Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Johan van Gaalen (South Africa), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
L,
as Claimant
against the club,
A,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 14 August 2008, the player L (hereinafter: Claimant) and the club A (hereafter:
Respondent) signed an employment contract valid until 31 May 2009.
2.
Under the terms of this contract, the Claimant was entitled to receive a total net
salary of EUR 20,000, payable in eight equal instalments of EUR 2,500, the first
instalment being due on 30 September 2008 and the final instalment on 30 April
2009.
3.
On 15 August 2008, the parties also signed an additional “agreement”, under the
terms of which the Claimant was entitled to receive extra net remuneration of a
total of EUR 44,000, payable in eight equal instalments of EUR 5,500, the first
instalment being due on 30 September 2008 and the final instalment on 30 April
2009.
4.
Furthermore, according to this “agreement”, the Respondent also agreed to cover
the costs of the Claimant’s accommodation as well as a family air ticket between
Larnaca and Paris.
5.
On 7 January 2009, the Claimant filed a claim with FIFA against the Respondent
for failing to pay his salary and for terminating his contract without just cause. In
this regard, the Claimant asserted that he had not received a total of EUR 24,500,
corresponding to outstanding salaries as from September 2008 until December
2008.
6.
In this regard, the Claimant stated that he had given the Claimant notice
regarding these payments in letters dated 24 November and 29 December 2008.
Furthermore, he said that the Respondent had not covered the costs of the
accommodation for the months of October, November and December 2008, which
according to the Claimant cost EUR 750 per month.
7.
Furthermore, the Claimant stated that on 30 December 2008, the Respondent’s
vice-president had verbally notified him of the termination of his contract in a
demeaning manner in front of the entire squad and technical team. According to
the Claimant, on the very same day the Respondent had asked him to sign a
document stating that he alone had been responsible for the termination of the
contract as he had an Achilles injury, which, even though true, actually only served
to conceal the Respondent’s intention to dispose of his services at all costs. The
Claimant stated that he had refused to sign this document.
8.
Consequently, after amending his claim on 7 June 2009, the Claimant stated that
he believed he was entitled to receive the following sums in outstanding salary
payments, reimbursement of accommodation and transport costs, and
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compensation for his contract being terminated by the Respondent without just
cause:
- EUR 24,500 in outstanding salary payments,
- EUR 2,589.57 as a reimbursement for accommodation costs,
- EUR 451.07 as a reimbursement for a plane ticket between Larnaca and Paris
allegedly paid for by the Claimant himself,
- EUR 32,000 in compensation for the Respondent terminating his contract
without just cause, corresponding to the remaining value of the two contracts,
- EUR 24,000 in additional damage and interests for having been made
redundant without just cause.
9.
In its response to the Claimant’s claim, the Respondent confirmed that it had
signed an employment contract with the Claimant for the 2008-2009 season, and
that under the terms of this contract, the Claimant had been entitled to receive
the sum of EUR 20,000, payable in eight equal instalments of EUR 2,500.
10.
Furthermore, the Respondent noted that on 7 November 2008, i.e. one day before
an official match, the Claimant had visited a discotheque and had failed to report
to the Respondent the day after, therefore violating his contractual obligations.
According to the Respondent, the Claimant had received a severe warning in this
regard.
11.
In addition, the Respondent noted that the Claimant had failed to attend training
between 19 November and 21 November 2008, claiming to be injured. As a result,
the Respondent’s doctors had examined him and had informed the Respondent
that the tests indicated that the Claimant would be able to train. However,
despite the conclusions of the Respondent’s doctors, the Claimant had allegedly
not reported to the club for 15 days.
12.
According to the Respondent, it had then sent the Claimant a letter on 27
December 2008, informing him that his contract was being terminated as he had
seriously violated his contract. The Respondent stated that this letter had also
been sent to the Cyprus Football Association.
13.
The Respondent also noted that it had paid the Claimant the sum of EUR 9,070
between the start of the contract and its termination.
14.
Finally, the Respondent stated that on 7 January 2009, i.e. after the contract had
been terminated, the Claimant had been arrested for driving under the influence
of alcohol and had been imprisoned until the Respondent intervened to secure his
release.
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15.
Therefore, for all of these reasons, the Respondent rejected all of the Claimant’s
demands.
16.
In his replica, the Claimant reiterated that under the terms of his contract and the
additional “agreement”, he had been entitled to the total remuneration of EUR
64,000, payable in eight equal monthly instalments of EUR 8,000. However,
according to the Claimant, he had only received the total remuneration of EUR
7,500 by 30 December 2008, the date on which he had been notified of the
contractual termination. In this regard, the Claimant noted that the Respondent,
who did not seem to be making any reference to the “agreement” that the
parties had signed on 15 August 2008, had confirmed that it had paid him the sum
of EUR 9,070.
