Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 December 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Gerardo Movilla (Spain), member
Mario Gallavotti (Italy), member
Caio Cesar Vieira Rocha (Brazil), member
on a matter between the player
J,
as Claimant/Counter-Respondent
and the club
FC D,
as Respondent/Counter-Claimant
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 25 May 2005, the player, J (hereinafter: the Claimant), and the club, FC D
(hereinafter: the Respondent), signed an employment contract and an additional
agreement, valid from 1 July 2005 until 30 June 2009.
2.
According to the employment contract the Claimant is entitled to “a monthly
remuneration” in the amount of 8,300. Furthermore, the parties agreed that the
Respondent shall have the right “to set forth different systems of bonuses,
stimulating extra charge, allowances, and other similar payments”.
3.
The additional agreement stipulates that in accordance with article 191 of the R
Federation Labour Code the Claimant is awarded a “personal bonus” in the
amount of EUR 125,000 per month “… for bona fide fulfilling of the obligations,
high sports results, professional sport skill, individual contribution to the high
sport results of the football Team FC D)”.
4.
Moreover, the additional agreement contains a termination clause stating that
“the Football Player can unilaterally terminate this agreement without sufficient
arguments. If the Football Player commits one-sided violation and/or one-sided
recession from an agreement, … it shall be provided the Club an amount of
7,000,000 (seven million) euros. The above mentioned amount shall be paid by the
football club where the football player shall continue to play”.
5.
On 30 October 2006, the Claimant lodged a claim at FIFA against the Respondent
for breach of contract. The Claimant claimed the total amounts of EUR 5,383,000
(EUR 375,000 + EUR 5,000,000 + EUR 8,000) and 398,400 (74,700 + 323,700). In
particular, he claimed the following:
-
-
6.
outstanding salaries (personal bonuses) for the months of January,
February and March 2006 based on the additional agreement (3 x EUR
125,000 = EUR 375,000),
outstanding salaries for the months of July 2005 until March 2006 based
on the employment contract (9 x 8,300 = 74,700),
compensation for breach of contract corresponding to the rest value (40
months) of the employment contract and the additional agreement (EUR
5,000,000 + 323,700),
compensation for moral and sporting damages in an amount to be
determined and
legal expenses in the amount of EUR 8,000.
In this regard, the Claimant argued in particular that the Respondent had paid the
“personal bonus” for December 2005 behind schedule and, despite several
reminders, had failed to pay him the “personal bonuses” for the months of
January, February and March 2006. Equally, the Claimant emphasised that he
never received any salary payment in the amount of 8,300 each.
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7.
Furthermore, the Claimant mentioned that the Respondent, at the beginning of
February 2006, had decided to banish him from all team activities, i.e. training and
matches, without having duly opened disciplinary proceedings. Moreover, the
Claimant stated that, at the beginning of March 2006, the Respondent had
decided to exclude him from the team’s “35 Players Eligibility List” for the
upcoming R Football Championship 2006, reason for which he had ever since been
deprived from playing in any official R Football competition.
8.
Therefore, the Claimant was of the opinion that he had been forced to
unilaterally terminate the relevant employment contract with just cause on 23
April 2006 and thus to leave the Respondent on the same day.
9.
In its response, the Respondent/Counter-Claimant (hereinafter: the Respondent)
rejected the Claimant’s claim and lodged a counter-claim against the
Claimant/Counter-Respondent (hereinafter: the Claimant) for breach of contract
without just cause, whereby it claimed from the Claimant compensation in the
amounts of EUR 12,518,000 and USD 206,400.
10.
In particular, the Respondent requested from the Claimant:
-
the reimbursement of the transfer compensation paid for him to his
former club, FC P, in the amount of EUR 4,000,000,
the reimbursement of salaries paid to him in the amount of EUR
1,518,000,
the payment of extra living costs in the amount of USD 180,000,
the payment of extra transportation costs in the amount of USD 26,400
and
the payment of the penalty fee in the amount of EUR 7,000,000 as
stipulated in the additional agreement.
11.
Furthermore, the Respondent requested that sporting sanctions should be
imposed on the Claimant.
12.
The Respondent argued that it had always complied with its contractual
obligations, however, in January/February 2006 the Claimant committed
disciplinary offences and showed an improper attitude towards training sessions.
