Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 June 2007,
in the following composition:
Mr Slim Aloulou (Tunisia), Chairman
Mr Philippe Diallo (France), member
Mr Essa M. Saleh al Housani (United Arab Emirates), member
Mr Philippe Piat (France), member
Mr Joaquim Evangelista (Portugal), member
on the claim presented by
Player A, AA
Represented by Mr XY
as Claimant,
against
Club B, BB
as Respondent,
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 11 October 2004, the Player A, the Claimant, born on 1974, signed a contract
with the Club B, the Respondent, that was valid from 2 February 2005 to 1 January
2006. Article 3 of this contract stipulated that the player was to receive a total salary
of USD 750,000 for the period of validity of his contract, with USD 200,000 due upon
issuance of the international transfer certificate and the remaining USD 550,000
payable in 11 instalments of USD 50,000. In article 5, the two parties agreed that in
the event of the contract being unilaterally terminated without just cause,
compensation of USD 1,000,000 would be payable to the other party.
2.
On 2 January 2005, the two parties concluded another agreement. This agreement,
like the contract signed on 11 October 2004, was valid from 2 February 2005 to 1
January 2006. Article 4 stipulated the player’s financial entitlements as follows: basic
salary (I) totalling USD 750,000 net, (II) monthly salary of USD 50,000 net (11
months) as well as an advance payment of USD 200,000 net. Furthermore, in article
9 paragraph 1, the parties listed seven circumstances that would entitle the
Respondent to terminate the contract with immediate effect by sending written
notification to the Claimant. In paragraph 2 of article 9, the parties stipulated that
in the event of the contract being terminated for any of the first six circumstances,
the Respondent would have to pay the Claimant the sum that he was owed as his
basic annual salary under the terms of his contract up to and including the month in
which the contract was terminated via written notification. In paragraph 11, the
parties also listed various other circumstances that would entitle the Respondent to
warn the Claimant or fine him, with the fine not to exceed 80% of 1/5 of the
Claimant’s basic annual salary.
3.
In a letter dated 10 August 2005, the Respondent informed the Claimant that it was
terminating his contract because the Claimant had violated paragraphs 3 and 4 of
article 11 of the agreement concluded on 2 January 2005 (i.e. failure to the orders
and instructions of the Respondent, article 11, paragraph 3, and negative affect to
the club’s organisation, article 11, paragraph 4). At the same time, the Respondent
informed the Claimant that it was fining him USD 85,000 under the terms of article
11, and that given the fact that the Claimant was only entitled to his August
monthly salary (USD 50,000) now that his contract had been terminated, the
Claimant would have to pay the club the sum of USD 35,000 by 30 August 2005.
4.
On 26 October 2005, the Claimant informed FIFA that the Respondent had
terminated his contract by sending a letter dated 10 August 2005. The Claimant
claimed that the Respondent had not been entitled to unilaterally terminate his
contract, and that he had been regularly mistreated. He noted, for example, that
Player A/ Club B
2
the Respondent had fined him for missing his first training session. He had paid this
fine so as not to sour relations with the Respondent from the very start, but he had
also explained to the Respondent that he had not known about the training session
as he had thought that it had been scheduled for the next day.
5.
He had also been fined for allegedly offending the coach. He had also paid this fine
because it was deducted from his salary, just like the first fine. The Claimant
stressed, however, that he had never offended the coach. He had simply spoken to
the coach in an appropriate tone and without insulting words about his position in
the team and about how he could improve his performances.
6.
The Claimant claimed that the actual reason for the unilateral termination of his
contract was because the Respondent was only allowed to employ three foreign
players, and this limit had already been reached. Consequently, the Respondent had
needed to terminate the contract of a foreign player in order to be able to sign new
foreign players. That was why notification of the Respondent’s decision to
terminate the contact had only been given some two months after the Claimant’s
alleged misdemeanours.
7.
Finally, the Claimant stated that even if his conduct had indeed justified unilateral
termination, his contract had not been terminated at the right time as his conduct
had been accepted without complaint.
8.
