Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 October 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Johan van Gaalen (South Africa), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
M,
as Claimant / Counter-Respondent
against the player,
L,
as Respondent / Counter-Claimant
and the club,
S,
as Intervening party
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 26 May 2008, the club, M (hereinafter: the Claimant / Counter-Respondent), and
the player, L (hereinafter: the Respondent / Counter-Claimant), entered into an
employment contract valid from 1 July 2008 until 1 July 2010.
2.
According to the employment contract, the Respondent / Counter-Claimant was to
receive during the course of the contract a total amount of EUR 104,000 detailed as
follows:
a. EUR 15,000 upon signature of the contract;
b. EUR 42,000 as salaries from July 2008 to June 2009, payable on the 20th of
each month (12 x EUR 3,500);
c. EUR 5,000 payable until 1 July 2009;
d. EUR 42,000 as salaries from July 2009 to June 2010, payable on the 20th of
each month (12 x EUR 3,500).
3.
The Claimant / Counter-Respondent and the Respondent / Counter-Claimant equally
signed a ‘duplicate contract’ on the same day, which provides for a monthly salary of
5,692.85 and, according to the Claimant / Counter-Respondent, was concluded for
registration purposes only.
4.
On 10 October 2008, the Respondent / Counter-Claimant allegedly left the Claimant /
Counter-Respondent without the latter’s authorisation or knowledge.
5.
On 1 December 2008, the Claimant / Counter-Respondent lodged a claim against the
Respondent / Counter-Claimant in front of FIFA, requesting the return of the
Respondent / Counter-Claimant. The Claimant / Counter-Respondent submits that it is
willing to pay the outstanding salaries until the date of departure of the Respondent
/ Counter-Claimant, amounting to EUR 4,629 (3,500 for September and EUR 1,129 for
October 2008). Alternatively, if the Respondent / Counter-Claimant refuses to return
to the club, the Claimant / Counter-Respondent asks for the employment contract to
be declared terminated without just cause by the Respondent / Counter-Claimant as
well as to be given the opportunity to ask for compensation.
6.
According to the Claimant / Counter-Respondent, the following amounts were paid
to the Respondent / Counter-Claimant:
a. EUR 7,000 for the salaries of July and August 2008;
b. EUR 15,000 as sign-on fee.
7.
In this respect, the Claimant / Counter-Respondent points out that its default of
payment of one monthly salary cannot constitute a just cause for the player to
terminate the employment contract, in particular, in view of the fact that the
Respondent / Counter-Claimant has never complained of the foregoing to the
Claimant / Counter-Respondent.
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8.
On 6 January 2009, the Claimant / Counter-Respondent contacted the Respondent /
Counter-Claimant directly to ask him to return to the club and perform the
employment contract.
9.
In reply to the claim, the Respondent / Counter-Claimant states that he received the
following amounts during the course of the relevant employment relationship:
a. EUR 15,000 as sign-on fee;
b. EUR 2,500 salary for July 2008, instead of EUR 3,500;
c. no payments for August and September 2008.
10.
In this respect, the Respondent / Counter-Claimant declares having requested the
missing payments several times, contrarily to the declaration of the Claimant /
Counter-Respondent.
11.
The Respondent / Counter-Claimant equally declares that, following an own goal he
scored, he was substituted and told by the Claimant / Counter-Respondent’s manager
(Mr X) to pack his belongings, go home and that he never wanted to see the
Respondent / Counter-Claimant again. After being asked what he meant, the
manager repeated to the Respondent / Counter-Claimant to go home and disappear
and that he never wanted to see him again.
12.
The Respondent / Counter-Claimant lodged a counterclaim requesting:
a. the employment contract to be declared terminated without just cause by
the club;
b. the payment of outstanding salaries amounting to EUR 9,129;
c. the payment of compensation for breach of contract in the amount of EUR
77,371, constituted as follows:
i. salaries from 10 October 2008 until June 2010 (EUR 2,371 for October
2008 + 20 x EUR 3,500);
ii. EUR 5,000 as sign-on fee due on 1 July 2009.
13.
The Claimant / Counter-Respondent explains that the salaries of July and August
2008 were paid cash by the club’s accountant against receipt.
14.
The Claimant / Counter-Respondent further questions the Respondent / CounterClaimant’s attitude, explaining that the latter had filed a claim at the Y Football
Union (YFU) Arbitration Commission on 10 December 2008, requesting the
employment contract to be declared terminated by the player with ‘‘sporting just
cause’’ for the missing payments of EUR 1,000 for August 2008 and EUR 1,000 for
September 2008 and that the Respondent / Counter-Claimant, therefore, has placed
two contradicting claims in front of two different arbitration bodies. According to
the information submitted by the Claimant / Counter-Respondent, the deciding body
of the Y Football Union declined its jurisdiction due to the existence of a pending
dispute in front of FIFA.
