Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 May 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Gerardo Movilla (Spain), member
Philippe Diallo (France), member
Ivan Gazidis (USA), member
on the claim presented by the player
Player A, X,
as Claimant
against the club
Club B, Y,
as Respondent
regarding an employment related contractual dispute
arisen between the player and the club.
I.
Facts of the case
1.
On 31 January 2007 the Y club B (hereinafter: the club) and the X player A
(hereinafter: the player) concluded an employment contract for the period 31
January 2007 to 31 December 2009.
2.
The contract provided the player with a monthly salary of EUR 1,500 (twelve
payments per year), extra payments at Christmas (EUR 1,500), Easter (EUR 750)
and for holidays (EUR 750). The club also contractually agreed to pay the
player the total amount of EUR 93,000 in eight instalments: EUR 15,000 on 31
August 2007, EUR 15,000 on 30 October 2007, EUR 9,000 on 31 March 2008,
EUR 10,000 on 31 May 2008, EUR 10,000 on 31 October 2008, EUR 11,000 on 31
March 2009, EUR 11,000 on 31 May 2009 and EUR 12,000 on 31 October 2009.
With regard to “additional benefits”, the contract refers to the club’s internal
regulations.
3.
Furthermore, a supplementary agreement was concluded the same date as the
main employment contract concluded on 31 January 2007, a so-called “private
contract”, which contains the following:
“On 31 January 2007, the parties concluded the contract for the professional
football player […] for the duration of three years, i.e. from 31 January 2007
through 31 December 2009, subject to the agreements relating thereto. It is
hereby explicitly specified that the actual duration of the abovementioned
contract was agreed as follows: The abovementioned contract expires on 30
June 2007 and may be unilaterally extended by the [club] for one year until 31
December 2009. The [club] has the right to cease to cooperate with the
football player and announce this fact by a non-judicial summons to terminate
this contract between 25 June 2007 and 30 June 2007. […]. This part has been
considered the integral part of the contract since 31 January 2007, and the
contract cannot be concluded without it.”
4.
On 26 February 2007 the player injured his cruciate ligament and meniscus.
According to a written statement by a Y orthopaedic specialist and attached to
the file, the player was required to refrain from athletic training for six months
and receive specific rehabilitation treatment. The club itself confirmed in
writing that the player was injured during a friendly match on 26 February
2007 and that according to the club doctor, he was required to refrain from
training for at least five months.
5.
In a letter dated 2 August 2007, the player lodged a complaint with FIFA
against the club, claiming that the club had breached the contract without just
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
2
cause by not paying the salary contractually due to him and terminating the
contract without his consent. He specifically claims the following:
EUR 6,000 corresponding to four outstanding salary payments for the
period April to July 2007;
EUR 375 in match bonuses;
5% annual default interest on the above two amounts;
EUR 950 for rehabilitation costs incurred by the medical treatment on his
knee;
a ruling that the contractual relationship between the two parties is
terminated through the club’s fault;
EUR 136,000 in compensation corresponding to the remaining value of
the contract, namely the period August 2007 to 31 December 2009;
that the club be ordered to pay the procedural costs.
6.
In letters dated 2 and 8 July 2007 attached to the file, the player served notice
on the Y club to pay the sums of EUR 800 allegedly corresponding to medical
costs incurred during his treatment in X and EUR 4,875 corresponding to three
months’ salary for the months of April, May and June 2007 (EUR 1,500 per
month) and one match bonus (EUR 375).
7.
In support of his claim regarding the costs of treating his injury in X, the player
submits that he had been treated by the club physiotherapist in March and
April 2007. However, the player alleges that in May 2007 the club informed the
player that the medical team would be on holiday for one month and had not
arranged for replacements, and did not respond to the player’s attempts to
contact it on this subject. The player claims that it was for this reason that he
had decided to continue his rehabilitation in X from 30 May 2007. The player
has submitted two invoices, one dated 31 May 2007 for 205 and the other
dated 6 August 2007 for medical treatment between 11 June and 25 July 2007
costing 1,725.
8.
Furthermore, the player has consistently considered himself still being
contractually bound to the club, a fact that could be derived, inter alia, from a
statement of the player dated 12 September 2007.
9.
The club confirms that it had concluded an employment contract with the
player on 31 January 2007 and that it had reserved the right in an agreement
attached to the contract to unilaterally terminate the relationship at the end
of the 2006-07 season.
