Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2013,
in the following composition:
on the claim presented by the player,
Player A, from country M
as Claimant / Counter-Respondent
against the club,
Club F, from country R
as Respondent / Counter-Claimant
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 7 July 2009, the player form country M (hereinafter: the Claimant / CounterRespondent), and the club from country R (hereinafter: the Respondent / CounterClaimant) concluded an employment contract (hereinafter: the contract) valid as
from 15 July 2009 until 14 July 2010.
2.
According to the contract, the Claimant / Counter-Respondent was to receive, inter
alia, a total remuneration of EUR 800,000 made up of:
- EUR 300,000 payable on 15 July 2009;
- EUR 500,000 divided into 12 equal monthly salary instalments of EUR 41,666 to be
“paid on the first week of each month”.
3.
Clause 2 of the contract provided, inter alia, the following relevant duties to be
performed by the Claimant / Counter-Respondent:
a) Participation in all matches, training sessions and all related activities, unless
otherwise required by the Respondent / Counter-Claimant or due to any health
condition that prevents him in doing so advised by a medical report;
b) To “exert every possible participation effort and capability to achieve perfect
performance and results as provided for Clause 2/A above and compliance with
football rules”;
d) Compliance with all decisions issued by the Claimant / Counter-Respondent and
the Association;
f) To be a role model in conduct as well as to represent Respondent / CounterClaimant in the best possible manner;
j) Compliance “with performance of training programs decided by the technical
staff at any time during the day”;
l) “Not to depart the country without written permission from the club. If the
Player’s return is beyond the agreed date, the player will be fined (5,000) euro (five
Thousands) EURO for each day delayed, and two month salary if he delays more
than five days”.
4.
Clause 9 of the contract listed the following penalties in the event Claimant /
Counter-Respondent was to violate the contract:
a) “If the player is absent from a training session without an acceptable reason, he
will be fined Euro 5,000 per session. This fine is subject to multiply at each absence
repetition”;
b) “If the player is absent from an official match without an acceptable reason, he
will be fined a whole three monthly salaries”.
5.
Finally, the contract provided in its Clause 12 lit. j), that “if any party wishes to
terminate the contract before its expiry date: The wishing party must pay the rest of
the contract value to the other party”.
Player A, from country M / Club F, from country R
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6.
On 23 September 2010, the Claimant / Counter-Respondent lodged a claim against
the Respondent / Counter-Claimant for breach of contract before FIFA requesting
EUR 291,662 as outstanding remuneration which corresponds to outstanding
monthly salaries of January until July 2010 plus 5% p.a. of interest.
7.
In its reply, the Respondent / Counter-Claimant provided a correspondence dated 10
April 2010 allegedly sent to the Claimant / Counter-Respondent, in which the
Respondent / Counter-Claimant stated that the Claimant / Counter-Respondent was
absent from training sessions as of 16 January 2010 until to date and left the country
as from 18 until 23 January 2010 and as from 12 until 21 February 2010. Therefore,
the Respondent / Counter-Claimant asserted that it was entitled to deduct 50% from
the basic salary for the months of January until March 2010 as fines from the
Claimant / Counter-Respondent’s salary.
8.
Furthermore, the Respondent / Counter-Claimant provided on file a letter sent to the
Football Association of country R on 29 April 2010 stating that the Respondent /
Counter-Claimant had given a warning to the Claimant / Counter-Respondent
regarding “his commitment to the team training by express mail” dated 10 April
2010 and received by the Claimant / Counter-Respondent on 15 April 2010.
9.
The Respondent / Counter-Claimant once again made reference to its
correspondence dated 10 April 2010 and alleged having tried contacting the
Claimant / Counter-Respondent in order to have him perform his contractual
obligations and “to play in the Official Tournaments of the Association of country R
but all attempts of the Club were in vain, thus the club was forced to play these
matches with insufficient players” and forced to register another professional since
the whereabouts of the Claimant / Counter-Respondent where unknown.
10.
