Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 August 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Carlos Soto (Chile), member
Caio Cesar Vieira Rocha (Brazil), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the player,
T,
as “Claimant / Counter-Respondent”
against the club,
M,
as “Respondent / Counter-Claimant”
regarding an employment-related contractual dispute
arisen between the parties.
I.
Facts of the case
1.
On 29 January 2008, the player, T (hereinafter: Claimant, Counter-respondent
or player), and the club M (hereinafter: Respondent, Counter-claimant or club),
signed an employment contract valid until 30 May 2011. This contract, signed
by both parties, consisted of a section in the language H on a standard form
referred to as “player contract” with an addendum in English.
2.
In its preamble, the addendum stipulated that its provisions will “come instead
of or in addition to” the provisions of art. 6a) and 8 of the “player contract”.
3.
The addendum and the “player contract” stipulated, in particular, that the
Claimant would receive the following throughout the duration of his contract:
a.
a signing-on bonus of 102,667;
b.
for the end of the 2007-08 season:
i. a gross monthly salary of 55,001 for four months;
ii. living costs in the gross amount of 8,100 for four months;
c.
for each of the three other seasons:
i. a gross monthly salary of 55,001 for ten months;
ii. living costs in the gross amount of 8,100 for ten months.
4.
In a letter dated 29 January 2008, the club confirmed to the player’s agent that
the payments indicated in the employment contract were calculated as gross
amounts based on the cumulative salary over three years and four months, in
other words EUR 300,000 net plus EUR 14,000 net for the signing-on bonus.
5.
The addendum also stipulated that the “the club will allow the player to be
transferred to a club outside of country I for an amount of not less than EUR
1,120,000 net”.
6.
The “player contract” also contained an arbitration clause, which stipulated
that any disputes in relation to the “player contract” would be submitted to
an arbitrator nominated in accordance with the regulations of the Arbitration
Institute of The Football Association I.
7.
In a fax dated 31 January 2009, the Respondent confirmed to the Claimant’s
agent that the Respondent would agree to terminate the employment
contract without transfer compensation falling due on the condition that the
Claimant would not receive any compensation and that the transfer was
conducted during the transfer period in the winter of 2009.
Page 2/14
8.
On 12 March 2009, the Claimant lodged a complaint against the Respondent
with FIFA, alleging that their employment relationship had deteriorated
during January 2009 following the breakdown of negotiations in relation to
the Claimant’s proposed transfer to the club A.
9.
According to the Claimant, the Respondent had removed him from the squad
and had signed a player from the country P, even though, at the time, the
Respondent had already registered five foreign players while there is a quota
in place in country I, limiting each club to a maximum of five foreign players.
Furthermore, the Claimant had not been registered as a squad member for the
2008-2009 season on the website of The Football Association I.
10.
Moreover, the Claimant maintains that, on 12 February 2009, the Respondent’s
disciplinary committee had passed a decision and condemned him with a fine
equal to three monthly salaries for having been sent off during a match and
for having criticised the Respondent’s management during an interview, an
allegation that was denied by the Claimant. The Claimant stated that the
decision was illegal and that it was disproportionate and merely designed to
force him to terminate his contract.
11.
The Claimant asserted that he had not received his salary since the
pronouncement of the decision.
12.
The Claimant also alleges that he had been subjected to moral harassment. In
particular, he alleged that he had been given inhumane training times,
explaining that he had had to train alone and most often between 05.45 am
and 08.00 am. Furthermore, he had to face humiliating treatments such as the
withdrawal of his SIM card, and with his car being exchanged for a smaller
vehicle. The player further alleges that the club president had told the player’s
agent that the player was suffering from Hepatitis B, which he did not know,
and which would make it impossible for him to fulfil his contract.
13.
On 25 February 2009, the Claimant, through his lawyer, gave the Respondent
notice to end the dispute or to provide him with explanations.
14.
On 24 April 2009, the Claimant left country I to rejoin his family in the country
X, explaining that the Respondent had still not made him a satisfactory
proposal to resolve the situation and that he had not been paid his salaries for
three-and-a-half months.
15.
Given all these circumstances, the Claimant concluded that the Respondent
had unilaterally breached the employment contract without just cause. The
Claimant consequently demands compensation for such breach.
Page 3/14
16.
The Claimant requests that only the addendum will be considered, as the
“player contract” had been written in H, a language he does not understand.
17.