The Claimant is therefore claiming the compensation of USD 1,000,000 that was
agreed in the contract, plus upward revaluation and interest from the date of
termination (10 August 2005) as well as compensation for all costs relating to these
proceedings (legal costs, translation costs, etc.). In addition, he is requesting that the
case be submitted to the FIFA Disciplinary Committee in the event that the
Respondent fails to pay the above amount.
9.
On 27 January 2006, the Respondent stated that the Claimant had not met his
contractual obligations from the very start of his employment with the Respondent.
10.
In addition, it stated that the Claimant had also failed to report for training on 16
March 2005, or had left training early.
11.
On 23 April 2005, the Claimant had allegedly left an official match before the end
of the game as he had been unable to accept his substitution. Consequently,
according to the Respondent, the Claimant had failed to take part in an official club
event.
Player A/ Club B
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12.
In addition, on 22 July 2005 – two days before another official match – the Claimant
had allegedly argued with the Respondent’s head coach, which had prompted the
Claimant to once again leave training halfway through. Apparently, the Claimant
had then failed to report for training the next day, or to the stadium on the day of
the match.
13.
Finally, the Respondent claimed that it had discussed all obvious problems with the
Claimant, and that the parties had agreed to terminate the contract.
14.
Furthermore, in July 2005, the Claimant had intimated to the Respondent that he
was seeking employment elsewhere.
15.
On 3 February 2006, the Claimant replied and noted that there had never been
discussions about terminating the contract by mutual agreement. If such a
discussion had actually taken place, the Respondent would not have had to contact
him by letter on 10 August 2005 to notify him of the fact that his contract had been
terminated. The Claimant stressed that he had not signed this letter.
16.
The Claimant also denied ever telling the Respondent that he was seeking a new
club.
17.
Furthermore, the Claimant noted that the Respondent had not only failed to pay
him the contractually agreed compensation sum (article 5) of one million, but that it
had also deducted USD 85,000 – 1/5 or 20% of his annual salary – from his claim,
thereby ordering him to pay USD 35,000.
18.
The Claimant also provided an excerpt from the regulations of the country of Club
B, which he had found on the internet, to prove that a Club from this country may
only employ a maximum of three foreign professional players at any given time. In
this connection, the Claimant requested that the Respondent be ordered to provide
a list of all of the foreign players that it had signed since July 2005.
19.
In a letter dated 15 September 2006, the Football Association of Club B informed
FIFA that since July 2005, the Respondent had signed the following foreign players:
from 19 August 2005, the Player C and Player D. Furthermore, the player Ehad
played for the club in question from 27 January 2004 to 31 January 2006.
20.
On 15 March 2006, the Respondent reiterated that this was not unilateral
termination without just cause under the terms of article 5. As evidence, the
Respondent submitted four letters in which five different people confirmed that the
Claimant had committed the following transgressions:
Failure to report for the morning training session (9.30h) on 2 February 2005,
Player A/ Club B
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Failure to report for the afternoon training session (15.00h) on 2 February 2005,
Failure to report for the morning training session (9.30h) on 16 March 2005 / leaving
said training session before the end,
In a match against Club F (a club from the same country as Club B) on 23 April 2005,
the Claimant had been replaced, to his evident dissatisfaction, in the 68th minute
by Player XY. He had then proceeded to get changed immediately, leaving the
stadium before the match was over. Consequently, the Claimant had failed to meet
his obligation to take part in official events after the match,
On 22 July 2005, during the morning training session (9.30h), the Claimant argued
with the then head coach, going home before the training session had been
completed. He then failed to report for training on 23 July 2005 or for the official
match against Club G (an other club from the same country of Club B) on 24 July
2005. He thus once again failed to take part in an official post-match event.
21.
On 31 March 2006, the Claimant requested that the four letters, in which five
persons had confirmed his alleged transgressions, be disregarded as they had only
been written on 15 March 2006, i.e. a long time after the Claimant’s alleged
transgressions. In addition, the Claimant stated that he believed that those five
persons had only signed the documents because they had feared losing their jobs.
Finally, even if he had committed such transgressions, such conduct would not
present viable reasons for unilateral contract termination.
22.
The Respondent requested that the signed statements from its employees regarding
the Claimant’s conduct be taken into account as law of the country of Club B
prohibited employers from ordering employees to act under threat of losing their
jobs. Furthermore, the statements from the Respondent’s employees were not
designed to ensure that the Respondent did not have to pay compensation. After
all, such compensation payments would not be necessary as the contractual
relationship with the Claimant had been terminated in accordance with article 9 of
the Claimant’s contract.
