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
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Caio Cesar Vieira Rocha (Brazil), member
on the claim submitted by the club
B,
as Claimant / Counter-Respondent
against the player
C,
as Respondent / Counter-Claimant
regarding an employment-related dispute,
arisen between the Claimant / Counter-Respondent
and the Respondent / Counter-Claimant.
I.
Facts of the case
1.
On 29 August 2007, the football club, B (hereinafter: the Claimant), and the
player, C (hereinafter: the Respondent), concluded an employment contract
(hereinafter: the contract) valid from 1 September 2007 until 31 May 2008; the
club had an option to extend the contract by two years (2008-2009 and 2009-2010
seasons) upon providing notice by 15 May 2008.
2.
According to the contract, the Respondent was entitled to receive a salary of
EUR 150,000 as a “transfer payment for the footballer”, to be paid as follows:
a)
EUR 40,000 on the day the contract was signed (signing-on fee), [note:
29 August 2007];
b)
EUR 110,000 in nine equal monthly payments of EUR 12,222, valid from
September 2007 until May 2008 (30 September 2007, 30 October 2007,
30 November 2007, 30 December 2007, 30 January 2008, 28 February 2008,
30 March 2008, 30 April 2008 and 30 May 2008).
3.
According to the contract, the Respondent was also entitled to receive two return
flight tickets I-C-I for each season, plus accommodation and a car.
4.
If the Claimant exercised its unilateral option to extend the contract, the contract
provided for the payment of a sum of EUR 50,000 on 1 August 2008 for the 20082009 season, as well as a monthly payment of EUR 12,500 between
30 September 2008 and 30 May 2009 (a total of EUR 125,000); and, for the 20092010 season, the payment of a sum of EUR 50,000 on 1 August 2009, as well as a
monthly payment of EUR 15,000 between 30 August 2009 and 30 May 2010 (a
total of EUR 150,000).
5.
According to clause 3 par. 6 of the contract, if the payment of two monthly
salaries was delayed, the player could unilaterally terminate the employment
contract.
6.
Finally, in accordance with the provisional art. 64 of the [A] law 193 on income
tax, the Claimant was to make the deduction from the Respondent’s payment, as
agreed in the contract, and then to forward it to the relevant tax authority in
accordance with clause 4 of the contract.
7.
On 31 August 2007, a sum of EUR 40,000 was paid to the Respondent as set out in
the contract.
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8.
The Respondent contracted an injury to his right ankle as the result of an
appearance for the G national team in September 2007, which meant that he was
unavailable for selection for a month and a half (September, October and early
November 2007) during his recovery.
9.
On both 18 and 22 October 2007, the Claimant paid the Respondent an amount of
1,000, that is a total of 2,000, by way of instalments towards the transfer sum.
10.
On 23 October 2007, the Claimant paid the Respondent the sum of 4,000, by way
of an instalment towards the transfer sum.
11.
On 26 October 2007, the Claimant paid the Respondent the sum of EUR 9,312,
which represented the outstanding transfer sum due on 30 September 2007.
12.
In a deed issued by notary on 18 December 2007, a copy of which was sent to the
A Football Federation (FF), the Respondent terminated the contract and asked the
Claimant to honour the payment arrears due to him, which amounted to
EUR 24,666, comprising EUR 222 (balance for September 2007), EUR 12,222
(October 2007) and EUR 12,222 (November 2007).
13.
On 21 and 22 December 2007, the Respondent did not take part in training and,
on 23 December 2007, he did not take part in the Claimant’s match.
14.
In a letter dated 16 January 2008, the FF informed FIFA that the Respondent had
unilaterally terminated his contract, and enclosed a letter from the Claimant dated
15 January 2008 regarding the termination of the Respondent’s contract.
15.
In a claim lodged with FIFA and dated 15 January 2008, the Claimant requested
compensation of USD 300,000 for the unilateral termination of the contract
without just cause by the player – without specifying the amount – and also
reserved its rights of appeal and reply vis-à-vis the player’s claims.