10.
The club confirms that the player was injured in March 2007 and was treated
in Y. Nevertheless, the club claims that the player left for X in May 2007.
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
3
Following the player’s departure, the club alleges that it informed the player
that their contractual relationship would terminate in accordance with the
“private contract” attached to the employment contract and signed on 31
January 2007 and claims that it had requested the player to return to Y to
settle any differences between them. According to the club, the player
returned to X at his own initiative and responsibility.
11.
Furthermore, the club alleges that the player then signed a “solemn
statement“ of mutual termination of the employment contract on 4 July 2007.
In support of this allegation, the Y club has submitted to FIFA a copy of two
statements
allegedly
signed
by
the
player
and
the
club’s
representative stipulating that the employment contract between the player
and the Y club had been terminated by mutual consent and that the player
had no further financial claims on the club. The club therefore claims that the
contractual relationship between it and the player was terminated on 4 July
through the above-mentioned statement.
12.
Consequently, the club rejects the player’s claim with regard to the payment of
EUR 136,000 due to the fact that the player had terminated the contract of his
own free will. The club also rejects the player’s claim of EUR 950 for medical
expenses, alleging that the player had voluntarily discontinued his treatment
in Y.
13.
As for the player’s claim for EUR 6,000 in unpaid salary, the club has confirmed
that it owes the player EUR 4,500 for April, May and June 2007, as the player
terminated his contractual relationship with the club on 4 July 2007. The club
further claims that said amount of EUR 4,500 is in the player’s possession. In a
communication dated 11 January 2008 the club submitted a document in Y
confirming – according to the club – the payment of EUR 4,500 into the
player’s bank account. The alleged transfer of funds elicited no response from
the player.
14.
In a letter dated 26 October 2007, the player reacted to these allegations by
stating that he had not left Y of his own free will but because the club’s
medical staff had ceased to provide him with the necessary care. Furthermore,
the player denies that the club had requested him to return to Y to settle the
differences between the two parties to the contract. The player claims that the
club broke off all contact with him after he had left the country. The player
claims that he visited Y at the beginning of July 2007 but only for the
following reasons: to ensure that his medical treatment continued in Y, to seek
reimbursement of the medical expenses incurred in X and to secure payment
of his salary.
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
4
15.
With regard to the agreement mutually terminating the employment contract
that was allegedly signed on 4 July 2007, the player claims that it is a forgery,
that he did not sign any such document, that he did not meet representatives
of the club on 4 July 2007 but returned to X by air at 4.30 am on 4 July 2007
after an unsuccessful attempt at negotiations with the club on 3 July 2007. To
support this allegation, the player has submitted written testimonies signed by
three persons who declare that they met the player in X on 4 July 2007. A
statement signed by another Mr A confirms that he collected the player from Z
airport, X at 6am on 4 July 2007.
16.
The club did not add any further commentary to the position of the player.
However, it reaffirmed that there was no contractual relation between the
club and the player anymore and that it had offered the player “the payment
of salaries due to the amount of EUR 6,000”.
17.
In response to FIFA’s request to provide the original of the agreement
allegedly mutually terminating the employment contract, the club indicated
that the original was with the Y Football Federation. The club further submits
that a decision was taken by the Y Football Federation on 22 February 2008
which establishes that the employment contract had been terminated.
18.
The Y Football Federation was asked several times to provide FIFA with the
said original document and the decision allegedly taken by one of its
committees, but was not able to comply with the request.
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, it took note that the
present matter was submitted to FIFA on 2 August 2007. 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. 18 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 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 X player and a Y club.
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
5
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 2008), and considering that the present claim was lodged on 2
August 2007, the previous version of the regulations (edition 2005; 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. The
members of the Chamber carefully studied the facts outlined above as well as
the entire documentation on file. In this respect, the Chamber noted that, on
31 January 2007, the parties involved in the present dispute concluded an
employment contract for the period 31 January 2007 to 31 December 2009. In
addition, a “private contract” was signed by the said contractual parties on 31
January 2007.
5.
