Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 July 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Sofoklis Pilavios (Greece), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
A,
as “Claimant”
against the club,
FC M,
as “Respondent”
regarding a contractual dispute arisen between the parties involved.
I.
Facts of the case
1.
On 23 February 2006, the B player, A (the Player), born on 2 September 1978, and
the U club, FC M (the Club) signed an employment contract for a fixed term until
31 December 2007.
2.
On the same day, the parties signed an additional agreement to the contract,
which deals, inter alia, with the conditions for extra and bonus payments to the
player.
3.
According to the employment contract (Note: translation provided by the player
which was not contested by the club), the player was inter alia entitled to receive
each month the amount of 1,100. Furthermore, it was agreed that “the club has
the right to pay to the Football player, in compliance with the results from his
professional activity also other extra-paid sums, bonuses, extra remuneration and
other such”.
4.
In the aforementioned additional agreement, the parties agreed that:
“I. For taking place in the starting eleven of the team “FC M” the football player
has the right to receive the following payments:
-1.1. Monthly personal salary at amount of USD 12,000;
-1.2. Appearance fees for positive results of the team in accordance with
the club’s system for that kind of bonuses for all the team player;
-2. Reason for the above mentioned payments is considered the report
of the head coach of the team.
-6. The club is obliged to pay twice in the year the travelling expenses
of the player to B and back to U.”
5.
On 21 August 2006, the player lodged a claim with FIFA against the club
maintaining that the latter had failed to pay him the monthly salaries of April,
May and June 2006 each in the amount of USD 12,000, the appearance fee for this
period in the amount of USD 3,400 as well as the flight tickets in the amount of
USD 800.
6.
Despite having allegedly held several discussions with the club, the latter did not
comply with its financial obligations which is why the player left U on 10 July 2006
and sent on 14 July 2006 a letter to the club informing it that he considers himself
as a free agent.
2
7.
The player deems that the club breached the employment contract without just
cause and that the club is to be condemned to pay him outstanding remuneration
amounting to USD 40,200 plus 5% interest as from the date the instalment
concerned were due as well as compensation equivalent to the remaining value of
the contract in the amount of USD 216,000. Finally, the club should be sanctioned
with a ban on registering any player for the next two registration periods.
8.
The club requests to fully dismiss the player’s claim and started by maintaining
that pursuant to art. 4.2. of the contract it may [emphasis added by the club]
disburse to the player in addition to the monthly salary of 1,100 extra or bonus
payments subject to the player’s professional performance and the club’s results.
Therefore, provided the player’s performance was sufficient to be selected by the
club’s Head Coach, i.e. the player plays in the starting squad at an official match,
the player was entitled, according to art. 1.1. of the addendum to the contract to
a bonus payment in the amount of USD 12,000 each month that the player met
that requirement. The player did fulfil this condition in April 2006 only. In this
respect, the club explained that until the end of the season 2005/2006, i.e. on 14
May 2006, the player was selected by the club’s Head Coach only three times for
the main squad. Besides, the player was relegated to the second team. In May
2006, the player did not participate in any official game.
9.
The player returned from his holidays on 11 June 2006 and showed up one day
after the training had officially been taken up again. On 30 June 2006, the club
was due to leave for the training camp in H. The player, however, failed to appear
without giving notice and did not participate in the training camp of the club
without permission. Several attempts to reach the player failed. On 14 July 2006,
the club received the player’s fax stating that he unilaterally terminates the
contract. Thereupon, on 19 July 2006, the club made an order of dismissal,
summarising the recent developments and stating the reasons for premature
termination of the contract by the club.
10.
The club further alleged that also the player’s right to participate in the club’s
incentive bonus system required the player to be selected for the main squad (art.
1.2. of the addendum). The club’s board fixed a so-called appearance fee for each
player. For the player in question, the appearance fee he was entitled to in March
and April 2006 amounted to 6018.
11.
With regard to the player’s travel expenses, the club stated that due to the
premature termination, the player’s right to reimburse expenses must be reduced
pro rate temporis.
3
12.
