Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 August 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Mario Gallavotti (Italy), member
on the claim presented by the player
P,
as “Claimant/Counter-Respondent”
against the club
K,
as “Respondent/Counter-Claimant”
and the club
S,
as “intervening party”
regarding an employment related contractual dispute arisen between
the club K and the player P.
I.
Facts of the case
1.
On 11 July 2004, the player P (hereafter: the Claimant or the player) and the T club
K (hereafter: the Respondent or the club) signed a two-year employment contract
for the 2004-05 and 2005-06 football seasons, valid from the date of signature until
30 May 2006.
2.
The employment contract provides for the following net remuneration:
For the 2004-2005 season:
USD 105,000 by 30 July 2004;
USD 100,000 (10 monthly salaries of USD 10,000 from August 2004 to
May 2005);
Appearances: USD 3,676 for each match the player plays as part of the starting
11, USD 1,838 if he is part of the squad of 18 players, and USD 2,757 if he comes
in as a substitute.
For the 2005-2006 season:
USD 110,000 until 30 July 2005;
USD 115,000 (10 monthly salaries of USD 11,500 from August 2005 to May 2006);
Appearances: “USD 4,118 per match as specified above”.
3.
Clause 7 of the employment contract stipulates that “The parties agreed that in
case the club will not pay one of the payment specified in this agreement in time
and in full within 30 days from the date the payment was due, the player will give
the club notice, and 7 days after the notice, if the debts were not paid, the player
will be considered as a free agent and can be transferred to any other club, and
the club will not be entitled to any transfer fees, and the player will reserve the
right to get all debts from the club”.
4.
Clause 13 of the employment contract stipulates, inter alia, that if the club does
not pay the bonus of USD 110,000 by 30 July 2005 or the salary payments for the
2004-2005 season on time and in full, the player shall immediately be considered as
a “free agent” and can be transferred to another club until the end of August of
the respective season. Furthermore, this clause stipulates that the player would
subsequently be entitled to claim the amounts due under the said employment
contract.
_________________________________________________________________________________________________________________
2/12
5.
In a fax dated 2 August 2005, the player submitted a claim to FIFA against the club
K. The player asserts that although the club owed him money, he had continued to
participate to the activities of the club, but that, in view of the club’s continued
failure to pay, he had left the Respondent in August 2005. The player notes that he
had never received the payments stipulated in the contract in full or on time.
6.
The player added that the Respondent had promised him a bonus of USD 44,000 if
the club remained in the “T Super league”, but that this bonus had not been paid.
7.
The player alleged that the club had not paid the amount of USD 110,000 provided
for in the contract and to be paid on 30 July 2005. According to the Claimant, if the
club had not paid the amount of USD 110,000 by 30 July 2005, he could be
considered as a “free agent” and “reserve the right to claim his debts and contract
from the club”. The player mentioned that on 2 August 2005, the club had still not
paid the outstanding amounts due, despite having given the club a last formal
notice dated 1 August 2005, in which the Claimant informed the Respondent that
he would consider himself released from his contractual obligations in case of non
payment by the Respondent by 2 August 2005.
8.
The player also reported that following these problems with the club K, he had
signed an employment contract with the T club S (hereinafter: the intervening
party) on 15 August 2005.
9.
The player requests that the club be ordered to pay the amount of USD 411,000
(plus interest from the date of the decision of the Dispute Resolution Chamber) for
the following items:
USD 10,000 that the Respondent had undertaken to pay to the player’s agent
for his transfer;
USD 44,000 that the Respondent promised if it remained in the “T Super
league” for the 2004-2005 season;
USD 30,000 corresponding to the last three monthly salaries of March, April
and May 2005 for the 2004-2005 season;
USD 110,000 corresponding to the bonus to be paid by 30 July 2005;
USD 115,000 regarding the salaries for the 2005-2006 season;
USD 20,000 in legal fees;
USD 82,000 in match bonuses for the 2005-2006 season;
sporting sanctions be imposed on the club.
10. In its reply to the claim, the club noted that the player had not been at the club
since 1 August 2005.
_________________________________________________________________________________________________________________
3/12
11. The club mentioned that on 29 and 30 August 2005 (sic) the player had taken
holidays, returned late to the club and as a consequence missed the first training
sessions and the first league match.
12. Furthermore, the club asserted that for the 2004-2005 season, it had paid the
player USD 297,000 and there was an overdue payment of USD 10,000, less USD
6,000 concerning a fine imposed on the player.
