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
Gerardo Movilla (Spain), member
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
Caio Cesar Vieira Rocha (Brazil), member
on the claim presented by the player,
Z,
as Claimant / Counter-Respondent
against the club,
K,
as Respondent / Counter-Claimant
with the club,
S,
as Counter-Respondent
regarding an employment-related contractual dispute arisen between the player Z, and
the club K.
I.
Facts of the case
1.
On 20 July 2006, the player (hereinafter: “Claimant” or “player“) and the club K
(hereinafter: “Respondent“) concluded an employment contract that was valid
from 1 June 2006 until 31 May 2008.
2.
According to art. 1 A) of this employment contract, the player was entitled to a
monthly salary of 537 and according to art. 1 B), to a “transfer payment” of EUR
300,000. Art. 1 C) of this employment contract, which dealt with the form of
payment, specified that the player was entitled to EUR 300,000 over 34 matches =
EUR 8,823 per match (or a percentage of this amount, depending on the extent of
play) payable “in 45 days”. The player was entitled to EUR 600,000 for the 2007-08
season, which was to be paid as follows: instalments of EUR 100,000 each in July
and August 2007 and on 15 December 2007, and the remaining EUR 300,000 over
34 matches = EUR 8,823 per match (taking into account the above-mentioned
qualification).
3.
An additional agreement signed between the parties on 28 July 2006 contained
other criteria relating to the per-match payments to the player and stipulated that
every single match payment included the basic monthly salary and that when there
was no such match payment, the player was to be paid the basic salary. This
additional agreement also stipulated that the “sum is to be paid after every four
matches within 45 days”.
4.
On 30 May 2007, the player notified the club in writing of the termination of the
employment contract due to the club’s failure to remit payments totalling EUR
35,292 relating to matches of 4 March 2007, 11 March 2007, 18 March 2007 and 2
April 2007, which had allegedly fallen due on 17 May 2007. In this written notice,
the player claimed payment of a total amount of EUR 79,407, referring to a total
of nine matches including the match immediately prior to the termination of the
contract.
5.
On 28 September 2007, the T Football Federation issued the player’s International
Transfer Certificate (ITC) to the B Football Union. Despite the ITC having been
issued, K reserved the right to lodge a complaint against the player.
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Claim Claimant:
6.
The player lodged a complaint against K with FIFA on 27 June 2007, with a
subsequent amendment in September 2007, and claimed that:
1) the employment contract concluded with K on 20 July 2006 should be
annulled;
2) K should be obliged to pay him the remaining value of the contract (2007-08
season), totalling EUR 600,000.
7.
The player substantiated these claims by stating that he had had a right to EUR
8,823 per match (or a percentage of this amount, depending on the extent of
play), which had been payable 45 days after every four games in which he played.
After K had failed to make payments for the aforementioned matches (cf. point I.4
above), the player had terminated the employment contract. K had received the
written notice on 1 June 2007 and had subsequently settled the outstanding debts
on 5 June 2007 and 11 July 2007 respectively. According to the player, this delayed
payment should not affect the just cause with which he terminated the
employment contract.
8.
According to the player, the payment clause in the employment contract stated
that he had the right to terminate the contract with just cause in the event of nonpayment.
9.
In an amendment to his claim presented in September 2007, the player specified
the dates of the nine matches as follows: 2, 8, 15, 22, 29 April 2007 and 6, 13, 20,
27 May 2007.
10.
The player also stated that he had signed an employment contract with the club S
(hereinafter: “Counter-Respondent”) on 2 August 2007, which was valid for one
year with a basic monthly salary of 500.
Response and counterclaim Respondent:
(a) Response:
11. The Respondent fully rejected the player’s allegations. According to K, the player
had intentionally stated the order of the matches in which he had played
inaccurately. K acknowledged that the per-match payments had been payable
within 45 days after every four matches. There was no dispute between K and the
player relating to the 17 matches that took place in the first half of the 2006-07
season. K asserted that the matches in the second half of the said season had been
remunerated properly. The first of these matches (18th match) had taken place on
26 January 2007 and the 21st match on 18 February 2007, as a result of which the
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player had received a cash payment of EUR 35,290 in match bonuses on 2 April
2007. The player had received the next match bonuses, payable for the 22nd to 25th
matches (23 February 2007 until 18 March 2007), on 1 May 2007. Likewise, he had
received match bonuses for the 26th to 29th matches (2 April 2007 until 21 April
2007) by bank transfer on 4 June 2007. The player had received match bonuses for
the 30th to 33rd matches (28 April 2007 until 20 May 2007) and for the 34th match
(26 May 2007) by bank transfer on 10 July 2007. K admitted that it had paid the
match bonuses for the 30th to 33rd matches five days too late, but indicated that a
delay of a few days did not provide justifiable grounds for a unilateral termination
of the contract. It maintained, therefore, that the player’s complaint should be
rejected.