23.
The Respondent also stressed that the contract had been terminated with just cause
under the terms of article 14 of the FIFA Regulations for the Status and Transfer of
Players. This was not, in particular, a case of the Claimant being fired because other
players had been signed. In actual fact, the Respondent had wanted to retain the
services of such a talented player, and they had not terminated his contract with
immediate effect even though he had committed numerous transgressions.
However, as the Claimant had continued to breach his contract, the Respondent had
been left with no other option than to terminate his contract. Furthermore, the
Respondent had only begun the search for a replacement after the Claimant had
informed the Respondent that he no longer wished to play for them. This had led to
unexpected extra costs for the Respondent (for example, payments to the agents of
Player A/ Club B
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the “replacement player”). In total, the Respondent had incurred extra costs of USD
780,000. If the Claimant continued to pursue his claim for compensation, he would
therefore be required to cover the incurred costs of USD 780,000. No evidences
were, however, submit to this counter-claim.
24.
The Respondent then submitted a letter dated 14 July 2005. This letter was an
indication of a fine of 100,000 yen that had been imposed on the Claimant for
breaching his contract on numerous occasions, in line with articles 2, 3, 9 and 11 of
the contract. This sum was to be deducted from the Claimant’s next monthly salary.
Furthermore, in this letter, the Respondent had informed the Claimant that his
contract would be terminated under the terms of article 9 if he continued to breach
his contract.
25.
The Claimant then submitted the international transfer certificates that the Football
Association of Player A had issued to the Football Association of Club B in August
2005 for some players. Claimant reiterated that his contract had been terminated on
10 August 2005, whereas these ITCs had been issued on 11 and 12 August 2005. This
proved that his contract had only been terminated in order to allow the Respondent
to sign other foreign players. Finally, the Claimant stated that ultimate clarification
would be given by the list of foreign players that the Respondent had signed since
July 2005, which he had requested that the Football Association from the
respondent provide.
26.
In a letter dated 21 July 2006, the Football Association from the respondent
confirmed that clubs were entitled to sign up to three foreign players. Furthermore,
they stated the following: “each team can register up to 3 professional players of
foreign nationality. In addition, the team may register up to 2 players of foreign
nationality of amateur regardless of age or professional at the age of 18 and above
and below 20“.
27.
In a letter dated 19 July 2006, the Respondent stressed once again that it had not
terminated the contract in order to sign another player. In actual fact, they had
wanted to retain the Claimant, even though he had committed transgressions early
on and even though such transgressions had increased in frequency. Despite
numerous discussions, the Claimant’s conduct had failed to improve. In the end, the
Respondent had been forced to replace him with another player.
Player A/ Club B
6
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
(DRC, hereinafter: the Procedural Rules). The present matter was submitted to FIFA
on 26 October 2005. As a consequence, the Chamber concluded that the revised
Rules Governing Procedures (edition 2005) on matters pending before the decisionmaking bodies of FIFA are applicable on the matter at hand (hereinafter: the
Procedural Rules).
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the Procedural 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 (d) of the aforementioned Regulations, the Dispute Resolution Chamber
shall adjudicate on employment-related 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 the Player A and the Club B regarding
contractual disputes in connection with an employment contract.
4.
Subsequently, the members of the Chamber analysed 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 2 January 2005 and the claim lodged at FIFA on
26 October 2005. In view of the aforementioned, the Chamber concluded that the
current FIFA Regulations for the Status and Transfer of Players (edition 2005,
hereinafter: the Regulations) are applicable to the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members started
by acknowledging the above-mentioned facts as well as all the further
documentation contained on file.
6.
To that regard, first of all, the members of the Chamber acknowledged that the
Claimant and the Respondent signed two employment contracts, i.e. one on 11
October 2004 and another one on 2 January 2005, both of them stipulating a
contract period starting from 2 February 2005 until 1 January 2006.
Player A/ Club B
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7.