Consequently, the Respondent / Counter-Claimant alleged that the Claimant /
Counter-Respondent violated clause 2 of the contract, as well as clause 13 of the
regulation of players’ conditions and transfers issued by the UAE Football Federation,
and therefore was entitled to deduct from the Claimant / Counter-Respondent’s
salaries the following remuneration:
- half of the salaries of January, February and March 2010, pursuant to the notice of
compliance with trainings given by the Respondent / Counter-Claimant to the
Claimant / Counter-Respondent with its correspondence dated 10 April 2010 (EUR
62,499);
- the salary of two months (EUR 83,332), because the Claimant / CounterRespondent delayed travel from 18 January to 23 January (6 days) and 12 February
to 21 February (9 days), in accordance with art. 2 lit. l) of the contract;
- the salaries of April, May, June and July 2010 (EUR 124,998) the period remaining
from the term of the contract because the Claimant / Counter-Respondent was
absent from training and failed to inform to the Respondent / Counter-Claimant.
Player A, from country M / Club F, from country R
3/11
11.
In his replica, the Claimant / Counter-Respondent alleged that the Respondent /
Counter-Claimant’s allegations were not based upon good faith, since he had
fulfilled all obligations in relation to the contract. Moreover, the Respondent /
Counter-Claimant did not provide any evidence for said allegations, since he
allegedly never received the correspondence of the Respondent / Counter-Claimant
dated 10 April 2010. Furthermore, he asserted to have been “sacked by the coach
from the first team” in January 2010, once the Respondent / Counter-Claimant had
four foreign players even though the limit was three. From that moment on, the
Claimant / Counter-Respondent stated to have trained separately from the other
players, and consequently his next seven monthly salaries were not paid by the
Respondent / Counter-Claimant.
12.
Moreover, no club would accept a player to be absent seven months from training
without unilaterally terminating said employment with just cause and he had always
fulfilled the trainings by the Respondent / Counter-Claimant and had never left the
country without at least a verbal authorisation.
13.
In its reply, the Respondent / Counter-Claimant lodged a counter-claim against the
Claimant / Counter-Respondent and after amending its counter-claim, claims EUR
1,433,338 as compensation composed of:
- EUR 700,000 for the Claimant / Counter-Respondent’s absence to the training
sessions. The Respondent / Counter-Claimant made reference to art. 2 lit. l), as well
as art. 9 lit. a) of the contract and stated that the Claimant / Counter-Respondent
had been absent from the 5 training sessions held per week, for the period of 7
months (i.e. EUR 5,000 fine x per absent training for the season);
- EUR 249,996 for the Claimant / Counter-Respondent’s absence of two official
matches allegedly held on 25 December 2009 and 17 January 2010, according to
art. 9 lit. b) of the contract (i.e. EUR 41,666 as monthly salary x 6 monthly salaries
fine);
- EUR 83,332 corresponding to two monthly salaries in case the absence is of more
than 5 days as per art. 2 lit. l) of the contract;
- EUR 400,000 as penalty clause (cf. Clause 12 lit. j) of the contract);
- legal expenses.
14.
In this respect, the Respondent / Counter-Claimant asserted that the Claimant /
Counter-Respondent terminated the contract without just cause on 20 December
2009, which was the date he played the last match for the Respondent / CounterClaimant. Moreover, the Respondent / Counter-Claimant stated that the Claimant /
Counter-Respondent stayed in the country until 18 January 2010, leaving the country
without authorized permission from the Respondent / Counter-Claimant. In this
regard, the Respondent / Counter-Claimant provided an Immigration Statement of
the Ministry of Interior of the country R confirming that the Claimant / Counter-
Player A, from country M / Club F, from country R
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Respondent entered the country on 19 November 2009 and exited on 18 January
2010, re-entered the country on 23 January 2010 and exited on 12 February 2010, reentered again on 21 April 2010 and leaving on the same day until 30 April 2010 and
finally leaving the country on 25 May 2010.
15.
In order to prove the Claimant / Counter-Respondent’s absence, the Respondent /
Counter-Claimant has requested the Claimant / Counter-Respondent to present a
copy of his passport.
16.
