Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 October 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Ivan Gazidis (USA), Member
Zola Malvern Percival Majavu (South Africa), Member
Mick McGuire (England), Member
Carlos Soto (Chile), Member
on the claim presented by the player
R,
as “Claimant”
against the club
A,
as “Respondent”
regarding a dispute on the basis of an
employment contract concluded between the parties.
./…
I.
Facts of the case
1.
On 14 June 2006, the player R (hereinafter: the player) and the club A
(hereinafter: the club) signed an employment contract valid as from 1 July 2006
until 30 June 2008 (hereinafter: the 1st employment contract).
2.
On 30 June 2006, the player and the club signed another employment contract
valid as from 1 July 2006 until 30 June 2008 (hereinafter: the 2nd employment
contract).
3.
The point 2 a) of the 1st employment contract establishes a total net salary of EUR
160,000 payable in 20 monthly instalments of EUR 5,500 each one. In addition, the
club must pay the player EUR 25,000 as an advance payment at the beginning of
every year, i.e. on 1 July 2006 and 1 July 2007 (cf. point 2 b) . Moreover, the
aforementioned point 2 pars. c to l stated other items that the club should pay to
the player such as, furnished accommodation, 8 return flight tickets, car, bonuses.
4.
The point 2 a) of the 2nd employment contract establishes a total salary of EUR
80,000 for the entire term of the contract payable in 20 monthly instalments of
EUR 4,000 each one. Moreover and in accordance with the par. 2 b) of the 2nd
employment contract the club had to provide the player with suitable furnished
accommodation for the player and his family and other items that the club should
pay to the player such as, furnished accommodation, 8 return flight tickets, car,
bonuses.
5.
On 7 August 2007, the player lodged a complaint at FIFA requesting the following:
• to declare that the club breached the relevant employment contract;
• to pay an amount of EUR 25,000 net of taxes as advance payment that was
due until 1 July 2007;
• to pay an amount of EUR 55,000 net of taxes as salary for the season
2007/2008;
• to pay an amount of EUR 4,250 net of taxes as bonuses for the season
2006/2007;
• to pay an amount of EUR 8,000 net of taxes as bonuses for the season
2007/2008;
• to pay an amount of 290 as medical treatment;
• to pay an amount of EUR 301 as 8th flight ticket;
• a compensation for the breach of the relevant employment contract due to
the lack of payment of furnished accommodation and a car to be determined
by the Dispute Resolution Chamber;
• to pay an amount of EUR 1,000 as commission for the company of its players´
agent;
• plus interests.
6.
The player alleged that the club, on June 2007 after the first season of the
employment contract, informed orally him that he has to leave and that the
contract between the parties was terminated with immediate effect.
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7.
The player refused the behaviour of the club and requested by email the club to
fulfil the relevant employment contract, no response was received from the club.
8.
The player reported back from training with the club on 1 July 2007 and that on 7
July 2007, the player was impeded to take part in the training sessions by the club.
9.
The player stated that on 19 July 2007, the club sent an email to the player
informing that a board meeting on 4 July 2007 decided to restrain the player from
taking part in the training sessions as long as he was under investigation of the C
Football Association due to the content of an interview that the player had with a
D newspaper.
10.
On 26 July 2007, the C Football Association´s Disciplinary Committee decided to
suspend the player restricting him to play for two games and to impose a fine of
300.
11.
On 27 July 2007, the club informed him by email that based on the decision of the
Disciplinary Committee of the C Football Association they considered that the
player breached and violated the relevant employment contract. Therefore the
club considered the employment contract terminated with immediate effect based
on paragraph 3c) of the 2nd employment contract.
12.
Upon FIFA’s request of position, the club stated:
• that the club and the player signed a 2nd employment contract on 30 June
2006 by means of which amended and replaced the 1st employment contract
signed on 14 June 2006. Therefore that the 1st employment contract is null
and void.
• that according with the 2nd employment contract the club fulfilled all of its
obligations towards the player as from 1 July 2006 until 30 May 2007.
• that on 13 June 2007 the player gave an interview to a D newspaper
mentioning that “the Champion in Cs is fixed by referees who work for big
clubs of the country. … He mentioned that he feels disgusted of the
corruption that exists in C football and therefore he has no longer intention
and willingness to play for A FC “.
• that after the aforementioned decision of the Disciplinary Committee of the C
Football Association the board of directors of the club reviewed the player’s
case and decided that he was in breach of the par. 1 lits. k) and m) of the 2nd
employment contract and therefore the club decided to terminate the
employment contract with immediate effect on 27 July 2007 according to par.
3 c) of the aforementioned contract. The par. 1 lits. k) and m) of the cited
contract state that the employee “… k. Shall not in any case make statements
to the MEDIA which may deemed by the EMPLOYER harmful to the image
and/or interests of the EMPLOYER. It is understood that before making any
statements to the mass media he will ask the Employer’s permission to do so.
