Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 July 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
B from M,
represented by Mr A
as Claimant
against the club,
F from L
as Respondent
regarding an employment-related contractual dispute arisen between the parties.
I.
Facts of the case
1.
The player, B (hereinafter also referred to as: the Claimant), and the club, F
(hereinafter also referred to as: the Respondent), signed a five-year employment
contract on 31 March 2006.
2.
According to this contract, the Claimant was to receive (all amounts are net):
-
EUR 100,000 during the first year of contract,
EUR 120,000 during the second year of contract,
EUR 170,000 during the third year of contract,
EUR 250,000 during the fourth year of contract,
EUR 300,000 during the fifth year of contract.
The Claimant’s salary was to be paid by the Respondent in weekly instalments,
every Friday.
The contract also provided that all costs relating to the player’s accommodation
are the responsibility of the club, without determining any specific amount which
should be paid by the club with regard to such accommodation.
3.
On 26 January 2009, the Claimant lodged a claim before FIFA and alleged that the
Respondent did not pay him a total of EUR 84,666.67, which corresponds to almost
six monthly salaries, i.e. part of the month of August 2008, September, October,
November, December 2008 and January 2009. The Claimant further asserted that
his legal representative had notified the Respondent on numerous occasions,
verbally and in writing, about the outstanding amounts, but that he did not
receive any reply from the Respondent.
4.
In view of these allegations, the Claimant formally requested FIFA to confirm that
the breach by the Respondent of the employment contract constituted a unilateral
breach of contract without just cause. Furthermore, after having amended his
claim several times, he claimed outstanding receivables and compensation for
breach of contract in the following amounts:
- EUR 109,000 as alleged outstanding salaries from August 2008 to March 2009,
i.e. part of salaries payable during the third year of contract,
- EUR 250,000 as salary payable during the fourth year of contract,
- EUR 300,000 as salary payable during the fifth year of contract,
- EUR 4,400 as 8 months of rental costs,
Thus, in total: EUR 663,400.
5.
Additionally, the Claimant stated that the club should be imposed sporting
sanctions due to the fact that the alleged breach of contract occurred during the
protected period.
6.
On 11 February 2009, due to the fact that the Respondent did not react to his
claim subsequent to FIFA’s intervention, the Claimant requested to be released
from his employment contract, and, simultaneously, maintained his initial claim as
to compensation and sporting sanctions against the Respondent.
7.
On 17 February 2009, the Respondent replied to the claim and alleged that,
between July 2008 and February 2009, the Claimant had received a total of EUR
56,000, and that the following payments were also made:
- EUR 1,000 (J 3,452.80) on 9 January 2009,
- EUR 2,000 (J 6,905.80) on 4 February 2009,
- EUR 2,000 (J 6,905.80) on 9 February 2009.
In this respect, the Respondent presented copies of 14 payment orders, dated as
from 2 July 2008 until 9 February 2009, allegedly corresponding to payments made
to the Claimant in J.
8.
Furthermore, the Respondent alleged that it was in a difficult financial situation,
but confirmed that it was willing to pay the overdue salary payments to the
Claimant, without any indication as to whether the amounts claimed by the
Claimant were justified or not, and without indicating either which salaries were
still due. The Respondent further indicated that it had emailed the representative
of the Claimant on 9 February 2009 in order to propose him to solve the dispute
by means of negotiations. However, the Claimant’s representative did not
allegedly reply to this email.
9.
Finally, the Respondent asserted that the Claimant had never expressed his wish to
terminate the employment contract. The Respondent therefore concluded that the
Claimant was influenced by his representative, Mr A, a players’ agent licensed by
the T Football Association, who is allegedly motivated by the opportunity of
earning commission from the termination of the employment contract and the
conclusion of an employment contract with a new club.
10.
On 20 March 2009, the Claimant, in reply to the Respondent’s position, denied
having been contacted by the Respondent in order to solve the matter amicably.