Moreover, the Respondent / Counter-Claimant informed having received an e-mail
on 26 August 2010, from the Claimant / Counter-Respondent’s agent requesting that
the ITC of the Claimant / Counter-Respondent be issued. In this respect, the
Respondent / Counter-Claimant replied on the same day that “the status of the
Player should be settled with the Club and that the Club would like to discuss the
same” and that the Claimant / Counter-Respondent did not comply with Clause 2 of
the contract and therefore the Respondent / Counter-Claimant was “deducting 2
month’s salary for the delay” and was also “deducting 3 months and a half as 50%
from the salary amount”. Furthermore, the Respondent / Counter-Claimant asserted
that “we will pay the amount the club should pay after deducting the mentioned
above which equal (51,000) EURO”.
17.
The Respondent / Counter-Claimant further alleged that due to the Claimant /
Counter-Respondent’s absence, it had to register another player before the
expiration of the transfer period on 24 January 2010, once the Claimant / CounterRespondent apparently “came after the end of registration period, dated 21
February 2010”.
18.
The Respondent / Counter-Claimant further indicated that “there is no clause in the
Contract explicitly stipulating that the Player should be registered in the Association
of country in order for the Contract to be valid and that non registration of the
Player shall make the Contract invalid and this claim is rejected and according to the
Sports Custom the Club may desire to retain the Player without registration and
without termination of his Contract and this is what happened when the Club
retained the Player without registration although the Player is not present”. In this
regard, the Respondent / Counter-Claimant insisted that it has not terminated the
contract and that it has paid the Claimant / Counter-Respondent a huge amount,
despite the fact that the Claimant / Counter-Respondent has acted in a way to induce
the Respondent / Counter-Claimant to terminate the contract.
19.
In his position, the Claimant / Counter-Respondent stated that the Respondent /
Counter-Claimant has failed to provide the necessary evidence regarding the
Claimant / Counter-Respondent’s absence from the trainings between January 2010
and June 2010. Furthermore, the Claimant / Counter-Respondent alleged not having
received any of the notifications mentioned by the Respondent / Counter-Claimant
Player A, from country M / Club F, from country R
5/11
and stressed that once the alleged disciplinary infringements occurred, the
Respondent / Counter-Claimant should have immediately contacted the Claimant /
Counter-Respondent and not waited to allegedly try to notify him on 10 April 2010.
The Claimant / Counter-Respondent further referred that the aforementioned
correspondence “was used as the legal basis to discount 100% from the Player’s
salaries of January, February and March 2010, the Club has not supplied any reason
nor legal basis at all, to discount again 100 % of the Player’s salaries of April, May,
June and July 2010”.
20.
Furthermore, the Claimant / Counter-Respondent asserted that the clauses and the
disciplinary compensations established in the contract are not valid, since it puts the
Claimant / Counter-Respondent in an unjustified disadvantage compared to his
financial rights. Regarding the Immigration Statement provided by the Respondent /
Counter-Claimant, the Claimant / Counter-Respondent alleged that said document is
neither dated nor signed and should not serve as evidence.
21.
In its final position, the Respondent / Counter-Claimant maintained its previous
arguments.
22.
In the Claimant / Counter-Respondent’s final position as to the counter-claim, the
Claimant / Counter-Respondent maintained his position insisting that the receipt of
delivery presented by the Respondent / Counter-Claimant referring to the letter
dated 10 April 2010 is forged since the Claimant / Counter-Respondent never
received any notification. The Claimant / Counter-Respondent also rejected the
alleged contractual termination since the Respondent / Counter-Claimant never
contacted or informed the Claimant / Counter-Respondent on 20 December 2009 of
any contractual termination.
23.
The Claimant / Counter-Respondent stated not to have signed any new employment
contract until the expiry of the present contract.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the present matter. In this
respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) and took note that the present matter was submitted
to FIFA on 23 September 2010, thus after 1 July 2008. Consequently, the Chamber
concluded that the 2008 edition of the Procedural Rules is applicable to the matter at
hand.
Player A, from country M / Club F, from country R
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2.
