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. Al-Housani (United Arab Emirates), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
R,
as Claimant
against the club,
K,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 14 July 2008, the player, R (hereinafter: the Claimant), and the Club K (hereinafter:
the Respondent), signed an employment contract valid as from 1 July 2008 until 1 June
2009.
2.
According to the employment contract, the Claimant was entitled to receive, inter alia,
the following amounts:
- USD 90,000 singing-on fee,
- a monthly salary in the amount of USD 12,000,
- USD 90,000 bonus if the player participates in 70% of the official matches during
the season.
3.
On 8 October 2009, the Claimant lodged a complaint before FIFA against the Respondent
claiming that the Respondent breached the contract without just cause and requested to
be awarded the total outstanding amount of USD 164,000 made up of following:
- salary for the months of April and May 2009 in the amount of USD 24,000,
- USD 90,000 bonus,
- USD 50,000 financial and moral compensation,
- legal fees.
4.
Furthermore, the Claimant argued that he participated in almost all matches during the
season 2008/2009 and presented documents from the internet from which all official
matches of the Respondent for the A Championship are listed and for which he has
participated in more than 70% of the matches.
5.
In its reply, the Respondent rejected the claim arguing that the Claimant left to the
country B in May 2009 after the local championship and refused to return although the
Respondent had bought two flight tickets for the Claimant. Furthermore, the
Respondent stated that it had fulfilled all contractual obligations towards the Claimant
and provided a document to confirm this.
6.
However, despite of having been invited by FIFA to do so, the Respondent did not
provide our services with a translated copy of the document nor did it provide further
comments in this matter.
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II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC)
analysed whether it was competent to deal with the matter at stake. In this respect, it
took note that the present matter was submitted to FIFA on 8 October 2009.
Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural
Rules).
2.
Furthermore, the DRC 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 Regulations on the Status and Transfer of Players (editions 2008, 2009 and
2010), and considering that the present claim was lodged on 8 October 2009, the 2009
edition of the said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
3.
Subsequently, the DRC 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, the Dispute Resolution Chamber is competent to decide on the present
litigation, which concerns an employment-related dispute with an international
dimension between a player and an club.
4.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the members of the
Chamber started by acknowledging the above-mentioned facts and documentation
contained in the file.
5.
In doing so, the Chamber first of all noted that it was undisputed that the parties had
signed, on 14 July 2008 an employment contract valid as from 1 July 2008 until 1 June
2009.
6.
The members of the Chamber observed that, in accordance with the employment
contract signed by the parties, the Respondent committed itself to pay a monthly salary
of USD 12,000 to the Claimant as well as USD 90,000 as a bonus payment if the Claimant
participates in 70% of the official matches.
7.
In continuation, the DRC took note that the Claimant lodged a claim against the
Respondent for breach of contract without just cause, since the Respondent allegedly
failed to pay the Claimant’s salaries as from April 2009 and thus the Claimant is
requesting the payment of USD 164,000, corresponding to the salaries of April and May
2009 of USD 24,000, plus USD 90,000 bonus payment as well as compensation in the
amount of USD 50,000.
8.
The Chamber acknowledged that the Respondent, for its part, rejected the claim arguing
that it had fulfilled all contractual obligations towards the Claimant and that the latter
left without just cause.
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9.
The Chamber highlighted that the underlying issue in this dispute, considering the claim
of the Claimant, was to determine whether the employment contract had been
unilaterally terminated with or without just cause and which party was responsible for
the early termination of the contractual relationship in question. The Chamber also
underlined that subsequently, if it were found that the employment contract was
terminated without just cause, it would be necessary to determine the financial and/or
sporting consequences for the party that terminated the relevant employment contract.
10. In this respect, the members of the DRC turned their attention to the argument of the
Claimant that the Respondent breached the contract without just cause by not paying
the Claimant’s salary as from April 2009 as well as bonuses in the amount of USD 90,000.
11. In this context, the Chamber recalled that it was uncontested by the parties that the
Claimant left in May 2009 to the country B.
12. Furthermore, the members of the Chamber established that it was contested by the
parties that the Respondent did not pay the Claimant’s salary as of April 2009 as well as
bonuses, since the Respondent alleged that it fulfilled all its contractual obligations.
13. Subsequently, the Chamber focussed on the question whether a premature and
unilateral breach of contract occurred, by either party, and, if so, whether there was a
just cause to unilaterally terminate the employment contract.
14. In this context, the Dispute Resolution Chamber referred to art. 12 par. 3 of the
Procedural Rules according to which any party deriving a right from an alleged fact shall
carry the burden of proof. Therefore, the members of the Chamber examined the
Respondent’s allegation in light of the aforesaid article and turned its attention to the
evidence on file.