What is more, the club stressed that the player asked to obtain cash disbursement
of his salaries, bonuses etc. since he did not want to open a personal bank account
in the U. The cash payments it made to the player during the contractual period in
question were:
April 2006:
- 791 on 5 May 2006 as monthly salary after social contribution
deductions.
- 4368.62 on 5 May 2006 as appearance fee after deductions
-USD 12,000 on 5 May 2006 as extra premium
According to the club, it paid the player, as to his explicit request, a full advance
payment to the extra premium in the amount of USD 12,000 on 4 April 2006. The
player expressly acknowledged receipt of those two amounts.
May 2006:
- 287.17 on 26 June 2006 as monthly salary pro rata temporis and
after social contribution deductions. Receipt signed by the player
after holidays on 26 June 2006.
In this respect, the club argued that the player left for unpaid leave from 15 May
to 10 June 2006 and that, according to U law, an employee is only entitled to paid
leave after having continuously been employed for six months. Therefore, the
player’s monthly salary of 1,100 was reduced pro rata termporis to the effectively
worked days, i.e. 1 May to 14 May 2006. Yet, an employee is entitled to be
compensated for unused (paid) holidays after the termination of the contract.
Therefore, the club deposited the amount of 772.67 as compensation after the
termination of the contract.
June 2006:
- 496.14 on 22 June 2006 as monthly salary after social
contributions deductions
- 276 on 22 June 2006 as partial advanced payment as requested
by the player, cash book signed by the player
- 220.14 (remaining salary) deposited
- 1916.50 (travel expenses) deposited
With regard to the player’s remuneration for June 2006, the club stated that the
player left for unpaid leave from 15 May 2006 to 10 June 2006, wherefore his
monthly salary was reduced. The remaining part of the salary of 220.14 could not
be paid to the player due to his absenteeism and was therefore deposited and still
is. The same goes for the travel expenses.
4
13.
The player upheld his claim by maintaining that the only salary agreed upon by
the parties is the monthly salary of USD 12,000 net as stipulated in the additional
agreement. In particular, according to the player, it is not sustainable that the
“bonus” remuneration is more than 70 times higher to the basis remuneration.
14.
The player stressed that in view of the fact that the USD 12,000 represents 98,65%
of the player’s remuneration, such conditional payment would make the
entitlement to remuneration dependent to the arbitrariness of the coach and/or
the managers of the club and contravenes the public order and the fundamental
rights of the player. The player therefore reiterated that the salaries of April, May
and June 2006 in the amount of USD 12,000 each are outstanding.
15.
The player denies having received the monthly salary of April 2006 in advance.
Yet, the allegation of the club in this respect is interesting as it corroborates the
fact that the monthly salary of the player effectively amounted to USD 12,000
otherwise why would the club allegedly pay the amount of USD 12,000 in advance
without knowing if the player would play in the first team.
16.
As regards the training camp in H, the player asserts that the club, prior to leaving
to H, remitted a list of players who would participate. He was, however, not
mentioned on this list.
17.
Finally, the player added that in respect to the training camp, the club allegedly
would have required his participation in the camp, although, according to the
club, he would not be entitled to his salaries for not being part of the team. Such
stance is contradictory.
18.
The club stressed that both parties agreed and signed the employment contract
the terms of which were clear. The player cannot argue that such agreement shall
not be sustainable because he is not satisfy with the outcome during the contract
is being fulfilled. In particular, the club held that no legal restrictions in terms of
minimum wages for international players are set up by FIFA apart from
subsistence wage limit required by national mandatory law. According to U labour
legislation, the minimum salary that is legally guaranteed amounts to 350 per
month.
19.
The club further stated that the player was provided by the club with a bundle of
extra benefits (e.g. free accommodation, free meals, travel expenses, life and
health insurance etc) which need being taken into account.
5
20.
The club denies that by agreeing on conditional incentive bonus payments any
fundamental rights of the player were violated. On the contrary, incentive
payments depending on the success are more than common in every kind of
sports.
21.
