Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 January 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
M,
as Claimant
against the club,
F,
as Respondent
regarding an employment-related contractual dispute
between the player and the club.
I.
Facts of the case
1.
Two documents regarding the labour relationship between the player and
the club have been made available. One is entitled “Agreement about
Disciplinary Sanctions and Bonuses” (hereinafter also referred to as “first
agreement”) and undated. The second document is entitled “Additional
Agreement to the contract from 01.01.2006” (hereinafter also referred to
as “second agreement”) dated 11 April 2006.
2.
According to the “Agreement about Disciplinary Sanctions and Bonuses”,
the player is entitled to receive bonuses depending on his matchparticipation and performance. This Agreement further refers to the
player’s individual contract. The obligations of the football club are listed
as follows: “For honest discharge of the duties, for high level of sport
scores, for professional and sport mastery, for individual contribution on
attainment by F victorious sports results, the club makes an additional
payment to the football player in the amount of USD 12’000 per month.”
Furthermore, during the term of the contract, the club has to pay USD 300
per month to the player for accommodation.
3.
According to the “Additional Agreement”, the parties extend the contract
term from 1 January 2006 till 30 June 2010. Furthermore, all other
conditions of the contract signed on 1 January 2006 remain unchanged.
4.
In reply to FIFA’s request to present a copy of the “individual contract”
apparently signed between the parties on 1 January 2006, the player
replied that the aforementioned two documents are the only documents
in his possession.
5.
On 23 July 2008, the player lodged a complaint against the club F before
FIFA claiming that the mentioned club breached the contract between the
parties and asked that his employment contract be declared terminated at
the club’s fault.
6.
The player states that on 8 June 2008 the club declared that it was not
counting on the player anymore, that he was banned from training and
that he should go home and look for another club. Furthermore, the club
F declared that a future club would have to pay a fee of EUR 300’000 and
tried unsuccessfully to have the player sign a document according to
which inter alia all obligations of the club would have been cancelled by
30 June 2008. The player points out that on 9 June 2008, he returned to S.
Thereafter, the player repeatedly but unsuccessfully offered his services to
the club by phone. The player adds that his June 2008 salary had remained
unpaid.
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7.
On 1 October 2008, the player specified his claim asking for the
outstanding salary of June, July and August 2008 for a total of USD 36’000
(USD 12’000 each month).
8.
In spite of having been solicited to do so several times, the club F never
responded to the claim lodged against it by the player.
9.
On 21 November 2008, FIFA advised the parties to consider their labour
relationship as terminated and to focus on the financial aspects of the
dispute without prejudice to the decision to be passed by the Dispute
Resolution Chamber in this matter.
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 23 July 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. art. 18 paras. 2 and 3 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of
the Procedural Rules and confirmed that in accordance with art. 24 para. 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 paras. 1 and 2 of the Regulations on the
Status and Transfer of Players (edition 2008), and considering that the
present claim was lodged on 23 July 2008, the current version of the
regulations (edition 2008; hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
In continuation, and entering into the substance of the present matter,
the members of the Chamber started by acknowledging the established
facts of the case and the arguments of the parties as well as the
documentation contained in the file. In this respect, in view of the
circumstances of the present case, the Chamber deemed that the
following three issues had to be addressed in particular:
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I. What are the facts of the case regarding the contractual
relationship between the player and the club?
II. Was the employment contract terminated with or without just
cause and which party is to be held responsible for such breach?
III. Which are the consequences in the event of a breach of
contract and which is the request of the player?
5.
With regard to the first issue, the members of the Chamber duly
acknowledged that the player and the club had signed at least two
agreements. It was furthermore noted that the first agreement was
undated and referred to the “individual contract”. In accordance with this
agreement the player was inter alia entitled to payments of USD 12’000
per month. The second agreement was dated 11 April 2006 and
constitutes a prolongation of the contractual term until 30 June 2010,
while all other conditions of the “contract signed on 1 January 2006”
remain unchanged.
6.
The Chamber took note that both of the aforementioned agreements
refer to the “individual contract” dated 1 January 2006, which was not
made available. In spite of the “individual contract” not having been
made available the Chamber concluded that both duly signed agreements
presented by the player are documents of evidence clearly demonstrating
the employment by the club of the player during a specified period of
time and indicating payments owed by the club to the player on a
monthly basis in return for his services.
7.
In addition, the Chamber took into account that the club F, has not
contested that the conditions contained in the two mentioned
agreements presented by the player constitute the conditions of
employment of the player by the club.
8.
With regard to the second issue as to the termination of the employment
contract, the Chamber took into account the allegations of the player,
who, when filing the claim against the club, declared that he had been
informed orally by the club’s sports director on 8 June 2008 that the club
was not counting on him anymore, that he was banned from training and
that he should go home to S and look for another club. In addition,
according to the player, the club requested that any future club would
have to pay EUR 300’000 for his transfer. The Chamber also took note of
the player’s further allegations according to which the club tried to have
the player sign a paper by which he would have agreed to waive all
obligations of the club by 30 June 2008. The player pointed out that after
an unsuccessful meeting with the club on 9 June 2008, he returned home
to S, after which he repeatedly but unsuccessfully offered his services to
the club via the phone.
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9.
As a next step, and turning their attention to the club, the members of
the Chamber took note of the fact that F has not replied to the claim
lodged against it by the player despite having been asked to do so on
several occasions. Therefore, so the Chamber, the club had renounced its
right to defence and accepted the player’s allegations.
10.
In continuation, the Chamber stated that as a general principle of
procedure before the Dispute Resolution Chamber and in accordance with
art. 9 par. 3 of the Procedural Rules, if the Respondent does not reply to
the claim of the Claimant, a decision shall be taken on the basis of the
documents on file.
11.
Taking into consideration the aforementioned, and at the same time
turning its attention to the second above-mentioned issue, the Chamber
acknowledged that the player alleged having been verbally dismissed by
the club on 8 June 2008. The club having thus failed to respond to such
statement made by the player (cf. point II.9 above), the Chamber decided
to accept the player’s allegation and concluded that the club had
unilaterally terminated the employment contract as early as on 8 June
2008.
12.
Furthermore, taking into account the club’s failure to take position in this
case, the Chamber had no other alternative but to conclude that the club
had no just cause for the early termination of the pertinent employment
contract.
13.
Consequently, the members of the Chamber decided that the employment
contract had been terminated by the club without just cause as early as on
8 June 2008. Therefore, taking into consideration art. 17 par. 1 of the
Regulations and the constant jurisprudence of the Dispute Resolution
Chamber, the Chamber decided that the player is entitled to receive from
the club an amount of money as compensation for breach of contract in
addition to any outstanding payments on the basis of the relevant
employment contract.
14.
The Chamber then turned to the player’s financial claim which includes
the monthly payments of June 2008, July 2008 and August 2008 of USD
12’000 each, in the total amount of USD 36’000.
15.
Therefore and taking into account that the pertinent employment
contract was terminated by the club on 8 June 2008, the Chamber decided
to accept the player’s claim pointing out that the claimed total amount of
EUR 36’000 was to be considered as compensation for breach of contract
by the club.
16.
In light of all of the above, the Dispute Resolution Chamber decided that
the club is liable to pay the total amount of USD 36’000 to the player as
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compensation for the unilateral termination of the employment contract
by the club without just cause.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player M, is accepted.
2.
The Respondent, F, has to pay to the Claimant the amount of USD 36’000
within 30 days as from the date of notification of this decision.
3.
If the amount of USD 36’000 is not paid to the Claimant 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 the parties request to FIFA’s Disciplinary Committee for its
consideration and decision.
4.
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 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:
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Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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