Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 October 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), Member
Peter Friend (Australia), Member
Gerardo Movilla (Spain), Member
Joaquim Evangelista (Portugal), Member
on the claim presented by
the player, X
as Claimant
against
the club, Y
as
Respondent
regarding a dispute about
the employment contract concluded between the parties
I. Facts of the case
1. On 21 July 2005 the player X and the club Y concluded an employment contract
valid until 31 December 2007.
2. According to the aforementioned contract, “The player’s year salary for 2005 is USD
300,000”, to be paid as follows:
a. USD 100,000 within 5 working days after the player joins Y;
b. USD 200,000 in twelve equal monthly instalments;
c. bonuses according to team’s success and the goals scored by the Player;
d. a match-winning bonus in K-league on the same conditions as the team’s
other players.
NOTA BENE: According to the information at FIFA’s disposal, the relevant League 2005
took place in three different phases: 1st Phase: from 15 May to 10 July 2005; 2nd Phase:
from 24 August to 9 November 2005; 3rd Phase (Playoff): from 20 November to 4
December 2005. It is worth mentioning that Y did not make to the 3rd Playoff Phase and
apparently played their last game of the season on 9 November 2005.
3. It was further agreed that the salaries “after 2006” would have been negotiated
between the parties “according to the previous year results of the player”.
4. On 31 August 2005, while playing with the first team of Y a match of the
Championship, the player suffered an injury. He was therefore forced to receive
treatment for a few weeks and afterwards he was requested to resume duties with
the second team of the club.
5. From 29 September 2005 the player was fielded three times with the second team in
official matches. On 15 October the player was finally allowed to rejoin the first team
of the club and, on 19 October 2005, he played a match of the Championship.
6. The Championship ended on 9 November 2005 and the player was not given further
chances to play with the first team of the club.
7. In December 2005, before leaving for his winter holiday, the player was allegedly
informed by officials of Y that they were not satisfied with his performance and that
he was no longer welcome. The player states that nobody told him that his contract
was terminated and that he was free to find a new club of his choice. According to
the player, at that time the club had no intention to terminate the contract with the
player but it was rather eager to transfer the player abroad and, possibly, to profit
from such a transfer.
8. This would be proven by the fact that, on 16 December 2005, the player’s agent was
officially informed that Y was interested in transferring the player to another club for a
compensation amounting to USD 200.000.
9. Following the intervention of FIFA, on 20 March 2006 the Y Football Association issued
the player’s International Transfer Certificate (ITC) in favour of the Z Football
Federation, which proceeded to register X for its affiliated club A.
2
10. X contacted FIFA on 17 January 2006 claiming that the employment contract
concluded on 21 July 2005 with Y was unilaterally breached by the club and
requesting, in the first place, the amount of USD 127,331 as outstanding salaries and
USD 2,000 as a reimbursement for the airplane ticket, as provided for by the
employment contract.
11. The player informed FIFA that, during his stay in the country, he was paid the amount
of USD 172,669 corresponding to USD 165,879 net, as proved by the bank certificate
he supplied. The player was further provided with all facilities and benefits but for the
airplane tickets, that he personally purchased.
12. As regards the period from 1 January 2006 until 20 March 2006, the player maintains
that the employment contract was held valid and binding by Y, as confirmed by the
club’s attempts to transfer the player and by its refusal to consent to the issuance of
his ITC. Therefore, the Player deems that he shall be paid according to the
employment contract, i.e. according to the salary agreed for the year 2005. The
proportion to be paid equals USD 42,135 plus USD 15,000 for the benefits and bonuses
he would have been entitled to, on a pro rata basis.
13. With regard to the expected salaries for the period until the end of the contract, i.e.
until 31 December 2007, the player is of the opinion that he is aged 29 and he will
never be able to secure a contract at the same conditions as the one he concluded
with Y on 21 July 2005 and he should therefore be compensated for the abrupt
termination and unjustifiable breach of the contract.
14. In consideration of the salary provided by the contract signed in the meantime with
the club A (an yearly salary of USD 40,000 and a bonus of USD 10,000 in the event
that he scores at least 8 goals) the player maintains that Y should be held further
liable to pay him the amounts of USD 250,000 in compensation for the loss of
expected salaries for the years 2006 and 2007, USD 100.000 for bonuses that he would
have accrued, USD 60.000 for the loss of the benefits provided in the contract
concluded on 21 July 2005 (transportation, accommodation, airfares, insurance)
and, finally, USD 30.000 as compensation for the damages deriving from the breach
of the contract by the club and for the distress suffered by the player and by his
family because of the club’s wrongful behaviour.
