Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 February 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on the claim presented by the player,
J,
as Claimant
against the club,
K,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 25 January 2007, the player, J (hereinafter: the Claimant), and the club, K,
formerly called K (hereinafter: the Respondent), signed an employment contract
valid from 1 February 2007 until 31 December 2007.
2.
The employment contract provided that the Claimant would receive a net monthly
salary of EUR 4,285, and that bonuses would be paid according to the success of the
team. It is further understood from the contract that each monthly salary would be
paid by no later than the 10th of the following month.
3.
On 16 November 2007, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract. In this respect, the Claimant asserted that he had
not received any salary since six months and explained that during the course of his
contract, the Respondent moved to a new location, i.e. to X, and that soon after, on
11 June 2007, the Claimant received from the Respondent a written declaration
which stated the following: “Der K erklärt, den Spieler Herr J, mit sofortiger Wirkung
vom Training des K freizustellen. Das Fernbleiben vom Training stellt kein
Vertragsverletzung seines Dienstverhältnisses beim K dar”.
Translation into English: The K declares that the player, J, is with immediate effect
released from the Respondent’s trainings. The absence from the training sessions
does not represent a breach of his employment relationship with K.
4.
Consequently, the Claimant deems that the Respondent still owes him the amount of
EUR 41,250 as outstanding salaries.
5.
In reply to the claim, the Respondent first of all explained that the former K had
moved to X changing its official name into K and that K wishes to “exercise its rights
as defendant party”. The Respondent acknowledged that it had signed a contract
with the Claimant valid from 1 February 2007 until 31 December 2007 but that the
said contract had been terminated by mutual consent on 31 May 2007. It further
deemed that all salaries and wages due to the Claimant until the termination of the
contract had been duly paid.
6.
Furthermore, the Respondent underlined that according to point 1 and 2 of Chapter
7 of the employment contract, any outstanding payments had to be claimed within a
period three months by registered mail after the termination of the employment
contract. In this respect, the Respondent pointed out that it had not received any
such claim from the Claimant within the stated time frame. Consequently, the club
argued that since the Claimant had lodged his claim on 15 November 2007, it should
accordingly be considered forfeited. Therefore, the club entirely rejected the claim
and arguments of the Claimant.
2/8
7.
In his replica, the Claimant first of all amended his original claim and deemed that
the club owed him by then 11 monthly salaries, representing in total EUR 47,135 (i.e.
EUR 4,285 x 11). He further denied having ever signed any termination of the
contract at the end of May 2007 and argued that the written declaration of the
Respondent dated 11 June 2007, i.e. twelve days after the alleged termination
agreement signed on 31 May 2007, was in conflict with the aforementioned date.
Consequently, the Claimant rejected the arguments raised by the Respondent and
considered that the latter had breached their contractual relationship and that it
should be asked to pay him the amount he had previously mentioned.
8.
In its final position, the Respondent provided some salary slips, bearing both the
names of the club and of the Claimant, which would, according to the Respondent,
reflect that the following amounts (totalling EUR 20,857) had been paid to the
Claimant:
- EUR 4,255 pertaining to the salary of March 2007,
- EUR 4,206 pertaining to the salary of April 2007,
- EUR 12,396 pertaining to the salary May 2007, which allegedly comprises an
additional remuneration for vacations.
In this respect, the Respondent argued that such payment receipts proved that the
request of the Claimant to be awarded the 11 monthly salaries was not consistent. As
for the termination agreement allegedly concluded on 31 May 2007, the Respondent
argued that such agreement had been witnessed by a number of people from the
club as well as the Claimant’s former players’ agent, Mr M.
9.
Consequently, the Respondent reiterated that the Claimant’s claim is inadmissible
and should therefore be fully rejected.
10.
According to the information provided by the Claimant, after the termination of his
employment contract with the Respondent, he did not play for any other club until
he signed a new employment contract with the club E on 22 February 2008.
*****
3/8
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as:
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 16 November
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. 21 par. 2 and 3 of the
2008 edition of the Procedural Rules in combination with 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
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 an 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 16 November 2007, the 2005
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 so doing, the
Chamber started by acknowledging the undisputed fact that the parties signed an
employment contract valid as from 1 February 2007 until 31 December 2007.
Furthermore, the Claimant lodged a claim for breach of contract against the
Respondent and, in this regard, asserted that on 11 June 2007, the Respondent had
given him a written declaration which stated that he was released from the club’s
trainings and that his absence shall not be considered as a breach of contract. The
Claimant also pointed out that he had not received any salary as from June 2007
until when he lodged his claim in front of FIFA in November 2007, i.e. for six
consecutive months.
5.
In continuation, the Chamber also took into account the Respondent’s
argumentation that it had moved its facilities to another city and that the
employment contract with the Claimant had subsequently been terminated by
mutual consent on 31 May 2007. Furthermore, the Respondent argued that the
Claimant had received all his financial dues until the termination of the employment
contract. Finally, the members of the Chamber acknowledged the Respondent’s
4/8
argument of defence which consisted in saying that the Claimant had renounced his
right to claim any outstanding amounts since the employment contract provided that
such claim should be brought to the Respondent’s attention no later than three
months following the termination of the employment contract.
