Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2008,
in the following composition:
ALOULOU Slim (Tunisia), Chairman
EVANGELISTA Joaquim (Portugal), member
GALLAVOTTI Mario (Italy), member
on the claim presented by the player
N
as Claimant/Counter-Respondent
against the club
FC Z
as Respondent/Counter-Claimant
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 1 January 2005, the M player, N (hereinafter: the Claimant), and the club, FC
Z (hereinafter: the Respondent), signed an employment contract, valid for the
duration of 2 years, i.e. valid from the date of its signature until 31 December
2006.
2.
According to this contract the Claimant is entitled to a monthly salary of USD
1,000. Furthermore, in clause 6 of the said contract it was agreed that “In case of
default by the football player of the obligations stipulated by the present
contract, the club has the right to apply penal sanctions, to disqualify the
football player or to apply both punishments. During disqualification the
football player does not receive the salary. In case of punishment, the club in
advance notifies the football player on the size of the sum of the penalty and
terms of disqualification. The size of the penalty defines the club. In case of
essential infringement of treaty provisions, the club is authorized to cancel the
contract”.
3.
On 1 January 2005, the parties also signed an annex to the relevant contract,
according to which the Claimant is entitled to receive an extra remuneration of
USD 10,000 per year.
4.
On 26 February 2007, the Claimant submitted a claim at FIFA against the
Respondent. In particular, he claimed the salaries for the months of May to
December 2006 in the amount of USD 8,000 (8 x USD 1,000). In this regard, the
Claimant stated that, in May 2006, the Respondent had told him to find a new
club, i.e. he had been put on the transfer list, and, at the same time, the salary
payments had been suspended, reason for which he had been forced to go back
in order to seek employment.
5.
In its response, the Respondent rejected the Claimant’s claim. Furthermore, the
Respondent/Counter-Claimant (hereinafter: the Respondent) lodged a counterclaim against the Claimant/Counter-Respondent (hereinafter: the Claimant) for
compensation in the amount of USD 20,000 (2 x USD 10,000). In particular, it
requested the reimbursement of the extra remuneration paid in advance for the
second year of the contract in the amount of USD 10,000 and contractual penalty
in the amount of USD 10,000. In this regard, the Respondent argued that the
Claimant, in May 2006, had left the club for unknown reasons and without its
authorization. In this respect, the Respondent pointed out that it had made all
the salary payments to the Claimant until the end of April 2006.
6.
In view of the above, the Respondent argued that the Claimant had breached
the relevant contract without just cause. Therefore, the Respondent emphasised
that in accordance with clause 6 of the contract, it had the right to withhold the
Claimant’s salary, to reclaim the extra remuneration paid to him for the second
year of the contract and to impose sanctions on him. Furthermore, the
Respondent stated that, by order dated 9 June 2006, it tried to notify the
Claimant in written form its decision to terminate the contract with the abovementioned consequences, however, it was not able to contact him.
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Player N / FC Z
7.
In its replica, the Claimant dismissed the Respondent’s demands and contested
the authenticity of the signatures of documents presented by the club. In this
respect, the Claimant was of the opinion that the contractual relationship was
only terminated at the ordinary end of the contractual relationship, i.e. on 31
December 2006 and, therefore, taking into consideration that the Respondent
had failed to pay his salaries for 8 months, it was found in breach of contract.
Furthermore, the Claimant emphasised again that, in May 2006, the Respondent
had categorically refused to fulfil its contractual obligations towards him for the
remaining term of the contract and, consequently, he had no other choice than
to leave the Respondent and find employment elsewhere.
8.
In its duplica, the Respondent basically reiterated its previous statements.
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, it took note that the present
matter was submitted to FIFA on 26 February 2007. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005; hereinafter: Procedural Rules) are applicable
to the matter at hand (cf. art. 18 par. 2 and 3 of the Procedural Rules).
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 and 2 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 M player and a club.
3.
Furthermore, 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
(edition 2008), and considering that the present claim was lodged on 26
February 2007, the previous version of the regulations (edition 2005;
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 that the parties, on 1
January 2005, signed an employment contract, valid from the date of its
signature until 31 December 2006, and its annex.
5.
In this regard, the Chamber took due note that according to the said contract
the Claimant was entitled to receive a monthly salary of USD 1,000.
Furthermore, the Chamber observed that according to the relevant annex the
Claimant was entitled to receive an extra remuneration of USD 10,000 per year.
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Player N / FC Z
6.