Taking into account that both agreements concluded between the parties in dispute
encompass the same period of time, the members of the Chamber concurred that
the parties in dispute reconsidered their arrangements taken in October 2004 and
went on to conclude a new employment contract, i.e. the one signed on 2 January
2005, reflecting their amended agreements. In other words, the Chamber
unanimously decided that with the signing of the second employment contract, the
parties concerned tacitly overruled the one signed in October 2004. Consequently,
the Chamber decided that the employment contract concluded on 2 January 2005 is
the only authoritative employment contract concluded between the Claimant and
the Respondent.
8.
Once the issue regarding the applicable employment contract had been established,
the Chamber noted that the Claimant maintained having been dismissed by a
termination letter dated 10 August 2005 and that the only reason for the said
dismissal must be seen in the fact that the Respondent wanted to engage a new
foreign football player which, according to the Claimant, was only possible after
having terminated the contractual relationship with the Claimant as the
Respondent’s quantity of foreign players was already reached.
9.
Turning its attention to the Respondent, the Chamber acknowledged that the said
contradicted the statements made by the Claimant maintaining that it was highly
interested in the services of the Claimant but, due to the latter’s constant
misbehaviours, in the end, had no alternative than to break up with him.
10.
Due to the aforementioned positions made by the parties in dispute, the Chamber
went on to analyse what kind of misbehaviours the Claimant allegedly committed
according to the Respondent.
11.
Thereto, the Chamber acknowledged that the Respondent maintained that the
Claimant was already at the beginning of the contractual relationship in breach of
contract as he did allegedly not join the Respondent on due time for the first
training session.
12.
In this context, the Chamber noted that the Claimant admitted having missed the
relevant training session, apparently due to a simple misunderstanding.
13.
To that regard, the members of the Chamber unanimously decided that the
Claimant was indeed in breach of the employment contract concluded on 2 January
2005 as, on the basis of the said contract, he had to render his services to the
Respondent as from 2 February 2005 until 1 January 2006 and, consequently, was
obliged to join the Respondent as from the first day of its training sessions of the
year 2005. In particular, the Chamber deemed it important to highlight that it was
the Claimant’ s obligation to ensure that he took due notice of the relevant dates.
Player A/ Club B
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14.
Consequently, the Chamber concluded that the Claimant did not fulfil his
contractual obligations by starting delayed with the training sessions in question.
15.
Moreover, the Chamber acknowledged that the Respondent maintained that the
Claimant missed other different trainings or matches as, in parts, he did not accept
the decisions taken by the Respondent regarding the Claimant’s assignment.
16.
In this respect, first of all, the Chamber acknowledged that the Claimant contested
such kind of transgressions. However, due to the fact that several players confirmed
the allegations made by the Respondent, the Chamber had no alternative than to
concur that the said relevant transgressions took place. Yet, the Chamber noted
that, according to the Claimant, the Respondent fined the Claimant for the alleged
transgressions by invoking the provisions foreseen in the employment contract
concluded between the parties in dispute in February 2005, i.e. by deducting the
relevant fine(s) from the Claimant’s monthly salary.
17.
In light of the above, the Chamber deemed it important to direct its attention to the
relevant provision of the employment contract, according to which the Respondent
was entitled to impose sanctions on the Claimant, i.e. to article 11. In this context,
the members of the Chamber particularly acknowledged that the cited article leaves
it up to the club to determine the exact amount to be paid as a fine by the Claimant
in case of any misbehaviour. In fact, on the occasion of the signature of the
employment contract, the parties exclusively agreed upon the maximum amount of
money to be paid as such fine.
18.
Thereto, the Chamber came to the conclusion that article 11 of the employment
contract is not legally valid as it is a potestative clause not granting the want of
mutuality as far as the fixing of fines in case of the Claimant’s misbehaviours is
concerned. In fact, the Chamber unanimously came to the conclusion that the
above-mentioned rule is ambiguous and its application arbitrary, since it leads to an
unacceptable result based on non-objective criteria. In particular, the Chamber
emphasised that the lack of objective criteria by the application of the relevant rule
leads to an unjustified disadvantage of the Claimant’s financial rights (i.e. his salary
entitlements) and, therefore, unanimously concluded that the relevant provision
cannot be endorsed.
19.