Moreover, the Claimant, having examined the payment orders submitted by the
Respondent along with its reply to the claim, denied, in particular, having received
the amount of 17,264 J (EUR 5,000) on 3 September 2008. The Claimant further
noted that the Respondent, in any case, did not appear to be disputing the
amount of the alleged outstanding debt towards to him. Moreover, the Claimant
stated that, although the Respondent had submitted evidence of payments
totalling EUR 5,000 paid in the last few weeks, this amount was only a fraction of
the outstanding debt owed to him by the Respondent.
11.
On 27 March 2009, the Respondent indicated to FIFA that, despite the fact that
the present procedure was still pending before the competent decision-making
body of FIFA, the Claimant had left the country without the Respondent’s
permission. The Respondent therefore asserted that the Claimant’s decision to
leave the country should be considered as an unauthorised absence and a
potential breach of contract without just cause. The Respondent further stated
that, until the present dispute was not solved, it considered the Claimant as part
of its team and that, in case the Claimant remained absent, the Respondent would
reserve its right to terminate the employment contract.
12.
On 30 April 2009, the Claimant wrote to FIFA and indicated that he was currently
training with a club in M, and that a club from M had invited him to join its team.
The Football Federation of M allegedly requested the International Transfer
Certificate (ITC) from the L Football Federation, however the latter federation did
not reply.
13.
Invited by FIFA to provide a clear position as to the Claimant’s wish to be released
from his contractual obligations with the Respondent in order to sign with a club
in M, the Respondent reiterated that the Claimant’s desire to leave the club should
be considered as an unjustified breach of contract, but did not insist on the
ongoing fulfilment of the employment relationship between the parties of the
dispute.
14.
Simultaneously, the Respondent lodged a counter-claim against the Claimant. In
this respect, it indicated that it requested the competent decision-making body of
FIFA to impose sporting sanctions on the Claimant. It further stated that the
intentions of the club from M to conclude an employment contract with the
Claimant should be deemed as an inducement to breach the existing contractual
relationship, and therefore requested that this club be held jointly and severally
liable for such breach. Moreover, the Claimant’s new club should, in the club’s
opinion, be banned from registering new players, either nationally or
internationally, for two registration periods.
15.
Finally, the Respondent asked that the competent decision-making body of FIFA
decide on appropriate sanctions to be taken against the legal representative of
the Claimant, Mr A.
16.
On 28 May 2009, FIFA wrote to the parties in order acknowledge the fact that, in
view of the arguments presented by them during the course of the procedure, it
must presume that the labour relationship in the case at hand is seriously
disrupted. Therefore, without prejudice to any formal decision to be passed by
FIFA’s competent deciding body, FIFA advised the parties to consider their labour
relationship as terminated and to concentrate on the financial aspects of the
dispute. FIFA also urged the Respondent not to hinder the issuance of the relevant
ITC, should the Claimant enter into a new contractual relationship.
17.
On 2 June 2009, in reply to the Respondent’s counter-claim, the Claimant
emphasized that, in his opinion, in view of the unjustified outstanding amounts
due to him by the Respondent, the latter had clearly demonstrated that it was in
breach of contract. Therefore, the Claimant deemed that he had just cause to
terminate the employment contract in question.
18.
Finally, the Claimant also indicated that he had not, at this date, i.e. 2 June 2009,
signed any employment contract with another club.
19.
On 15 June 2009, the Respondent provided FIFA with its final position in the case
at hand. In this regard, it asked the competent decision-making body of FIFA to
reject the Claimant’s claim entirely and to declare him as having breached the
employment contract without just cause. The Respondent maintained its claim for
sporting sanctions against the Claimant and did not refer to its claims relating to
the player’s alleged new club (cf. point I. 14 above).
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
“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
January 2009. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 player from M and a L 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 January
2009, the 2008 edition of the 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, entering into the substance of the matter, the members of the
Chamber started by acknowledging the established facts of the case and the
arguments of the parties as well as the documents contained in the file. In this
regard, the Chamber noted that the Claimant and the Respondent had, on 31
March 2006, signed a five-year employment contract. Moreover, the Chamber
observed that both parties rejected the responsibility of the termination of said
employment contract on each other. Indeed, the Claimant is claiming that the
Respondent should be held liable for breach of contract in the light of the club’s
considerable delay in remitting his salaries, and is therefore requesting, inter alia,
payment of outstanding salaries and compensation for breach of contract. The
Respondent, on the other hand, is asserting that the Claimant, by leaving the club
without the latter’s permission, had acted in breach of contract and should
therefore be imposed sporting sanctions. The Respondent also lodged a counterclaim against the Claimant, without, however, having specified the precise nature
of its claim against the Claimant, apart from the aforementioned sporting
sanctions.