As regards his financial claim, the Claimant stated that he was entitled to EUR
314,000 under the terms of his employment contract, as confirmed by the
Respondent in its letter dated 29 January 2008 addressed to the Claimant’s
agent. The Claimant admitted having received EUR 113,578 and consequently,
he asks to be awarded the amount of EUR 200,422 for the breach of contract
by the Respondent.
18.
The Claimant also claims a fix sum of EUR 50,000 as compensation for all of the
emotional distress that he had suffered.
19.
In addition, the Claimant requests that late-payment interest be added until
the Respondent has paid him all outstanding amounts and that appropriate
disciplinary sanctions be imposed on the Respondent.
20.
In reply to the claim, the Respondent stated that the FIFA Dispute Resolution
Chamber was not competent to hear this dispute as the “player contract”
clearly stipulated that any disputes between the parties would be submitted to
the arbitration body of The Football Association I. The Respondent stressed
that this deciding body met all of the conditions laid down in art. 22 lit. b) of
the Regulations on the Status and Transfer of Players.
21.
According to the Respondent, the Claimant could not use the fact that the
“player contract” had been written in H in support of his argument as there
was a paragraph that stated “I confirm that this contract has been read to me
and explained to me in my own language. I understand the meaning of the
contract and freely agree to sign the contract.”
22.
The Respondent also stated that it was clear that the amounts stated in the
letter dated 29 January 2008, which the Claimant was using as the basis for his
claim, had only been an estimate sent to the player’s agent in order to give
him a general idea of the total value of the contract, while taking into account
the exchange rate between the euro and the currency in country I on the day
the contract was signed.
23.
The Respondent stated that it had had great hopes for the Claimant, as
evidenced by the fact that it had paid EUR 200,000 to the Claimant’s former
club to secure his transfer.
Page 4/14
24.
In addition, the Respondent stated that it had no intention of letting the
Claimant leave, as proven by the fact that in August 2008, the Respondent had
given the Claimant an advance on his salary amounting to 194,708, which
corresponded to four net monthly salaries. Furthermore, the Respondent had
intended to allow the Claimant to repay this advance over a period of ten
months, starting in August 2008.
25.
However, at the start of the 2008-2009 season, the Claimant’s attitude had
totally changed. He was no longer taking training seriously and his behaviour
had deteriorated to such an extent that he deliberately earned a red card
during a match against the club’s main rival on 26 January 2009. The Claimant
had also criticised the club, its president and its coach during an interview with
a sports newspaper. All of this had led to the club’s disciplinary committee
imposing a fine equal to three monthly salaries.
26.
The Respondent emphasised that the Claimant has never explained his
behaviour. According to the Respondent, the only possible explanation was
that the Claimant had decided to leave the club at the start of the 2008-2009
season.
27.
The Respondent maintained that it never tried to leave the Claimant out of its
squad, contrary to the Claimant’s claims, which is proven by the fact that the
Claimant had taken part in a match on 26 January 2009, close to the end of the
transfer period.
28.
Having recognised that the situation was not improving for either party, the
Respondent had made two proposals to the Claimant:
a. either the Claimant accepted a loan to another I club for the
remainder of the season; or
b. the Respondent would agree to terminate the contract without
transfer compensation, on the condition that the Claimant renounced
all right to his remaining salaries.
29.
The Claimant then rejected the Respondent’s two proposals. As a result, the
Respondent had to sign another foreign player in order to improve the
situation. The Respondent was able to proceed as such because the regulations
of The Football Association I allow a club to replace a foreign player with
another foreign player, provided that:
a. the club pledges to pay the player’s salary until the end of the season;
b. the club no longer allows the player to take part in matches until the
end of the season;
c. the club allows the player to train;
Page 5/14
d. the club submits a document giving an irrevocable guarantee that the
club will release the player unconditionally if requested to do so by
any club interested in the player.
30.
The Respondent alleges having met these obligations, but the player informed
the club’s president that he would be leaving the club. In response, the club’s
president informed him that this would constitute a violation of his contract.
31.
Nevertheless, given the fact that the Claimant could no longer train with the
team in accordance with the regulations of The Football Association I, a
specific training schedule had been drawn up for him. Due to practical reasons,
the only suitable time for this training had been early morning sessions on a
number of days.
32.
The Respondent further stated that the Claimant had been given a rental car.
The Respondent had wanted to change the car, but the Claimant had been
opposed to this.
33.
With regard to the SIM card, the Respondent held that the Claimant’s
telephone bills were debited in advance directly from his salary. However, as
the Claimant had been ordered to pay a fine equalling to three monthly
salaries, the Respondent had had no way to pay the bills, so the Claimant had
been asked to accept a pay-as-you-go SIM card.