Furthermore, the Chamber turned its attention to the player’s complaint
lodged with FIFA on 2 August 2007, by which the player claims that the club
had breached the contract without just cause by not paying the salary
contractually due to him, in spite of having put the club in default in writing,
and terminating the contract without his consent. In this respect, the Chamber
noted that the player specifically claims the following:
EUR 6,000 corresponding to four outstanding salary payments for the
period April to July 2007;
EUR 375 in match bonuses;
5% annual default interest on the above two amounts;
EUR 950 for rehabilitation costs incurred by the medical treatment on his
knee;
a ruling that the contractual relationship between the two parties is
terminated through the club’s fault;
EUR 136,000 in compensation corresponding to the remaining value of
the contract, namely the period August 2007 to 31 December 2009;
that the club be ordered to pay the procedural costs.
6.
In this respect, the Chamber took note of the club’s position confirming that
the player was injured in March 2007 and was treated in Y. On the other hand,
the Chamber took into account that the club claims that the player left for X in
May 2007, which circumstance was indicated by the player himself in his claim.
Following the player’s departure, the club alleges that it informed the player
that their contractual relationship would terminate in accordance with the
“private contract” and claims that it had requested the player to return to Y to
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
6
settle any differences between them. The members of the Chamber took into
account that the club had failed to present documentary evidence in respect of
these allegations.
7.
Concerning the alleged termination of the employment contract in accordance
with the “private contract” concluded between the two parties, the members
of the Chamber acknowledged that the club affirmed that it had concluded an
employment contract with the player on 31 January 2007 and that it alleges to
have reserved the right in the “private contract” to unilaterally terminate the
contractual relationship at the end of the 2006-07 season. The player, for his
part, had always consistently considered himself contractually bound to the
club, a fact that could be derived, inter alia, from a petition of the player
dated 12 September 2007.
8.
In this respect, the Chamber acknowledged that the “private contract”
contains a clause stating that the employment relation with the player “expires
on 30 June 2007, and may be unilaterally extended by the [club] for one year,
until 31 December 2009”. Furthermore, the Chamber also noted that this
additional agreement stipulates that the club has the right to terminate the
contractual relationship with the player and that the club may notify this fact
between 25 and 30 June 2007.
9.
Furthermore and with regard to the stipulated duration of the employment
contract, the Chamber emphasised that the duration stipulated in the main
employment contract and in the introduction part of the “private contract”
(i.e. 31 January 2007 until 31 December 2009) contradicted the duration
stipulated in the lower part of the same “private contract” (i.e. 31 January
2007 until 30 June 2007 with unilateral option for the club to extend the
contract for one year until 31 December 2009). What is more, it appears thus
that the “private contract” is also in contradiction with itself given that
according to its wording the extension is referred to being one year and until
31 December 2009 at the same time.
10.
The club asserts that it informed the player after his departure to X, without
any indication of a date, that the relevant employment contract would be
terminated in accordance with the “private contract”, thus referring to the
aforementioned unilateral option for the club to extend or not the
employment contract. Regardless of the fact that the club has failed to
produce any written evidence of such alleged facts and regardless of the
Chamber’s above-mentioned findings, with respect to the said unilateral
option, the Chamber wished to recall that, as a general rule and in accordance
with its established jurisprudence, a clause which gives one party the right to
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
7
unilaterally cancel or lengthen the contract, without providing the counterparty with same rights, is a clause with disputable validity.
11.
In the case at hand, the extension/termination option contained in the “private
contract” is unilateral to the benefit of the club only, i.e. the stronger party in
the employment relationship.
12.
On account of the aforesaid, the Chamber wished to point out that even if the
club had proven that the employment contract had expired on 30 June 2007
such as indicated in the “private contract”, the pertinent clause would not
have been considered due to its unacceptable unilateral character and its
contradictory content.
13.
Subsequently, the Chamber agreed that the pertinent clause of unilateral
character contained in the “private contract” shall not be legally binding on
the player.
14.
Continuing, the Chamber acknowledged that the club, in addition, alleges that
the player signed a “solemn statement“ of mutual termination of the
employment contract on 4 July 2007. In support of this allegation, the Y club
has submitted to FIFA a copy of two statements allegedly signed by the player
and the club’s representative stipulating that the employment contract
between the player and the Y club had been terminated by mutual consent
and that the player had no further financial claims towards the club. The club
therefore claims that the contractual relationship between it and the player
was terminated on 4 July 2007 through the above-mentioned statement.
15.