16.
According to the Claimant, the Respondent had terminated the contract
unilaterally on 18 December 2007. There had not been a delay of two months
either in the monthly payment due on 30 October 2007 nor in the monthly
payment due on 30 November 2007. Given the fact that there had not been a twomonth delay in the payment of the monthly sums set out in the contract, the
unilateral termination of the contract by the Respondent was without just cause
and clearly contrary to the clauses in the contract.
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17.
According to the Claimant, he had fully met all of its obligations towards the
player as set out in the contract signed by the player, but the player had
nevertheless terminated the contract unilaterally and had been absent both from
training and one of the Claimant’s matches without a valid excuse or reason (cf.
point 8).
18.
In a fax dated 31 March 2008, the Respondent once again served the Claimant
with formal notice to pay the arrears immediately.
19.
On 8 April 2008, and without having received the Claimant’s request, the
Respondent lodged a claim with the FIFA Dispute Resolution Chamber against the
Claimant, requesting the sum of EUR 97,998, broken down as follows:
a)
EUR 73,332 (net) in salary arrears (30 October, 30 November and
30 December 2007, 30 January, 28 February and 30 March 2008), for the
salaries due between October 2007 and March 2008;
b)
EUR 220 (net) as the balance due for his salary for September 2007;
c)
EUR 24,444 (net) in compensation for breach of contract, corresponding to
the remaining salaries due until expiry of the employment contract, that is
two months’ salary payments (April and May 2008).
20.
This counter-claim was based on the following allegations by the Respondent:
While the Respondent had always acted in a dignified and professional manner,
particularly in undergoing his period of rehabilitation with the Claimant in the
correct fashion, the latter had not respected its contractual obligations, with the
exception of the signing-on fee (EUR 40,000) and the salary payment for
September 2007 (EUR 12,000); no other payment had been made to the player to
date, that is, he had not received the salary payments due to him for the period
from October 2007 until March 2008.
21.
According to the Respondent, despite this formal notice, the Claimant had failed
to change its behaviour and had continued not to make any salary payments to
the player.
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22.
On 24 December 2008, the Claimant contested the player’s counter-claim and
demanded that all of the Respondent’s allegations be rejected. In particular, the
Claimant claimed that the player had accepted payment of the specified sums for
the signing-on fee and the salary payments for the months of September and
October 2007, as a result of which there were no grounds for dispute between the
parties relating to these periods. Furthermore, the Respondent had terminated
the contract unilaterally on 18 December 2007. Consequently, there had not been
a delay of two months – as claimed by the Respondent in justification of his
unilateral termination of the contract – in the payments due on 30 October 2007
and 30 November 2007. The Respondent’s unilateral termination of the contract
was therefore unlawful and contrary to the clauses in the contract. The Claimant
asserted that termination of the contract two months before the specified dates
of payment did not constitute just cause. The Respondent therefore had no right
to receive compensation.
23.
In a letter dated 2 February 2009, the Respondent responded that, contrary to the
Claimant’s claims, he had never stated that the salary for October 2007 had been
paid. Moreover, the contract having been breached within the “protected”
period, the player left it to the discretion of the chamber to decide on the
sporting sanctions to be imposed on the club.
24.
In a letter dated 17 March 2009, the Claimant responded to the Respondent’s
letters by reiterating its previous statements.
25.
Between December 2007 and May 2008, the Respondent did not play for any
other club.
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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 16 January 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005; 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 an A club and a G player.
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 relevant employment contract at the basis
of the present dispute was signed on 29 August 2007 and the present claim was
lodged at FIFA on 16 January 2008, the current version of the regulations
(edition 2008; 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 that, on 29 August 2007, the Claimant
and the Respondent had concluded an employment contract valid from
1 September 2007 until 31 May 2008, according to which the Claimant had an
option to extend the contract by two years (2008-2009 and 2009-2010 seasons),
upon providing notice by 15 May 2008.
