Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 April 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Jean-Marie Philips (Belgium), member
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
Michele Colucci (Italy), member
on the claim presented by
the player, X,
as Claimant
against
the club, Y
as Respondent and Counter-Claimant
regarding a contractual dispute between the player and the club,
Facts of the case
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On 1 July 2003 the player, X, and the club, Y, signed an employment contract valid
for the 2003-04 season, expiring on 31st of May “of the last year of employment”,
and with the option for Y to renew the contract for the 2004-05 season.
According to the contract, the player was entitled to receive, inter alia, a basic salary
totalling CYP 40,000 net for the 2003-04 season payable as follows: CYP 5,000 upon
signing the employment contract and monthly instalments of CYP 3,636 from 1 July
until 31 May of each year.
The monthly instalments are payable at the end of the month.
In addition, articles 4 to 9 of the contract specify the conditions under which the
player shall be entitled to bonuses.
None of the articles 4 to 9 indicates any date on which payment of bonuses falls
due.
Articles 8 and 9 refer to internal club regulations.
The contract does not contain any clause regarding jurisdiction in the event of
dispute resolution.
Articles 2 and 20 of the employment contract refer to the duty of the player to
comply with the internal regulations of the club.
In addition, article 14 of the employment contract stipulates that “…, the football
player shall not make any statement which may defame the club and/or the coach
and/or the trainer and/or members of the administration of the club … and/or
football players or members of the club”.
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The player turned to FIFA maintaining that on 9 January 2004 the club unilaterally
terminated the employment contract without just cause.
A copy of the relevant letter of termination dated 9 January 2004 has been
presented by the player.
According to this letter, the contract was terminated by the club’s board with
immediate effect, as the player personally summoned a press conference on 9
January 2004 informing the press of his cooperation with Y in breach of the terms of
his employment contract, the internal regulations of the club and written instructions
of the board.
In addition to the termination of the contract, the player was sanctioned with a fine
equalling the bonuses that he would have been entitled to on the basis of the club’s
internal regulations and the player’s employment contract.
X protested against the termination of the employment contract via his legal adviser
by letter dated 12 January 2004, a copy of which has been presented by the player.
According to the player, at the time of the said termination the club owed him the
amount of CYP 21,768 relating to outstanding salaries and bonuses.
The following detailed breakdown of this amount has been presented by the player:
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CYP
820
1. Balance from July 2003 down payment
2. Balance Sept. salary + salaries for Oct, Nov and Dec. 03 + 9 days
Jan. 2004
12,288
3. Participation bonuses championship & cup games
3,600
4. Bonuses relating to results
3,160
5. Bonus “contractually agreed” in relation with European game
against Derry City
1,000
6. Expenses incurred and allegedly paid by player payable by club cf.
employment contract
900
21,768
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As regards item 6, no further details or pertinent documents have been presented
by the player.
In addition to the aforementioned amounts, the player claims payment of his
monthly salaries from the date of termination of the contract by the club until the
end of the period of employment on 31 May 2004, i.e. the amount of CYP 18,180.
Furthermore, X claims payment of a reasonable amount of money to cover his legal
fees and other expenses.
The club, for its part, asserts that it terminated the employment contract with just
cause.
That is, according to Y, the player has acted in breach of articles 10, 11, and 13 of
the internal regulations by summoning a press conference at which he exposed his
relationship with the club and its members as well as internal club matters relating
to financial, economic and policy issues. According to the club, at the said
conference, the player accused the club of “owing monies to everybody and to
himself”, “members of the club’s committee cheating on him”, “his bad relationship
with the coach”.
Furthermore, Y maintains that the player proceeded with the press conference after
a meeting with the player on 8 January 2004, at which the club proposed to X to pay
the outstanding salaries at once by cheque. The player allegedly also asked for
payment of his bonuses, however, according to the club these are payable by the
end of March only cf. the club’s internal regulations.
The player rejected the club’s offer.
A copy of the said internal regulations (in Greek with a translation by the club of
pertinent articles), of the player’s invitation to the press conference as well as of
press articles have been presented by the club.
The club points out that the player signed and accepted the internal regulations of
the club via the team captains and it has submitted documents in this regard.
Y maintains that the triggering element in this dispute solely is the player’s conduct
in breach of his contractual obligations, which induced the club to terminate the
contract.
