD 20,000, after the player had
unilaterally terminated the contract on 12 August 2011, in a desperate attempt
to remedy its contractual breaches. However, the player maintains that USD 432
still remains outstanding.
27.
With regard to the accommodation allowances, the club
acknowledged such debt, but again failed to make any payment.
28.
As to his salary for July 2011, the player acknowledged that on 16 August 2011,
the club in fact cancelled the amount USD 40,447, however still owing him USD
5,007.54.
29.
Therefore, the player entirely rejects the allegations put forward by the club,
but amended his claim for outstanding remuneration as follows:
voluntary
1) Outstanding payments: USD 67,568.57 plus 5% interest p.a. “as from the
date they became due”:
- USD 15,000 corresponding to part of his salary for February 2011;
- USD 432 corresponding to part of his salary for March 2011
- USD 25,000 corresponding to part of his salary for May 2011;
- USD 5,007,54 corresponding to his salary for July 2011;
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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- USD 16,129,03 corresponding to 11 days of work in August 2011;
- USD 6,000 corresponding to his accommodation allowances for May
June and July 2011(2,000 x 3).
30.
Finally, the player stated that on 18 August 2011, he signed an employment
contract with Club S, from country P, valid until 30 June 2014. The player
underlines that at the moment of the relevant contractual termination, the
possibility of him signing with Club S was not guaranteed, particularly as the
country P club had merely shown its interest and intention, which had
apparently been clearly and openly communicated to Club D. However, before
registering him with the country P Football Federation, Club S decided to
communicate such decision to Club D, who in turn informed Club S the player
was not a free agent.
31.
As a result, Club S apparently decided not to register said employment contract.
The player indicated that, in view of Club S´s decision to unlawfully declare the
contract null and void, the player remained unemployed i.e. without receiving
any remuneration until he signed an employment contract with Club E, from
country B, on 10 January 2012, valid as from the date of signature until 10
January 2014, with a monthly remuneration of currency of country B 622.
32.
In its final position, the club rejected all the arguments put forward by the
player claiming that the latter had failed to prove the existence of just cause for
the early termination of the contract, whilst also failing to rebut the
counterarguments or discredit the documentary evidence presented by the club.
33.
The club emphasized that the player effectively admitted, that six days after
illegally leaving the club under the pretext of an unilateral termination of the
contract with just cause, he entered into a contractual relationship with Club S,
which from the previous negotiations conducted with the club [Club D] was
clearly aware of the fact that the player was contractually bound with the
latter. The club, as well as maintaining its initial request for relief, now considers
that the player was induced to enter into the contract with Club S, requesting
that the amount of EUR 1,342,128.6 plus 5% p.a. as from 12 August 2011
“should be paid jointly and severally by the Player, Player G, and Club S –
Football, SA”.
34.
In its reply, Club S stated it had never concluded a valid employment contract
with the player; at the end of the 2010/2011 season they apparently tried to
sign the player, but no agreement was ever reached with Club D. Subsequently,
in the summer of 2011, the player and his respective agent travelled to country
P contacting Club S, assuring them that he was now a free agent and that the
situation with his previous club [Club D] had been definitively solved.
35.
Club S explained that the possible contract would only be concluded subject to
the presentation of documentary proof “that the player had terminated with
just cause the contract (...)”, however, such proof was never presented and it
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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was not until August 2011, after entering into contact with the player that they
effectively realized that the player was still under contract; reason for which,
Club S claims to have never concluded a valid and effective employment
contract with the captioned player. Finally, Club S wished to point out that an
arbitration tribunal in country P decided that there was no sporting link
between the player and the new club, and that the parties had never concluded
a valid and effective employment contract.
36.
Finally, and in spite of having been invited by FIFA to do so, the country B club,
Club E, which according to the Transfer Matching System (TMS) was the first
club with which the player was registered after Club D, has failed to provide any
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 16 September 2011. Consequently, the 2008 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 2008 and 2012 editions 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 2012) the Dispute Resolution Chamber is competent to hear
employment-related disputes between a club and a player of an international
dimension. Therefore, the Chamber decided that it was, in principle, competent
to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a country B player and an country U
club, with the involvement of a country P and a country B club.
3.
In this respect, the Chamber pointed out that contrary to the information
contained in FIFA’s letter dated 22 February 2013 by means of which the parties
were informed of the composition of the Chamber, the members Mr M and Mr
A refrained from participating in the deliberations in the case at hand, due to
the fact that the member Mr M has the same nationality as two of the parties
involved in the present proceedings. In order to comply with the prerequisite of
equal representation of club and player representatives, also the member Mr A
refrained from participating and, thus, the Dispute Resolution Chamber
adjudicated the case in the presence of three members in accordance with art.
24 par. 2 of the Regulations on the Status and Transfer of Players.
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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4.
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 2010 and 2012), and considering that the present claim was lodged on
16 September 2011, the 2010 edition of said regulations (hereinafter:
Regulations) is applicable to the substance of the matter at hand.
5.
In this respect, the members of the Chamber started their deliberations by
indicating that before entering into the substance of the present matter, if
necessary, they first had to address the following issues:
I. By whom were the contract and the agreement to the contract signed?
II. Where were the financial terms reflected?
6.
