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,
represented by Mr Xxx, Attorney at law,
as Respondent
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 28 June 2004, the Xxx player, Xxx (hereinafter: the Claimant), and the Xxx
club, Xxx (hereinafter: the Respondent), signed an employment contract, valid
from 1 July 2004 until 30 June 2007. According to the relevant contract the
Claimant is entitled to a basic remuneration in the amount of EUR 320,000 for
the entire duration of the contract. In particular, the said contract stipulates that
the total remuneration is payable in 3 instalments in the gross amounts of EUR
100,000 for the season 2004/2005, EUR 110,000 for the season 2005/2006 and
EUR 110,000 for the season 2006/2007.
2.
On 22 May 2006, the Claimant lodged a claim with FIFA against the Respondent
requesting allegedly outstanding salaries for February and March 2006. He
requested the early termination of the relevant employment contract for just
cause in case that the Respondent would refuse to pay him the allegedly
outstanding salaries.
3.
On 8 July 2006, the Respondent and the Claimant concluded an agreement
concerning the early termination of the relevant employment contract. In this
termination agreement the Respondent agreed to release the Claimant in order
to enable him to find a new club. Furthermore, it was stipulated that “ … in the
event the Claimant agrees to change club colours, the Respondent undertakes to
terminate the contract with the Claimant by mutual agreement upon its
execution by a new club”. In this respect, the parties specified in the annex to
the said agreement that “Upon confirmation by the Claimant that he found a
new club, the contract … will be terminated pursuant to terms agreed upon in
the Agreement”. Finally, the parties determined in the relevant termination
agreement that in the event of termination of the contract in line with the
aforementioned rules, the Respondent would undertake to pay a compensation
in the net amount of EUR 50,000 to the Claimant.
4.
On 1 September 2006, the Claimant informed the Respondent that he had not
been able to find a new club and, therefore, intended to continue to play and
training with the club on the basis of the relevant employment contract until the
beginning of the winter transfer period.
5.
On 19 September 2006, the Respondent, by the resolution of its managing
board, decided to terminate the relevant employment contract with immediate
effect “ … as a result of a disloyal attitude of the Claimant, which led to a
complete loss of trust towards him and a loss of further cooperation, as well as
due to his multiple rejections to terminate the contract by mutual agreement of
the parties and the lack of prerequisites concerning a possibility of the Claimant
to play at a satisfactory sport level”.
Player Xxx, Xxx / Club Xxx, Xxx
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6.
On 27 September 2006, the Claimant informed FIFA that in the meantime all the
outstanding salaries had been paid to him by the Respondent, however, that the
Respondent had illegally terminated the relevant employment contract on 19
September 2006. Therefore, he requested from the Respondent the following:
-
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compensation for the alleged unilateral breach of contract without
just cause corresponding to the remuneration due to the player
until the end of the existing contract,
allegedly lost compensation as stipulated in the relevant
termination agreement dated 7 July 2006.
7.
In its response, the Respondent requested FIFA to reject the Claimant’s claim and
to declare the managing board’s resolution concerning the termination of the
contract as legally effective. In this sense, the Respondent stated having
unilaterally terminated the relevant employment contract on 19 September 2006
with just cause after the Claimant had rejected the final offer made by the
Respondent on that same day to terminate the relevant contract by mutual
agreement.
8.
In this respect, the Respondent emphasised that the Claimant’s disloyal
behaviour is in contradiction with the principals of good faith and honest
contractual relationship and, thus, had to be considered as just cause for the
unilateral termination of the contract. In particular, the Claimant had allegedly
deceived the Respondent previously by having intentionally replaced a draft of
the termination agreement offered to him on 7 July 2006 with a adverse version
of the said agreement without the Respondent’s knowledge. Therefore, the
Respondent affirmed having signed, on 8 July 2006, an adverse version of the
relevant termination agreement and accepted its different contents by mistake.
As a consequence, it argued that according to the Xxx Civil Code the relevant
termination agreement had to be considered null and void. In this context, the
Respondent alluded that in accordance with the version of the termination
agreement offered by the Respondent the Claimant could be released from his
duties in order to find a new club only during the summer transfer period, the
relevant employment contract was still valid in case the Claimant did not manage
to find a new club within the said timeframe and the compensation was to be
paid only in case the Claimant found a new club.
9.
In its replica, the Claimant insisted that the Respondent was not misled by him. In
this respect, he argued in particular that the draft of the termination agreement
dated 7 July 2006 could not be approved by him due to the fact that it did
neither contain a provision allowing him to sign a contract with a new club only
during the summer transfer season nor specifications with regard to the party
who was to pay the amount of EUR 50,000 in the event that he signed a new
Player Xxx, Xxx / Club Xxx, Xxx
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contract. Therefore, the Claimant stated hat he had to prepare a clear and
precise version of the agreement in question, which was finally signed by the
Respondent.
10.
In its duplica, the Respondent reiterated its previous position. In particular, it
emphasised that it was not cautious or suspicious enough to check the relevant
termination agreement before having signed it, since the rewritten draft of the
termination agreement prepared by the Respondent was submitted by the
Claimant for signature “ … as agreed between the parties … ”. Furthermore, the
Respondent maintained that the Claimant, according to a press release dated 8
November 2006, signed a new contract with a Bulgarian club.
11.
According to the Claimant, he only signed a new employment contract with the
Xxx club, Xxx, on 12 January 2007, valid until 31 January 2008. Under the terms
of the said contract the Claimant was entitled to receive a salary in the amount
of EUR 10,000 for the 6 months remaining in the season 2006/2007, payable in 5
instalments.
