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,
X, XX,
as “Claimant”
against the club,
Y, YY,
as “Respondent”
regarding a contractual dispute arisen between the parties involved.
I.
Facts of the case
1.
The XX player X and the ZZ club, Z (“Z”) signed an employment contract valid
from 1 July 2006 to 30 June 2009.
2.
A copy of the employment contract was remitted to the Dispute Resolution
Chamber.
3.
At a later date, the ZZ club signed with the YY club, Y, an agreement for the loan
of the player X to Y for the duration from 20 July 2007 until 20 July 2008. In this
connection, on 20 July 2007, the player in question and Y signed an employment
contract for the relevant period of the loan to Y, i.e. for the period of the season
2007/2008.
4.
According to the employment contract, the player was inter alia entitled to
receive for the season 2007/2008 a total amount of EUR 200,000 as follows:
down payment (total): EUR 50,000 (EUR 10,000 cash and EUR 40,000 by
cheque due on 1 August 2007;
monthly payment:
EUR 5,000 x 10 months (EUR 50,000), starting
from August 2007;
per game payment:
USD 100,000 divided to 34 games
5.
Moreover, it was agreed that Y would provide the player with a house and a car
and would pay the rent of the house. It was also agreed that the player would be
given 2 flight tickets on the itinerary ……for him and his family.
6.
Furthermore, point 7 of the relevant contract provides that the contract is valid
after the player’s International Transfer Certificate (ITC) arrives to the YY Football
Federation.
7.
By means of a letter dated 1 October 2007, the player X terminated the
employment contract he entered into with Y. The player maintains that the YY
club, after a few weeks of training, denied him to participate in the club’s training
and did not adhere to the contractual terms by failing to pay any of his salaries. In
this context, the player submitted correspondences dated 16 August 2007 sent to
Y by means of which he drew the YY club’s attention to its breach of contract and
invited the latter to ensure that he may participate in the trainings.
Player X, XX / Club Y, YY
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8.
Furthermore, the player added that the YY club, Y, had also omitted to ask the
Association of his former club, i.e. the ZZ Football Federation , for the issuance of
his ITC. In lieu thereof, the player deems having had just cause to prematurely
terminate the employment contract with Y.
9.
Likewise on 1 October 2007, the date the player terminated the contract with Y,
he signed an employment contract with the XX club, U, valid from 1 October 2007
to 31 December 2007. According to the said contract, the player was entitled to
receive a monthly salary of … 30,000 as well as match bonus.
10.
Thereupon, on 2 October 2007, the Football Association of XX requested the ZZ
Football Federation to issue the ITC for the player X, in order to register the player
for its member club, U, as a professional.
11.
Also within the procedure before the Single Judge of the Players’ Status
Committee related to the issuance of the player’s ITC, the YY club, Y, informed
that it never signed the standard employment contract with the player X, for
which reason, eventually, his transfer to Y could not be completed. Besides, Y
avowed that it actually never registered the player for Y with the YY Football
Federation.
12.
On 20 November 2007, the Single Judge of the Players’ Status Committed decided
that under the given circumstances, the Football Association of XX could be
authorized to provisionally register the player X for its affiliated club, U, pending
the outcome of the contractual dispute between the player and Y. However, in
view of the duration of the contract concluded between the player and the XX
club, U, as well as the contractual relationship between the player and Z, this
authorisation was limited in time until 31 December 2007.
13.
On 4 January 2008, the player signed another employment contract with U valid as
from 1 January 2008 until 30 June 2008. According to this employment contract,
the player was entitled to receive a monthly salary of… 40,000 as well as match
bonus. In the relevant procedure before the Single Judge, neither the ZZ club, Z,
nor the YY club, Y, provided any reaction. On 26 February 2008, the Single Judge
of the Players’ Status Committee decided again that the Football Association of XX
is authorized to provisionally register the player X for its member club, U. This
authorisation was limited until 30 June 2008.
14.