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Y, referring to the breakdown of the player’s financial claim, acknowledges that it
owes the following monies to the player:
CYP
1. Balance from July 2003 down payment
818
2. Balance salary Sep. + salaries for Oct., Nov. and Dec. 2003
11,230
3. Participation bonuses championship & cup games*
900
4. Bonuses relating to results
3,160
5. Bonus “contractually agreed” in relation with European game
0
against Derry City**
6. Expenses incurred and allegedly paid by player payable by club cf.
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employment contract**
Minus fine imposed on the player cf. letter of termination
3,160 -/Total amount due to the player
12,948
* the club only acknowledges CYP 900 out of CYP 3,600 claimed by the player,
maintaining that the player is entitled to CYP 300 per European game (cf. article 7 of the
employment contract). According to the club, X has participated in 3 European games.
** these amounts are unknown to the club and it denies any contractual obligation in
this regard.
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Y has submitted a counter-claim against the player in accordance with which the
club maintains having suffered damages and incurred costs for the hiring of another
player to the amount of CYP 30,439.
According to the club, this amount consists of CYP 24,090 representing the
difference in salary between X and the newly hired player as well as travel expenses
incurred in connection with the new player.
The club has submitted documents to this effect.
In reply to the club’s response, the player denies that the club proposed to pay his
dues at once. Instead, the club allegedly offered him post-dated cheques relating to
outstanding salaries, payable months later, which offer was rejected.
The player confirms having organised a press conference exercising his
constitutional and legal right to speak out in his defence, as the club, via the press,
had allegedly made false allegations about the player.
In addition, X contests the legality of the fine imposed on him on the occasion of the
termination of the employment contract by the club.
Finally, X stresses that the only issue in the case at hand is the non-payment of his
dues, which is not being denied by the club. He categorically denies having infringed
upon any regulations.
In response to the club’s counter-claim, the player refutes the financial claim put
forward by the club, pointing out that such claim was solely made in order to avoid
having to pay what is legally owed to the player.
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According to the player, the club cannot claim any monies for his substitution, which
resulted from the unilateral breach of contract by the club without just cause.
Considerations of the Dispute Resolution Chamber
The members of the Chamber firstly proceeded to confirm that in accordance with Article
42 of the FIFA Regulations for the Status and Transfer of Players the Chamber is
competent to deal with the present matter.
The Chamber noted that Y imposed a fine on the player and proceeded with the
termination of the employment contract on the basis of the fact that the player
organised a press conference at which he exposed his employment relationship with Y to
the press in a negative manner. According to Y, therefore, X has acted in breach of the
employment contract and the internal club regulations. That is, according to article 14 of
the employment contract, the player was not allowed to make any statement which may
defame the club, its officials and/or its members. Furthermore, article 11 of the internal
club regulations regulates the players’ relationship with the mass media. According to
this article, the players are permitted to make statements to the mass media on
condition that with their statements or appearance they do not harm in any way the club
or the “committee of the club”. In addition, this article empowers the club to impose a
financial or other kind of penalty at the club’s discretion. Article 15 of the said club
regulations outlines the sanctions which may be imposed upon a player in the event of a
breach by the player of his duties. The sanctions include a fine and the termination of
the contract.
The player, for his part, does not deny that he has made negative statements about Y to
the press. However, he insists that he exercised his “constitutional and legal right to
speak out in his defence” after the club allegedly had made false allegations about him.
X refutes having infringed upon any regulations. In addition, he contests the legality of
the fine that was imposed upon him. X maintains that the analysis of the case at hand
should be limited to his unpaid salary and bonuses. More specifically, the player asserts
that the club had acted in breach of the employment contract prior to the date of
termination of the contract by the club by failing to remit his salaries in a timely manner.
According to X, at the time of the termination of the contract by the club, Y owed him
his salary for the months of October, November and December 2003 as well as part of
his September 2003 salary and part of a payment that fell due in July 2003.
Consequently, X claims payment of (a) outstanding salaries (CYP 13,108) and bonuses
relating to the period of time that he rendered his services to the club (CYP 7,760), i.e.
CYP 20,868; (b) reimbursement of expenses that he allegedly incurred, i.e. CYP 900; and
(c) monthly salaries from the date of the termination of the contract until its date of
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expiry, i.e. CYP 18,180, all of which add up to the amount of CYP 39,948. In addition, X
claims a non-specified amount of money to cover his legal fees and other expenses.
