Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 13 December 2010,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
O,
as Claimant / Counter-Respondent
against the club,
M,
as Respondent / Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 14 August 2007, the club, M (hereinafter: the club or the Respondent /
Counter-Claimant) signed an employment contract with the player O
(hereinafter: the player or Claimant / Counter-Respondent) valid from the date
of signature until 30 June 2008.
2.
The employment contract provides for a total remuneration for the player of
EUR 10,000 to be paid in ten monthly instalments of EUR 1,000, the first of
which being due on 10 September 2007.
3.
An agreement was also concluded by the parties on 24 July 2007, according to
which:
a) the club would finance the player’s flight tickets from B to P and
return;
b) the club would pay EUR 15,000 to the player in 10 monthly instalments
of EUR 1,500, beginning on 10 September 2007;
c) the club would be ‘’responsible for the player’s permanence, during
the duration of the contract’’.
4.
On 5 March 2008 the player lodged a claim in front of FIFA, which was later
completed on 2 April 2008. The player asked to be awarded:
a) EUR 2,000 as outstanding salaries (September and December 2007).
The player alleges that, only his salaries of October and November
2007 were paid;
b) EUR 6,000 as compensation for breach of contract, i.e. the salaries the
player was entitled to receive until the end of the employment
contract (January to June 2008);
With regard to his request for the payment of compensation, the Claimant /
Counter-Respondent refers to the ‘’P Employment Blanquet’’ for these
payments. Said regulations, which are included in article 14 of the employment
contract, state in article 43 that the player has the right to terminate the
contract with just cause if the club has delayed the payment of the salary by 30
days and the player has a right to compensation amounting to the salaries the
player is entitled to receive until the end of the contract, but only if the player
informs the club of his intentions and the club does not rectify the situation
within 3 days.
c) to be released from the employment contract.
5.
The Claimant / Counter-Respondent explains that he flew back to country B for
Christmas 2007 with the club’s authorisation and was refused entry onto P
territory on 22 January 2008, because he failed to present a valid visa on his
return.
2/10
6.
Upon the player’s return to country B he allegedly attempted to contact the
club several times in view of resolving the situation and returning to country P
to play for the club, but apparently received no answer.
7.
The Claimant / Counter-Respondent insists that the Respondent / CounterClaimant was responsible to provide him with a work permit valid for the
duration of the employment contract, that the club had committed to this, and
that the validity of the contract cannot be subject to the granting of a work
permit. Consequently, the player claims that the club breached the
employment contract for not having provided him with the relevant work
permit.
8.
In its reply to the claim, the Respondent / Counter-Claimant states that the
player flew to country B with neither the club’s permission nor its knowledge
of his travels. The club added that, returning to country P on 22 January 2008
was late anyhow, since two league games had already been played. The club
adds that it only found out the player was in country B early January as it
requested his presence for training.
9.
Furthermore, the Respondent / Counter-Claimant insists that it was not
responsible to provide the Claimant / Counter-Respondent with the visa. In this
respect, the club allegedly informed the player he had to require a work visa
from the competent entity in order to stay legally in country P. The club
equally claims having provided the player with all the necessary documents for
his visa application and that it was not aware the player had not made the
relevant visa application.
10.
The Respondent / Counter-Claimant concludes that the Claimant / CounterRespondent failed to respect the club’s indications in order to regularise his
situation in the country P and is therefore culpable for not being able to fulfil
his contractual obligations, i.e. making himself available for the club.
Therefore, the Respondent / Counter-Claimant argues that the Claimant /
Counter-Respondent unilaterally terminated the contract without just cause
and lodged a counterclaim against the player, requesting the payment of
compensation without, however, specifying an amount.
11.
According to the club, all payments due to the player on the date of his
departure to country B had been granted (instalments from September to
December 2007).
12.
In his replica, the Claimant / Counter-Respondent insists that the club had
never told him to apply for the visa by himself and in particular that the club
had committed to provide him with the visa by signing the agreement of 24
July 2007 (cf. number I./3. above).
3/10
13.
Furthermore, the player argues that the club was aware of the player’s journey
to the country B, because of the agreement dated 24 July 2007, which states
that the club would pay for the player’s flight ticket from B-P and return.
Moreover, the player stated that the club provided him with the ticket.
14.
In its duplica, the Respondent / Counter-Claimant confirms its position and
contests the player’s reference to the agreement dated 24 July 2007 by arguing
that this was only a provisory agreement prior to the signature of the
employment contract, i.e. a promise of work, and that the employment
contract is only valid from 14 August 2007. The club added that, at the time
said provisory agreement was signed, the player entered the P territory with a
temporary visa in order to pass a trial with the club. Concerning the flight
tickets, the club explains that it was willing to pay for the player’s original
arrival in country P in July 2007 and his departure at the end of the contract.
