Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
P,
as Claimant
against the club,
A,
as Respondent
regarding an employment-related contractual dispute arisen between the player and
the club
I.
Facts of the case
1.
On 2 June 2006, the player, D (hereinafter: the Claimant), and the club, K
(hereinafter: the Respondent), signed an employment contract valid until 31 May
2009, according to which the Claimant was entitled to receive inter alia the
following monies:
a. As from July 2007 to June 2008, a total of EUR 300,000 net:
i. EUR 90,000 on 30 July 2007;
ii. EUR 120,000 in ten monthly salaries of EUR 12,000 each (August to
May) at the end of the relevant month;
iii. EUR 90,000 divided over 34 matches (EUR 2,647.06 per match – 75%
thereof only if reserve player) payable after each period of 8
matches;
iv. EUR 2,500 per match in the Cup (75% thereof only if reserve player).
b. As from July 2008 to June 2009, a total of EUR 300,000 net:
i. EUR 90,000 on 30 July 2008;
ii. EUR 120,000 in ten monthly salaries of EUR 12,000 each (August to
May) at the end of the relevant month;
iii. EUR 90,000 divided over 34 matches (EUR 2,647.06 per match – 75%
thereof only if reserve player) payable after each period of 8
matches;
iv. EUR 2,500 per match in the Cup (75% thereof only if reserve player).
2.
According to article 10 of the employment contract, the Claimant was entitled to
unilaterally terminate the employment contract at the Respondent’s fault in the
event of the Respondent failing to remit any payment to the Claimant within 60
days as of the relevant due dates. In such event, the Respondent was obliged to pay
to the Claimant “all payments to the 31 May 2009”.
3.
On 9 December 2008, the Claimant lodged a claim against the Respondent in front
of FIFA asking the following:
a. that it be established that the employment contract was terminated at the
Respondent’s fault on 23 October 2008;
b. that the Respondent be obliged to pay the total amount of EUR 205,882.36
for outstanding monies and compensation for breach of contract on the
basis of article 10 of the employment contract, plus 11,5% of interest p.a.
as of 13 November 2008;
c. that the Respondent be obliged to reimburse the Claimant’s legal expenses.
4.
The amount of EUR 205,882.36 was detailed by the Claimant as follows:
a. EUR 65,000 relating to the guaranteed payment for the 2008-09 season;
b. EUR 120,000 relating to monthly salaries (August 2008 to May 2009);
c. EUR 15,882.36 relating to match fees (6 x EUR 2,647.06);
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d. EUR 5,000 relating to match fees relating to the Cup.
5.
The Claimant explains that, in July 2007, the Respondent informed him that his
remuneration shall be reduced by 20%, which he did not accept and which refusal
he communicated to the Respondent in writing.
6.
Furthermore, between July 2007 and December 2007 he did not receive any
remuneration in spite of his default notice dated 28 November 2007. Therefore, by
a letter dated 19 December 2007 addressed to the Respondent, the Claimant
declared the employment contract as terminated at the Respondent’s fault and he
asked for the payment of the contractual remuneration until 31 May 2009.
7.
Thereafter, the Respondent promptly paid the outstanding remuneration and the
employment relationship was continued.
8.
In his claim, the Claimant points out that, since 30 July 2008, the Respondent had
only made a partial payment of EUR 25,000 relating to the EUR 90,000 instalment,
in spite of his alleged default notice.
9.
Therefore, by means of his letter dated 22 October 2008, addressed to the
Respondent, referring to the fact that the Respondent had not paid him since July
2008, the Claimant declared the employment contract as terminated at the
Respondent’s fault on the basis of art. 10 of the employment contract and asked for
the payment of the contractual remuneration until 31 May 2009.
10.
The Respondent, for its part, fully rejects the Claimant’s claim.
11.
The Respondent submits that at the end of the 2006-07 season it was relegated to a
lower division and lost its main income from broadcasting, which is why it asked
the Claimant to accept a 20% cut in his salary for the second season.
12.
The Respondent asserts that during the first and second season it did pay all the
Claimant’s receivables, but due to financial difficulties it was in delay most of the
time and even down payments were paid in instalments. The Respondent further
holds that it made payments to the Claimant almost each month at least once so
that the Claimant would not suffer financially.
13.
Only once did the Claimant serve a notice of default on the Respondent and a
subsequent notice of termination, in November and December 2007 respectively,
but the employment contract was continued.
14.
The Respondent points out that, on 22 October 2008, the Claimant, without prior
warning, terminated the employment contract unilaterally and left the club
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without authorisation, even though the Respondent had explained to him that he
would be paid as soon as the Respondent would receive income from competing in
the top division again.
