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
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player
J,
as Claimant / Counter-Respondent
against the club
K,
as Respondent / Counter-Claimant
and involving the club
H FC,
as Intervening party
regarding a contractual employment-related dispute arisen between the player J and the
club K.
I.
Facts of the case
1.
The player J (hereinafter: the player or Claimant), born 3 May 1984, and the club K
(hereinafter: the club or Respondent) signed an employment contract on 2 February
2008. This employment contract came into force on 6 February 2008 and was due to
expire on 30 June 2011.
2.
The employment contract provided for the following payments:
• Salary from 06/02/2008 to 30/06/2008: EUR 100’000 net for this period
(payable in 5 equal instalments of EUR 20’000 net on the 26th of each month)
• Salary from 01/07/2008 to 30/06/2009: EUR 250’000 net for this period
(payable in 10 equal instalments of EUR 25’000 net on the 26th of each month from
August 2008 to May 2009)
• Salary from 01/07/2009 to 30/06/2010: EUR 250’000 net for this period
(payable in 10 equal instalments of EUR 25’000 net on the 26th of each month from
August 2009 to May 2010)
• Salary from 01/07/2010 to 30/06/2011: EUR 250’000 net for this period
(payable in 10 equal instalments of EUR 25’000 net on the 26th of each month from
August 2010 to May 2011)
•
•
•
•
EUR 100’000 net payable in cash as a signing-on fee
EUR 150’000 net payable in cash on 15/07/2008
EUR 150’000 net payable in cash on 15/07/2009
EUR 150’000 net payable in cash on 15/07/2010.
3.
Furthermore, according to the employment contract, the player was entitled to
various benefits in kind such as a furnished accommodation and a car as well as four
return tickets from K to P for him and his family in business class.
4.
Clause 11 of the employment contract in question stipulates that “In case of late
payment of salary and/or bonuses and/or signing on fee, later than 45 days of the
agreed date, by the club to the player, the player has to his choice, the right of a free
transfer without any compensation payable to the club whatsoever. Even in the event
the player uses his right of a free transfer to another club, the club is still obliged to
fulfil all agreed financial conditions between the player J and the football club K, until
30/06/2011 in which default of payment has occurred and the player will not entitled
to any other right of compensation whatsoever with regard to the default mentioned
heretofore”.
5.
On 5 November 2008 the player lodged a complaint with FIFA against the club. The
player claims that the salary due for the months of August, September and October
2008 were not paid by the club, amounting to EUR 75’000.
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6.
The player mentions that on 23 October 2008 he sent to the club a formal letter
requesting it to honour its commitments regarding the monthly salaries of August and
September 2008, and within eight days of receipt of the letter in question. However,
according to the player the club did not respond to the above-mentioned letter.
7.
The player asserts that the conditions stipulated in clause 11 of the employment
contract justifying the termination of the contract with just cause, exclusively
attributable to the club, had been fulfilled.
8.
As a consequence the player claims the following:
• EUR 75’000 net corresponding to the net salary due for the months of August,
September and October 2008;
• EUR 4’166.70 net in remuneration for 5 days of November 2008;
• EUR 1’020’833.30 net in compensation for the breach of the contract (EUR 20’833.30
in compensation for the remainder of November 2008; EUR 950’000 for the
remuneration due until the expiry of the employment contract; EUR 50’000 ex
aequo et bono corresponding to the benefits in kind provided for in the contract
which the player would have obtained until the contract expired);
• In addition to the other amounts, the player claims EUR 500’000 because, by
opposing the player’s transfer to H FC on the pretext that the player was still under
contract with the , K club said club caused serious prejudice to his future sporting
career;
• Furthermore, the player requests sporting sanctions against the club;
• The player further requests recognition of the termination of the contract with just
cause exclusively attributable to the club.
9.
On 19 November 2008, having been contacted by FIFA, the club sent FIFA a copy of a
letter dated 19 November 2008 and addressed to the player’s legal representative
mentioning that the salaries for the months of August and September 2008, i.e. the
sum of EUR 50’000, had been transferred to the player’s bank account.
10. Afterwards, the player confirmed receipt of EUR 50’000, on 18 November 2008,
corresponding to his salaries for the months of August and September 2008.
11. The player mentions that on 20 November 2008 he reiterated to the club that he was
still owed EUR 25’000 corresponding to the salary of October 2008. In said letter, the
player also informed the club that if it considers the employment contract to be valid,
it should settle the financial situation by 27 November 2008 by also paying the salary
for November 2008.