17.
Therefore, according to the Claimant, there was no doubt that the Respondent
had violated its contractual obligation towards him for several months and that
the Respondent had paid him the sum of EUR 9,070, whereas he should actually
have received the sum of EUR 32,000 by 30 December 2008. Consequently, the
Respondent owed him EUR 24,500, which according to the Claimant equated to
three months’ salary. Furthermore, after analysing the receipts provided by the
Respondent, the Claimant claimed that the receipts dated 19 October 2008 for
EUR 300 and 3 December 2008 for EUR 170 had been match bonuses rather than
his fixed salary. In addition, the Claimant upheld his claim regarding the
Respondent not covering his rent, despite the terms in his contract.
18.
In relation to the Respondent’s allegations regarding him supposedly visiting a
discotheque, the Claimant noted that this claim had not been backed up by any
concrete evidence.
19.
In relation to the claim regarding an injury and a prolonged absence from the
Respondent, the Claimant denied having faked an injury and also denied being
absent from the club. According to the Claimant, he had reported to the
Respondent’s medical team each day to receive treatment for his injury.
Furthermore, he had been forced to train alone at the Respondent’s orders. The
Claimant noted that it had been confirmed that he had an Achilles injury, as
shown by a doctor’s certificate dated 3 December 2008 on file.
20.
Finally, the Claimant stated that he believed the Respondent was trying to
discredit him by referring to his arrest by the police when, according to the
Claimant, he had actually only been arrested but not imprisoned. Furthermore, he
had actually flown to Paris at 10.00 a.m. on 7 January 2009, as proven by the
receipt for a plane ticket in the file.
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21.
Therefore, the Claimant stated that it was clear that all of the conditions for the
Respondent terminating his contract without just cause had been met in this case.
He therefore upheld his claim in its entirety.
22.
In its duplica, the Respondent reiterated its initial position, but added that on 17
March 2009, there had been a request for an International Transfer Certificate
(ITC) from the Romanian Football Federation in relation to the Claimant, and that
it had not objected to the issuance of the relevant ITC.
23.
With regard to his contractual situation since the termination of his contract with
the Respondent, the Claimant stated that he had signed an employment contract
with the club C on 16 March 2009, valid until 30 June 2009. Under the terms of this
contract, he was entitled to receive the following:
- EUR 1,750 net as an advance on his salary for March 2009,
- 3 x EUR 3,500 net as a monthly salary for the months of April, May and June
2009.
24.
However, according to the Claimant, with the exception of the advance on his
salary (EUR 1,750 net), CS Fotball Club had not honoured any of its financial
obligations. He filed a complaint in front of FIFA regarding this particular dispute
with the aforesaid club.
25.
Finally, the Claimant stated that he has been unemployed since 30 June 2009.
II.
Considerations of the Dispute Resolution Chamber
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 7
January 2009. 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 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 French player and a Cypriot club.
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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 7 January
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 Dispute Resolution Chamber as well as the applicable
regulations having been established, and entering into the substance of the
matter, the Chamber started its deliberations by acknowledging the abovementioned facts as well as the documentation contained in the file.
5.
In this regard, the Chamber duly noted that the parties signed an employment
contract valid as from 14 August 2008 until 31 May 2009. Furthermore, the
Chamber noted, on the one hand, that the Claimant alleged having been
dismissed by the Respondent without just cause and that, prior to his dismissal, the
Respondent had not paid him a total of EUR 24,500 in outstanding salary
corresponding to the period September-December 2008. Equally, the Claimant
claimed that the Respondent should reimburse to him his accommodation costs in
the amount of EUR 2,589.57 as well as the flight ticket which he allegedly had to
pay to return to France following his dismissal, in the amount of EUR 451.07.
Finally, the Claimant claims compensation in the amount of EUR 32,000
corresponding to the remaining value of the employment contract as well as the
“agreement”, and EUR 24,000 as additional compensation for the damage of
having been made redundant without just cause.
6.