15.
The Respondent admits that there were salaries outstanding but considers that the
Claimant had to be confident that he would be paid as in the past.
16.
It submits that the Claimant had to serve a default notice before terminating the
contract in accordance with well-established jurisprudence of the Dispute
Resolution Chamber and the Court of Arbitration for Sport. The Claimant failed to
do so and therefore he was the party in breach of contract.
17.
The Respondent adds that the Claimant did not participate in six league matches
and two cup matches as indicated in the claim. The Respondent acknowledges that
the Claimant was fielded in the first 11 in five league matches and fielded from the
bench in two league matches. Furthermore, the Claimant was in the squad but not
fielded in one Cup match.
18.
No further comments on the Respondent’s position were presented by the Claimant
in spite of having been invited to do so.
19.
In January 2009, the Claimant signed an employment contract with the club
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W valid until 31 December 2010, a copy of which has been made available by the
Claimant upon FIFA’s request.
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 9
December 2008. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 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 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 (edition
2009), and considering that the present claim was lodged on 9 December 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 respect,
the Chamber acknowledged that the Claimant and the Respondent signed an
employment contract on 2 June 2006, valid until 31 May 2009.
5.
The Claimant, on the one hand, maintains that the Respondent was to be held
liable for the early termination of the employment contract by failing to remit his
remuneration as of July 2008. In this respect, the Chamber recalled that, on 22
October 2008, the Claimant had notified the Respondent of the termination of the
employment contract at the Respondent’s fault invoking art. 10 of the employment
contract. The Respondent, on the other hand, admits that it was in delay with
certain payments due to financial difficulties, but holds that it made payments to
the Claimant almost each month at least once so that the Claimant would not
suffer financially. The Respondent further considers that the Claimant should have
put the Respondent in default in writing prior to proceeding with the termination
of the relevant employment contract. By failing to do so, according to the
Respondent, it was in fact the Claimant who acted in breach of contract.
6.
In this context, the Chamber firstly focussed its attention on the said art. 10 of the
employment contract, on the basis of which the Claimant had terminated the
relevant employment contract, according to which the Claimant was entitled to
unilaterally terminate the employment contract at the Respondent’s fault in the
event of the Respondent failing to remit any payment to the Claimant within 60
days as of the relevant due dates. Furthermore, in such event, the Respondent was
obliged to pay the Claimant “all payments to the 31 May 2009”.
7.
In this regard, the Chamber took into account that the Claimant maintains that
since 30 July 2008, apart from the partial payment of EUR 25,000 relating to the
EUR 90,000 instalment, he had received no further payments from the Respondent.
In this respect, it was noted that in accordance with the employment contract, the
player’s salaries were to be remitted by the Respondent to the Claimant as from
August to May at the end of the relevant month and that the aforementioned
instalment of EUR 90,000 fell due on 30 July 2008.
8.
The Chamber then reverted to the club’s statement that it had made payments to
the Claimant almost each month at least once so that the Claimant would not
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suffer financially. The members of the Chamber highlighted that such statement
had not been corroborated by the Respondent with any documentary evidence in
accordance with art. 12 par. 3 of the Procedural Rules, which stipulates that any
party deriving a right from an alleged fact shall carry the burden of proof. In fact,
the Respondent had failed to submit any documentation demonstrating that it had
fulfilled its contractual obligations with respect to the EUR 90,000 instalment that
fell due on 30 July 2008 and the Claimant’s salary as of August 2008 as well as the
various contractual bonuses claimed by the player.
9.
In this context, the members of the Chamber deemed it fit to point out that art. 10
of the employment contract clearly includes the condition of 60 days of delay of
any (emphasis added) payment owed by the Respondent to the Claimant to be
fulfilled in order for the Claimant to be entitled to terminate the employment
contract. From the above considerations (points II./7. and II./8. above), it can be
concluded that such condition was met when the Claimant notified the Respondent
of the termination of the relevant employment contract on 22 October 2008.
10.
The Chamber then turned to the Respondent’s position that the Claimant had to
serve a default notice before terminating the contract. In this respect, first and
foremost, the members of the Chamber pointed out that the relevant art. 10 of the
employment contract does not include any such obligation on the part of the
player in order for the said article to be validly applied. Furthermore, for the sake
of good order, the Chamber pointed out that the circumstance as to whether or
not a player put a club in default of its obligations prior to proceeding with the
termination of an employment contract does not constitute the sole criterion that
may be taken into account by the Chamber when establishing which party is to be
held liable for breach of contract and that such circumstance may be taken into
account on a case-by-case basis.
11.
