Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 June 2007,
in the following composition:
Slim Aloulou (Tunisia), President
Essa M. Saleh Al-Housani (United Arab Emirates), member
Philippe Diallo (France), member
Joaquim Evangelista (Portugal), member
Philippe Piat (France), member
on the claim presented by the player
X, xxxxxx
represented by Mr xxxxx, attorney at law,
as Claimant
against the club
Y, xxxxx
represented by Mr xxxxxx, attorney at law,
as Respondent
on the basis of an employment contract
concluded between the parties.
I.
Facts of the case
1.
On 19 June 2006, the player X, the Claimant, and the club Y, the Respondent,
signed an employment contract valid until 30 May 2007 for a total amount of EUR
30,000 payable in ten instalments of EUR 3,000 each starting on 1 August 2006
until May 2007.
2.
On 20 June 2006, the same parties signed a supplement to the employment
contract valid for the exact period of time. However, the Respondent obliged
itself to pay to the Claimant a total amount of EUR 50,000 (EUR 10,000 in advance
as signing-on fee and EUR 40,000 payable in ten monthly instalments as from 1
August 2006). Moreover, the Respondent should provide the Claimant with a car,
accommodation not exceeding the amount of CYP 300, bonuses according to the
internal Regulations and 4 flight tickets.
3.
On 8 October 2006, the Claimant lodged a complaint with FIFA affirming that he
had signed an employment contract as well as an annex with the Respondent
according to which he was entitled to receive a total amount of EUR 80,000.
4.
The Claimant affirmed that he received the signing-on fee of EUR 10,000 and
nothing else. He explained that he was red carded and therefore suspended from
trainings, sanctioned with an amount of CYP 4,000 (EUR 6,860) on 30 August 2006
and that he was asked to leave the apartment as from 19 September 2006.
5.
Finally, the Claimant explained that he terminated the contract on 28 September
2006 and that he requests the amount of EUR 70,000 plus interest and legal
expenses.
6.
On 2 November 2006, the Respondent explained that according to the contract
and its supplement the very first payment towards the Claimant in the amount of
EUR 7,000 (EUR 3,000 plus EUR 4,000) should have been made on 1 August 2006.
However, art. 9 of both, the contract and its supplement, stipulates that the
Respondent has 30 days to pay the Claimant’s remuneration.
7.
The above-mentioned art. 9 stipulates: “The Employer shall pay the player’s
emoluments in the manner specified herein with a grace period of 30 (thirty) days.
In the event that the club does not make available due payment then the player
can hold the club responsible and the player has the right to terminate this
agreement.”
8.
In view of the above, the Respondent is of the opinion that the first payment
towards the Claimant in the amount of EUR 7,000 should have been made on 1
September 2006 at the latest.
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9.
However, the Respondent emphasised that on 26 August 2006 the Claimant was
red carded and therefore in accordance with art. 6 of the employment contract he
was sanctioned with a fine amounting to CYP 4,000 corresponding to EUR 7,000.
10.
The above-mentioned art. 6 stipulates: “In case where the player shall be
suspended from participating in any game by any authority and/or body
controlling football and /or sports in xxxx or elsewhere the Employer may
withhold deduct and/or reduce the player’s emoluments in respect of the period
of suspension in which case the player shall be stopped from claiming otherwise.”
11.
The Respondent provided a copy of a letter dated 30 August 2006, by means of
which the Claimant was informed that the Respondent’s Administrative
Committee had decided that, until further notice, he would have to train on his
own in the auxiliary stadiums of the Respondent and that the amount of xxx 4,000
was to be deducted from his salaries.
12.
Moreover, the Respondent provided a confirmation issued by the xxx Football
Association, dated 24 October 2006 which explains that the xxx Judicial Committee
imposed one additional match suspension, beyond the two automatic match
suspensions, on the Claimant on 8 September 2006, since he was sent off from one
match.
13.
