Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 July 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Ivan Gazidis (England), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the club,
F,
as Claimant
against the player,
A,
and the club,
Z,
as Respondents
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 April 2007, the player, A (hereinafter: player), born on 13 January 1988, and the
club, F, signed an employment contract valid as from the date of signature until 15
November 2009, with a unilateral option for the club to extend the said contract.
2.
According to the employment contract, the player was to receive, inter alia, a monthly
salary in the amount of 150 as well as match bonuses.
3.
On 1 January 2008, the player and F signed an annexe to the employment contract,
according to which the player’s new monthly salary would amount to 160 until the end
of the employment contract.
4.
On 19 February 2009, the player signed an employment contract with the club, Z valid
as from the date of signature until 30 June 2011. According to the financial terms of the
latter employment contract, the player was to receive, inter alia, a monthly salary in the
amount of 150,000.
5.
On 3 July 2009, F lodged a claim in front of FIFA for breach of contract against the
player and his new club, Z, which, according to club F, is to be considered as severally
and jointly liable for such payment, requesting to be awarded compensation amounting
to EUR 162,057 and that sanctions be imposed on Z banning the club from registering
new players for two registration periods.
6.
In this respect, F explained that the claimed amount was composed of the following
sums:
- EUR 2,057 for the salaries of the player for the months of February 2009 until
November 2009 (9 x 160 = 1440);
- EUR 10,000 for other expenses incurred for the player in the years 2007 and 2008;
- EUR 150,000 for replacing the player with an equivalent player.
7.
Furthermore, F provided a copy of a decision taken by the Disciplinary Committee of the
Football Federation L (FFL) on 6 February 2009, in which the club F was ordered to settle
all financial liabilities with the player until 15 February 2009. From the decision of the
Disciplinary Committee of the Football Federation L it can be noted that the player
lodged a complaint in which he wished to terminate his employment contract with the
club F since the latter had not paid the player’s salary for more than three months.
8.
In this respect, the club F stated that it paid the outstanding salary to the player on 14
February 2009, in accordance with the decision taken by the Disciplinary Committee of
the Football Federation L.
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9.
The club F further explained that the player did not attend the training camp in country
T for the period from 6 until 25 February 2009, upon which the club F sent the player a
letter on 3 March 2009 with the request of the return of the player until 7 March 2009.
10.
Furthermore, the club F pointed out that the player violated several clauses of the
employment contract. In particular, the player did not follow and obey the club’s
instructions as stated in art. 2.1 b) of the employment contract and also violated art. 2.1.
f), which states that “without written permission of the Club support other football
clubs (teams) irrespective of country location, not participate in other sports events…”.
According to the club F, the player also violated art. 2.1 g) of the employment contract,
according to which “without written notification and consent of the Club not enter into
negotiations about move in other football team (Club) before completion date of the
contract; immediately inform in writing club board about negotiates and conclusion of
agreement (contract, agreement, including about intentions)…”. Finally, the club F
referred to art. 4.3 of the employment contract, according to which “Football player
from the date of signing of the present Contract undertakes not negotiate and not
conclude employment contracts with third parties during the term of present Contract.”
11.
In addition, the club F stated that in February 2009 it suffered from financial problems
and dropped from the country L top division to the first league of the country L
championship, in which amateur and professional players participated. Therefore, the
player sent the club F a letter on 30 March 2009, in which he terminated his contract
with immediate effect, explaining that he cannot continue his career with a club that
has dropped out of the first division due to financial difficulties and that since the
beginning of his employment relationship with the club F, the club had always been in
arrears of payment with his salary. According to the club F, this circumstance cannot be
regarded as a just cause for the termination of the contract, since “obligatory
participation in the top division cannot be referred to the necessary working conditions
if other is not established directly in the employment agreement”.
12.
Moreover, the club F stated that on 19 February 2009, it was informed by the Football
Federation L that the Football Federation H (FFH) had requested the player’s
International Transfer Certificate (ITC) on behalf of the club Z, with which the player
had signed an employment contract.
13.
On 28 April 2009, following the refusal of the Football Federation L to issue the ITC, the
Single Judge of the Players’ Status Committee authorized the Football Federation L to
provisionally register the player with the club Z.
14.
Finally, the club F explained that on 3 and 19 March 2009 it sent Z a letter in which it
offered to receive from the club Z a compensation in the amount of EUR 100,000 for
the player’s training as well as 20% of the player’s future transfer of at least EUR
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100,000. The letters, which gave Z a deadline to comply with the offer until 24 March
2009, both remained unanswered.
15.