15. The player finally submits that the unilateral breach of the contract falls within the
Protected Period of the employment contract, i.e. during the first year of validity of
the playing contract. Therefore, in addition to the obligation to pay compensation,
sporting sanctions shall also be imposed on Y.
16. In response to the player’s allegations, the club points out that they cannot be
deemed liable for contractual breach, in view of the fact that Article 16 of the
employment contract concluded on 21 July 2005 with the player clearly gives the
club the right to terminate the contract with the player in case the latter’s ability to
play decreased substantially.
17. According to the club, the fact that the player’s injury allowed the coach to field
him in three games only during the season is a lawful reason for the contractual
termination, in accordance with the aforementioned Article 16.
18. Furthermore, the club recognises having paid X the amount of USD 172,669, and
points out that this amount is exactly everything the player was entitled to,
calculated pro rata for the period he spent with the club, until he left for his Christmas
leave in December 2005.
3
19. In view of the aforementioned circumstances, Y conclude that they cannot be
deemed liable for breach of contract and request the Dispute Resolution Chamber
to reject all of the player’s claims.
20. The player requests the Dispute Resolution Chamber:
a. to establish that the employment contract has been lawfully terminated by him
because of Y’s failure to comply with their contractual obligations;
b. to condemn Y to pay him the sum of USD 129,331 as outstanding salaries and
reimbursement of airfares for the year 2005;
c. to condemn Y to pay him the sum of USD 57,135 as outstanding salaries,
benefits and bonuses for the period between 1 January and 20 March 2006;
d. to condemn Y to pay him the sum of USD 440,000 as expected salaries and
damages for the unjustified termination of the contract;
e. to be awarded applicable interest for late payment and reimbursement of all
reasonable legal costs sustained;
f. to take against the club the appropriate measures for having committed
breach of contract without just cause within the protected period.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA in January 2006, as a
consequence the Chamber concluded that the revised Rules Governing Procedures
(edition 2005) on matters pending before the decision making bodies of FIFA apply
to the matter at hand.
2. With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the Regulations for
the Status and Transfer of Players (edition 2005). In accordance with art. 24 par. 1 in
connection with art. 22 (b) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a
club and a player that have an international dimension.
3. As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a club and a foreign player regarding a
dispute in connection with an employment contract.
4. Subsequently, the members of the Chamber analysed which edition of the
Regulations for 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 for the Status and Transfer of Players (edition
2005) and, on the other hand, to the fact that the relevant contract at the basis of
the present dispute was signed on 21 July 2005 and the claim was lodged at FIFA by
the player in January 2006. In view of the aforementioned circumstances, the
Chamber concluded that the current FIFA Regulations for the Status and Transfer of
4
Players (edition 2005, hereafter: the Regulations) apply to the case at hand as to the
substance.
5. In continuation, and entering into the substance of the matter, the Chamber
acknowledged the documentation contained in the file and focussed its attention
on the fact that on 21 July 2005 the player X and the club Y concluded an
employment contract valid until 31 December 2007.
6. Besides, the deciding body took note of the fact that the player never returned after
his Christmas holidays and that, on 20 March 2006, the Y Football Association issued
the player’s ITC in favour of the X Football Federation, that registered X for its
affiliated club A.
7. The Dispute Resolution Chamber then focussed its attention on the player’s
allegations according to which the club would have breached the contract and
noticed that at no point during the Championship or between the player’s Christmas
leave and his registration with the club on 20 March 2006, the club Y appears to
have breached the employment contract concluded on 21 July 2005.
8. In fact, by X’s own admission, although he was allegedly informed by officials of Y
that they were not satisfied with his performance, nobody told him that his contract
was terminated and that he was free to find a new club of his choice. The player
clearly admits that at the time of his Christmas leave the club had no intention to
terminate the contract with the player but it was rather eager to transfer him abroad
and, possibly, profit from such a transfer.
9. According to the Chamber, it is a legitimate right of any club to seek compensation
from the transfer of a player who is under contract with them. For the sake of
completeness, the Chamber also pointed out that, as a general rule, should a player
not wish to be transferred to a different club, the club cannot force him to do so.
10. However, the deciding body was eager to emphasise that the aforementioned
behaviour of the club did not constitute breach of contract.
