Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 February 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Zola Majavu (South Africa), member
on the claim presented by the player,
P,
as Claimant
against the club,
I,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 23 June 2007, the player, P (hereinafter: the Claimant), and the club, I
(hereinafter: the Respondent), signed an employment contract valid as from 1 July
2007 until 30 June 2009, in accordance with which the Claimant was entitled to
receive inter alia the following remuneration:
a.
EUR 120,000 net payable during the 2007-08 season as follows:
i. EUR 20,000 upon the signing of the employment contract;
ii. ten monthly instalments of EUR 9,000 each as from 30 August 2007 until 30
May 2008;
b.
EUR 140,000 net payable during the 2008-09 season as follows:
i. EUR 30,000 on 30 July 2008;
ii. ten monthly instalments of EUR 10,000 each as from 30 August 2008 until 30
May 2009;
c.
Each season: monthly payment of EUR 715 net x 14 months;
d.
Bonus of EUR 15,000 if the club wins the X league championship;
e.
Furnished house, a car, 10 flight tickets B-H-B.
2.
According to article 6 of the employment contract, in case of injury, the Claimant
has the right to consult his own specialist (2nd opinion).
3.
Article 8 of the employment contract stipulates that if the Respondent is in delay for
over 60 consecutive days of any of the contractual payments or for 45 days (even
non-consecutive) of any amount of salary, the Claimant has the right to terminate
the employment contract and the Respondent will have to compensate the
Claimant with an amount equalling all salaries of the current season plus all
remaining salaries of the following season.
4.
In order to exercise this right, the Claimant shall send a written notification to the
club by fax or by hand and if the Respondent does not pay the due amount within
15 days after receipt of such notification, the Claimant is entitled to terminate the
employment contract with the aforementioned consequences for the Respondent.
5.
On 19 July 2008, the Claimant lodged a claim against the Respondent in front of
FIFA maintaining that as of February 2008 he had no longer received any
remuneration and that the Respondent still owes him the total amount of EUR
43,700 [sic] net as outstanding remuneration. The Claimant explains that until the
date of his claim he had only received the total amount of EUR 76,400 from the
Respondent (including the EUR 20,000 signing-on fee; 6 monthly instalments of EUR
8,400 relating to August 2007 until January 2008; EUR 1,000 for February 2008; EUR
5,000 by cheque dated 26 May 2008), whereas he should have received the total
amount of EUR 120,000 net in accordance with the employment contract. He
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further explains that the Respondent had deducted EUR 600 on a monthly basis for
accommodation in violation of his entitlements on the basis of the employment
contract.
6.
The Claimant points out that he got injured and returned to B for a 2nd medical
opinion in March 2008 in accordance with the employment contract and with the
approval of the Respondent. He underwent surgery in B and claims that he had to
pay for the medical costs himself in the amount of EUR 2,605.93 in spite of his
agent’s intervention with the club.
7.
According to the Claimant, on 1 May 2008, via his agent, he reminded the
Respondent of the outstanding remuneration. Having received no reply, by fax
dated 3 July 2008, he asked the Respondent to pay the outstanding remuneration as
of February 2008 by 18 July 2008, to no avail.
8.
He adds that he had not been invited by the Respondent to attend a training in G in
July 2008 and that in fact the Respondent had ceased all communication with him.
9.
For these reasons, the Claimant maintains that he had just cause to terminate the
employment contract at the club’s fault on 19 July 2008. Furthermore, all conditions
to terminate the employment contract in accordance with its article 8 had been
fulfilled.
10.
On account of the above and the breach of contract committed by the Respondent,
the Claimant asks that he be awarded payment of the following monies by the
Respondent:
Outstanding remuneration (February 2008 - May 2008)
EUR 43,700 [sic]
Medical expenses
EUR 2,605.93
Compensation for breach of contract (cf. art. 8 of the
employment contract: EUR 140,000 remaining value of
employment contract + EUR 20,000 ex aequo et bono
representing contractual value in kind)
EUR 160,000
11.
