Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Alejandro Marón (Argentina), member
on the claim presented by the club,
F,
as Claimant/Counter-Respondent
against the player,
J,
as Respondent 1/Counter-Claimant
and the club,
C,
as Respondent 2
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 8 August 2007, the club F (hereinafter: the Claimant), and the player J
(hereinafter: the Respondent 1), born on 27 October 1982, signed a “private
agreement”. Art. B.1 of this agreement mentions that “the parties mutually
agreed on a two-year contract valid till 30/06/2009”.
2.
According to the same agreement, the Respondent 1 was to receive, inter alia, the
following net amounts and benefits:
For the period 2007-2008:
EUR 105,000 to be paid as follows:
- EUR 25,000 as signing-on fee,
- EUR 80,000 payable as follows:
two bills of exchange in the amount of EUR 15,000 net each expiring
respectively on 30 November 2007 and 30 January 2008,
the remaining EUR 50,000 to be paid in 5 equal instalments of EUR 10,000 on
30 September 2007, 30 November 2007, 30 January 2008, 28 February 2008
and 30 March 2008
For the period 2008-2009:
- EUR 130,000 “only if the club renews the contract” (cf. clause B.2. and B.3 of
the “private agreement”)
Extra bonuses/benefits:
- EUR 1,200 for personal expenses,
- EUR 12,500 if the player plays 20 official matches in the country G
championship,
- EUR 12,500 if the club qualifies for the UEFA Cup,
- EUR 15,000 if the club wins the country G Cup,
- EUR 25,000 if the club qualifies for the UEFA Champions League,
- 2 flight tickets country G- A- G.
3.
Simultaneously, on 8 August 2007, the Respondent 1 and the Claimant signed a
standard employment contract of the Superleague H (hereinafter: the
Superleague contract) valid until 30 June 2008. According to this contract, the
Respondent 1 was to receive a monthly salary of EUR 1,480.24 over 11 months, as
well as EUR 50,000 payable in 5 equal instalments.
4.
On 14 June 2008, the Respondent 1 signed an employment contract with the club
C (hereinafter: the Respondent 2), valid as from 1 July 2008 until 30 May 2009,
with a unilateral option for the Respondent 2 to extend said contract until 30 May
2011. The financial terms of the latter employment contract are the following (the
amounts are net):
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- USD 50,000 as signing-on fee and entitling club C to unilaterally extend the
contract,
- USD 300,000 payable in ten equal instalments,
- USD 20,000 if the club stays in the First Division, payable on 30 May 2009,
- USD 2,000 per each winning official match in which the player participated,
- USD 10,000 if the club qualifies for the “L”,
- USD 15,000 if the club qualifies for the “L” semi-finals,
- USD 20,000 if the club qualifies for the “L” finals.
5.
On 31 July 2008, the Claimant lodged a claim in front of FIFA for breach of
contract against the Respondent 1 and his new club, the Respondent 2, requesting
to be awarded compensation amounting to EUR 300,000 and that sporting
sanctions be imposed as deemed appropriate by the Dispute Resolution Chamber.
In this respect, the Claimant explained that, even though the Superleague contract
mentioned that the contract would expire on 30 June 2008, the “private
agreement” was, in fact, the true reflection of the agreement reached between
the Claimant and the Respondent 1 with regard to both its financial terms and its
duration. Furthermore, according to the Respondent 1, the reason for which the
Superleague contract had only a one-year duration while the “private agreement”
had a two-year duration was because the Superleague contract was only signed by
the parties for tax reasons and because the parties had allegedly agreed that the
Respondent 1’s remuneration for the second year would be reconsidered during
the first year of contract.
6.
Furthermore, the Claimant had allegedly always paid the Respondent 1 the salary
mentioned in the “private agreement”, together with the aforementioned
bonuses.
7.
The Claimant further stated that the Respondent 1 was one of its key players and
that he had played all 30 championship matches. According to the Claimant, due
to the fact that it was highly satisfied with the Respondent 1’s performance, they
discussed several times, during the first year, the Claimant’s intention to proceed
in signing the “typical extension of [the Superleague contract]”, in accordance
with the “private agreement”, in order for the Respondent 1 to be able to play for
the Claimant for the season 2008-2009. Moreover, the Claimant had allegedly
offered the Respondent 1 to extend their relationship until the end of the season
2009-2010.
