Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 May 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), member
Joaquim Evangelista (Portugal), member
Caio Cesar Vieira Rocha (Brazil), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
G,
as Claimant
against the club,
D FC,
as Respondent
regarding an employment-related contractual dispute
between the player and the club.
I.
Facts of the case
1.
On 29 January 2008, the player G (hereinafter; the player) and the club D FC
(hereinafter; the club) concluded an employment contract valid from 1 February
2008 until 31 December 2009. On 29 January 2008, the player and the club also
concluded a complementary contract valid for the same period of time.
2.
According to art. 7 of the employment contract regarding salary and bonuses,
the minimum winning bonus is USD 3’000, the minimum draw bonus is USD1’500
and there is no bonus for lost matches. The club will distribute the bonus
according to facts such as whether the player signs up for matches, or the
playing time. Details regarding distribution of bonuses are specified in a
supplementary agreement.
3.
According to art. 8 of the employment contract, the club provides the player
with two “round trips” to visit his family every season. The travel expenses can
be reimbursed or are distributed according to estimation for each time.
4.
According to art. 1 of the complementary contract, the salary is tax-free (“after
tax”).
5.
According to art. 2 of the complementary contract, the player is entitled to
receive a monthly salary of USD 24’000.
6.
For the calendar year 2008, these amounts are payable in instalments of USD
4’000 every month in advance. Furthermore, four instalments of USD 60’000 each
are payable as follows:
- 15 days after the signing of the contract;
- on 15 May 2008;
- on 15 August 2008;
- when the 2008 football season ends.
The terms of payment for the year 2009 are not set forth in the employment
contact.
7.
According to art. 4 of the complementary contract, the bonus is as follows:
SL champion: USD 20’000;
SL top scorer: USD 20’000;
FA Cup Champion: USD 50’000;
FC Champions League Champion : USD 50'000.
8.
On 23 December 2008, the player sent a demand note to the club, asking for
payment of the following outstanding amounts until 5 January 2009 at the
latest:
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- USD 20’000 net for 5 advances of salary (September 2008, October 2008,
November 2008, December 2008 and January 2009);
- USD 60’000 net, payable upon the end of the 2008 football season in C i.e. on
30 November 2008;
- USD 10’500 gross for one victory bonus plus a 5 draws bonus during the 2008
season;
- USD 4’200 for three return air tickets in the amount of USD 1’400 each.
9.
On 5 January 2009, the player reminded the club once more of the outstanding
payments, set a final time limit until 7 January 2009, and, when having no
reaction by the club, terminated the contractual relationship on 8 January 2009.
10.
On 9 January 2009, the player filed a claim against the club in front of FIFA and
claimed for outstanding salaries in the amount of USD 80’000 plus 5% interest
accrued since the relevant dates of payment of each outstanding amount, match
bonuses for six games in the amount of USD 10’500 (no documentary evidence),
USD 2’800 for two air tickets for the 2008 season (no documentary evidence) and
compensation for breach of contract during the protected period by the club in
the amount of USD 825’454 plus 5% interest as from 8 January 2009.
Furthermore, the player asked FIFA to impose a restriction from registering new
players for two registration periods on the club.
11.
The player argues that he had just cause to terminate the contractual
relationship, as the club failed to comply with the financial terms and conditions
of both contracts and despite having been put into default with correspondence
dated 23 December 2008 and 5 January 2009.
12.
According to the player, the salaries in the complementary contract are to be
considered as net amounts. He claimed that the compensation until expiry of the
contracts has to be considered under the principles of taxation. In this regard, he
stated that the compensation for the year 2009 needs to be grossed-up. The
player exposed a tax scheme which applies, inter alia, in C and adopts a
percentage rate of 45% for a monthly income of 100’001 (USD 14’649) and
above. The C Income Tax Rates for individual’s income is progressive and is
assessed at 5% until 45% depending on the income. Therefore, the player claims
that his annual salary of USD 288’000 net is grossed-up with 45%, which results
in an annual total salary of USD 523’636.
13.
The player, by later information of 4 February 2009, informed FIFA about the
fact that he found a new club, FC T, with which he had concluded an
employment contract valid from 30 January 2009 until 1 December 2009.
14.
In its reply, the club stated that the player is considered to be under contract
with D FC but failed to offer his services to the club when asked to do so until 20
January 2009. Finally, the club claimed it is a clear breach of the FIFA regulations
if a player signs with a new club without permission of the former club.
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15.
The club furthermore stated that the salary and bonuses were paid to the player
before 8 January 2009, but that the transaction was slightly delayed in the bank
during the C New Year. The club provided FIFA with a document called
“application for funds transfers (overseas)” for the amount of USD 30’000, which
was addressed to the bank for the benefit of the A Ltd. The document is dated
21 January 2009.
16.
In his replica, the player claimed that the club’s position does not contain a valid
signature (but it is stamped by the club) and should therefore be rejected.