With regard to the training camp in H and the list of players submitted by the
player which allegedly show the participants in the camp, the club contests the
capability of that list to give proof that the player was not expected to attend the
camp. In fact, according to the club, the list is undated, unsigned and does not
appear in the club’s official letterhead. Thus, such list could have been drawn up
at any time and for any reason. In its support, the club cited its correspondence
dated 13 June 2006 to the H embassy in the U whereby it applied for visas to be
granted to a number of players, one of which is the player in question.
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 21 August 2006. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(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 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 U 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 21 August
2006. the previous version of the regulations (edition 2005; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
6
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 and, in view of the circumstances of the case
at stake, focused their attention on the question whether, as alleged by the
Claimant, the Respondent committed a breach of contract and, in the affirmative,
to verify and decide upon the consequences to be applied for such alleged breach
of contract.
5.
In particular, the members took note that on 23 February 2006, an employment
contract was concluded between the parties for the period until 31 December
2007 and that the Claimant had unilaterally terminated the employment contract
with the Respondent by written notice on 14 July 2006, i.e. before the ordinary
expiry of the employment contract. Furthermore, the Chamber acknowledged that
the parties had agreed, inter alia, on a monthly salary in the amount of 1,100.
What is more, the parties agreed that the Respondent has the right to pay to the
Claimant, in compliance with the results from the Claimant’s professional activity
also “other extra-paid sums, bonuses, extra remuneration and other such”.
6.
Furthermore, the members of the DRC took note that the Claimant considers that
he terminated the employment contract on 14 July 2006 with just cause since the
Respondent failed to pay him his monthly salaries for the months of April, May
and June 2006 in the amount of USD 12,000 each, his appearance fees for this
period amounting to USD 3,400 as well as the flight tickets in the amount of USD
800 and that therefore, the Claimant demands payment of outstanding salaries in
the amount of USD 40,200 plus interest as well as compensation in the amount of
USD 216,000.
7.
On the other hand, the Chamber acknowledged that the Respondent rejects the
claim of the Claimant asserting to have duly complied with its financial obligations
towards the Claimant and that rather the latter breached the contract by not
appearing to the trainings of the club.
8.
With regard to such additional payments, both parties made reference to the
additional agreement they signed on 23 February 2006, by, however, applying a
divergent interpretation as to the application of the relevant clauses.
9.
In particular, the members of the Chamber noted that the Claimant, based on the
aforesaid additional agreement and in particular its par. 1.1, maintains being
entitled to receive the amount of USD 12,000 as a monthly salary. On the other
hand, the Chamber took note that the Respondent emphasized that such payment
of USD 12,000 were conditional on the Claimant’s performance and the club’s
results.
7
10.
In view of the divergent statements of the parties with respect to the
interpretation of the terms of the additional agreement, the deciding body went
on to examine the relevant document.
11.
In doing so, the members of the Chamber established that in accordance with the
translation of the additional agreement submitted by the Claimant, the
accurateness of which was not contested by the Respondent, the par. 1 of the
relevant agreement stipulates that “for taking place in the starting eleven of the
team “FC M”(Respondent) the football player (Claimant) has the right to received
the following payments: 1.1. Monthly personal salary at amount of USD 12,000
and 1.2. Appearance fees for positive results of the team in accordance with the
club’s system for that kinds of bonuses for all the team players.”
12.
Furthermore, the Chamber took note that according to par. 2 of the said
agreement, the “above mentioned payments” is considered the report of the head
coach of the team.
13.
In that regard, the members of the Chamber underlined that the Claimant’s right
to receive an amount of USD 12,000, whether, as alleged by the Claimant, as a
monthly salary or as an additional bonus as maintained by the Respondent,
represents a considerably high value of the Claimant’s income. The relevant clause
gives the Respondent, respectively its head coach, the right to unilaterally decide
whether or not the Claimant would be entitled to receive such amounts. The
Chamber deemed that, as a general rule, the validity of such a clause is
questionable.
14.