5.
In view of the above, the Dispute Resolution Chamber established that, first of all,
it should tackle the question of the responsibility of the termination of the
employment contract and to establish as to whether there was a just cause for
such termination.
6.
In order to properly assess this particular issue, the Chamber, first of all, paid close
attention to the arguments developed by both parties to the dispute. Thus, it
noted that the Claimant, on the one hand, had, upon lodging a claim in front of
FIFA, asserted that the Respondent had not paid him his salaries from the month
of August 2008 to January 2009, i.e. approximately six months of salary. The
Claimant considers this to be a unilateral breach of contract by the club without
just cause and requested to be released from his contractual obligations in order
to be able to continue his football career.
7.
On the other hand, the Respondent denied not having fulfilled its contractual
obligations for at least part of the salaries payable from August 2008 to February
2009. Moreover, the Respondent was of the opinion that the Claimant had not
fulfilled his contractual obligations, in view of the fact that the latter had left L
and thus no longer participated in the club’s activities, while the Respondent had
not authorised him to leave. The Respondent had also requested sporting
sanctions against the Claimant.
8.
Furthermore, regarding specifically the issue of the responsibility of such
termination, the members of the Chamber recalled the rule of burden of proof
provided in art. 12 par. 3 of the Procedural Rules, according to which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof. In
this respect, the Chamber noted that, within the period from July 2008 to February
2009, the Respondent alleged having paid the player in total EUR 60,000. In
support of this allegation, it produced to the Chamber some copies of 14 payment
orders allegedly made to the Claimant for a total amount of 210,620.80 J.
9.
On account of the above, the Chamber established that the Respondent had,
ultimately, never contested that it owed the player some outstanding monies over
the period starting from August 2008 until the end of the third year of contract,
i.e. March 2009. However, the Chamber deemed fundamental to underline that, in
order to pronounce itself on the problematic of the responsibility of the
termination of the relevant employment relationship, it had to determine which
precise amounts of salary were due by the Respondent to the Claimant at the time
when the present dispute arose.
10.
In this respect, the members of the Chamber took due note of the fact that, after
the Respondent had asserted having paid to him the total amount of EUR 60,000
for the period as from July 2008 to February 2009, the Claimant had affirmed that,
with reference to the payment orders provided by the Respondent, he did not
recall, in particular, having received the amount of 17,264 J, i.e. EUR 5,000, on 3
September 2008. Therefore, the Chamber held that, by stating the
aforementioned, the Claimant had implicitly recognised having received EUR
55,000 out of the EUR 60,000 which the Respondent had asserted having paid.
11.
In view of the above, the Chamber, taking into consideration the implicit
admission of the player, ruled that the Respondent had, from August 2008 to
March 2009, made only partial payments to the Claimant, and that the
outstanding amount due to him for that period of time was of EUR 54,000, i.e.
EUR 109,000, representing the total claimed salaries due to him from August 2008
to March 2009, minus EUR 55,000, which he implicitly recognised having received.
12.
For all of these reasons, the Chamber decided to reject the Respondent’s
arguments and counter-claim and to accept the Claimant’s claim that the
Respondent had acted in breach of the employment contract by failing to remit a
considerable part of the Claimant’s salaries as from August 2008 until the end of
the third year of his contract, i.e. March 2009, in the total amount of EUR 54,000,
representing almost half of the monies that the Claimant was entitled to receive in
accordance with the employment contract for the said period of time.
13.
In continuation, and turning its attention to the Respondent’s position that the
Claimant had left the club at the end of March 2009 without its permission, on
account of the aforementioned consideration (cf. point II.12 above), the Chamber
deemed it fit to point out that the Claimant had valid reasons to leave the
Respondent at that point in time.
