Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 November 2007,
in the following composition:
ALOULOU Slim (Tunisia), Chairman
DIDULICA John (Australia), member
MOVILLA Gerardo (Spain), member
MECHERARA Mohamed (Algeria), member
SALEH AL HOUSANI Essa M. (United Arab Emirates), member
on the claim presented by the player
Xxx, Xxx,
represented by Mr Xxx, Attorney at law,
as Claimant
against the club
Xxx, Xxx,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 17 August 2005, the Xxx player, Xxx (hereinafter: the Claimant), and the Xxx
club, Xxx (hereinafter: the Respondent), signed an employment contract valid
from the day of the signature until 30 June 2008.
2.
According to the relevant employment contract the Claimant was entitled to a
monthly basic salary of EUR 660, Christmas allowance in the amount of EUR 660,
Easter allowance in the amount of EUR 330, vacation allowance in the amount of
EUR 330, benefits such as air fares and accommodation as well as further
payments for signing the contract in the amount of EUR 260,000 payable in 2
instalments of EUR 25,000 and 7 instalments of EUR 30,000 each. The last
instalment of every year, i.e., inter alia, the instalment payable on 12 December
2006, is subject to the condition that the Claimant completed 22 matches for the
Respondent per year.
3.
On 10 January 2007, the Claimant submitted a claim at FIFA against the
Respondent for breach of contract. In this regard, the Claimant argued that the
Respondent had imposed disciplinary measures on him, had failed to fulfil its
financial obligations deriving from the relevant employment contract for more
than 3 months, i.e. since the beginning of September 2006 and, finally, had
unilaterally terminated the contractual relationship without just cause.
4.
Therefore, the Claimant claimed allegedly outstanding remuneration in the total
amount of EUR 24,989. In particular, he claimed the following payments:
-
5.
Easter allowance 2006 in the amount of EUR 340
Christmas allowance 2006 in the amount of EUR 680
vacation allowance 2006 in the amount of EUR 340
salaries for July and November 2006 in the amount of EUR 680
each, i.e. overall the amount of EUR 1,360
share of the instalment of the further payments due on 12
December 2006 in the amount of EUR 20,000
salary increase in the amount of EUR 769
uncovered costs for rent in the amount of EUR 1,500
Furthermore, the Claimant claimed compensation in the amount of EUR 165,763
allegedly corresponding to the rest value of the contract. In particular, he
claimed the following payments:
-
Player Xxx, Xxx / Club Xxx, Xxx
instalments of the further payments due on 10 April 2007, 31
May 2007, 12 December 2007, 10 April 2008 and 30 May 2008
in the amount of EUR 30,000 each, i.e. overall the amount of
EUR 150,000
Easter allowance 2007 in the amount of EUR 384
2
-
summer allowance 2007 in the amount of EUR 384
Christmas allowance 2007 in the amount of EUR 769
Easter allowance 2008 in the amount of EUR 384
salaries for the months of January 2007 until June 2008 in the
amount of EUR 769 each, i.e. overall the amount of EUR 13,842
6.
Altogether, the Claimant requested from the Respondent the payment of EUR
190,752 plus expenses allegedly incurred for flight tickets from Xxx to Xxx.
7.
In its response, the Respondent, first and foremost, stated that FIFA should not
consider the present matter, since it had already been dealt with as to the
substance by the First Grade Committee for the Resolution of Financial Disputes
of the Xxx Football Federation. In this regard, the Respondent argued that, on 29
December 2006, it had submitted a petition for execution of the termination of
the relevant contract at the above-mentioned Committee of the Xxx Football
Federation. Furthermore, the Respondent stated that, on 17 January 2007, the
said Committee of the Xxx Football Federation had passed a decision not only
with regard to the lawfulness of the termination of the relevant contract but
also with regard to its competence to deal with the matter. The decision was in
favour of the Claimant and stated in particular that the request of the
Respondent for the termination of the contract with just cause had been rejected.
8.
In this regard, the Respondent emphasised that, on 12 December 2006, it had
decided to terminate the contractual relationship with the Claimant and, thus, to
bring the affair before the First Grade Committee for the Resolution of Financial
Disputes of the Xxx Football Federation due to the Claimant’s poor performance,
his unprofessional behaviour and, in particular, his refusal to accept its, the
Respondent’s, invitation of 4 December 2006 to terminate the contract by
mutual agreement. In this respect, the Respondent affirmed that the Claimant
refused to sign a termination agreement in accordance with the private
agreement signed by and between them on 12 August 2005. This private
agreement states that “ … Xxx ... during the contract of collaboration, that is
from 17/08/2005 to 30/06/2008, has the right to breach the contract without the
football player having any financial claim for the remaining instalments of the
contract or for any other financial claim from it … “.