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15.
The Claimant / Counter-Respondent equally states that Mr X is the Executive Director
of the club and therefore could not have been involved with a substitution and that
he never held a discussion with the Respondent / Counter-Claimant during or after
the match of 10 October 2008. In this respect, the Claimant / Counter-Respondent
also questions the Respondent / Counter-Claimant’s capacity to understand the
language Y and therefore what the manager might told him. Furthermore, the
Claimant / Counter-Respondent explains that if such a discussion had taken place, it
would not have meant that the player was asked to leave, because many things are
said under the tension of a match and have to be interpreted within the
circumstances. This means that, if ever Mr X did say what the Respondent / CounterClaimant claims, it would not have meant that the Respondent / Counter-Claimant
was definitively dismissed from the club and that the employment contract was
terminated.
16.
The Claimant / Counter-Respondent explains that players’ salaries for September
2008 were not paid because the sponsor was affected by the economic crisis and that
all the players were paid on 20 October, except the Respondent / Counter-Claimant,
because he had previously left the club. Furthermore, the Claimant / CounterRespondent reiterated that the default of one monthly salary cannot constitute a just
cause, in particular bearing in mind the absence of a written notice from the
Respondent / Counter-Claimant.
17.
The Claimant / Counter-Respondent maintains that the Respondent / CounterClaimant breached the employment contract by being absent as from 10 October
2008 without any authorisation and/or written notice and by not providing any
evidence demonstrating either the authorisation to leave or the existence of a just
cause.
18.
The Claimant / Counter-Respondent specifies its claim requesting the following:
a. the contract to be declared terminated without just cause by the
Respondent / Counter-Claimant during the protected period;
b. EUR 38,737.50 for non-amortised transfer fee allegedly paid to P (EUR 45,000
: 24 months x 20 and 2/3);
c. EUR 13,531.25 including: EUR 10,825 for non-amortised sign-on fee (EUR
15,000; cf. point I./2.), plus EUR 2,706.25 of 20% tax (i.e. 10% of taxable
income and 10% flat tax rate);
d. EUR 96,713.75 including: EUR 77,371 for compensation made up by the
remaining salaries as from 10 October 2008 until the end of the contract
(EUR 72,371) and EUR 5,000 as lump sum payable on 1 July 2009, plus EUR
19,342.75 of 20% tax (i.e. 10% of taxable income and 10% flat tax rate);
e. EUR 5,000 for the costs paid by the club in order to replace the player;
f. 5% interest from the date of termination of the contract on 10 October
2008.
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19.
The Claimant / Counter-Respondent repeats that it is willing to pay the unpaid
salaries in the amount of EUR 4,629 for the period from 1 September to 10 October
2008.
20.
According to Respondent / Counter-Claimant, the reason for his departure was not
the existence of missing payments, but the declaration from the Claimant / CounterRespondent (Mr X, cf. point I./11.) after the match on 10 October 2008, which he
believes had to be interpreted as a definitive dismissal from the club.
21.
The Respondent / Counter-Claimant also disputes the amount of EUR 45,000 the M
club claims to have paid P for the transfer of the player. In this respect, the player
submitted a statement from P indicating that the document provided by the club M
is flawed.
22.
Alternatively to his request for compensation of EUR 77,371 (cf. point I/12.c.), the
Respondent / Counter-Claimant submits a subsidiary claim for compensation in the
amount of EUR 27,000 (8 x 3,500), which consists of the salaries contractually due as
from 10 October 2008 until 1 June 2009, date on which the employment contract
between the Respondent / Counter-Claimant and the club, S, was concluded.
23.
The Respondent / Counter-Claimant signed an employment contract with the club, P,
valid from 1 June 2009 until 30 May 2010, a copy of which has been made available
by the Respondent / Counter-Claimant upon FIFA’s request. According to said
contract, the player was entitled to 14 instalments of EUR 1,300 from 1 June 2009
until 30 May 2010.
24.
S took position on the affair by declaring that the first contact it had with the player
was in April 2009, therefore long after the Respondent / Counter-Claimant’s
departure and that the said contract was signed under the condition that all
formalities relating to the Respondent / Counter-Claimant’s release were resolved.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1 and
2 of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules). The
present matter was submitted to FIFA on 1 December 2008, thus after 1 July 2008.
Consequently, the Chamber concluded that the 2008 edition of the Procedural Rules
is applicable to the matter at hand.
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
2010), the Dispute Resolution Chamber is competent to deal with the matter at
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stake, which concerns an employment-related dispute with an international
dimension between a player and a club.