Furthermore, the Chamber acknowledged that the player claims that the said
statement is a forgery, that he did not sign any such document, that he did not
meet representatives of the club on 4 July 2007 but returned to X by air at 4.30
am on 4 July 2007 after an unsuccessful attempt at negotiations with the club
on 3 July 2007. In this respect, the members of the Chamber also recalled that
according to the player he returned to Y in the beginning of July 2007 to
secure payment of this salary, seek medical treatment in Y and reimbursement
of his medical expenses.
16.
With regard to the player’s allegation that he never signed the “solemn
statement” presented by the club and that the submitted document must have
been forged, the Chamber took into consideration that FIFA had requested to
be provided with the original of the statements allegedly mutually terminating
the employment contract and that the club, in reply, merely indicated that the
original was with the Y Football Federation. Furthermore, the Chamber also
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
8
considered that the club further submits that a decision was taken by the Y
Football Federation on 22 February 2008 which establishes that the
employment contract had been terminated. In this respect, the Chamber
emphasised that, however, the Y club had never claimed that the Dispute
Resolution Chamber is not competent to pass a decision in this case or
submitted any documents in support of this allegation. Furthermore, the
Chamber noted that the Y Football Federation was asked to provide FIFA with
the said original of the “solemn statement” and the decision allegedly taken
by one of its committees, but was not able to comply with such request.
17.
On account of the findings under point II.16 above, the Chamber concluded
that it could not take the aforementioned “solemn statements” into account.
18.
Taking into account all of the above, the Chamber concluded that the
pertinent employment contract neither was terminated on 30 June 2007 nor
on 4 July 2007 by mutual consent of the two parties.
19.
Consequently, the Chamber stated that it had to analyze whether or not the
pertinent employment contract had been terminated with or without just
cause, and to establish which party is to be held liable for any breach of
contract and the consequences resulting therefrom.
20.
The Chamber noted that in the case at stake the player maintains not having
received his salaries for the months of April, May, June and July 2007, as well
as match bonuses of EUR 375 and the reimbursement of EUR 950 for
rehabilitation costs incurred by the medical treatment on his knee. Due note
was taken that, on 2 and 8 July 2007, the player had put the club in default in
writing of payment of, inter alia, his salary as of April 2007.
21.
In this respect, the Chamber stated that as for the player’s claim for EUR 6,000
in unpaid salary, the club has acknowledged its debt towards the player in the
amount of EUR 4,500 for the salaries of April, May and June 2007. Moreover,
the Chamber also pointed out that the club had offered to pay the player
“salaries” in the amount of EUR 6,000 by correspondence submitted to FIFA on
5 December 2007. Furthermore, the members of the Chamber took due note of
the fact that the club invoked having transferred the amount of EUR 4,500 to
the player’s account by instruction on 14 January 2008, and that the player
never contested having received this amount on his account.
22.
On account of the aforesaid, the Chamber established that the club had always
affirmed and acknowledged owing the player the amount corresponding to
three or even four salaries, but that it had only paid the said amount almost
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
9
five months after the player had lodged a complaint with FIFA against it. In
this respect, the Chamber stated in accordance with its longstanding practice
that, as a general rule, the persistent failure of a club to pay the salaries of a
player, without just cause, is to be considered as a unilateral breach of an
employment contract.
23.
With regard to the possible existence of a just cause for not paying the salaries
of the player for the relevant period, the Chamber took into account that the
club merely alleged that, after the departure of the player for X in May 2007, it
informed him that their contractual relationship would terminate in
accordance with the “private contract” attached to the employment contract
and signed on 31 January 2007 and that it had requested the player to return
to Y to settle any differences between them. In this respect, the Chamber
noted that the player contests that the club had requested him to return to Y.
The Chamber established that the club has not provided any proof in support
of its allegations in this regard. In any way, any alleged notice of termination
of the employment contract on 30 June 2007 cannot be considered a just cause
for not paying the player’s salaries as of April 2007.
24.
Therefore, the Chamber concluded that, on the basis of the submitted
documentation, they were not able to detect a just cause for not paying the
player’s salaries for the months of April to July 2007.
25.
On account of all of the above, the Chamber decided that the club had
breached the employment contract without just cause and that the contract
was to be considered as terminated as from 1 August 2007. Consequently,
taking into consideration art. 17 par. 1 of the Regulations and the constant
jurisprudence of the Dispute Resolution Chamber, the Chamber decided that
the player is entitled to receive an amount of money as compensation in
addition to any outstanding payments on the basis of the employment
contract.
26.