In reply to F’s claim, the player argued that the club F breached the contract without
just cause. In his statements, the player explained that since F chose not to enrol in the
top division in the country L due to financial difficulties, the latter obliged the players
to transfer to its other team, FC D. According to the player, the two clubs did not legally
merge and therefore the other players signed new employment contracts with FC D and
registered with the latter club. The player, however, did not wish to become a member
of FC D and refused to sign the registration documents. In addition, the player argued
that as of 20 January 2009 when most players of F joined FC D, his salary was no longer
paid and there were no coaching or exercising sessions held. Therefore, the player saw
his future football career at risk, since he was not elected in the national team ever
since.
16.
With regard to F’s argument, according to which the player did not attend the training
camp in the country T, the player stated that the training camp was organised by FC D
and he did not play for the said team. Furthermore, he was in the national training
camp in country C and was elected to become a national player for the country A on 11
February 2009.
17.
As a result, the player rejects F’s claim and stated that the club breached the contract
without just cause.
18.
In reply to F’s claim, Z explained that they were in contact with the player one week
prior to the signature of the employment contract. The players’ agents from “Top”
contacted Z and explained that the player was free to register since his former club,
being F, withdrew from the top division of its national championship and did not
intend to participate in any other championships.
19.
In addition, Z stated that the employment contract signed between the player and F
was no longer valid when Z signed an employment contract with the player, since F
breached the contract. Therefore, Z did not answer to the letters received in March
from F, since it was informed by the players’ agents of “Top” that F has been
withdrawn from the National L Championship and “terminated for financial reasons”.
This statement was further acknowledged by the player, who told Z that he was no
longer given any training or playing opportunity with F and therefore the latter club
terminated his employment relationship without just cause.
20.
Finally, Z acknowledged that it was not informed about the letter sent by the player to
F on 30 March 2009, in which the player terminated his former contract. Z did not
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understand why the player sent this termination letter, since he was already employed
by Z since 19 February 2009.
21.
In view of the above, Z expressed the opinion that it did not induce the player to breach
any contract with F, since it was informed that the player was free to register and
therefore did not find it necessary to inform F.
22.
Therefore, Z entirely rejected F´s claim.
23.
In its replica, F maintained its previous position and stressed that the employment
contract did not provide a termination clause in case the club would no longer be in the
L top division.
24.
With regard to the player’s breach of contract without just cause, F explained that the
Disciplinary Committee of the Football Federation L rejected in its decision the
termination of the employment contract and after the decision the player never
expressed his wish to be transferred to another club. F also mentioned that another
player of its team was transferred to country H without any problems on 7 August 2009.
Therefore, F explained that the player could have informed the club of the possibility of
a transfer and they could have tried to find a solution. However, the player left F
without giving any explanation to sign an employment contract with Z and was
therefore in breach.
25.
Finally, club F pointed out that all players of club F participated in the training camp in
country T in February 2009. F provided a letter from FC D dated 2 April 2009, in which
FC D requests club F to allow the captioned player to participate in the training camp in
country T and in which FC D wishes to purchase the player for EUR 150,000. As a result,
the absence of the captioned player in the training camp is to be regarded as a breach
of the employment contract.
26.
In spite of having been invited to do so, Z and the player did not submit any final
comments in this matter.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 3 July 2009. Consequently,
the 2008 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 (cf. article 21 par. 2 and 3 of the Procedural Rules).
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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. a) of the Regulations on the Status and Transfer of Players (edition 2009) the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns a
dispute between a country L club against country a player and a country H club in
relation to the maintenance of contractual stability in which there has been an ITC
(International Transfer Certificate) request and a claim from an interested party in
relation to such ITC request in particular pertaining to compensation for breach of
contract and sporting sanctions.
3.
In continuation, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (editions 2008 and
2009) and considering that the present claim was lodged on 3 July 2009, the 2008
edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand
as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members of the
Chamber started by acknowledging the above-mentioned facts and documentation
contained in the file.
5.
In doing so, the Chamber firstly noted that it was undisputed between the parties that
they entered into an employment contract, valid as from 1 April 2007 until 15 November
2009 with a unilateral option for the club to extend the said contract. Furthermore, it
was uncontested that the parties signed an annexe to the employment contract on 1
January 2008 expiring on the same date as the employment contract, according to
which the player’s new monthly salary would amount to 160.
6.
In continuation, the Chamber acknowledged that prior to the expiry of the
aforementioned employment contract, i.e. on 19 February 2009, the player and Z
concluded an employment contract stipulating a validity period as from the date of
signature until 30 June 2011.
7.
This course of events was uncontested by the parties, as well as the fact that on 6
February 2009, the Disciplinary Committee of the Football Federation L ordered F to pay
outstanding salaries to the player, with which it complied on 14 February 2009.
8.
