Solidarity Contribution
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,
D,
as Claimant
against the club,
G,
as Respondent
regarding an employment-related contractual dispute
between the player and the club.
I.
Facts of the case
1.
On 17 August 2006, the French player, D (hereinafter; the player), and the
club G (hereinafter; the club) entered into an employment contract valid
as from 17 March 2006 until 30 June 2007.
2.
According to article 3 of the employment contract, the player was entitled
to receive EUR 1’700 at the end of each month. Apart from the monthly
regular income, the club was obliged by law to pay to the player the
Christmas bonuses (an amount equal to the regular monthly income) and
the Easter bonus and holiday income (each on the amount equal to half
of the monthly income).
3.
On 30 January 2007, the player and the club concluded an additional
private agreement, which was not ratified by the Y Football League.
4.
According to article 1 of the private agreement, the player agrees to play
for the club for a period of 3.5 years until 30 June 2010.
5.
According to article 2 of the private agreement, the club is obliged to pay
to the player the following amounts:
For the first six months as a monthly (6x) salary EUR 3’000 net plus
EUR 10’000 if he plays eight games from 5 January 2007 until the
end of the season (30 June 2007);
From 1 July 2007 until 30 June 2008, as a monthly (12x) salary EUR
3’500 and if he plays more than fifteen games he will take an extra
bonus of EUR 10’000 if the team plays at the second division, or EUR
20’000 if the team plays in the first division. The player will receive
the monthly wage of EUR 640 net, regardless of whether the team
plays at first or second division;
From 1 July 2008 until 30 June 2009, as a monthly (12x) salary EUR
4’000 and if he plays more than fifteen games he will take an extra
bonus of EUR 10’000 if the team plays at second division, or EUR
20’000 if the team plays in the first division. The player will receive
the monthly wage of EUR 640 net, regardless of whether the team
plays at first or second division;
From 1 July 2009 until 30 June 2010, as a monthly (12x) salary EUR
5’000 and if he plays more than fifteen games he will take an extra
bonus of EUR 20’000, if the team plays at the first division.
If the team plays in the second division, the player is available for
free transfer.
The player will receive the monthly wage of EUR 640 net.
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6.
According to article 3 of the private agreement, the club is obliged to
provide to the player a furnished apartment with two rooms.
7.
According to article 4 of the private agreement, the player will receive an
extra bonus of EUR 5’000 for the season 2006/2007 or 2007/2008 or
2008/2009 if the team stays at first division or if the team is promoted to
the first division.
8.
Furthermore, according to article 5 of the private agreement, the club
must provide the player with two plane tickets per year.
9.
On 22 August 2007, the player lodged a claim against the club in front of
FIFA and claimed for the net amount of EUR 193’182.38.
10.
The claimed amount of EUR 193’182.38 is composed of outstanding
payments and financial compensation as listed below.
11.
The outstanding payments amount to a total of EUR 19’802.38 for
outstanding salary payments of the months May 2007, June 2007 and July
2007 (EUR 2’370, EUR 3’000, EUR 3’500) a bonus in the amount of EUR
10’000 plus travel expenses in the amount of EUR 932.38;
The financial compensation is composed of the following amounts:
2007/2008: 11 monthly salary payments of EUR 3’500 each for the
months from August 2007 to June 2008, in the total amount of EUR
38’500;
2007/2008: Wages according to the national collective bargaining
agreement of 12 x EUR 640, a Christmas bonus of EUR 640, an
Easter bonus of EUR 320, summer allowance of EUR 320, amounting
up to a total of EUR 8’960;
2008/2009: 12 monthly salary payments of EUR 4’000 each in the
total amount of EUR 48’000.
2008/2009: Wages according to the national collective bargaining
agreement of 12 x EUR 640, a Christmas bonus of EUR 640, an
Easter bonus of EUR 320, summer allowance of EUR 320, amounting
up to a total of EUR 8’960.
2009/2010: 12 monthly salary payments of EUR 5’000 each in the
total amount of EUR 60’000.
2009/2010: Wages according to the national collective bargaining
agreement of 12 x EUR 640, a Christmas bonus of EUR 640, an
Easter bonus of EUR 320, summer allowance of EUR 320, amounting
up to a total of EUR 8’960.
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12.
The player states that on 13 July 2007, he was orally informed by the club
that he was not welcome to follow the team to the training camp. After
consulting the X Professional Football Players Association (P.S.A.P.), he
decided to show up at the meeting point where the team was going to
gather and leave for the training camp. He was allowed to join the team
by an assistant. Later, the head coach of the club informed him orally that
he was not welcome to the training camp and that he would not be
allowed to train without any official statement from the club.
