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 (The Netherlands), member
Jon Newman (USA), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on the claim presented by the player
K,
as Claimant / Counter-Respondent 1
against the club
N Football Club,
as Respondent / Counter-Claimant
and the club
S Football Club,
as Counter-Respondent 2
regarding a contractual dispute
between the parties
I.
Facts of the case
1.
On 4 January 2009, the player, K (hereafter: the Claimant / Counter-Respondent 1),
and the, N Football Club (hereafter: the Respondent / Counter-Claimant) signed an
employment contract (hereinafter: the contract) valid from 1 January 2009 to 30
June 2010.
2.
In this respect, clause 6.5 of the contract stipulated that “While determining
during medical examination problem in Player’s back [the Claimant / CounterRespondent 1] which may cause future injury both party agree: If Player [Claimant
/ Counter-Respondent 1] is not able to continue his career in relevant level or can
not play more than two months Club [the Respondent / Counter-Claimant] is
entitled to cancel the contract.”
3.
Furthermore, the contract was completed by two “Supplements”.
4.
“Supplement 2” sets forth the financial obligations arising from the employment
contract and stipulates that the Claimant / Counter-Respondent 1 would receive a
total net remuneration of EUR 315,000 from the Respondent / Counter-Claimant
for his activity payable as follows:
“as from 30 January 2009, the following payments shall be made by the 5th
day of each month at the latest:
i. 30.01.2009-31.12.2009 : 12 months x EUR 17,500 = 210,000
ii. 30.01.2010-31.06.2010 : 6 months x EUR 17,500 = 105,000.”
5.
On 8 April 2009, the Claimant / Counter-Respondent 1 lodged a complaint before
FIFA against the Respondent / Counter-Claimant claiming the payment of an
amount of EUR 52,500. In that regard, the Claimant / Counter-Respondent 1
alleged that he had not received his salaries due for the months of February,
March and April 2009.
6.
On 13 May 2009, and without having been contacted by FIFA with regard to the
claim lodged by the Claimant / Counter-Respondent 1, the Respondent / CounterClaimant informed FIFA that it had terminated its contract with the Claimant /
Counter-Respondent 1 in accordance with clause 6.5 of the contract. The
Respondent / Counter-Claimant asserted that, prior to the signature of the
contract, the parties to the contract observed that the Claimant / CounterRespondent 1 suffered from some physical problems. In this respect, the
Respondent / Counter-Claimant provided FIFA with medical reports dated 6 and 8
January 2009, by means of which a lumbago was apparently diagnosed.
Nevertheless, the Respondent / Counter-Claimant stated that the parties had
decided to sign the contract including the faculty for the Respondent / CounterClaimant to terminate the contract with just cause, in case the player would not
be able to play for more than two months (cf. clause 6.5 of the contract).
Moreover, the Respondent / Counter-Claimant held that the Claimant / CounterRespondent 1 had played his last match on 25 February 2009 due to the said
alleged physical problems.
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7.
On 20 May 2009, the Claimant / Counter-Respondent 1 amended his claim
requesting the payment of EUR 60,000 as well as the salaries due to him until June
2010, as compensation for the termination of the contract by the Respondent /
Counter-Claimant. In that regard, the Claimant / Counter-Respondent 1 claimed
that the salary due for the month of May 2009 had also not been paid (cf. point
no. 5). However, he acknowledged having received the sum of EUR 10,000 from
the Respondent / Counter-Claimant, representing apparently a portion of the
salary due for the month of February 2009.
8.
Additionally, the Claimant / Counter-Respondent 1 informed FIFA that he had
decided to take his holidays during the period granted to the other players, that
is, from 18 May to 29 June 2009, since the Respondent / Counter-Claimant had
apparently not responded to his several requests regarding the matter.
9.
On 29 May 2009, the Claimant / Counter-Respondent 1 informed the Respondent /
Counter-Claimant that, in case he did not receive payment of his salaries, he
would consider the contract as terminated. At the same time, the Claimant /
Counter-Respondent 1 informed FIFA that he had not the financial resources to
return to A.