13. The club listed the following payments allegedly made to the player for the 20042005 season:
11.08.2004:
10.10.2004:
27.10.2004:
04.11.2004:
25.11.2004:
19.01.2005:
04.02.2005:
18.03.2005:
01.04.2005:
03.05.2005:
27.05.2005:
USD 90,000
USD 20,000
USD 20,000
USD 22,056
USD 10,000
USD 17,352
USD 17,352
USD 17,350
USD 11,950
USD 20,000
USD 51,000
14. The club alleged that following a change in the team’s management, the club was
two days in delay in making payments to the player and the latter used this
situation to transfer his services to another club, in violation of clause 7 of the
employment contract on late payments.
15. With regard to the bonus of USD 44,000 claimed by the player if the club remained
in the “T Super league”, the club maintained that it never promised any such
bonus.
16. The club rejected the claim submitted by the player and lodged a counterclaim
against the Claimant for breach of the employment contract. The club therefore
requests compensation of USD 400,000 for breach of contract, plus EUR 75,000.
17. The Respondent noted that clause 8 of the employment contract provided for a
buy-out option of USD 250,000. The Respondent insisted on the fact that should
the Claimant have wished to leave the club without a valid reason, he should have
sent a termination letter and paid the amount provided for in the contract. As a
_________________________________________________________________________________________________________________
4/12
consequence, the club affirmed that in establishing the amount of damages due to
it, the Chamber should take into account the buy-out amount and even consider
increasing it.
18. In terms of compensation, the club claims USD 400,000 for sporting and financial
damages it suffered as a result of the termination of the contract during the
protected period. The club added that due to the player’s early departure, he had
to be replaced by a new player. The club noted that the new player’s salary for the
2005-2006 season was EUR 300,000, i.e. EUR 75,000 more than the salary of the
Claimant. Therefore, the club states that the loss it incurred amounts in any case to
EUR 75,000 in addition to the claimed USD 400,000.
19. In addition, the club requests that sanctions be imposed on the player and that the
player’s new club, S, be held jointly responsible for the compensation the player
would be condemned to pay by the Dispute Resolution Chamber.
20. On the basis of the documentation in the file, FIFA sent a letter to the parties on 21
September 2005, advising them to consider their contractual relationship as
terminated and to focus on the financial aspects of the case.
21. The player rejected the club’s counterclaim and maintains his initial claim.
22. In its statement as intervening party, S stated that when it signed the employment
contract with the player and following an investigation, it had established that the
player did not have any other obligations towards a third club. As a consequence,
the intervening party asserted that it has not to be involved in the present dispute
between the player P and the club K.
23. At FIFA’s request, the T Football Federation submitted a copy of the employment
contract signed between the Claimant and the intervening party, valid from 1
September 2005 to 31 May 2007.
24. S and the Claimant informed FIFA that for the 2005-2006 season the player had
earned USD 125,000 in advance, USD 100,000 in salaries from August 2005 to May
2006 and match bonuses in the amount of USD 36,250.
II. Considerations of the Dispute Resolution Chamber
_________________________________________________________________________________________________________________
5/12
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 2 August
2005. Consequently, the 2005 edition of Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 18 par. 2 and 3 of
the Procedural Rules in connection with art. 21 of the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber).
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 an I 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 2 August
2005, the previous version of the regulations (edition 2005; hereinafter: the
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
investigation. The members of the Chamber started by acknowledging that on 11
July 2004, the Claimant and the Respondent signed an employment contract which
came into force on 11 July 2004 and was due to expire on 30 May 2006.
5.
Equally, the members of the Chamber duly considered the financial clauses of the
employment contract at the basis of this dispute. In particular, the Chamber took
note that for the 2004-2005 season, it was stipulated that the player would receive
inter alia 10 monthly salaries of USD 10,000 each, to be paid from August 2004 to
May 2005. In addition, the Chamber recalled that for the season 2005-2006 the
amount of USD 110,000 was due to be paid by the Respondent until 30 July 2005.
6.