8.
In this respect, according to the Claimant, the Respondent 1 did not seem
reluctant to the Claimant’s proposals; however, he expressed the wish to wait until
the end of the championship, i.e. 20 April 2008, before starting any discussions
about his salary raise for the season 2008-2009 as well as an extension of his
employment contract until the end of the season 2009-2010.
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9.
The Claimant thus emphasized that, from the Respondent 1’s behaviour
throughout the season 2007-2008, it was convinced that the Respondent 1 would
accept its offer and respect the terms of the “private agreement”.
10.
Furthermore, according to the Claimant, the Respondent 1 had never informed
them about any offers which he would have had from other clubs since January
2008, as he should have done in accordance with the FIFA Regulations, which state
that a player may enter into negotiations with another club 6 months prior to the
expiry of his contract. According to the Claimant, if the Respondent 1 did not
inform it of any negotiations with other clubs, it was because he knew that he was
in fact bound by the “private agreement” until the end of the season 2008-2009.
11.
However, according to the Claimant, the Respondent 1 left for the summer
holidays without signing the extension to the Superleague contract, after having
informed the Claimant that he needed more time to think about its proposal.
Thereafter, the Claimant saw several press reports which referred to various offers
being made to the Respondent 1 by other clubs, which were apparently being
considered by the Respondent 1. Moreover, the Respondent 1 allegedly told the
press that he was a free player as of 1 July 2008.
12.
In view of the above, on 11 June 2008, the Claimant sent a summons to the
Respondent 1, as well as to his alleged legal representative, so as to order the
Respondent 1 to come back to country G within 48 hours in order to sign the
extension of the Superleague contract for the season 2008-2009 in accordance
with the “private agreement”. These summons mention that in any case, the
extension to the Superleague contract should be completed by 8 July 2008, and
that the Respondent 1 should be in country G by this date for the beginning of
the training sessions for the start of the season 2008-2009.
13.
According to the Claimant, within the next days from serving the aforementioned
summons to the Respondent 1, it learnt via the press that the Respondent 1 had
agreed to play for the Respondent 2 for the season 2008-2009. Thus, on 18 June
2008, the Claimant, via the Football Federation H (FFH), contacted the Respondent
2 via the Football Federation M (FFM) to inform the latter club that the
Respondent 1 was allegedly bound by an employment contract with the Claimant
until the end of the season 2008-2009 and that if the Respondent 1 would sign an
employment contract with the Respondent 2 it would have to be considered a
serious violation of the FIFA Regulations and the Claimant would seek redress
through the competent deciding bodies of FIFA. The Respondent 2 allegedly never
responded to such letter.
14.
Finally, the Claimant stated that on 1 July 2008, it was informed by the Football
Federation H that the Football Federation M had requested the Respondent 1’s
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International Transfer Certificate (ITC) on behalf of the Respondent 2, with which
the Respondent 1 had apparently signed an employment contract.
15.
On 22 August 2008, following the refusal of the Football Federation H to issue the
Respondent 1’s ITC, the Single Judge of the Players’ Status Committee authorized
the Football Federation M to provisionally register the Respondent 1 with the
Respondent 2.
16.
In view of all of the above, the Claimant claims the amount of EUR 300,000 as
compensation for breach of contract to be paid by the Respondent 1 and the
Respondent 2, which are to be considered as severally and jointly liable for such
payment. In this respect, the Claimant stated that, in its opinion, the amount of
EUR 300,000 is reasonable considering the Respondent 1’s behaviour, his age, the
remaining time of the contract as well as his revenues under his new employment
contract. Moreover, the Claimant requests that the Dispute Resolution Chamber
decide on “any sporting sanctions it deems fit” against the Respondent 1 as well
as the Respondent 2.
17.
In reply to the Claimant’ claim, the Respondent 1 acknowledged having signed the
Superleague contract, which was valid as from 8 August 2007 until 30 June 2008.
In this respect, according to the Respondent 1, during the season 2007-2008, the
Claimant had never officially provided him with a statement or document
communicating its formal intention to extend the aforementioned contract for
one more season.
18.