(b)
12.
Counterclaim:
The Respondent claimed that the player had cancelled the employment contract,
which had been valid until 31 May 2008, without just cause. Furthermore, he had
been absent from the club’s preparations for the 2007-08 season, which had taken
place in July 2007, and had not given any valid reason. Moreover, he had
concluded a contract with S on 2 August 2007, that is, while his employment
contract with the K club had still been valid. This constituted an infringement of
art. 13 of the FIFA Regulations on the Status and Transfer of Players. The departure
of the player had damaged the reputation of K and forced it to find a
replacement. For this inconvenience, K claimed that, in accordance with art. 17
par. 2 of said FIFA regulations, it should receive from the player in joint liability
with S compensation of 480,000, which corresponds to the transfer compensation
paid to the player’s former club G, plus EUR 300,000 referring to the fact that K
had made payments totalling EUR 586,474 to the player during the term of the
contract, including interest as from 1 November 2007.
Claimant’s response:
13.
The player reiterated his claim. He maintained that he had had the right to
terminate his contract on 30 May 2007 when he had not received the required
match bonuses in time. K had not provided written proof of the dates on which
the relevant match bonuses had been transferred. Moreover, the admitted delay
of five days was a sufficiently long period to justify a unilateral termination of the
contract. The player also emphasised that K had received notice of the termination
on 1 June 2007. The outstanding payments asserted in the written notice had not
been made until 6 June 2007 and 10 July 2007 respectively.
14.
Furthermore, the player claimed that the counterclaim submitted by K should be
rejected. After he had terminated the contract with just cause, he had no longer
had any obligation to participate in the training sessions/matches of the 2007-08
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season. He also maintained that the claim for payment of 480,000 and EUR 300,000
should be rejected in conformity with law and equity. He had met all of his
contractual obligations up to the termination of his contract.
Counter-Respondent’s response:
15.
S stated that it had signed a contract with the player on 2 August 2007 after the
player had declared in writing that he was not contractually bound to any other
club nor had open obligations to any other club. As a result, S had assumed that
the player was a free agent, therefore no infringement had been committed.
Respondent’s final statements:
16.
K reiterated the fact that it had only made the final payment of the player’s match
bonuses with a delay of five days. It maintained that a delay of five days did not
justify a unilateral termination of the contract, and that the player’s termination
of the contract should therefore be considered null and void. K also asserted that
the match bonuses and in particular the dates on which they had been paid were
documented in writing.
17.
As regards the argument brought forth by S, to the effect that the player had
informed it that he was unattached at the time of the transfer, K stated that it
could not accept this claim. Agreements between the player and S did not concern
it as a third-party. Moreover, according to the commentary on art. 17 of the
Regulations on the Status and Transfer of Players, the player’s new club was always
jointly liable for payments to the player’s former club, even if the new club had
not induced the player or been “involved” in any way.
The Claimant’s and Counter-Respondent’s final statements:
18.
Both the player and S stood by their previous statements.
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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 27 June 2007. 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
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 submitted on 27 June
2007 and the employment contract at the basis of the dispute was signed on 20
July 2006, the previous version of the regulations (edition 2005; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the case. The
members of the Chamber duly noted that the Claimant and the Respondent had
signed an employment contract, which, according to the Claimant, he had
terminated with just cause in the light of K having failed to fulfil its contractual
financial obligations. Therefore, the Claimant asks to be awarded compensation
for breach of contract payable by K. The Respondent, for its part, rejects such claim
maintaining that the player had no just cause to terminate the employment
contract. In fact, the Respondent claims that the player had acted in breach of
contract by unilaterally terminating his employment contract and has lodged a
counterclaim against the player in this connection.
5.
Reverting to the reasons of the player to terminate the pertinent employment
contract in writing on 30 May 2007, the Chamber recalled that in accordance with
the player’s written notice of termination he invoked the club’s alleged failure to
remit contractual payments totalling EUR 35,292 relating to matches of 4 March
2007, 11 March 2007, 18 March 2007 and 2 April 2007, which had allegedly fallen
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due on 17 May 2007, as the reason to prematurely terminate the employment
contract. Such reason, so the player, constitutes a just cause for the termination of
the employment contract concluded with the Respondent.
6.
In this context, the Chamber noted that prior to proceeding with the said
termination of the employment contract, the player had not put the club in
default of its obligations in writing.
7.