Furthermore, the Chamber duly analysed the contents of clause 13 of the
employment contract which stipulates that “If the club fail to pay the payment
_________________________________________________________________________________________________________________
6/12
specified in S.3.1 [2004-2005 season: USD 105,000 by 30 July 2004; USD 100,000 as
salaries] or 4.1 [2005-2006 season: USD 110,000 by 30 July 2005] in full and on time,
the player will be considered free agent immediately so he can be transferred to
another club until the end of August of each season and the player reserve the
right to claim his debts and contract from the club”. Additionally, the Chamber
took note of the contents of clause 7 which mentions that “The parties agreed that
in case the club will not pay one of the payment specified in this agreement in time
and in full within 30 days from the date the payment was due, the player will give
the club notice, and 7 days after the notice, if the debts were not paid, the player
will be considered as a free agent and can be transferred to any other club, and
the club will not be entitled to any transfer fees, and the player will reserve the
right to get all debts from the club”. In this respect, the Chamber considered that
the said clauses, under the terms “free agent” include the right to terminate the
contractual relationship between the parties in case of non compliance by the club
of its financial obligations.
7.
In continuation, the Dispute Resolution Chamber acknowledged that, on 2 August
2005, the player lodged a claim in front of FIFA against the Respondent asserting,
inter alia, that the club had not paid the amount of USD 30,000 corresponding to
the three salaries of March, April and May 2005, as well as the amount of USD
110,000 corresponding to the sum that was due to be paid until 30 July 2005 in
accordance with the employment contract. According to the player, due to the fact
that the club had not paid the amount of USD 110,000 by 30 July 2005, he can be
considered a “free agent” on the basis of clause 13 of the employment contract.
8.
Taking into account the previous consideration and analysing carefully the
statements and documentation provided by the Respondent, the members of the
Chamber analysed the list of the payments allegedly made by the Respondent to
the Claimant for the 2004-2005 season and equally analysed the receipts sent by
the club in this context. In this respect, the Chamber pointed out that the abovementioned receipts and documents, some of them signed by the player, are in T
language and have not been officially translated; only a handwritten translation
has been submitted. Furthermore, the club has not submitted the originals of the
receipts and documents as required by FIFA.
9.
Furthermore and with regard to the payments allegedly made by the club, the
Chamber noted that the relevant payments were allegedly made on a non-regular
basis and for different amounts, being it thus impossible to determine with
certainty if the salaries of March, April and May 2005 have unequivocally been paid
by the Respondent to the Claimant in full and in a timely manner.
_________________________________________________________________________________________________________________
7/12
10. As a consequence of the above and in accordance with the principle of the burden
of proof as detailed in art. 12 par. 3 of the Procedural Rules, the Chamber
concluded that the Respondent has not provided the Chamber with the necessary
documentary evidence allowing to conclude that the salaries for March, April and
May 2005 were duly paid to the Claimant in full and in a timely manner.
11. In addition, the Chamber recalled that it was not contested by the Respondent that
the sum of USD 110,000, which was due to be paid until 30 July 2005 to the
Claimant, was not paid.
12. In this respect and taking into account the above-mentioned considerations, the
Dispute Resolution Chamber concluded that, without any doubt, the conditions
stipulated in clause 13 of the employment contract were fulfilled and that, as a
consequence, the Claimant was entitled to terminate the employment contract in
strict application of the above-mentioned contractual provision.
13. As a consequence and considering that the Claimant terminated the employment
contract on 2 August 2005, in accordance with the formal notice dated 1 August
2005 and sent to the Respondent, the Chamber concluded that the three monthly
salaries of March, April and May 2005, amounting to USD 30,000, as well as the
amount of USD 110,000 due to be paid on 30 July 2005 were due and still
outstanding at the moment of the termination of the employment contract.
14. Therefore and also considering the contents of clause 13 of the employment
contract, the members of the Dispute Resolution Chamber decided that the player
P terminated the employment contract with just cause on 2 August 2005, in
accordance with the formal notice dated 1 August 2005 and sent to the
Respondent by the Claimant, and that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant.
15. Equally and for the sake of good order, the Chamber outlined that the player, on
several occasions and before terminating the relevant employment contract, sent
several formal notices to the Respondent requesting the payment of outstanding
receivables. The player enclosed with his claim several default notices that he sent
to the Respondent between October 2004 and August 2005.
16. 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,
recalling that the employment contract was terminated with just case by the
Claimant on the basis of article 13 of the above-mentioned contract. In this respect,
_________________________________________________________________________________________________________________
8/12
the Chamber outlined that the player requests that the club be ordered to pay the
amount of USD 411,000 (plus interest from the date of the decision of the Dispute
Resolution Chamber) for the following items:
USD 10,000 that the Respondent had undertaken to pay to the player’s agent
for his transfer;
USD 44,000 that the Respondent allegedly promised to the Claimant if it
remained in the “T Super league”;
USD 30,000 corresponding to the last three monthly salaries of March, April
and May 2005 for the 2004-2005 season;
USD 110,000 corresponding to the bonus to be paid by 30 July 2005;
USD 115,000 regarding the salaries for the 2005-2006 season;
USD 20,000 in legal fees;
USD 82,000 in match bonuses concerning the 2005-2006 season;
sporting sanctions be imposed on the club.