On account of the above, the player requests that Y shall be obliged to pay him a
compensation for breach of contract amounting to EUR 84,607 whereby this
compensation is composed of:
Player X, XX / Club Y, YY
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- EUR 20,000: compensation for the period from 1 August to 1 October
2007, i.e. sum equal to the basic monthly salary together with the first
down payment of EUR 10,000;
- EUR 11,733: compensation for the time as from 1 October to 31
December 2007, i.e. difference between basic salary as per the contract
signed with Y (EUR 5,000) and the monthly salary (…. 30,000) as per
the contract entered into with U (approx. EUR 1,089) which gives an
amount of EUR 3,911 multiplied by three months;
- EUR 2,903: compensation for the time as from 1 January 2008 to 18
January 2008, i.e. calculation on a pro rata basis from the basic monthly
salary (i.e. EUR 5,000) according to the employment contract with Y;
- EUR 9,971: costs of legal proceedings and costs of flight tickets to
.YY (copy of flight tickets on file for an amount of … 13,023, i.e. EUR
470);
- EUR 40,000: sum covered by a cheque (copy on file) issued by Y to the
player on the basis of the contract which was, however, never paid.
15.
By means of his petition before the Dispute Resolution Chamber concerning his
contractual dispute, the player is therefore also asking about his status after 30
June 2008, when his contract with U will expire. In particular, the player requests
the Dispute Resolution Chamber to decide if the ZZ club, Z, shall be obliged to
employ him as a professional and to pay him the agreed remuneration.
16.
In reply to the player’s claim, the YY club alleged that after the medical check, it
was found out that the player has “bronchitis asthma” and must take medication
which contains doping substances. Even thought the player might be able to play
football, Y emphasized that the player had hidden his state of health during the
negotiations.
17.
Moreover, according to Y, the player had avoided signing the standard
employment contract foreseen by the YY Football Federation after his sickness
became aware.
18.
Y further held that it paid the player the amount of EUR 10,000 for some of his
expenses. According to Y, the player, while leaving the club, stated that he would
not demand anything from the club in future. In addition to that, Y stated that
even the legal representative of the player accepted that the contract is invalid,
whereas the player cannot ask anything out of an invalid contract.
19.
Although having been invited to provide its position, Z, failed to do so until to
date.
Player X, XX / Club Y, YY
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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 14 November 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 XX player and a YY club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008) 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 started by acknowledging the above-mentioned facts and
documentation contained in the file and, in view of the circumstances of the case
at stake, focused their attention on the question whether a breach of contract
occurred and which party is responsible for such a possible breach of contract, and
to verify and decide upon the consequences to be applied for breach of contract.
5.
In this respect, the Dispute Resolution Chamber noted that the player X
(hereinafter: the Claimant), while being contractually bound to the ZZ club, Z (“Z”)
as from 1 July 2006 to 30 June 2009, had been loaned by the latter to the YY club,
Y (hereinafter: the Respondent), for the season 2007/2008. Furthermore, the
Chamber acknowledged that the Claimant and the Respondent signed on 20 July
2007 an employment contract which was to be valid until 20 July 2008.
6.
As regards the aforesaid employment contract, the members of the Chamber took
note that the Claimant was entitled to receive the total amount of EUR 200,000,
i.e. EUR 40,000 by cheque and EUR 10,000 in cash, EUR 50,000 divided into 10
monthly salaries and a global amount of EUR 100,000 as per match premiums.
Player X, XX / Club Y, YY
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Furthermore, in point 7, the employment contract stipulated that “the contract is
valid after the players International Transfer Certificate arrives to YY Football
Federation”.
7.
Subsequently, the Chamber noted that, according to the Claimant, he terminated
the employment contract with the Respondent with just cause on 1 October 2007.
The Claimant submitted a copy of his termination letter that he addressed to the
Respondent. The Claimant particularly alleges that the Respondent, after a few
weeks of training, besides no longer allowing him to train with the team, failed to
pay him any of the salaries as agreed upon in the employment contract signed
between them. What is more, according to the Claimant, the Respondent had
failed to ask the Association of his previous club, i.e. the ZZ Football Federation,
for the issuance of his International Transfer Certificate in order for him to be
registered for the Respondent at the YY Football Federation.
8.