13.
On 17 July 2007, the player sent a request to the club in order to clarify
the situation, as he was excluded from the training.
14.
As a reply, the club sent an “extra judicial invitation for justification” to
the player in order to justify himself at a club’s hearing taking place on 19
July 2007, 20:00. He was accused of inappropriate behaviour towards the
coach and towards the technical team.
15.
It is not clear if the player participated in the hearing. The player
mentions having sent a written justification to the club on 18 July 2007.
He furthermore mentions having been ordered to leave the training camp
on 19 July 2007 in order to return to the club’s town.
16.
On 20 July 2007, the player reminded the club to pay outstanding
amounts (not specified) until 27 July 2007. Instead of paying him the
amount, the club sent the minutes of the hearing dated 19 July 2007,
according to which the player was imposed a penalty of a two month
interruption of the contract and a fine in the amount of EUR 10’000 for
“severe misconduct and disobeying orders”. The player was once more
invited to justify himself on 26 July 2007.
17.
With regard to the fine of EUR 10’000, the player claims that it does not
comply with article 24, number 3 of the V Regulations (provided in copy),
according to which a player can only be fined at 10% of the regular
monthly salary, and, if requested and approved by the Financial Dispute
Resolution Committee, in any case not higher than 30%.
18.
As the private agreement had never been ratified by the Hellenic Football
Federation, the player considered such agreement to be invalid, and
consequently, considered himself free to sign with any club since 30 June
2007.
19.
On 20 September 2007, the player concluded a new employment contract
with a S club. The duration of the employment contract is from 22 August
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2007 until the end of the season. The player was entitled to receive a total
amount of EUR 20’000 per year.
20.
The club was invited to submit its position to the claim of the player, but
FIFA did not get any reaction of the club.
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 22 August 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. 18 paras. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of
the Procedural Rules and confirmed that in accordance with art. 24 para. 1
in combination with art. 22 lit. b of the 2005 edition of the Regulations on
the Status and Transfer of Players 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
French player and a G 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 paras. 1 and 2 of the Regulations on the
Status and Transfer of Players, and considering that the present claim was
lodged on 22 August 2007, the previous version of the regulations
(edition 2005; hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
4.
In continuation, and entering into the substance of the present matter,
the members of the Chamber started by acknowledging the established
facts of the case and the arguments of the parties as well as the
documentation contained in the file. In this respect, in view of the
circumstances of the present case, the Chamber deemed that the
following two issues had to be addressed:
I. Which contractual agreements were concluded between the
parties involved?
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II. Was the contractual relationship between the player and the
club breached by any of the parties? If so, which party is
responsible for such breach of contract?
III. What are the consequences in the event of a breach of
contract?
5.
With regard to the first issue, the members of the Chamber duly
acknowledged that the player and the club had signed an employment
contract on 17 August 2006 valid from 17 March 2006 until 30 June 2007.
In accordance with the employment contract, the player was inter alia
entitled to a monthly salary of EUR 1’700 and bonuses.
6.
Moreover, the Chamber took note of the private agreement dated 30
January 2007, which constituted a prolongation of the contractual term
until 30 June 2010. Thereby, the financial conditions were rearranged as
follows: EUR 3000 from the end of January 2007 until the end of June
2007, and for the subsequent years, rates of EUR 3’500, EUR 4’000 and
EUR 5’000.
7.
The existence of these agreements is undisputed.
8.
With regard to the second question if the contractual relationship
between the parties was breached or not, the Chamber took note of the
player’s allegations regarding the non-payment of the salary of May 2007,
June 2007 and July 2007 for the total amount of EUR 8’870 as well as
alleged outstanding bonus payments in the amount of EUR 10’000 for
eight played games between 5 January 2007 and 30 June 2007 as well as
alleged travel expenses in the amount of EUR 923.38.
9.
The Chamber also took note of the player’s allegation that following the
days of 13 July 2007, the club refused the player’s services with regard to a
training camp and orally informed him that he was not welcome. The club
allegedly also ignored the player’s request for a clarification. Even though
offering his services repeatedly, the player was allegedly not allowed to
join the team in the training camp. In addition, the club set up a hearing
concerning the player’s alleged “severe misconduct and disobeying
orders” and fined him with a two month interruption of the contract and
EUR 10’000. The player claims that such fine does not comply with art. 24,
number 3 of the V Regulations, according to which a player can only be
fined between normally 10% and depending on an approval by the
Financial Dispute Resolution Committee 30% of his regular monthly salary
at a maximum.