In continuation, reverting to the Respondent’s position that the Claimant had left
the Respondent without its permission, on account of the aforementioned
considerations (cf. points II./7. and II./9. above), the Chamber deemed it fit to point
out that the Claimant had valid reasons to leave the Respondent. Furthermore, the
Chamber emphasised once more that on the basis of art. 10 of the employment
contract the Claimant was entitled to terminate the employment contract on 22
October 2008, the conditions contained in the relevant article having been fulfilled.
12.
For all these reasons, the Chamber decided to reject the Respondent’s arguments
and to accept the Claimant’s argumentation according to which the Respondent
had acted in breach of the employment contract without just cause by failing to
remit the Claimant’s remuneration as of July 2008.
13.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber focussed
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its attention on the consequences of such breach of contract. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract in addition to any outstanding payments on
the basis of the relevant contract.
14.
First of all, the Chamber reverted to the Claimant’s financial claim, which includes
outstanding remuneration of EUR 101,000 as from July 2008, i.e. EUR 65,000
pertaining to the EUR 90,000 instalment that fell due on 30 July 2008 and EUR
36,000 relating to monthly salaries as of August 2008 until October 2008. The
members of the Chamber recalled that the Respondent failed to demonstrate that
it had in fact paid the Claimant’s remuneration as from July 2008 onwards. In
addition, the Claimant asks to be awarded payment of various match bonuses in
accordance with the employment contract, i.e. the amount of EUR 15,882 for 6 out
of 34 matches in accordance with the relevant contractual provision and EUR 5,000
for 2 matches relating to the Cup. In this regard, the Chamber recalled that the
Respondent had acknowledged that the Claimant was fielded in the first eleven in
5 league matches and that he was fielded from the bench in 2 league matches. As
regards the Cup matches, the Chamber took into account that the club had
acknowledged that the Claimant was in the squad but not fielded.
15.
Consequently, taking into account the documentation remitted by the Claimant to
substantiate his claim and the fact that the employment contract was considered
terminated as of 22 October 2008, the Chamber decided that the Respondent is
liable to pay to the Claimant the amount of EUR 120,632 relating to payments due
to the Claimant as from July 2008 up to and including October 2008 in accordance
with the employment contract.
16.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. as of 13 November 2008 over the
total above-mentioned amount relating to the outstanding remuneration.
17.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract 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 contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
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18.
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
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.
19.
Article 10 of the employment contract (cf. no. I./2. above) clearly sets forth that in
the event of the Respondent failing to remit any payment to the Claimant within
60 days as of the relevant due dates, the Claimant was entitled to terminate the
employment contract and the Respondent was obliged to pay to the Claimant “all
payments to the 31 May 2009”, i.e. the date of expiry of the relevant employment
contract. In this regard, the Chamber concluded that the aforementioned article
provides for the consequences in the event of the termination of the employment
contract without just cause and shall thus be taken into consideration when
establishing the amount of compensation payable by the Respondent to the
Claimant in the light of the breach of the employment contract.
20.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract until 31
May 2009, taking into account that the player’s salary until October 2008 and the
contractual instalment of EUR 90,000 are included in the calculation of the
outstanding remuneration (cf. no. II./15. above). Consequently, the Chamber
concluded that the amount of EUR 84,000 (i.e. salary as from November 2008 until
May 2009) serves as the basis for the final determination of the amount of
compensation for breach of contract.
21.
Indeed, in January 2009, the Claimant found employment with the club W. In
accordance with the pertinent employment contract which has been made
available by the Claimant, valid until 31 December 2010, the Claimant was entitled
to receive, until 31 May 2009, the total remuneration in X amounting to the
equivalent of EUR 52,508 and therewith enabled to reduce his loss of income.
Consequently, according to the constant practice of the Dispute Resolution
Chamber, such remuneration under the new employment contract shall be taken
into account in the calculation of the amount of compensation for breach of
contract.
22.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
the amount of EUR 31,492 to the Claimant as compensation for breach of contract.
23.
Finally, the Dispute Resolution Chamber held that the Claimant’s claim for legal costs is
rejected in accordance with art. 15 par. 3 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence.
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24.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, D, is partially accepted.
2.
The Respondent, A, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, outstanding remuneration amounting to EUR 120,632
plus interest at the rate of 5% p.a. due as of 13 November 2008 until the date of
effective payment.
3.
The Respondent, A, has to pay to the Claimant compensation for breach of contract
amounting to EUR 31,492 within 30 days as from the date of notification of this
decision. In the event that this amount of compensation is not paid within the
stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the 30
days’ time limit until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent 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
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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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