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,
O from F,
as “Claimant”
against the club,
D from K,
as “Respondent”
regarding an employment-related contractual dispute arisen
between the player and the club.
I.
Facts of the case
1.
On 20 February 2008, the player O and the club D signed an employment
contract valid as from 20 February 2008 until 31 December 2010.
2.
In accordance with this employment contract, the monthly wages to be paid to
the player by the club are fixed at USD 15,000 payable 25th of each month as
from February 2008. Pursuant to the employment contract, “D would be able to
decide the amount of the salary of the player newly by mutual discussion as
from December 2008.”
3.
In addition to this salary, the player was to receive a bonus, inter alia, if the
player ends as the K-league top scorer (Cf. art. 4 d of the employment contract,
USD 100,000) and if the club finishes as champion (Cf. art. 4 e of the
employment contract, USD 100,000).
4.
Additionally, the club “shall provide a house, a car and insurance (…). But,
utility fees associated with the provided house shall be paid by player and car
maintenance fee or any traffic penalties shall also be paid by player.”
5.
According to article 10 of the employment contract, “The party who breaches
these terms and conditions shall pay a penalty of USD 600,000 (not including
tax) (…).”
6.
On 24 March 2009 and 23 April 2009, the player informed FIFA that until
February 2009, the player was paid the same salary as in 2008, i. e. USD 15,000.
Until 20 March 2009, the player had still been waiting for the salaries
negotiation originally planned to intervene as of December 2008, pursuant to
the employment contract.
7.
The player submitted a copy of his agent’s written notice (bearing no date)
putting the club in default of its contractual obligations, i.e. to regularise the
contractual situation and pay the player’s monthly salary of USD 15,000.
8.
On 20 March 2009, according to the player, the club called him to propose the
amount of USD 3,000 as salaries for the 2009 season. According to the player,
the club waited until the last day of the registration period, i. e. 20 March 2009,
to coerce him to accept this lower new salary.
9.
The player did not accept this new amount and consequently he was not
registered for the upcoming season. For this reason, according to the player, the
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club unilaterally decided to pay him the equivalent of USD 400, first payment
being dated of 25 March 2009.
10.
The club also proposed him to take USD 20,000 and to leave but the player
refused to leave.
11.
Since that day, the player is training with the B team and the club allegedly
tried to push him out of the flat he was provided with by the club.
12.
For these reasons, the player maintains that the club acted in breach of the
employment contract and he claims the following monies :
Compensation for breach of contract, cf. art. 10 of the
employment contract
The value of his initial monthly salary from March
2009 until December 2010 (USD 15,000 per month)
50% of the bonus (Cf. art. 4 d of the employment
contract), since the player could not compete for it as
he was not registered for the new season
50% of the bonus (Cf. art. 4 e of the employment
contract), as the player could not contribute in this
regard since he was not registered for the new season
Total amount claimed by the player
USD 600,000
USD 330,000
USD 50,000
USD 50,000
USD 1,030,000
13.
Additionally, the player wants to leave the club and to continue his career in
Europe.
14.
In reply to the player’s claim and wish to leave the club, the club indicated on
26 May 2009 that it does not want to terminate the employment relationship
and emphasises the fact that a new negotiation round is to start about the
player’s salary for the sportive season 2009.
15.
The club also underlines the fact that as soon as an agreement would be
reached on the salaries to be paid, the player will be registered during the
second registration period which starts on 1 July 2009 and ends on 28 July 2009.
16.
About the alleged absence of negotiations on the player’s new salary and the
proposal to pay him USD 3,000 the day before the end of the registration
period, the club alleges that some “mutual discussions” intervened more than
seventeen times with the alleged agent of the player, Mr. H, as from December
2008. No agreement was found by the parties.
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17.
In a document dated 12 January 2009 submitted by the club in this regard, the
player is presented as being related to XY, a company Mr. H is working for. The
document presents the club’s salary proposal and Mr. H’s position in reply
thereto.