As a consequence, the Chamber concurred that the Respondent was not entitled to
unilaterally establish fines upon the Claimant for all his apparent transgressions and
to deduct the relevant amounts of his remunerations.
20.
On account of the above, the members of the Chamber unanimously decided that
both, the Claimant and the Respondent, were in default with their respective
contractual obligations. On the one hand, the Claimant did not accept different
Player A/ Club B
9
dispositions made by the Respondent, whereas the Respondent imposed sanctions
on the Claimant in accordance with a legally not valid or protectable employment
contract clause.
21.
In continuation, and with regard to the Claimant’s argument that he was only
dismissed as the Respondent wished to employ another foreign football player, the
Chamber acknowledged that the Claimant was not in a position to present binding
evidences in this respect. In particular, the Chamber deemed it important to
highlight that the fact that the Respondent engaged two further AA players in
summer 2005 can only be seen as an indication for the Claimant’s argument but not
as a binding proof of it since, as maintained by the Respondent, it could also have
been the case that the latter had to hire other foreign players due to the fact that
the contractual relationship with the Claimant was to be resolved due to
irreconcilable differences between the parties in dispute.
22.
In sum, the Chamber came to the conclusion that both parties in dispute neglected
their respective contractual obligations, highlighting that the Claimant was the first
party in breach of contract.
23.
However, taking into consideration that the Respondent repeatedly fined the
Claimant in accordance with, as mentioned before, an invalid employment contract
clause, the Chamber went on to analyse the Claimant’s entitlement for breach of
contract compensation in the sense of art. 17 of the Regulations as it considered the
Respondent’s default as the more severe one.
24.
In this context, the Chamber acknowledged that the Claimant requests
compensation in the amount of USD 1,000,000 in the sense of article 5 of the
employment contract concluded on 11 October 2004.
25.
In this context, the Chamber referred to its considerations mentioned under II, point
7 above. In other words, the Chamber stressed that the penalty clause invoked by
the Claimant cannot be applied as the employment contract concluded in October
2004 was annulled by the conclusion of the second employment contract, i.e. the
one concluded in January 2005, which does contain no kind of penalty clause.
26.
Therefore, the Chamber went on to determine the amount of compensation to be
paid by the Respondent to the Claimant in accordance with the clues mentioned in
art. 17 of the Regulations.
27.
As far as the relevant assessment is concerned, the deciding body deemed it also
appropriate to highlight that the relevant compensation to be paid by the
Respondent must be slightly reduced as the Claimant’s own misbehaviours (i.e. his
Player A/ Club B
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non-observance of the instructions made by the Respondent) must also be taken
into consideration.
28.
Consequently, and after long deliberations, the Chamber deemed it appropriate to
compensate the Claimant with the amount of USD 50,000 representing the amount
of one of his monthly salary payment plus interest of 5% per annum as from 10
August 2005 as requested by the Claimant.
29.
Moreover, and with regard to the Claimant’s request to be reimbursed for the costs
incurred with the present proceedings, the Chamber referred to its well-established
jurisprudence to never award such kind of requests.
30.
Finally, and turning its attention to the Respondent’s counterclaim, the Chamber
pointed out that the Respondent never substantiated the relevant request (i.e. USD
780,000). Therefore, and by referring to art. 12 par. 3 of the Procedural Rules, the
Chamber decided that the Respondent’s counterclaim must be dismissed.
31.
In conclusion, the Dispute Resolution Chamber decided that the Respondent has to
pay to the Claimant monies in the amount of USD 50,000 plus interests of 5% per
annum as from 10 August 2005 as compensation for breach of contract without just
cause in the sense of art. 17 of the Regulations.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, Player A, the amount of USD
50,000 plus interests of 5% per annum as from 10 August 2005 within 30 days as
from the date of notification of this decision.
3.
Any further request made by the Claimant, Player A, is rejected.
4.
The Respondent’s, Club B, counter-claim is rejected.
5.
The present matter will be submitted to the FIFA’s Disciplinary Committee, so that
the necessary disciplinary sanctions may be imposed if the aforementioned amount
is not paid within the aforementioned deadline.
Player A/ Club B
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6.
The Claimant, Player A, is directed to inform the Respondent, Club B, immediately
of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
7.
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
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl. CAS directives
Player A/ Club B
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