In continuation, the Chamber, remarked, on the other hand, that the Respondent
denies the Claimant’s claim in its entirety. In this regard, the Respondent
underlined that the Claimant had received a warning prior to his dismissal due to
the fact that he had allegedly spent the night at a discotheque one day before a
match and that the following day he did not show up for the match, therefore
violating his contractual obligations. The Respondent also stated that the Claimant
did not show up for the trainings between 19 November and 21 November 2008,
alleging an Achilles injury. However, after having been examined by the club’s
doctor, the latter declared the Claimant fit for trainings. The Claimant then
allegedly did not show up for the trainings during 15 days. Thus, in view of the
Claimant’s alleged misconduct, the Respondent sent a letter to the Claimant on 27
December 2008 informing him of his dismissal for all of the aforementioned
reasons. Finally, the Chamber noted that the Respondent had acknowledged
having paid the Claimant an amount of EUR 9,070 until the termination of the
employment contract, i.e. the end of December 2008, and that this allegation was
supported by some receipts produced by the Respondent, which were all signed by
the Claimant.
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7.
In this context, and before examining the question of the early termination of the
employment contract as well as the “agreement”, the Chamber noted that the
Claimant had asserted that at the moment of his dismissal, the Respondent was in
default regarding the payment of his salary. The Claimant had indeed claimed
that the Respondent owed him EUR 24,500 in outstanding salary payments. In this
regard, the Chamber also took note of the fact that the Respondent had
presented some payment receipts in the total amount of EUR 9,070 and that these
receipts were all signed by the Claimant. In reply to the Respondent’s submission
regarding a payment of EUR 9,070, the Claimant had insisted on the fact that the
outstanding amount due to him by the Respondent under the terms of the
employment contract was of EUR 24,500 and that the receipts dated 19 October
2008 for EUR 300 and 3 December 2008 for EUR 170 corresponded to some match
bonuses rather than his fixed salary. Finally, the Chamber acknowledged the
Claimant’s assertion that up to 30 December 2008, he should have received a total
salary of EUR 32,000, whereas the Respondent had only admitted having paid him
EUR 9,070 in total; therefore, the Claimant believes that the Respondent should
pay him EUR 24,500 in outstanding salaries.
8.
In light of both parties’ allegations regarding outstanding salaries, the members
of the Chamber deemed important to establish that both parties concur on the
fact that the Claimant received from the Respondent a total of EUR 9,070 for the
period September-December 2008. In this regard, the Chamber underlined that it
could not consider the Claimant’s allegation that the amounts received as per
receipts dated 19 October 2008 and 3 December 2008 (i.e. in total EUR 470; cf.
point II.7. above) were payments received as bonuses rather than fixed salary, as
this allegation was not supported by any documentary evidence (cf. art. 12 par. 3
of the Procedural Rules). Therefore, the Chamber concluded that the Claimant had
received the previously mentioned amount of EUR 9,070 as salary, whereas he
should, under the employment contract as well as the “agreement”, have
received, up to 30 December 2008, four instalments of EUR 2,500 each in
accordance with the employment contract, and four instalments of EUR 5,500 each
in accordance with the “agreement”, i.e. in total EUR 32,000.
9.
In view of the aforementioned, the Chamber established that at the moment of
the Claimant’s dismissal, the Respondent had been in default towards the
Claimant and that the outstanding amount of salary due to him was of EUR
22,930.
10.
The Dispute Resolution Chamber therefore held that, in accordance with the basic
legal principle of pacta sunt servanda, the Respondent must fulfill its obligations
as per the contracts entered into with the Claimant and, consequently, pay the
outstanding remuneration in the amount of EUR 22,930 which is due to the latter.
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11.
In addition, the Chamber took due note of the Claimant’s claim regarding the
reimbursement of his flight ticket, which he allegedly had to pay himself in order
to return to France following his dismissal. In this regard, the Chamber underlined
that the employment contract states that the Respondent would cover the costs of
one flight ticket for the Claimant’s family, and that the Claimant indeed appears
to have paid said ticket himself, as is evidenced by a receipt provided by the
Claimant to FIFA. Therefore, the Chamber decided that the Respondent should
reimburse the Claimant the amount of EUR 451 in order to cover the cost of his
flight ticket which he had to pay himself.
12.
In continuation, the Chamber focused its attention on the question of the early
termination of the employment contract between both parties. In this respect, the
Chamber established that although the Respondent has clearly recognised having
dismissed the Claimant on 27 December 2008, the parties have divergent opinions
regarding the question as to whether this dismissal was with or without just cause.
In this regard, the members of the Chamber were eager to emphasise that the
Respondent had put forward several allegations regarding the Claimant’s
behaviour, i.e., first of all, the fact that he had gone to a discotheque one day
before a match and that he had not showed up on the following day for the said
match, and, moreover, the fact that the Claimant did not participate in the club’s
trainings for several days, although the club’s doctor had declared him fit.
13.