10.
Turning its attention to the club, the members of the Chamber took note
of the fact that the club never provided FIFA with its position in the
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present proceeding, despite having been asked by FIFA to do so on several
occasions.
11.
Consequently, the club renounced to its right of defence.
12.
In continuation, the Chamber then stated that as a general principle of
procedure before the Dispute Resolution Chamber, if a Respondent does
not reply to the claim of the Claimant, the case shall be decided by the
Chamber only on the basis of the facts and documentary evidences
provided by the Claimant.
13.
On account of the above, the deciding body stated that due to the
Respondent’s failure to reply to the claim of the Claimant, it has to pass a
decision only on the facts and evidences provided by the Claimant.
14.
Taking in account all of the above, the Chamber concluded that the club
did not comply with its obligations to pay the player three subsequent
salaries, bonuses and travel expenses.
15.
Furthermore, and taking into consideration the well-established
jurisprudence of the Dispute Resolution Chamber in regard of repeated
non-payment of salary leading to a breach of contract by the party in
default, as well as the club’s renouncement to its right of defence, the
members of the Chamber concluded that the club breached the
employment relationship by non-compliance with its contractual
obligations.
16.
Consequently, and with regard to the third question, the Chamber took
into consideration art. 17 par. 1 of the Regulations and the constant
jurisprudence of the Dispute Resolution Chamber, and decided that the
player is entitled to receive from the club an amount of money as
compensation for breach of contract in addition to any outstanding
payments on the basis of the relevant employment contract.
17.
The Chamber then turned to the player’s financial claim which includes
the monthly payments of May 2007, June 2007 and July 2007 in the total
amount of USD 8’870, undisputed outstanding bonus payments in the
amount of EUR 10’000 for eight played games between 5 January 2007
and 30 June 2007 as well as undisputed travel expenses in the amount of
EUR 923.38, i.e. outstanding payments in the total amount of EUR
19’802.38.
18.
As far as the compensation payable by the club to the player for
unjustified breach of contract is concerned, the Dispute Resolution
Chamber firstly recalled that according to art. 17 par. 1 of the Regulations,
contractual breaches, whether inside or outside the protected period, give
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rise to payment of compensation. According to the quoted provision, the
compensation amount shall be calculated, in particular, 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 player under the existing contract and/or
the new contract, the time remaining on the existing contract up to a
maximum of five years.
19.
For the calculation of the amount of compensation due by the club, the
members of the Chamber turned their attention to the remaining
remuneration due to the player under the existing contractual
relationship, which criteria was considered by the Chamber to be
essential.
20.
In view thereof, the Chamber took into consideration that the contractual
relationship had been breached by the club by the end of July 2007 due to
non-payment of salary, and, therefore, calculated the remaining value
according to the employment contract. The Chamber concluded that the
remuneration value for the year 2007/2008 i.e. from beginning of August
2007 until end of June 2008 is EUR 38’500 for 11 months, for the year
2008/2009 i.e. from beginning of July 2008 until end of June 2009 the
remuneration is EUR 48’000 for 12 months and for the year 2009/2010 i.e.
from beginning of July 2009 until end of June 2010 the remuneration is
EUR 60’000 for 12 months. Consequently, the total remuneration until the
end of the contract amounts up to the amount of EUR 146’500.
21.
Finally, taking into consideration the new employment contract concluded
by the player with a Spanish club, valid from 22 August 2007 for one
season and for a total remuneration of EUR 20’000, but without any
indication if such contract has been prolonged or if a new employment
contract was concluded thereafter, and furthermore taking into account
all the undisputed but unilateral facts of the case, the Chamber deemed it
fit to reduce the amount of the compensation. It decided to award the
player a lump sum payment of EUR 100’000 as compensation.
22.
In conclusion, the Dispute Resolution Chamber decided that the
Respondent must pay to the Claimant outstanding remuneration in the
amount of EUR 19’802.38 and compensation for breach of contract in the
amount of EUR 100’000, i.e. the total amount of EUR 119’802.38 and that,
therefore, the player’s claim is partially accepted. In this respect, the
Chamber determined that any further claims of the player are rejected.
III.
Decision of the Dispute Resolution Chamber
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1.
The claim of the Claimant, the player D, is partially accepted.
2.
The Respondent, Club G, has to pay the Claimant the amount of EUR
119’802.38 within 30 days as from the date of notification of this
decision.
3.
Any further request of the Claimant is rejected.
4.
If the aforementioned amount is not paid by the Respondent 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 for its consideration and
decision.
5.
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.
*****
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
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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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