Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 March 2013,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Zola Majavu (South Africa), member
on the claim presented by the player,
Player T, from country N
as Claimant
against the club,
Club S, from country C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On or about 25 June 2008, Player T, from country N (hereinafter: player or
Claimant) and Club S, from country C (hereinafter: club or Respondent) signed
a “football player’s agreement” (hereinafter: first agreement) valid for two
sporting seasons and to come to its end on 31 May 2010.
2.
According to art. 19 and art. 20 of the first agreement, should the player be
guilty of serious and/or persistent misconducts, or have acted in breach of the
agreement or of various regulations, the club has the right to either terminate
the agreement or to impose a fine upon the player, in the written form, and
explaining the reasons thereof.
3.
According to art. 14 of the first agreement, the club has the right to terminate
the contract in case of relegation to another division.
4.
Based on the first agreement, the player was to receive the following
remuneration:
Basic wage for the 2008/09 sporting season:
EUR 2,000 payable as an advance;
EUR 1,500 per month payable on the last day of the relevant month
and starting as from 31 August 2008 until 31 May 2009.
Basic wage for the 2009/10 sporting season:
EUR 3,000 payable as an advance on 1 July 2009;
EUR 1,700 per month, payable on the last day of the relevant month
and starting as from 31 August 2009 until 31 May 2010.
5.
On or about the same date, the player and the club signed an additional
agreement, bearing no signature date (hereinafter: additional agreement),
and also valid until 31 May 2010.
6.
Art. 27 par. 5 of the additional agreement stipulates that the player has the
right to terminate his contract without further notice in case the club fails to
pay him more than three monthly salaries.
7.
The additional agreement provides for the following remuneration and
benefits:
Basic wage for the 2008/09 sporting season:
EUR 13,000 payable as an advance;
EUR 3,000 per month, payable on the last day of the relevant month
and starting as from 31 August 2008 until 31 May 2009.
Basic wage for the 2009/10 sporting season:
EUR 13,000 payable as an advance on 1 July 2009;
EUR 4,700 per month, payable on the last day of the relevant month
and starting as from 31 August 2009 until 31 May 2010.
Player T, from country N / Club S, from country C
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Accommodation amounting to EUR 500 per month during both sporting
seasons.
8.
On 15 July 2008, the club and the player allegedly signed a third agreement
(hereinafter: third agreement), which contents are fully similar to the first
agreement. However, and contrary to the first and the additional agreements,
the third agreement is dated and bears a stamp.
9.
Art. 26 of the third agreement sets forth that it cancels any previous
agreements existing between the player and the club.
10.
On 3 April 2009 and 17 April 2009, respectively, the player sent a default notice
to the club. In particular, in his second default notice, the player indicated not
having received one outstanding monthly salary in the amount of EUR 4,500,
as well as five unpaid accommodation installments, i.e. EUR 2,500, and asked
the club to proceed with the corresponding payments.
11.
On 12 June 2009, the player sent another default notice to the club, requesting
the payment of three outstanding salaries plus five accommodation-related
installments and specified that in the absence of payment within the next two
days, the player would terminate the employment relation.
12.
On 15 June 2009, the player was informed of the club’s notice of termination
of the employment relation dated 5 June 2009 due to the facts that the club
had allegedly been relegated and that the player had been found guilty of
persistent misconduct and breach of the regulations and of his contractual
obligations.
13.
On 30 June 2009, the player lodged a claim before FIFA against the club for
breach of contract without just cause.
14.
In this regard, he firstly held that the club had not been relegated. What is
more, and should the club indeed have been relegated, the player put forward
that such clause is anyhow illegal as it is a potestative clause.
15.
Furthermore, the player denied having ever misbehaved or having been guilty
of any persistent misconduct. In this respect, the player pointed out that he
never received any warning from the club and that he never was given any
copies of the various regulations the club referred to in its termination letter.
16.
In addition, the player asserted that, in the beginning of April 2009, the club
informed him that it was not willing to continue their employment relation
any longer, to which he disagreed.
17.