15. In this respect, the Chamber noted that the Respondent provided a document to confirm
the fulfilled obligations towards the Claimant, without any translation into one of the
official FIFA languages (English, Spanish, French or German). As a consequence, the
Chamber concluded that the Respondent, despite having been invited to do so, was not
able to provide a translation of the documents. Therefore, the Chamber was of the
opinion that it could not take the provided documentation into account as evidence and
thus the Chamber concluded that the Respondent could not provide any evidence that it
complied with its obligations towards the Claimant.
16. As a consequence, the Chamber went on to establish whether the Claimant had just
cause to prematurely terminate his employment contract in May 2009.
17. Considering the foregoing, the Chamber took into account that the Claimant was
entitled to receive a monthly salary and that, in this regard, the Claimant alleged not
having received, on 8 October 2009, any payment since April 2009.
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18. In this context, the Chamber recalled that the reimbursement of a player for his services
constituted the main contractual obligation of a club in an employment relationship with
a player. Therefore, the Chamber deemed it to be a severe infringement of the
Respondent’s contractual duties not to provide the Claimant with his salary.
19. Equally, on account of all of the above, i.e. taking into account the outstanding salaries
as well as the bonus which the Respondent had to reimburse to the Claimant, the
Chamber came to the conclusion that the Respondent breached its contractual
obligations towards the Claimant to an extent that it was unacceptable for the Claimant
to adhere to the employment contract any longer.
20. Moreover, the members of the Chamber noted that the employment contract signed
between the parties ended on 1 June 2009. Thus, the Dispute Resolution Chamber
concluded that when the player left at the end of May 2009, the contractual relationship
between the parties was to come to an end anyhow.
21. Furthermore, the Chamber took into account that the Claimant provided several
documents, from which it could be noted that he participated in more than 70% of the
Respondent’s matches, until May 2009. In conclusion, the documents provided by the
Claimant demonstrated that the latter has fulfilled its obligations towards the
Respondent until end of May 2009, despite not having received any salaries since April
2009.
22. Therefore, the Chamber decided that the Claimant had just cause to terminate his
employment contract in May 2009.
23. Moreover, the members of the Chamber turned its attention to financial and moral
compensation claimed by the Claimant and therefore, considered that a careful reading
of the applicable provision, i.e. of art. 17 par. 1 of the Regulations, provided the key to
assess the amount of compensation due by the Respondent to the Claimant.
24. The Chamber clarified that the criteria listed therein were, however, not exhaustive and
that each request for compensation for breach of contract had to be assessed on a caseby-case basis.
25. In this context, the Chamber first focussed its analysis on the amount of compensation for
the unjustified breach of contract due by the Respondent to the Claimant and examined
the objective criteria listed in art. 17 par. 1 of the Regulations. According to this
provision, 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.
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26. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained 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.
27. 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 the said provision provided 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.
28. Since the employment contract was valid until 1 June 2009, i.e. only a few days after the
Claimant has left the Respondent, the Chamber concluded that the early termination of
the employment contract occurred only a few days before the stipulated end date of said
contract and therefore, the members of the Chamber considered that the Claimant’s
claim pertaining to financial and moral compensation in accordance with art. 17 of the
Regulations, is rejected.
29. Bearing in mind the foregoing, the Chamber proceeded to the calculation of the monies
payable under the terms of the contract. In this respect, the Chamber acknowledged that
the Claimant had, on the day he terminated his employment contract with just cause, not
received his salaries for April and May 2009 as well as the bonus payment of USD 90,000.
In other words, on the day of termination of the employment contract, USD 24,000 plus
USD 90,000 remained unpaid. Therefore, the Chamber decided that the player was
entitled to an amount of USD 114,000 as outstanding salaries and bonus payment.
30. In conclusion, the Dispute Resolution Chamber decided to partially accept the Claimant’s
claim and established that any further claims lodged by the Claimant are rejected.
31. Finally, the Dispute Resolution Chamber held that the Claimant’s claim pertaining to the
legal costs is rejected in accordance with art. 15 par. 3 of the Procedural Rules and the
Chamber’s perspective longstanding jurisprudence.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is partially accepted.
2.
The Respondent, K, has to pay to the Claimant the amount of USD 114,000, within 30
days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the above-mentioned deadline, interest at
the rate of 5% per year will apply as of expiry of the stipulated time limit and the present
matter shall be submitted, upon requests, to FIFA’s Disciplinary Committee for its
consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant, R, is directed to inform the Respondent, K, 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.
*****
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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
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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