Finally, the club specified the amount requested as compensation for breach of
contract and asked for the payment of EUR 6,000, consisting of the remaining
salaries from January to June 2008 (6 x EUR 1,000).
15.
The player informed FIFA that he had not signed a new employment contract
since his return to country B, allegedly because clubs fear having to pay
compensation to the club M.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with
the case at hand. In this respect, the DRC judge referred to art. 21 par. 2 and 3
of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was
submitted to FIFA on 5 March 2008, thus before 1 July 2008. Consequently, he
concluded that the 2005 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. art. 18 par. 2 and 3 of
the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par.
2 in conjunction with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2010) he is competent to decide on the present
litigation, which concerns an employment-related dispute with an
international dimension between a player and a club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable
as to the substance of the matter. In this respect, he confirmed that in
4/10
accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and
Transfer of Players (editions 2009 and 2010) and considering that the present
claim was lodged on 5 March 2008, the 2008 edition of said Regulations
(hereinafter: the Regulations) is applicable to the present matter as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, the DRC judge started by acknowledging that, on 14 August 2007, the
parties in the dispute at stake concluded an employment contract valid as from
the date of signature until 30 June 2008, providing for a total remuneration of
EUR 10,000 in favour of the Claimant / Counter-Respondent.
5.
Analysing the facts pertaining to the matter at hand, the DRC judge noted
that the Claimant / Counter-Respondent returned to country B for Christmas
2007 and that upon his return to country P on 22 January 2008, he was refused
entrance onto P soil for not having the necessary visa.
6.
The DRC judge took note, on the one hand, that the Claimant / CounterRespondent asserted that the Respondent / Counter-Claimant had breached
the contract without just cause by not providing him with an employment visa
valid for the entire duration of the relevant employment relationship and
therefore, the Claimant / Counter-Respondent demands the payment of EUR
2,000 as outstanding salaries for September and December 2007, as well as
EUR 6,000 corresponding to the residual value of the contract as from January
2008.
7.
The DRC judge equally acknowledged, on the other hand, that the Respondent
/ Counter-Claimant rejected the Claimant / Counter-Respondent’s claim,
alleging that the player breached the contract without just cause by failing to
make himself available for the club in order to fulfil his contractual
obligations. In this context, the DRC judge noted that the Respondent /
Counter-Claimant demands the payment of EUR 6,000 as compensation for
breach of contract, corresponding to the remaining value of the contract as
from January 2008.
8.
In this context, the DRC judge first and foremost focussed his attention on the
player’s claim relating to outstanding salaries.
9.
In this regard, the DRC judge noted that, despite claiming having paid the
monthly salaries due to the Claimant / Counter-Respondent until the latter’s
departure, the Respondent / Counter-Claimant failed to provide FIFA with any
5/10
documentary evidence that the salaries had been paid, in accordance with art.
12 par. 3 of the Procedural Rules, which stipulates that any party deriving a
right on the basis of an alleged fact shall carry the burden of proof.
10.
In this context, the DRC judge held that, in accordance with the basic legal
principle of pacta sunt servanda, the Respondent / Counter-Claimant must
fulfil its obligations as per the contract entered into with the Claimant /
Counter-Respondent and, consequently, pay the outstanding remuneration
which is due to the latter.
11.
On account of the above, the DRC judge decided that the Respondent /
Counter-Claimant was liable to pay to the Claimant / Counter-Respondent the
amount of EUR 2,000 as outstanding salaries for the months of September and
December 2007.
12.
In continuation, the DRC judge turned his attention to the allegation of the
Claimant / Counter-Respondent pertaining to the lack of a valid visa, which the
player considered to constitute a breach of the employment contract by the
club. In this respect, the DRC judge took note of the argumentation advanced
by the Respondent / Counter-Claimant. First and foremost, the DRC judge
noted that the Respondent / Counter-Claimant has not contested that the
player was refused entrance onto P soil for not having the necessary visa. In
particular, the DRC judge observed that the Claimant / Counter-Respondent
had provided a document, issued by the P border authorities, from which it
could be noted that the player was not allowed back into the territory of P for
the aforementioned reason.
13.
Subsequently, the DRC judge noted the allegation of the Respondent /
Counter-Claimant that it was the player’s responsibility to apply for the
pertinent visa and that it had provided the latter with the necessary
documentation for the relevant visa request.