The player maintains that in accordance with the payment clause in the
employment contract he had the right to terminate the contract with just cause in
the event of the club failing to fulfil its financial obligations. After careful study of
the relevant contract, though, the members of the Chamber took note that no
such clause is explicitly included in the pertinent employment contract.
8.
On the other hand, the Chamber took note of the position of K, which had
confirmed that the per-match payments had been payable to the player within 45
days after every four matches. Furthermore, according to the Respondent, the
player had stated the order of the matches in which he had played in an
inaccurate way and it presented a detailed match list demonstrating the match
numbers and corresponding dates. The Chamber took particular note of the fact
that the player had not contested the accuracy of such match list.
9.
On account of the above, the members of the Chamber concluded that the parties
do agree that the player was entitled to receive EUR 8,823 per match (for a total of
34 matches according to the pertinent employment contract) and that such permatch payments fell due within 45 days after each sequence of four matches.
Equally, it is not contested that the counting of the pertinent sequence started
again with the 18th match after the mid-season break of the national
championship.
10.
The members of the Chamber then proceeded with a detailed study of the
documentation on file relating to the payments made by the Respondent to the
Claimant, bearing in mind that the Claimant had terminated the pertinent
employment contract on the basis of the alleged non-payment of bonuses for
matches of 4 March 2007, 11 March 2007, 18 March 2007 and 2 April 2007, which
had allegedly fallen due on 17 May 2007 (cf. the Claimant’s written notice of
termination mentioned under point I.4 above). In this context, the Chamber
equally recalled that according to the Respondent, the Claimant had stated the
order of the matches in an inaccurate manner. Furthermore, the members of the
Chamber stressed once more that the accuracy of the match list presented by the
Respondent in its defence has not been contested by the Claimant.
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11.
Subsequently, the Chamber established that from the relevant match list and the
payment vouchers, which are duly signed by the player and which, contrary to the
Claimant’s allegations do bear a date, presented by the Respondent it is evident
that the day on which the Claimant proceeded with the termination of the
employment contract, i.e. 30 May 2007, the Respondent had not been in delay of
its financial obligations towards the Claimant. In this regard, the Chamber pointed
out that according to the match list of the Respondent the match of 2 April 2007
was part of the sequence of the 26th to 29th matches (2 April 2007 until 21 April
2007) and was paid punctually by the Respondent to the Claimant by bank transfer
of 4 June 2007, receipt of which was acknowledged by the Claimant. Equally, the
deciding authority stated that on the basis of the match list and payment vouchers
provided, the match bonuses for the sequence pertaining to the matches 22 to 25
(23 February 2007 until 18 March 2007), thus comprising three of the four matches
mentioned by the player in his termination notice, had duly been paid by the
Respondent to the Claimant in a timely manner on 1 May 2007.
12.
As a result of the above, the Chamber was eager to emphasise that on 30 May
2007, day on which the player served the notice of termination to K, no
outstanding remuneration was due by the Respondent to the Claimant.
Consequently, no just cause on this basis could be invoked by the Claimant.
13.
In this connection, the Chamber recalled that, besides the afore discussed primary
argumentation which cannot be backed, according to the Claimant, the delay of
five days, admitted by K, in the fulfilment by the Respondent of its financial
obligations pertaining to the sequence of the 30th to the 33rd matches (28 April
2007 until 20 May 2007) is already a sufficiently long period of time to justify a
unilateral termination of the employment contract. The members of the Chamber
could only fully disagree to such point of view referring to the Chamber’s wellestablished jurisprudence in this regard. The Dispute Resolution Chamber deemed
appropriate to point out that, in the past, it had on numerous occasions upheld
the unilateral termination of an employment contract by players who had,
depending on the particular circumstances of the relevant case at stake, not
received their salaries for two or more months. Yet, a minor delay of merely five
days could not be considered as a just cause, in particular in a case like the one at
hand, where the club had fully and properly complied with its financial obligations
for almost an entire year and the player never put the club in default regarding
outstanding payments. Moreover, the Chamber was eager to emphasise that the
relevant delay had occurred more than a month after the player having
unilaterally terminated the employment contract.
14.
The Chamber noted that no other reason but the alleged non-payment by the
Respondent of matches of 4 March 2007, 11 March 2007, 18 March 2007 and 2
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April 2007 on 17 May 2007 is invoked by the Claimant as a just cause for his
termination of the employment contract on 30 May 2007. As exposed, this line of
defence does not stand. Yet, while referring to its considerations pertaining to
very short delays in payment (cf. point II.13 above) the Chamber deemed it
important to highlight that, in any way, irrespective of the aforementioned, even
in the hypothetical event of the Respondent having failed to remit to the Claimant
payments for matches of 4 March 2007, 11 March 2007, 18 March 2007 and 2 April
2007 on 17 May 2007 as invoked by the Claimant in his written notice of
termination, such failure would not constitute a valid reason for the Claimant to
terminate the employment contract as early as on 30 May 2007.
