Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
David Mayebi (Cameroon), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Thilina Panditharatne (Sri Lanka), member
on the claim presented by the player,
M,
as Claimant
against the club,
FC S,
as Respondent
regarding an employment-related dispute
between the player and the club
I.
Facts of the case
1.
On 16 July 2008, the player M (hereinafter: player or Claimant) and the club FC
S (hereinafter: club or Respondent) signed an employment contract
(hereinafter: contract) valid as from the same date until 1 December 2009.
2.
According to art. 7 of the employment contract, the player was to receive,
inter alia, a monthly salary of 400,508.
3.
The player was also entitled to receive the amount of 667,865 as an
“additional bonus” to be paid until 1 January 2009 provided that the player
plays in not less than 50% of the matches of the Championship as from the
date of signature of the contract until 1 December 2008.
4.
Additionally, the player would receive the amount of 1,602,870 as an
“additional bonus” to be paid until 1 January 2010 provided that the player
plays in not less than 50% of the matches of the Championship as from 1
March 2009 until 1 December 2009.
5.
Besides, according to par. 1 lit. 4 of art. 4 of the employment contract, the club
is obliged “To ensure life insurance and health of the Worker, and also medical
insurance with the purposes of reception by the Worker of additional medical
and other services over established by programs of obligatory medical
insurance subject to conditions, provided by the present Agreement.”
6.
Finally, article 8 of the employment contract provides that the player would
benefit from various insurances such as a “social insurance under the terms
and conditions established by the current legislation of the R Federation” and
a “life insurance”, a “health insurance” and a “medical insurance”.
7.
On 2 March 2009, the player lodged a claim in front of FIFA against the club
for breach of contract, pointing out that the club had not paid him his salaries
as from July 2008 until December 2008, and asked to be awarded payment of
the total amount of 9,079,371 plus interest and legal costs. The player
presented the following breakdown of his claim:
EUR
a. Outstanding salaries (July 2008 until December
2,403,048
62,124
2008)
b. Compensation for breach of contract
- Salaries as of January 2009 until November 2009
4,405,588
113,894
- Bonus that fell due on 1 January 2009
667,865
17,266
- Bonus that fell due on 1 January 2010
1,602,870
41,438
2/11
Total compensation for breach of contract
Total amount claimed
6,676,323
172,602
9,079,371
234,728
8.
The player explains that he had to return to country S on 6 October 2008 as his
visa would have expired in October 2008. The R consulate in country S
informed him that a (health) insurance was necessary in order for the visa to
be issued. According to the player, such health insurance was to be taken care
of in country R by the club. The player submits that he had asked the club
repeatedly in writing to take care that he be provided with the required
documentation, but to no avail.
9.
On 18 December 2008, the player’s official default notice dated 14 November
2008 having remained unanswered, the player informed the club in writing
that he considered the club’s failure to provide the required document and
lack of reply to his letters to constitute an unjustified breach of contract.
10.
In his claim, the player also quoted from a decision passed by the Dispute
Resolution Chamber dealing with visa issues, in order to point out that such
issues are considered to be the responsibility of the employer.
11.
In reply to the claim, the club confirms that the player left country R on 6
October 2008 to have his visa renewed and that he was due to be back in
country R on 12 October 2008. The club submits that it provided the player
with all the documents that are normally required in order to obtain the visa.
12.
The club submits that initially it had been informed via another player that the
player M could not obtain the visa as he was in need of the original of the HIV
test (a copy of which had been given to the player), upon which the club
advised him to undergo the said test in country S, which the player had done.
Therefore, the club had expected the player to return to country R.
13.
Furthermore, according to the Respondent, under the assumption that the
problem had been solved, the club was only informed at a later stage that the
player could still not obtain the visa in the light of a medical insurance issue.
On 17 October 2008 only was the club informed by the player that he had
bought medical insurance but that he had been informed by the consulate
that such insurance had to be arranged by the employer.
14.
According to the club, it had arranged for the required insurance and sent it to
the player as well as to the consulate. The player then informed the club that
3/11
the relevant document was rejected by the consulate without indicating the
reasons or which kind of document would then be required.
15.
The club submits that it contacted the consular officer of the R consulate in
country S by phone, who could not clarify which kind of document was
required.
16.
The club reports that according to various authorities in charge of
international relationships such medical insurance was rather unknown as a
specific visa requirement and any medical insurance valid within country R
would be valid for a visa.
17.
According to the club, it received the player’s first personal correspondence
regarding the visa issue on 24 October 2008. Furthermore, on 27 October 2008,
the club wrote to the player via his agent reminding him that he should have
returned to the club on 12 October 2008. Furthermore, in that letter, the club
pointed out that until 24 October 2008 the player had not given any official
notification explaining the nature of the problem he was encountering and
that the player should be responsible for arranging documents. The club also
warned that in the light of the circumstances it would have to file a claim
against the player for breach of contract.
18.