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12. Furthermore, the player adds that on 18 November 2008 the club notified the player
of a disproportionate fine of EUR 6’000 for trivial reasons (use of a mobile telephone
during preparation for a match and lack of preparation for said match) without
respecting the player’s right of defence.
13. The player states that he left T on 28 November 2008 and returned to F.
14. The club informed that with regard to the payment of the salary for the month of
October 2008, it was transferred to the player’s bank account following an order
placed by the club on 27 November 2008. The club thus alleges that although the
amounts due at the time for the 2008-09 season had been paid to the player, he left
the club on 28 November 2008 without any justification.
15. The player confirms his previous statement and asserts that at the time the claim was
lodged, the club’s payment was late by more than 90 days.
16. The player adds that the club is acting in bad faith because the salary for the months
of August, September and October 2008 were paid as follows:
• on 19 November 2008, the salaries of August and September 2008;
• on 28 November 2008, the salary of October 2008.
17. The club confirmed that it paid the player his salaries for August and September 2008
on 17 November 2008 and that the salary for October 2008 was paid on 27 November
2008. The club also mentions that it respected the benefits in kind due to the player
according to the employment contract.
18. Furthermore, the club lodged a counterclaim against the player. The club mentions
that due to the losses it incurred, it is entitled to claim compensation for the period
during which it was deprived of the player’s services and the expected benefits from
the contract and thus requests compensation in the amount of EUR 1’000’000, the
player’s annual transfer compensation, plus legally applicable interest from the date
of the player’s departure.
19. The club thus requests:
• Compensation from the player of EUR 1’000’000 plus legally applicable interest
from the date of the player’s departure;
• The rejection of the player’s claim with all expenses and procedural costs to be
borne by the player;
• The imposition of sporting sanctions on the player.
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20. The player confirms that he was provided with a car and accommodation until the day
of his departure from T, on 28 November 2008. Furthermore, the player does not
dispute that he benefited from the airline tickets as provided for in the contract.
21. Equally, the player mentions that in the claim lodged with the Dispute Resolution
Chamber on 5 November 2008, he gave notice of the early termination of the
employment contract between him and the club. The player adds that he sought an
amicable settlement with the K club consisting of settling the financial issues linked to
the termination of the employment contract. According to the player, it was never his
intention to question the termination of the employment contract and the steps taken
by the player were only aimed at reaching an amicable settlement with regard to the
financial issues arising from the early termination of the employment contract.
22. The player requests that the club’s counterclaim be rejected. In addition, the player
explains that the arguments put forward by the K club to justify its counterclaim lack
foundation, particularly as there is no evidence concerning the claimed compensation
amounting to EUR 1’000’000.
23. On 2 February 2009, the player signed an employment contract with the E club H FC,
valid from 2 February 2009 to 30 June 2009. On 3 February 2009, the Football
Association requested the International Transfer Certificate for the player in question.
This request was refused by the T Football Federation.
24. On 8 July 2009, H FC submitted a statement as an intervening party in this case. In said
statement, the club mentions that it believed the player to have severed his links to
the K club by the time it signed the employment contract with the player. The H FC
adds that it did not make any payment to the player because it had not been possible
to register the relevant employment contract with The Football Association.
25. The Football Association informed that the player’s contract with the H FC was never
registered because the International Transfer Certificate request made to the T
Football Federation was rejected.
II. Considerations of the Dispute Resolution Chamber
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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 5 November 2008. 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. 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 F
player and a T 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 5 November 2008, the 2008
version of the regulations (edition 2008; 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 and took note of
the statements and documentation presented by the parties during the relevant
proceedings. The members of the Chamber started by acknowledging that on 2
February 2008, the Claimant and the Respondent signed an employment contract
which came into force on 6 February 2008 and was due to expire on 30 June 2011.
5.
Equally, the members of the Chamber duly considered the financial clauses of the
employment contract at the basis of this dispute and, in particular, the salaries
stipulated for the sporting season 2008-2009. In this respect, the Chamber took note
that for the period between 1 July 2008 and 30 June 2009, it was stipulated that the
player was to receive the total amount of EUR 250’000 net, payable in 10 equal
instalments of EUR 25’000 on the 26th day of each month as from August 2008 to May
2009.
6.
In addition, the deciding body duly analysed the contents of clause 11 of the
employment contract which stipulated that “In case of late payment of salary and/or
bonuses and/or signing on fee, later than 45 days of the agreed date, by the club to
the player, the player has to his choice, the right of a free transfer without any
compensation payable to the club whatsoever. Even in the event the player uses his
right of a free transfer to another club, the club is still obliged to fulfil all agreed
financial conditions between the player J and the football club K, until 30/06/2011 in
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which default of payment has occurred and the player will not entitled to any other
right of compensation whatsoever with regard to the default mentioned heretofore”.