In particular, the Claimant had left a training session of 5 February 2006 without
the Respondent’s authorization and had not participated in the second half of a
friendly match of 18 January 2006.
13.
As a consequence of the repeated infringements of his contractual obligations and
in accordance with the applicable R labour law, the Respondent had the right to
apply disciplinary sanctions on the Claimant. So, the Claimant had first received a
formal reprimand and then he had been internally transferred to the second team
of the Respondent, as contractually foreseen. Nevertheless, the Claimant had
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failed again to attend the training sessions of 12, 13, 14, 15, 16, 18 and 20 March
2006, without giving any explanation.
14.
Moreover, the Respondent stated that the Claimant had not been registered (in
March 2006) with the R Football League for the R Football Championship 2006
due to the fact that it, the Respondent, had not been able to include the Claimant
in the relevant final registration list. In particular, the Claimant had allegedly
failed to show up at the Respondent’s premises, to present his passport, to
undergo medical examination and to put his signature on the registration list. In
this regard, the Respondent argued that the Claimant in this way had intended to
avoid his registration for the R Football Championship 2006 so as to force it, the
Respondent, to release him from the existing contract. According to the
Respondent, another formal reprimand was issued against the Claimant for these
disciplinary violations.
15.
Finally, the Respondent pointed out the Claimant in his statement of claim had
not made the accurate differentiation between fix salary and bonus as pecuniary
encouragement. In this regard, and taking into account the given circumstances,
the Respondent argued that the conditions under which the Claimant would be
entitled to receive a personal bonus were not fulfilled and, therefore, the bonus
payments were not due to the Claimant. In this context, the Respondent also
referred to an alleged previous formal reprimand, according to which the
Claimant had been warned that remuneration of any kind (salary and/or bonus)
would only be payable if he, the Claimant, complied with the federal and
contractual rules.
16.
In his replica, the Claimant rejected the Respondent’s counter-claim, contested the
Respondent’s argumentation and amended his claim. In particular, the Claimant
requested that interest at a rate of 5% should be applied to all the amounts
claimed as of their respective due date and that the amount claimed for legal
expenses should be revised to the amount of EUR 25,000.
17.
The Claimant argued that the additional agreement was a integral part of the
employment contract and therefore his fix salary was composed of EUR 125,000
and 8,300 per month. In this respect, the Claimant emphasised that, at the peak of
his international career, he would never have signed the employment contract
with the Respondent if this contract guaranteed him only a basic pay of 8,300 or
EUR 241. According to the Claimant the salary agreed with his former club, FC P,
amounted to EUR 74,778 per month.
18.
Furthermore, the Claimant declared that the Respondent voluntarily incurred the
extra living and transportation costs in his favour. Therefore, there was no
obligation for him to reimburse anything to the Respondent.
19.
With regard to the disciplinary proceedings allegedly instituted by the Respondent
against him, the Claimant stated that he had neither been confronted by the
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Respondent with any specific accusation nor had he been notified of any
disciplinary sanction applied on him. In particular, the Claimant stated that, on 14
February 2006, he had only received an undated and unsigned explanation
request pertaining to the incidents invoked by the Respondent. In this respect, the
Claimant emphasised that the aforementioned incidents had been discussed and
settled at the time they had occurred.
20.
Taking into consideration the above, the Claimant was of the opinion that the
Respondent had not been entitled to apply disciplinary sanctions on him.
21.
Moreover, the Claimant pointed out that the Respondent released him to the
club, M, without having claimed any compensation.
22.
In its duplica, the Respondent basically reiterated its previous position.
Furthermore, the Respondent reaffirmed that the Claimant by signing the
agreements in question accepted the financial terms of their contractual
relationship, i.e. the conditioned bonus payments. In this regard, the Respondent
pointed out that it had always made the salary payments in the amounts of 8,300
each to the Claimant’s bank account.
23.
Finally, the Respondent stated that it had agreed to transfer the Claimant free of
charge to M in view of the fact that it, the Respondent, was entitled to demand
pecuniary compensation in the amount of EUR 7,000,000.
24.
The club, M, omitted to comment on the counter-claim lodged by the Respondent
against the Claimant despite having been repeatedly invited to do so.
25.
