Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 June 2005,
in the following composition:
Slim Aloulou (Tunisia), chairman
Jean-Marie Philips (Belgium), member
Philippe Diallo (France), member
Philippe Piat (France), member
Michele Colucci (Italy), member
on the claim presented by the player
A, Portugal,
as Claimant
against the club
H, Germany,
as Respondent,
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 2 February 2004, the player A and the German club, H, concluded a labour
contract with validity from 2 February 2004 until 30 June 2005. The contract
stipulated a basic monthly salary of EUR 68,000 (gross) and an appearance and
performance bonus of EUR 3,000 (gross) per point (at least 45 minutes, otherwise
50%).
2.
At the same time, the parties concluded a special agreement, which granted the
right to the player to terminate the employment contract after the last match of
the season 2003/2004 until 31 May 2004. This agreement stipulated that in case the
player would make use of that right, the above mentioned employment contract
would end on 30 June 2004.
3.
On 26 May 2004, H submitted to the player an agreement for the mutual
termination of the contract. According to this agreement, the player should
receive the monthly salaries of May and June 2004 and renounce to further claims
against the club. However, this agreement has never been signed.
4.
On 27 May 2004, the player turned to FIFA and filed his claim. By means of a copy
of his claim against the club, the player apparently notified the club in written
that according to the special agreement signed on 2 February 2004 he wished to
terminate the employment contract. In this demand, the player claimed according
to art. 24 of the Regulations for the Status and Transfer of Players compensation in
the amount of EUR 408,000 (6 monthly salaries). Furthermore, the player claimed
the uncontested monthly salaries of May and June 2004.
5.
The player based his claim on the fact that, after the management of the club
engaged a new coach, he has not been lined up with the first team. Prior to this
banishment from the first team, the Federação Portuguesa de Futebol announced
an observer in order to reintegrate the player in the National Team of Portugal.
Informed about the banishment of the player from the first team of H, the
Federação Portuguesa de Futebol renounced to reintegrate the player in its
National Team. However, the player considers himself as an absolutely professional
player with a perfect attitude. This has been certified by the two team captains of
H. The player also annexed to his claim a document signed by the physical trainer
of the team, which certified that the player was in an excellent form. The player
alleged that he concluded his employment contract with H only because of the
fact that he wanted to play as a “key player” and to recommend himself for the
National Team of Portugal. Therefore, he accepted a lower salary. The player is of
the opinion that he suffered an important damage because he lost his chance to
play for a more illustrious club and the National Team of Portugal only because of
the arbitrariness of his new coach.
2
6.
In its response dated 25 October 2004 to the player’s claim, the club alleged that
the player’s attitude was not at all professional and that he was not in the physical
condition to play in the “Bundesliga”. The club stated that the player could not
satisfy the requirements of the former coach as well as the one of the new coach
of the first team and has therefore not been constantly lined up. The club
underlined the fact that the player left the club on 23 May 2004, without leaving a
message. The club emphasised that the player’s lawyer called in June 2004 the club
and informed it that the player wanted to terminate the contract. This dismissal
has been confirmed by the club on 4 June 2004. Furthermore, the club alleged that
the player’s lawyer proposed compensation of one monthly salary but the club did
not accept. As several attempts to contact the player or the lawyer to reach an
amicable solution were unsuccessful, the club had no other choice then to cancel
on 8 July 2004 the contract without notice. The club confirmed that it paid the
player’s salaries until May 2004 as the player left the club on 23 May 2004. Finally,
the club referred to § 12 par. 6 of the employment contract according to which
claims arising from the contract must be filed in writing by the parties within six
months after they fall due, however in the case of termination of the contract
within three months after such termination. In this context, the club stated that
the claim is dated 27 May 2004 but that it never received the claim directly and
that it was only informed by FIFA of the existence of this claim. Considering the
above-mentioned, the club is of the opinion that it did not commit a breach of
contract and that therefore no compensation is due to the player.
7.
On 8 November 2004, the player answered that the club paid the salary of May
2004, however, not on the account indicated by his lawyer. Therefore, this salary
cannot be presumed as being settled. Furthermore, the player reiterated his
conclusions concerning the June salary and requested the immediate payment of
both salaries. In addition, the player emphasised that the claim was sent to FIFA on
27 May 2004 and that the club received a copy of the claim on the same day.
Finally, the player insisted on his other conclusions.
8.
The club alleged on 18 November 2004 that it received on 27 May 2004 only a
draft of the claim, whose content and background the player’s lawyer wanted to
elucidate. An explicit and written assertion of the claim was therefore not made.
Furthermore, the club underlined the fact that the payment of the May salary had
been transacted to the same account of the player as all previous salaries on the
same day as the player’s lawyer notified his draft of the claim. As a result, the
relevant amount could be drawn by the player at any time. In addition, the club
reiterated that the player left the club without message and traceless and that
therefore, the player committed a massive violation of the contract. Finally and
concerning the claim for compensation, the club accentuated that for the
condemnation to pay compensation according to art. 24 of the Regulations for the
Status and Transfer of Players, a default of the club is preconditioned.
3
9.
On 30 November 2004, the player alleged that the club had been informed that he
would leave H for Belgium in order to discuss his situation with his Belgian
lawyers. Therefore, he did not leave the club traceless.
II.
Considerations of the Dispute Resolution Chamber
1.
The Dispute Resolution Chamber of the FIFA Players’ Status Committee shall
review disputes coming under its jurisdiction pursuant to art. 42 of the FIFA
Regulations for the Status and Transfer of Players (edition September 2001) at the
request of one of the parties to the dispute.
