Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Mick Mc Guire (England), member
Mario Gallavotti (Italy), member
Reinhard Rauball (Germany), member
on the claim presented by the player
I,
as Claimant
against the club
M,
as Respondent
regarding a contractual dispute
between the parties
I.
Facts of the case
1.
In February 2008, the player, I, (hereinafter: the Claimant), and the U club, M,
(hereinafter: the Respondent), allegedly signed an employment contract
stipulating a fixed term of three years as well as the possibility to extend the
contract for an additional term of two years after completion of the first three
years. In this respect, the Claimant provided FIFA only with the pages no. 2 and 3
of the contract, i.e. the two last pages of the submitted contract, since the first
page was apparently stolen. These pages indicated the respective obligations of
the parties to the contract. The last page was signed by both parties without,
however, any indication of the date of signature.
2.
The employment contract stipulated the following as to the salary (part II): “For
honest discharge of the duties, for high level of sport scores, for professional and
sport mastery, for individual contribution on attainment by “M” victorious sports
results, The Club makes payment to Football Player in the amount of 25,000 USD
monthly for the first year, 30,000 USD monthly for the second year, 35 000 USD
monthly for the third year.”
3.
On 24 September 2008, the Claimant, via his legal representative, lodged a claim
against the Respondent claiming that the Respondent had stopped paying his
salary since the month of June 2008 included. This is, the Claimant claimed
outstanding salaries as of the month of June 2008. Nevertheless, the Claimant did
not provide FIFA with any proof that he put the Respondent in default of
payment. Therefore, the Claimant asked FIFA for the termination of the contract
apparently concluded with the Respondent in February 2008, in order to continue
his football career, and for a financial compensation.
4.
On 22 October 2008, upon request of FIFA, the Claimant specified his financial
claim and added that he left the city of D in August 2008, when the Respondent
informed him that it did not count on him anymore. He also held that only the
first five monthly salaries were paid and confirmed that he did not receive any
salary for the months of June until August 2008. Therefore, the Claimant claimed
the whole residual value of the employment contract, i.e. USD 1,005,000 divided
as follows:
• First year of the employment contract, i.e. from June 2008 until February
2009 (9 months): USD 225,000
• Second year (12 months): USD 360,000
• Third year (12 months): USD 420,000
5.
Despite being invited twice to do so, on 27 October and 1 December 2008, the
Respondent did not submit any position to FIFA. The Respondent was informed
that the Dispute Resolution Chamber would base its decision solely on the
statements and documents contained in the claim if the Respondent would not
comply with the invitation to submit its comments.
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6.
On 10 December 2008, FIFA informed the parties that they should consider their
labour relationship as terminated, since the Respondent had not submitted any
position and was apparently not interested in the Claimant’s services anymore.
7.
On 1 and 22 December 2008, FIFA contacted the Football Federation of U in order
to receive a complete version of the employment contract signed by the parties
involved, which was supposed to be registered at the said Federation. However,
the Football Federation of U did not react.
8.
On 9 January 2009, the Claimant informed FIFA that he did not sign any other
employment contract with another club, since he was still bound to the
Respondent. Therefore, he maintained his wish to be released from the said
employment contract.
9.
On 19 January 2009, the Respondent contacted FIFA and invoked “existing
objective causes” in order to justify its absence of statement up to this date.
Furthermore, the Respondent provided FIFA with a complete version of the
employment contract signed between the parties on 28 February 2008, which
gives reason to the following remarks:
• the two pages of the alleged employment contract remitted by the
Claimant along with his complaint do not appear in the contract
submitted by the Respondent,
• art. 4 of the contract, which concerns the remuneration, stipulates that
the Claimant is paid the wages, which consist in an official salary in
accordance with “the manning table of the football team in U currency”,
without stipulating any amount,
• art. 6.1 confirms the duration of the contract alleged by the Claimant in
his claim and
• art. 6.4 entitles the Claimant to terminate the contract in case the
Respondent does not fulfil its contractual obligations.
10.
Furthermore, the Respondent limited itself to reject the Claimant’s claim without
entering into the substance, in particular, the Respondent did not allege to have
paid the outstanding salaries due to the Claimant for the months of June until
August 2008 and did not contest the amount of salary invoked by the Claimant.
The Respondent added that it complained about the Claimant’s behaviour during
the season and that the latter “wilfully left the disposal of “M””. According to the
Respondent’s statement, the Football Federation of U was aware of these facts.
Nevertheless, the Respondent did not provide FIFA neither with a proof of the
alleged misbehaviour of the Claimant, nor with a written warning addressed to
the Claimant, nor with the proof that it informed its Federation. Finally, the
Respondent stated that it would shortly submit to FIFA and the Claimant its
detailed position.
11.
On 21 January 2009, FIFA informed the parties that the investigation in the
present matter had been closed and that the Dispute Resolution Chamber would
decide whether or not it would take into account the Respondent’s submission,
which was sent more than one month after the second and final deadline granted.