18.
Apparently unable to find a mutual agreement on the salaries to be paid, the
club proposed the amount of USD 3,000 to the player, as of March 2009, which
it considered appropriate in view of the fact that the player’s performance
disappointed the club and the fans, which offer was refused by the player.
19.
The club alleges that it told the player that new negotiations would take place
in June 2009 so as to be able to register the player during the second
registration period.
20.
In this regard the club promised the player that the accrued payables of the
season 2009 would be paid after new negotiations on Mr. O’s salary had been
finalised.
21.
As of 25 March 2009, the player has been paid upon the basis of the minimum
salary for foreign football players, which is 20,000,000 per year, representing
1,667,000 per month. The club asserts having remitted to the player the total
amount of 1,289,980, for the months of March and April 2009 after deduction
of the player’s utilities fees, car expenses and other costs.
22.
Furthermore, the club denies any form of pressure in connection with the
player’s allegation that he was facing pressure to leave the apartment he was
provided with.
23.
Additionally, the club mentions that it pays for the player’s car and that he is
still training with the team, as the other players.
24.
The player rejects the club’s position and reiterates his previous statements.
25.
The player points out that he has one licensed agent named P, who is assisted
by another agent, Mr. S, and that the club knew that Mr. P is the player’s agent
since the player, Mr. P, and the club’s president signed a pre-contract of
employment. In this regard, the player submitted a copy of the representation
agreement signed with Mr. P and a copy of the pre-contract of employment.
26.
Consequently, the club perfectly knew who it should get in contact with so as to
negotiate the new salary in December 2008.
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27.
The player then underlines that Mr. P’ correspondence, which was aimed to
solve the matter, remained unanswered by the club.
28.
The player also states that only two out of the alleged seventeen attempts of
negotiation the club refers to in its statement really took place.
29.
The player mentions that the club seems to have negotiated with Mr. H about
his salaries but the player maintains having no contract with this agent nor with
the company XY that Mr. H is working for.
30.
The player presented documents showing that Mr. H, who did not hold any
valid licence at the time of the described negotiations, was also acting in the
club’s interests even before O signed his employment contract with the club.
31.
About the disappointment expressed by the club in connection with the player’s
performance, the player replies that he did not have the occasion to play any
full matches, but only parts, mostly during of the second half, when the coach
let him play.
32.
The player then emphasises that the club finished in December 2008 13th of the
league, which counts 14 teams, and only won 3 matches out of 26. O underlines
the fact that he is the one who scored during the matches the team won.
33.
According to the player, 27 players out of 40 had their contracts recently
terminated. So he wonders why, if he was not satisfying to the club, the club
kept him in the squad after the first season reached its end.
34.
Finally, the player points out that he is currently training with the second team
of D.
35.
The club confirms not having held the negotiations with the agents of the
player, Mr. P or Mr. S, but also affirms that the player had informed it that Mr.
H would be his agent in K. The club also points out that Mr. P or Mr. S did not
participate in the player’s salary negotiations at the end of the 2008 season,
which means according to the club that the player and his agent knew that Mr.
H would represent him in the negotiations.
36.
The club claims that Mr S proposed the amount of USD 20,000 as salary for 2009
on 5 February 2009, and that the agent, Mr P, requested the club to pay to the
player a monthly salary of USD 15,000 after having seen that the player
apparently had received a considerably lower amount on his bank account.
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37.
The club confirms that the agents of the player never had any mutual
discussions with the club and only got involved at the beginning of February
2009.
38.
The club alleges having used the services of Mr. H in February 2008 when the
player concluded the contract, but not after August 2008 when the agent’s
license was suspended. On the other hand, the club blames the player to have
violated art. 2 and 25 of the Players’ Agents Regulations by telling the club that
Mr. H was his agent.
39.