At this stage, the Chamber was eager to recall that in accordance with the rule of
burden of proof mentioned in art. 12 par. 3 of the Procedural Rules, a party
claiming a right on the basis of an alleged fact shall carry the burden of proof. In
this respect, the Chamber noted that the allegations made by the Respondent
regarding the Claimant’s conduct had not been supported by any documentary
evidence. Therefore, the Chamber came to the conclusion that it had no other
alternative but to reject the allegations on the Claimant’s conduct due to a lack of
evidence.
14.
As a consequence of the foregoing considerations, the Chamber decided that, in
the absence of any convincing evidence to the contrary, it must conclude that the
Respondent terminated the employment contract as well as the “agreement”
unilaterally and without just cause on 27 December 2008.
15.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber lent
particular emphasis to the consequences of such breach of contract. 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 contracts.
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16.
In view of the aforementioned, the outstanding payments on the basis of the
relevant contracts having been established above (cf. points II.10 and II.11 above),
the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. 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.
17.
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
regard, the Chamber established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
18.
In view of the above, prior to assessing the relevant criteria in determining the
amount of compensation due to the Claimant by the Respondent, the Chamber
first of all recalled that the Claimant is claiming EUR 32,000 in compensation for
the Respondent terminating his contract without just cause, corresponding to the
remaining value of the employment contract as well as the “agreement”, together
with EUR 24,000 in additional damage and interests for having been made
redundant without just cause.
19.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by the Respondent, the members of the Chamber took into account the
remuneration due to the Claimant in accordance with the employment contract
and additional “agreement” as well as the time remaining on the same contracts,
as well as the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber took into account that the total monthly
salary of the Claimant under the two contracts concluded by the parties was of
EUR 8,000 payable in eight instalments as from30 September 2008 until 30 April
2009 . Furthermore, the Chamber pointed out that at the time of the unilateral
termination of the employment contract and the “agreement” by the
Respondent, five months of contract were remaining, although the Claimant was
entitled to four instalments, i.e. as from January 2009 until and including April
2009, under each contract, i.e. in total EUR 32,000. Consequently, the Chamber
concluded that the amount of EUR 32,000 serves as the basis for the final
determination of the amount of compensation for breach of contract.
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20.
Indeed, the Chamber remarked that the Claimant had apparently found new
employment with a club, C, as from 16 March 2009 until 30 June 2009. According
to the employment contract which the Claimant signed with C Club, the Claimant
was entitled to an advance of EUR 1,750 net, as well as three monthly salaries of
EUR 3,500 net each. In this regard, the Chamber duly took into account the
Claimant’s assertion that the aforementioned club had allegedly failed to execute
its financial obligations towards him in that it had only paid him the advance of
EUR 1,750 net. However, the Chamber was keen to underline that the amounts
not received from the Romanian club would, if at all, be the object of a separate
dispute involving the club in question, and therefore such position could not be
taken into consideration in the context of the present case. Consequently, in
accordance with the constant practice of the Dispute Resolution Chamber and the
general obligation of the Claimant 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.
21.
In view of all of the above, and the circumstances of the case at hand, the
Chamber decided that the Respondent must not pay the entire residual value of
the contract but the amount of EUR 25,000, which is to be considered reasonable
and justified as compensation for breach of contract.
22.
Finally, the Chamber addressed the Claimant’s claim regarding the reimbursement
of accommodation costs and pointed out that in accordance with its wellestablished jurisprudence, since no specific amount was mentioned in the
employment contract or in the “agreement” in relation to the Claimant’s
accommodation, the deciding authority was not in a position to set a monetary
value on the rental costs which should have been paid by the Respondent.
Consequently, the Chamber decided to reject the Claimant’s claim for the
reimbursement of costs linked to accommodation.
23.
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 48,381 to the Claimant, consisting of EUR 22,930 of outstanding salaries,
EUR 451 as reimbursement of a flight ticket and of EUR 25,000 as compensation
for breach of contract, and that any further claims lodged by the Claimant are
rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, L, is partially accepted.
2.
The Respondent, club A, has to pay to the Claimant outstanding remuneration
amounting to EUR 23,381 within 30 days as from the date of notification of this
decision.
3.
The Respondent, club A, has to pay to the Claimant compensation for breach of
contract in the amount of EUR 25,000 within 30 days as from the date of
notification of this decision.
4.
If the aforementioned sums are not paid within the aforementioned deadline,
interest at the rate of 5% per year will apply as of expiry of the stipulated time
limit and 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 Claimant is rejected.
6.
The Claimant, L, is directed to inform the Respondent, club A, 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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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