… m. Shall not at any time be guilty of any act or conduct which may cause
damage, according to the judgement of the EMPLOYER, to its
property/interests or reputation…”.
• that the club considered that the termination of the relevant employment
contract is with just cause and therefore the player’s claim has to be rejected.
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13.
The player added :
• that he only signed one employment contract with the club that is the 1st
employment contract.
• that his signature in the 2nd employment contract sent by the club is a forgery.
• that it seems that the signatures of the 1st employment contract were copied
to the 2nd employment contract.
• that previously the club presented the 2nd employment contract to him but he
refused to sign it due to the significant reduction of the salary and that the
signing on fee (advance payment) of EUR 25,000 per year was not included in
the 2nd employment contract.
• that a prove of that the only contract valid between the parties is the 1st one,
the player submitted to FIFA copy of his bank account statements. The player
stated that he received an advance payment of EUR 25,000 on 16 June 2006
and subsequently received 10 monthly deposits of EUR 5,500 approximately as
from 31 July 2006 until 8 June 2007.
• that the club has used the interview given to the D newspaper to terminate
the employment contract with the player.
• that by letter dated 11 July 2007, he made his excuses to the C Football
Association where he informed that he never said anything negative about C
Football Association and that his appreciations were stated in the newspaper
wrongly.
• that the sanctions imposed by the C Football Association’s Disciplinary
Committee to him cannot be a valid reason to terminate an employment
contract prematurely.
• that on 20 July 2007, the D journalist submitted to the club a declaration by
means of which he stated that he was aware of rumours of corruption due to
newspaper articles and that the player did not stated anything wrong about
the football in C.
14.
FIFA send two communications to the club but no further answers were received.
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, it took note that the present matter
was submitted to FIFA on 7 August 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. 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 2008) 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 D player and a C club.
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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 2008), and considering that the present claim was lodged on 7 August
2007, the previous version of the regulations (edition 2005; 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 started by
acknowledging that both parties signed an employment contract on 14 June 2006
valid as from 1 July 2007 and until 30 June 2008.
5.
Moreover, the members of the Chamber took note that the parties has
antagonistic positions with regard to the existence of a second employment
contract.
6.
On the one hand, the club A maintains that the parties concluded a second
employment contract on 30 June 2006 amending and replacing the 1st
employment contract signed on 14 June 2006, i.e. 16 days after.
7.
On the other hand, the player R categorically refused the existence of a second
employment contract and maintains that he did not sign it. Moreover, the player
alleged that the second contract is a forgery. In addition, the player stated that
the club offered him to sign a second employment contract but he did not accept
it since the economical conditions were not favourable for him.
8.
In this context, the members of the Chamber were eager to emphasize that
criminal actions like, forgery of documents, does not fall under its competence and
penal courts are the competent instance to deal with this kind of matters.
9.
In continuation, the members of the Chamber remarked that the player provided
FIFA with bank receipts of the payments that the club made in his favour and that
the club did not contest them.
10.
The Chamber took note about the player’s allegation stating that he received
from the club an advance payment of EUR 25,000 on 16 June 2006 and
subsequently 10 monthly deposits of EUR 5,500 approximately as from 31 July
2006 until 8 June 2007.
11.
In particular, the Chamber took note about the bank receipt dated 16 June 2006,
i.e. two days after the celebration of the 1st employment contract, for an amount
of EUR 25,000. The members of the Chamber pointed out that it seems that the
date and the amount corresponds to the “advance payment” agreed between the
club and the player in the point 2 b) of the 1st employment contract.
12.
Moreover, the members of the Chamber pointed out that in the 2nd employment
contract there is no figure that can corresponds to this amount.
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13.
In this context, the members of the Chamber remarked that the club failed to
answer FIFA requests for position regarding the position of the player in which he
alleged the above descript forgery and presented the relevant bank deposits.
14.
Therefore, the members of the Chamber concluded that the player provided
enough evidences about the payments related to salaries and the advance
payment corresponding to the 1st employment contract.
15.
Furthermore, the members of the Chamber reiterated that the club did not
contest the player’s allegation regarding the invalidity of the second employment
contract.
16.
In view of the foregoing, the members of the Chamber concluded that the first
employment contract concluded between the player and the club on 14 June 2006
has to be considered as the only valid employment contract.
17.
Having established the validity of the 1st employment contract the members of the
Chamber took note that both parties have antagonistic positions regarding the
termination of their labour relationship.
18.
On the one hand, the club maintains that the player breached the relevant
employment contract by making a declaration to a journalist that harm the image
of the club in accordance with contractual clauses that refers to conditions that
the player has to respect when is contacted by the media. Therefore, the club
alleged that the termination made by email on 27 July 2007 of the relevant
employment contract is with just cause.
19.
On the other hand, the player maintains that the club breached the relevant
employment contract by no allowing him to participate in the training sessions.
20.
In this respect, the members of the Chamber focussed their attention to the
content of the declaration that the player gave to the media. First of all, the
Chamber took note that from the information provided by the club, during the
process of the matter at stake, the player in the relevant declaration mentioned “C
Football” but not the club specifically. The Chamber added that a general
reference cannot be considered as an harmful attack to the image of the club.