The club points out that it wanted to honour its contractual obligations by
trying to negotiate the player’s salary and not to prematurely terminate the
employment contract with the player. The club further asserts that it already
paid a considerable signing-on fee to the player in accordance with the
employment contract and that there is no reason to “lose this money” by
terminating the contract.
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 24 March 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. 1 and par. 2 of the Procedural Rules).
2.
Subsequently, the members of the Dispute Resolution Chamber (hereinafter also
referred to as “Chamber”) referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2008) the 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 K 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 24 March
2009 and that the contract at the basis of the present dispute was signed on 20
February 2008, the 2008 edition of the said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
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4.
The competence of the Chamber and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter. The Chamber started by acknowledging the above-mentioned facts and
documentation contained in the file and took note that the Claimant and the
Respondent signed, on 20 February 2008, a three-year employment contract
valid from 20 February 2008 until 31 December 2010.
5.
Furthermore, the members of the Chamber acknowledged that the basis of the
claim lodged by the player is connected to the execution of the employment
contract relating to the salaries to be paid for the second contractual year.
6.
Consequently, the Chamber analysed the relevant description of the facts and
took note that the contractual provision to be taken into account in this regard
is article 3 of the employment contract, which deals with the monthly salary the
player was entitled to receive.
7.
Article 3 of the employment contract reads as follows:
”Monthly payment (Including tax): USD 15,000-.
- Period to pay: It shall be paid on the 25th of every month from February.
- D would be able to decide the amount of the salary of the player newly by
mutual discussion as from December 2008.”
8.
Without entering into the question as to whether the second paragraph of
article 3 of the employment contract can be considered acceptable, which will
be addressed at a later stage, the Chamber took note of the fact that according
to the player, no mutual discussions were initiated by the club until 20 March
2009 about the salary the player would receive in connection with the second
sportive season, i.e. 2009, whereas, according to article 3 of the employment
contract, the salary negotiations were to start in December 2008.
9.
The Chamber took into account that according to the player, between January
2009 and the end of February 2009, the player received the same salary as he
received during the sportive season 2008, namely USD 15,000 per month. At no
time during the proceedings was such statement contested by the club.
10.
The members of the Chamber also took note of the fact that, according to the
player, the club proposed on 20 March 2009 to pay him USD 3,000 per month,
which he refused. The player underlines the fact that he considers that it is on
purpose that the club made this proposition just before the registration period
came to its end.
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11.
It appears that in the absence of any agreement on his salary the player was
finally not registered to play with the team in official competitions and that the
club paid the minimum salary to be paid to foreign players on the basis of the
existing K labour regulations.
12.
After having duly considered the parties diverging position with respect to
salary negotiations, especially with regard to the date on which negotiations
between the parties had started, the members of the Chamber concluded that
undoubtedly, in spite of the evidenced or alleged attempts to negotiate the
salary to be paid to the player for the sportive season 2009, it appears that until
the present day no agreement at all was reached between the parties on the
salary payable by the club to the player during the sportive season 2009.
13.
Reverting to the second paragraph of article 3 of the employment contract (Cf.
point II.7 above), the Chamber highlighted that the employment contract does
not contain any kind of provision, or other sources to refer to, dealing with the
consequences in the case that no agreement is found between the club and the
player on the salary to be paid to the latter after the first season. The Chamber
deemed that such lack in the wording of the relevant provision cannot be
considered acceptable and is to be considered as the actual source of the
litigation at hand.
14.
Indeed, the members of the Chamber pointed out that the salary is an essential
element in an employment contract, as it constitutes one of the main
obligations of the employer, i.e. the compensation to be provided in return for
the duties and responsibilities of the employee.
15.
In this context, the Chamber stressed that the salary to be paid by a club to a
player for his services shall not be fixed unilaterally but evidently requires a
mutual agreement between the parties.
16.
The Chamber recalled that, in the matter at hand, in spite of apparent
negotiation efforts, until the present day the parties had found no mutual
agreement on the salary to be paid to the player during the second sportive
season. The Chamber deemed that if no mutual agreement on the essential
element of the employment contract, i.e. the salary, is reached, no valid
employment contract is in fact in place any longer.