The Respondent informed the Claimant on 27 September 2006 that due to his
behaviour and in accordance with art. 10d of the contract it terminated the
contract. Art. 10d of the employment contract stipulates: “The present contract
may be terminated and/or suspended (as the case may be) for one or more of the
following reasons……d) In the case of disciplinary sanction imposed by the xxx
and/or any other competent sport authority whereby the Claimant is suspended
with no reason or under his own responsibility, for more than 30 days or 4 games
whichever is less”.
14.
The Respondent provided a payment receipt amounting to xxx 1,200 duly signed
by the Claimant and dated 20 July 2006 (xxx 400 for the deposit of the house, xxx
400 for the rent and xxx 400 as advance for the August salary).
15.
Equally, the Respondent provided a copy of the internal Regulations (dated 5
August 2006) for the season 2006/2007. According art. IV 2. of the said Regulations
in case of red card for misconduct, cursing, physical violence, the Claimant shall be
automatically subject to a fine. According to the relevant Annex to the
Regulations regarding penalties in case of unexcused red card a fine up to xxx
3000 (EUR 5,200), may be imposed and in case of two red cards the amount will be
double.
16.
Finally, the Respondent stated that by the time the Claimant terminated his
contract in September 2006, no salary was outstanding, i.e. the August salary was
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not outstanding due to the fine imposed on the Claimant and the September
salary was not due before 1 October 2006.
17.
On 23 November 2006, the Claimant once again emphasised that he terminated
the contract with just cause on 28 September 2006 due to the Respondent’s
violation of art. 9, i.e. due to the Respondent’s failure to pay him his salary in due
time as well as due to the sanction imposed on him to train alone dated 30 August
2006.
18.
With regard to the payment receipt provided by the Respondent, the Claimant
emphasised that the rent was not part of his salary. Moreover, the Claimant
explained that the financial sanction imposed by the Respondent was not
proportionate. In particular, the Claimant pointed out that in principle the
disciplinary measures should have been based upon the Respondent’s disciplinary
rules, which were never given to him. Equally, the Claimant emphasised that the
ban to train alone had no time limit, therefore he had no knowledge of the
severity of the penalty nor was he given any means to defend himself.
19.
Furthermore, the Claimant is of the opinion that the sole purpose of the isolation
from the team was to force him to agree on an “mutual rescission” of the
contract, however, as he did not agree during several meetings with the
Respondent, the latter obliged him to train alone.
20.
The Claimant also argued that when the Respondent received his termination
notice, the Respondent changed its strategy and tried to unilaterally rescind the
contract before he had have a chance to do so. However, he never received any
termination notice from the Respondent. Moreover, the conditions which would
justify a termination based on art. 10 of the employment were never met a)
inability to render his services for more than 60 days, b) inability to render his
services for more than 90 days, c) persisting and/or repeated breach of the
contractual provisions, d) disciplinary sanctioned imposed by the xxxx Football
Association and/or other competent body if he is sanctioned for more than 30 days
or 4 games, e) doping.
21.
Furthermore, the Claimant emphasised that the internal rules to which the
Respondent referred to came into force on 5 August 2006 only, i.e. after he
concluded the employment contract with the Respondent and thus, he was not
aware of their existence. Anyway, the Claimant is of the opinion that one red card
does not justify the Respondent’s behaviour. Equally, the Claimant emphasised
that he was suspended in total for 3 games and not 4 games, therefore the criteria
contained in art 10d of the employment were certainly not met. Even more, the
Claimant pointed out that he participated in the match against the club xxx on 23
September 2006, so the 30 days did also not elapse as from 26 August 2006 when
he was red carded. Consequently, the Claimant is of the opinion that the said
provision is arbitrary.
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22.
Finally, the Claimant informed FIFA that since January 2007 he is rendering his
services to a new club and that he is earning the monthly amount of EUR 5,416.
23.