17.
In its last position, the club adhered to its position and finally stated that due to
the unexpected departure of the player it had suffered financial losses. No
documentary evidence was provided.
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 9 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. art. 18 paras. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 para. 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 player and a club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 paras. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on 9 January
2009, the current version of the regulations (edition 2008; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
In continuation, and entering into the substance of the present matter, the
members of the Chamber started by acknowledging the established facts of the
case and the arguments of the parties as well as the documentation contained in
the file. In this respect, in view of the circumstances of the present case, the
Chamber deemed that the following three issues had to be addressed in
particular:
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I.
Which contractual agreements were concluded between the parties
involved?
II. Was the contractual relationship between player and club breached
by any of the parties? If so, which party is responsible for such breach
of contract?
III. What are the consequences in the event of a breach of contract?
5.
With regard to the first issue, the members of the Chamber duly acknowledged
that the player and the club had signed two agreements on 29 January 2008,
both valid from 1 February 2008 until 31 December 2009. It was furthermore
noted that the first agreement was called “the employment contract” and
contained general provisions regarding the contractual relationship, bonus
payments and benefits. The second agreement was referred to as “the
complementary contract” and contained a monetary agreement regarding the
regular monthly payments and instalments for the first year 2008 of the contract,
while the monetary terms for the year 2009 were not set forth yet. The latter
also contained a more detailed bonus system.
6.
In continuation, the Chamber confirmed that according to the relevant terms of
the complementary contract for the year 2008, the player was entitled to receive
a monthly salary of USD 4’000, payable every month in advance, as well as four
fix instalments in the amount of USD 60’000 each. For the remuneration of the
second contractual year, the Chamber analysed the term of art. 2 of the
complementary contract which stated that, generally, under the contractual term
for the years 2008 and 2009, the player was entitled to receive a monthly salary
in the amount of USD 24’000, which sums up to an annual remuneration in the
amount of USD 288’000 for each year of contract.
7.
For the first contractual year, the annual remuneration was split up in monthly
salary payments of USD 4’000 and four equal instalments of USD 60’000, whereas
the payment terms of the second contractual year were not specified. The
Chamber therefore considered that the payment terms of the second contractual
year must be determined according to the first contractual year, assuming that
the remuneration would be a monthly salary of USD 4’000 and four instalments
in the amount of USD 60’000 each.
8.
With regard to the second issue as to the termination of the employment
contract, the Chamber took into account the allegations of the player, who,
when filing the claim against the club, declared that he had neither been paid
his salary for five months with regard to the months of September 2008 until
January 2009 in the total amount of USD 20’000, nor was he paid the instalment
due at the end of the 2008 C sporting season on 30 November 2008 in the
amount of USD 60’000. Consequently, the player alleged that the club owed him
the total amount of USD 80’000. In this regard, the player had put the club in
default on 23 December 2008 and on 5 January 2009, without any reaction of
the club. Consequently, the player terminated the employment contract on 8
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January 2009 with immediate effect due to non-compliance of the club with the
contractual terms.
9.
With regard to the player’s allegations regarding the total outstanding amount
of USD 80’000, the Chamber first of all took note that the club did not file
possible evidence for the payment of the entire outstanding amount such as
alleged by the player, but only for an amount of USD 30’000. The Chamber
furthermore analysed the position of the club with regard to the alleged
payment of USD 30’000. In this regard, it took note that the alleged money
order, entitled “application for funds transfers (overseas)”, was stamped on 23
January 2009 but it remained unclear if the player ever received such payment.
According to the document, the payment should be paid to the beneficiary “A
Ltd”. It was furthermore noted that the club explained having transferred all the
salary and bonuses to the player before 8 January 2009 and that, however, the
transaction was slightly delayed during the C New Year.
10.
However, no connection between the payment of USD 30’000 and the player
could be established. Furthermore, the Chamber noted that player rejected the
position of the club in general.
11.
The Chamber concluded that the presentation of a money order in favour of,
allegedly, a party, without proofing that such connection existed, does not
comply with the requirements of payment evidence. In this regard, the members
of the Chamber decided that the document as provided by the club is therefore
not taken into consideration. It added that even if the document proofed that
the payment of USD 30’000 had been made to the player, it would not have any
influence on the fact that the contract had already been terminated by the
player on 8 January 2009 due to non-compliance with the contractual financial
terms during 5 months, and, therefore, a breach of contract had already been
committed by the club.
12.
In view of all the above, the Chamber decided that the payment evidence
regarding the outstanding remuneration was not sufficient and could therefore
not be taken into consideration. Consequently, the Chamber concluded that the
player’s allegation regarding the outstanding payments, i.e. five monthly salaries
as well as one instalment of USD 60’000, was not refuted by the club. Therefore,
the Chamber reached the conclusion that the employment contract had been
terminated by the player with just cause on 8 January 2009.
13.