As a result of the above, the player claimed outstanding salaries in the amount
of EUR 13,500 for the sporting season 2008/09, corresponding to the months of
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March, April and May 2009, plus EUR 2,500, corresponding to five unpaid
installments relating to his accommodation.
18.
In addition, the player claimed the amount corresponding to the entire
residual value of the first agreement and the additional agreement as
compensation for breach of contract by the club, i.e. EUR 80,000.
19.
Finally, and based on decisions passed by of the Court of Arbitration for Sport
related to breach of contract, the player claimed the additional amount of EUR
48,000, i.e. six monthly salaries of EUR 8,000 each, as punitive damages, this
amount being based on the specificity of sport, the club’s behaviour and the
inconvenient time when the latter would have breached the agreements
signed with the player.
20.
The player also claimed 5% interest to be calculated as from the relevant due
dates.
21.
In its reply to the claim, the club confirmed that it signed with the player, on
25 June 2008, the first agreement and the additional agreement. However, the
club held that based on country C law, said agreements are void as they do not
bear any state stamp nor any date.
22.
However, the club stressed that, on 15 July 2008, the club and the player
signed the third agreement valid as from the date of signature until 31 May
2010 and which, contrary to the first two agreements, bears the required State
stamp as well as a date.
23.
According to the club, this third agreement was signed after the club realised
that the player was of an amateur level instead of a professional level. As a
result, the club decided to diminish, with the player’s approval, his
remuneration.
24.
In this respect, the club highlighted that art. 26 of third agreement sets forth
that all previous agreements between the player and the club are cancelled. As
a result, the club held that the first two agreements that were signed in June
2008 are to be considered as cancelled.
25.
In continuation, the club explained that it got relegated at the end of the
sporting season 2008/09, which gave it the possibility to terminate the
contractual relation with the player in accordance with contractual clause 14.
26.
Finally, the club held that it actually paid more to the player than it should
have and that, in fact, it could be that the player would have to reimburse
some undue payments he received.
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27.
The club specified that it paid to the player the amount of EUR 56,500 and
presented various documents in this respect, covering a period of time
comprised between the months of August 2008 and April 2009.
28.
In his replica, the player maintained that, as it is the practice in country C, two
agreements were signed by and between the player and the club on 25 June
2008.
29.
The player explained that the third agreement presented by the club, which
contents are just the same as the first agreement, and which is, “all of a
sudden”, dated 15 July 2008, is doubtful as he was not in country C on that
date and he did not have any reason to sign this third agreement.
30.
In addition, the player held that the third agreement presented by the club, if
binding, would have been completely disregarded by the club, since the
payments made to the player matched the terms of the first and additional
agreements, apart from the fact that the club’s explanation that the player
would have received more than he should have received is not plausible.
31.
Furthermore, the player reiterated that the club cannot refer to art. 14, since it
did not get relegated, but was actually promoted to the higher division at the
end of the sporting season at stake and that the club never submitted any
evidence of the player’s alleged misconducts, which allegations the player
denied.
32.
In conclusion, the player held that it can only be found that the club
terminated the contract without just cause and that it has to pay the amounts
claimed by the player, including the punitive damages.
33.
In its final comments, the club reiterated that the only valid agreement
binding the parties is the third agreement, the others being void under
country C law as they do not bear any date or a stamp from the State.
34.
On 14 July 2009, the player signed an employment contract with Club R, valid
as from 1 July 2009 until 30 June 2012.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as to
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 30 June 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. 1 and par. 2 of the Procedural Rules).
Player T, from country N / Club S, from country C
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2.
Subsequently, the members of the Dispute Resolution 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 Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a country N player and a country C club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (editions 2012, 2010 and 2009), and considering that the present claim
was lodged on 30 June 2009, the 2008 edition of said Regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and
reviewed the facts of the case.
5.
In this respect, the Chamber acknowledged that the Claimant and the
Respondent signed, on or about 25 June 2008, a first agreement as well as an
additional agreement, both entering into force as from an unspecified date
and valid until 31 May 2010.
6.