17.
According to the player, in view of the aforementioned circumstances, the club
must be considered to have acted in breach of the employment contract and
thus to be at the basis of the early termination of the employment contract.
However the Chamber considered that whenever no mutual agreement on such
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essential contractual element is reached both parties are in fact at the origin of
the early termination of the employment contract.
18.
The Chamber took into account that, in the specific case at hand, the player in
fact continued to offer his services to the club until the present day, which was
not contested by the club, and that he wishes to pursue his career with another
club in Europe. The club, for its part, accepted the player’s services in this regard
and has indicated that it does not wish to put an end to the employment
relation with the player, pointing out that a new negotiation round on the
player’s salary would start in July 2009.
19.
In this regard, the Chamber stressed that in the light of the antagonistic
position of the parties on their wish to continue the employment relation or
not, the Chamber concluded that obviously no mutual agreement could be
reached any longer.
20.
As a consequence, the Chamber considered that the contractual relation could
not be maintained any further and decided that the contract has ended on the
present day, 16 July 2009.
21.
Bearing in mind the circumstance that the player had offered his services to the
club until the present day, the Chamber decided that the player is entitled to
receive his salary up to and including July 2009.
22.
The members of the Chamber then proceeded to establish the amount of
money payable by the club to the player. In this regard, the Chamber duly
considered the different proposals that were made by the player and the club
concerning the new salary to be paid in relation to the sportive season 2009,
however, bearing in mind that none of these proposals had represented a basis
upon which the parties had agreed.
23.
The Chamber then considered the fact that the only amount upon which both
parties had ever agreed upon in accordance with the employment contract was
the amount of the initial salary the player was paid by the club during the
sportive season 2008, i.e. USD 15,000 per month.
24.
The Chamber took into account that in January 2009 and February 2009, the
player was in fact still paid his salary on the basis of the contractual salary for
the 2008 season, i.e. USD 15,000.
25.
On account of the above, the members of the Chamber considered as
reasonable and equitable to uphold this amount of money as salaries to be paid
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for the period having started after December 2008 until the month in which the
employment contract is considered to have come to an end, i.e. July 2009.
26.
As a consequence of the aforementioned, bearing in mind that the player had
been paid his salary for January 2009 and February 2009, the Chamber decided
that the player is entitled to receive outstanding salaries totalling USD 75,000,
corresponding to a monthly salary in the amount of USD 15,000 for the months
of March 2009, April 2009, May 2009, June 2009 and July 2009.
27.
After having decided unanimously on the amount of salaries to be paid by the
club to the player in relation with the above-mentioned period of time, the
Chamber started to analyse the requests for compensation for breach of
contract lodged by the player.
28.
In this regard, the Chamber considered that the absence of mutual agreement
on the salaries payable by the club to the player being the basis of the early
termination of the employment contract, it is in fact not possible to establish
which party is liable for such early termination of the employment contract. As a
matter of fact, so the Chamber, under these circumstances both parties must be
considered to be at the basis of the early termination of the employment
contract.
29.
As a consequence, the members of the Chamber agreed that the claim for
compensation for breach of contract lodged by the player cannot be accepted.
30.
On account of all of the above, the Chamber decided that the club, D, must pay
outstanding salaries totalling USD 75,000 to the player, O.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, O, is partially accepted.
2.
The contractual employment relationship between the Claimant and the
Respondent, D, has ended.
3.
The Respondent, D, has to pay to the Claimant the amount of USD 75,000
within 30 days as from the date of notification of this decision.
4.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated deadline, 5% interest p.a. will fall due as of expiry of the fixed
time limit and the present matter shall be submitted upon request to the FIFA
Disciplinary Committee for its consideration and decision.
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5.
Any further request filed by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately of the bank
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 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:
________________________
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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