Turning its attention to the Respondent, the deciding body took note of the
latter’s objections towards the Claimant’s claim. In particular, the Respondent
alleged that the Claimant’s state of health was weak due to a “bronchitis asthma”
at that this was found out after the medical check of the Claimant. Equally, the
Respondent submitted that it eventually never signed the necessary standard
employment contract with the Claimant and thus actually never registered the
Claimant at the YY Football Federation. Finally, the Respondent maintains having
paid the Claimant the amount of EUR 10,000 for some of his expenses incurred
and that the Claimant, after having left, stated that he would not demand
anything for the Respondent in future.
9.
In view of the above, with regard to the clause contained in the employment
contract according to which the validity of the contract is subject to the YY
Football Federation obtaining the International Transfer Certificate (ITC) for the
Claimant, the deciding authority started by emphasizing that the Respondent is
solely responsible for the proper registration of the Claimant at the YY Football
Federation and therefore has to submit its application for obtaining the ITC for
the player in question to its Association and to advise the latter to request the
player’s ITC from his former club’s Association.
10.
Furthermore, the deciding authority underlined that the player does not have any
influence on the application process for the issuance of his International Transfer
Certificate. Thus, the player is left at full discretion of his employer, i.e. the
Respondent, whether or not the request for the issuance of his ITC is going to be
made or not.
11.
In view of the above, the Chamber considered this clause potestative and
unilateral in favour of the Respondent only without providing the Claimant with
Player X, XX / Club Y, YY
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any possibility to influence that the condition, i.e. the receipt of his ITC by the YY
Football Federation, will be fulfilled. Therefore, the Chamber decided that the
aforementioned clause shall not have any effect.
12.
After having vehemently rejected the validity of the aforementioned contractual
clause, the members of the Chamber established that they could not find any
further provisions in the “agreement” signed between the Claimant and the
Respondent on 20 July 2007 stating a further condition in order for the
contractual relationship between the parties involved to be considered valid. In
fact, the parties to the “agreement” had agreed upon all principle elements such
as the place of work, the period of validity, the salary etc. Therefore, the members
of the Chamber decided that the “agreement” contained all essentialia negotii
and thus is to be considered a valid and binding employment contract.
13.
In continuation, the members of the Chamber took note of the Respondent’s
subsequent position according to which the player had been hiding information
on his physical condition.
14.
In this regard, the deciding authority referred the parties to art. 18 par. 4 of the
Regulations, which stipulates that the validity of a contract may not be made
subject to a positive medical examination. The Chamber stated that the
Respondent’s stance clearly contravenes art. 18 par. 4 of the Regulations and
therefore cannot be considered in the present affair.
15.
Furthermore, the members of the Chamber referred to the Respondent’s
argument whereas they never signed the standard employment contract with the
Claimant for which reason his transfer to the Respondent could not be completed.
16.
In this respect, the members reiterated that the “agreement” signed between the
Claimant and the Respondent on 20 July 2007, as established above, does not
provide for any condition in order for the contractual relationship between them
to be considered valid. Therefore, such argument submitted by the Respondent
was likewise rejected by the deciding body.
17.
In light of the above, having established that a valid employment contract was
signed between the Claimant and the Respondent, the members of the Chamber
recalled the Claimant’s allegations according to which he had just cause to
terminate the said contract due to the Respondent’s failure to pay him any salaries
since the beginning of their contractual relationship.
18.
In this context, the Chamber noted that the Respondent does not deny having not
paid the Claimant his salaries but instead put forward having paid the Claimant
Player X, XX / Club Y, YY
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the amount of EUR 10,000 for some of the latter’s expenses and that by this
payment the parties settled their relationship.
19.
As regards the payment of EUR 10,000 the Respondent allegedly made to the
Claimant, the Chamber took note of the fact that the Respondent did not provide
any kind of documentary evidence in order to corroborate its allegations related
to such payment.
20.
Taking into account all the above, the Chamber stated that the persistent failure
of the Respondent to pay the agreed remuneration to the Claimant without just
cause is generally to be considered as a unilateral breach of an employment
contract. The Respondent could not provide valid reasons justifying the nonpayment of the Claimant’s salaries and other remuneration since the beginning of
the contractual relationship. The Dispute Resolution Chamber therefore reached
the conclusion that the Claimant had just cause to terminate the employment
contract he signed with the Respondent.