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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, 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 24 September 2008, 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 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 S player and an U 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 2008) and,
on the other hand, to the fact that the present claim was lodged on 24 September
2008 and that the relevant employment contract was signed in February 2008. In
view of the aforementioned, the Dispute Resolution Chamber concluded that the
current version of the regulations (edition 2008; 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. In doing so,
the members of the Chamber started by examining the two documents, submitted
by the Claimant, and, later, by the Respondent, corresponding to the alleged
employment contracts. In this respect, the members of the Chamber
acknowledged that both versions were duly signed by all the parties and
contained the official stamp of the Respondent.
5.
However, the members of the Chamber noted that only the employment contract
presented by the Claimant, even though incomplete, provided for a precise
amount of salary to be paid to the Claimant. Indeed, the employment contract
submitted by the Respondent only referred to “the manning table of the football
team in U currency” without stipulating any amount.
6.
Moreover, the members of the Chamber pointed out that the Respondent did not
contest, in its submission, the amounts of salary invoked by the Claimant and
indicated in the employment contract provided with by the latter.
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7.
In view of the foregoing, the members of the Chamber considered that the
employment contract presented by the Claimant was the relevant document to be
taken into consideration in order to determine the amount of salary to be paid to
the Claimant in virtue of the labour relationship between the parties.
8.
Therefore, the Dispute Resolution Chamber held that the Respondent had to pay
to the Claimant a monthly salary of USD 25,000 for the first year of the agreed
duration of the contract, a monthly salary of USD 30,000 for the second year and a
monthly salary of USD 35,000 for the third year.
9.
With respect to the Claimant’s allegations, according to which he had not received
the remuneration due to him for the period lasting from June until August 2008,
amounting to USD 75,000, the Dispute Resolution Chamber acknowledged that
the Respondent, in its submission, did not contest it and thus did not allege having
paid any remuneration during this period. In this regard, the members of the
Chamber noted that the Respondent claimed that the Claimant misbehaved
during the terms of the contract and “willfully left the disposal of “M.”” However,
the members of the Chamber deemed it appropriate to recall 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 did not submit
any documentary evidence in support of these allegations or in support of the fact
that the Claimant would have left the Respondent unauthorized at any time
before August 2008. Therefore, the members of the Chamber had no alternative
but to conclude that the Respondent accepted the Claimant’s allegations, or, at
least, failed to submit the proof of the contrary in this respect.
10.
As a consequence, the Dispute Resolution Chamber held that, in accordance with
the basic legal principle of pacta sunt servanda, the Respondent must fulfill its
obligations as per the employment contract entered into with the Claimant and,
consequently, pay the outstanding remuneration which is due to the latter.
11.
As to the amount of outstanding salaries due to the Claimant, the members of the
Dispute Resolution Chamber determined that the Claimant was to receive the
uncontested amount of USD 75,000 for the months of June until August 2008,
since the Claimant offered his services to the Respondent until the end of August
2008.
12.
In continuation, the Dispute Resolution Chamber considered that, by failing to pay
the Claimant’s salaries due for the months of June until August 2008, the
Respondent had breached the relevant employment agreement without just
cause. For the sake of completeness in this respect, the members of the Chamber
were eager to emphasize that art. 6 par. 4 of the employment contract presented
by the Respondent entitled the Claimant to terminate the said agreement with
just cause, in case the Respondent did not fulfill its contractual obligations. On
account of the foregoing, the members of the Chamber also held that the
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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.
13.
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.
14.
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.
15.
In this respect, the Dispute Resolution Chamber took due note of the fact that the
Claimant claimed the remaining value of the contract as compensation for the
breach of the said agreement, amounting to USD 930,000. In this regard, the
members of the Chamber acknowledged that the Claimant had been rendering his
services to the Respondent for approximately seven months – from February until
August 2008 –, and that the relevant employment contract still had approximately
two years and five 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
had not signed any new employment contract with another club.
16.
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 to mitigate the damages, the Dispute
Resolution Chamber decided that not the entire remaining contract value, but the
amount of USD 500,000 was to be considered reasonable and justified as
compensation for breach of contract.
17.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on
the present dispute by deciding that the Respondent has to pay the total amount
of USD 575,000 to the Claimant, consisting of USD 75,000 concerning outstanding
salaries and of USD 500,000 as compensation for breach of contract.
18.
Finally, and for the sake of good order, the Chamber emphasised that the
contractual relationship between the parties to the present dispute had come to
an end.
***
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III.
1.
2.
3.
4.
5.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, I, is partially accepted.
The Respondent, M, has to pay to the Claimant, I, the amount of USD 575,000
within 30 days as from the date of notification of this decision.
Any further claims lodged by the Claimant, I, are rejected.
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
so that the necessary disciplinary sanctions may be imposed.
The Claimant, I, is directed to inform the Respondent, M, 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:
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
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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