In addition, the Claimant asks that sporting sanctions be imposed on the club for
breach of contract within the protected period.
12.
The Respondent, for its part, fully rejects the Claimant’s claim maintaining that until
23 May 2008 the Claimant had received the total amount of EUR 89,000 from the
Respondent via bank cheques, receipts for which “it can present upon request”.
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13.
Therefore, according to the Respondent, the balance due to the player is EUR
21,000 (EUR 110,000 – EUR 89,000).
14.
The Respondent asserts that it invited the Claimant to collect “an amount” on 30
May 2008 and promised full settlement of the outstanding monies shortly
thereafter. According to the Respondent, the Claimant refused to collect these
monies.
15.
With respect to the Claimant’s default notice dated 3 July 2008, the Respondent
asserts that it asked the Claimant on 18 July 2008 to come to the Respondent’s head
offices where it offered him “bank cheques” in full settlement of the Claimant’s
receivables. However, the Claimant refused to receive these “cheques”, obviously in
an attempt to establish that the Respondent was in default of its obligations and
failed to pay within the time limit. In this regard, the Respondent submitted a copy
of a cheque amounting to EUR 21,000 issued on 18 July 2008.
16.
Following the Claimant’s refusal to receive the cheques, the Respondent drafted an
“out-of-court invitation” dated 18 July 2008 addressed to the Claimant inviting him
officially to come to the Respondent’s offices on 22 July 2008 for the full settlement
of his receivables. This document was served on the Claimant on 21 July 2008.
17.
The Claimant then presented himself at the Respondent’s offices, where he again
refused to receive the cheques. The Respondent stresses that the Claimant’s lawyer
had filed a claim against the Respondent in front of FIFA on 19 July 2008, a fact it
was not yet aware of on that specific moment of time.
18.
The Respondent holds that the Claimant had thus acted in bad faith and stresses
that it had in fact met the time limit set by the Claimant in his default notice.
19.
The Respondent admits that it was a little in delay of payments due to the Claimant.
The Claimant, however, had no just cause to unilaterally terminate the employment
contract. The Respondent considers the employment contract still to be in force and
binding upon the parties. Should the Dispute Resolution Chamber decide that the
employment contract was terminated, the Claimant should be held liable for such
termination given that he acted in bad faith.
20.
The Respondent also rejects the Claimant’s claim for reimbursement of his medical
expenses given that this amount is fully covered by the insurance policy. Regarding
the Claimant’s allegations pertaining to his accommodation, the Respondent states
that it met all of its obligations to pay the rent and that it can prove this with
receipts.
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21.
As regards the Claimant’s allegation that he was not invited to the training in G, the
Respondent points out that the coach had decided to keep him and other players
for training in X for health reasons.
22.
The Respondent also pointed out that the Claimant travelled to I for tests in early
August 2008 without its approval, which the Respondent considers abusive
behaviour on the Claimant’s part.
23.
In response, the Claimant acknowledges having received from the Respondent two
cheques totalling EUR 12,000 with due dates 26 May 2008 (EUR 5,000) and 31 July
2008 (EUR 7,000), but points out that he only cashed the cheque amounting to EUR
5,000 in May 2008. He asserts still being in possession of the cheque amounting to
EUR 7,000 bearing the due date of 31 July 2008, i.e. subsequent to the date of
termination of the employment contract on 19 July 2008.
24.
The Claimant further confirms that on 18 July 2008 the Respondent offered him
three cheques amounting to EUR 7,000 each falling due on 30 September 2008, 31
October 2008 and 30 November 2008, respectively, which proposal was refused. He
denies that the Respondent presented him one cheque amounting to EUR 21,000 on
18 July 2008 and points out that in the “out-of-court invitation” the Respondent
refers to the Claimant’s refusal to collect a “number of cheques”.
25.
