Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 April 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (The Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by the Claimant
G,
as Claimant
against the Respondent
P,
as Respondent
regarding a contractual dispute
between the parties
I.
Facts of the case
1.
On 16 August 2008, the player, G (hereinafter: the Claimant), and the club, P
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid from the date of signature until 30 June 2011.
2.
The contract, in its art. 4.1, provided for a monthly remuneration of EUR 760, a
Christmas bonus of EUR 760, an Easter bonus and a leave pay amounting to EUR
380 each (half of the ordinary monthly remuneration). An additional
remuneration amounting to a total sum of EUR 60,000, payable in 9 instalments
between 16 August 2008 and 30 April 2011, was also agreed upon in art. 4.4 of
the contract.
3.
On 4 December 2008, the Claimant, via his legal representative, lodged a
complaint before FIFA claiming that the Respondent terminated the contract
without just cause.
4.
In this respect, the Claimant held that the Respondent decided, without any
reason, not to use him in the team and to send him back to B on 20 November
2008, even though he allegedly fulfilled all his contractual duties. Furthermore,
the Claimant claimed that he had only received the payment of a sum of EUR
1,000, on 19 September 2008, as remuneration, since the beginning of the
contract. Finally, the Respondent did apparently not answer to the letter sent by
the Claimant’s legal representative on 23 November 2008, by means of which he
requested the payment of a total amount of EUR 116,300.
5.
As a consequence, the Claimant claimed the payment of a total amount of EUR
116,300 as set out below:
EUR 11,280 composing of:
¾
EUR 2,280 corresponding to 3 monthly salaries (August,
September, October 2008),
¾
EUR 10,000 corresponding to the two first instalments (EUR
5,000 each), in connection with the additional remuneration
of EUR 60,000, payable on 16 and 31 August 2008, minus
EUR 1,000 received on 19 September 2008,
EUR 80,020 as compensation for breach of contract composing of:
¾
EUR 25,080 corresponding to the 33 remaining monthly
salaries due until 30 June 2011,
¾
EUR 4,940 corresponding to the various bonuses provided
for in art. 4.1 of the contract and due until 30 June 2011,
¾
EUR 50,000 corresponding to the remaining part of the
additional remuneration of EUR 60,000,
EUR 25,000 for the moral prejudice.
•
•
•
6.
Despite being invited twice to do so, on 8 and 23 December 2008, the Respondent
did not submit any position to FIFA. The Respondent was informed that the
2
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.
7.
On 26 January 2009, FIFA informed both parties that the investigation in the
present matter had been closed.
8.
On 27 January and 20 March 2009, upon request of FIFA, the Claimant informed
FIFA, via his legal representative, that he was currently living in E without having
concluded any new employment contract with any other club. He was thus
currently living without any income.
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 4 December 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 B player and a K 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 4 December
2008 and that the relevant employment contract was signed on 16 August 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 firstly observed that the Respondent never took
position on the claim lodged against it by the player, despite having been asked to
do so by FIFA on several occasions. Therefore, the Chamber underlined that, in this
way, the Respondent renounced to its right to defence and, thus, accepted the
allegations of the Claimant.
3
5.
As a consequence, the members of the Chamber referred to art. 9 par. 3 of the
Procedural Rules and pointed out that in the present matter a decision shall be
taken upon the basis of the documents on file, in other words upon the
allegations and documents provided by the Claimant.
6.
In this respect, the Dispute Resolution Chamber started by acknowledging that the
contract provided for a monthly remuneration of EUR 760, a Christmas bonus of
EUR 760, an Easter bonus and a leave pay amounting to EUR 380 each as well as
an additional remuneration of EUR 60,000 payable in 9 instalments.
7.
Subsequently, the Chamber acknowledged that the Claimant requested the
payment of outstanding salaries in a total amount of EUR 11,280. In this context,
the Claimant alleged that the Respondent decided to send him back to B on 20
November 2008, having paid, at this stage, a unique amount of EUR 1,000 on 19
September 2008. The members of the Chamber recalled, in this regard, that the
Respondent did not submit any comment with regard to the claim.
8.
Thus, 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.
9.
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 EUR 11,280.
10.
In continuation, the Dispute Resolution Chamber took 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 EUR 80,020. In this context, the
Chamber considered that, by failing to pay the Claimant’s salaries due for the
months of August until September 2008, as well as the two first installments due
in connection with the additional remuneration of EUR 60,000, which had not
been contested at any stage by the Respondent, the latter had breached the
relevant employment agreement without just cause. On account of the foregoing,
the members of the Chamber also held that the 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.
11.
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.
12.
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
4
when calculating the relevant compensation. The Chamber recalled that it
regularly makes use of this margin of action, also in the event the Respondent
does not provide FIFA with any comments on the claim.
13.
In casu, the Dispute Resolution Chamber observed that the residual value of the
contract amounted, as a matter of fact, to EUR 78,880 and not to EUR 80,020 as
alleged by the Claimant. Furthermore, the Chamber acknowledged that the
Claimant had been rendering his services to the Respondent for approximately
three months – from 16 August until 20 November 2008 –, and that the relevant
employment contract still had approximately two years and seven 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.
14.
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 EUR 50,000, corresponding approximately to the residual value of two
years of the contract, was to be considered reasonable and justified as
compensation for breach of contract.
15.
Moreover, the Chamber noted that the Claimant requested an additional amount
of EUR 25,000 for the moral prejudice allegedly suffered. In this respect, the
members of the Dispute Resolution Chamber were eager to emphasize that the
Regulations, in particular art. 17 related to the consequences of terminating a
contract without just cause, did not provide for the possibility to grant an
additional compensation consequently to a possible moral prejudice. Therefore,
the members of the Chamber had no other alternative than to reject this part of
the claim, even though the Respondent did not contest the claim in this regard.
16.
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 EUR 61,280 to the Claimant, consisting of EUR 11,280 concerning outstanding
salaries and of EUR 50,000 as compensation for breach of contract.
17.
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.
***
5
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, G, is partially accepted.
2.
The Respondent, P, has to pay to the Claimant, G, the amount of EUR 61,280
within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the
Claimant, G, are rejected.
4.
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.
5.
The
Claimant,
G,
is
directed
to
inform
the
Respondent,
P
, 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):
6
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
7