On 25 July 2006, the Claimant signed an employment contract with the club, M,
according to which he was entitled to receive remuneration in the net amount of
EUR 1,500,000 per year. On 27 August 2007, the Claimant signed an employment
contract with the club, B, valid until 30 June 2010, according to which he was
entitled to receive basic remuneration in the gross amount of EUR 1,321,000 (net
amount of EUR 733,000) per year.
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 2006. 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. 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
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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 player and a 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 2008), and considering that the present claim was lodged on 30 October
2006, the previous version of the regulations (edition 2005; 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, on 25 May 2005, the Claimant and
the Respondent signed an employment contract and an additional agreement,
valid from 1 July 2005 until 30 June 2009.
5.
In continuation, the Chamber acknowledged that, on the one hand, the Claimant
argued having terminated the contractual relationship between the parties with
just cause on 23 April 2006 because the Respondent had allegedly not fulfilled its
contractual obligations towards him.
6.
In particular, the Chamber noted that the Claimant claimed allegedly outstanding
payments in the amount of EUR 375,000 for the months of January, February and
March 2006 based on the additional agreement (3 x EUR 125,000), allegedly
outstanding salaries in the amount of 74,700 for the months of July 2005 until
March 2006 based on the employment contract (9 x 8,300), compensation in the
amounts of EUR 5,000,000 and 323,700 for alleged breach of contract
corresponding to the rest value (40 months) of the employment contract and the
additional agreement, compensation in an amount to be determined for moral
and sporting damages and legal expenses in the amount of EUR 25,000. Moreover,
the Chamber observed that the Claimant requested that interest at a rate of 5%
should be applied to all the amounts claimed as of their respective due date.
7.
In this regard, the Chamber acknowledged that the Claimant argued that the
additional agreement was a integral part of the employment contract and
therefore his fix salary was composed of EUR 125,000 and 8,300 per month.
8.
On the other hand, the Chamber took note that the Respondent argued that it
had always duly fulfilled its contractual obligations towards the Claimant and,
therefore, the Claimant had terminated the contractual relationship without just
cause.
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9.
In continuation, the Chamber, first and foremost, observed that it was undisputed
by the parties involved that the contractual relationship had been terminated by
the Claimant on 23 April 2006.
10.
Consequently, the Chamber went on to deliberate whether the facts of the case
constitute a just cause for the Claimant to prematurely terminate the employment
relationship with the Respondent.
11.
In this regard, the Chamber acknowledged that the Claimant had undisputedly
not paid the Claimant’s “personal bonus” in the amount of EUR 125,000 per
month for the months of January, February and March 2006.
12.
In this respect, the Chamber took due note that the Respondent argued that the
Claimant had committed repeated disciplinary infringements, i.e. the Claimant had
not participated in the second half of a friendly match of 18 January 2006, had left
a training session of 5 February 2006 without the Respondent’s authorization, had
failed to attend further training sessions in March 2006 and had finally successfully
avoided his registration for the R Championship 2006 in March 2006.
13.
In this regard, the Chamber noted that the Respondent emphasised that the
Claimant had not made the accurate differentiation between fix salary and bonus
payments as pecuniary encouragement. In particular, the Chamber acknowledged
that the Respondent argued that in view of the said disciplinary infringements the
conditions under which the Claimant would be entitled to receive a “personal
bonus” in the amount of EUR 125,000 each for January, February and March 2006
were not fulfilled and, consequently, the claimed bonus payments (“personal
bonus”) for the months in question were not due to the Claimant.
14.
In view of the above, the Chamber went on to examine the applicable financial
terms at the basis of the Claimant’s claim, in particular, as to whether the
“personal bonus” was to be considered as a integral part of the Claimant’s fix
salary or as a conditioned bonus payment.
15.
In this regard, the Chamber acknowledged that, according to the wording of the
employment contract and the additional agreement respectively, the Claimant is
entitled to receive a “monthly remuneration” in the amount of 8,300, this is
approximately the amount of EUR 230, and a “personal bonus” in the amount of
EUR 125,000 per month “… for bona fide fulfilling of the obligations, high sports
results, professional sport skill, individual contribution to the high sport results of
the football Team FC D)”.
16.
Furthermore, the Chamber affirmed that, in view of the fact that the Claimant did
not claim the “personal bonus” for the months of July until December 2005 based
on the additional agreement, he had apparently been paid that “personal bonus”
in the amount of EUR 125,000 per month during the first six months of the
contractual relationship with the Respondent.
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17.
