Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 June 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Mohamed Mecherara (Algeria), member
on a matter between the player
J,
as Claimant
and the club
A Club,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 6 December 2007, the player J (hereafter: the Claimant), and the A Club
(hereafter: the Respondent), signed an employment contract valid from 1
January 2008 until 31 May 2009. The said contract stipulates that the player
would receive:
-
EUR 50,000 for the season 2007/2008.
EUR 100,000 for the season 2008/2009.
Accommodation (not including expenses such as electricity and water).
Free use of a car (not including fuel expenses).
Respondent undertakes to cover and pay for three return tickets for the
Claimant and his family from B to L.
2.
On 5 March 2008, the Claimant contacted FIFA explaining that the Respondent
terminated the contract on 4 January 2008, with a letter indicating that the
Respondent was no longer interested in the Claimant, due to a serious delay of
the Claimant’s arrival in C.
3.
The Claimant argued that his agent had made several attempts to contact the
Respondent, and that he was not given a specific deadline whereby he had to
arrive in C. He also argued that according to the clause in the contract regarding
the three return tickets from B to L, that it was the Respondent’s duty to arrange
his travel.
4.
Therefore, the Claimant in his petition, claims that the contract runs until 31
August 2009 (although the contract clearly states 31 May 2009), and requests
compensation for the salaries and payments for the entire contract (EUR 150,000)
plus the following:
-
5.
Loss of accommodation costs from January 2008 until August 2009, appx
EUR 20,000.
Loss of the use of a car from January 2008 until August 2009, appx EUR
10,000.
Loss of three return air tickets for himself and his family, from B to L, appx
EUR 20,400.
An additional 5% interest running from 4 January 2008.
On 19 March 2009, the Respondent informed FIFA that the contract started on 1
January 2008, and that this was the date the Claimant should be expected to
present himself in C. The Respondent also suggest that the reason behind the
Claimant’s delay was a personal issue relating to problems regarding his family.
The Respondent also state that because all signed contracts in their possession
were faxed copies, they could not request the relevant ITC until the Claimant
appeared in C to sign an original contract. The Respondent therefore argue that
the contract was terminated by the Claimant when he failed to present himself in
C.
2
6.
The Claimant, on 14 January 2008 signed a contract with the B club, Club D, for
the 2008 season, valid from the date of the signature until the club’s last
appearance in the second tournament 2008. The contract stipulates the following
payments to the Claimant:
-
7.
USD 6,000 monthly salary.
USD 25,000 upon signing the contract.
The Claimant on 6 January 2009 signed a contract with the B club, P, valid until
the end of the final tournament of the B 2009 season, and receives the following
payment:
-
USD 7,000 monthly salary.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 5 March 2008, thus before 1 July 2008. Consequently, the Chamber
concluded that the 2005 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a B player and a C club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on 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 on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 5 March 2008
and that the relevant employment contract was signed on 6 December 2007. In
view of the aforementioned, the Dispute Resolution Chamber concluded that the
2008 version of the regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
3
4.
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 of whether
the Claimant was entitled to receive, as requested, compensation for breach of
contract from the Respondent and, if so, what amount.
5.
In this respect, the members of the Chamber examined the documentation
enclosed with the Claimant’s complaint and acknowledged that the employment
contract presented had been duly signed by both parties and provided for a salary
of EUR 50,000 for the remainder of the 2007/2008 season, and a further EUR
100,000 for the 2008/2009 season, giving a total of EUR 150,000.
6.
In continuation, the Chamber took note that it is uncontested by the Respondent
that the contractual relationship between the parties to the present dispute had
been terminated on 4 January 2008, at the moment when the Respondent had
submitted its termination letter to the Claimant.
7.
Equally, the Chamber took due note that, on the one hand, the Claimant argued
that the Respondent had unilaterally terminated the contractual relationship
without just cause and, on the other hand, the Respondent was of the opinion
that the relevant employment contract had been terminated with just cause, in
particular, due to the fact that the player had failed to present himself in C in
order for the ITC procedure to be concluded.
8.
In this respect the Chamber noted that it had to first consider whether the
responsibility for organising the travel of the Claimant to C, lay with the Claimant,
or with the Respondent. In this respect, the Chamber noted that the employment
contract signed between the parties provided for 3 return air tickets for the
Claimant and his family, however the Chamber considered that it was reasonable
to expect the Claimant to be responsible for travelling to C to present himself at
his new club.
9.
Following this, the Chamber, noting that a date was not expressly given on which
the Claimant was expected to arrive in C, had to then consider which date the
Claimant would have reasonably been expected to have presented himself in C,
and consequently calculate the length of the delay, if any. The Chamber noted
that the contract signed between the parties was valid from 1 January 2008, and
therefore the employment relationship between the parties would commence on
1 January 2008. Thus the Chamber considered 1 January 2008, to be the date on
which the Claimant would reasonably be expected to arrive, at the latest, in C. The
Chamber then noted that the employment relationship was terminated by the
Respondent on 4 January 2008, therefore the Chamber concluded that the length
of the delay was a total 3 days.
10.
Having concluded that the Claimant was responsible for his own travel to C, and
having concluded that the delay by the Claimant amounted to 3 days, the
4
Chamber next had to consider whether this delay was sufficient for the
Respondent to terminate the contract with just cause, in accordance with art. 14
of the Regulations.
11.
In this regard, the Chamber considered that an extensive delay in arrival of a
player could, per se, give a club just cause to terminate a contract, however, the
Chamber concluded that a delay of just 3 days, was not sufficient or grave enough
to give the Respondent a just cause for termination of the contract. Therefore the
Respondent was deemed to have unilaterally terminated the contract without just
cause, and as a result, in accordance with art. 17 par. 1 of the Regulations, the
Respondent is liable to pay compensation to the Claimant for said termination.
12.
With regard to the determination of the applicable amount of compensation, the
Chamber referred to the aforementioned provision of the Regulations (cf. art. 17
para. 1), in particular to the non-exhaustive enumeration of the objective criteria
which need to be taken into account.
13.
In continuation, the Dispute Resolution Chamber took due note of the fact that
the Claimant claims the remaining value of the contract as compensation for the
breach of said agreement, a total of EUR 150,000. In this regard, the members of
the Chamber took note of the fact that on 14 January 2008, the Claimant
concluded an employment contract with Club D, for the remainder of the 2008
season, providing for a monthly salary of USD 6,000 plus a signing on fee of USD
25,000. Additionally the Chamber noted that the Claimant subsequently signed an
employment contract, on 6 January 2009, with club P for the 2009 season,
providing for a monthly salary of USD 7,000.
14.
The Chamber therefore noted that the Claimant had been able to reduce his loss
of income. Additionally the Chamber considered that the delay of 3 days, by the
Claimant, though not sufficient to give the Respondent just cause to terminate the
contract, was still a failure by the Claimant to comply with his obligations as a
player, and therefore it would have to be taken into consideration when
calculating the amount due as compensation. On account of the aforementioned
circumstances, the Chamber concluded that not the entire remaining contract
value was due to the Claimant, but the amount of EUR 12,743 was to be
considered reasonable and justified as compensation for breach of contract.
***
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, J, is partially accepted.
2.
The Respondent, A Club, has to pay to the Claimant, J, the amount of EUR 12,743
within 30 days as from the date of notification of this decision.
5
3.
Any further claims lodged by the Claimant, J, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the party’s request to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
5.
The Claimant, J, is directed to inform the Respondent, A Club, immediately and
directly of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
Note relating to the motivated decision (legal remedy):
According to art. 63 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
Secretary General
Enclosed: CAS directives
6