On 23 January 2007, the Respondent stressed that according to art. 2 of the
contract the Claimant agreed to follow the Regulations concerning the technical,
sporting and disciplinary matters. The Respondent once again pointed out that the
first salary was due to the Claimant not prior to 1 September 2006. The
Respondent acted in accordance with the contract (art. 6) and deducted the
amount of xxx 4,000, i.e. the August salary (EUR 7,000). As a result, the
Respondent reiterated that it not breached the contract as affirmed by the
Claimant.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 28 October
2006, as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in connection with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a xxxx player and a xxxx club regarding a
claim in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed on 19 June 2006 and the claim was lodged
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at FIFA on 28 October 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and the Transfer of
Players (edition 2005, hereafter: the Regulations) are applicable to the case at
hand as to the substance.
5.
Having established its competence to deal with the matter at hand, the Dispute
Resolution Chamber proceeded to enter into the substance of the case. In this
respect, the Dispute Resolution Chamber focussed on the questions whether the
Claimant was entitled to receive, as requested, any possibly outstanding
remuneration and compensation for breach of contract from the Respondent and,
if so, at which amount.
6.
In continuation, the members of the Chamber started by acknowledging that on
19 June 2006 the Claimant and the Respondent signed an employment contract
valid until 30 May 2007 for a total amount of EUR 30,000 payable in ten
instalments of EUR 3,000 each starting on 1 August 2006 until May 2007. Equally,
the Chamber took due note that the same parties signed a supplement to the
employment contract valid for the exact period of time, by means of which the
Respondent obliged itself to pay to the Claimant the amount of EUR 10,000 as
signing-on fee and EUR 4,000 payable in ten monthly instalments as from 1 August
2006.
7.
In this respect, the Chamber duly noted that, the Claimant explained that the
Respondent paid him the signing-on fee of EUR 10,000 only, and thus had failed
to pay him the remuneration due to him for the period of time lasting from the
beginning of the contractual relation until September 2006. In this context, the
Chamber considered that the Claimant is of the opinion that the Respondent
breached the employment contract without just cause and he is therefore
requesting the total amount of EUR 70,000 plus interest and legal expenses as
compensation.
8.
Turning its attention to the Respondent, the Chamber took due note, that the
Respondent rejects the Claimant’s claim emphasizing that by the time the
Claimant terminated the employment contract, respectively by the time it
terminated the contract in September 2006, no salary was outstanding. In
particular, the Respondent emphasised that the August salary was not outstanding
due to the fine imposed on the Claimant on 30 August 2006 and the September
salary was not due before 1 October 2006 according to art. 9 of the employment
contract.
9.
The Chamber started its deliberations by emphasising that it is undisputed that the
Claimant rendered his services to the Respondent during two months, August and
September 2006. In this context, the Chamber underlined that, as a general
principle, a club is obliged to remunerate a player, as agreed between the parties,
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for the period of time during which he has rendered his services to the club, unless
the club can justify the non-payment of the agreed remuneration.
10.
In view of the above, the Chamber addressed the question whether the
Respondent has had valid reasons for not paying to the Claimant the entire
amount of EUR 14,000, corresponding to the contractual agreed remuneration for
the two months during which the Claimant rendered his services to the
Respondent.
11.
In this respect, the Chamber considered that the Respondent argued that the
August salary was not paid due to the fine imposed on the Claimant by the
Respondent’s Administrative Committee on 30 August 2006 and that the
September salary was not due before 1 October 2006.
12.
With regard to the sanction, the Chamber took due note that the Respondent’s
Administrative Committee imposed the following sanction on the Claimant due to
the fact that he was red carded during the match against xxx on 26 August 2006.
On the one hand, the Claimant was instructed to train alone until further notice
and, on the other hand, the amount of xxx 4,000 (EUR 6,920 based on the
exchanged rate by the time of the sanction) was deducted from the Claimant’s
emoluments.
13.
Moreover, the deciding authority took due note that according to the documents
at disposal, particularly art. IV 2. of the internal Regulations, in case of red card for
misconduct, cursing, physical violence, a player shall be automatically subject to a
fine, in particular, the penalties in case of unexcused red card would correspond to
a fine up to xxx 3,000, in case of two red cards the amount will be double.
14.