14.
Furthermore, in the light of the foregoing, the members of the Chamber
established that the employment contract between the parties was to be
considered as terminated as per the end of March 2009 at the Respondent’s fault.
15.
In consideration of all of the above, the Dispute Resolution Chamber came to the
firm conclusion that the Respondent should be held liable for breach of contract
without just cause, and decided that the Respondent is liable to pay to the
Claimant an amount of money as compensation for breach of contract (cf. art. 17
par. 1 of the Regulations) in addition to any outstanding payments on the basis of
the relevant contract.
16.
In this respect, the members of the Chamber recalled that the amount of EUR
54,000 had remained unpaid (cf. point II.11 above) and decided that the
Respondent is liable to pay this amount to the Claimant. Furthermore, the
Chamber acknowledged the fact that the Claimant had claimed the amount of
EUR 4,400, allegedly corresponding to 8 months of rental costs for his
accommodation. In this regard, the Chamber was eager to emphasize that no
specific amount was mentioned in the employment contract in relation to the
player’s accommodation. Furthermore, the Claimant had failed to provide any
evidence that the club had, previously, paid his rental costs and, if so, for which
precise amount. Therefore, the Chamber held that it was not in a position to set a
monetary value on the rental costs which should have been paid by the
Respondent as from August 2008 until March 2009. Consequently, the Chamber
decided to reject the Claimant’s claim for the reimbursement of costs linked to
accommodation.
17.
In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract without just cause, the Chamber
focused its attention on the calculation of the amount of compensation for breach
of contract in the case at stake. In doing so, the members of the Chamber recalled
that, in accordance with 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, and depending on whether the
contractual breach falls within the protected period.
18.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party in the event of breach of contract. In this
respect, the members of the Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
19.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
20.
On this basis, the Chamber underlined that, at the moment of the early
termination of the employment contract in March 2009, the Respondent was in
arrears of EUR 54,000 out the EUR 109,000 payable between August 2008 and
March 2009, and that this amount represents almost half of the monies owed to
him under the employment contract for the said period of time. The Chamber
deemed that it should consider this fact in determining the amount of
compensation to be paid by the Respondent.
21.
In continuation, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account the remuneration
due to the Claimant in accordance with the contract as well as the time remaining
on the same contract, as well as the professional situation of the Claimant after
the early termination occurred until the present moment. In this respect, the
members of the Chamber noted that the said contract would have still been valid
for an other two years. Furthermore, the Chamber took note of the fact that,
should the employment contract have been carried out until its end, the player
would have received a total of EUR 550,000, i.e. EUR 250,000 for the fourth year of
contract (i.e. 2009-2010), and EUR 300,000 for the fifth year of contract (i.e. 20102011). Finally, the Chamber underlined that, in spite of having attended some
trials with a club in M, the Claimant had declared that he had been unable to find
employment following the breach of contract by the Respondent.
22.
Therefore, on account of all of the above, the Chamber concluded that, bearing in
mind art. 17 par. 1 of the Regulations as well as the circumstances of the case, the
Dispute Resolution Chamber decided to award the amount of EUR 350,000 as
compensation for breach of contract to the Claimant.
23.
In light of all of the above, the Dispute Resolution Chamber decided that the
Respondent has to pay to the Claimant the amount of EUR 54,000 as outstanding
remuneration.
24.
Furthermore, the Chamber decided that the Respondent is liable to pay to the
Claimant the amount of EUR 350,000 as compensation for breach of contract.
25.
In conclusion, the Chamber decided to partially accept the claim lodged by the
Claimant.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, F, must pay the amount of EUR 404,000 to the Claimant, B,
within 30 days as of notification of the present decision.
3.
The contractual relationship between the Claimant, B, and the Respondent, F, is
declared dissolved.
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, B, is directed to inform the Respondent, F, 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.
6.
Any further claims of the Claimant, B, are rejected.
*****
Note relating to the motivated decision (legal remedy):
According to article 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