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 player,
T,
as Claimant
against the club,
B,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
The player, T (hereinafter: player or Claimant) and the club, BB, currently known
as B (hereinafter: club or Respondent), signed an employment contract valid as
from 1 March 2008 until 30 October 2008 made out on a standard employment
contract issued by the X Football Association (XFA). This employment contract
does not appear to bear any date of signature.
2.
In accordance with the employment contract, the player was entitled to receive,
inter alia, a monthly salary of USD 3,000.
3.
In addition, an agreement referred to as “contract confirmation” was signed
between the Claimant and the Respondent confirming the above-mentioned
contractual duration and granting the player the right to receive, inter alia, the
total income of USD 48,000 payable in monthly instalments of USD 6,000 as well
as the air fare to and from in country X. This “contract confirmation” does not
appear to bear any date of signature.
4.
The XFA confirmed in writing that B is the legal successor of BB.
5.
On 18 March 2009, the player lodged a claim against the club in front of FIFA
maintaining that he had only received one monthly salary of USD 6,000 and that,
therefore, the club still owes him the amount of USD 42,000.
6.
Consequently, the Claimant asks to be awarded payment of the amount of USD
42,000.
7.
In reply to the claim, the Respondent points out that the official employment
contract stipulated a monthly salary of USD 3,000 and it invites the player to
explain the difference between the contractual salary and the salary mentioned in
his claim and to provide evidence showing that he was short paid.
8.
The Respondent asserts that according to the former club owners, the Claimant
was fully paid for the period between 1 March 2008 and 30 June 2008. The
Claimant was not paid as of 1 July 2008, since, according to the Respondent, he
did not comply with his contractual obligations and returned to country K at the
end of July / beginning of August 2008 and never returned.
9.
In reaction, the Claimant points out that it is obvious that the club wishes, at all
costs, to avoid having to fulfill its contractual obligations.
10.
The Claimant points out that, as can be seen from his passport, he had received
the relevant country X visa extensions, with the last one, issued on 29 July 2008, to
expire on 29 August 2008. Furthermore, while referring to the pertinent stamps in
his passport, he asserts that, on 1 July 2008, the entire team was travelling to a
match to be held in another city and due to return on 3 July 2008. According to
the Claimant, the first part of the X championship having come to an end in the
beginning of July 2008, all players were granted vacation and he returned to
country K. The club being satisfied with his performance, the player was told to
return to the country X by 7 August 2008 and that he was allowed to bring his
fiancée at the expenses of the club. The Respondent then purchased two airline
tickets for him and his fiancée. The player returned to the country X on 6 August
2008, with his fiancée and was then informed by the Respondent that it was
unilaterally terminating the employment contract and that he could go back to
the country K.
11.
The Claimant asserts having remained with the club until 19 August 2008.
12.
In its duplica, the Respondent presents a document referred to as “Additional
contract terms”, which was drafted both in X and English, bearing “12 July 2008”
as date of signature, and was duly signed by the Claimant. This document
stipulated the following: “Player T shall to back to BB before 1st Aug 2008 [date
was corrected into 1st Aug 2008 handwritten], if late or no appearance, the club
has right to file the case to FIFA and XFA.” “Player T after arrive in country X on
time, the club shall to pay .. club transfer usd 10,000 within 5 working days, if BB
football club failed to pay above money, the player has right to refuse training
and games, also to file case to FIFA and XFA.”
13.
The Respondent explains that upon the Claimant’s return to the team in August
2008, the player asked for a transfer fee of USD 10,000, which the former owner
of the club [BB] could not agree to. Therefore, the Claimant returned to country K
at the end of July 2008 / beginning of August 2008 without having been paid the
2nd half of his contract.
14.
In reaction, the Claimant considers that the document referred to as “Additional
contract terms” confirms his position and in fact establishes an additional
obligation of the club towards him in the amount of USD 10,000. Consequently,
the player amended his claim and asks to be awarded the total amount of USD
52,000.
15.
In its final position, the Respondent points out that it has no further evidence to
submit and asserts that the former club owner terminated the employment
contract in July 2008 after the player had requested a transfer fee of USD 10,000,
which the club considered to be in breach of the FIFA regulations, as the Claimant
was a “free agent” when he signed on with the club in March 2008.
Consequently, the Respondent asks that the claim be rejected.
16.