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
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 22 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.
Player Xxx, Xxx / Club Xxx, Xxx
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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 28 June 2004 and the
claim was lodged at FIFA on 22 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 28 June 2004, the Claimant and the Respondent had
signed an employment contract, valid from 1 July 2004 until 30 June 2007.
6.
Furthermore, the Chamber took note that it is undisputed by the parties involved
that the said employment contract was unilaterally terminated by the
Respondent on 19 September 2006. In this sense, the Chamber observed that
according to the Claimant all the salaries had been duly paid by the Respondent
until the date of the termination of the contract.
7.
In this regard, the Chamber duly noted that, on the one hand, the Claimant is of
the opinion that the Respondent unilaterally terminated the employment
contract without just cause and, therefore, he requested compensation for the
alleged breach of contract in the amount of the rest value of the contract, i.e.
approximately EUR 85,000 (remuneration for the period of 9 months and 11
days), and allegedly lost compensation as agreed upon for the termination of the
contract by mutual agreement in the relevant termination agreement, i.e. EUR
50,000.
8.
On the other hand, the Chamber took due note, that the Respondent rejected
the Claimant’s claim arguing that it had valid reasons to unilaterally terminate
the employment contract. In this respect, the Chamber acknowledged that the
Respondent claimed that the Claimant’s disloyal behaviour, in particular, the
facts that it had rejected the repeated offers of the Respondent to terminate the
relevant contract by mutual agreement and that it had deceived the Respondent
by having intentionally replaced a draft of the termination agreement with an
adverse version of the said agreement, constitutes a just cause for the unilateral
termination of the contract.
9.
In this respect, the Chamber noted that Claimant stated that he had not mislead
the Respondent but that the draft of the termination agreement presented by
the Respondent was unclear and, consequently, he had to prepare a clear and
Player Xxx, Xxx / Club Xxx, Xxx
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precise version of the agreement in question, which was finally signed by the
Respondent.
10.
In view of the above, the Chamber went on to deliberate whether the reasons
presented by the Respondent for the early termination of the employment
contract, in particular, the ones mentioned in the relevant termination letter (cf.
point I. 5.) can be considered as a just cause for the Respondent to prematurely
terminate the employment contract.
11.
In continuation, the Chamber established that the Respondent did not
specifically argue that the Claimant had failed to fulfil its obligations deriving
from the employment contract, but only referred to the Claimant’s disloyal
attitude and the resultant loss of trust and cooperation, the Claimant’s repeated
rejections to terminate the contract by mutual agreement and the Claimant’s
allegedly unsatisfactory sporting performance.
12.
In particular, the Chamber lent emphasis to the allegation of the Respondent
that the Claimant had deceived it by having modified its draft of the termination
agreement and, thus, having acted in bad faith towards it.
13.
In this respect, the Chamber pointed out that a party signing a document of
legal importance without knowledge of its precise contents, as a general rule,
does so on its own responsibility. Therefore, the Chamber was of the opinion
that the fact that the Claimant had modified the contents of the relevant
document before submitting it for signature to the Respondent, had to be
considered as an act of bad faith committed by the Claimant, but did not provide
a valid reason for the termination of the employment contract.
14.
Taking into consideration the above, the Chamber decided that the abovementioned reasons do not constitute a breach of contract that has reached such
a level that the party suffering the breach, i.e. the Respondent, would be
entitled to terminate the contract unilaterally.
15.
As a consequence, the Chamber concluded that the premature and unilateral
termination of the employment contract by the Respondent due to the said
reasons must be considered as a termination of the contract without just cause.
16.
In continuation, the Chamber established that the Respondent is liable to pay
compensation to the Claimant, for its breach of the contract without just cause.
17.
In this regard, the Chamber recalled that the Claimant demanded compensation
for breach of contract in the amount of the rest value of the contract, i.e.
approximately EUR 85,000.
Player Xxx, Xxx / Club Xxx, Xxx
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18.
Referring to this, the Chamber emphasized that both the fact that the Claimant
had showed bad faith regarding the conclusion of the termination agreement
(cf. point II.13.), which, inter alia, had led to the early termination of the
employment contract at the basis of the present dispute, and the remuneration
that the Claimant was entitled to receive under the new employment contract
signed by and between him and his new club had to be taken into consideration
for the calculation of the compensation (cf. art. 17 par. 1 of the Regulations).
19.
On account the above, the Chamber established that it was adequate to award
the Claimant compensation for breach of contract in the amount of EUR 60,000.
20.
Finally, with regard to the claimed allegedly lost compensation as agreed upon
for the termination of the contract in the relevant termination agreement in the
amount of EUR 50,000 the Chamber recalled that the employment contract had
not been terminated by mutual agreement in accordance with the relevant
termination agreement, but unilaterally by the Respondent (cf. point II.6.).
21.
Consequently, the Chamber determined that the relevant termination
agreement, regardless whether it had to be considered as legally binding or not,
was not applicable to the matter at hand, and, therefore, the Claimant was not
entitled to claim compensation based on the said agreement.
22.
In conclusion, the Dispute Resolution Chamber decided that the Respondent
must pay compensation in the amount of EUR 60,000 to the Claimant for breach
of contract and that, thus, 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 60,000 to the Claimant,
Xxx, within 30 days as from the date of notification of this decision.
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.
Player Xxx, Xxx / Club Xxx, Xxx
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5.
Any further claims of the Claimant, Xxx, are 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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