With regard to the first issue, the members of the Chamber duly acknowledged
that the Claimant / Counter-Respondent and the Respondent / CounterClaimant had concluded an employment contract valid as from 10 August 2009
until 9 August 2014. Moreover, the Chamber acknowledged that on 10 August
2009, i.e. on the same date as when the contract was signed, the Claimant /
Counter-Respondent and a company named “XY Management Ltd.” had
signed an agreement to this contract, according to which the Company
undertook to pay the Claimant / Counter-Respondent the total amount of USD
500,000 per year. Equally, the agreement to the contract stipulated that the
Company would provide the Claimant / Counter-Respondent with bonuses and
a “serviced apartment”.
7.
In this respect, the Chamber wished to highlight that it was undisputed by the
parties that the employment contract at hand was signed by the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant, whilst the
agreement to the contract was signed by the Claimant / Counter-Respondent
and the Company.
8.
The Chamber then turned its attention to the issue as to whether the financial
terms were reflected in the employment contract concluded between the
Claimant / Counter-Respondent and the Respondent / Counter-Claimant or
whether they were in fact reflected in the agreement concluded between the
Claimant / Counter-Respondent and the Company.
9.
After a thorough analysis of the documents on file, the members of the
Chamber unanimously agreed that the employment contract concluded
between the Claimant / Counter-Respondent and the Respondent / CounterClaimant at the heart of the dispute did not provide for any financial terms.
The only indication to any sort of financial obligations between the parties was
reflected in art. 3 of the employment contract, which indicated that “the Club
shall pay the monthly salary to the player in accordance with item 1 of Annex 1
of this Agreement”. However, when requested by the FIFA administration to
provide a copy of “Annex 1 of this Agreement”, the Claimant / Counter-
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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Respondent indicated that, in fact, the agreement to the contract concluded
with the Company was to be considered as “Annex 1 of this Agreement”.
10.
At this point, the Chamber established that the employment contract itself,
which was concluded and signed between - and by - the Claimant / CounterRespondent and the Respondent / Counter – Claimant, did not contain any
financial obligations whatsoever between the Claimant / Counter – Respondent
and the Respondent / Counter Claimant.
11.
Thereupon, the Chamber focused its attention on the agreement to the
contract concluded between the Claimant / Counter-Respondent and the
Company which, in the present matter, was considered to be the only
document effectively containing financial obligations. In this respect, the
Chamber noted that this agreement to the contract was not signed by the
Respondent / Counter – Claimant, but only by the Company and the Claimant /
Counter – Respondent. What is more, article 1 of said agreement clearly stated
that the Claimant / Counter-Respondent´s salary was to be paid by the
Company. In addition, the payment receipts provided by the Claimant /
Counter-Respondent effectively confirmed that it was indeed the Company
paying for the Claimant / Counter-Respondent´s salaries and not the club itself.
12.
Moreover, the members of the Chamber also recalled, that in the Respondent /
Counter-Claimant´s statement of defense, it had stated that “the actual payer
of the relevant payments was not the Club itself but its partner – the Company
“XY Management Ltd.” (…).
13.
Having stated the aforementioned, and in line with the reasoning of the DRC
in previous and almost identical matters, the members of the Chamber
considered that the Claimant / Counter-Respondent´s claim was directed to the
wrong party and, subsequently, had to be rejected. The Chamber deemed that
Claimant / Counter – Respondent should have initiated proceedings against the
Company, which was the entity responsible for the payments to the Claimant /
Counter – Respondent in accordance with the agreement concluded between
the Company and the Claimant / Counter - Respondent.
14.
Subsequently, after having concluded that the player´s claim was directed to
the wrong party and thus rejected by the DRC, the Chamber turned its
deliberations to the counterclaim presented by the club and whether such a
counterclaim, taking into account the abovementioned interpretation of the
documents on file, could be upheld.
15.
In this respect, and prior to taking a decision, the Chamber carefully discussed
the values and principles behind the essence of any contractual relationship
between a player and a club. According to the Chamber, the relationship
between a club and a player should be based on a bilateral or reciprocal
contract in which both parties have mutual rights and obligations. A contract is
bilateral when the parties obligate themselves reciprocally. Simply put, in an
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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employment relationship between a club and a player, the latter renders his
services to the club, and, in return for the services rendered, the club pays the
player remuneration.
16.
However, in the matter at hand, as previously exposed, no reciprocal exchange
of obligations existed between the club and the player. Since, in accordance
with the employment contract, the Respondent / Counter – Claimant had no
financial obligations whatsoever towards the Claimant / Counter – Respondent,
the latter could not be considered bound by the employment contract, since
said contract failed to establish one of the main obligations of the employee:
the remuneration payable for the services rendered by the employer.
17.
In light of the above-mentioned, the members of the Chamber unanimously
agreed that the counterclaim of the Respondent / Counter-Claimant also had to
be rejected. The Chamber deemed that a club cannot discharge its financial
obligations by means of a private company and then on the other hand benefit
from the possible and eventual disrespect of the relevant obligations by said
company.
18.
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, Player G, is rejected.
2.
The claim of the Respondent/Counter-Claimant, Club D, 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:
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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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
Player G, from country B / Club D, from country U / Club S, from country P / Club E, from country B
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