Moreover, the Chamber acknowledged that, subject to being both the “monthly
remuneration” and the “personal bonus” part of the Claimant’s fix salary, the
Claimant would be entitled to a fix remuneration per year under the contract
signed with the Respondent (12 x EUR 125,230 = EUR 1,502,760) comparable to his
fix remuneration under the contracts signed with his former club FC P (12 x EUR
74,778 = EUR 897,336) and his new club M (EUR 1,500,000).
18.
Finally, the Chamber was eager to emphasise that the Claimant was an
international and, therefore, he was very unlikely to have accepted a contract with
the Respondent for a fix remuneration of EUR 230 only.
19.
As a consequence, the Chamber established that in view of the above
considerations both the “personal bonus” and the “monthly remuneration” had
to be considered as part of the Claimant’s fix salary.
Having established that the payment of the Claimant’s salary was of a fix nature,
the Chamber concluded that in accordance with the employment contract and the
additional agreement the Claimant was entitled to receive an unconditioned
monthly salary in the amounts of EUR 125,000 and 8,300.
20.
21.
Taking into account the above considerations, the Chamber decided that the
Respondent’s failure to pay the “personal bonus” in the amount of EUR 125,000
each for the months of January, February and March 2006 was not justified.
Therefore, the Respondent had a contractual obligation to pay the amount of EUR
375,000 (3 x EUR 125,000) to the Claimant, irrespective of any possible disciplinary
infringements that might have occurred.
22.
In this regard, the Chamber emphasised that the Claimant had already been
sanctioned for his disciplinary infringements, in particular, he had been internally
transferred to the second team of the Respondent.
23.
Moreover, the Chamber also referred to art. 12 par. 3 of the Procedural Rules, in
accordance with which a party deriving a right from an alleged fact shall carry the
burden of proof. In this respect, the Chamber acknowledged that the Respondent
has not presented sufficient documentary evidence regarding the Claimant’s bad
faith or serious lack of fulfilment of his contractual obligations.
24.
Likewise, the Chamber deemed it also appropriate to point out that the invoked
disciplinary infringements committed by the Claimant could in no case constitute,
per se, a valid reason for the non-payment of salaries. In particular, the Chamber
emphasized that, in connection with infringements of disciplinary standards such
as the ones in the matter at hand, the party concerned should only have the right
to withhold the salaries as ultima ratio, i.e. in case of repeated and grave incidents
of such kind. Under such circumstances, a player committing such disciplinary
infractions would also have to be warned beforehand of the eventual
consequences of his actions if they were to be repeated. In this regard, the
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Chamber stressed that, in fact, the Respondent had stopped to make the relevant
payments already in January 2006.
25.
Furthermore, as the Claimant had already been sanctioned by the Respondent by
means of a formal reprimand and an internal transfer to the Respondent’s second
team, the Chamber was of the opinion that the Claimant could not be sanctioned
another alleged infraction, especially if such sanction constituted the retention of
his entire salary.
26.
In continuation, the Chamber took note that the Respondent argued that the
“monthly remuneration” payments related to the employment contract in the
amount of 8,300 each had always been made to the Claimant’s bank account.
27.
In this regard, the Chamber emphasized that the Respondent was not able to
corroborate that it had made all the said “monthly remuneration” payments to
the Claimant. In particular, the Chamber established that the Respondent did not
present any documentary evidence regarding the actual payment of the claimed
amount of 74,700 (9 x 8,300) deriving from the employment contract.
28.
As a consequence, the Chamber decided that, due to the non-fulfilment of its
contractual financial obligations towards the Claimant, the Respondent was found
to be in breach of contract and, in particular, that this breach of contract in
accordance with its jurisprudence had reached such a level that the Claimant
suffering the breach was entitled to terminate the contract unilaterally.
29.
In the light of the above, the Chamber reached the conclusion that the Claimant
terminated the relevant employment contract and the additional agreement with
just cause.
30.
Consequently, the Chamber decided that the Respondent is liable to pay all
outstanding monies due under the relevant employment contract and the
additional agreement until the date on which the contractual relationship had
been terminated, i.e. until 23 April 2006.
31.
In this respect, the Chamber determined that until the date of the termination of
the relevant employment contract, on 23 April 2006, due salary payments on the
basis of the additional agreement for the entire months of January, February and
March 2006 (3 x EUR 125,000 = 375,000) and for 23 days of the month of April
2006 (EUR 95,833) in the overall amount of EUR 470,833 remained unpaid.