The Respondent 1 further stated that on 9 June 2008, he travelled to country M to
enjoy holidays and also to discuss the basis of an employment contract with the
Respondent 2. Thereafter, the Respondent 1 signed an employment contract with
the Respondent 2 for the season 2008-2009. Upon his return to the country A, on
16 June 2008, the Respondent 1 realised that, in his absence, he had apparently
received, on 11 June 2008, a fax from the Claimant requesting his return to the
country G to sign a new employment contract for the season 2008-2009. The
Respondent 1 further indicated that on 23 June 2008, he sent a letter to the
Claimant by means of which he informed the latter club that he had not received
the Claimant’s summons on 11 June 2008, since he was not at his home in country
A, and that he would not return to country G since his employment contract with
the Claimant had expired on 30 June 2008 and he had signed a new employment
contract with another club.
19.
In view of the above, the Respondent 1 expressed the view that no other
agreement than the Superleague contract signed with the Claimant should be
considered as binding in the context of the present dispute. Furthermore,
according to the Respondent 1, any extension set out in the “private agreement”
should be analysed as a unilateral option in favour of the Claimant which,
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according to the jurisprudence of the Dispute Resolution Chamber and the Court
of Arbitration for Sport, cannot be considered as valid. Subsidiarily, the
Respondent 1 affirmed that should the unilateral extension of the “private
agreement” be considered as valid, in any case, the Claimant had failed to notify
him in due course of an eventual extension of his employment contract.
20.
Furthermore, the Respondent 1 stated that in accordance with art. 18 of the
Regulations on the Status and Transfer of Players he was entitled to conclude a
new employment contract up to six months prior to the expiry of his current
employment contract.
21.
Therefore, the Respondent 1 rejected the Claimant’ claim entirely.
22.
Finally, the Respondent 1 lodged a counter-claim against the Claimant for
outstanding salary payments. In this respect, the Respondent 1 claimed the
following amounts against the Claimant:
-
EUR 600 due as part of the salary of December 2007,
EUR 1,200 due as part of the salary of May 2008,
EUR 1,200 due as part of the salary of June 2008,
EUR 12,500 due as a bonus for attending to all matches during the season 20072008
Thus in total: EUR 15,500 + 5% interest per year as from the due date of each
payment.
23.
In reply to the Claimant’ claim, the Respondent 2 affirmed that it had only signed
an employment contract with the Respondent 1 after having analysed the terms
of the Superleague contract signed between the Respondent 1 and the Claimant,
which clearly stated that the employment contract between the said parties was
due to expire on 30 June 2008. In particular, the Respondent 2 noted that the
Superleague contract mentioned that any additional agreement eventually signed
afterwards between the parties should be forwarded to the Football Federation H
as well as the country G League within 7 days in order to be valid, whereas it also
mentioned that no other contract should regulate the relationship between the
Respondent 1 and the Claimant (cf. art. 2.4 of the Superleague contract).
24.
Furthermore, the Respondent 2 allegedly contacted the Football Federation H
before signing with the Respondent 1, and the Football Federation H confirmed
that the Superleague contract would expire on 30 June 2008. Thus, it was not until
18 June 2008, with the Claimant’s correspondence addressed to the Football
Federation M – four days after signing the employment contract with the
Respondent 1 – that it became aware of the existence of another agreement
signed between the Respondent 1 and the Claimant.
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25.
In view of the above, the Respondent 2 expressed the opinion that it did not
induce the Respondent 1 to breach any contract with the Claimant since the
Superleague contract had expired on 30 June 2008. In this respect, the Respondent
2 referred to art. 18 par. 3 of the Regulations on the Status and Transfer of
Players, according to which a Respondent 1 may conclude an employment contract
with a new club up to six months prior to the expiry of his current contract.
26.
Therefore, the Respondent 2 rejected the Claimant’ claim entirely.
27.
In its replica, the Claimant reiterated that it is evident that the employment
relationship between the Respondent 1 and the Claimant was governed primarily
by the “private agreement”, and that the Superleague contract was signed only in
order to register the Respondent 1 with the FFH. Furthermore, the Claimant
underlined that the Respondent 1 allegedly received all amounts mentioned
under the “private agreement”, i.e. all his contractual instalments in the total
amount of EUR 50,000 by 22 May 2008, as well as EUR 25,000 as signing-on fee
and EUR 30,000 with two bills of exchange paid on 29 January 2008 and 10 April
2008.
28.