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 2008, 2009 and 2010) and,
on the other hand, to the fact that the present claim was lodged on 1 December
2008 and that the relevant employment contract was signed on 26 May 2008. In view
of the aforementioned, the Dispute Resolution Chamber concluded that the 2008
version 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 and, in doing so,
examined the documentation presented by the parties throughout the proceedings
and took note that the parties to the dispute had signed, on 26 May 2008, an
employment contract valid from 1 July 2008 to 1 July 2010. According to the contract,
the Respondent / Counter-Claimant was entitled to receive a total net remuneration
of EUR 104,000 from the Claimant / Counter-Respondent.
5.
In continuation, the Chamber paid due consideration to the fact that the Claimant /
Counter-Respondent maintained that the player had left the club on 10 October
2008 without just cause and without its authorisation. As a consequence, the
Claimant / Counter-Respondent asked to be awarded an amount as compensation for
breach of the employment contract by the Respondent / Counter-Claimant.
Moreover, the members of the Chamber stressed that the Claimant / CounterRespondent repeatedly stated that it was willing to pay the Respondent / CounterClaimant’s salaries due until the day of his departure.
6.
Equally, the Dispute Resolution Chamber pointed out that the Respondent / CounterClaimant claimed he did not receive part of the salary due for the month of July 2008
(EUR 2,500 instead of EUR 3,500) as well as the entire salaries due for the months of
August and September 2008. The Chamber also noted that the Respondent /
Counter-Claimant declared having had just cause to leave the club on 10 October
2008 following a declaration of the Claimant / Counter-Respondent’s Executive
Director, according to which the player was asked to leave the club. Therefore, the
Respondent / Counter-Claimant requested the payment of compensation for breach
of the employment contract by the Claimant / Counter-Respondent.
7.
Based on the foregoing, the Chamber established that it is undisputed that the
Respondent / Counter-Claimant had left the club on 10 October 2008.
8.
In continuation, the Chamber acknowledged that the Claimant / Counter-Respondent
had not contested the allegations of the Respondent / Counter-Claimant, according
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to which he had not received the salary due for September 2008. The Chamber
recalled that, on the contrary, the Claimant / Counter-Respondent declared its will to
pay outstanding salaries to the Respondent / Counter-Claimant in the amount of EUR
4,629, which amount corresponds to the salary of September 2008 plus 10 days of
October 2008.
9.
With regard to the portion of salary of July 2008 and the salary of August 2008,
which the Respondent / Counter-Claimant argues were not paid, i.e. EUR 4,500 (EUR
1,000 for July 2008 and EUR 3,500 for August 2008), referring to 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, the Chamber highlighted that the
Claimant / Counter-Respondent had not provided FIFA with any documentary
evidence that the relevant salary had been paid. Consequently, the Chamber
concluded that the Claimant / Counter-Respondent had failed to remit the
Respondent / Counter-Claimant’s salaries as from July 2008 (partially) until and
including September 2008, which had fallen due in accordance with the employment
contract when the player left the club, i.e. 10 October 2008.
10.
In this context, the Chamber held that, in accordance with the basic legal principle of
pacta sunt servanda, the Claimant / Counter-Respondent must fulfil its obligations as
per the contract entered into with the Respondent / Counter-Claimant and,
consequently, pay the outstanding remuneration which is due to the latter.
11.
In continuation, the members of the Chamber took due note of the Respondent /
Counter-Claimant’s argumentation, according to which, at the time of his departure,
there were outstanding salaries of more than 2 months and that he left the club
because of the clear dismissal from the club on 10 October 2008. The Claimant /
Counter-Respondent, for its part, maintained that the Respondent / CounterClaimant acted in breach of contract by leaving the club without authorisation
and/or written notice.
12.
In view of the foregoing, the members of the Chamber recalled that the Claimant /
Counter-Respondent was unable to prove the payment of the salaries due to the
Respondent / Counter-Claimant for the months of July in full and August 2008.
Equally, the Claimant / Counter-Respondent admitted that the salary for September
2008 had not been paid. Furthermore, with regard to the Respondent / CounterClaimant’s allegation that he had expressly been told by a director of the club that
he was dismissed, the Dispute Resolution Chamber insisted that the Claimant /
Counter-Respondent had not contested the fact that the Respondent / CounterClaimant had taken part in a match on 10 October 2008, that the Claimant / CounterRespondent had admitted the relevant declaration might have taken place and that
the Claimant / Counter-Respondent mainly argued that any kind of declaration made
by a director of the club could not be interpreted as a termination of the
employment contract.
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13.