In this respect, the Chamber emphasised that based on the decision of the
Respondent’s Administrative Committee dated 30 August 2006 it can be
established that the imposed fine of xxx 4,000 was in connection with one red card
only, during the match against xxx on 26 August 2006. Equally, the Chamber
considered that on top of the rather very high fine imposed, the Claimant was also
sanctioned to train on his own for an indefinitely period of time.
15.
The Chamber unanimously concluded that the sanctions imposed on the Claimant
based on one red card are rather disproportionate. On the one hand, considering
the amount of the fine in connection with the Claimant’s monthly salary as well as
in connection with the possible highest amount provided for by the internal
Regulation (cf. point II. 13 above) and, on the other hand, also with regard to the
uncertainty as far as the ban imposed on the Claimant to train alone is concerned.
16.
As a result, the members of the Chamber deemed that the sanctions imposed on
the Claimant cannot be endorsed and, thus the Respondent has had no valid
reasons for not fulfilling its contractual obligations towards the Claimant.
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17.
Thereafter, the Chamber also deemed that the Respondent has had no reasonable
justification for not paying the Claimant’s salary for the month of September 2006.
In this sense, the Chamber underlined that irrespective from the fact whether a
“grace period of 30 days” had been agreed to pay the monthly salaries, the
Respondent, in accordance with the general principle referred under the above
point II. 8., is obliged to remunerate the Claimant for the services he rendered.
18.
In view of all of the above, the members of the Chamber unanimously concluded
that the Respondent has had no valid reasons for not complying with its
contractual obligations towards the Claimant and therefore terminated the
contract without just cause. Consequently, the Chamber decided that the
Respondent is liable to pay the outstanding salaries as well as compensation.
19.
As far as the outstanding salaries are concerned, the Chamber considered that the
Respondent provided a payment receipt duly signed by the Claimant and dated 20
July 2006 by means of which it can be established that the amount of xxx 400 (EUR
685) had been paid to the Claimant as advance salary for the month of August
2006. Thus, the Chamber concluded that the Respondent has to pay to the
Claimant the amount of EUR 13,315 as outstanding salaries, i.e. the amount of
EUR 6,315 as remaining August salary plus 5% interest p.a. as from 31 August 2006
until the effective date of payment and EUR 7,000 as September salary plus 5%
interest p.a. as from 30 September 2006 until the effective date of payment.
20.
For the sake of good, order the Chamber pointed out that the other receipts
provided by the Respondent amounting in total to xxx 800 (cf. point I.14. above)
are in no relation to the Claimant’s salary payments, and thus not considered in
this connection.
21.
In continuation, the Chamber turned its attention to the consequences in
connection with the unjustified and premature termination of an employment
contract and concluded that in accordance with art. 17 par. 1 of the Regulations
the Respondent is liable to pay compensation to the Claimant for the breach of
contract.
22.
In this context, the Chamber considered that the Claimant requests the entire
remaining value of the relevant employment contract.
23.
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
contractually agreed remuneration for the remaining value of the relevant
employment contract as well as the time remaining on the said employment
contract. Equally, the Chamber considered that the employment relationship was
terminated during the course of the season and that the Claimant was able to find
a new club in January 2007 only.
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24.
In view of all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that the amount of EUR 20,000 was to be considered
reasonable and justified as compensation for breach of contract.
25.
Finally, with respect to the Claimant’s request to be awarded his legal expenses,
the Chamber decided to reject the relevant request in conformity with its
longstanding practice.
26.
As a result, the Chamber decided that the Respondent must pay to the Claimant
the total amount of EUR 33,315 (EUR 13,315 as outstanding salaries and EUR
20,000 as compensation).
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is partially accepted.
2.
The Respondent must pay to the Claimant the amount of EUR 6,315 plus 5%
interest p.a. as from 31 August 2006 and EUR 7,000 as plus 5% interest p.a. as from
30 September 2006 until the effective date of payment as well as the amount of
EUR 20,000 within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
5.
The Claimant is directed to inform the Respondent directly and immediately of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
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
9
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
General Secretary
Encl.
CAS directives
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