11. On the other hand, the deciding authority concentrated its attention on Article 16 of
the employment contract at hand, which appears to give the club the right to
terminate the contract with the player in case the latter’s ability to play decreases
substantially.
12. Subsequently, the Chamber acknowledged Y’s statement, whereby the player’s
injury, which allowed the coach to field him in three games only during the season,
would be a lawful reason for the contractual termination, in accordance with the
aforementioned Article 16.
13. The members of the Chamber were of the unanimous opinion that such a clause is a
potestative one, which cannot be accepted in any way. This article of the contract
must therefore be considered as null and void.
14. Notwithstanding the above, the Chamber took note of the fact that the club never
actually made use of the aforementioned clause, as they never notified to the
player the termination of the contract.
15. On the contrary, up until the player’s Christmas leave Y appear to have complied in
full with their financial obligations towards the player.
5
16. Therefore, the scenario after the player left appeared to be rather incontrovertible,
i.e. Mr X wishing to sign for a new club of his choice as soon as possible and Y
unwilling to count on the services of the player in question any longer. In sum, the
labour relationship between the club and the player was seriously disrupted, as both
parties were no longer interested in maintaining their contractual relationship.
17. Taking into account the fact that the player never returned after his Christmas
holidays, as well as the fact that the club inserted the above-cited unlawful clause in
the employment contract, the Dispute Resolution Chamber deemed that both the
club and the player shall share the responsibility for the termination of their
contractual relationship.
18. On account of the fact that the player is to be held partially accountable for the
contractual termination, the Chamber decided to reject his requests to be awarded
compensation for breach of contract.
19. In particular, and in view of the fact that the player signed an employment contract
with a club of his choice already on 9 March 2006, Mr X is not entitled to receive from
Y the sum of USD 440,000 as expected salaries and damages until the expiry of the
contract.
20. As regards the outstanding amount the club owes the player, a careful perusal of
the employment contract led the Chamber to conclude that the clause according
to which “The player’s year salary for 2005 is USD 300,000”, does not mean that the
player shall receive USD 300,000 until December 2005, as the player maintains, but
shall be read as the club’s intention to remit the aforementioned amount through
one year, as proved by the instalments agreed upon: USD 100,000 within 5 working
days and USD 200,000 in twelve equal monthly instalments.
21. Therefore, and taking into account that, by the time he left, the player admittedly
received the amount of USD 172,669, it appears clear that Y duly complied with their
contractual obligations, as this amount corresponds to the sum the player was
entitled to, calculated pro rata for the period he spent with the club, until he left for
his Christmas leave in December 2005.
22. Consequently, the Chamber decided to reject Mr X’s request to be awarded the
sum of USD 129,331 as outstanding salaries for the year 2005. As for the
reimbursement of airfares, the Chamber noticed that the player did not provide
valid legal evidence supporting such a claim.
23. Conversely, the Chamber reiterated that the club has acted in bad faith by
including in the employment contract the clause according to which the club
reserved the right to terminate the contract with the player in case the latter’s ability
to play decreased substantially. Such a behaviour, it was stated, cannot be
tolerated and shall be sanctioned.
24. To this effect, the Chamber concluded that, in spite of the fact that he left the club
and, by doing so, committed contractual breach, Mr X is entitled to receive the
amount of USD 50,000 as outstanding salaries corresponding to the period between
the player’s Christmas leave an the date on which the player signed an employment
contract with the club of his choice.
25. Consistently with the all of the above-mentioned considerations, all the other
requests filed by the player are rejected.
6
26. To conclude with, the Dispute Resolution Chamber decided that the club, Y, must
pay to the player, Mr X, the outstanding amount of USD 50,000.
III. Decision of the Dispute Resolution Chamber
1. The claim of the player, Mr X, is partially accepted.
2. The club, Y, has to pay the amount of USD 50,000 to the player, Mr X, within 30 days
of notification of this decision.
3. If the aforementioned amount is not paid within the aforementioned deadline, a 5%
interest rate per annum as from the expiry of the aforementioned deadline will apply,
and the present matter will be submitted to the FIFA’s Disciplinary Committee, so that
the necessary disciplinary sanctions may be imposed.
4. The player is directed to inform the club Y immediately of the account number to
which the remittances are to be made, and to notify the Dispute Resolution
Chamber of any payment received.
5. According to art. 61 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:
Château de Béthusy
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00, Fax: +41 21 613 50 01
[email protected], www.tas-cas.org
For the Dispute Resolution Chamber:
Urs Linsi
General Secretary
Encl. CAS directives
7