Thus, the Claimant claimed that, should the “private agreement” be declared null
and void, the Respondent 1 should be obliged to reimburse the amount of EUR
55,000 (i.e. EUR 25,000 as signing-on fee and EUR 30,000 paid with the two
aforementioned bills of exchange) to the Claimant.
29.
In addition, the Claimant stressed that, in its opinion, the “private agreement” did
not grant the Claimant a unilateral option to renew the contract, but that the
renewal concerned only the financial terms of the contract. The Claimant
therefore concludes that the Respondent 1 had acted in a malevolent manner in
failing to sign the extension of the Superleague contract for the season 2008-2009
and signing a new employment contract with the Respondent 2. Furthermore, the
Claimant denied the Respondent 1’s allegations that the Claimant had never
informed him of its intention to extend the contract and, in this respect,
submitted several articles from the press which refer to the Claimant’ intentions,
as well as to some statements of the Respondent 1, who expressed his wish to
discuss the club’s proposal with his family in country A during his holidays, from
where he would allegedly answer concerning the extension of the contract until
30 June 2010.
30.
The Claimant further stated that, from the Respondent 2’ reply to its claim, it was
evident that the Respondent 2 knew of the Respondent 1’s contractual situation
with the Claimant and of the possible implications of signing an employment
contract with him. However, despite the Claimant’s complaint to the Football
Federation M on 18 June 2008, the Respondent 2 still went forward with the
signature of the employment contract.
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31.
Finally, with regard to the Respondent 1’s counter-claim, the Claimant affirmed
that his salary of December 2007 had been entirely paid on 14 January 2008. In
this respect, the Claimant submitted a copy of a receipt dated 14 January 2008,
which is signed by the Respondent 1, for the amount of EUR 1,200, and which
mentions that “upon signing the present I hold no further demands from the
company”. Moreover, concerning the salaries of May and June 2008, the Claimant
admitted not having paid them but underlined, however, that as the salaries were
allegedly paid in cash, and as the Respondent 1 had left country G before the end
of May 2008 and never returned, it could not pay the Respondent 1. Finally,
concerning the EUR 12,500 of bonus claimed by the Respondent 1, the Claimant
stated that this amount was due only under the “private agreement”, and since
the Respondent 1 claims that the “private agreement” was null and void, he
should not be entitled to such bonus.
32.
Thus, the Claimant upheld its initial claim and, subsidiarily, requested that, should
the “private agreement” be declared null and void, the Respondent 1 be ordered
to reimburse the amount of EUR 55,000 to the Claimant.
33.
In his final position, the Respondent 1 referred to the payment receipts submitted
by the Claimant and affirmed that these payments were allegedly made in
settlement of the signing-on fee. Furthermore, the Respondent 1 recognised
having received the whole salary of December 2007, but upheld his claim for the
salaries of May (i.e. EUR 1,200) and June 2008 (i.e. EUR 1,200), as well as for the
match bonus of EUR 12,500, and noted that the Claimant had admitted to not
having paid the said bonus and salary.
34.
Finally, the Respondent 1 noted that the press releases submitted by the Claimant
showed that he had concluded a one-year contract with the Claimant. Moreover,
they did not refer to any official proposal made by the Claimant with regard to a
possible extension of the employment relationship.
35.
In its final position, the Respondent 2 mainly reiterated its previous statements.
36.
The Claimant did not submit any final comments regarding the counter-claim of
the Respondent 1.
*****
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the
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 31 July
2008. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
“Procedural Rules”) are applicable to the matter at hand (cf. article 21 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
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2009) 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 club, a player and a club.
3.
In this respect, the Chamber was eager to emphasize that the member of the
Dispute Resolution Chamber as a clubs’ representative, Mr T, refrained from
participating in the deliberations of the case at hand, on the basis that he holds
the same nationality as the Claimant. Therefore, and in view of maintaining the
parity between players’ and clubs’ representatives, the Dispute Resolution
Chamber adjudicated the case in the presence of three members in accordance
with art. 24 par. 2 of the Regulations on the Status and Transfer of Players (edition
2009).
4.
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 31 July 2008,
the 2008 edition of the said regulations (hereinafter: “the Regulations”) is
applicable to the matter at hand as to the substance.
5.
