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), Chairman
Philippe Diallo (France), Member
Essa M. Saleh Al-Housani (United Arab Emirates), Member
Philippe Piat (France), Member
Joaquim Evangelista (Portugal), Member
on the claim presented by the player
Xxx, Xxx,
represented by Mr Xxx, Attorney at law,
as Claimant
against the club
Xxx, Xxx,
as Respondent
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 24 August 2005, the Xxx player, Xxx (hereinafter: the Claimant), and the Xxx
club, Xxx (hereinafter: the Respondent) signed an employment contract, valid
from the day of the signature until 30 June 2006. According to this contract, the
Claimant is entitled to receive 12 monthly salaries in the amount of EUR 8,333
for the duration of the contract. Furthermore, the Claimant is entitled to receive
a bonus in the amount of EUR 12,500 on condition that he scores 10 goals and a
bonus in the amount of EUR 12,500 on condition that he completes 25 official
matches. Finally, the contractual parties stipulated a termination clause in the
amount of EUR 2,000,000.
2.
By his correspondence dated 24 April 2006, the Claimant, after having contacted
the Respondent several times, terminated the relevant employment contract due
to the fact that the Respondent allegedly had failed to pay the salaries for the
months of January, February, March 2006.
3.
On 10 May 2006, the player lodged a claim with FIFA against the Respondent. In
particular, the Claimant argued that the Respondent had failed to pay him
outstanding salaries for the months of January, February, March and April 2006
and, thus, the Respondent was found in breach of contract.
4.
In this sense, the Claimant requested the following:
the payment of allegedly outstanding salaries for January,
February, March and April 2006 in the total amount of EUR 31,666,
the payment of the alleged rest value of the contract in the
amount of EUR 34,998,
the payment of bonuses and benefits in the amount of EUR 25,000
and
the imposition of disciplinary sanctions against the Respondent.
5.
In its response, the Respondent referred to its letter dated 2 May 2006, by means
of which it had informed the Xxx Football Federation that the Claimant had
allegedly abandoned the club, without its authorization, on 20 April 2006. In this
regard, the Respondent affirmed that the amount claimed by the Claimant did
not correspond to the outstanding financial obligations of the Respondent
towards the Claimant.
6.
According to a payment list, several payments had been made by the
Respondent until the termination of the contract. As far as the salaries in dispute
are concerned, the Respondent provided bank transaction documents, indicating
that both on 1 February 2006 and 7 March 2006 the net amount of EUR 6,250
(corresponding to the gross amount of EUR 8,333), overall the net amount of
Player Xxx, Xxx / Club Xxx, Xxx
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EUR 12,500 (corresponding to the gross amount of EUR 16,666), had been paid to
the Claimant.
7.
In his replica, the Claimant argued that he had fulfilled his employment contract
as from August/September 2005 (24 August 2005) until March/April 2006, i.e.
during 8 months, however, that he only had received the salaries for
August/September 2005, September/October 2005, October/November 2005,
November/December 2005, February 2006 and March 2006, i.e. for 6 months, in
the total amount of EUR 49,998.
8.
As a consequence, the Claimant amended his claim requesting the total amount
of EUR 2,049,997.
9.
In particular, he claimed the following:
the payment of allegedly outstanding salaries for January and
April 2006 (24 worked days) plus 2 allegedly outstanding extra
payments so as to complete the contractually stipulated 12
monthly salaries, overall the amount of EUR 31,665,
the payment of compensation in the amount of EUR 18,332 for the
remaining time of the employment contract and
the payment of contractual compensation in the amount of EUR
2,000,000 based on the termination clause of the employment
contract.
10.
In its duplica, the Respondent stated that, as mentioned before, not the club but
the Claimant had unilaterally terminated the employment contract in order to
enter a new employment contract with the Xxx club, Xxx. Therefore, the
Respondent was of the opinion that the contractual termination clause, which
referred to the unilateral termination of the contract, did not apply to the
matter at stake.
11.
Furthermore, the Respondent stated that, per 30 April 2006, it had paid the gross
amount of EUR 62,130 out of the total amount of EUR 74,997 allegedly due as
gross salaries to the Claimant. In this sense, the Respondent agreed to pay the
Claimant net salaries in amount of EUR 9,650 (EUR 12,867 – EUR 3,217 [taxes] =
EUR 9,650), corresponding to the period of time the Claimant actually fulfilled
his contractual obligations towards the club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyze 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
Player Xxx, Xxx / Club Xxx, Xxx
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Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 10 May 2006, as a consequence the Chamber concluded
that the revised Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2005, hereinafter: the Procedural
Rules) to matters pending before the decision making bodies of FIFA are
applicable to the matter at hand.
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
combination with art. 22 b) 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 a Xxx player and a Xxx club regarding
a dispute related to 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 employment
contract at the basis of the present dispute was signed on 24 August 2005 and
the claim was lodged at FIFA on 10 May 2006. In view of the aforementioned,
the Chamber concluded that the current FIFA Regulations for the Status and
Transfers 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 Chamber
acknowledged that, on 24 August 2005, the Claimant and the Respondent had
signed an employment contract, valid from the date of the signature until 30
June 2006, i.e. for a duration of 10 months.
6.