In continuation, the Chamber acknowledged that, on the one hand, the
Claimant argued that, in May 2006, the Respondent had categorically refused to
fulfill its contractual obligations towards him for the remaining term of the
contract, in other words, he had been told to find a new club, and, at the same
time, the salary payments had been suspended, reason for which he had been
forced to go back in order to seek employment. In this respect, the Chamber
observed in particular that the Claimant claimed from the Respondent the
salaries for the months of May to December 2006 in the amount of USD 8,000 (8
x USD 1,000), i.e. compensation for breach of contract.
7.
On the other hand, the Chamber took note that the Respondent argued that
the Claimant, in May 2006, had breached the relevant contract without just
cause by having left the club for unknown reasons and without its
authorization. In this regard, the Chamber acknowledged that the Respondent,
taking into account the above, argued having no obligation to pay the salaries
to the Claimant as of May 2006, i.e. the moment of the Claimant’s departure,
but rather requested from the Claimant compensation for breach of contract in
the amount of USD 20,000, in particular, the reimbursement of the extra
remuneration paid in advance for the second year of the contract in the amount
of USD 10,000 and the payment of contractual penalty in the amount of USD
10,000.
8.
In view of the above, and taking into consideration that the Claimant
undisputedly left the Respondent in May 2006, the Chamber came to the
conclusion that the relevant employment contract had been unilaterally
terminated by the Claimant in May 2006.
9.
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.
10.
In this regard, the Chamber acknowledged that at the moment of the
termination of the contract in May 2006 both the salaries until the end of April
2006 and the extra remuneration in the total amount of USD 20,000, i.e. USD
10,000 for the year 2006 and USD 10,000 for the year 2007, had been paid by
the Respondent to the Claimant and, therefore, no remuneration remained
unpaid at that time. In particular, the Chamber pointed out that the Claimant
did not contest the fact that he had received the salaries until the end of April
2006 and the extra remuneration for the years 2006 and 2007. Equally, the
Chamber was eager to emphasize that the Claimant only claimed compensation
for breach of contract (cf. point II.6.) but no outstanding remuneration until the
termination of the contract.
11.
Furthermore, with regard to the alleged dismissal invoked by the Claimant the
Chamber referred to art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, in accordance
with which a party deriving a right from an alleged fact shall carry the burden
of proof. In this respect, the Chamber acknowledged that the Claimant was not
able to prove that the Respondent had dismissed him in May 2006. In particular,
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Player N / FC Z
the Chamber pointed out that the Claimant did not provide any documentary
evidence proving that the Respondent told him to find a new club before he
terminated the contract abandoning the Respondent.
12.
As a consequence, and taking into consideration that the Respondent had
complied with the terms of the contract until the termination of the contract,
i.e. the Claimant’s departure, 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.
13.
In view of the above, the Chamber deemed it appropriate that the Claimant has
to refund the proportion of the extra remuneration received in advance for the
entire year 2006 corresponding to the period of time he had not worked for the
Respondent during the said year, i.e. from May until December 2006. Therefore,
and taking into account that the Claimant had not fulfilled its contractual
obligations during 8 months, the Chamber decided that the Claimant has to
refund to the Respondent the extra remuneration of USD 10,000 pro rata in the
amount of USD 6,666.
14.
Furthermore, the Chamber established that the Claimant in accordance with art.
17 par. 1 of the Regulations is liable to pay compensation for the committed
breach of contract.
15.
In this regard, and taking into account the rest value of the relevant
employment contract, i.e. the salaries for the months between May and
December 2006 (8 x USD 1,000), the Chamber established that it was adequate
to award the Claimant compensation for breach of contract in the amount of
USD 8,000.
16.
In conclusion, the Dispute Resolution Chamber decided that the Respondent is
entitled to receive the reimbursement of the extra remuneration pro rata in the
amount of USD 6,666 (8/12 of USD 10,000) and compensation for breach of
contract in the amount of USD 8,000, i.e. the total amount of USD 14,666.
Therefore, the Chamber established that the Claimant’s claim is rejected and the
Respondent’s ’s counter-claim partially accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, N, is rejected.
2.
The counter-claim of the Respondent/Counter-Claimant, FC Z, is partially
accepted.
3.
The Claimant/Counter-Respondent, N, has to pay the amount of USD 14,666 to
the Respondent/Counter-Claimant, FC Z, within 30 days as from the date of
notification of this decision.
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Player N / FC Z
4.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee, so that the necessary disciplinary
sanctions may be imposed.
5.
Any further claim of the Respondent/Counter-Claimant, FC Z, is rejected.
6.
The Respondent/Counter-Claimant, FC Z, is instructed to inform the
Claimant/Counter-Respondent, N, 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
Encl.
CAS directives
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Player N / FC Z