Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2007,
in the following composition:
Slim Aloulou (Tunisia), President
Michele Colucci (Italy), Member
Mick McGuire (England), Member
Mario Gallavotti (Italy), Member
Mohamed Mecherara (Algeria), Member
on a dispute between the
Player A,
the “Claimant”/”Counter-Respondent”
and the
Club B,
the “Respondent”/”Counter-Claimant”
regarding a contractual dispute arisen between the above-mentioned parties.
I.
Facts of the case
1.
The player A (hereinafter; the player) and the club B (hereinafter; the club)
concluded an employment contract valid from 1 January 2006 to 30 June 2007.
2.
According to the contract, the player was entitled to
o a signing-on fee of EUR 133,000 due on 28 February 2006
o monthly salary of EUR 12,200, paid from April 2006 to June 2007
o match bonuses for 50 official league matches, amounting to:
• EUR 3,680 in case he played as from the start of the relevant match
• EUR 2,760 if he entered the game later
• EUR 1,840 if he stayed on the bench
• Nothing was to be paid if the player was not summoned
3.
Furthermore, according to the private article 1 of the contract, if the club was
relegated at the end of the season 2005/06, the employment contract shall be
considered as terminated, and moreover, the player shall be entitled to receive
only the maximum amount of EUR 166,666 from the club for the effective
duration of the contract. The exact wording of private article 1 of the contract is
as following:
“If club B goes to the 2nd division [...] at the end of 2005-2006 season, the
player will not demand any rights or payments for the 2006-2007 season,
at the same time if he has received more than 166,666 Euros at the end
of 2005-2006 season, till 31.05.2006 date he will pay back overpaid
money, and will not demand any right or payment and will be free to get
his transfer certificate and cancel his agreement as single sided to be
transferred any club he wishes.”
4.
On 6 March 2006, the player sent a payment reminder to the club for the
signing-on fee.
5.
On 17 April 2006 the player sent a payment reminder to the club for the signingon fee, one monthly salary and eleven match bonuses.
6.
On 30 April 2006, the player unilaterally terminated the employment contract
due to the club’s non-respect of its financial obligations.
7.
According to information received from the Association of the club, the player
played for the club in eight matches as from the beginning of the match,
entered the game later in six matches, and stayed on the bench in one match.
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Player A/ Club B
8.
At the end of the season 2005/06, the club was relegated from the first to the
second division.
9.
On 17 May 2006, the player filed a claim against the club before FIFA for
unjustified breach of contract, since the club so far had paid him only EUR 65,000
on account of the signing-on fee and EUR 9,000 on account of match bonuses.
The payment of EUR 9,000 would, however, not have to be considered as the
fulfilment of contractual obligations, but as extra bonuses distributed equally to
all players of the team.
10.
In view of the above, the player claims from the club for the following
outstanding amounts:
•
•
•
•
•
•
11.
signing-on fee
three monthly salaries
match bonuses
total
paid
outstanding
EUR 133,000
EUR 36,600
EUR 38,640
EUR 208,240
EUR 65,000
EUR 143,240
Furthermore, the player claims for the following amounts on account of
compensation for breach of contract:
o
o
remaining value of contract:
• salaries for season 2006/07
• match bonuses season 2006/07
total
EUR 146,400
EUR 126,315
EUR 272,715
12.
In view thereof, the player claims in total for the payment of the amount of EUR
415,955 plus interest for late payment.
13.
On 31 May 2006, the club responded to the claim and thereby mentioned that
the player was paid EUR 100,180 so far. Considering the fact that the club was
relegated at the end of the season 2005/06, and in view of the relevant
contractual clause, the contract between the player and the club was terminated
and the player would be entitled to a maximum amount of EUR 166,000 only.
Thus only the amount of EUR 66,000 still had to be paid to the player.
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Player A/ Club B
14.
On 5 July 2006, the club amended its position and stated that the player was
paid EUR 107,208 in total.
15.
The club submitted bank statements, according to which in total the amounts of
EUR 68,500 and approximately EUR 12,000 were paid to the player.
16.
Finally, the club filed a counterclaim against the player since the latter had left
the club without permission in the beginning of May 2006. Therefore, the club
shall not have to pay the difference between the paid amount and EUR 166,000
to the player, but the latter shall be condemned to pay to the club the amount
of EUR 100,000, amount which was paid to the player’s former club for his
transfer.