Y disagrees with the player’s position maintaining that the triggering element in the case
at hand is the player’s conduct in breach of his contractual obligations, which induced
the club to terminate the contract.
In other words, Y asserts that it has terminated the contract with just cause. However, Y
acknowledges that it owes to the player his salaries for October, November and
December 2003 as well as part of his September 2003 salary and part of a July 2003
payment to the amount of CYP 12,048. In addition, Y confirms that it owes certain bonus
payments to the player totalling CYP 4,060. Hence, Y confirms that it owes the total
amount of CYP 12,948 to the player, X.
In addition, the club lodged a counter-claim against X for compensation of damages that
Y maintains having incurred for the replacement of X. According to the club, the amount
of damages is CYP 30,439 consisting of CYP 24,090 representing the difference in salary
between X and the newly hired player as well as travel expenses incurred in connection
with the new player.
X rejects the club’s counter-claim maintaining that the club cannot claim damages that
resulted from the unilateral breach of contract by the club. In addition, he points out
that this claim was put forward by Y with the aim to avoid having to pay the monies that
are owed by the club to the player.
On account of all of the above, notably, Y having failed to remit at least three monthly
salaries to the player, the Chamber decided that Y has committed a unilateral breach of
the employment contract without just cause. In addition, the Chamber pointed out that
such breach occurred prior to the termination of the contract by the club on 9 January
2004. Consequently, the player is entitled to receive compensation for breach of contract
in accordance with article 22 of the FIFA Regulations for the status and transfer of
players.
The members of the Chamber first turned to the financial claims put forward by both X
and Y. On the basis of the aforementioned facts, it is undisputed that the club owes to
the player his salaries for October, November and December 2003 as well as part of his
September 2003 salary and part of a July 2003 payment to the amount of CYP 12,048.
With regard to the outstanding bonus payments, the Chamber decided to accept the
amount that was acknowledged by the club, i.e. CYP 4,060, in the light of the fact that X
has failed to substantiate his claim amounting to CYP 7,760. For the same reason, the
Chamber decided to reject the player’s claim pertaining to reimbursement of expenses
that he allegedly incurred. With regard to the aforementioned fine of CYP 3,160, the
members of the Chamber concurred that this fine, which was imposed by the club upon
the player in accordance with articles 11 and 15 of the internal club regulations, shall be
deducted from the total amount payable by the club to the player. Consequently, the
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Chamber decided that X is entitled to receive the amount of CYP 12,948 pertaining to
outstanding salary and bonus payments.
As regards the award of financial compensation payable to the player in accordance with
article 22 of the aforementioned Regulations, the Chamber noted that X asks
compensation to the amount of CYP 18,180 representing the value of the employment
contract from the date of its termination by the club until its expiry date as well as an
amount of money in order to cover legal fees and other expenses. In this regard, the
Chamber took into consideration that the relevant employment contract does not contain
any clause pertaining to compensation payable to either of the parties in the event of the
early termination of the employment relationship. It was especially taken into account by
the members of the Chamber that the player, for his part, neglected his obligations with
regard to his contact with the mass media. Therefore, and bearing in mind the
remuneration that the player was due to receive under the terms of the employment
contract, i.e. salary and bonuses, the Chamber concluded that a compensation
amounting EUR 10,000 is adequate.
In the light of the fact that the club was found to have committed a breach of contract
without just cause, the Chamber decided to reject the counter-claim that was put
forward by Y.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The counter-claim of Y, is rejected.
3.
The Respondent, Y, has to pay the amount of CYP 12,948 and EUR 10,000 to the
Claimant.
4.
The amount due to the Claimant has to be paid by the Respondent within 30 days
as from the date of notification of this decision.
5.
In the event that the debt of Y is not paid within the stated deadline, an interest
rate of 5% per year will apply as of expiry of the aforementioned deadline.
6.
If the sums of CYP 12,948 and EUR 10,000 are not paid within the
aforementioned deadline, the present matter shall be submitted to the FIFA
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Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
7.
The Claimant is directed to inform the Respondent immediately of the account
number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
8.
According to art. 60 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 10 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:
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 Champagne
Deputy General Secretary
Enclosed: CAS directives
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