The Claimant informed FIFA that he had not entered into any other employment
contract subsequent to his employment at the Respondent.
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 18 March 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. article 21
par. 2 and 3 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
conjunction 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 stake, which concerns an employment-related dispute with an
international dimension between a player and a 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
(edition 2010), and considering that the present claim was lodged on 18 March
2009, the 2008 edition of the 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. In this respect,
the Chamber acknowledged that the Claimant and the Respondent signed an
employment contract made out on a standard employment contract issued by the
X Football Association and valid as from 1 March 2008 until 30 October 2008
stipulating a monthly salary of USD 3,000. In addition, an agreement referred to
as “contract confirmation” was signed between the parties, confirming the
aforementioned contractual duration and stipulating, inter alia, a total salary of
USD 48,000 payable in monthly instalments of USD 6,000. During the proceedings
in the case at hand, the Respondent presented a document referred to as
“Additional contract terms”, which was drafted both in X and English, bearing
“12 July 2008” as date of signature, and which was duly signed by the Claimant,
whereas said document does not bear any stamp or signature of the Respondent.
5.
The members of the Chamber noted that the Claimant maintains that the
Respondent had only paid one monthly salary of USD 6,000 and that, therefore,
the Respondent was to be held liable for payment of the remaining amount of
USD 42,000 on the basis of the aforementioned “contract confirmation”, plus USD
10,000 on the basis of the document referred to as “Additional contract terms”.
Consequently, the Claimant asks to be awarded payment of the amount of USD
52,000.
6.
The Respondent, for its part, asserts that the Claimant was paid in full for the
period between 1 March 2008 and 30 June 2008, while admitting that no further
payments had been made to the Claimant as of 1 July 2008. According to the
Respondent, the Claimant had not complied with his contractual obligations and
returned to the country K at the end of July / beginning of August 2008 and
allegedly never returned.
7.
Furthermore, the Respondent highlights that the employment contract stipulates
a monthly salary of USD 3,000, whereas the Claimant bases his claim on a monthly
salary of USD 6,000. The Respondent deems that the Claimant should provide
evidence corroborating his claim in this respect.
8.
In this context, first and foremost, the Chamber recalled that the parties signed an
agreement referred to as “contract confirmation” in addition to the standard
employment contract, a copy of both of which was presented by the Claimant.
Said “contract confirmation” appears to confirm the contractual duration of the
standard employment contract and stipulates inter alia a monthly salary of USD
6,000. In this regard, the Chamber pointed out that it is not uncommon for clubs
and players to sign an agreement principally covering the financial aspects of the
employment relation, in addition to any standard employment contract issued by
the club’s national association.
9.
Taking into account the aforementioned “contract confirmation”, the members of
the Chamber established that the Claimant had duly substantiated his claim that
his monthly remuneration amounted to USD 6,000.
10.
Having said this, the Chamber reverted to the Respondent’s assertion that it had
fully paid the Claimant’s receivables for the period between 1 March 2008 and 30
June 2008. The members of the Chamber duly noted, however, that the
Respondent failed to present any documentation corroborating such allegation in
accordance with the general legal principle of the burden of proof stipulated in
art. 12 par. 3 of the Procedural Rules. Consequently, the Chamber had to reject
the Respondent’s position in this respect and accepted the Claimant’s claim that
he had received only one monthly salary in the amount of USD 6,000.
11.
In continuation, the Chamber turned to the Respondent’s allegation that it had
ceased the payment of the Claimant’s dues as of 1 July 2008, as the Claimant had
not complied with his contractual obligations. According to the Respondent, the
Claimant had returned to the country K by the end of July / beginning of August
2008 and had never returned to the country X. The Chamber took into account
that the Respondent had failed to present any documentation corroborating such
allegations in accordance with art. 12 par. 3 of the Procedural Rules.
12.
The members of the Chamber noted that the Claimant, for his part, asserted that
all players had been granted vacation in July 2008 following the end of the first
part of the X championship, which statement was not refuted by the Respondent,
and that he duly returned to the Respondent on 6 August 2008. In this respect,
the Chamber took due note of the documentation presented by the Claimant in
support of his position that he had returned to the country X, i.e. copies of the
pertinent visa and stamps in his passport. What is more, the Chamber took into
account that the Respondent had stated, in contradiction to its allegation that the
Claimant had not returned to the Respondent, that upon the Claimant’s return to
the team in August 2008, the latter had asked for the payment of a transfer
compensation of USD 10,000.
