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
Theodores Giannikos (Greece), member
on the claim presented by the player,
K,
as Claimant / Counter-Respondent
against the club,
A,
as Respondent / Counter-Claimant
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 25 January 2006, the player K (hereinafter: player or Claimant / CounterRespondent) signed an employment contract (hereinafter contract) with the club A
(hereinafter: club or Respondent / Counter-Claimant). The contract was valid as from
the date of signature until the end of the 2006/2007 season (cf. art. 2 of said
contract).
2.
According to art. 1 of the contract, the player was to receive a signing-on fee in the
amount of USD 10,000 as well as a monthly salary in the amount of USD 1,500.
3.
According to art. 8 of the contract, it is stipulated, inter alia, that the player
acknowledged having no diseases or injuries that would hamper the execution of
the contract.
4.
Furthermore, art. 11 of the contract stipulates, inter alia, that the club “shall
terminate this contract unilaterally (…) if medical tests being performed on the
player detects an injury that prevents the player from playing and at the same time,
[the club] has the right to maintain his claims for compensation that is parallel to
the salaries paid to the [player] and which are due from the date of terminating this
contract and up to the end of it.”
5.
Additionally, art. 12 of the contract stipulates that the player “must be medically fit
and free from any injuries that prevent him from taking part in matches upon the
enforcement of this contract otherwise the contract is deemed null and void and
thereafter, the club is entitled to recover all amounts paid to the player upon
signing of this contract.”
6.
Finally, and in accordance with art. 17 of the contract, it is stipulated that “the club
has the right to terminate the contract at any time it wishes if medical tests detect
an old injury that may prevent the player from continuing playing with the team
during the remaining period of the contract. In such case, the player shall be
deprived of any financial entitlements after cancellation of the contract.”
7.
On 22 June 2006, the player lodged a claim before FIFA against the club. In his
statement of claim, the player explained that at the time of his lodging this claim,
he only had received from the club a payment of USD 3,800 out of the USD 10,000
corresponding to the signing-on fee, and the amount of USD 1,500, paid on 26
February 2006, corresponding to the monthly salary for the period comprehended
between 25 January 2006 and 25 February 2006.
8.
The player further asserted that whereas he always fully complied with his
obligations, he never received any other payment from the club.
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9.
In light of the above, the player alleged that the club had not paid him the total
amount of USD 10,700 composed of the following amounts:
USD 1,500 as monthly salary for the period of time as from 25/02/06 until 25/03/06;
USD 1,500 as monthly salary for the period of time as from 25/03/06 until 25/04/06;
USD 1,500 as monthly salary for the period of time as from 25/04/06 until 25/05/06;
USD 6,200 representing the remaining part of the signing-on fee of USD 10,000.
10.
In continuation, the player explained that at the end of May 2006, as he had still
not received any payment from the club and he did not believe any longer in the
club’s promises to pay him, he felt obliged to accept the amount of USD 2,000 in
cash and a flight ticket to return to country F, the club being apparently willing to
put an end to the contract. In this regard, the player pointed out that this oral and
unilateral termination of the contract by the club was not officialised by any written
document and that he was willing to carry on the execution of the contract.
11.
However, the player stressed that, prior to leaving country O, the club issued a
document by means of which it acknowledged an outstanding debt of USD 8,695
towards the player. In this regard, the player submitted a document dated 28 May
2006 signed by both parties and written in English which reads “We, the
undersigned, club A, according to the contract, still has to pay to Mr K the sum of
USD 8,695 (which has not been received on salary and advance as mentioned in the
contract) to him as soon as possible. This is an agreement between the club and the
player”.
12.
On account of the above, the player claims payment of the outstanding amount of
USD 8,695, which has been acknowledged as due by the club.
13.
In addition to the foregoing, the player also claims compensation for the unilateral
termination of the contract by the club on 28 May 2006 in the amount of USD
19,500, which corresponds to the rest value of the contract, i.e. the total salaries due
as from June 2006 until June 2007 (13 x USD 1,500). The total claimed value is
therefore USD 28,195.
14.
The player informed FIFA that he had not signed any another employment contract
with any other club after the alleged termination of the contract.
15.
In its reply to the claim, the club firstly acknowledged that it signed the contract
with the player and that it owes him the amount of USD 8,695, which it assured it
would pay as soon as it would be provided with the player’s bank details.
16.
Additionally, the club explained that during the execution of the contract, it found
out that the player was suffering from old injuries, as a result of which the latter
was not able to perform his services up to the club’s standards and requirements.
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Comment [sma1]: Please insert
original English from the
acknowledgement of debt
17.
The club concluded its statement by asserting that it did not find any other
alternative but to terminate the contract on the basis of its articles 8, 11 and 17.
18.