Moreover, on the basis of the employment contract, remuneration for the entire
months of July 2005 until March 2006 (9 x 8,300 = 74,700) and for 23 days of the
month of April 2006 (6,363) in the overall amount of 81,063 remained
outstanding.
32.
Furthermore, and taking into consideration the fact that the salaries had not been
paid in accordance with the relevant employment contract and the additional
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agreement, the Chamber decided that the Claimant should be awarded default
interest at a rate of 5% per year as of the due dates of the respective outstanding
payments.
33.
As a result, the Chamber concluded that the Claimant was entitled to receive from
the Respondent outstanding remuneration for the months of January until April
(pro rata) 2006 in the amount of EUR 470,833 and for the months of July 2005
until April (pro rata) 2006 in the amount of 81,063, plus default interest at a rate
of 5% as of the due dates of the respective payments until the day of the effective
payment.
34.
Having established that the Respondent had breached the employment contract
and the additional agreement with the Claimant, the Chamber turned to art. 17
par. 1 of the Regulations, according to which in all cases the party in breach shall
pay compensation. Thus, the Chamber proceeded to deliberate on the question of
the amount of compensation for breach of contract which the Respondent is liable
to pay to the Claimant.
35.
In this regard, the Chamber took into account its previous considerations, the rest
value of the relevant employment contract and additional agreement as well as
the employment contracts that the Claimant signed after the termination of the
contractual relationship with the Respondent with the club M, on 25 July 2006,
and with the club B, on 27 August 2007.
36.
Thereto, the members of the Chamber deemed it appropriate to recall that the
Claimant under the employment contracts signed with M and B was entitled to
receive remuneration in the amount of EUR 1,500,000 for the season 2006/2007
and EUR 1,321,000 for the seasons 2007/2008 and 2008/2009. In other words, as of
August 2006 until June 2009 the Claimant had a guaranteed income basically
equivalent to the one he would have received during the ordinary term of the
employment contract and the additional agreement with the Respondent.
37.
Therefore, the Chamber put emphasis to the fact that the Claimant, after the
termination of the contractual relationship with the Respondent, had apparently
not received any remuneration during the months of May, June and July 2006
only.
38.
In view of the above, the members of the Chamber reached the conclusion that,
on account of the circumstances surrounding the present case as well as the
criteria established in art. 17 par. 1 of the Regulations, it was appropriate to award
the Claimant compensation for breach of contract in the amount of EUR 375,000.
39.
Moreover, with regard to the legal expenses claimed by the Claimant in the
amount of EUR 25,000, the Chamber referred to its well-established jurisprudence
and art. 15 par. 3 of the Procedural Rules, which stipulates that no procedural
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compensation shall be awarded in proceedings in front of the Dispute Resolution
Chamber. Therefore, the Chamber decided to not award the claimed expenses.
40.
Furthermore, the Chamber held that the any further claims of the Claimant were
rejected.
41.
With regard to the Respondent’s counter-claim against the Claimant, whereby the
Respondent requests compensation in the amounts of EUR 12,518,000 and USD
206,400 for the Claimant allegedly having terminated the contractual relationship
without just cause, the Chamber referred to its above-mentioned conclusion that
the Respondent is found in breach of contract, i.e. that the Claimant terminated
the contract with just cause (cf. points II. 28 and II. 29).
42.
As a consequence, the Chamber decided that the Respondent’s counter-claim is
unfounded and has therefore to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, J, is partially accepted.
2.
The Respondent/Counter-Claimant, FC D, must pay to the Claimant/CounterRespondent, J, outstanding remuneration for the months of January until April
(pro rata) 2006 in the amount of EUR 470,833 and for the months of July 2005
until April (pro rata) 2006 in the amount of 81,063, plus default interest at a rate
of 5% as of the due dates of the respective payments until the day of the effective
payment, as well as compensation in the amount of EUR 375,000, within 30 days
as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant/Counter-Respondent, J, are rejected.
4.
The counter-claim of the Respondent/Counter-Claimant, FC D, is rejected.
5.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
6.
The
Claimant/Counter-Respondent,
J,
is
directed
to
inform
the
Respondent/Counter-Claimant, FC D, 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 article 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
Encl.
CAS directives
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