17.
On 17 October 2006, the player submitted his position with regard to the club’s
answer and counterclaim, and in this regard first of all mentioned that in his
understanding of the contract, in case of a relegation of the club at the end of
the season 2005/06, he would have a unilateral option to terminate the contract
or not. As he was satisfied with the financial conditions of the contract, he
indeed had planned to remain with the club regardless of a possible relegation.
18.
Therefore, the player is of the opinion being entitled to claim for the salaries
until the expiry of the contract on 30 June 2007.
19.
With regard to the outstanding payments, the player indicated that in the
meantime, the club had paid to his account another EUR 4,000.
20.
In conclusion, the player claims for outstanding payments in the amount of EUR
139,240 and for EUR 272,715 as compensation for breach of contract.
Consequently, the club’s counterclaim shall be rejected.
21.
On 7 December 2006, the club submitted its final position on the matter, and
thereby referred to its former submissions.
II.
Considerations of the Dispute Resolution Chamber
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Player A/ Club B
1.
First of all, the Dispute Resolution Chamber had to analyse whether it was
competent to deal with the matter at stake. In this respect, it referred to art. 18
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 17 May 2006, as a consequence the Chamber concluded
that the revised Rules Governing Procedures (edition 2005) on matters pending
before the decision making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1
of the above-mentioned Rules states that this Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in combination with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a club and a player with different
nationality regarding a dispute in connection with an employment contract.
4.
Subsequently, the members of the Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at
the basis of the present dispute was signed in January 2006 and the claim was
lodged at FIFA on 17 May 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of
Players (edition 2005, hereafter: the Regulations) are applicable to the case at
hand as to the substance.
5.
In continuation, and entering into the substance of the present 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 documentation contained in
the file, and in this respect, in view of the circumstances of the present case, first
of all stated that the following three questions had to be tackled:
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Player A/ Club B
I. Which is the duration of the labour contract between the parties involved
in the matter at stake?
II. Was the anticipated unilateral termination of the labour contract by the
player on 30 April 2006 justified or not?
III. Which are the consequences of the termination of the labour contract by
the player?
6.
As far as the duration of the employment contract in question is concerned, the
Chamber first of all acknowledged that the parties to the present employment
contract basically agreed that the 30 June 2007 shall be the termination date of
their contract. However, the Chamber also took note of the contractually agreed
condition that in case of a relegation of the club to the 2nd League at the end of
the season 2005/06, the contract in question shall be considered as terminated by
the end of that season. In this respect, the Chamber also noted that the club, at
the end of the season 2005/06, was indeed relegated to the 2nd League.
7.
In view of these facts, the Chamber referred to the general legal principle that
the parties to an employment contract may agree that the anticipated
termination of a short-term employment contract is subject to the fulfilment of a
condition, as long as such condition is not of a potestative nature, i.e. not
depending on the will of a party to the contract or a third party. The condition
of the relegation of a club is certainly not a potestative condition, since such
relegation is depending on other circumstances than the will of a party to the
employment contract. In fact, it has to be presumed that the will of clubs and
players is always to avoid relegation. The fulfilment of the condition of
relegation is thus solely depending on sporting circumstances. In other words,
the condition of relegation is a casual condition, and not a potestative condition.
In this respect, the Chamber concluded that parties to an employment contract
are, as a general rule, entitled to stipulate that the termination of an
employment contract is subject to a casual condition.
8.
In conclusion, the Chamber stated that in view of the fulfilment of the agreed
casual condition of relegation at the end of the season 2005/06, the contract in
question was terminated by the end of that season. The exact date of the end of
the season was not specified in the contract in question. However, considering
that the season in the country of club B goes from July to June of the following
year, the end of a season is to be considered to be on 30 June of every year.
Therefore, the duration of the employment contract in question was from 1
January to 30 June 2006.
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Player A/ Club B
9.
Besides the above, the Chamber stated that the clear wording of the relevant
contractual clause does not allow its interpretation as a unilateral option of the
player to terminate or not his employment contract at the end of the season
2005/06 in case of relegation of the club. The player’s respective arguments were
thus rejected.