9.
With regard to the allegedly outstanding amounts the Respondent omitted to
express itself.
10.
In his replica, the Claimant argued that he refused to acknowledge the
jurisdiction of both the First and the Second Grade Committee for the Resolution
of Financial Disputes of the Xxx Football Federation. In this respect, the Claimant
stated that the said deciding bodies of the Xxx Football Federation did not
guarantee him impartiality and objectivity and, therefore, in the cause of justice,
he was entitled to lodge a complaint against the Respondent at FIFA.
Player Xxx, Xxx / Club Xxx, Xxx
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11.
Furthermore, the Claimant argued that the private agreement dated 12 August
2005 was not valid and, consequently, not applicable to the matter at hand. In
particular, the Claimant stressed that the said agreement provided the
Respondent with the right to unilaterally terminate the employment contract
without just cause and had been signed before the unconditioned conclusion of
the relevant employment contract.
12.
In its duplica, the Respondent provided FIFA with the decision dated 6 March
2007 passed by the Second Grade Committee for the Resolution of Financial
Disputes of the Xxx Football Federation, in absence of the player, regarding its,
the Respondent’s, appeal against the decision of the First Grade Committee for
the Resolution of Financial Disputes of the Xxx Football Federation.
13.
Finally, the Xxx Football Federation informed FIFA that the First Grade
Committee for the Resolution of Financial Disputes was equally composed of
representatives of clubs and players and, therefore, it constituted a deciding
body in line with the FIFA Regulations (cf. page 45 point 5. of the Statutes of the
Xxx Football Federation). Furthermore, the Xxx Football Federation provided
FIFA with an excerpt of its Statutes regarding the composition of the Appeals
Arbitration Division of its Supreme Court of Arbitration (Second Grade
Committee for the Resolution of Financial Disputes). In particular, the Xxx
Football Federation provided FIFA with the pages 44 and 45 of its Statutes, which
establish under point G. 1 that the Supreme Court of Arbitration comprises three
members consisting of its president and two members, i.e. each one appointed
by each party.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyze whether it was
competent to deal with the matter at stake. In this respect, it referred to art. 18
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 10 January 2007, as a consequence the Chamber concluded
that the revised Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2005, hereinafter: the Procedural
Rules) to matters pending before the decision making bodies of FIFA are
applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the Procedural
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in
the light of articles 22 to 24 of the 2005 edition of the Regulations for the Status
and Transfer of Players. In accordance with art. 24 par. 1 in combination with art.
22 b) of the aforementioned Regulations, the Dispute Resolution Chamber shall
Player Xxx, Xxx / Club Xxx, Xxx
4
adjudicate on employment-related disputes between a club and a player that
have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be the
competent body to decide on the present litigation involving a Xxx player and a
Xxx club regarding the alleged breach of an employment contract.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA to deal with the present matter due to the fact that the
latter had already been dealt with as to the substance by the First and the
Second Grade Committee for the Resolution of Financial Disputes of the Xxx
Football Federation.
5.
In this regard, the Chamber observed that the Claimant argued that the abovementioned deciding bodies of the Xxx Football Federation did not guarantee
him impartiality and objectivity, for which reason, he did not recognise their
jurisdiction to deal with the matter at hand and, in the cause of justice, he was
entitled to refer the matter to FIFA. In particular, the Chamber noted that the
Claimant had not entered an appearance before the aforementioned First Grade
Committee but had chosen to refer the matter to FIFA prior to the national body
passing its decision. Equally, he had not accepted the jurisdiction of the relevant
Second Grade Committee. In fact, the pertinent decision had been passed in
absence of the Claimant.
6.
Taking into account the above, the Chamber emphasised that in accordance with
art. 22 b) of the 2005 edition of the Regulations for the Status and Transfer of
Players it is competent to deal with a matter such as the one at hand unless an
independent arbitration tribunal, guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs, has been established
at national level within the framework of the Association and/or a collective
bargaining agreement. With regard to the standards to be imposed on an
independent arbitration tribunal guaranteeing fair proceedings, the Chamber
referred to FIFA Circular no. 1010 dated 20 December 2005.
7.