In this respect, the Chamber considered that the said clause is fully valid and regulates
the consequences in case of late payment by the club of the player’s remuneration.
Equally, the Chamber acknowledged that the said clause indirectly, under the terms
“free transfer to another club”, includes a right to terminate the contractual
relationship between the parties in case of non compliance by the club of its financial
obligations.
7.
Although clause 11 does not include the obligation to do so, the player, on 23 October
2008, sent a letter to the club requesting the payment of the outstanding monthly
salaries within a certain time limit, to no avail.
8.
In continuation, the Dispute Resolution Chamber acknowledged that on 5 November
2008 the player lodged a claim in front of FIFA against the Respondent asserting that
the salaries due for the months of August, September and October 2008 were still not
paid by the club and that, as a consequence, the conditions contained in clause 11 of
the employment contract had been fulfilled justifying the termination of the contract
with just cause, exclusively at the club’s fault.
9.
In this respect and concerning the outstanding salaries for the months of August,
September and October 2008, the members of the Chamber duly noted that the
relevant monthly salaries were received, during the course of the proceedings, as
follows:
• on 19 November 2008, the salaries of August and September 2008;
• on 28 November 2008, the salary of October 2008.
10. Taking into account the previous consideration, the Chamber concluded that the
monthly salaries of August and September 2008 were obviously paid by the
Respondent to the Claimant more than 45 days following the dates of payment
contractually agreed upon. Furthermore, the Chamber noted that this fact was not
contested by the Respondent, who admitted that it proceeded with the payment of
the Claimant’s salary for August and September 2008 on 17 November 2008.
11. In addition, the Chamber took into account that the Respondent had not given any
reasons for the said delay in the payment of the Claimant’s receivables.
12. The Dispute Resolution Chamber concluded that without any doubt the conditions
stipulated in clause 11 of the employment contract were fulfilled and that due to the
delay of more than 45 days in the payment of the salaries, the Claimant was entitled
to terminate the employment contract in strict application of the said contractual
clause 11.
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13. As a consequence of the above and considering that, as stated above, clause 11 of the
employment contract is valid and applicable, the members of the Dispute Resolution
Chamber concluded that the player J terminated the employment contract with just
cause on 5 November 2008, by lodging the claim in front of FIFA, and that the club is
to be held liable for the early termination of the employment contract with just cause
by the player.
14. In continuation, reverting to the Respondent’s position that the Claimant had left the
club without justification on 28 November 2008, on account of the aforementioned
considerations (cf. points II./12. and II./13. above), the Chamber deemed it fit to point
out that the Claimant had valid reasons to leave the Respondent. Furthermore, the
Chamber emphasised once more that on the basis of clause 11 of the employment
contract the Claimant was entitled to terminate the employment contract on 5
November 2008, the conditions contained in the relevant clause having been fulfilled.
15. Having established the legal aspects of the present termination of the employment
contract as detailed in the previous considerations, the Dispute Resolution Chamber
went on to deal with the financial consequences of the said termination. In this
respect, the Chamber recalled that the claim of the player consists of the following
points:
• EUR 75’000 net corresponding to the salaries due for the months of August,
September and October 2008;
• EUR 4’166.70 net in remuneration for 5 days of the salary of November 2008;
• EUR 1’020’833.30 net in compensation for the breach of the contract (EUR 20’833.30
in compensation for the remainder of November 2008; EUR 950’000 for the
remuneration due until the expiry of the employment contract; EUR 50’000 ex
aequo et bono corresponding to the benefits in kind provided for in the contract
which the player would have obtained until the contract expired);
• In addition to the other amounts, the player claims EUR 500’000 because, by
opposing the player’s transfer to H FC on the pretext that the player was still under
contract with the K club, said club caused serious prejudice to his future sporting
career;
• Furthermore, the player requests sporting sanctions against the club;
• The player further requests recognition of the termination of the contract with just
cause, exclusively attributable to the club.
16. First of all and regarding the claim for outstanding salaries relating to the months of
August, September and October 2008, the Chamber pointed out that the Claimant
confirmed having received these monthly salaries during the proceedings in front of
the Dispute Resolution Chamber and that, as a consequence, this part of the claim
shall at present be considered obsolete and shall thus not be taken into consideration
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when establishing the amount of money still owed by the Respondent to the
Claimant.
17. In continuation, the members of the Chamber recalled that the employment contract
at the basis of the present dispute was considered terminated as of 5 November 2008.