10.
On 12 June 2009, the Claimant / Counter-Respondent 1 amended his claim, once
again, to additionally seek payment of the salary due for the month of June 2009,
i.e a total of EUR 77,500 as alleged outstanding salaries (cf. points no. 5 and 7). For
the rest, the Claimant / Counter-Respondent 1 adhered to the request for payment
of compensation amounting to the remaining value of the contract. Furthermore,
the Claimant / Counter-Respondent 1 provided FIFA with a correspondence sent by
the Respondent / Counter-Claimant on 1 June 2009, by means of which the
Respondent / Counter-Claimant declared having terminated the contract on 13
May 2009 and being willing to pay to the Claimant / Counter-Respondent 1 the
salaries due to him until the date of the termination of the contract, i.e. 13 May
2009.
11.
On 22 June 2009, the Respondent / Counter-Claimant confirmed that it had
terminated the contract in accordance with its clause 6.5. In this regard, the
Respondent / Counter-Claimant maintained that the Claimant / CounterRespondent 1 had not been able to play for the club for more than two months.
Moreover, it reiterated being willing to pay the Claimant / Counter-Respondent 1’s
salaries due until 13 May 2009.
12.
On 22 June 2009 also, the Claimant / Counter-Respondent 1 maintained that he
had been in good physical health and that he had not consulted any doctor since
the date of signature of the contract. Moreover, the Claimant / CounterRespondent 1 held that the Respondent / Counter-Claimant was not entitled to
terminate the contract in accordance with clause 6.5 of the contract, since the
prerequisite provided for in that provision was not fulfilled, since the Claimant /
Counter-Respondent 1 had apparently trained with the second team between 10
March and 15 May 2009. In this, respect, the Claimant / Counter-Respondent 1 also
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produced an e-mail dated 21 May 2009 received from the Respondent / CounterClaimant’s secretariat, informing him, inter alia, that the second team’s training
sessions would start again on 15 June 2009. Consequently, the Claimant / CounterRespondent 1 pointed out that the team would not have called on him to attend
the training if he had been injured.
13.
In addition, the Claimant / Counter-Respondent 1 asserted that he had had a
meeting with the Respondent / Counter-Claimant’s vice-president on 22 April
2009, who allegedly informed him that he was a very bad player and that he
should be ashamed to request a salary. Following this meeting, the Claimant /
Counter-Respondent 1 confirmed having received part of his salary due for
February 2009, i.e EUR 10,000, (cf. point no. 7) and alleged that he had apparently
been told by the Respondent / Counter-Claimant that the remaining part of his
salary due for February 2009 had been deducted due to a fine, which had been
imposed on him.
14.
On 6 July 2009, the Claimant / Counter-Respondent 1 amended his claim
requesting a further payment of EUR 17,500 as outstanding salary due for the
month of July 2009, i.e. a total of EUR 95,000 (cf. points no. 5, 7 and 10), and
reiterated that the Respondent / Counter-Claimant was not entitled to terminate
the contract, reason for which the latter should be ordered to pay compensation
amounting to the residual value of the contract.
15.
In its final comments, the Respondent / Counter-Claimant reiterated that it had
terminated the contract in accordance with clause 6.5 of the contract alleging that
this clause had been inserted in the contract due to the Claimant / CounterRespondent 1’s back problem revealed at the signature of the contract.
16.
In addition, the Respondent / Counter-Claimant lodged a counterclaim against the
Claimant / Counter-Respondent 1 claiming the payment of EUR 35,000 in
compensation for the termination of the contract due to the “player’s non
performance”.
17.
The Claimant / Counter-Respondent 1 rejected the counterclaim stating that it
lacked any justification.
18.
On 10 November 2009, the Claimant / Counter-Respondent 1 informed FIFA that
he had signed an employment contract with the club S Football Club (hereafter:
the Counter-Respondent 2) on 16 July 2009, valid until the end of the 2009 season.
This contract stipulated that the Claimant / Counter-Respondent 1 would receive a
gross weekly salary of EUR 830.