The club concludes by insisting on the fact that it did everything it could to
assist the player to get a visa. It considers that the player should have made
more efforts to get more precise information about the required
documentation and it has doubts with respect to the player’s willingness to
arrive in country R within the shortest time possible.
19.
On 23 June 2009, the player signed an employment contract with a club valid
as from 1 July 2009 until 30 June 2012, a copy of which was made available to
the Dispute Resolution Chamber by the Claimant. According to the financial
terms of the said contract, the player was to receive from his new club the
amount of EUR 15,000 during the overlapping periods of the two employment
contracts at stake (i.e. as of August 2009 until December 2009).
II.
Considerations of the Dispute Resolution Chamber
4/11
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 2
March 2009. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and
par. 3 of the Procedural Rules).
2.
Subsequently, the members of the Dispute Resolution 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 2009), the Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a player and a 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 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2009), and considering that the present claim was lodged on 2
March 2009, the 2008 edition of the said regulations (hereinafter: 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 this
respect, the Dispute Resolution Chamber started by acknowledging that, on 16
July 2008, the parties in the dispute at stake concluded an employment
contract valid as from 16 July 2008 until 1 December 2009 providing, inter alia,
for a monthly salary of 400,508.
5.
By analysing the facts pertaining to the matter at hand, the Chamber noted
that on 6 October 2008, the Claimant had to leave country R to travel back to
country S in order to obtain the relevant mandatory visa. In this regard, the
Chamber noted that the Respondent confirmed that the Claimant had left
country R on 6 October 2008 for visa purposes.
6.
In continuation, the Chamber duly noted that the Claimant could not obtain
the said visa since a health insurance document was missing and that,
according to the Claimant, the said document had to be provided by the club
and not by the player.
5/11
7.
In this respect, the members of the Chamber noted that according to par. 1 lit.
4 of art. 4 of the employment contract, it is the responsibility of the employer,
i.e. the club, “To ensure life insurance and health of the Worker, and also
medical insurance with the purposes of reception by the Worker of additional
medical and other services over established by programs of obligatory medical
insurance subject to conditions, provided by the present Agreement.”
8.
Additionally, the members also noted that article 8 of the employment
contract provides that the player would benefit from various insurances such
as a “social insurance under the terms and conditions established by the
current legislation of the R Federation” and a “life insurance”, a “health
insurance” and a “medical insurance”.
9.
The Respondent maintains that it had arranged for the required insurance and
that it had sent such insurance to the Claimant as well as to the R consulate in
country S. The members of the Chamber noted, however, that the Respondent
failed to corroborate such statement with documentary evidence in
accordance with art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, which
stipulates that any party claiming a right on the basis of an alleged fact shall
carry the burden of proof.
10.
Through their analysis of the facts leading to the dispute at hand and the
related documentation made available by the parties involved, the members of
the Chamber came to the conclusion that the Respondent had failed to
arrange the necessary documents permitting the finalization of the visa
procedure in order for the Claimant to return to country R.
11.
In this context, the Chamber referred to its constant jurisprudence and
emphasised that the responsibility to obtain the necessary work permit or visa
prior to the signing of the employment contract or during its period of
validity, as it is the case in the matter at hand, is incumbent on the club, i.e.
the Respondent.
12.
What is more, on account of the aforementioned facts and, in particular, the
Claimant’s financial claim, the members of the Chamber deemed it fit to point
out that the Respondent was visibly already in breach of contract for nonpayment of contractual salaries prior to the Claimant’s departure to country S
in October 2008. Indeed, according to the Claimant, his salaries as of July 2008
had remained unpaid, which allegation had not been contested or explained
by the Respondent.
6/11
13.
For these reasons, the Chamber decided to reject the Respondent’s arguments
and established that the Respondent had terminated the employment contract
without just cause in October 2008.
14.
Having established that the Respondent was to be held liable for breach of the
employment contract without just cause, the Chamber focussed its attention
on the consequences of such breach of contract.
15.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant is entitled to receive from the Respondent an
amount of money as compensation for breach of contract in addition to any
outstanding payments on the basis of the relevant employment contract.
16.
First of all, the Chamber reverted to the Claimant’s financial claim, which
includes outstanding remuneration of EUR 62,124 relating to monthly salaries
as of July 2008 until December 2008. As stated above, however, the
employment contract is considered terminated by the club in October 2008.
Consequently, the Chamber concluded that the salaries as of July 2008 until
and including September 2008, i.e. the amount of EUR 31,062, shall be
considered outstanding in accordance with the employment contract.
17.
The Chamber recalled that the Respondent failed to demonstrate that it had in
fact paid the Claimant’s outstanding remuneration in the amount of EUR
31,062 or that it had valid reasons not to pay the said remuneration to the
Claimant. Furthermore, the Chamber noted that the Respondent had not
contested the conversion of the amount into EUR amounts.
18.