Furthermore, the Chamber took note that according to the relevant employment
contract during the above-mentioned term of validity the Claimant was entitled
to receive a remuneration consisting of 12 monthly salaries in the amount of EUR
8,333 each.
7.
In this regard, the Chamber observed that, on the one hand, the Claimant, in his
original claim, argued that he had prematurely terminated the contractual
relationship between him and the Respondent on 24 April 2006 due to the fact
that the Respondent had allegedly failed to pay him outstanding salaries for
January, February, March and April 2006. Equally, the Chamber noted that the
Player Xxx, Xxx / Club Xxx, Xxx
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Claimant, in his amended claim, requested the payment of the allegedly
outstanding salary for the entire month of January 2006 (EUR 8,333), for the 24
worked days in April 2006 (EUR 6,666) and for the 2 extra months contractually
stipulated beyond the duration of the contract (EUR 8,333 + EUR 8,333 = EUR
16,666), i.e. overall outstanding salaries in the amount of EUR 31,665,
compensation for breach of contract in the amount of EUR 18,332 and
compensation in the amount of EUR 2,000,000 based on the termination clause
agreed upon in the relevant employment contract.
8.
On the other hand, the Chamber acknowledged that the Respondent argued
that the Claimant had abandoned the club on 20 April 2006 without its
authorization. Furthermore, the Chamber took note that the Respondent agreed
to pay the Claimant the amount of EUR 9,650 as outstanding salaries.
9.
On account of the above, and taking in particular into consideration the
Claimant’s termination letter dated 24 April 2006, the Chamber came to the
conclusion that the relevant employment contract had been unilaterally
terminated by the Claimant on 24 April 2006 and that the Claimant had left the
Respondent on that date at the latest.
10.
Subsequently, the Chamber went on to deliberate whether the facts of the case
constitute a just cause for the Claimant to prematurely terminate the
employment contract.
11.
In this regard, the Chamber pointed out that the salaries for February and March
2006 had been paid by the Respondent on 1 February and 7 March 2006 and,
therefore, only the salaries for January and April 2006 remained unpaid until the
termination of the contract on 24 April 2006.
12.
In this sense, the Chamber emphasised that the Claimant in his replica had
amended his original claim accordingly (cf. points I. 4. and I. 9. respectively) and,
thus, had showed bad faith with regard to the months for which he had
allegedly not received his salary.
13.
Furthermore, the Chamber acknowledged the fact that at the date of the
termination of the contract by the Claimant, i.e. on 24 April 2006, the month of
April 2006 had not yet been completely concluded. Therefore, and taking into
consideration that no exact date of payment had been stipulated in the relevant
contract, the Chamber decided that the outstanding salary for April 2006 had
not yet been due at the moment of the termination of the contract by the
Claimant.
14.
Moreover, the Chamber established that according to the documents on file the
Claimant had left the Respondent without the latter’s authorization before the
end of the month of April 2006.
Player Xxx, Xxx / Club Xxx, Xxx
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15.
Consequently, the Chamber concluded that the outstanding salary for April 2006
cannot be taken into consideration as a reason for the early termination of the
contract.
16.
In continuation, the Chamber established that only the outstanding salary for
January 2006 could possibly constitute a just cause for the Claimant to
prematurely terminate the contract.
17.
Taking into consideration the above, the Chamber decided that the fact that the
Claimant had not received his salary for one complete month only did not
constitute a breach of contract that had reached such a level that the party
suffering the breach, i.e. the Claimant, would be entitled to terminate the
contract unilaterally. In particular, the Chamber established that there had not
been persistent non-compliance with the financial terms of the contract that
could endanger the position and existence of the Claimant.
18.
As a consequence, the Chamber reached the conclusion that the premature and
unilateral termination of the employment contract by the Claimant due to the
said reason must be considered as a termination of the contract without just
cause.
19.
In view of the above, the Chamber decided that the Respondent was liable to
cancel the outstanding salary for January 2006, but that the Respondent was not
liable to pay compensation as a result of the early termination of the contract.
20.
In this regard, and taking into consideration that the Claimant under the
relevant employment contract was entitled to receive a remuneration consisting
of 12 monthly salaries in the amount of EUR 8,333 each for the contract’s 10
months duration, the Chamber came to the conclusion that it was reasonable to
accept the suggestion of the Respondent to pay the Claimant the amount of EUR
9,650 (cf. point II. 8.) in order to settle its financial obligations towards the
Claimant.
21.
In conclusion, the Dispute Resolution Chamber decided that the Respondent
must pay the amount of EUR 9,650 as outstanding salaries to the Claimant and
that, therefore, the Claimant’s claim is partially accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Xxx, is partially accepted.
2.
The Respondent, Xxx, must pay the total amount of EUR 9,650 to the Claimant,
Xxx, within 30 days as from the date of notification of this decision.
Player Xxx, Xxx / Club Xxx, Xxx
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3.
In the event that the above-mentioned total amount is not paid within the
stated deadline, an interest rate of 5% per year will apply as of expiry of the
aforementioned deadline and the present matter shall be submitted to FIFA’s
Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
4.
The Claimant, Xxx, is directed to inform the Respondent, Xxx, 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.
5.
Any further claim of the Claimant, Xxx, is rejected.
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
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
Player Xxx, Xxx / Club Xxx, Xxx
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