Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 March 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
Essa M. Saleh al Housani (UAE), member
Ivan Gazidis (USA), member
on the claim presented by the player
W,
as Claimant
against the club
S,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
The player, W (hereinafter: the Claimant), born on 22 February 1982, and the
club, S (hereinafter: the Respondent), signed an employment contract on 1
March 2006, valid from the date of signature until 31 December 2006.
According to article 7 of the aforementioned employment contract, the
Claimant was entitled to receive USD 5,000 as monthly remuneration.
Furthermore, it was agreed that the Respondent would pay the Claimant the
following bonuses: USD 3,000 for a win in the Super League (Super League),
USD 1,000 for a draw in the Super League (cf. art. 4 par. 1 of the
“Supplementary Agreement” signed by the parties on 1 March 2006).
2.
Equally, the “Supplementary Agreement” stipulated that the Claimant would
receive USD 60,000 as signing fee at the latest three days after signing the
employment contract, i.e. on 4 March 2006, and USD 90,000, i.e. USD 10,000
per month, to be paid in nine monthly instalments and payable on the 15th of
each month at the latest.
3.
On 4 October 2006, the Claimant, via his legal representative, lodged a claim
with FIFA against the Respondent for an alleged breach of the employment
contract and the “Supplementary Agreement” and claimed that the Respondent
had only paid him USD 45,000 as a signing fee on 20 May 2006 and USD
15,000 in terms of salary for March, April and May 2006. Furthermore, the
Claimant alleged that the Respondent had pressured him to leave C and had
offered him, on 19 July 2006, to sign a mutual agreement, called “Agreement
for Cancelling Employment Contract” (hereinafter also referred as: the
rescission agreement), in order to put an end to the parties’ contractual
relationship, and by means of which the Claimant would have received a lump
sum of USD 40,000 in order to settle the matter.
4.
According to the rescission agreement, the parties would allegedly have agreed
to cancel the employment contract signed on 1 March 2006 as of the date of
signature (apparently 19 July 2006). The document stated that the Respondent
would pay the Claimant 50 per cent of his salary for 2006, amounting to USD
100,000, and that since USD 60,000 had already been paid to him, the
remaining USD 40,000 would be paid on the date of signature of the relevant
agreement. The rescission agreement also stated that the amount of 52,004,
representing the bonus allegedly due to the Claimant, would be paid to him
and furthermore stated the following: “The agreement becomes valid with both
two Parties signature, all the contracts and agreements signed before shall be
terminated, and neither Party would afford any responsibility or obligation
abided by formed contract or agreement. Party B (i.e. the Claimant) would not
be restricted by formal employment from then on and is free to sign the
contract with any football clubs in C or abroad”.
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5.
The Claimant denied having ever signed the rescission agreement and
consequently claimed from the Respondent the total amount of USD 100,000
corresponding to USD 65,000 for the signing fee, USD 10,000 in terms of
outstanding salaries for June and July 2006 and USD 25,000 as compensation,
consisting of the Claimant’s salary from August until December 2006.
6.
On 19 June 2007, the Respondent submitted its position in response to the
claim and informed FIFA that it considered that both parties had reached an
agreement to terminate the employment contract and that soon after having
received his outstanding monies, the Claimant had left C to join the club R.
The Respondent claimed that according to the rescission agreement the parties
had agreed that the Respondent would pay 50 per cent of the Claimant’s salary
and signing fee for 2006 in order to put an end to their overall contractual
relationship.
7.
The Respondent furthermore held that it and the C Football Association were
contacted by the player, who had asked for assistance in order to prove that he
had successfully cancelled his contract with the Respondent and in order for
him to freely move to the club R. The Respondent deemed that if no agreement
to terminate the contractual relationship between the parties (the rescission
agreement) had been reached, the C Football Association would have objected
to the Claimant’s move to the club R at the end of August 2006.
8.