15.
Consequently, taking into account the preceding considerations, the Chamber
rejected the arguments put forward by the player and concurred that the Claimant
had no just cause for the unilateral termination of the employment contract.
16.
On account of all of the above-mentioned considerations, the Chamber decided
that the Claimant had acted in breach of the employment contract by unilaterally
terminating such contract without just cause on 30 May 2007. Consequently, in
accordance with art. 17 par. 1 of the Regulations, the Claimant is liable to pay
compensation to the Respondent.
17.
Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the
Regulations the Chamber established that the player’s new club, i.e. S, shall be
jointly and severally liable for the payment of compensation. In this respect, the
Chamber was eager to point out that the joint liability of the player’s new club is
independent from the question as to whether the new club has committed an
inducement to contractual breach. Neither needs the new club to have in any
other way been involved in the relevant unjustified unilateral termination. This
conclusion is in line with the well-established jurisprudence of the Chamber that
was repeatedly confirmed by the Court of Arbitration for Sport (CAS) (CAS
2008/A/1568 Tomas Mica & Football Club Wil 1900 v/FIFA & Club PFC Naftex AC
Bourgas).
18.
In view of the above, the members of the Chamber proceeded to deliberate on the
amount of compensation payable by the Claimant to the Respondent taking into
consideration art. 17 par.1 of the Regulations, the constant jurisprudence of the
Dispute Resolution Chamber and the counterclaim of the Respondent.
19.
The Chamber then turned to the Respondent’s counterclaim which includes the
amount of 480,000, allegedly corresponding to the transfer compensation paid to
the player’s former club, G, and the amount of EUR 300,000.
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20.
With respect to the transfer compensation of 480,000 that K alleges having paid to
the player’s former club, after careful study of the documentation presented by K
in this respect, the members of the Chamber agreed that such documentation does
not demonstrate beyond doubt that the said amount was in fact paid to the club,
G, by K. Consequently, whereas fees and expenses incurred by a club for the
acquisition of a player’s services in so far as these have not yet been amortised
over the term of the relevant contract may be included as one of the criteria to be
taken into account in the calculation of compensation (cf. art. 17 par. 1 of the
Regulations), the Chamber decided that, in the specific case at hand, due to the
lack of sufficient documentary evidence in this respect, no (non-amortised) transfer
compensation shall be included in the calculation of the compensation for breach
of contract due by the player to K.
21.
Subsequently, turning their attention to the remaining value of the pertinent
employment contract after its termination by the player on 30 May 2007, which
value constitutes an essential criterion in the calculation of the amount of
compensation in accordance with art. 17 par. 1 of the Regulations and the wellestablished jurisprudence of the Chamber, the members of the Chamber
acknowledged that the relevant employment contract was to run until 31 May
2008 and the remuneration due to the player during such time, i.e. for the 2007-08
season, was EUR 600,000. In this context, the Chamber recalled that the
counterclaim of the Respondent includes the amount of EUR 300,000.
22.
On account of the aforementioned circumstances, the Chamber decided to accept
the Respondent’s claim for payment of EUR 300,000 as compensation for breach of
contract without just cause by the player. This in particular in view of the ratio
between the claimed compensation and the remaining value of the contract that
had been breached. Yet, the Chamber pointed out that, although the
consideration of further criteria does not appear to be necessary/appropriate in
the matter at stake, this shall not be understood that the Chamber considers the
rest value of an employment contract to be the only criteria of relevance in such
issues.
23.
On account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the player Z, must pay the amount of
EUR 300,000 to K as compensation for breach of contract. Furthermore, the club, S,
is jointly and severally liable for the payment of the relevant compensation.
III.
Decision of the Dispute Resolution Chamber
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1.
The claim of the Claimant, the player, Z, is rejected.
2.
The claim of the Counter-Claimant, the club, K, is partially accepted.
3.
The player, Z, has to pay to the Counter-Claimant, the club, K, the amount of EUR
300,000 within 30 days as from the date of notification of the present decision.
4.
If this amount is not paid within the aforementioned time limit, a 5% interest rate
per annum as of the expiry of the said time limit will apply and the matter will be
submitted to the FIFA Disciplinary Committee upon request for its consideration
and decision.
5.
The Counter-Respondent, the club, S, is jointly and severally liable for the
aforementioned payment.
6.
Any further request filed by the Counter-Claimant, K, is rejected.
7.
K is directed to inform the player Z and the club 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.
*****
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
11/12
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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