Additionally, the Chamber noted that according to the Respondent, on 15 July
2008, the Claimant and the Respondent signed a third agreement, valid as
from its signature date until 31 May 2010, the purpose of which was to replace
the two above-mentioned agreements that are, anyhow, according to the
Respondent, void under country C law.
7.
Furthermore, the Chamber took into account that the Claimant denied having
signed the third agreement dated 15 July 2008 submitted by the Respondent.
8.
In continuation, the Chamber further took into account that by means of its
correspondence dated 5 June 2009, which the player declared having been
informed of on 15 June 2009, the Respondent terminated the employment
relation with the Claimant.
9.
Subsequently, the Chamber acknowledged that ,on 30 June 2009, the Claimant
lodged a claim before FIFA against the Respondent, holding that the latter
unilaterally terminated the first two agreements signed by and between them
without just cause and consequently claimed payment of outstanding
remuneration as well as compensation for breach of contract based on the first
and on the additional agreement.
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10.
The Respondent, for its part, rejected the Claimant’s claim maintaining that it
validly terminated the employment relation with the Claimant on the basis of
art. 14 of the third agreement.
11.
With this in mind, the Chamber concurred that the circumstances leading to
the early termination of the employment relation at stake by the Respondent
had to be examined in greater detail, in order for the Chamber to be in a
position to determine as to the whether the employment relation between the
parties has been terminated with or without just cause, and which party is to
be held responsible for the early termination of the employment relation in
question.
12.
The Chamber also underlined that, if it was found that the employment
relation was terminated by one of the parties without just cause, it would be
necessary to determine the consequences for the party that is to be held liable
for the termination of the employment relation without just cause.
13.
In this context, and bearing in mind the parties’ divergent position, the
members of the Chamber unanimously agreed that it, first and foremost, had
to determine which of the various agreements at stake represented the legal
basis of the parties’ employment relation regulating the parties’ respective
rights and obligations.
14.
In continuation, the Chamber first focussed its attention on the third
agreement presented by the Respondent while emphasising that the original
of the agreement at stake was on file.
15.
After having analysed the stipulations of the third agreement, the Chamber
found that they are fully similar to the terms stipulated in the first agreement,
with the difference that the third agreement bears a signature date and a
stamp.
16.
Following its analysis, the Chamber reverted to the Claimant’s statement that,
as opposed to the first and the additional agreement, the validity of the third
agreement would be doubtful since he was not in country C on the date of the
alleged signature of the third agreement.
17.
In this regard, bearing in mind the Claimant’s implicit allegation of forgery,
the DRC emphasized that, as a general rule, it is not the competent body to
decide upon matters of criminal law, such as allegedly falsified signatures or
documents, but that such affairs fall within the jurisdiction of national penal
courts.
18.
In continuation, the DRC pointed out that all documentation remitted shall be
considered with free discretion and, therefore, focused its attention on the
three agreements available on file as well as other documents containing the
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Claimant’s signature. After a thorough analysis of the aforementioned
documents, in particular, comparing the relevant signatures, the Chamber had
no other option but to conclude that for a layman, the Claimant’s signatures
on the various documents available, including the challenged document, seem
to be alike.
19.
Consequently, on account of the above, the Chamber concluded that the third
agreement must be considered a legally binding agreement.
20.
The members of the Chamber then turned their attention to clause 26 of the
third agreement, according to which any previous agreements, which would
thus include the first and the additional agreement, are cancelled.
21.
Yet, the Chamber highlighted that in fact, the Respondent, for the duration of
an entire season, had remunerated the player in accordance with the first and
the additional agreements.
22.
In this respect, the DRC was eager to underline that, whereas on the basis of
the third agreement the player was entitled to receive EUR 15,000 as from
August 2008 until April 2009, the Respondent itself had specified having paid
to the Claimant the amount of EUR 56,500 between the months of August
2008 and April 2009, and that it had transmitted documentary evidence
corroborating this assertion, which had anyhow not been contested by the
Claimant.
23.
In continuation, the Chamber established that the Respondent had not
presented any plausible explanation for having allegedly paid the Claimant in
excess of his entitlements on the basis of the third agreement with such
considerable amount.