Furthermore, the Claimant points out that the Respondent failed to present
documentary evidence for the alleged payment of the total amount of EUR 89,000
and points out that the Respondent has not taken into consideration the annual net
amount of EUR 10,000 due to the Claimant in accordance with the standard
contract issued by the H Football Federation.
26.
For these reasons, the Claimant adheres to his claim.
27.
The Claimant adds that he stayed in X at his own expenses until 5 September 2008
in order to find an amicable settlement.
28.
In its final position, the Respondent reiterated its previous statements without
presenting any supporting documentation.
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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 19 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. 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.
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 19 July 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 23 June 2007 valid as from 1 July 2007 until 30 June 2009.
5.
The Claimant, on the one hand, maintains that he had just cause to terminate the
employment contract on 19 July 2008, as the Respondent had failed to remit his
remuneration since February 2008 and that, thus, the Respondent was to be held
liable for the early termination of the employment contract. In this respect, the
Chamber recalled that, on 3 July 2008, the Claimant had served a final notice of
default on the Respondent setting a time limit expiring on 18 July 2008 for the
Respondent to comply with its contractual obligations as of February 2008.
Furthermore, the Claimant submits that all conditions to terminate the employment
contract in accordance with its article 8 had been fulfilled.
6.
The Respondent, for its part, admits that it was somewhat in delay with payments
due to the Claimant, but submits that, until 23 May 2008, it had paid the total
amount of EUR 89,000 to the Claimant and that, therefore, the balance due to the
player is of EUR 21,000. In this regard, the Respondent further submits that, on 18
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and 22 July 2008, it offered the player to pay his receivables by cheque, which the
Claimant allegedly refused in an attempt to establish that the Respondent was in
default of its obligations. The Respondent holds that the Claimant acted in bad faith
and that, therefore, should the DRC decide that the employment contract was
terminated, the Claimant should be held liable for the early termination of the
employment contract.
7.
In this context, the Chamber firstly focussed its attention on the said art. 8 of the
employment contract, on the basis of which the Claimant maintains having been
entitled to terminate the relevant employment contract. According to art. 8 of the
employment contract, if the Respondent is in delay for over 60 consecutive days of
any of the contractual payments or for 45 days (even non-consecutive) of any
amount of salary, the Claimant has the right to terminate the employment contract
and the Respondent will have to compensate the Claimant with an amount
equalling all salaries of the current season plus all remaining salaries of the
following season. Furthermore, in order to exercise this right, the Claimant shall
send a written notification to the club by fax or by hand and if the Respondent does
not pay the due amount within 15 days after receipt of such notification, the
Claimant is entitled to terminate the employment contract with the
aforementioned consequences for the Respondent.
8.
In this regard, the Chamber took into account that the Claimant acknowledges
having received the total amount of EUR 76,400 from the Respondent, which
amount, according to the Claimant, includes the EUR 20,000 signing-on fee, 6
monthly instalments of EUR 8,400 (instead of EUR 9,000) each as from August 2007
until January 2008, EUR 1,000 for February 2008 and EUR 5,000 by cheque dated 26
May 2008. Therefore, the Claimant maintains that remuneration amounting to EUR
43,600 mainly relating to the months of February 2008 until May 2008 remains
outstanding. The members of the Chamber noted that in accordance with the
employment contract, the player’s yearly remuneration of EUR 120,000 for the 200708 season was to be remitted by the Respondent to the Claimant in ten monthly
instalments of EUR 9,000 each as from 30 August 2007 to 30 May 2008 and a
monthly payment of EUR 715 (x 14 months) as well as a signing-on fee of EUR
20,000.
9.
Turning its attention to the Respondent’s statement that it had remitted the total
amount of EUR 89,000 to the Claimant until 23 May 2008, and bearing in mind art.