In his replica, the player maintained his claim and strongly contested the club’s
statement, which he considers as absurd and not grounded. In particular, the player
pointed out that it is inherent to the profession of a professional football player to
suffer from injuries resulting from trainings and matches. Furthermore, the player
pointed out that according to the contract, the club would be in a position to
terminate the contract on the basis of medical tests evidencing the presence of such
old injuries but that, at the time of his reply, no medical tests evidenced any old
injury he would be suffering from.
19.
In its duplica, the club pointed out that on the basis of a report issued by the club’s
physiotherapist after it turned out that the player was not able to play matches and
was complaining about an old injury, the player was “requested”, on the basis of
the contract, to undergo physiotherapy and to go to the hospital for further exams,
but that the player refused to go. The club then asserted that it is as a result of the
aforementioned difficulty that both parties agreed to “revoke” the contract on the
basis of the articles related to the existence of old injuries affecting the execution of
the contract and which entitled the club to put an end to the contractual relation
(articles 8, 11, 12 and 17 of the contract).
20.
Furthermore, on the particular basis of articles 11 and 12 of the employment
contract, the club filed a counterclaim against the player, requesting the latter to
pay to the club a compensation amounting to the salary payments due from the
date of termination of the contract until the end of the 2007 season (art. 11), and to
reimburse to the club all the payments that he had received (art. 12).
21.
With regard to the club’s counterclaim, the player replied that he has never
undergone any medical examination in connection with his employment at the club
and that he never received any notification from the club regarding a medical visit.
22.
Furthermore, the player stressed that the club had not been able to provide any
evidence of the doctor’s report attesting his injury nor any evidence of any
invitation from the club related to an appointment so as to undergo medical tests.
23.
The player also mentioned that, as demonstrated by two team lists for the 2006 Cup
and dating from one month before the club’s termination of the contract (i.e. 11
April 2006 and 25 April 2006), he was still playing in the team’s squad. Therefore,
the player considered that the club’s supposed good faith must be brought into
question, as the club had terminated the contract on the grounds of an injury or an
inability to play, even though he had been playing and representing the club during
an official competition the month before the contract termination.
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24.
In spite of having been invited to present its position, the club has failed to submit
any further statement or reply to the player’s latest comments before the
submission of the case to the Dispute Resolution Chamber.
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 22 June
2006. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2005; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the
2008 edition of the Procedural Rules and art. 18 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
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 stake, which concerns an employment-related dispute with an
international dimension between a player and an 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
2008, 2009 and 2010), and considering that the present claim was lodged on 22 June
2006, the 2005 edition of the said regulations (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 this respect,
the Chamber acknowledged that the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant signed an employment contract on 25 January 2006,
valid as from the same day until the end of the season in country O 2006/2007. The
Claimant / Counter-Respondent, on the one hand, maintains that the Respondent /
Counter-Claimant unilaterally put an end to the contractual relation on 28 March
2006 whereas the Claimant / Counter-Respondent asserts he was willing to carry on
the execution of the contract. The Respondent / Counter-Claimant, on the other
hand, acknowledges that it terminated the employment contract due to the
existence of old injuries affecting the player’s capacity to perform the contract and
maintains that it was contractually entitled to do so on the basis of the articles 8, 11,
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12 and 17 of the contract. In this respect, referring to art. 12 par. 3 of the Procedural
Rules, the Chamber noted that the Respondent / Counter-Claimant had not
presented any documentation corroborating its allegations pertaining to the health
of the Claimant / Counter-respondent.
5.
Subsequently, the Chamber firstly focussed its attention on the contents of articles
8, 11, 12 and 17 of the employment contract.
6.
In this regard, the Chamber firstly took into account that articles 11 and 17 of the
contract are unilateral and to the benefit of the Respondent / Counter-Claimant
only, as they clearly establish the possibility for the Respondent / Counter-Claimant
to unilaterally and prematurely terminate the contract at any time during its
execution. In the light of such potestative character of the pertinent contractual
clauses, and in accordance with the Chamber’s constant jurisprudence in this
respect, the members of the Chamber agreed that articles 11 and 17 of the
employment contract are not acceptable and cannot be validly invoked as a legal
basis for the termination of the employment contract.
7.
Furthermore, apart from the potestative character of said articles, the Chamber
deemed it crucial to point out that the element giving rise to the possibility for the
Respondent / Counter-Claimant to rely on them, i.e. the result of medical tests, as a
general rule, and taking into account the Chamber’s constant jurisprudence in this
regard, is not acceptable, since it clearly contravenes the rule laid down in art. 18
par. 4 of the Regulations, in accordance with which the validity of a contract may
not be made subject to a positive medical examination and/or the granting of a
work permit. In this context, the Chamber highlighted that the contents of art. 18
par. 4 of the Regulations are of mandatory nature and cannot be contractually
amended. A club wishing to sign on a player is therefore required to be diligent and
undertake all necessary research and to take all appropriate steps before concluding
a contract.