17. First of all, and concerning the claim amounting to USD 10,000 for the players’
agent fee that the Respondent allegedly had undertaken to pay to the player’s
agent in question, the Chamber noted that the Claimant asserts having paid the
said amount to the agent. In this respect, the Dispute Resolution Chamber
concluded that there is no document on file which would entitle the player to
receive the above-mentioned amount directly from the Respondent with regard to
the players’ agent fee. In fact, the Claimant only attached a document which
mentions that the Respondent will directly pay the player’s agent. As a
consequence, the members of the Chamber decided to reject this part of the claim.
18. With regard to the claim of USD 44,000 concerning the bonus allegedly due to the
Claimant if the Respondent remained in the “T Super league” for the 2004-2005
season, the Chamber decided to reject as well this part of the claim, in accordance
with art. 12 par. 3 of the Procedural Rules, due to the fact that the Claimant has
not provided the Chamber with any evidence demonstrating that the Claimant is
entitled to receive to the above-mentioned amount as a bonus relating to the “T
Super league”.
19. After having considered the first two parts of the present claim, the Dispute
Resolution Chamber went on to deal with the claim amounting to USD 30,000
corresponding to the last three salaries (March, April and May 2005) for the 20042005 season. In this respect and considering again the wording of art. 12 par. 3 of
the Procedural Rules which stipulates that “Any party deriving a right from an
alleged fact shall carry the burden of proof”, the Chamber recalled that the
Respondent did not provide the Chamber with documentary evidence
_________________________________________________________________________________________________________________
9/12
unequivocally showing the payment of the above-mentioned three monthly salaries
(cf. points II./8., II./9. and II./10. above). As a consequence, the Chamber decided
that the three monthly salaries of March, April and May 2005, amounting to USD
30,000, were still outstanding and will have to be paid by the club to the player.
20. Equally and with regard to the amount of USD 110,000, which was due to be paid
by the Respondent on 30 July 2005, the Chamber outlined that on 30 July 2005 the
employment contract was still in force. In this respect, the Chamber recalled that it
was not contested that the Respondent did not pay the said amount to the player
on 30 July 2005 (cf. point II./11 above). Therefore, the Chamber decided that, in
addition to the aforementioned amount of USD 30,000, the said amount of USD
110,000 has to be paid by the Respondent to the Claimant.
21. In continuation, the Chamber turned to the claim for compensation put forward by
the Claimant on account of the early termination of the employment contract with
just cause at the club’s fault and art. 17 par. 1 of the Regulations. The members of
the Chamber took note that the Claimant requests to be awarded the remaining
value of the relevant employment contract relating to the 2005-06 season.
Furthermore, in accordance with its constant practice, the Chamber took into
account that the Claimant found employment with another club, i.e. S as from 1
September 2005 until 31 May 2007. What is more, the Claimant confirmed that he
had received from S for the 2005-06 season payments amounting to USD 261,250
(cf. point I./24. above), which amount in fact significantly exceeds the Claimant’s
remuneration for the same period of time in accordance with the employment
contract with the Respondent. On account of these particular circumstances, the
Chamber concluded that the Claimant had in fact not suffered any damages from
the early termination of his employment relationship with the Respondent and
therefore had to dismiss the Claimant’s claim for compensation.
22. With regard to the claim of the player relating to the payment of USD 20,000 in
legal fees, the Chamber referred to its constant jurisprudence and art. 15 par. 3 of
the Procedural Rules and decided to reject this part of the claim.
23. On account of all of the above, the Chamber decided that the Respondent is liable
to pay the total amount of USD 140,000 to the Claimant and that any further
claims lodged by the Claimant are rejected.
24. 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.
_________________________________________________________________________________________________________________
10/12
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, the player P, is partially accepted.
2.
The Respondent / Counter-Claimant, the club K, is ordered to pay to the Claimant /
Counter-Respondent, the player P, the amount of
USD 140,000 within 30
days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant / Counter-Respondent, the player P, are
rejected.
4.
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 expiry of the fixed time
limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and decision.
5.
The Claimant / Counter-Respondent, the player P, 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.
6.
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:
_________________________________________________________________________________________________________________
11/12
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
_________________________________________________________________________________________________________________
12/12