34.
Given all of the above, the Respondent is demanding that the Claimant’s claim
be rejected.
35.
Furthermore, the Respondent lodged a counterclaim as it considers that it is
the Claimant who breached the employment contract without just cause.
36.
Consequently, the Respondent asks to be awarded compensation for the
breach of contract by the Claimant, detailed as follows:
a. the “amortised part” of the transfer compensation paid by the
Respondent for the Claimant (EUR 200,000) equalling EUR 140,000;
b. the market value of the Claimant, in accordance with the employment
contract (EUR 1,120,000) less the transfer compensation paid by the
Respondent, which represents EUR 920,000;
c. the investment made by the Respondent to sign another player, EUR
200,000;
d. The Respondent thus claims from the Claimant the total amount of
EUR 1,260,000.
Page 6/14
37.
The Respondent also asks that sporting sanctions be imposed on the Claimant
as the latter had violated the contract during the protected period.
38.
The Claimant replied that the ”player contract” dated 29 January 2008 had
been written in H, a language he did not understand. Furthermore, the
Claimant denied ever having had a translation of the contract, whether oral or
written. He stated that he had asked for a translation, but this request had
been refused. This refusal had been a malicious step, therefore the Respondent
could no longer use the contract to support its case, but only the addendum,
which had been written in English.
39.
Furthermore, the Claimant considers that the Respondent had not proven that
the conditions laid down by art. 22 lit. b) of the Regulations on the Status and
Transfer of Players had been met by the I arbitration tribunal.
40.
The Claimant stressed that the advance on his salary had been granted in
recognition of his excellent performances on the pitch.
41.
According to the Claimant, the Respondent had attempted, in vain, to transfer
him to another club in January 2009 in order to receive the transfer
compensation stipulated in the addendum.
42.
The Claimant also stated that the Respondent’s offer of a “free” transfer had
only been made on the final day of the winter transfer period.
43.
The Claimant stated that he had behaved impeccably at all times and that the
disciplinary committee’s decision had been designed to encourage him to leave
the Respondent.
44.
The Claimant underlined that the Respondent admitted to having “frozen”
him in accordance with the regulations of The Football Association I. However,
the Claimant had not been able to train with the team. Therefore, the third
condition laid down by country I regulations had not been respected.
Furthermore, if the Respondent was now claiming such an amount in the form
of compensation, the club had not given an irrevocable guarantee that it
would release the player upon request.
45.
With regard to the Respondent’s counterclaim, the Claimant stated that only
the Respondent had violated the contract without just cause. His departure
from country I had been the logical outcome of the Respondent’s conduct.
46.
The Claimant therefore rejected the Respondent’s counterclaim and stood by
all of his grievances.
Page 7/14
47.
The Respondent, for its part, maintained that all arguments in accordance with
which the Claimant does not understand H and that therefore he could not
understand the contents of the “player contract” should simply be discarded.
First of all, the Claimant had been helped by his agent as well as by another
agent who both perfectly understood the contents of the contract and had
explained it to him.
48.
Furthermore, the Claimant had never requested a translation of the contract.
The Respondent’s president had even verbally translated the contents of the
contract for him.
49.
According to the Respondent, the Claimant could only confirm that the
advance on his salary had been proof of the Respondent’s goodwill and this
had also been proof of the Respondent’s intention to abide by the
employment contract until it expired.
50.
The Claimant had always been allowed to train and he had even complained
about this.
51.
With regard to the I arbitration tribunal, the Respondent stated that this
deciding body fully met all of the conditions laid down in art. 22 lit. b) of the
Regulations on the Status and Transfer of Players. The Respondent in this
regard, provided FIFA with the Regulations of the Institute of Arbitration of
the Football Association I.
52.
The fact that the Respondent was demanding compensation from the
Claimant was in no way linked to the irrevocable guarantee to release the
Claimant upon request. This demand simply meant that the Respondent
believed that the Claimant had violated the contract without just cause, and
that as a result, the Respondent was entitled to compensation.
53.
In his final statements with respect to the Respondent’s counterclaim, the
Claimant stood by his position and his grievances and rejected the
Respondent’s statement in relation to the jurisdiction of the Dispute
Resolution Chamber.
Page 8/14
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) 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 12 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. 2 and 3 of the Procedural Rules).