8.
Consequently, apart from the reason relating to their potestative character, articles
11 and 17 of the contract cannot be considered acceptable in the light of them
being linked to the outcome of medical tests.
9.
In continuation, the Chamber emphasized that articles 8 and 12 of the contract are
equally subject to the above-mentioned analysis (cf. point II./ 7. above), as both
articles are referring to the health of the player in order to determine the validity or
the continuation of the execution of the contract.
10.
In light of the foregoing considerations, the Chamber rejected the Respondent /
Counter-Claimant’s arguments pertaining to the termination of the employment
contract on the basis of articles 8, 11, 12 and 17 of the contract. Furthermore, given
that the Respondent / Counter-Claimant has not put forward any other reason for
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the unilateral termination of the contract, the Chamber came to the conclusion that
the early and unilateral termination by the Respondent / Counter-Claimant of the
contract signed with the Claimant / Counter-Respondent was without just cause.
11.
In addition to the foregoing, and as a matter of fact, on the sole basis of the
remuneration that was outstanding at the time when the Respondent / CounterClaimant terminated the employment contract, i. e. three monthly salaries and a
substantial part of the contractual signing-on fee (cf. point I./ 9. above), which was
explicitly acknowledged as due by the Respondent / Counter-Claimant to the
Claimant / Counter-Respondent in accordance with the document in which it
undertook to pay the Claimant / Counter-Respondent the amount of USD 8,695,
bearing in mind the payment of USD 2,000 in cash to the Claimant / CounterRespondent, the Chamber wished to stress that the Respondent / Counter-Claimant
had actually already acted in breach of the contract prior to have terminated the
contract for the reasons linked to the Claimant / Counter-Respondent’s health as
stated above.
12.
Having established that the Respondent / Counter-Claimant 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 / Counter-Respondent is entitled to receive from the Respondent /
Counter-Claimant an amount of money as compensation for breach of contract in
addition to any outstanding payments on the basis of the relevant employment
contract.
13.
The Chamber then reverted to the Claimant / Counter-Respondent’s financial claim,
which includes outstanding remuneration corresponding to the amount of USD
8,695.
14.
As it is clearly demonstrated by the documentation submitted by the Claimant /
Counter-Respondent as well as by the Respondent / Counter-Claimant’s position in
this connection, i.e. the Respondent / Counter-Claimant acknowledged that it owes
such amount to the Claimant / Counter-Respondent, the Chamber considered that
this part of the claim was not subject to any further debate and consequently
concurred that the claim of the Claimant / Counter-Respondent related to the
payment of USD 8,695 was accepted.
15.
Consequently, the Chamber decided that the Respondent / Counter-Claimant is
liable to pay to the Claimant / Counter-Respondent the amount of USD 8,695
relating to the Claimant / Counter-Respondent’s outstanding salaries for March,
April and May 2006 and the contractual signing-on fee.
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16.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake.
17.
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.
18.
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. The Chamber
established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
19.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant /
Counter-Respondent 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.
20.
In order to evaluate the compensation to be paid by the Respondent / CounterClaimant, the members of the Chamber took into account the remuneration due to
the Claimant / Counter-Respondent as from the moment when the breach occurred,
i.e. end of May 2006 until and including June 2007, which month corresponds to the
end of the 2006/2007 season and therefore the expiry of the contract. Consequently,
the Chamber concluded that the amount of USD 19,500 (i.e. 13 months of salaries)
serves as the basis for the final determination of the amount of compensation for
breach of contract.
21.
Subsequently, the Chamber took into account the professional situation of the
Claimant / Counter-Respondent after the early termination of the employment
contract in May 2006 and noted that the Claimant / Counter-Respondent has not
signed any other contract as a professional football player for any other club after
the termination of his employment contract by the Respondent / Counter-Claimant.
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22.
In light of all the above and the specificities of the case at hand, the Dispute
Resolution Chamber decided that the Respondent / Counter-Claimant has to pay to
the Claimant / Counter-Respondent the amount of USD 19,500 which was to be
considered reasonable and justified as compensation for breach of contract without
just cause.
23.
In conclusion, the Chamber decided to accept the claim of the Claimant / CounterRespondent and that the Respondent / Counter-Claimant is liable to pay the total
amount of USD 28,195 to the Claimant / Counter-Respondent, consisting of USD
8,695 relating to outstanding remuneration and USD 19,500 as compensation for
breach of contract.
24.
The Chamber concluded its deliberations in the present matter by rejecting the
counterclaim of the Respondent / Counter-Claimant in the light of the abovementioned considerations.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, K, is accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, A, is rejected.
3.
The Respondent / Counter-Claimant, A, has to pay to the Claimant / CounterRespondent the amount of USD 28,195 within 30 days as from the date of
notification of this decision.
4.
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.
5.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant 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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