The competence of the Dispute Resolution Chamber and the applicable
regulations having been established, entering into the substance of the matter,
the Chamber acknowledged the above-mentioned facts as well as the
documentation contained in the file. First of all, the Chamber pointed out that the
parties had signed two separate agreements, i.e. a “private agreement” as well as
the Superleague contract. Furthermore, the Chamber remarked that whereas the
Superleague contract clearly mentioned that said contract was valid as from 8
August 2007 until 30 June 2008, the “private agreement”, however, provides in its
art. B.1 that “the parties mutually agreed on a two-year contract valid till
30/06/2009”. In addition, art. B.2 of the “private agreement” mentions that “for
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the period 2008-2009 the player will receive the amount of EUR 130,000 (net), only
if the club renews the contract”.
6.
In continuation, the members of the Chamber focussed their attention on the
Claimant’s claim for EUR 300,000 compensation in view of the fact that the
Respondent 1 allegedly acted in breach of contract by not returning to the club at
the start of the season 2008-2009 and not signing an extension to the Superleague
contract for the same season. In this regard, the Chamber duly noted that
according to the Claimant, the “private agreement” signed with the Respondent 1
made it clear that the latter was bound to the club for two seasons, i.e. the 20072008 and 2008-2009 seasons, and that although the Superleague contract – which
is usually signed mainly for tax reasons – mentioned that the contract would run
for one season only, it was the “private agreement” which reflected the true
agreement between the parties. The Chamber also duly took note of the
Claimant’s claim that the Respondent 2, with which the Respondent 1 signed an
employment contract at the start of the season 2008-2009, should be held jointly
and severally liable for the payment of compensation. Moreover, the Chamber
noted that the Claimant requests that the Respondent 1 and the Respondent 2
should be sanctioned due to the breach of contract, respectively the inducement
to breach of contract.
7.
Equally, the Chamber acknowledged that the Respondent 1 denied having been
bound with the Claimant for two consecutive seasons, since the Superleague
contract was valid for one season only, and that he had never been formally
approached by the Claimant regarding a contract extension during the course of
the season 2007-2008. Therefore, the Respondent 1 believes that as of 30 June
2008, he was free to sign an employment contract with a new club and that, in
any case, any extension clause contained in the “private agreement” would have
to be considered as a unilateral option to the sole benefit of the Claimant, such
clause being considered as null and void according to the jurisprudence of the
Dispute Resolution Chamber and the Court of Arbitration for Sport.
8.
The Respondent 2, for its part, stated that it had not been aware of the existence
of the “private agreement” and that before signing an employment contract with
the Respondent 1, it had contacted the Football Federation H which confirmed
that the Respondent 1’s contract with the Claimant would expire on 30 June 2008.
Thus, the Respondent 2 is of the opinion that it cannot be found to have induced
the Respondent 1 to breach his employment contract with the Claimant.
9.
Finally, the members of the Chamber duly took note of the Respondent 1’s
counter-claim against the Claimant for alleged outstanding salary payments in the
amount of EUR 15,500 plus 5% interest as from the due date of each payment,
corresponding to part of the salary of December 2007 (EUR 600), May 2008 (EUR
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1,200) and June 2008 (EUR 1,200), as well as to a bonus in the amount of EUR
12,500 due as a bonus for attending to all matches during the season 2007-2008.
10.
The Claimant had replied to such counter-claim by stating that the Respondent 1
had signed a receipt attesting that he had received all his financial dues for
December 2007. Furthermore, regarding the salary of May and June 2008, the
Claimant had explained that since the Respondent 1’s salary had always been paid
in cash, they had not been able to hand him over these payments as he had left
the country before the end of May 2008.
11.
Finally, regarding the EUR 12,500 bonus, the Claimant affirmed that should the
“private agreement” be declared as null and void, the Respondent 1 should not be
entitled to receive the latter amount, which is provided for under the “private
agreement”. Equally, the Claimant expressed the view that the Respondent 1
should then reimburse the amount of EUR 55,000 received under the “private
agreement”.
12.
In view of the positions presented by all parties to the present dispute, the Dispute
Resolution Chamber first of all remarked that the case at hand revolves mainly
around the issue of the duration of the employment relationship between the
Claimant and the Respondent 1, and whether the “private agreement” should be
considered as binding the Respondent 1 to the Claimant for two seasons or not.
13.