In this respect, the Chamber acknowledged that, even though according to the
documentation presented by the Xxx Football Federation it seems to appear
that the relevant national deciding bodies may formally be composed of an
equal number of player and club representatives, the Respondent was unable to
prove that, in fact, the First and the Second Grade Committee for the Resolution
of Financial Disputes of the Xxx Football Federation dealing with the present
matter had met the minimum procedural standards for independent arbitration
tribunals as laid down in art. 22 b) of the 2005 edition of the Regulations for the
Status and Transfer of Players and in FIFA Circular no. 1010.
Player Xxx, Xxx / Club Xxx, Xxx
5
8.
Furthermore, the Chamber was eager to emphasise that the employment
contract at the basis of the present dispute does not contain any arbitration
agreement in favour of national arbitration. Neither does it make explicit
reference to any collective agreement or regulations that would provide for such
an arbitration clause. Equally, the Chamber reiterated once again that the
Claimant had not entered an appearance neither before the First Grade
Committee nor the Second Grade Committee of the Xxx Football Federation. The
Claimant explicitly contested the competence of the national bodies. As a result,
and following a general legal principle of arbitration procedures, the Chamber
concluded that without valid arbitration agreement, the competence of a
specific arbitration body can per se not be established.
9.
Consequently, taking into consideration the above circumstances, the Chamber
concluded that the argument of the general legal principle of res iudicata
invoked by the Respondent cannot be applied to the matter at hand.
10.
In view of all the above, the Chamber established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be
rejected and that the Dispute Resolution Chamber is competent, on the basis of
art. 22 b) of the 2005 edition of the Regulations for the Status and Transfer of
Players, to consider the present matter as to the substance.
11.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for 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 2005 edition of Regulations for the Status and
Transfer of Players and, on the other hand, to the fact that the relevant
employment contract at the basis of the present dispute was signed on 17
August 2005 and the claim was lodged at FIFA on 10 January 2007. In view of the
aforementioned, the Chamber concluded that the 2005 edition of the
Regulations for the Status and Transfers of Players (hereinafter: the Regulations)
is applicable to the case at hand as to the substance.
12.
In continuation, and entering into the substance of the matter, the Chamber
acknowledged that, on 17 August 2005, the Claimant and the Respondent had
signed an employment contract, valid from the day of the signature until 30 June
2008. In particular, the Chamber noted that according to the relevant
employment contract the Claimant was entitled to a monthly basic salary of EUR
660, Christmas allowance in the amount of EUR 660, Easter allowance in the
amount of EUR 330, vacation allowance in the amount of EUR 330, benefits such
as air fares and accommodation as well as further payments for signing the
contract in the amount of EUR 260,000 payable in 2 instalments of EUR 25,000
and 7 instalments of EUR 30,000 each.
Player Xxx, Xxx / Club Xxx, Xxx
6
13.
In this respect, the Chamber observed that the Claimant claimed from the
Respondent allegedly outstanding remuneration in the amount of EUR 24,989
and compensation for breach of contract in the amount of EUR 165,763, i.e.
altogether the amount of EUR 190,752.
14.
In continuation, the Chamber took note that it is undisputed by the parties
involved that the said employment contract had been terminated on 29
December 2006, at the moment when the Respondent had submitted a petition
for the execution of the termination of the relevant contract at the First Grade
Committee for the Resolution of Financial Disputes of the Xxx Football
Federation.
15.
In this regard, the Chamber took due note that, on the one hand, the Claimant
argued that the Respondent had unilaterally terminated the contractual
relationship without just cause and, on the other hand, the Respondent was of
the opinion that the relevant employment contract had been terminated with
just cause, in particular, due to the Claimant’s poor performance, his
unprofessional behaviour and his refusal to accept its, the Respondent’s,
invitation of 4 December 2006 to terminate the contract by mutual agreement in
accordance with the private agreement signed by and between the contractual
parties on 12 August 2005.
16.
Consequently, and in order to decide whether the employment contract had to
be considered as unilaterally terminated by the Respondent with or without just
cause, the Chamber, first of all, went on to analyse the contents of the private
agreement, based on which the Respondent was allegedly entitled to terminate
the contract.
17.
In this respect, the Chamber acknowledged that the said private agreement
stipulates that “ … Xxx ... during the contract of collaboration, that is from
17/08/2005 to 30/06/2008, has the right to breach the contract without the
football player having any financial claim for the remaining instalments of the
contract or for any other financial claim from it … “.
18.
Therefore, the Chamber deemed that the agreement in question lacked any
objective criteria for the termination of the contractual relationship. In
particular, the Chamber emphasised that the relevant private agreement
provided only the Respondent but not the Claimant for the right to terminate
the contract at any time.
19.