Subsequently, the members of the DRC referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2009),
the Dispute Resolution Chamber shall adjudicate on employment-related disputes
between a club and a player of an international dimension. As a consequence, the
Dispute Resolution Chamber confirmed to be competent to deal with the matter at
stake, which concerns an employment-related dispute between a player A and an
club F.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In this
respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2012, 2010 and 2009) and,
on the other hand, to the fact that the present claim was lodged on 23 September
2010. In view of the aforementioned, the Dispute Resolution Chamber concluded
that the 2009 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, the
Chamber started to acknowledge the facts of the case as well as the documents on
the file.
5.
In this respect, the Dispute Resolution Chamber started by acknowledging that the
parties to the dispute had signed an employment contract valid as from 15 July 2009
until 14 July 2010 which provided that the Claimant / Counter-Respondent would be
entitled, inter alia, to a total remuneration of EUR 800,000 composed of EUR 300,000
due on 15 July 2009 and EUR 500,000 divided into 12 monthly instalments of EUR
41,666 each.
6.
Furthermore, the DRC noted that in accordance to clause 2 of the contract the
Claimant / Counter-Respondent was not allowed to depart from the country without
having written permission from the Respondent / Counter-Claimant, and in case of
absence beyond the agreed date, the Claimant / Counter-Respondent would be fined
EUR 5,000 per day, and he would be deducted two monthly salaries if the absence
were for longer than five days.
7.
After specifying the contents of the employment contract, the DRC further
acknowledged that the Claimant / Counter-Respondent lodged a claim against the
Respondent / Counter-Claimant for breach of contract, requesting the total
outstanding amount of EUR 291,662 corresponding to the monthly salaries of
January until July 2010, plus 5% p.a. of interest.
Player A, from country M / Club F, from country R
7/11
8.
On the other hand, the Chamber acknowledged that the Respondent / CounterClaimant rejected the Claimant / Counter-Respondent’s claim, since the latter
allegedly did not fulfill his contractual obligations due to his absences and based on
clause 2 of the contract lodged a counter-claim against the Claimant / CounterRespondent claiming EUR 1,433,338 as compensation for the Claimant / CounterRespondent’s absence.
9.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant / Counter-Respondent and
the counter-claim of the Respondent / Counter-Claimant, was to determine whether
the employment contract had been unilaterally terminated with or without just
cause by any of the parties, and which party was responsible for the early
termination of the contractual relationship in question. The DRC also underlined
that, subsequently, if it were found that the employment contract was terminated
without just cause, it would be necessary to determine the consequences for the
party that caused the unjust breach of the relevant employment contract.
10.
In this regard, the Chamber referred to the basic principle of burden of proof,
according to which a party claiming a right based on an alleged fact shall carry the
respective burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
11.
First and foremost, the Chamber noted that the Respondent / Counter-Claimant
alleged that the Claimant / Counter-Respondent was absent for the period between
18 until 23 January 2010 as well as from 12 until 21 February 2010 and was absent
from training session as from 16 January 2010. Furthermore, the Respondent alleged
that the Claimant / Counter-Respondent was warned about his unjustified absences
by a correspondence dated 10 April 2010.
12.
After carefully analysing the arguments provided, the Chamber acknowledged it was
uncontested by the parties that the Claimant / Counter-Respondent’s last match
played for the Respondent / Counter-Claimant was on 20 December 2009.
13.
In continuation, this piece of information is not contested by the parties, but also
corroborated by a statement issued by the Immigration Statement of the Ministry of
Interior of the country R which was provided on file by the Respondent / CounterClaimant. In this regard, from said document it was noted that the Claimant /
Counter-Respondent was half of the time outside the country during the period of
January 2010 until 25 May 2010, based that said document stated that the Claimant /
Counter-Respondent entered the country on 19 November 2009 and exited on 18
January 2010, re-entered the country on 23 January 2010 and exited on 12 February
2010, re-entered again on 21 April 2010 and exited on the same day, re-entering on
30 April 2010 and finally leaving the country on 25 May 2010.
Player A, from country M / Club F, from country R
8/11
14.
In this context, the Chamber observed that the employment contract signed between
the parties was valid as from 15 July 2009 until 14 July 2010.