The Respondent provided the following documents as evidence that the
aforementioned contracts had been cancelled by mutual agreement between
the parties:
- a receipt for USD 5,000 pertaining to the salary for March 2006,
- a receipt for USD 5,000 pertaining to the salary for April 2006,
- a receipt for USD 5,000 pertaining to the salary for May 2006,
- a receipt for USD 46,433, consisting of USD 10,000 pertaining to the
salaries for June and July 2006, USD 30,000 as a signing fee and an
additional USD 6,433 as a match bonus,
- a receipt for USD 45,000 as a signing fee, signed by the player on 23 May
2006 and partially covering the first signing fee due by 4 March 2006.
9.
In a letter dated 17 April 2008, the Claimant responded that he deemed the
“Agreement for Cancelling Employment Contract”, i.e. the rescission
agreement, to be void as he had never signed it. Furthermore, the Claimant
recognised that the Respondent had paid him a total amount of USD 100,000
and that, as he had joined his new club on 29 August 2006, he considered that
the Respondent should have respected the financial terms of their contractual
relationship until that date.
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10. Consequently, the Claimant amended his claim and requested that the
Respondent be ordered to pay him the total amount of USD 50,000 based on
the terms of the employment contract and the supplementary agreement
signed by the parties on 1 March 2006. The Claimant explained that the
aforementioned figure can be calculated in the following manner: USD 30,000
consisting of six monthly salary payments from March to August 2006, plus
USD 60,000 for the first signing fee, plus USD 60,000 consisting of six times
the USD 10,000 signing fee instalments, minus USD 100,000 already paid by
the Respondent to the Claimant.
11. In its letter dated 8 October 2008, the Respondent reiterated its previous
position and, in particular, deemed the rescission agreement to be fully valid
and binding.
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 4 October 2006. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005; hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber [edition 2008] and 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 and 2 in
connection with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber (DRC) shall adjudicate
on employment related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a player and a club regarding an
employment related dispute between the parties.
4.
Subsequently, the members of the Chamber analysed which edition of the
regulations 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 relevant contract at the basis of the present
dispute was signed on 1 March 2006 and that the claim was lodged with FIFA
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on 4 October 2006. In view of the foregoing, the Chamber concluded that the
previous version of the regulations, the FIFA Regulations for the Status and
Transfer of Players (edition 2005, hereinafter: the Regulations), is applicable to
the case at hand as to the substance.
5.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the matter
and started by acknowledging the above-mentioned facts as well as the
documentation contained in the file. In particular, the Chamber took note that
the Claimant and the Respondent signed an employment contract as well as a
supplementary agreement, on 1 March 2006 valid from the date of signature
until 31 December 2006, i.e. for a period of 10 months.
6.
In continuation and as a preliminary remark, the members of the Chamber
agreed that both parties seemed to concur with the amount that had been paid
by the Respondent to the Claimant. In particular, the Chamber observed that
the Respondent had, in its first submission, provided written evidence
demonstrating that the total amount of USD 106,433 had been paid to the
Claimant as follows: USD 45,000 partially covering the first signing fee, USD
25,000 in terms of salary for March, April, May, June and July 2006, USD
30,000 as signing fee and an additional USD 6,433 for match bonus. Equally,
the Chamber noted that the Claimant had recognized, in his final submission,
having received from the Respondent the amount of USD 100,000.
7.
The foregoing being established, the Chamber went on to consider the
arguments raised by the parties and noted that the core disagreement between
the parties resided in the question as to whether the so-called “Agreement for
Cancelling Employment Contract”, also referred to as the rescission agreement,
had any validity at all. In this respect, the Chamber noted that while the
Respondent considered it to be a valid agreement, the Claimant had argued the
opposite since he had denied ever having signed such agreement.
8.
In this context, the members of the Chamber were keen to recall that in order
for an agreement to be legally binding, it does not only have to be accepted by
the drafting party but also by the other party or parties, usually by means of
signing the relevant document. Applying this principle to the present case, the
DRC turned its attention to the copy of the rescission agreement on file and
noted that while the said agreement had been duly signed and stamped by the
Respondent, it had not been signed by the Claimant. Furthermore, the
Chamber was eager to emphasise that the Respondent had never been able to
provide any evidence whatsoever proving that the Claimant had indeed
accepted such agreement, let alone signed it.
9.