Notwithstanding the above, the Chamber continued by stating that the
employment contract the parties involved signed on 23 February 2006 provides,
however, for clear prerequisites in order for the Claimant to be entitled to receive,
in addition to his monthly salary, “extra-paid sums, bonuses, extra remuneration
and other such”. In particular, it was agreed in par. 4.2 of the relevant
employment contract that the Respondent has the right [emphasize added] to
pay to the Claimant those additional payments and this in compliance with the
results from his professional activity [emphasize added].
15.
Furthermore, referring to the additional agreement signed between the Claimant
and the Respondent, the Chamber underlined that the Claimant would be entitled
to receive the amount of USD 12,000 from the Respondent “for taking place in the
starting eleven of the team “FC M” (the Respondent). Finally, par. 2 of the
additional agreement clarifies that such payment is conditional on the report of
the head coach of the Respondent.
8
16.
In view of all the above, the members of the Chamber held that in order for the
Claimant to be entitled to receive an additional payment of USD 12,000, certain
prerequisites needed to be fulfilled.
17.
Having said that and taking into account all the above, the deciding body
concluded that the Claimant was not entitled to receive a monthly salary of USD
12,000 on a permanent basis.
18.
For the sake of completeness, the Chamber deemed it appropriate to underline in
particular that, unless specifically provided for in the relevant employment
contract, the signature of an employment contract with a football team does not
content automatically the entitlement of the player to play for the first team of
the club.
19.
In continuation, the members dealt with the allegation of the Claimant as regards
the Respondent’s failure to pay him his appearance fees amounting to USD 3,400.
20.
In this respect, the Chamber took note that the Claimant did not provide any
documentary evidence to corroborate his allegations that he was entitled to
receive the claimed amount.
21.
In view of the above, the Chamber emphasized that in accordance with the legal
principle of the burden of proof, which is a basic principle in every legal system, a
party deriving a right from an asserted fact has the obligation to prove the
relevant fact (cf. art. 12 par. 3 of the Procedural Rules). Therefore, due to the lack
of proof with regard to the Claimant’s allegations related to the Respondent’s
failure to fulfil its financial obligations as concerns appearance fees towards the
Claimant, the deciding body held that it has to reject the Claimant’s claim also in
this respect.
22.
In view of the above, the Chamber reached the conclusion that it cannot back the
Claimant’s position for having had just cause to terminate the employment
contract on 14 July 2008 since, as shown above, the Respondent duly fulfilled its
contractual obligations towards the Claimant.
23.
Furthermore, the Chamber held that the Respondent, in accordance with the
terms of the additional agreement signed between the parties, in particular its
par. 6, must pay to the Claimant the travelling expenses to B and back to U. In this
respect, the members noted that the relevant employment contract respectively
the additional agreement do not provide for any indications as regards the value
9
of the said flight ticket. Moreover, the Claimant was also unable to provide
documentary evidence to corroborate his allegations as regards the value of the
said flight tickets, i.e. the amount of USD 800. On the other hand, the members of
the Chamber took note that the Respondent did not object to the Claimant’s claim
in this respect not to the amount and thereby tacitly acknowledged owning the
said amount to the Claimant.
24.
Having said that, the members of the Chamber explained that until the date the
Claimant terminated the contract with the Respondent, i.e. on 14 July 2006, the
latter had mainly complied with its financial obligations towards the Claimant,
except the payment of the flight tickets. Yet, according to the Respondent, it was
unable to pay the Claimant his travel expenses due to his unexpected departure.
25.
Taking into account all of the above, the deciding body reached the conclusion
that the Respondent had complied with its obligations based on the employment
contract and the additional agreement it signed with the Claimant. Therefore, the
Chamber decided to partially reject the claim of the Claimant, since, as shown
above, the Respondent complied with all contractually agreed obligations towards
the Claimant until the latter’s termination of the contract.
26.
To concluded with, the Dispute Resolution Chamber decided that the Respondent
must pay to the Claimant the amount of USD 800 for flight tickets only.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player A, is partially accepted.
2.
The Respondent, FC M, has to pay to the Claimant the amount of USD 800 (flight
tickets) within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant 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 shall be submitted upon the party’s request to FIFA’s Disciplinary
Committee for consideration and decision.
10
5.
The Claimant is directed to inform the Respondent 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
11