The Chamber further noted that, on the one hand, F stated that the player terminated
the employment contract without just cause on 30 March 2009, when the club suffered
from financial problems and dropped from the country L top division to the country L
first league, since the employment contract did not include a termination clause in case
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the club would no longer play in the country L top division and club F having fulfilled its
financial obligations on 14 February 2009 in accordance with the decision passed by the
Football Federation L Disciplinary Committee, F deemed that the player had no just
cause to leave.
9.
On the other hand, the members present at the meeting took due note that, according
to the player, F breached the contract without just cause, because the latter chose not
to enrol in the top division in country L due to financial difficulties and obliged the
player to transfer to D, which was not legally merged to F and where he would see his
future football career at risk.
10.
In addition, the Chamber noted that Z, for its part, denied that it would have induced
the player to a breach of contract arguing that it was informed by players’ agents that
the player was free. Furthermore, Z stated that it did not reply to F’s letters in March
2009, because it was informed that F had been withdrawn from the L National
Championship and no longer existed due to its financial situation. Furthermore, Z
asserts having been informed by the player that he was no longer given any training or
playing opportunity by F and that, therefore, F terminated his employment contract.
11.
The Chamber highlighted that the underlying issue in this dispute, considering the claim
of F, was to determine whether the employment contract had been unilaterally
terminated with or without just cause and which party was responsible for the early
termination of the contractual relationship in question. The Chamber also underlined
that subsequently, if it were found that the employment contract was terminated
without just cause, it would be necessary to determine the financial and/or sporting
consequences for the party that terminated the relevant employment contract.
12.
In this respect, firstly, the members of the Chamber established that it was uncontested
by the parties that F has paid the player’s salary until 15 February 2009 in accordance
with the decision of the Disciplinary Committee of the Football Federation L. It was
further uncontested by the parties that F was encountering financial problems, as a
result of which it was relegated, and asked the player to move to D, a club not legally
merged with F.
13.
The Chamber observed that according to the player, F acted in breach of the
employment contract based on the fact that F was relegated from the country L top
division and asked him to join D. In this respect, the Chamber noted that, contrary to
the player, F stated that this fact did not constitute a just cause for the player to leave,
since there was no contractual clause allowing for the employment contract to be
terminated in case the club would be relegated from the country L top division.
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14.
In view of this, the Chamber noted that, in fact, F and D were two different clubs and
legal entities and that the player had signed an employment contract with F and not
with D. In this context, the DRC deemed it essential to point out that the player had no
obligation whatsoever to sign an employment contract and register with D.
15.
The Chamber then reverted to the player’s argument that F did no longer participate in
the country L top division as it was relegated to the first league of the country L
Championship, as a result of which he was asked to register with D, which he considers
to constitute a breach of contract by F.
16.
In this regard, the members of the Chamber wished to emphasise that, unless
contractually agreed upon, basically, the relegation of a club that continues its
participation in Championships and remains operational does not constitute a just cause
to leave such club.
17.
The Chamber further took into account that it was uncontested by the parties that the
player received his salary on 14 February 2009, based on a decision by the Disciplinary
Committee of the Football Federation L passed on 6 February 2009, in which F was
ordered to settle all financial liabilities towards the player.
18.
Equally, the Chamber noted that the decision of the Disciplinary Committee of the
Football Federation L did, in fact, not terminate the employment relationship between F
and the player and, thus, the latter was still contractually bound to F.
19.
With respect to the player’s remuneration, the Chamber noted that the player was
entitled to receive a monthly salary and that, in this regard; the player alleged not
having received any payment since 20 January 2009, i.e. for the duration of almost one
month, prior to the player having signed on with Z. In this respect, the Chamber
recalled, however, that F acknowledged having complied with the decision of the
Disciplinary Committee of the Football Federation L, which was not contested by the
player.
20.
In this connection, the Chamber pointed out that, in the past, it had on numerous
occasions upheld the unilateral termination of an employment contract by players who
had depending on the particular circumstances of the relevant case at stake, not
received their salaries for two or more months. Yet, a delay of one month could not be
considered as a just cause, in particular in case like the one at hand, where F had
properly complied with its financial obligations only a few days before the player signed
an employment contract with Z, i.e. on 14 February 2009.
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21.
Also, the members of the Chamber took into account that the player has not
communicated to F his willingness to leave the club. Subsequently, on 19 February 2009,
the player and Z signed an employment contract.
22.
It is worth lending emphasis to the fact that only after over a month after having
entered into a new employment contract with Z, the player notified F of the
termination of the employment contract, on 30 March 2009. Furthermore, by sending
such termination letter, the player implicitly acknowledged that he was still
contractually bound to F.
23.
On account of the aforementioned considerations and in lack of any other defence
which could possibly justify the conclusion of an employment contract between the
player and Z during the course of the labour relationship between the player and F, the
Dispute Resolution Chamber established that, by entering into a labour contract with Z,
the player had terminated his employment contract with F without just cause on 19
February 2009.