5.
With regard to the mentioned option in favor of the Claimant and taking into
consideration that the Claimant had not made use of it, the Chamber as an
“obiter dictum” referred to its jurisprudence, which was confirmed by the Court of
Arbitration for Sport (CAS). This jurisprudence establishes that, as a general
principle, the unilateral options to extend the duration of an employment
contract in favor of clubs can per se not be admitted, since they limit the freedom
of the player in an excessive manner and cause an unjustified inequality between
the rights of the player and those of the club.
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6.
Furthermore, the Chamber took note that, on one hand, according to the relevant
employment contract, the Respondent was entitled to receive during the abovementioned term of validity a net salary of EUR 150,000 as a “transfer payment for
the footballer”, to be paid as follows:
a)
EUR 40,000 on the day the contract was signed (signing-on fee), [note:
29 August 2007];
b)
EUR 110,000 in nine equal net monthly payments of EUR 12,222, valid from
September 2007 until May 2008 (30 September 2007, 30 October 2007,
30 November 2007, 30 December 2007, 30 January 2008, 28 February 2008,
30 March 2008, 30 April 2008 and 30 May 2008).
7.
In this sense, the Chamber insisted on the fact that the sums indicated in the
employment contract are to be considered as net amounts, since, according to
clause 4 of the contract and in accordance with the (provisional) art. 64 of the [A]
law 193 on income tax, the Claimant was to make the deduction from the
Respondent’s payment, as agreed in the contract, and then to forward it to the
relevant tax authority. In addition to that, the Chamber also established that it has
never been contested by the Claimant that the monthly salaries were supposed to
be paid as net amounts.
8.
On the other hand, the Chamber noted that if the Claimant would exercise its
unilateral option to extend the contract, the contract would provide for the
payment of a sum of EUR 50,000 on 1 August 2008 for the 2008-2009 season, as
well as a monthly payment of EUR 12,500 between 30 September 2008 and
30 May 2009 (a total of EUR 125,000), and, for the 2009-2010 season, the payment
of a sum of EUR 50,000 on 1 August 2009, as well as a monthly payment of EUR
15,000 between 30 August 2009 and 30 May 2010 (a total of EUR 150,000).
9.
Moreover and in accordance with clause 3 par. 6 of the employment contract, the
Chamber took due note that, if the payment of the monthly salaries was delayed,
the Respondent could unilaterally terminate the contract.
10.
In this sense, the Chamber concluded that there was in the contract a clear and
unequivocal termination clause in favor of the Respondent, in case that the
Claimant was found to be in a delay of two monthly salary payments.
11.
In continuation, the Chamber noted that, on one hand, the Claimant stated, in a
letter to FIFA dated 15 January 2008, that it requested compensation of
USD 300,000 for the unilateral termination of the contract without just cause by
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the Respondent – without specifying this amount –and also reserved its rights of
appeal and reply vis-à-vis the Respondent’s claims.
12.
In this regard, the Chamber observed that the Claimant, in his claim, argued that
the Respondent had prematurely terminated the contractual relationship between
him and the Respondent.
13.
On the other hand, the Chamber noted that, on 8 April 2008 – and without having
received the Claimant’s request – the Respondent lodged a claim with the
FIFA Dispute Resolution Chamber against the Claimant, requesting the sum of
EUR 97,998, broken down as follows:
a)
EUR 73,332 (net) in salary arrears (30 October, 30 November et
30 December 2007, 30 January, 28 February and 30 March 2008), for the
salaries due between October 2007 and March 2008;
b)
EUR 220 (net) as the balance due for his salary for September 2007;
c)
EUR 24,444 (net) in compensation for breach of contract, corresponding to
the remaining salaries due until expiry of the employment contract, that is,
two months’ salary payments (April and May 2008).
14.