In this regard, the Chamber firstly underlined that the Superleague contract was
undoubtedly signed for one season only. However, the “private agreement” was
drafted in rather ambiguous terms as, on the one hand, art. B.1 stipulates that
“the parties mutually agreed on a two-year contract valid till 30/06/2009”,
whereas art. B.2 mentions that “for the period 2008-2009 the player will receive
the amount of EUR 130,000 (net), only if the club renews the contract” (emphasis
added).
14.
In light of the above, the members of the Chamber were convinced that in view of
the unequivocal terms of the clause contained in art. B.2 and the fact that the
Superleague contract had been concluded for one season, the parties had agreed
to a one-year contract, to be renewed at the Claimant’s discretion.
15.
Therefore, the Chamber established that it should verify whether the relevant
clause contained in art. B.2 of the “private agreement” is acceptable or not.
16.
In this respect, the members of the Chamber were of the opinion that such a
clause, which gives the Claimant the right to unilaterally cancel or lengthen the
employment contract, without providing the other party to the contract, i.e. the
Respondent 1, with similar rights, is a clause with disputable validity and which
presents a potestative character. Indeed, such a clause can only be viewed as
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curtailing the freedom of movement or choice of professional players and leaving
the players at an unfair disadvantage. Such a bargaining power to the benefit of
the employer is clearly inconsistent with the general principles of labour law.
17.
Consequently, the members of the Chamber agreed that art. B.2 of the “private
agreement” which appears to be at the centre of the present dispute is not valid
and cannot thus be invoked nor constitute a legal basis to consider that the
agreement in question would be automatically extended for one more season. In
this regard, the Chamber noted that it had already had to declare such unilateral
option clauses as null and void in other similar cases and that the Court of
Arbitration for Sport had also confirmed this Chamber’s approach, for instance in
the case 2004/X/XXX FC A & O.
18.
Furthermore, on a side note, the Chamber pointed out that, if at all considered,
the clause should have at least mentioned a deadline in order for the Claimant to
make an offer to the Respondent 1 in a timely manner. However, the Chamber
noted that, in casu, the Claimant was unable to prove that it had made a proper
offer to the Respondent 1 within a reasonable time period before the expiry of
the season 2007-2008, nor that the Respondent 1 had accepted an offer which
would have been made by the Claimant to him regarding a contract extension for
the season 2008-2009.
19.
The foregoing considerations led the Chamber to conclude that the employment
relationship between the Claimant and the Respondent 1 had come to an end on
30 June 2008.
20.
Having stated the aforementioned, the members of the Chamber thus affirmed
that the Respondent 1 did not commit any breach of contract when he signed a
new employment contract with the Respondent 2 on 14 June 2008, valid as from 1
July 2008. Indeed, the Chamber was eager to emphasise that in accordance with
art. 18 par. 3 of the Regulations, a player is free to conclude an employment
contract with another club if his contract with his present club is due to expire
within six months.
21.
Equally, the Chamber stated that the Respondent 2 cannot be considered as
having induced the Respondent 1 to breach his employment contract with the
Claimant. As previously stated, the employment relationship between the
Claimant and the Respondent 1 had expired on 30 June 2008, whereas the
employment contract between the Respondent 1 and the Respondent 2 was set to
take effect on 1 July 2008.
22.
In view of all of the above, the members of the Chamber agreed that the
Respondent 1 is not to be held liable for any breach of the employment contract
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signed with the Claimant, and consequently, that the Respondent 2 shall not be
held liable for inducement of breach of contract.
23.
Thus, the Chamber decided that the Claimant’s claim for compensation for breach
of contract should be rejected.
24.
The Chamber then turned its attention to the Respondent 1’s counter-claim
against the Claimant. In this context, the deciding authority recalled that the
Respondent 1 had alleged not having received part of his salaries of December
2007, May and June 2008, together with a bonus for having played all the matches
of the season 2007-2008.
25.
In this regard, the Chamber equally noted that the Claimant denied not having
paid part of the salary of December 2007 and that it alleged that it could not pay
part of the salaries of May and June 2008 to the Respondent 1 since his salary was
usually paid to him in cash and that he had left the club before the end of May
2008. Regarding the bonus, the Claimant alleged that should the “private
agreement” be declared null and void, the Respondent should reimburse all
amounts received in accordance with said agreement, i.e. EUR 55,000.
26.