12 par. 3 of the Procedural Rules, according to which any party deriving a right from
an alleged fact shall carry the burden of proof, the Chamber highlighted that such
statement had not been corroborated by the Respondent with documentary
evidence in accordance with the said provision. In this respect, the Chamber also
pointed out that the Respondent had failed to present a breakdown of the said EUR
89,000 indicating which amount(s) had been allegedly paid to the Claimant and on
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which date(s). Equally, apart from contesting the total amount of EUR 76,400, which
the Claimant confirmed having received from the Respondent, the Respondent had
not commented on the Claimant’s breakdown of the amount of EUR 76,400. In fact,
in this context, the Respondent merely submitted a receipt signed by the player on
23 May 2008 regarding two cheques totalling EUR 12,000 falling due on 26 May
2008 (EUR 5,000) and on 31 July 2008 (EUR 7,000), respectively. On account of the
above, and taking into consideration the Claimant’s statements, the Chamber
established that, when the Claimant put the Respondent in default of its obligations
on 3 July 2008, the amount of EUR 43,600, including remuneration due as of
February 2008, had remained outstanding as opposed to the amount of EUR 21,000
admitted by the Claimant.
10.
The Chamber recalled that according to the Respondent, it had in fact met the time
limit set by the Claimant in his default notice dated 3 July 2008. That is, according to
the Respondent, the Claimant had refused to accept the cheques it had offered in
payment of the amount of EUR 21,000 by the time limit set by the Claimant, i.e. 18
July 2008. The Chamber noted that, in this context, the Respondent had presented a
copy of a (1) bank cheque issued on 18 July 2008 amounting to EUR 21,000, in an
apparent effort to demonstrate that with such cheque it would have paid off all
outstanding receivables on 18 July 2008. The Chamber took into account that the
Claimant denies having been offered, on 18 July 2008, payment of the amount of
EUR 21,000 by one single cheque as presented by the Respondent in support of its
allegation, but admits that the Respondent had proposed to pay the amount of EUR
21,000 by means of three cheques of EUR 7,000 each falling due on 30 September
2008, 31 October 2008, and 30 November 2008, respectively, which offer was
refused by the Claimant. In this respect, the members of the Chamber deemed that
the document presented by the Respondent in support of its position, i.e. a copy of
one cheque amounting to EUR 21,000, does not constitute sufficient documentary
evidence to corroborate the allegations put forward by the Respondent in this
regard. What is more, as pointed out by the Claimant, the Chamber agreed that the
wording of the “out-of-court invitation” clearly refers to the Claimant’s refusal to
collect a “number of cheques”. Equally, the Respondent itself had stated that on 18
July 2008 it offered “bank cheques” in full settlement of the Claimant’s receivables
(cf. number I./15. above).
11.
Regardless of the foregoing, the Chamber highlighted that, in any case, as
established above, the amount of EUR 43,600 as opposed to EUR 21,000 as admitted
by the Respondent had remained unpaid when the Claimant put the Respondent in
default of its obligations on 3 July 2008. In this regard, the Chamber deemed it also
fit to point out that the Claimant had no obligation whatsoever to accept payment
of the amount of EUR 21,000 by one or several cheques on 18 July 2008 in
settlement of outstanding receivables, not only, but also since he was effectively
entitled to EUR 43,600.
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12.
Therefore, the Chamber rejected the Respondent’s argument that, in fact, it had
met the time limit set out by the Claimant in his default notice and that the
Claimant had allegedly acted in bad faith.
13.
On account of the aforementioned considerations, the Chamber concurred that the
Respondent had evidently failed to pay the Claimant’s remuneration in accordance
with its contractual obligations mainly as of February 2008, nor had the Respondent
demonstrated any valid reasons not to remit the Claimant’s remuneration as of the
said period of time. Therefore, the Chamber decided that the Respondent had acted
in breach of the employment contract.
14.
What is more, reverting to art. 8 of the employment contract, the Chamber
established that in the light of the preceding considerations, the Respondent had
obviously been in delay for over 60 consecutive days of any of the contractual
payments or for 45 days (even non-consecutive) of any amount of salary.