21.
In continuation, the members of the Chamber focussed their attention to the
journalist’s declaration, in particular, when he asserted that the interview was
made on the telephone and the connection was not good and when he
maintained that he was aware of rumours of corruption in C football from
newspaper articles. The journalist concluded that the player was not giving his
own opinions or personal ideas about the football in C.
22.
In this context, the members of the Chamber took note that the Disciplinary
Committee of the C Football Association opened an investigation in this respect
and rendered a decision sanctioning the player with a suspension for two games
and imposing to him a fine of 300. The cited Committee deemed that the player
breached some norms of the “Championship Rules”.
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23.
At this stage, the members of the Chamber focused their attention to the club’s
allegation regarding that the player breached pars. 1 k) and 1 m) of the 2nd
employment contract according to which the player was obliged to not make
statements to the media which may harm the image of the club and in that event
he would have to request previous authorization to them. Besides, the player was
obliged to not be responsible for any act or conduct which may cause damage to
the club and finally shall obey and comply with all the laws and regulations in
force in C.
24.
Furthermore, the Chamber took note that the club terminated the relevant
employment contract based on the aforementioned breach and in accordance
with the par. 3 c) of the same contract. The Chamber deemed appropriate to
quote the par. 3 c) “… In case of violation of the terms and conditions of the
present contract the innocent party has the right to terminate the contract and to
claim damages…”.
25.
For the sake of good order, the members of the Chamber underlined that these
clauses i.e. par. 1 k) par. 1 m) and par. 3 c) were present also in the 1st employment
contract and with identical content.
26.
The members of the Chamber deemed appropriate to emphasized that, as a
general rule, the termination of a labour relationship has to be considered as the
“ultima ratio” and that the maintenance of the contractual stability has to be
protected by the parties in first place.
27.
In addition, the members of the Chamber pointed out that the Disciplinary
Committee of the C Football Association sanctioned the player for his declarations
to the media and by doing that breaching internal regulations of the C Football
Association.
28.
Consequently, the Chamber concluded that the player breached internal
regulations of the C Football Association and the par. 1 m) of the relevant
employment contract and for this wrong behaviour was already sanctioned by the
C Football Association.
29.
However, the members of the Chamber deemed that the club’s decision to
terminate the relevant employment contract was excessive in the present case.
30.
In view of all the above, the members of the Chamber decided that the club did
not have just cause to terminate the employment contract concluded with the
player on 14 June 2006.
31.
Bearing in mind the above, the members of the Chamber concluded that, the club
had no just cause to prematurely terminate the labour relationship concluded with
the player on 14 June 2006 and thus, breached the relevant employment contract
on 27 July 2007.
32.
In continuation, the Chamber turned its attention to the consequences of the
premature termination of the employment contract by the club.
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33.
As a result, the Chamber concluded that in accordance with art. 17 par. 1 of the
Regulations the club is liable to pay compensation to the player for the breach of
contract.
34.
In continuation, the members of the Chamber focussed their attention to the
financial aspects of the present claim.
35.
Regarding the player’s request for an amount of EUR 25,000 as advance payment,
the Chamber took note that this is an item agreed by both parties in the par. 2 b)
of the relevant employment contract.
36.
Besides, the Chamber took note that the player requests the amount of EUR
55,000 as compensation taking in consideration the remaining time of validity of
the contract.
37.
In this respect, the Chamber emphasized that despite the club breached the
relevant employment contract by terminating it prematurely, the player acted
against specific contractual clause and regulations and this fact has to be taken
into consideration by this deciding body.
38.
In view of the above, the members of the Chamber decided that an amount of
EUR 30,000 is reasonable as compensation for the club’s breach of the relevant
employment contract.
39.
Regarding the amount for the 8th flight ticket, the members of the Chamber stated
that this item is expressly agreed by the parties in the par. 2 e) of the relevant
employment contract and therefore the player is entitled to receive the amount of
EUR 301 from the club.
40.
Regarding the amounts claimed as bonuses, the Chamber pointed that the player
did not submit to FIFA specifications or enough evidences in this respect, as a
consequence, the Chamber decided that the player is not entitled to receive them.
41.
Regarding the amount claimed for medical treatment, the Chamber emphasized
that the player did not submit evidences or receipts in this respect. Therefore, the
Chamber rejected the relevant player’s claim.
42.
In view of all the above, the members of the Chamber decided that the club has to
pay the total amount of EUR 30,301 to the player.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is partially accepted.
2.
The Respondent, A, has to pay the amount of EUR 30,301 to the Claimant within
30 days as from the date of notification of this decision.
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3.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the parties request to FIFA’s
Disciplinary Committee for its consideration and decision.
4.
Any further claims lodged by the Claimant, R, are rejected.
5.
The Claimant, R, is directed to inform the Respondent, A, 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:
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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