6.
In continuation, prior to entering into the question of the responsibility of the
termination of the employment contract, the Chamber took into consideration the
Respondent’s argument that the Claimant should have brought his claim for
outstanding amounts due under the employment contract within three months of
the amounts being due, in accordance with points 1 and 2 of Chapter 7 of the
employment contract. In this respect, the Chamber was eager to emphasize that
according to art. 25 par. 5 of the Regulations, claims in front of FIFA are barred by
the statute of limitations if more than two years have elapsed since the event giving
rise to the dispute. Consequently, the Chamber had to reject the Respondent’s
argument in this respect.
7.
With the foregoing in mind, the Chamber focused its analysis of the present case on
the issue of whether, as alleged by the Respondent, the employment contract
between the parties had been terminated by mutual consent. In this regard, the
Chamber duly noted that the Respondent had argued that a number of persons
could corroborate the fact that on 31 May 2007, the parties had mutually agreed to
terminate their employment relationship. In this respect, the Chamber was eager to
emphasize that in accordance with the legal principle of burden of proof mentioned
under art. 12 par. 3 of the Procedural Rules, it fell upon the Respondent to provide
evidence that the Claimant had agreed to the termination of the employment
contract. In this regard, the Chamber found that no such proof had been provided by
the Respondent. Indeed, even though the Respondent had put forward that some
club members could provide their statements to confirm that the Claimant had
agreed to the termination of the employment contract, such statements, if at all
considered, should have at least been put in writing and duly signed by the persons
in question.
8.
In addition, the Chamber emphasized that the written declaration given to the
Claimant on 11 June 2007 was only signed by the Respondent and even mentioned
that the Claimant’s absence from trainings should not be considered as a breach of
contract. Therefore, the Chamber established that this written declaration rather
showed that the Respondent was no longer interested in the Claimant’s services and
that, as opposed to the Respondent’s argument, the employment contract had been
in force until at least 11 June 2007. Additionally, the Chamber pointed out that the
Respondent had undisputedly not paid any salaries to the Claimant as of June 2007.
9.
In view of the above, the Chamber came to the conclusion that no clear and
irrefutable evidence had been brought by the Respondent that would lead to think
5/8
that the employment contract with the Claimant had been terminated by mutual
consent on 31 May 2007.
10.
In light of the above, the Chamber had no alternative but to decide that the
employment contract was terminated unilaterally and without just cause by the
Respondent in June 2007.
11.
Having established that the Respondent is to be held liable for the early termination
of the employment contract without just cause, the Chamber lent particular
emphasis to 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. In this respect, the Chamber wished to underline that, according to the
statements of the Respondent, who submitted copies of the salary slips of March,
April and May 2007, there were no outstanding salaries due up until the end of May
2007. Indeed, the salary slips in question show that between March and May 2007, he
received a total of EUR 20,857, which, according to the Respondent, corresponds to
the salaries due to the Claimant over this time period plus an additional
remuneration for vacations.
12.
In view of the aforementioned, the Chamber focused 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.
13.
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
by either contractual party in the event of breach of contract. In this regard, the
Chamber remarked that the employment contract did not contain any such
compensation clause.
14.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that the said provision provides for a non-exhaustive enumeration
6/8
of criteria to be taken into consideration when calculating the amount of
compensation payable. Therefore, other objective criteria may be taken into account
at the discretion of the deciding body.
15.
In view of the above, prior to assessing the relevant criteria in determining the
amount of compensation due to the Claimant by the Respondent, the Chamber first
of all recalled that the Claimant is claiming compensation in the total amount of EUR
47,135, corresponding to 11 monthly salaries.
16.
With the aforementioned in mind, the Chamber took into account the remuneration
due to the Claimant in accordance with the contract as well as the time remaining on
the same contract, as well as the professional situation of the Claimant after the
early termination occurred until the present moment. In this respect, the Chamber
took into account that the monthly salary of the Claimant under the employment
contract was of EUR 4,285 and that the time remaining as from the termination of
the employment contract by the Respondent until the expiry of the employment
contract was from June 2007 until and including December 2007. Furthermore, the
Chamber duly noted that Claimant appears to have remained unemployed until at
least 31 December 2007.
17.
In view of all of the above, the Chamber concluded that bearing in mind art. 17 par.
1 of the Regulations as well as the circumstances of the case, the amount of
compensation of EUR 29,995, which corresponds in fact to the remaining value of the
pertinent employment contract as of the moment on which the breach of contract
occurred, would appear fair and appropriate.
18.
In conclusion, the Dispute Resolution Chamber decided that the Respondent is liable
to pay to the Claimant the amount of EUR 29,995 as compensation for breach of
contract and that any further claims of the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, J, is partially accepted.
2.
The Respondent, K, has to pay to the Claimant compensation for breach of contract
in the amount of EUR 29,995 within 30 days as from the date of notification of this
decision
3.
If the aforementioned sum is not paid within the aforementioned deadline, interest
at the rate of 5% per year will apply as of expiry of the stipulated time limit and the
7/8
present matter shall be submitted, upon request, to the FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant, J, is directed to inform the Respondent, K, immediately and directly of
the bank 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
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
8/8