19.
Despite having been invited to do so, the Counter-Respondent 2 did not submit
any comments to FIFA.
II.
Considerations of the Dispute Resolution Chamber
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1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules). The
present matter was submitted to FIFA on 8 April 2009, thus after 1 July 2008.
Consequently, the Chamber concluded that the 2008 edition of the Procedural
Rules is applicable to the matter at hand.
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.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2009) and,
on the other hand, to the fact that the present claim was lodged on 8 April 2009
and that the relevant employment contract was signed on 4 January 2009. In view
of the aforementioned, the Dispute Resolution Chamber concluded that the 2008
version of the Regulations on the Status and Transfer of Players (hereinafter: the
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 and, in doing
so, examined the documentation presented by the parties throughout the
proceedings and took note that the parties to the dispute had signed, on 4
January 2009, the contract valid from 1 January 2009 to 30 June 2010. According
to the “Supplement 2”, the Claimant / Counter-Respondent 1 was entitled to
receive a total net remuneration of EUR 315,000 from the Respondent / CounterClaimant (EUR 17,500 x 18 months).
5.
In continuation, the Chamber paid due consideration to the fact that the Claimant
/ Counter-Respondent 1 claimed having not received the salaries due as from the
month of March 2009. With regard to the monthly remuneration due for the
month of February 2009, the latter admitted having received an amount of EUR
10,000. The Chamber also noted that the Claimant / Counter-Respondent 1
declared having left the club on 18 May 2009 for holidays due to the fact that the
Respondent / Counter-Claimant had not provided him with any answer in this
respect.
6.
Equally, the Dispute Resolution Chamber pointed out that the Respondent /
Counter-Claimant asserted having terminated the contract with just cause based
on the application of clause 6.5 of the contract on 13 May 2009. Moreover, the
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members of the Chamber stressed that the Respondent / Counter-Claimant
repeated that it was willing to pay the Claimant / Counter-Respondent 1’s salaries
due until 13 May 2009.
7.
As a consequence, and before examining the question of the termination of the
contract by the Respondent / Counter-Claimant, the Dispute Resolution Chamber
held that, in accordance with the basic legal principle of pacta sunt servanda, the
Respondent / Counter-Claimant must fulfill its obligations as per the contract
entered into with the Claimant / Counter-Respondent 1 and, consequently, pay
the outstanding remuneration which is due to the latter.
8.
In this respect, the Chamber noted that the Respondent / Counter-Claimant had
not contested the allegations of the Claimant / Counter-Respondent 1, according
to which he had not received any salary for the months of March, April and May
2009. The Chamber recalled that, on the contrary, the Respondent / CounterClaimant declared its will to pay outstanding salaries to the Claimant / CounterRespondent 1, without however, specifying any amount.
9.
With regard to the portion of the salary of February 2009 which had not been
paid to the Claimant / Counter-Respondent 1, i.e. EUR 7,500 (EUR 17,500 – EUR
10,000), the Chamber highlighted that the Respondent / Counter-Claimant had
not provided FIFA neither with an explanation nor with documentary evidence
establishing that the relevant salary had not been due in full. Indeed, the Claimant
/ Counter-Respondent 1 was the one mentioning the fact that he had apparently
been told that the said salary had been reduced due to a fine allegedly imposed
on him. Therefore, the Chamber had no other alternative but to consider that the
Respondent / Counter-Claimant had the obligation to strictly comply with the
terms of the contract regarding the monthly remuneration due for February 2009
(cf. art. 12 par. 3 of the Procedural Rules).
10.
Based on the foregoing, the members of the Dispute Resolution Chamber
determined that the Claimant was to receive the amount of EUR 51,250 as
outstanding salaries for the months of February, March, April and half of May
2009, deducting a sum of EUR 10,000, which the Claimant / Counter-Respondent 1
admitted having received.
11.
In continuation, the Dispute Resolution Chamber took note that the Claimant /
Counter-Respondent 1 requested the payment of all the salaries due to him until
the contractual end of the contract, i.e. a monthly amount of EUR 17,500 due until
30 June 2010.
12.