Consequently, taking into account the documentation remitted by the
Claimant to substantiate his claim and the fact that the employment contract
was considered terminated as of October 2008, the Chamber decided that in
virtue of the principle pacta sunt servanda, the Respondent is liable to pay to
the Claimant the amount of EUR 31,062 relating to payments due to the
Claimant as from July 2008 up to and including September 2008 in accordance
with the employment contract.
19.
In addition, taking into consideration the Claimant’s claim, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. on each of the
monthly salaries as of the respective due dates.
20.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent in the
case at stake.
7/11
21.
In doing so, the members of the Chamber firstly recapitulated that, in
accordance with art. 17 par. 1 of the Regulations, the amount of compensation
shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, 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
Claimant under the existing contract and/or the new contract, the time
remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected
period.
22.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains a
provision by which the parties had beforehand agreed upon an amount of
compensation payable by either contractual party in the event of breach of
contract. In this respect, the Chamber established that no such compensation
clause was included in the employment contract.
23.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the club to the player had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber 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. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
24.
In order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account, inter alia, in line with art. 17 par.
1 of the Regulations, the remuneration due to the Claimant in accordance with
the employment contract and the time remaining on the same contract, as
well as the professional situation of the Claimant as from the early termination
of the employment contract in October 2008 until 1 December 2009.
25.
In continuation, the Chamber noted that the Claimant, for his part, claims
compensation for breach of contract totaling EUR 172,602 which amount
appears to include two bonuses of EUR 17,266 and EUR 41,348, respectively.
26.
With regard to the two aforementioned bonuses, the Chamber wished to
highlight that according to art. 7.2 of the employment contract, the payment
of the said bonuses, until 1 January 2009 and 1 January 2010, respectively, was
subject to the number of Championship matches in which the player would
have participated during the two seasons at stake. Consequently, the payment
of said bonuses was made subject to the participation of the player in matches
8/11
during the relevant seasons. As regards the number of matches in which the
player participated prior to the employment contract having been terminated
by the Respondent, the Chamber noted that the Claimant had not presented
any evidence demonstrating that he would have been entitled to receive the
bonus payable on 1 January 2009 (cf. art. 12 par. 3 of the Procedural Rules). As
for the bonus that was payable until 1 January 2010, the Chamber took into
account that such payment was thus linked the player’s participation in future
matches, i.e. matches taking place after the termination of the employment
contract. For these reasons, the Chamber decided that the Claimant’s claim
with respect to said match bonuses could not be upheld.
27.
The Chamber then proceeded with the calculation of the salaries payable to
the Claimant under the terms of the employment contract as from October
2008 until 1 December 2009, which serves as the basis for the final
determination of the amount of compensation for breach of contract.
28.
Indeed, the members of the Chamber took into account that the Claimant
signed a new employment contract on 23 June 2009 with the club O valid as
from 1 July 2009 until 30 June 2012, in accordance with which the Claimant
was to receive a yearly salary of EUR 30,000 for the 2009/10 season, payable in
ten equal instalments as from August 2009 until May 2010.
29.
Consequently, according to the constant practice of the Dispute Resolution
Chamber and the general obligation of the player to mitigate his damages,
such remuneration under the new employment contract shall be taken into
account in the calculation of the amount of compensation for breach of
contract.
30.
On account of all of the above-mentioned considerations and the specificities
of the case at hand, the Dispute Resolution Chamber decided that the
Respondent must pay not the entire residual value of the employment contract
but the amount of EUR 100,000, which was to be considered reasonable and
justified as compensation for breach of contract.
31.
Consequently, the Chamber decided that the Respondent must pay the
amount of EUR 100,000 to the Claimant as compensation for breach of
contract.
32.
Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal costs taking into account art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence.
9/11
33.
In conclusion, the Chamber decided to partially accept the claim of the
Claimant and that the Respondent is liable to pay the total amount of EUR
131,062 to the Claimant consisting of EUR 31,062 relating to outstanding
salaries and EUR 100,000 as compensation for breach of contract.
34.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, M, is partially accepted.
2.
The Respondent, Football Club S, has to pay to the Claimant, within 30 days as
from the date of notification of this decision, outstanding remuneration in the
amount of EUR 31,062 plus 5% interest p.a. until the date of effective payment
as follows:
5% p.a. as of 1August 2008 on the amount of EUR 10,354;
5% p.a. as of 1 September 2008 on the amount of EUR 10,354;
5% p.a. as of 1 October 2008 on the amount of EUR 10,354.
3.
The Respondent, Football Club S, has to pay to the Claimant compensation for
breach of contract in the amount of EUR 100,000 within 30 days as from the
date of notification of this decision. In the event that this amount of
compensation is not paid within the stated time limit, interest at the rate of
5% p.a. will fall due as of expiry of the above-mentioned time limit until the
date of the effective payment.
4.
In the event that the aforementioned amounts plus interest are not paid by
the Respondent to the Claimant within the stated time limits, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
5.
Any further request filed by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the bank account number to which the remittance is to be made and to notify
the Dispute Resolution Chamber of every payment received.
10/11
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
Encl. CAS directives
11/11