Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 January 2011,
in the following composition:
Geoff Thompson (England), Chairman ad interim
Gerardo Movilla (Spain), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
F,
as Claimant
against the club,
K,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 12 January 2007, the player, F (hereinafter: the player or the Claimant), and
the club, K (hereinafter: the club or the Respondent) concluded an employment
contract (hereinafter: the contract) valid from 12 January 2007 until 12 January
2010.
2.
According to the contract the club would pay to the player the amount of EUR
550,000 per year.
3.
On 30 October 2009, the player contacted FIFA and explained that he rendered his
services to the club until 30 June 2007 and then he was loaned to a club of country
P until the end of the season 2007/2008. Thereafter, he was loaned to a club of
country G during the season 2008/2009. Clause 4 of the loan agreement signed
between the player, the Respondent and the club of country G, stipulates: “The
club K agrees to accept the player to return to his professional duties on 1st July
2009”.
4.
In this context, the player explained that on 1 July 2009, he had sent a fax to the
Respondent in order to be informed where and when he should join the
Respondent. Moreover, the player explained that on 3 July 2009 he sent a fax to
the Respondent with the following content: “According to the telephone
conversation with Mr. X, and duly authorized by the club as I was informed, I will
initiate the steps leading to the attainment of a new loan for the season
2009/2010 sporting season”. Furthermore, the player provided a copy of a fax
dated 14 July 2009 sent to him by the Respondent authorizing him not to return
and to look for a new club. Also, the player emphasised that on 26 August 2009 he
informed the Respondent that he had not found a new club and since the transfer
window will be closed soon he requested to be informed if he should render his
services to the Respondent or not. In this context, the player explained that while
awaiting an answer from the Respondent he sent another fax to the club on 18
September 2009 informing it that he would stay in country P waiting for the
Respondent’s instructions. The player provided a copy of a fax dated 22 September
2009 sent by the Respondent by means of which the latter informed him that it
had not authorized him to be absent for such a long period and that since he
contacted the club only after the closing of the registration window, the club was
unable to resolve the question of his further employment. Therefore, the club
considered the employment contract to be terminated as from 2 September due to
the player’s unauthorised absence.
5.
In view of all of the above, the Claimant deems that the Respondent has breached
the contract and should therefore pay him the salaries for the months of July and
August 2009 in the total amount of EUR 91,666.66 as well as the remaining value
of the contract in the amount of EUR 183,533.32 (salaries September 2009 to
December 2009) as compensation. Moreover, the Claimant requests to be awarded
an additional compensation of EUR 150,000 for the damage caused to him since
he will most likely not find a new club during the entire season.
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6.
On 25 December 2009, the Respondent informed FIFA that the amount of EUR
92,000 as salary for the months of July and August has been paid to the Claimant
by the end of October 2009. Moreover, the Respondent deems that it had
authorized the Claimant to look for a new club, yet it was the Claimant’s
obligation to either find a new club or return to the Respondent before the
transfer window would have closed, without any further instructions from the
Respondent. As a result, the Respondent rejects any further financial obligation
towards the Claimant.
7.
On 11 August 2010, the Claimant acknowledged that the Respondent had paid the
salaries for the months of July and August. However, the Claimant again
emphasised that since the Respondent had breached the contract on 22
September 2009, it should be liable to pay him the remaining value of the contract
until December 2009 in the amount of EUR 184,000 as well as an additional
compensation of EUR 150,000.
8.
On 6 September 2010, the Respondent vehemently contested the latest statement
of the Claimant and emphasised that also the salary for the month of September
had been paid to the Claimant by the end of November 2009.
9.
Moreover, the Respondent again explained that the Claimant was absent from
work without authorization. The Respondent deemed that it had authorized the
player to look for another club and thus authorized his absence until the end of
the transfer window only. However, the Claimant never returned. Moreover, the
Respondent explained that the Claimant found a new club in country P in January
2010 and signed a contract for 2 ½ years.
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 30 October 2009. Consequently, the 2008 edition of 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. 21 paras. 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 and 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players 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.
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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, and
considering that the present claim was lodged on 30 October 2009, the previous
version of the regulations (edition 2009; 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. The members
of the Chamber started by acknowledging that the Claimant and the Respondent
signed an employment contract on 12 January 2007 valid until 12 January 2010, by
means of which the Claimant was entitled to a yearly remuneration of EUR
550,000. Equally, the Chamber noted that during the seasons 2007/2008 and
2008/2009 the Claimant was loaned to third clubs, in particular during the season
2008/2009 the Claimant was loaned to a club of country G until 30 June 2009.
5.
In continuation, the members of the Chamber focussed their attention on the
Claimant’s claim for EUR 184,000 corresponding to the remaining value of the
contract, i.e. the salaries as from September 2009 until December 2009 as well as
EUR 150,000 as an additional compensation for the damage caused to him. In this
regard, the Chamber duly noted that according to the Claimant, the Respondent
did not have a valid reason to consider the employment contract to be terminated
as from 2 September due to his alleged unauthorised absence. As a result, the
Claimant is of the opinion that the Respondent breached the contract without just
cause in September 2009 and should therefore be liable to pay him the
aforementioned compensation.
6.
Equally, the Chamber acknowledged that the Respondent deemed that it had
authorized the Claimant to look for another club and thus authorized his absence
until the end of the transfer window only. However, and considering that the
Claimant never returned and thus, was absent from work without authorization
the Respondent deemed that the Claimant was responsible for the premature
termination of the contract. Thus, the Respondent is of the opinion that it cannot
be held liable for any further financial obligation towards the Claimant.
7.
In view of the positions presented by the parties to the present dispute, the
Dispute Resolution Chamber first of all remarked that it is uncontested that the
Claimant never returned to the Respondent as well as that on 26 August 2009 the
Claimant informed the Respondent that he had not found a new club and that he
requested to be informed if he should return or not.
8.
In this respect, the Chamber concurred that the Respondent had authorized the
Claimant to look for a new club, e contrario the Chamber was of the opinion that
in case the Claimant would not have found a new club the contract remains valid
and the Claimant should have returned without any further or additional request
from the Respondent once the registration period would have ended, i.e. by the
end of August 2009.
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9.
Moreover, the Chamber took due note of the fact that, during the proceedings,
the Claimant had acknowledged that the salaries for the months of July and
August 2009 have been paid to him, i.e. the Respondent had paid all
remuneration due to the Claimant until the end of August 2009.
10.
As a result and considering all of the above, the Chamber concluded that the
Respondent had a just cause to terminate the contract due to the unauthorized
absence of the Claimant and that the claim of the Claimant to be awarded
compensation has to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, F, is rejected.
*****
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
Enclosed: CAS directives
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