On the other hand, the Chamber took due note of the Respondent / CounterClaimant’s argumentation, according to which it had terminated the contract with
just cause in virtue of its clause 6.5. The Chamber remarked that the Respondent /
Counter-Claimant sustained that the Claimant / Counter-Respondent 1 had not
been able to play for more than two months.
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13.
In view of the foregoing, the members of the Chamber recalled the wording of
clause 6.5 of the contract, which stipulates that, due to an injury revealed at the
signature of the contract, the Respondent / Counter-Claimant is entitled to
terminate the contract, in case the Claimant / Counter-Respondent 1 could not
continue his career at the required level or if he was unable to play for more than
two months.
14.
In that regard, and before analysing the contents of the aforementioned provision
of the contract, the Chamber recalled the general principle of burden of proof
stipulated in the art. 12 par. 3 of the Procedural Rules, according to which any
party claiming a right on the basis of an alleged fact shall carry the burden of
proof, and pointed out that the Respondent / Counter-Claimant did not submit
any convincing documentary evidence in support of its allegations, according to
which the Claimant / Counter-Respondent 1 had not been physically able to play
for more than two months. Indeed, the Chamber pointed out that the Respondent
/ Counter-Claimant limited itself to allege facts, without trying to demonstrate
their veracity. Indeed, the latter did not provide FIFA with any medical attestation
establishing that the Claimant / Counter-Respondent 1 could not have played
during the months of March and April 2009. Therefore, the members of the
Chamber doubted of the veracity of the allegations of the Respondent / CounterClaimant and had no alternative but to reject them entirely, since it had failed to
submit evidence supporting the alleged facts.
15.
Notwithstanding the above, and in view of the wording of art. 6.5 of the contract,
the Dispute Resolution Chamber deemed it appropriate to analyse the question
whether such clause inserted in an employment contract could be considered as
valid at all. In that regard, the Chamber deemed that the above-mentioned rule
was ambiguous and that its application was arbitrary, since it lead to an
unacceptable result based on non-objective criteria, which entitled the
Respondent / Counter-Claimant to unilaterally terminate the contract in case the
Claimant / Counter-Respondent 1 was not able to play for more than two months.
The Chamber emphasised that the lack of objective criteria by the application of
the relevant rule lead to an unjustified disadvantage of the Claimant /CounterRespondent 1’s financial rights. In this regard, the Dispute Resolution Chamber
considered that the possibility granted to the Respondent / Counter-Claimant to
prematurely terminate the contract based on an injury or sporting performance of
its counterparty appeared to be of a highly subjective nature, entailing that, de
facto, it is left to the complete and utter discretion of the Respondent / CounterClaimant whether or not it was willing to continue the contractual relationship. In
that context, the Chamber was eager to emphasize that, according to its wellestablished jurisprudence, and as a general rule, a player’s injury does not
constitute a just cause in the sense of art. 14 of the Regulations for a club to
terminate a contract. Moreover, the Chamber, referring to the contents of art. 18
par. 4 of the Regulations, also emphasized that once the parties concluded an
employment contract, they had the obligation to implement its terms and a club
could not unilaterally question the validity of the contract during its course based
on the physical state of a player and, a fortiori, based on a medical examination a
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player would have to undergo after or even prior to the signature of the relevant
agreement.
16.
Furthermore, and on a side note, the members of the Dispute Resolution Chamber
present at the meeting observed, and were eager to point out, that they had to
decide, on 10 December 2009, on a similar case involving a player and the
Respondent / Counter-Claimant. The Chamber remarked that the contract at the
basis of the other dispute had been concluded on the same day and contained the
same clause 6.5 and, more astonishingly, that the player allegedly also suffered
from back problems. Moreover, the employment contract had been terminated on
the same day, i.e. 13 May 2009, and based on the same grounds. Consequently,
the Chamber pointed out that both disputes presented almost exactly the same
chronology of facts, convincing the Chamber that such congruence is very unlikely.