24.
In view of the above, the DRC established that the parties had de facto carried
out the financial terms of the first agreement and of the additional
agreement.
25.
As a result, the Chamber rejected the Respondent’s assertion that the parties’
employment relation was only ruled by the stipulations contained in the third
agreement dated 15 July 2008 and that the first two agreements were void.
Accordingly, the members of the Chamber concluded that the parties’
respective contractual rights and obligations were to be analysed on the basis
of the terms stipulated in the first agreement in combination with the
additional agreement.
26.
Having so found, the Chamber reverted to the contents of the Respondent’s
termination letter dated 5 June 2009 and noted that the Respondent referred
in said letter to contractual clauses as well as to reported misconducts and
breaches by the Claimant in order to justify the unilateral termination of the
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employment relation. Furthermore, the Chamber noted that the Respondent
reiterated in its reply to the player’s statement of claim that it deemed that it
was in a position to terminate the employment relation on the basis of terms
stipulated in the contractual clauses.
27.
In continuation, the Chamber noted that the Claimant, for his part, asserted
that the termination of the employment relation is unjustified, since, first of
all, it is not correct that the club was relegated and that, in addition, even if it
had been the case, quod non, said contractual clause is illegal due to its
potestative nature.
28.
Furthermore, the Chamber noted that the Claimant denied having ever been
guilty of any persistent misconducts or breaches of his obligations as alleged
by the Respondent. In this respect, the DRC noted that the Claimant asserted
that he was never sanctioned or warned by the Respondent in relation to such
alleged misbehaviours and that the Respondent did not present any
documentation corroborating its allegations in this regard.
29.
In this context, the Chamber deemed it relevant to recall the legal principle set
forth in art. 12 par. 3 of the Procedural Rules in accordance with which any
party claiming a right on the basis of an alleged fact shall carry the burden of
proof.
30.
Furthermore, and after having reviewed the Respondent’s submissions, the
Chamber found that the Respondent had not submitted any evidence in
support of its allegation that the club would have been relegated to a lower
division, allegedly allowing it to terminate the employment contract on the
basis of said clause 14.
31.
In view of the above, the Chamber concluded that the Respondent’s argument
that it would have been in a position to terminate the employment relation
with the Claimant on such basis had to be rejected.
32.
Having so found, the Chamber deemed that it was not necessary for it to
proceed to a more in depth analysis of the alleged potestative nature of art. 14
of the first agreement.
33.
In continuation, the Chamber turned its attention to the Respondent’s
additional statement that the early termination of the employment relation
with the Claimant would have been justified by the Claimant’s “persistent
misconduct and/or breach” of the regulations or, more generally, of his
contractual obligations towards the Respondent.
34.
In this respect, as stated above, the DRC held that the Respondent had failed
to corroborate its position in this regard with any documentary evidence.
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35.
As a result thereof, the Chamber concluded that the Respondent’s argument
that the termination of the employment relation was justified on the basis of
the Claimant’s alleged misconduct or breach of his obligations also had to be
rejected.
36.
As a result of all the above considerations, the members of the Chamber
unanimously decided that the Respondent unilaterally terminated the
employment relation with the Claimant on 5 June 2009 without just cause.
37.
Having established that the Respondent is to be held liable for the early
termination of the employment relation without just cause, the Chamber
stated that it, therefore, had to assess the consequences of this unilateral
termination of the contractual relation with the Claimant in accordance with
the provisions provided for by Chapter IV of the Regulations.
38.
Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided
that the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding payments, on the basis of
the first two agreements signed between the parties.
39.
As to the question of the possible existence of outstanding salaries, the
Chamber deemed it relevant to recall that it had previously established that
the parties’ respective contractual rights and obligations were to be analysed
on the basis of the stipulations contained in the first agreement in
combination with the additional agreement (cf. point II./25. above).
40.