Furthermore, the Chamber pointed out that according to the said agreement the
termination of the contract on the basis of non-objective criteria would also lead
to an unjustified disadvantage of the Claimant in terms of his financial rights.
Player Xxx, Xxx / Club Xxx, Xxx
7
20.
As a consequence, the Chamber, referring to its jurisprudence, stated that if such
an agreement would be accepted, this would create a disproportionate
repartition of the rights of the parties to an employment contract, to the strong
detriment of the Claimant.
21.
In the light of the above, the members of the Chamber unanimously concluded
that such a potestative clause had to be considered as invalid.
22.
Consequently, and taking into consideration the established invalidity of the
relevant private agreement, the Chamber reached the conclusion that the
Claimant had the right to refuse the invitation of the Respondent to terminate
the contract under the terms of the said private agreement.
23.
Therefore, the Chamber decided that all the reasons invoked by the Respondent
for the unilateral termination of the employment contract, in particular, the
unproven allegations of the Claimant’s poor performance and his unprofessional
behaviour and his refusal to terminate the contract by mutual agreement,
cannot be accepted as a just cause to terminate the employment contract and,
therefore, the contract must be considered as terminated by the Respondent
without just cause.
24.
In view of the above considerations, the Chamber decided that the Respondent is
liable to pay all outstanding monies due under the employment contract until
the date on which the labour relationship is considered as terminated, i.e. until
29 December 2006.
25.
In this respect, the Chamber observed that the Respondent never explicitly
argued that all the due amounts until the termination of the contract had been
accomplished. Consequently, the Chamber underlined that in this way the
Respondent renounced to its right to defense and, thus, accepted the allegations
of the Claimant with regard to the outstanding payments until the termination
of the contract.
26.
As a result, the Chamber concluded that the Claimant was entitled to receive
from the Respondent the salaries for the months of July and November 2006 in
the amount of EUR 1,320 (2 x EUR 660), the Christmas allowance 2006 in the
amount of EUR 660, the Easter allowance 2006 in the amount of EUR 330, the
vacation allowance 2006 in the amount of EUR 330, the share of the instalment
of the further payments due on 12 December 2006 in the amount of EUR 20,000,
i.e. overall outstanding remuneration in the amount of EUR 22,640.
27.
Moreover, the Chamber established that the Respondent in accordance with art.
17 par. 1 of the Regulations is also liable to pay compensation for the
termination of the contract without just cause.
Player Xxx, Xxx / Club Xxx, Xxx
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28.
In this regard, and taking into consideration the rest value of the employment
contract as well as the fact that the Claimant had been playing with the
Respondent during approximately half of the originally agreed contract period
the Chamber established that it was adequate to award the Claimant
compensation for breach of contract in the amount of EUR 100,000.
29.
Finally, with regard to the claimed expenses for flight tickets and rent the
Chamber referred to art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, in accordance
with which a party deriving a right from an alleged fact shall carry the burden of
proof. In this respect, the Chamber acknowledged that the Claimant has not
presented any documentary evidence regarding his expenses for flight tickets
and rent. As a consequence, the Chamber concluded that the Claimant was not
able to prove the existence of such expenses. In view of the aforesaid, the
Chamber decided that the Claimant is not entitled to receive any payment for
the costs allegedly incurred in connection with flight tickets and rent, although
the Respondent has not disputed the existence of such liabilities towards the
Claimant.
30.
In conclusion, the Dispute Resolution Chamber decided that the Respondent
must pay to the Claimant outstanding remuneration in the amount of EUR
22,640 and compensation for breach of contract in the amount of EUR 100,000,
i.e. the total amount of EUR 122,640, and that, therefore, the Claimant’s claim is
partially accepted. In this respect, the Chamber determined that any further
claims of the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Xxx, is partially accepted.
2.
The Respondent, Xxx, must pay the gross amount of EUR 122,640 to the
Claimant, Xxx, within 30 days as from the date of notification of this decision.
3.
In the event that the above-mentioned total amount is not paid within the
stated deadline, an interest rate of 5% per year will apply as of expiry of the
aforementioned time limit and the present matter shall be submitted to FIFA’s
Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
4.
The Claimant, Xxx, is directed to inform the Respondent, Xxx, directly and
immediately of the account number to which the remittance is to be made and
to notify the Dispute Resolution Chamber of every payment received.
5.
Any further claims of the Claimant, Xxx, are rejected.
Player Xxx, Xxx / Club Xxx, Xxx
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6.
According to art. 61 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 General Secretary
Encl.
CAS directives
Player Xxx, Xxx / Club Xxx, Xxx
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