Furthermore, the Chamber established that the Claimant had duly put the club in
default of its contractual obligations in writing, on 3 July 2008, setting a 15 days’
time limit to remedy such default by 18 July 2008. Hence, the conditions set out in
art. 8 of the employment contract have been fulfilled, as a result of which such
article finds application in the matter at stake.
15.
In the light of the aforementioned circumstances, the Chamber concurred that the
Claimant had just cause to unilaterally terminate the employment contract and that
the Respondent is to be held liable for the early termination of the employment
contract with just cause by the Claimant on 19 July 2008.
16.
In this context, the Chamber reverted to the Respondent’s allegation that the
Claimant travelled to S for tests in early August 2008 without its permission and
wished to highlight that, in the light of the termination of the employment contract
on 19 July 2008, such allegation must be considered irrelevant.
17.
Having established that the Respondent is to be held liable for the early termination
of the employment contract with just cause by the Claimant, the Chamber focussed
its attention on the consequences of such termination. Taking into consideration
art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled
to receive an amount of money from the Respondent as compensation for the
termination of the contract with just cause in addition to any outstanding payments
on the basis of the relevant employment contract.
18.
The Chamber then reverted to the Claimant’s financial claim, which includes
outstanding remuneration totalling EUR 43,600. The Chamber recalled that the
Respondent failed to demonstrate that it had in fact paid the Claimant’s
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outstanding remuneration in the amount of EUR 43,600 or that it had valid reasons
not to pay the said remuneration to the Claimant.
19.
Consequently, taking into account the documentation remitted by the Claimant to
substantiate his claim, i.e. the relevant employment contract, and the fact that the
employment relation between the parties is to be considered terminated as of 19
July 2008, the Chamber decided that the Respondent is liable to pay to the Claimant
the amount of EUR 43,600 in connection with the remuneration due to the
Claimant in accordance with the employment contract until 19 July 2008.
20.
Subsequently, the members of the Chamber reverted to the Claimant’s petition to
be awarded the amount of EUR 2,605.93 in payment of his medical expenses. The
Claimant, however, failed to substantiate such request with the required
documentary evidence in the light of art. 12 par. 3 of the Procedural Rules and
therefore, the Chamber had no alternative but to reject such claim.
21.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent 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.
22.
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
which the parties had beforehand agreed upon an amount of compensation
payable in the event of breach of contract. Article 8 of the employment contract (cf.
nos. I./3. and I./4. above) clearly sets forth that in the event of the conditions
contained therein having been fulfilled, the Claimant has the right to terminate the
employment contract and the Respondent will have to compensate the Claimant
with an amount equalling all salaries of the current season plus all remaining
salaries of the following season. In this regard, the Chamber concluded that the
aforementioned article provides for the consequences agreed upon by the
contractual parties 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.
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23.
Bearing in mind the foregoing, and taking into account that the salaries of the
current season are included in the aforementioned amount of EUR 43,600, the
Chamber decided that the Respondent must pay the amount of EUR 140,000, which
corresponds to the remaining remuneration of the following season in accordance
with the employment contract, to the Claimant as compensation for breach of
contract.
24.
Consequently, the Chamber decided that the Respondent is liable to pay the total
amount of EUR 183,600 to the Claimant.
25.
Furthermore, the Claimant is instructed to return to the Respondent the cheque
amounting to EUR 7,000 bearing the due date of 31 July 2008, which the Claimant
confirmed to still have in his possession.
26.
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, P, is partially accepted.
2.
The Respondent, I, has to pay the amount of EUR 183,600 to the Claimant within 30
days as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry
of the aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4.
The Claimant has to return to the Respondent the cheque amounting to EUR 7,000
bearing the due date of 31 July 2008 within 30 days as from the date of notification
of this decision.
5.
Any further request filed 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.
*****
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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
Encl.
CAS directives
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