Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
I,
as Claimant
against the club,
S,
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 26 August 2007, the player, I (hereinafter: the Claimant), and the club, S
(hereinafter: the Respondent), signed an employment contract valid as from 26
August 2007 until the end of the premier league and cup championship of R for
the 2007-08 season.
2.
In accordance with this contract the Claimant was entitled to receive inter alia
the total amount of USD 95,000 until the end of the 2007-08 season payable as
follows:
a. USD 35,000 on 27 August 2007 (USD 30,000 for his former club);
b. USD 3,000 monthly salary;
c. Reminder (not specified) payable to the Claimant one month before the end
of the 2007-08 season.
3.
On 20 December 2007, the Claimant and the Respondent signed a “mutual
agreement” in accordance with which, inter alia, the player would leave to E for
vacation on 21 December 2007 and return to R on 10 January 2008.
4.
Furthermore, according to this agreement, the Respondent committed itself to
paying USD 12,000 to the Claimant through the Embassy of E in R on 8 January
2008. If the amount of USD 12,000 would remain unpaid by 8 January 2008, the
Claimant had the right not to return to R and “follow the matter through FIFA
for the total amount of the contract”.
5.
On 18 January 2008, the Claimant lodged a claim in front of FIFA against the
Respondent maintaining that his salary as of September 2007 had remained
outstanding, totalling USD 12,000. Referring to the aforementioned mutual
agreement and art. 14 of the FIFA Regulations on the Status and Transfer of
Players he adds that, on 16 January 2008, he terminated the pertinent
employment contract with just cause.
6.
The Claimant points out that the relevant employment contract was valid until 30
June 2008.
7.
The Respondent having failed to fulfil its obligations and thus having acted in
breach of contract, the Claimant asks that the Respondent be ordered to pay him
the following monies:
a.
the outstanding salaries totalling USD 12,000;
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b. compensation for breach of contract totalling USD 48,000 (remaining value of
the employment contract).
8.
In reply to the claim, the Respondent states that a mutual agreement had been
found with the Claimant during a meeting of the Disciplinary Committee of the R
Football Federation, “which [agreement] will be sent soon”.
9.
The Claimant, for his part, points out that the Respondent has failed to submit
any proof of its allegations and adheres to his claim.
10.
The Respondent has not replied to FIFA’s invitation to present its final comments
along with any supporting documentation.
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 18 January 2008. 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. article 21
par. 2 and 3 of the Procedural Rules, edition 2008, in combination with 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 2009) 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 E player and an R 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
(edition 2009), and considering that the present claim was lodged on 18 January
2008, the 2008 edition of the said regulations (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. In this
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respect, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract on 26 August 2007 valid until the end of the
premier league and cup championship of the R Football Federation for the 200708 season. According to the Claimant, the employment contract was valid until 30
June 2008, which statement has not been contested by the Respondent.
5.
The members of the Chamber noted that, on 20 December 2007, the Claimant
and the Respondent signed a “mutual agreement” in accordance with which,
inter alia, the Respondent committed itself to paying USD 12,000 to the Claimant
through the Embassy of E in T on 8 January 2008. Furthermore, if the amount of
USD 12,000 would remain unpaid by 8 January 2008, the Claimant had the right
to “follow the matter through FIFA for the total amount of the contract”.
6.
In continuation, the Chamber noticed that the amount of USD 12,000 having
remained unpaid by the agreed time limit, the Claimant unilaterally terminated
the employment contract on 16 January 2008 invoking just cause and filed his
petition against the Respondent in front of FIFA.
7.
The Claimant maintains that the Respondent breached the contract by failing to
remit his salaries as of September 2007 and, therefore, he claims payment of
outstanding salaries amounting to USD 12,000 and compensation for breach of
contract equalling the remaining value of the employment contract in the
amount of USD 48,000.
8.
The Chamber then turned to the arguments put forward by the Respondent in its
defence and noted that, according to the latter, a mutual agreement had been
found with the Claimant during a meeting of the Disciplinary Committee of the R
Football Federation, “which [agreement] will be sent soon”.
9.
In this respect, the Chamber took into account that the Respondent has failed to
present documentation in support of such position and recalled that according to
art. 12 par. 3 of the Procedural Rules any party deriving a right from an alleged
fact shall carry the burden of proof.