In continuation, with regard to the third issue, the Chamber focused on the
consequences of the breach of contract in question, and in this respect, first of all
decided that, in accordance with art. 17 par. 1 of the Regulations and the
constant jurisprudence of the Dispute Resolution Chamber, the club is liable to
pay all outstanding monies due under the relevant employment contract and the
complementary contract until the date on which the labour relationship was
terminated, i.e. until 8 January 2009. Furthermore, it decided that the player is
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entitled to receive from the club an amount of money as compensation for the
breach of contract.
14.
The Chamber turned to the player’s financial claim which included the
outstanding monthly payments of September 2008, October 2008, November
2008, December 2008, January 2009 in the amount of USD 4’000 each as well as
the outstanding instalment due as of the end of the 2008 C football season in
the amount of USD 60’000.
15.
In this respect, the Chamber determined that until the date of the termination of
the relevant contractual relationship on 8 January 2009, a remuneration in the
total amount of USD 80’000 was not paid by the club.
16.
Moreover, with regard to the player’s financial claim regarding further
contractual benefits, the Chamber referred to art. 12 par. 3 of the Procedural
Rules, in accordance with which a party deriving a right from an alleged fact
shall carry the burden of proof. In this respect, the Chamber acknowledged that
the player claimed outstanding bonus payments in the amount of USD 10’500 as
well as payment for two flight tickets in the amount of USD 2’800. Furthermore,
the Chamber duly noted that the player did not present any documentary
evidence with regard to his entitlement to specific bonuses, match results,
personal accomplishments or any such confirmation by the club. With regard to
the flight tickets, the Chamber noted that the player would, according to the
employment contract, have been entitled that the expenses for the tickets be
reimbursed but never presented any documentary evidence with regard to
expenses in this regard. Consequently, the Chamber decided that, in view of the
aforesaid, the player is not entitled to receive compensation for the claimed
bonus payments and the flight tickets.
17.
In view of all of the above, the Chamber decided that the club has to pay
outstanding remuneration in the total amount of USD 80’000.
18.
In addition, taking into account the player’s claim for payment of interest, the
Chamber decided to award the player 5% default interest p.a. over the total
amount of USD 80’000 as of the respective due dates of the outstanding
payments.
19.
In continuation, the Chamber decided that the club, in accordance with art. 17
par. 1 of the Regulations, is also liable to pay compensation for the committed
breach of contract.
20.
In this regard, and taking into consideration the rest value of the relevant
employment contract, i.e. the salaries for the months from February 2009 until
December 2009 (11 x USD 4’000) as well as the instalments (4 x USD 60’000), the
Chamber established that the player would be entitled to receive USD 284’000 as
compensation. However, the Chamber turned its attention to the new
employment contract of the player with the club FC T valid from 30 January 2009
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until 1 December 2009 for a total remuneration of 160’000 (USD 10’812.30) and
decided that the compensation for the breach of contract had to be reduced by
the total remuneration under the new employment contract. Therefore, the
Dispute Resolution Chamber concluded that the player is entitled to
compensation in the amount of USD 273’187,70.
21.
Finally, and turning its attention to the player’s request regarding the principle
of taxation and therefore grossing-up the compensation for breach of contract
by 45% according to the respective C income tax rate, the Chamber established
that taxation did not apply with regard to compensational payments, as such
payments are not considered as contractual remuneration and salary as such, but
rather as compensation for breach of contract.
22.
In conclusion, the Dispute Resolution Chamber decided that the club must pay to
the player outstanding remuneration in the amount of USD 80’000 and
compensation for breach of contract in the amount of USD 273’187.70. In this
respect, the Chamber determined that any further claims of the player are
rejected. Therefore, the Chamber established that the player’s claim is partially
accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player G, is partially accepted.
2.
The Respondent, D FC, has to pay to the Claimant within 30 days as from
the date of notification of this decision the amount of USD 80’000 plus
interest as follows:
5% p.a. as of 1 September 2008 over the amount of USD 4’000;
5% p.a. as of 1 October 2008 over the amount of USD 4’000;
5% p.a. as of 1 November 2008 over the amount of USD 4’000;
5% p.a. as of 30 November 2008 over the amount of USD 60’000;
5% p.a. as of 1 December 2008 over the amount of USD 4’000;
5% p.a. as of 1 January 2009 over the amount of USD 4’000.
3.
The Respondent has to pay to the Claimant within 30 days as from the date
of notification of this decision the amount of USD 273’187.70.
4.
In the event that the amount mentioned in para. 3 above is not paid within
the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry
of the above-mentioned time limit.
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5.
In the event that the above-mentioned amounts are not paid within the
stated time limit, the present matter shall be submitted upon request to the
FIFA Disciplinary Committee for its consideration and decision.
6.
Any further request of the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent immediately and directly
of the account number to which the remittance is to be made and to notify
the Dispute Resolution Chamber of every payment received.
*****
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:
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Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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