In this respect and considering the amounts paid to the player during the proceedings
in front of the Dispute Resolution Chamber, the Chamber concluded that the monthly
salary of November 2008 was still outstanding in the amount of 5 days, corresponding
on a pro rata basis to the sum of EUR 4’166, which outstanding sum has thus to be
paid by the club to the player.
18. Furthermore, having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant
is entitled to receive from the Respondent compensation for the present termination
of the contract in addition to the aforementioned outstanding payment on the basis
of the relevant employment contract. In continuation, the Chamber focused its
attention on the calculation of the amount of compensation payable to the Claimant
by the Respondent in the case at stake. In doing so, the members of the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated in accordance with several criteria, unless
otherwise provided for in the contract at the basis of the dispute. The Chamber
recalled that the inclusion of a compensation clause relating to a breach of a contract
in an employment contract in principle does not violate the Regulations. On the
contrary, art. 17 par. 1 of the Regulations explicitly allows the parties to an
employment contract concluded between a professional player and a club to provide
for the amount of compensation to be paid by the party in fault with regard to the
termination of the contract.
19. 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 in the
event of breach of contract. Clause 11 of the employment contract clearly sets forth
inter alia that in the event of the conditions contained therein having been fulfilled,
the Respondent will have to compensate the Claimant with an amount of money
corresponding to the monies provided for in the contract after the termination of the
contract until the date of expiry of the relevant contract, i.e. 30 June 2011. In this
regard, the Chamber concluded that the aforementioned clause provides for the
consequences agreed upon by the contractual parties in the event of a breach of the
employment contract and shall thus be taken into consideration when establishing the
amount of compensation payable by the Respondent to the Claimant.
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20. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract until 30
June 2011, taking into account that the player’s receivables until 5 November 2008 are
included in the calculation of the outstanding remuneration (cf. no. II./17. above).
Consequently, the Chamber concluded that the amount of EUR 970,834 (i.e.
remuneration as from 6 November 2008 until 30 June 2011) serves as the basis for the
final determination of the amount of compensation for breach of contract.
21. Indeed, in February 2009, the Claimant found employment with the E club, H FC. In
accordance with the pertinent employment contract which has been made available
by the Claimant, valid until 30 June 2009, the Claimant was entitled to receive, until 30
June 2009, the total wage of 7,500 (corresponding to EUR 8,070) and therewith
enabled to reduce his loss of income. Consequently, according to the constant practice
of the Dispute Resolution Chamber, such remuneration under the new employment
contract shall be taken into account in the calculation of the amount of compensation
for breach of contract.
22. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
to the Claimant the amount of EUR 962’764 as compensation.
23. With regard to the claim of the player relating to the payment of EUR 500’000 for
prejudice allegedly suffered due to the opposition of the Respondent to the player’s
transfer to the E club, the Chamber referred to its jurisprudence and decided to reject
this part of the claim.
24. Equally, bearing in mind that the employment contract at the basis of the present
dispute does not include any monetary value relating to the benefits in kind and the
fact that the employment contract is considered to have been terminated on 5
November 2008, in accordance with its constant jurisprudence the Chamber decided to
reject the claim of the Claimant relating to the amount of EUR 50,000 ex aequo et
bono in connection with the contractual benefits in kind.
25. On account of all of the above, the Chamber decided that the Respondent is liable to
pay the total amount of EUR 966’930 to the Claimant and that any further claims
lodged by the Claimant are rejected.
26. Equally, and considering all the above-mentioned elements, the Chamber decided
that the counterclaim of the club K has to be rejected in its entirety.
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III. Decision of the Dispute Resolution Chamber
1.
The employment contract signed between the Claimant / Counter-Respondent, the
player J, and the Respondent / Counter-Claimant, the club K, was terminated on 5
November 2008.
2.
The claim of the Claimant / Counter-Respondent, the player J, is partially accepted.
3.
The Respondent / Counter-Claimant, the club K, is ordered to pay to the Claimant /
Counter-Respondent, the player J, the amount of EUR 966’930 within 30 days as
from the date of notification of this decision.
4.
Any further claims lodged by the Claimant / Counter-Respondent, the player J, are
rejected.
5.
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 expiring of the fixed time limit and the
present matter shall be submitted upon the party’s request to FIFA’s Disciplinary
Committee for its consideration and decision.
6.
The Claimant / Counter-Respondent, the player J, is directed to inform the Respondent
/ Counter-Claimant, the club K, 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.
7.
The counterclaim of the Respondent / Counter-Claimant, the club K, is rejected.
*****
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:
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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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