10.
In continuation, the Chamber turned to the question whether the unilateral
termination of the labour contract by the player on 30 April 2006 was justified or
not. In this respect, the Chamber referred to a general principle of labour law
according to which the persistent failure of a club (employer) to respect its
contractual obligations, in particular of financial nature, towards a player
(employee) without just cause is to be considered as an unjustified breach of an
employment contract by the club, consequently granting the player a just cause
to unilaterally terminate the employment contract.
11.
In order to verify whether the behaviour of the club is to be considered as a
persistent failure to comply with its contractual obligations towards the player,
the Chamber had first of all to analyse which amounts the player was entitled to
receive by the club under the employment contract in question until he
unilaterally terminated the contract, and which amounts were, in fact, remitted
to him by the club.
12.
Concerning the amounts the player was entitled to receive, the Chamber first of
all noted that according to private article 1 of the employment contract, if the
club was relegated at the end of the season 2005/06, the employment contract
shall not only be considered as terminated by the end of that season, but
moreover, the player shall be entitled to receive only the maximum amount of
EUR 166,666 from the club for the effective duration of the contract. As the club
was, in fact, relegated at the end of the season 2005/06, the Chamber concluded
that the player was therefore entitled to receive from the club the total amount
of EUR 166,666 only, regardless of any amount beyond that total amount that
could be calculated in accordance with the contractual clauses regarding the
signing-on fee, salaries and match bonuses. In view thereof, the Chamber
concluded that the player was entitled in accordance with the employment
contract to the signing-on fee of EUR 133,000 and three monthly salaries of EUR
12,200 each, totalling approximately to EUR 166,666, the total amount which the
player was entitled to receive according to the employment contract and
particularly its private article 1. In view of this, the Chamber moreover concluded
that the match bonuses stipulated in the employment contract cannot be taken
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Player A/ Club B
into consideration, as they would effect a significant excess of the payable
amount of EUR 166,666.
13.
After having declared the above, the Chamber had to analyse which amounts
had become due until the player terminated the employment contract in
question and which amounts were, in fact, remitted to him.
14.
In this respect, the Chamber first of all declared that, as far as monthly salaries
are concerned, the player was entitled to receive one monthly salary until he
terminated the contract, i.e. the salary for the month of April 2006. The monthly
salary, according to the employment contract, amounts to EUR 12,200. In this
respect, the Chamber noted on the one hand that the player admitted that he
had received by the club in total EUR 65,000 on account of the signing-on fee,
and EUR 9,000 on account of match bonuses, which would, however, not have to
be considered as the fulfilment of contractual obligations, but as extra bonuses
distributed equally to all players of the team, but that he contested having been
paid the salary for the month of April 2006. On the other hand, the Chamber
took note of the statement of the club contradicting the player’s position,
according to which the player was paid in total the amount of EUR 107,208. And
finally, the Chamber took note of the bank statements submitted by the club,
according to which the player was paid in total the amounts of EUR 68,500 and a
sum in the national currency of the club, which amounts to approximately EUR
12,000. In view of the parties’ contradicting positions, the Chamber referred to
the principle of the burden of proof, according to which each party has to prove
the facts upon which it relies in order to establish its rights, and therefore
concluded that the only reliable information at its disposal with regard to the
payments made and received lies in the bank statements submitted by the club.
15.
The Chamber consequently concluded that the player was paid by the club until
30 April 2006, inter alia, a sum in the national currency of the club, which is
approximately EUR 12,000. In lack of any evidence for the player’s position that
his salary for the month of April 2006 was not paid, the Chamber concluded that
the payment of a sum to the player in the national currency of the club, which is
approximately EUR 12,000, is to be considered as the payment of the salary for
the month of April 2006. No monthly salaries were thus outstanding at the
moment of the player’s unilateral termination of the employment contract.
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Player A/ Club B
16.