Furthermore and with respect to the player’s claim for match bonuses in the
amount of EUR 375, the Chamber emphasised that the player did not provide
any documentation in order to establish his entitlement to receive such a
bonus. In this respect, the Chamber noted that the claim for EUR 375 was not
substantiated and thus had to be rejected.
27.
Turning its attention to the player’s financial claim and the aforementioned
considerations, the Chamber determined that the player had, in January 2008,
received the amount of EUR 4,500 from the club and that therefore the
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
10
Chamber only accepted the claim of the player for outstanding salaries in the
amount of EUR 1,500.
28.
With regard to the claim for outstanding salaries, the Chamber acknowledged
that the player asks for interest of 5% per annum over the amount due. In this
respect, the Chamber decided that in the specific case at hand the club has to
pay to the player interest of 5% p.a. over EUR 1,500 as from 31 July 2007.
29.
Continuing, the members of the Chamber turned their attention to the
player’s claim for EUR 136,000 as compensation for the breach of contract by
the club corresponding to the remaining value of the employment contract,
namely the period August 2007 to 31 December 2009.
30.
In this regard, the members of the Chamber stressed that they had already
determined that the club had breached the employment contract by not
paying the salaries to the player without being able to establish a just cause
and that therefore the player is entitled to receive compensation from the
club.
31.
In this respect, the Chamber, however, added that with regard to the
outstanding payments, the player’s claim for compensation to the amount of
EUR 136,000 corresponding to the remaining value of the contract, namely the
period August 2007 to 31 December 2009, appeared to be disproportionate in
the specific case at hand. Consequently, the Chamber decided to award a
compensation of EUR 67,000 to the player consisting of twelve monthly salaries
of EUR 1,500 as from August 2007 until July 2008 and the contractually
stipulated instalments for the same period of time, i.e. EUR 15,000 on 31
August 2007, EUR 15,000 on 30 October 2007, EUR 9,000 on 31 March 2008,
EUR 10,000 on 31 May 2008.
32.
Moreover and with regard to the player’s claim for EUR 950 for rehabilitation
costs incurred by the medical treatment on his knee, the Chamber took note
that the club also rejects the player’s claim of EUR 950 for medical expenses,
alleging that the player had voluntarily discontinued his treatment in Y. On
the other hand, the Chamber also acknowledged that the player reacted to
these allegations by stating that he had not left Y of his own free will but
because the club’s medical staff had ceased to provide him with the necessary
care and that, furthermore, the club had not requested him to return to Y.
Moreover, the Chamber noted that the club did not respond to these
allegations of the player and thus did not contest the player’s depiction of the
facts. In addition, the club confirmed that the player got injured in March
2007.
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
11
33.
On account of the above, the Chamber concluded to oblige the club to
reimburse the player for rehabilitation costs incurred by the medical treatment
on his knee during a match.
34.
In this respect, the Chamber pointed out that the player only provided two
invoices in the amount of 1,725 and 205 for knee-related medical treatment.
Accordingly, the Chamber decided to attribute the respective amount of 1,930,
corresponding to an amount of EUR 547 to the player. The Chamber
emphasised that the player did not substantiate with any relevant
documentary evidence any further entitlement to a reimbursement of the
alleged rehabilitation costs incurred by the medical treatment.
35.
With respect to the player’s request that the club shall pay the procedural costs,
the Chamber decided to reject the relevant request in conformity with art. 15 par.
3 of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber.
36.
Finally and on account of all of the above, the Chamber concluded that the
club has to pay the total amount of EUR 69,047 to the player.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, is ordered to pay the amount of EUR 69,047 to the
Claimant within 30 days as of notification of the present decision.
3.
The Respondent has to pay to the Claimant within 30 days of notification of
the present decision interest of 5% p.a. over EUR 1,500 as from 31 July 2007
until the date of effective payment.
4.
In the event that the club, Club B, does not comply with points III.2. and III.3. of
the present decision within the stated time limit, 5% interest p.a. on the
amount of EUR 67,547 will fall due as of expiry of the aforementioned 30 days
time limit and the matter shall be submitted to FIFA’s Disciplinary Committee
for its consideration and decision.
5.
The Player A is directed to inform Club B directly and immediately of the
account number to which the remittance is to be made, and to notify the
Dispute Resolution Chamber about any receipt of the payment.
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
12
6.
According to art. 61 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
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
13