24.
Having stated the above, the Chamber turned its attention to the question of the
consequences of such breach of contract committed by the player without just cause.
25.
In doing so, the Dispute Resolution Chamber first of all established that, in accordance
with art. 17 par. 1 of the Regulations, the player is liable to pay compensation to D.
Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the
Regulations, the Chamber established that the player’s new club, i.e. Z, shall be jointly
and severally liable for the payment of compensation. In this respect, the Chamber was
eager to point out that the joint liability of the player’s new club is independent from
the question as to whether the new club has committed an inducement to contractual
breach. This conclusion is in line with the well-established jurisprudence of the Chamber
that was repeatedly confirmed by the Court of Arbitration for Sport (CAS).
Notwithstanding the aforementioned, the Chamber recalled that according to art. 17
par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the
contrary, that any club signing a Professional who has terminated his contract without
just cause has induced that Professional to commit a breach.
26.
According to art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the basis of
the dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including, in particular, the remuneration and
other benefits due to the Claimant under the existing contract and/or the new contract,
the time remaining on the existing contract up to a maximum of five years as well as
the fees and expenses paid or incurred by the former club (amortised over the term of
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the contract) and depending on whether the contractual breach falls within the
protected period.
27.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of compensation
payable by the contractual parties in the event of breach of contract. The Chamber
established that no such compensation clause was included in the employment contract
concluded between the player and F at the basis of the matter at stake.
28.
As a consequence, the Chamber determined that the amount of compensation payable
by the player to F had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Chamber recalled that the said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective criteria
may be taken into account at the discretion of the deciding body.
29.
Therefore, in order to estimate the amount of compensation due to F in the present
case, the Chamber firstly turned its attention to the remuneration and other benefits
due to the player under the existing contract and/or the new contract, which criterion
was considered by the Chamber to be essential.
30.
In this regard, the Dispute Resolution Chamber established, on the one hand, that the
employment contract between F and the player, signed on 1 April 2007, had been set to
expire on 15 November 2009. The employment contract having been terminated by the
player by signing on with Z on 19 February 2009, the total value of the employment
contract with F for the remaining contractual period of nine months appeared to be
composed of the total amount of 1,440 for the months mid-February 2009 until midNovember 2009 (equivalent to approximately EUR 2,035).
31.
On the other hand, the Dispute Resolution Chamber noted that the monthly
remuneration of the player under the terms of his new employment contract with Z
amounts to 150,000 (equivalent to approximately EUR 530). Consequently, the members
of the Chamber established that the value of the new employment contract concluded
between the player and Z for the same period of time, i.e. from mid-February 2009 until
15 November 2009, appears to amount to approximately EUR 4,770.
32.
Furthermore, the Dispute Resolution Chamber referred to D´s claim for compensation in
the total amount of EUR 162,057. In this respect, the members of the Chamber noted
that F did not present any documentary evidence to corroborate its request. In the
light of this consideration, whereas according to art. 17 par. 1 of the Regulations
fees incurred for, e.g. the acquisition of a player’s services may be included as one of
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the criteria to be taken into account in the calculation of compensation, in the
specific case at hand, the fees and expenses claimed by F shall not be included.
Moreover, the members of the Dispute Resolution Chamber recalled that F was
relegated and that the latter asked the player to transfer to FC D when the facts
leading to the present dispute arose. For these reasons, the Chamber concluded that
that the amount of compensation claimed by F does not appear to be appropriate.
33.
Accordingly, and taking into account the aforementioned considerations, the Chamber
concluded that the amount of EUR 3,000 as compensation for breach of contract
without just cause being the reflection of the remuneration and other benefits due to
the player under the previous and the new contract is appropriate and justified as
compensation in the specific case at hand.
34.
Consequently, on account of all of the above-mentioned considerations, the Chamber
decided that the player must pay the amount of EUR 3,000 to F as compensation for
breach of contract. Furthermore, the club Z is jointly and severally liable for the
payment of the relevant compensation (cf. art. 17 par. 2 of the Regulations).
35.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims of F are rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club, F, is partially accepted.
2.
The player A has to pay to F compensation for breach of contract in the amount of EUR
3,000 within 30 days as from the date of notification of this decision.
3.
The club, Z, is jointly and severally liable for the payment of the aforementioned
amount.
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4.
Any further claims lodged by the Claimant, F, are rejected.
5.
If the aforementioned sum is not paid within the above-mentioned deadline, interest at
the rate of 5% per year will apply as of expiry of the stipulated time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its
consideration and decision.
6.
The club, F, is directed to inform the player A and the club Z 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.
*****
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).
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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
Encl.
CAS directives
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