13.
On account of the above, the Chamber concluded that the Respondent had failed
to demonstrate that the Claimant had acted in breach of his contractual
obligations and established that the Claimant had in fact duly returned to the
Respondent in August 2008.
14.
For the sake of good order, the members of the Chamber deemed it fit to point
out that, in the hypothetical event of the Claimant not having returned to the
Respondent in August 2008, the Claimant would then have had valid reasons not
to return to the Respondent in the light of the fact that in July 2008 at least three
monthly salaries were already outstanding (cf. point II./10. above).
15.
In continuation, the Chamber recalled that the Respondent confirms having
terminated the employment contract in July 2008 after the Claimant’s alleged
request to be paid a transfer fee, which the Respondent considers to be a breach
of the “FIFA Regulations”, given that the Claimant was a “free agent” when he
signed on with the Respondent. In this regard, the Chamber deemed it essential
to highlight that a player’s request to be paid a (an additional) sum of money for
whatever reason cannot be considered a just cause for a club (and vice versa) to
unilaterally terminate an employment contract.
16.
In the light of all of the above, the Chamber established that the Respondent had
unilaterally terminated the employment contract without just cause with effect as
of 1 August 2008.
17.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber
focussed its attention on the consequences of such breach of contract. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract in addition to any outstanding payments on
the basis of the relevant employment contract and the agreement referred to as
“contract confirmation”.
18.
First of all, the Chamber recalled that, as established above (cf. point II./10.), the
Claimant had only received one monthly salary of USD 6,000. Furthermore, the
Chamber took into account that the employment contract was terminated by the
Respondent with effect as of 1 August 2008. Therefore, the Chamber decided that
in virtue of the basic legal principle pacta sunt servanda, the Claimant is entitled
to receive his salary for the months of April 2008 until and including July 2008 in
the total amount of USD 24,000 in accordance with the employment contract and
the agreement referred to as “contract confirmation”.
19.
The Chamber then turned its attention to the Claimant’s additional claim for
payment of the amount of USD 10,000 in accordance with the document referred
to as “Additional contract terms”, which was duly signed by the Claimant but
does not bear any signature or stamp from the Respondent. Said document was
presented by the Respondent, which, however, explicitly indicated that it did not
agree to the payment of such transfer compensation to the Claimant. For these
reasons, in particular in light of the absence of the Respondent’s signature on the
pertinent document, the Chamber decided to reject the Claimant’s claim for the
payment of the amount of USD 10,000 by the Respondent on the basis of the
document referred to as “Additional contract terms”.
20.
Consequently, the Chamber decided that the Respondent is liable to pay to the
Claimant the amount of USD 24,000 relating to the Claimant’s salary for April
2008 until and including July 2008.
21.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract 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 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
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.
22.
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 any 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.
23.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
24.
In order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account, in line with art. 17 par. 1 of the
Regulations, the remuneration due to the Claimant in accordance with the
employment contract and the agreement referred to as “contract confirmation”
as well as the time remaining on said contracts, as well as the professional
situation of the Claimant after the early termination occurred.
25.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
and the agreement referred to as “contract confirmation” until October 2008,
taking into account that the player’s salary for April 2008 until July 2008 is
included in the calculation of the outstanding remuneration (cf. no. II./20. above).
Consequently, the Chamber concluded that the amount of USD 18,000 (i.e. 3
monthly instalments of USD 6,000 each as from August 2008 until October 2008)
serves as the basis for the final determination of the amount of compensation for
breach of contract.
26.
In continuation, the Chamber took into account that the Claimant had not
entered into any other employment contract following his employment at the
Respondent.
27.
Consequently, on account of all of the aforementioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay compensation in the amount of USD 18,000, which amount was considered
reasonable and justified as compensation for breach of contract.
28.
On account of the above, the Chamber decided that the claim of the Claimant is
partially accepted and that the Respondent is liable to pay the total amount of
USD 42,000 to the Claimant.
29.
The Chamber concluded its deliberations in the case at hand by rejecting any
further requests of the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, T, is partially accepted.
2.
The Respondent, B (formerly known as BB), has to pay to the Claimant the amount
of USD 42,000 within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for its consideration and a formal
decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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 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