In this regard, the Chamber was of the opinion that the evidence of payment
provided by the Respondent on 19 June 2007 did not constitute prima facie
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evidence that the parties had agreed to terminate their contractual relationship
as the payment slips only represented successive payments of salary and
signing fee provided for under the terms of the relevant contracts concluded
between the parties and did not make any reference to the rescission
agreement. In other words, the rescission agreement was a document that had
solely and unilaterally been accepted by the Respondent and which had not
been accepted by the Claimant. Consequently, the Chamber found no basis to
conclude that the rescission agreement had any legal and binding effect on the
parties.
10. With those considerations in mind, the members of the Chamber turned their
attention to the question whether the employment contract had been breached
without just cause by the Respondent. In this respect, the Chamber noted that
by the end of July 2006, i.e. just after the rescission agreement had allegedly
been proposed to the Claimant and right after the latter left the Respondent,
the total amount of USD 125,000 should have been paid to the Claimant,
according to the contractual stipulations, in the following manner: USD 60,000
as signing fee payable on 4 March 2006, USD 25,000 representing five monthly
salaries from March until July as well as USD 40,000 representing the other
four first signing fee installments.
11. In this context, the Chamber took into account that the Respondent had only
acknowledged having paid the Claimant USD 100,000 (plus USD 6,433 as
match bonus) until that date, i.e. USD 25,000 less than what it was supposed
to under the contract. Consequently, and since the outstanding amount in
relation to the Claimant’s monthly remuneration was considerable as well as in
view of the circumstances surrounding the rescission agreement, the Chamber
was satisfied that the Respondent had failed to fulfill its contractual obligations
towards the Claimant and that it had therefore breached the relevant contracts
concluded between the parties without just cause.
12. This being established, the Dispute Resolution Chamber went on to focus on
the financial consequences of the breach of contract for the Respondent. In
this respect, the Chamber noted that the Claimant had, in his second
submission, asked from the Respondent the total amount of USD 50,000 for
the breach of contract. In this context, the Chamber first of all held that the
Claimant is entitled to receive the amount of USD 25,000 pertaining to
outstanding salaries as well as the signing fee as provided for under the
relevant contracts from the Respondent.
13. Furthermore, and with regard to the amount of compensation requested by the
Claimant for breach of contract, the Chamber referred to art. 17 of the
Regulations and recalled that the said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
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14. In this context, and taking into account that the player is entitled to the
amount of USD 25,000 pertaining to outstanding salaries and the signing fee,
the Dispute Resolution Chamber inferred that the Claimant is actually claiming
USD 25,000 as compensation for the breach of contract by the Respondent. In
this regard, the Chamber was eager to emphasise that the total remaining
value of the contracts amounted to a total of USD 50,000.
15. This being established, the members of the Chamber emphasised that, based
on the non-exhaustive criteria contained in art. 17 of the Regulations, any
party claiming compensation for breach of contract has a responsibility to
mitigate the loss that it may have suffered as a result of a breach. In this
respect, the Chamber took note of the fact that on 14 August 2006, the
Claimant had concluded an employment contract with the club R, providing for
a monthly salary of EUR 5,500 and therewith enabling him to reduce his loss of
income.
16. On account of the aforementioned circumstances, and, in particular, with
regard to the fact that the remuneration under the contract with R was
significantly lower than what the Claimant would have been entitled to under
the terms of the contracts he had concluded with the Respondent, the Chamber
concluded that the Claimant should receive the full amount of compensation
claimed for breach of contract.
17. In view of all of the above, the members of the Chamber concluded that,
bearing in mind art. 17 par. 1 of the Regulations, as well as the circumstances
of the case, the claim of the Claimant should be accepted in its entirety and
that, consequently, the Respondent has to pay to the Claimant the total
amount of USD 50,000, consisting of USD 25,000 pertaining to outstanding
salaries and the signing fee as provided for under the terms of the relevant
contracts and of USD 25,000, pertaining to compensation for breach of
contract without just cause by the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, W, is accepted.
2.
The Respondent, S, has to pay to the Claimant, W, the amount of USD 50,000
within 30 days as from the date of notification of this decision.
3.
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
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the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee so that the necessary disciplinary sanctions may be imposed.
4.
The Claimant, W, is directed to inform the Respondent, S, 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 article 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
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Encl. CAS directives
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