14.
In this context, the DRC judge referred to art. 18 par. 4 of the Regulations
which stipulates, inter alia, that the validity of a contract may not be made
subject to the grant of a work permit.
15.
In this respect, the DRC judge referred to the well-established jurisprudence of
the Dispute Resolution Chamber and emphasised that the responsibility to
obtain the necessary visa prior to the signing of the employment contract or
during its period of validity is incumbent on the club, i.e. the Respondent /
Counter-Claimant and that, therefore, the argumentation of the Respondent /
Counter-Claimant could not be allowed.
6/10
16.
In view of the aforementioned considerations, including the club’s failure to
pay the salaries of the Claimant / Counter-Respondent as established above,
the DRC judge decided to reject the counterclaim lodged by the Respondent /
Counter-Claimant and to accept the Claimant / Counter-Respondent’s claim,
according to which the Respondent / Counter-Claimant had acted in breach of
the employment contract without just cause.
17.
Having established that the Respondent / Counter-Claimant is to be held liable
for the early termination of the employment contract without just cause in
January 2008, the DRC judge focussed his attention on the consequences of
such breach of contract. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC judge decided that the Claimant / Counter-Respondent is
entitled to receive from the Respondent / Counter-Claimant an amount of
compensation for breach of contract in addition to any outstanding payments
on the basis of the relevant contract.
18.
Subsequently, the DRC judge referred to art. 17 par. 1 of the Regulations, in
particular to the non-exhaustive enumeration of the objective criteria which
need to be taken into account. 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.
19.
In application of the relevant provision, the DRC judge held that he first of all
had to clarify as to whether the pertinent employment contract contains a
provision by means of which the parties had beforehand agreed upon an
amount of compensation payable by the contractual parties in the event of
breach of contract.
20.
Article 14 of the employment contract (cf. point I./4. lit. b) above) refers to the
‘’P Employment Blanquet’’, which states in article 43 that the player has the
right to terminate the contract and is entitled to the payment of salaries due
to the player until the end of the employment contract if the payment of the
salary is delayed by 30 days. However, the DRC judge noted that said article
also stipulates that the aforementioned consequences are applied only if the
player informs the club of his intentions and the club does not rectify the
situation within 3 days. In this respect, the DRC highlighted that from the
documentation on file it could not be established that the formal prerequisites
7/10
set out by this article in order to be applicable had been respected. Therefore,
the DRC judge determined that in the case at hand, the relevant article of the
employment contract could not be taken into consideration for the calculation
of the compensation to be awarded to the Claimant / Counter-Respondent.
21.
As a consequence, the DRC judge 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 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.
22.
In this context, the DRC judge took into account that the Claimant / CounterRespondent asked for the payment of EUR 6,000 as compensation for breach
of contract and that this amount corresponds to the salaries he would have
been entitled to receive in accordance with the employment contract as from
the termination of the employment contract in January 2008 until June 2008.
Furthermore, the DRC judge noted that the Claimant / Counter-Respondent
had apparently remained unemployed for the whole contractual period after
the occurrence of the breach of contract by the Respondent / CounterClaimant in January 2008.
23.
In view of the aforementioned considerations and the specificities of the case
at hand, the DRC judge decided that the Respondent / Counter-Claimant has to
pay to the Claimant / Counter-Respondent EUR 6,000 as compensation for
breach of contract corresponding to the residual value of the contract, i.e.
salaries from January 2008 until June 2008, which was to be considered
reasonable and justified as compensation for breach of contract.
24.
Consequently, the DRC judge decided that the Respondent / Counter-Claimant
has to pay the total amount of EUR 8,000 to the Claimant / CounterRespondent, consisting of EUR 2,000 concerning outstanding salaries and of
EUR 6,000 as compensation for breach of contract.
25.
The DRC judge concluded his deliberations on the present dispute by deciding
that the counterclaim of the Respondent / Counter-Claimant is rejected.
8/10
III.
Decision of the DRC judge
1.
The claim of the Claimant / Counter-Respondent, O, is accepted.
2.
The Respondent / Counter-Claimant, M, has to pay to the Claimant / CounterRespondent, O, the amount of EUR 8,000 within 30 days as from the date of
notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, interest
at the rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
The counterclaim of the Respondent / Counter-Claimant, M, is rejected.
5.
The Claimant / Counter-Respondent, O, is directed to inform the Respondent /
Counter-Claimant, M, immediately and directly of the account number to which the
remittance is to be made and to notify the DRC judge of every payment received.
*****
9/10
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
10/10