In this context, regardless of a discussion between the Respondent / CounterClaimant and the director of the club having taken place at the alleged moment in
time, the Chamber concurred that, on account of the above, the Claimant / CounterRespondent had evidently neither paid the Respondent / Counter-Claimant’s
remuneration in accordance with its contractual obligations mainly as of July 2008,
nor had the Claimant / Counter-Respondent demonstrated any valid reasons not to
remit the Respondent / Counter-Claimant’s remuneration as of the said period of
time. Therefore, the Chamber decided that the Claimant / Counter-Respondent had
acted in breach of the employment contract and that the Respondent / CounterClaimant, in fact, had a valid reason to leave the club on 10 October 2008.
14.
The Chamber then turned to the Claimant / Counter-Respondent’s position that the
Respondent / Counter-Claimant had to give prior notice before terminating the
employment contract. In this respect, whereas the Respondent / Counter-Claimant
had not presented any documentation corroborating his allegations that he had
requested the Claimant / Counter-Respondent to pay his receivables, the members of
the Chamber stated that the circumstance as to whether or not a player has put a
club in default of its obligations prior to proceeding with the termination of an
employment contract does not constitute the sole criterion that may be taken into
account by the Chamber when establishing which party is to be held liable for breach
of contract and that such circumstance may be taken into account on a case-by-case
basis.
15.
Having established that the Claimant / Counter-Respondent is to be held liable for
the early termination of the employment contract without just cause on 10 October
2008, the Chamber focussed its attention on the consequences of such a breach of
contract. In this regard, the members of the Chamber determined that the Claimant /
Counter-Respondent was not only to pay the outstanding remuneration to the
Respondent / Counter-Claimant, but also to pay compensation for breach of contract
in conformity with art. 17 par. 1 of the Regulations.
16.
Taking into account the considerations above, in particular points II./9 and II./10, as
well as the fact that the employment contract was considered terminated as of 10
October 2008, the Chamber decided that the Claimant / Counter-Respondent is liable
to pay to the Respondent / Counter-Claimant the amount of EUR 9,129 as
outstanding salaries for the months of July (partially), August, September and 10
days of October 2008.
17.
For the assessment of the applicable amount of compensation, the Chamber referred
to the aforementioned provision of the Regulations (art. 17 par. 1), in particular to
the non-exhaustive enumeration of the objective criteria which need to be taken
into account. 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 otherwise 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
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remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
18.
In continuation, the Dispute Resolution Chamber pointed out that art. 17 par. 1 of
the Regulations also grants a certain degree of discretion to the deciding body when
calculating the relevant compensation. The Chamber recalled that it regularly makes
use of this margin of action.
19.
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
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of contract.
The Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
20.
In continuation, the Dispute Resolution Chamber took due note of the fact that the
Respondent / Counter-Claimant first requested EUR 77,371 as compensation for
breach of contract and, subsidiarily, the amount of EUR 27,000 which consists of the
remaining value of the contract until 1 June 2009, date on which the Respondent /
Counter-Claimant concluded an employment contract with S. Furthermore, the
members of the Chamber noted that the relevant employment contract still had
approximately twenty months to run at the moment of its termination and that,
according to the Respondent / Counter-Claimant’s contract with P, the player was
entitled to a total remuneration of EUR 18,200 for the period as from 1 June 2009
until 30 May 2010 and therewith enabled to reduce his loss of income. Consequently,
according to the constant practice of the Dispute Resolution Chamber, such
remuneration under the new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract.
21.
In continuation, the members of the Chamber took into account that, after the
player’s departure, the Claimant / Counter-Respondent asked the player to return to
the club and offered to pay an amount for outstanding salaries. Moreover, the
Chamber, in particular, noted that the Respondent / Counter-Claimant does not
appear to have contacted the Claimant / Counter-Respondent prior to and/or after
his departure.
22.
On account of all of the above and the specificities of the case at hand, bearing in
mind the general obligation of the Respondent / Counter-Claimant to mitigate his
damages, the Dispute Resolution Chamber decided that not the entire residual value
of the contract, but the amount of EUR 15,000 was to be considered reasonable and
justified as compensation for breach of contract.
23.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on
the present dispute by deciding that the Claimant / Counter-Respondent has to pay
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the total amount of EUR 24,129 to the Respondent / Counter-Claimant, consisting of
EUR 9,129 concerning outstanding salaries and of EUR 15,000 as compensation for
breach of contract and that the claim lodged by the Claimant / Counter-Respondent
as well as any other claims lodged by the Respondent / Counter-Claimant are
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, M, is rejected.
2.
The counterclaim of the Respondent / Counter-Claimant, L, is partially accepted.
3.
The Claimant / Counter-Respondent, M, has to pay to the Respondent / CounterClaimant, L the amount of EUR 24,129 within 30 days as from the date of
notification of this decision.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
5.
Any further request filed by the Respondent / Counter-Claimant, L, is rejected.
6.
The Respondent / Counter-Claimant, L, is directed to inform the Claimant /
Counter-Respondent, M, 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. 63 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
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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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