In this regard, the Chamber took due note that, by means of its replica dated
24 December 2008, the Claimant had contested the Respondent’s counter-claim
and demanded that all of the Respondent’s allegations should be rejected. In
particular, the Claimant claimed that the Respondent had allegedly accepted
payment of the specified sums for the signing-on fee and the salary payments for
the months of September and October 2007, and that therefore there were no
grounds for dispute between the parties relating to these periods. Furthermore,
the Respondent had terminated the contract unilaterally on 18 December 2007.
Consequently, there had not been a delay of two months – as claimed by the
Respondent in justification of his unilateral termination of the contract – in the
payments due on 30 October 2007 and 30 November 2007. The Respondent’s
unilateral termination of the contract was therefore unlawful and contrary to the
clauses in the contract. The Claimant asserted that termination of the contract two
months before the specified dates of payment did not constitute just cause. The
Respondent had therefore no right to receive compensation.
15.
On the other hand, the Chamber noted that, in a letter dated 2 February 2009, the
Respondent answered that, contrary to the Claimant’s claims, he had never stated
that the salary for October 2007 had been paid. Moreover, the contract having
been breached within the “protected” period, the Respondent left it to the
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discretion of the Chamber to decide on the sporting sanctions to be imposed on
the Claimant.
16.
In continuation, the Chamber went on to deliberate which party has to be
considered responsible for the breach of the employment contract before the
expiry of its term.
17.
In this regard, the Chamber took note of the deed issued by notary on
18 December 2007 – a copy of which was sent to the A Football Federation – by
means of which the Respondent clearly expressed his wish to terminate the
contract and asked the Claimant to honour the payment arrears due to him, which
allegedly amounted to EUR 24,666 (comprising EUR 222 as balance for September
2007, EUR 12,222 for October 2007, and EUR 12,222 for November 2007).
18.
On account of the above, and taking in particular into consideration the
Respondent’s notice of termination dated 18 December 2007, the Chamber came
to the conclusion that the relevant employment contract had been unilaterally
terminated on 18 December 2007 and that the Respondent had left the Claimant
on that date at the latest.
19.
The Chamber highlighted that the underlying issue in this dispute, considering the
claim and the counter-claim by the parties, was to determine whether the contract
had been unilaterally terminated with or without just cause and if so, which party
was responsible for the early termination of the contractual relationship in
question. The Chamber also underlined that subsequently, if it were found that
the employment contract was terminated with or without just cause, it would be
necessary to determine the financial and/or sporting consequences of the relevant
termination of the employment contract.
20.
In other words, the Chamber went on to deliberate whether the facts of the case
constituted a just cause for the Respondent to prematurely terminate the
employment contract.
21.
In this regard, the Chamber pointed out that:
a)
on 31 August 2007, the Claimant paid the Respondent a sum of EUR 40,000,
as set out in the contract;
b)
on both 18 and 22 October 2007, the Claimant paid the Respondent an
amount of 1,000, that is a total of 2,000, by way of instalments towards the
transfer sum, but without specifying for which month these sums had been
paid;
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c)
on 23 October 2007, the Claimant paid the Respondent the sum of 4,000 by
way of an instalment towards the transfer sum, but without specifying for
which month this sum had been paid;
d)
on 26 October 2007, the Claimant paid the Respondent the sum of
EUR 9,312, which allegedly represented the outstanding transfer sum due on
30 September 2007.
22.
In view of the above, the Chamber acknowledged that not only the (first) salary
for September 2007 had been paid with almost one month of delay, but also that
until the date of the termination of the relevant employment contract, i.e. on
18 December 2007, only a sum corresponding to a total amount of EUR 12,759 had
been paid by the Claimant to the Respondent as monthly salary. The Chamber
therefore pointed out that only the salary for September 2007 had been fully paid
– and this even late – by the Claimant, as well as an almost insignificant part of the
salary of October 2007 in the amount of EUR 537 (EUR 12,759 – EUR 12,222 = EUR
537).