15.
In view of the aforementioned information provided on the Immigration Statement,
the Chamber pointed out that it can be concluded that during the period of January
2010 until the expiry of the contract on 14 July 2010, i.e. a total period of 180 days,
the Claimant / Counter-Respondent was absent from the country for an approximate
total of 133 days.
16.
In this regard, the Chamber observed that the Claimant / Counter-Respondent
contested the validity of the Immigration Statement provided, however did not
proceed to submit any evidence contrary to said statement (cf. art. 12 par. 3 of the
Procedural Rules).
17.
In continuation, the DRC noted that despite the Claimant / Counter-Respondent’s
absence during the aforementioned period of approximate 133 days, the Respondent
/ Counter-Claimant only allegedly contacted the Claimant / Counter-Respondent
once, that is, on 10 April 2010.
18.
In this respect and based on the aforementioned facts, the Chamber noted that the
Respondent / Counter-Claimant did not provide sufficient documental evidence
which would prove its interest in having the Claimant / Counter-Respondent’s
services, or his return in order to resume his duties, since the Respondent / CounterClaimant did not provide any other proof that it had tried further contact with the
Claimant / Counter-Respondent.
19.
In continuation, the Chamber recalled that the Respondent / Counter-Claimant
acknowledged having registered another player before the expiration of the transfer
period on 24 January 2010, which is, before having properly warned the Claimant /
Counter-Respondent of his absences or of any possible contractual breach committed
by him during the validity of the contract.
20.
Therefore, based on the aforementioned argumentation, the Chamber understood
that the counter-claim lodged against the Claimant / Counter-Respondent should be
rejected.
21.
Moreover, the Chamber proceeded to analyse the Claimant / Counter-Respondent’s
claim for outstanding salaries and noted that the same disinterest could as well be
observed from the Claimant / Counter-Respondent’s side. According to the Claimant /
Counter-Respondent, he did not receive the salaries due for January until July 2010,
however, the Chamber deemed appropriate to recall the Claimant / CounterRespondent’s absence of 133 days during that period as well as to point out that in
accordance to the documentation provided, the Claimant / Counter-Respondent did
not proceed to contact the Respondent / Counter-Claimant once the salaries fell due
nor did he warn the Respondent / Counter-Claimant of any contractual breach prior
to lodging the present claim.
Player A, from country M / Club F, from country R
9/11
22.
In this respect, the Chamber found proper to acknowledge that both parties
committed contractual breaches which were not warned upon prior to lodging the
claim nor the counter-claim.
23.
At this point, the DRC deemed it appropriate to remind the parties of the basic
elements of a contract, namely an offer and an acceptance of said offer. Moreover,
the DRC recalled that the parties to an agreement must necessarily intend to enter a
legally binding relationship, which they shall either state explicitly or which can, in
certain cases, be inferred from the circumstances under which the agreement was
made.
24.
Bearing in mind the aforementioned principles, as well as the particular
circumstances of the present case, the members of the Chamber observed that
neither the Claimant / Counter-Respondent nor the Respondent / Counter-Claimant,
were able to prove based on substantial evidence, their legitimate intention and
interest to pursue a contractual obligation with their counterparties.
25.
In this regard, the Dispute Resolution Chamber rejected the claim of the Claimant /
Counter-Respondent as well as the counter-claim of the Respondent / CounterClaimant.
26.
In addition, the members of the Chamber decided that the Respondent / CounterClaimant’s request for legal costs is rejected in accordance with art. 18 par. 4 of the
Procedural Rules and its respective longstanding jurisprudence.
****
Player A, from country M / Club F, from country R
10/11
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant / Counter-Respondent, Player A, is rejected.
2. The counter-claim of the Respondent / Counter-Claimant, Club F, is rejected.
****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain all
the elements in accordance with point 2 of the directives issued by the CAS, a copy of which
we enclose hereto. Within another 10 days following the expiry of the time limit for filing
the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber
Markus Kattner
Deputy Secretary General
Encl. CAS Directives
Player A, from country M / Club F, from country R
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