17.
In view of the foregoing, the members of the Dispute Resolution Chamber were of
the unanimous opinion that the clause 6.5 of the contract invoked by the
Respondent / Counter-Claimant in order to put an end to the contract was clearly
potestative and that, consequently, the respective argumentation of the
Respondent / Counter-Claimant could not be upheld by the Chamber. As a
consequence, the Chamber concluded that the Respondent / Counter-Claimant
terminated the contract unilaterally and without just cause.
18.
On account of the foregoing, the members of the Chamber also held that the
Respondent was not only to pay the outstanding remuneration to the Claimant,
but also to pay compensation for breach of contract in conformity with art. 17 par.
1 of the Regulations.
19.
For the assessment of the applicable amount of compensation, the Chamber
referred to the aforementioned provision of the Regulations (art. 17 par. 1), in
particular to the non-exhaustive enumeration of the objective criteria which need
to be taken into account.
20.
In continuation, the Dispute Resolution Chamber pointed out that art. 17 par. 1 of
the Regulations also grants a certain degree of discretion to the deciding body
when calculating the relevant compensation. The Chamber recalled that it
regularly makes use of this margin of action.
21.
In this respect, the Dispute Resolution Chamber took due note of the fact that the
Claimant / Counter-Respondent 1 claimed the payment of the salaries due until 30
June 2010, in other words, the remaining value of the contract as compensation
for the breach of contract. In this regard, the members of the Chamber
acknowledged that the Claimant / Counter-Respondent 1 had been rendering, or
at least offering to render, his services to the Respondent / Counter-Claimant for
approximately five months – from January until May 2009 –, and that the relevant
employment contract still had approximately thirteen months to run at the
moment of its termination. Furthermore, the members of the Chamber noted
that, at the time of the decision, the Claimant / Counter-Respondent 1 had signed
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a new employment contract with the Counter-Respondent 2 on 16 July 2009, valid
until the end of the 2009 season. This employment contract stipulated that the
Claimant / Counter-Respondent 1 would receive a gross weekly salary of EUR 830.
22.
In this respect, the Chamber referred to the decision passed by the Court of
Arbitration for Sport (CAS) CAS 2008/X/XXXX FC S v/ Mr M & RZS & FIFA and
2008/X/XXXX Mr M & RZS v/ FC S & FIFA and recalled that “[…] a player has to
make reasonable efforts to seek other employment possibilities and, in the event
he finds an new club, the damage has to be reduced for the amount the player
was able to earn elsewhere.”
23.
On account of the above, in particular in view of the original duration of the
contract, the Claimant’s contractual entitlements, his financial claim as well as the
general obligation of the Claimant / Counter-Respondent 1 to mitigate his
damages, the Dispute Resolution Chamber decided that not the entire remaining
value of the contract, but the amount of EUR 100,000 was to be considered
reasonable and justified as compensation for breach of contract.
24.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on
the present dispute by deciding that the Respondent / Counter-Claimant has to
pay the total amount of EUR 151,250 to the Claimant / Counter-Respondent 1,
consisting of EUR 51,250 concerning outstanding salaries and of EUR 100,000 as
compensation for breach of contract and that all other claims lodged by the
Claimant / Counter-Respondent 1 as well as the counter-claim lodged by the
Respondent / Counter-Claimant are rejected.
******
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent 1, K, is partially accepted.
2.
The Respondent / Counter-Claimant, N P Football Club, has to pay to the Claimant,
K, the amount of EUR 151,250 within 30 days as from the date of notification of
this decision.
3.
Any further claims lodged by the Claimant / Counter-Respondent 1, K, are
rejected.
4.
The counterclaim of the Respondent / Counter-Claimant, N Football Club, is
rejected.
5.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest 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.
6.
The Claimant / Counter-Respondent 1, K, is directed to inform the Respondent /
Counter-Claimant, N Football Club, immediately and directly of the account
number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
******
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Note relating to the motivated decision (legal remedy):
According to art. 63 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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