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the Procedural
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction
in the light of articles 22 to 24 of the Regulations on the Status and Transfer of
Players. In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the 2008 edition of the aforementioned Regulations, the Dispute Resolution
Chamber shall adjudicate on employment-related disputes between a club and
a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation involving a player and a club
regarding the alleged breach of an employment contract.
4.
However, the Chamber acknowledged that the Respondent, with reference to
art. 22 lit. b) of the Regulations, contested the competence of FIFA to deal
with the present matter due to the fact that the “player contract” contained
an arbitration clause which stipulates that all litigations will be submitted to
the arbitration body of the Football Association I.
5.
The Chamber noted that the Claimant argued that the arbitration tribunal of
the Football Association I did not guarantee him impartiality and objectivity,
for which reason, he did not recognise its jurisdiction to deal with the matter
at hand and he was entitled to refer the matter to FIFA.
6.
In this respect and regardless of the fact that the relevant employment
contract contains this specific jurisdiction clause, the Chamber emphasised that
in accordance with art. 22 lit. b) of the Regulations, it is competent to deal
with an international matter such as the one at hand unless an independent
arbitration tribunal guaranteeing fair proceedings and respecting the principle
of equal representation of players and clubs has been established at national
level within the framework of the association and/or a collective bargaining
agreement. With regard to the criteria to be fulfilled in order to be classified
Page 9/14
as an independent arbitration tribunal guaranteeing fair proceedings, the
Chamber also referred to FIFA Circular no. 1010 dated 20 December 2005.
7.
Consequently, after careful study of the relevant documentation submitted by
the Respondent, the members of the Chamber held that the Respondent failed
to prove that an independent arbitration tribunal in compliance with the
requirements of the FIFA regulations has been established in country I.
8.
In view of the above, the Chamber established that the Respondent’s objection
to the competence of FIFA to deal with the present matter has to be rejected
and confirmed that the Dispute Resolution Chamber is competent, in
accordance with art. 22 lit. b) of the Regulations, to deal with the present
matter as to the substance.
9.
Subsequently, 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
12 March 2009, the 2008 edition of the Regulations on the Status and Transfer
of Players (hereinafter: Regulations) is applicable to the matter at hand as to
the substance.
10. Having established its competence and the applicable regulations, the Dispute
Resolution Chamber examined the facts and documents submitted by the
parties during the investigation of this case as well as their respective
statements. The members of the Chamber noted that the Claimant and the
Respondent signed an employment contract on 29 January 2008, valid until 30
May 2011, consisting of a section in H referred to as “player contract” and an
addendum in English. In particular, the Chamber noted that according to the
relevant employment contract, the Claimant was entitled to a signing-on
bonus of 102,667, a gross monthly salary of 55,001, and living costs in the
gross monthly amount of 8,100.
11.
The Chamber then reverted to the Claimant’s position that the “player
contract” shall not be taken into consideration, as it had been written in H, a
language that he does not understand. In this respect, the Chamber
emphasised that a party signing a document of legal importance without
knowledge of its precise contents, as a general rule, does so on its own
responsibility. The members of the Chamber rejected the Claimant’s argument
in this regard and agreed that both the “player contract” and the addendum,
which clearly refers to the “player contract” and which forms an integral part
of the employment contract at the basis of the present dispute, shall be
considered the employment contract binding the contractual parties.
Page 10/14
12.
The Chamber then highlighted that considering the conflicting positions of the
parties involved in the present dispute, it had to establish whether the
employment contract had been unilaterally terminated without just cause and
if so, which party was responsible for the early termination of the contractual
relationship in question. The Chamber also underlined that subsequently, if it
were found that the employment contract was terminated without just cause,
it would be necessary to determine any financial and/or sporting consequences
for the party that terminated the relevant employment contract.
13.
The members of the Chamber noted that the Claimant alleges that the
employment relationship with the Respondent had deteriorated during
January 2009 after the latter tried unsuccessfully to transfer the Claimant to
the club A. In particular, the Claimant maintains that he had been removed
from the Respondent’s squad.
14.
The Claimant further alleges having been subject to moral harassment and
that he had, amongst other things, to train alone very early in the morning.
15.
The Chamber further remarked that the Respondent passed a disciplinary
decision on 12 February 2009 and fined the Claimant with three monthly
salaries for having been sent off during a match and for having criticized the
Respondent’s management during an interview, which allegation was denied
by the Claimant. As a consequence, the Claimant had not received any salary as
from the date of the disciplinary sanction.
16.
The Respondent, for its part, did not refute the Claimant’s allegation that he
had not received any salary since the pronouncement of the disciplinary
decision.