21.
In consequence, in application of art. 17 of the Regulations, the members had to
deliberate whether the Respondent is accountable for outstanding payments and
compensation towards the Claimant.
22.
As far as the responsibility of the Respondent for outstanding payments is
concerned, the Dispute Resolution Chamber stated that the Respondent has to
indemnify the Claimant for the time he was employed with the Respondent, by
paying him the salary and signing-on fee payments from the start of the contract
until the month it was terminated. As regards the down payment agreed by the
parties, the Chamber explained that, in accordance with its well-established
jurisprudence, the said down payment due to the player has to be calculated on a
pro-rata temporis basis, while thereby taking into consideration the period of time
the Claimant rendered his services to the Respondent compared to the whole
duration of the contract.
23.
In view of the above, the Dispute Resolution Chamber decided that the
Respondent must pay to the Claimant the two monthly salaries of August and
September 2007 amounting to EUR 10,000 and the flight tickets in the amount of
EUR 470. Furthermore, considering a contractually agreed duration of one year,
i.e. twelve months, and taking into account that the Claimant rendered his services
to the Respondent for two months, i.e. August and September 2007, the deciding
body held that the Respondent has to pay to the Claimant, as part of the down
payment, the amount of EUR 8,333 (2/12 of EUR 50,000).
24.
In total, the Respondent must pay to the Claimant as outstanding payments under
their contractual relationship the amount of EUR 18,803.
Player X, XX / Club Y, YY
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25.
Moreover, the Chamber had to verify and decide whether the Respondent is
accountable for compensation for breach of contract without just cause.
26.
The Chamber referred to art. 17 par. 1 of the Regulations, in particular to the nonexhaustive enumeration of objective criteria, and took into account the
remuneration due to the Claimant under the employment contract signed
between the parties to the present dispute as well as the time remaining on the
said employment contract as from the Claimant’s termination. The deciding
authority came eventually to the conclusion that an amount of EUR 56,303 is
adequate, taking particularly into consideration the behaviour of the Respondent
in the present procedure.
27.
In conclusion, the Dispute Resolution Chamber decided that the Respondent has to
pay to the Claimant the amount of EUR 18,803 for outstanding payments and EUR
56,303 as compensation for breach of contract without just cause.
28.
Finally, as regards the claimed amount to cover legal costs submitted by the
Claimant, the Chamber referred to its well-established jurisprudence in accordance
with which no procedural compensation shall be awarded in proceedings in front
of the Dispute Resolution Chamber (cf. art. 15 par. 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
29.
To conclude with, as regards the request of the Claimant pertaining to his
contractual situation and status, the members of the Chamber deemed it
appropriate to explain that for the duration of the loan, the effects, rights and
obligations of the employment contract concluded between the Claimant and his
club of origin, i.e. Z, are temporarily suspended. This implies, however, that after
the end of the agreed loan period, the relevant effects come back into force. In
lieu thereof, the Single Judge of the Players’ Status Committee, when considering
and passing the relevant decisions with regard to the provisional registration of
the Claimant for the XX club, U, at the Football Association of XX, authorized such
provisional registrations of the Claimant with a limit in time only until 31
December 2007 respectively until 30 June 2008.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player X, is partially accepted.
2.
The Respondent, Y, has to pay the amount of EUR 75,106 to the Claimant, player
X, within 30 days as from the date of notification of this decision.
Player X, XX / Club Y, YY
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3.
In the event that the due amount is not paid within the stated deadline, an
interest rate of 5% p.a. will apply as of expiring of the fixed time limit and the
present shall be submitted to FIFA’s Disciplinary Committee, so that the necessary
disciplinary sanctions may be imposed.
4.
The Claimant, player X, is directed to inform the Respondent, Y, immediately of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
5.
The Claimant, player X, must return the original cheque to the Respondent, Y,
within 30 days as from the date of notification of this decision.
6.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision and
has to contain all elements in accordance with point 2 of the directives issued by
the CAS, copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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
Player X, XX / Club Y, YY
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