In this context, the Chamber took into consideration that at the time of the
termination of the employment relation, i.e. 5 June 2009, on the basis of the
first and the additional agreement the Claimant should have received the total
amount of EUR 66,000; The Claimant had admitted having received from the
Respondent the amount of EUR 56,500, therefore, leaving a balance in the
Claimant’s favour in the amount of EUR 9,500, which amount the Claimant
could not prove to have paid to the Claimant.
41.
Consequently, the DRC decided that the Respondent has to pay to the
Claimant outstanding remuneration in the amount of EUR 9,500, consisting of
EUR 4,500 for April 2009 and EUR 5,000 (including EUR 500 for
accommodation) for May 2009.
42.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the
outstanding monthly remuneration as of the day following the day on which
such remuneration had fallen due.
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43.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation payable by the Respondent for breach of contract
without just cause in the case at stake. In doing so, the members of the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and
unless provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including, in particular, the remuneration and other
benefits due to the player under the existing contract and/or the new contract,
the time remaining on the existing contract up to a maximum of five years and
whether the contractual breach falls within the protected period.
44.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains a
provision by which the parties had beforehand agreed upon an amount of
compensation payable by either contractual party in the event of breach of
contract. In this regard, the Chamber established that no such compensation
clause was included in the first agreement or in the additional agreement.
45.
As a result thereof, the DRC determined that the amount of compensation
payable by the Respondent to the Claimant as compensation for breach of
contract had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
Therefore, other objective criteria may be taken into account at the discretion
of the deciding body. In this regard, the DRC emphasised beforehand that
each request for compensation for contractual breach has to be assessed on a
case-by-case basis taking into account all specific circumstances of the
respective matter.
46.
In order to establish the amount of compensation due to the Claimant in the
present matter, the DRC first turned its attention to the remuneration due to
the Claimant under the existing agreements and/or the new contract, which
criterion was considered by the Chamber to be essential. The members of the
DRC deemed it important to emphasise that the wording of art. 17 par. 1 of
the Regulations allows it to take into account both the existing contract and
the new contract in the calculation of the amount of compensation.
47.
Bearing in mind the foregoing, the Chamber first proceeded with the
calculation of the salaries payable to the Claimant under the terms of the first
and the additional agreement until 31 May 2010 and concluded that the
amount of EUR 80,000, i.e. the total salaries as from the moment the breach
occurred until 31 May 2010 was payable to the Claimant. In this respect, the
Chamber took into account that the aforementioned amount corresponds to
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the amount claimed as compensation for breach of contract without just cause
by the Claimant on the basis of the first and the additional agreement.
48.
In continuation, the Chamber verified as to whether the Claimant had signed
an employment contract with another club during the relevant period of time,
by means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
49.
Indeed, on 14 July 2009, the Claimant signed an employment contract with the
country N club, Club R, valid as from 1 July 2009 until 30 June 2012, in
accordance with which the Claimant was entitled to receive from Club R the
total amount of EUR 54,000 until 30 June 2010. On this basis, the Claimant was
able to reduce his loss of income with the total amount of EUR 54,000.
50.
For all the above considerations, the DRC decided to partially accept the
Claimant’s claim and that the Respondent must pay to the Claimant the
amount of EUR 26,000 as compensation for the unilateral breach of contract
without just cause.
51.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on said amount of
compensation for breach of contract as of the date of the present decision, i.e.,
15 March 2013, until the date of effective payment.
52.
The Chamber concluded its deliberations in the present matter by establishing
that any further claims of the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player T, is partially accepted.
2.
The Respondent, Club S, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount
of EUR 9,500 plus interest at 5% p.a. until the date of effective payment as
follows:
a) 5% p.a. as of 1 May 2009 over the amount of EUR 4,500;
b) 5% p.a. as of 1 June 2009 over the amount of EUR 5,000.
3.
The Respondent, Club S, has to pay to the Claimant compensation for breach
of contract in the amount of EUR 26,000 within 30 days as from the date of
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notification of this decision plus interest at the rate of 5% p.a. as of 15 March
2013 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent within
the stated deadlines, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and decision.
5.
Any further request filed by the Claimant is rejected.
6.
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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