In view of the parties’ positions regarding the Respondent’s 1 claim for
outstanding remuneration, the Chamber first of all noted that regarding the
salary of December 2007, the Claimant had produced evidence in the form of a
payment receipt for the amount of EUR 1,200 dated 14 January 2008, which bears
the signature of the Respondent 1 and which mentions that “upon signing the
present I hold no further demands from the company”. On account of the
aforementioned, the Chamber concluded that the Respondent 1 had apparently
received the amount of EUR 1,200 corresponding to the salary of December 2007
in accordance with the Superleague contract. In this regard, the Chamber
understood that the Respondent 1 received a monthly salary of EUR 1,200 in
accordance with the aforementioned contract, his gross salary being of EUR
1,480.24. Finally, the Chamber noted that during the proceedings the Respondent
1 had recognised having received the whole salary of December 2007.
27.
Therefore, the Chamber rejected the Respondent 1’s claim regarding the salary of
December 2007.
28.
The Chamber continued its deliberations by pointing out that the Claimant had
recognised not having paid to the Respondent 1 part of the salaries of May and
June 2008. In this regard, the Chamber strongly affirmed that the reason put
forward by the Claimant for not proceeding to these payments cannot be viewed
as valid. Indeed, these payments were contractually agreed, and the circumstance
that the Respondent 1 had left the country following the end of the championship
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at the end of April 2008 to never return to country G cannot possibly exonerate
the Claimant from its obligation to pay these payments to the Respondent 1.
29.
In continuation, regarding the bonus in the amount of EUR 12,500 and in reply to
the Claimant’s argumentation in respect of such bonus, the Chamber agreed that
although it had declared null and void a particular clause of the “private
agreement”, i.e. art. B.2, this nullity could not be viewed as affecting the rest of
the agreement. In this regard, the Chamber found no reason whatsoever to
invalidate the agreement in its entirety, since it is evident from all the facts and
allegations presented by the parties that the “private agreement” came into
effect, i.e. that the Respondent 1 executed his football duties towards the
Claimant during the season 2007-2008 and that, in return, the Claimant had paid
the Respondent 1 his salary in accordance with the “private agreement”.
30.
In addition, the Chamber took note of the fact that in its claim the Claimant itself
had mentioned and thus admitted that the Respondent 1 had played all
championship matches (cf. point I./7. above). Therefore, the Chamber held that
the Respondent 1 is entitled to the bonus in the amount of EUR 12,500.
31.
In view of the above, and in accordance with the legal principle of pacta sunt
servanda, the Dispute Resolution Chamber decided that the Claimant must pay to
the Respondent 1 the amounts of EUR 2,400 corresponding to the outstanding net
remuneration of May and June 2008 in accordance with the Superleague contract,
together with the bonus of EUR 12,500 mentioned under the “private agreement”
for having played more than 20 championship matches.
32.
The Dispute Resolution therefore concluded its deliberations by reiterating that
the Claimant’s claim against the Respondent 1 as well as the Respondent 2 is
rejected and that the counter-claim of the Respondent 1 is partially accepted in
the sense that the Claimant must pay to him the amount of EUR 14,900 plus 5%
interest per year as from the following day on which the respective amounts
became due, i.e. EUR 1,200 plus 5% interest p.a. as from 1 June 2008, EUR 1,200
plus 5% interest p.a. as from 1 July 2008 and EUR 12,500 plus 5% interest p.a. as
from 1 July 2008.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, F, is rejected.
2.
The counterclaim of the Respondent 1/Counter-Claimant, J, is partially accepted.
3.
The Claimant/Counter-Respondent, F, has to pay to the Respondent 1/CounterClaimant, J, within 30 days as from the date of notification of this decision, the
amount of EUR 14,900 plus interest at 5% p.a. until the date of effective payment
as follows:
5% p.a. as of 1 June 2008 over the amount of EUR 1,200;
5% p.a. as of 1 July 2008 over the amount of EUR 1,200;
5% p.a. as of 1 July 2008 over the amount of EUR 12,500.
4.
In the event that the amount of EUR 14,900 plus interest is not paid within the
aforementioned deadline, the present matter shall be submitted, upon request, to
the FIFA’s Disciplinary Committee for consideration and a formal decision.
5.
Any further request filed by the Respondent 1/Counter-Claimant is rejected.
6.
The Respondent 1/Counter-Claimant, J, is directed to inform the Claimant/CounterRespondent, F, 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.
*****
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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
Enclosed: CAS directives
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