10.
Furthermore, the Chamber noted that the Respondent had not refuted the
Claimant’s allegation that his salary as of September 2007 had remained unpaid.
What is more, according to the Chamber, the USD 12,000 indicated in the mutual
agreement signed by and between the parties concerned on 20 December 2007
equal four monthly salaries of USD 3,000, i.e. as of September 2007.
11.
Hence and in accordance with the said mutual agreement, the Chamber
established that the Respondent had still been in delay of payment of at least
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four monthly salaries when the Claimant unilaterally terminated the employment
contract on 16 January 2008. Accordingly, the Chamber concurred that the
Claimant had indeed just cause to unilaterally terminate the employment
contract on the basis of the said mutual agreement, since the Respondent had
still not complied with its obligations by the relevant time limit, i.e. 8 January
2008, and that, consequently, the Respondent is liable to pay compensation in
accordance with art. 17 of the Regulations.
12.
Having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the
Chamber focussed its attention on the consequences of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the Chamber decided that
the Claimant is entitled to receive an amount of money from the Respondent as
compensation for the termination of the contract with just cause in addition to
any outstanding payments on the basis of the relevant contract in combination
with the pertinent mutual agreement.
13.
The Chamber then reverted to the Claimant’s financial claim, which includes
outstanding remuneration as from September 2007 until December 2007
totalling USD 12,000 and took into account that the Respondent failed to
demonstrate that it had in fact paid the Claimant’s remuneration as from
September 2007 onwards or that it had valid reasons not to pay the said
remuneration to the Claimant.
14.
Consequently, taking into account the documentation remitted by the Claimant
to substantiate his claim, i.e. the relevant employment contract as well as the said
mutual agreement, and the fact that the employment relation between the
parties is to be considered terminated as of the beginning of January 2008, the
Chamber decided that the Respondent is liable to pay to the Claimant the
amount of USD 12,000 relating to the payments due to the Claimant in
accordance with the employment contract as from September 2007 up to and
including December 2007.
15.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent in the case
at stake. 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
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contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
16.
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. In this
regard, the Chamber established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
17.
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 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.
18.
On this basis, the members of the Chamber highlighted that at the moment of
the early termination of the employment contract in January 2008, the
Respondent was in arrears of four monthly salaries. The Chamber deemed that it
should consider this fact in determining the amount of compensation to be paid
by the Respondent.
19.
Equally, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account the remuneration
due to the Claimant in accordance with the employment contract as well as the
time remaining on the same contract, as well as the professional situation of the
Claimant after the early termination occurred. In fact, the Claimant appears to
have remained unemployed until at least 14 July 2008. Finally, the Chamber took
into account that the Claimant, for his part, claims the amount of USD 48,000 as
compensation, which amount, in fact, reflects the remaining value of the
pertinent employment contract as of the moment on which the contract was
terminated.
20.
In this context, the Chamber also referred to the contents of the mutual
agreement signed between the parties concerned on 20 December 2007, in
accordance with which the Claimant had the right to “follow the matter through
FIFA for the total amount of the contract” should the Respondent fail to remit
the amount of USD 12,000 to the Claimant until 8 January 2008.
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21.
In view of all of the above, the Chamber concluded that bearing in mind art. 17
par. 1 of the Regulations as well as the circumstances of the case including the
consequences stipulated in the relevant mutual agreement, the amount of
compensation of USD 48,000 as claimed by the Claimant would appear fair and
appropriate.
22.
In light of the above, the Dispute Resolution Chamber decided that the
Respondent has to pay to the Claimant the amount of USD 12,000 as outstanding
remuneration and the amount of USD 48,000 as compensation.
23.
In conclusion, the Chamber decided to fully accept the claim lodged by the
Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, I, is accepted.
2.
The Respondent, S, has to pay the amount of USD 60,000 to the Claimant within
30 days as from the date of notification of this decision.
3.
If the aforementioned sum of USD 60,000 is not paid within the abovementioned 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
request, to FIFA’s Disciplinary Committee for its consideration and decision.
4.
The Claimant, I, is directed to inform the Respondent, S, 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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