With respect to the signing-on fee, the Chamber stated that the agreed fee for
the signature of the contract was EUR 133,000. However, as the contract was
terminated by the player already by the end of April 2006, i.e. after four out of
six months, the Chamber concluded that the player was entitled at that moment
only to 2/3 of the said fee, which is EUR 88,666. Here again, in view of the parties’
contradicting positions with regard to the payments made and received, the
Chamber referred to the bank statements submitted by the club as the only
reliable information, and based thereupon concluded that, besides the salary of
April 2006, the player was also paid the amount of EUR 68,500, which is to be
considered as a down payment on the signing-on fee. Consequently, at the
moment of the unilateral termination of the employment contract, EUR 20,166
of the agreed signing-on fee to the player was unpaid and outstanding, i.e. less
than ¼ of the signing-on fee, to which the player is entitled.
17.
Finally, concerning the match bonuses, the Chamber declared that, as outlined
above, the player was not entitled to receive any match bonus from the club, as
this would effect a significant excess of the amount payable to the player in
accordance with private article 1 of the employment contract, i.e. EUR 166,666.
18.
In conclusion, the Chamber stated that with respect to the club’s financial
obligations towards the player until the unilateral termination of the
employment contract by the latter, the club had entirely fulfilled its salary
obligations, but had not paid the player approximately ¼ of the signing-on fee,
which had become due until the moment of termination. In view thereof, the
Chamber came to the conclusion that the behaviour of the club is not to be
considered as a persistent failure to comply with its contractual obligations.
Therefore, the Chamber decided that the player did not have a just cause to
unilaterally terminate the employment contract per 30 April 2006, and that since
he had done so nevertheless, he had breached the employment contract in
question without just cause.
19.
Finally, and with respect to the above-mentioned conclusion, the Chamber had
to analyse which are the consequences of the unjustified breach of contract by
the player. In this regard, the Chamber first of all noted that the club claimed for
the payment of the amount of EUR 100,000 from the player, amount which was
uncontestedly paid by the club to the player’s former club for his transfer.
Furthermore, the Chamber referred to art. 17 para. 1 of the Regulations, which
contains some parameters for the calculation of the compensation that has to be
paid to the damaged party in case of an unjustified breach of contract. The said
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Player A/ Club B
provision mentions in particular that the fees and expenses paid or incurred by
the club for the engagement of the player, amortised over the term of the
contract, have to be taken into consideration. As the club had paid to the
player’s former club the amount of EUR 100,000 in order to engage the player,
and since the employment contract was terminated after 2/3 of its initially agreed
duration, the Chamber decided that the amount of EUR 33,333 was still not
amortised. Therefore, the Chamber concluded that the player has to pay to the
club as compensation for unjustified breach of contract, the amount of EUR
33,333. As the club did not make valid any further damage, the Chamber
established that the club’s damage resulting from the unilateral breach of
contract by the player amounts to EUR 33,333.
20.
In conclusion, the Chamber stated that, as outlined above, a part of the signingon fee owed by the club to the player on the basis of the employment contract,
i.e. EUR 20,166, is still outstanding. In light of this, the Chamber decided that
this amount is to be compensated against the amount which is to be paid by the
player to the club for the unjustified breach of contract, i.e. EUR 33,333. As a
result, the player has to pay to the club the amount of EUR 13,167.
21.
Moreover, to this amount, the Chamber added the amount of EUR 4,000, which,
according to the player’s submission dated 17 October 2006, was paid by the club
to him after he had terminated the employment contract at stake. In view
thereof, the total amount of EUR 17,167 is to be paid to the club by the player.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player A is rejected.
2.
The counterclaim of the club B is partially accepted.
3.
The player A has to pay the amount of EUR 17,167 to the club B.
4.
The amount due to the club B has to be paid by the player A within the next
30 days as from the date of notification of this decision.
5.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
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Player A/ Club B
6.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as from the first day of expiry of the
aforementioned deadline.
7.
The club B is directed to inform the player A immediately of the account number
to which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
8.
Any further request of the club B is rejected.
9.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives
issued by the CAS, copy of which we enclose hereto. Within another 10 days
following the expiry of the time limit for the filing of the statement of appeal,
the appellant shall file with the CAS a brief stating the facts and legal arguments
giving rise to the appeal (cf. point 4 of the directives). The full address and
contact numbers of the CAS are the following:
Château de Béthusy
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
[email protected]
www.tas-cas.org
For the
Dispute Resolution Chamber:
Markus Kattner
Deputy General Secretary
Encl.
CAS directives
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Player A/ Club B