17.
As regards the said disciplinary sanction consisting of a fine amounting to
three monthly salaries, the Chamber noted that the said decision was issued by
the club president after the Claimant had received a red card and allegedly
had criticised the club towards the press. The members of the Chamber,
though, considered such fine to be excessive and disproportionate and,
consequently, the Chamber deemed that such fine basically cannot be
considered a valid reason not to pay the Claimant’s salary.
18.
The members of the Chamber further took into account that the Respondent
alleges having paid to the Claimant an advance of four monthly salaries to be
deducted partially from the monthly salary payments as of August 2008, which
allegation was not contested by the Claimant, who, as a matter of fact,
pointed out that such payment was made in advance due to his excellent
performance on the pitch. In this context, the members of the Chamber also
noticed that the aforementioned disciplinary decision refers to a 40% advance
Page 11/14
payment of the Claimant’s annual salary in the beginning of the season and
that the remainder of such advance payment that has not been set off yet,
shall be set off from the remainder of the player’s salaries for the current
season.
19.
In continuation, the Chamber carefully studied the documentation remitted by
the Respondent in support of its position relating to the aforementioned
advance payment and established that the Respondent had deducted
approximately 50% of the Claimant’s monthly remuneration as from August
2008 until December 2008. In other words, 2,5 months out of the 4 months’
advance payment had been deducted from the player’s remuneration as at the
beginning of January 2009. In this context, the members of the Chamber also
noticed that the Claimant’s salary was usually remitted around the 7 th to 10th
day of the month following the month for which the salary payment was due.
20.
According to the Claimant, after having, in vain, invited the Respondent to
end the dispute, the Claimant left I, on 24 April 2009, in order to return to his
family in the country X.
21.
On account of the above, the Dispute Resolution Chamber concluded that at
the time the Claimant left I, on 24 April 2009, he had been in possession of the
advance of 1 to 1,5 monthly salaries, whereas no salary payments had been
made as of the day on which the disciplinary decision was passed.
22.
In light of the above, with regard to the early termination of the employment
contract at the centre of this dispute, considering the above-mentioned
established facts in the specific case at hand, in particular, the advance
payment of the Claimant’s salary, the members of the Dispute Resolution
Chamber concluded that the non payment by the club of the Claimant’s salary
as of the pronouncement of the disciplinary decision on 12 February 2009 did
not constitute a just cause for the player to leave the club on 24 April 2009. In
addition, the Chamber deemed that the circumstances outlined in number
I./12. above cannot be considered a valid reason to prematurely put an end to
the contractual relationship. Consequently, the Chamber agreed that by
leaving the Respondent on 24 April 2009 the Claimant had acted in breach of
the employment contract.
23.
However, on the basis of the circumstances of the specific case at hand, the
Chamber deemed it important to turn its attention to the Respondent’s
conduct with regard to the execution of the employment contract.
24.
First of all, the Chamber noted that the Respondent had not registered the
Claimant as a squad member for the 2008/2009 season.
Page 12/14
25.
This fact was considered confirmed by the Respondent’s assertion that it
signed another foreign player in replacement of the Claimant referring to the
regulations of the Football Association I. In this regard, the Chamber noted
that such regulations allow the Respondent to register another foreign player
on condition that the Respondent inter alia pays the Claimant’s salaries and
guarantees that it will unconditionally release the Claimant if requested to do
so by any club interested in the Claimant.
26.
In view of the above, the Chamber was of the opinion that by leaving the
Respondent, the Claimant actually had acted in the benefit of the Respondent,
who seemingly was no longer interested in the Claimant’s services.
27.
The Dispute Resolution Chamber emphasized that the aforesaid is all the more
obvious as the Respondent had proposed to the Claimant to terminate the
employment contract or to accept a transfer on a loan basis to another club.
Moreover, the Respondent offered a “free” transfer to the Claimant on the
final day of the winter transfer period.
28.
In view of all the above, the Chamber held that, in fact, the Respondent also is
to be held liable for the early termination of the employment relationship
without just cause.
29.
As a consequence, the Chamber concluded that both the Claimant and the
Respondent are at fault with respect to the early termination of the
employment contract.
30.
In view of all the above, the Dispute Resolution Chamber concluded its
deliberations by rejecting the claim of the Claimant and the counterclaim of
the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, T, is rejected.
2.
The claim of the Counter-claimant, M, is rejected.
*****
Page 13/14
Note relating to the motivated decision (legal remedy):
According to art. 63 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Page 14/14