2.
According to Art. 42, par. 1 lit. (b) (i) of the FIFA Regulations for the Status and
Transfer of Players (edition September 2001), the triggering elements of the
dispute (i.e. whether a contract was breached, with or without just cause, or
sporting just cause), will be decided by the Dispute Resolution Chamber.
3.
If an employment contract is breached by a party, the Dispute Resolution Chamber
is responsible to verify whether a party is accountable for compensation and
outstanding payments.
4.
Therefore, the members of the Dispute Resolution Chamber at first confirmed to
be competent to pass a decision in this matter. In addition, the Chamber
acknowledged the above-mentioned facts, as well as the further documentation
contained in the file.
5.
Subsequently, and entering into the substance of the matter, the Chamber
considered that the player A and the club H signed on 2 February 2004 a valid
employment contract according to which the parties agreed on a basic monthly
salary in the amount of EUR 68,000 (gross) and an appearance and performance
bonus of EUR 3,000 (gross) per point.
6.
Furthermore, the Chamber acknowledged that on the same day, the parties
concluded a special agreement according to which the player could terminate the
employment contract after the last match of the season 2003/2004 until 31 May
2004. In this case, the employment of the player would end on 30 June 2004.
7.
Subsequently, the Chamber acknowledged that, uncontestedly, the player left the
club on 23 May 2004 and that as of that date, the player rendered no more his
services to the German club. The player stated that by means of a copy of his claim
against the club addressed to FIFA he notified the club in written his wish to
4
terminate the employment contract according to the special agreement signed on
2 February 2004. The dismissal has been confirmed by the club on 4 June 2004.
8.
In this respect, the Chamber referred to the contents of the special agreement
signed on 2 February 2004, which granted the right to the player to prematurely
terminate the employment contract unilaterally by informing the club accordingly
in the period of time between the last match of the season 2003/2004 and 31 May
2004.
9.
To that regard, the deciding body emphasised that in its claim filed with FIFA, the
player had explicitly explained that by means of a copy of his claim he had notified
the club in written that he wished to terminate the employment contract on the
basis of the special agreement signed on 2 February 2004. On 4 June 2004, the club
then confirmed the relevant dismissal.
10.
On account of the foregoing, the Chamber concluded that the player had made
use of his right to unilaterally terminate the contract in accordance with the
special agreement concluded between the parties, and that the club had accepted
the early termination of the relevant relationship. As a consequence, the deciding
body deemed that the contractual relationship between the parties ended on
30 June 2004.
11.
In continuation, the Chamber stated that based on the above-mentioned
conclusions, the parties had to comply with their contractual obligations until
30 June 2004.
12.
In this respect, the deciding body acknowledged that, on the one hand, it is
undisputed that the club regularly paid all salaries due to the player until April
2004. Furthermore, it is not contested that the salary for May 2004 was also paid.
However, the player is of the opinion that since the relevant amount had not been
paid into the bank account indicated by his lawyer, it could not be considered as
having been properly received.
13.
The Chamber could not back the player’s position to that regard. In fact, the club
had transferred the salary of May 2004 into the bank account of the player, like all
previous ones, and the player could thus dispose of the relevant sum. As a
consequence, the Chamber concluded that the club has complied with the
payment of the May salary and the player’s claim has to be rejected as to this
point.
14.
With regard to the salary for June 2004, the Chamber acknowledged that the club
stated that since 23 May 2004, the player was not present at the training sessions
and that therefore, he has no right to claim the amount due for June 2004.
5
Furthermore, it was taken note that the player did not contest having left the club
at the end of May 2004.
15.
The deciding body recalled that, as previously explained, the player had made use
of his right to early terminate the contract in accordance with the special
agreement by 30 June 2004. Equally, the Chamber pointed out that the club had
fully complied with its financial obligations towards the player until May 2004.
Under these circumstances, the deciding body concluded that the player would
have had to remain at the club’s disposal until the termination of the contract on
30 June 2004. Yet, he left the club earlier and could not provide evidence for an
authorization received by the club or any other justification. As a consequence, the
Chamber decided that the player is not entitled to any salary for the month of
June 2004.
16.
The Chamber then turned to the question, if any compensation is payable to the
player and if so, to what amount. The player alleged that he has not been lined up
with the first team and that therefore, the Federação Portuguesa de Futebol
renounced to reintegrate him in its National Team. In this respect, the player
considered himself as a professional player with a perfect attitude and an excellent
form who should have been regularly fielded.
17.
With regard to the player’s position, the Chamber stated that the fact that a
player signs an employment contract with a club does not content automatically
the entitlement to play. In other words, as long as he is regularly paid his salaries
and the club respects all other contractual obligations, a player has to accept that
he might not be lined up.
18.
As established before, the club complied with its financial obligations towards the
player. Therefore, the Chamber concluded that by not fielding the player, the club
did not breach the relevant employment contract. As a result, it was decided that
no compensation is due.
19.
Finally, the Chamber emphasised once again that according to his statements in
the case at hand, the player had chosen to terminate the contractual relationship
with the club according to the special agreement dated 2 February 2004.
Therefore, the Chamber was of the opinion that it did not have to consider a
contractual termination for sporting just cause in accordance with art. 24 of the
Regulations for the Status and Transfer of Players (edition September 2001).
20.
Taking into account all of the above, the Chamber decided that the claim of the
player A has to be rejected.
6
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player A is rejected.
2.
According to art. 60 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 10 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:
Urs Linsi
General Secretary
Encl.
CAS directives
7