23.
In this respect, the Chamber determined that until the date of the termination of
the relevant employment contract, i.e. on 18 December 2007, the salaries for:
a)
a part of October 2007 in
(EUR 12,222 – EUR 537 = EUR 11,685);
the
amount
of
EUR
11,685
b)
November 2007 amounting to EUR 12,222; and
c)
18 days of the month of December 2007 in the amount of EUR 7,333
(EUR 12,222 / 30 [days] * 18 [days] = EUR 12,222 * 0.6 = EUR 7,333);
have not been paid by the Claimant to the Respondent. Therefore, on
18 December 2007, salaries in the total amount of EUR 31,240 were still
outstanding.
24.
Moreover, the Chamber established that the Claimant had tried to convince the
Chamber that there were no delay of two monthly salaries for the payment of the
salaries.
25.
In this regard, 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 Claimant
had not presented any documentary evidence regarding the outstanding salaries
due to the Respondent. As a consequence, the Chamber concluded that the
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Claimant was not able to prove that it had paid the Respondent for October 2007
and November 2007.
26.
In this respect, the Chamber outlined the content of clause 3 par. 6 of the
employment contract which stipulates that if the payment of two monthly salaries
was delayed, the player could unilaterally terminate the employment contract.
The members of the Chamber considered that the above mentioned paragraph 6
of clause 3 as to be interpreted literally as being a delay in the payment of two
monthly salaries and not as being a delay of two months in the payment of the
relevant monthly salaries.
As a consequence of the above, the Chamber concluded that the Claimant had a
delay in the payment of two monthly salaries, and thus the club has to be
considered responsible of the early termination of the employment contract.
27.
Therefore, the Chamber decided that B has to pay the outstanding remuneration
in the total amount of EUR 31,240 to the player C.
28.
In continuation, having determined which party terminated the employment
contract and the responsibility for the said termination, the Chamber focused on
the potential financial and/or sporting consequences in this case.
29.
With regard to the financial consequences of the termination of the employment
contract, the Chamber referred to art. 17 par. 1 of the Regulations and recalled
that the said provision provides for a non-exhaustive enumeration of criteria to be
taken into consideration when calculating the amount of compensation payable.
On this basis, the members of the Chamber highlighted that not all the financial
obligations provided for in the employment contract had been fulfilled towards
the player until the breach of the contract on 18 December 2007. The Chamber
deemed that it should consider this fact in determining the amount of
compensation to be paid by the club B.
30.
In this regard, the Chamber took into consideration the rest value of the relevant
employment contract, i.e. the salaries for the 12 remaining days of December 2007
as well as for the months between January and May 2008. As a consequence of
the above mentioned points, and considering the remaining time of the contract
and the specificities of the present case, the Chamber established that it was
adequate to award the Respondent compensation in the amount of EUR 65,999. In
this respect, for the sake of completeness, the Chamber held that the Respondent
had not concluded an employment contract with a new club for the period
between December 2007 and May 2008.
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31.
Also, and considering the above considerations, the members of the Chamber
decided to reject the Claimant’s claim in full.
32.
In conclusion, the Dispute Resolution Chamber decided that the Claimant must
pay to the Respondent outstanding remuneration in the amount of EUR 31,240
and compensation for breach of contract in the amount of EUR 65,999, i.e. the
total amount of EUR 97,239.
33.
In this respect, the Chamber determined that any further claims of the Respondent
are rejected. Therefore, the Chamber established the Respondent’s claim is
partially accepted.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, B, is rejected.
2.
The counter-claim of the Respondent / Counter-Claimant, C, is partially accepted.
3.
The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant the amount of EUR 97,239, within 30 days as from the date of
notification of this decision.
4.
Any further claims lodged by the Respondent / Counter-Claimant are rejected.
5.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the party’s request to FIFA’s
Disciplinary Committee for consideration and decision.
6.
The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent 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.
*****
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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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