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,
D,
as Claimant
against the club,
D,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts
1.
On 15 January 2009, the F player, D (hereinafter: the Claimant), born on 16 July
1981, concluded an employment contract (hereinafter: the contract) with the S
club, D (hereinafter: the Respondent), valid from the date of signature until 31
May 2010.
2.
The contract provided for a monthly salary for the player of EUR 4,000 net until 30
June 2009 and a monthly salary of EUR 4,500 net from 1 July 2009 until the end of
the contract, to be paid on the 15th day of every month.
3.
In addition, the contract stipulated the obligation of the Respondent to pay two
flight tickets O – V / B – O for the Claimant and EUR 1,000 for family flights per
season.
4.
On 9 June 2009, the Claimant lodged a claim against the Respondent for allegedly
outstanding salaries and requested FIFA to immediately confirm his right to
conclude an employment contract with another club of his choice.
5.
In particular, the Claimant claimed:
- the salary of March 2009 amounting to EUR 4,000, plus 10% of interest as
from its due date;
- the salary of April 2009 amounting to EUR 4,000, plus 10% of interest as
from its due date;
- EUR 57,500 as compensation for breach of contract, consisting of the
monthly salaries for the period between 1 May 2009 to 31 July 2010;
- EUR 732.28 corresponding to flight tickets for his family;
- legal expenses amounting to EUR 3,850;
- sanctions to be imposed on the club.
6.
In his claim, the Claimant alleged having only received one monthly salary on 15
February 2009. In addition, the Claimant asserted that it was agreed in the
contract that he should train and play with the first team of the Respondent.
However, as from 16 March 2009, he was required to train and play with the
second team of the Respondent. Moreover, on 16 April 2009, the club “reversed”
the contract and consequently the player had to leave his flat and was driven to
the airport by the Respondent.
7.
The FIFA administration contacted the Respondent on 3 occasions requesting its
position in relation to the Claimant’s claim, in particular, with regard to the
Claimant’s wish to be released from the relevant employment contract. Since the S
Football Association informed FIFA that it had contacted the Respondent in this
respect, and since the Respondent never submitted any response, on 10 July 2009,
the FIFA administration advised the parties to consider their labour relationship as
terminated and to focus on the financial aspects of the dispute. In this regard, the
Respondent, despite having been contacted by FIFA for the fourth time, did also
not submit its position.
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8.
Finally, the Claimant informed FIFA that he concluded an employment contract
with the F club, P, valid from 15 July 2009 until 31 October 2009, which provides
for a monthly salary of EUR 1,000 gross.
II.
Considerations
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules). The
present matter was submitted to FIFA on 9 June 2009, thus after 1 July 2008.
Consequently, the Chamber concluded that the 2008 edition of the Procedural
Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a F player and a S club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on 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 on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 9 June 2009
and that the relevant employment contract was signed on 15 January 2009. In
view of the foregoing, the Dispute Resolution Chamber concluded that the
current version of the regulations (edition 2008; 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. In doing so,
the members of the Chamber firstly observed that the Respondent never took
position on the claim lodged against it by the Claimant, despite having been asked
to do so by FIFA on several occasions. Therefore, the Chamber underlined that, in
this way, the Respondent renounced to its right to defence and, thus, accepted
the allegations of the Claimant.
5.
As a consequence, the members of the Chamber referred to art. 9 par. 3 of the
Procedural Rules and pointed out that in the present matter a decision shall be
taken upon the basis of the documents on file, in other words upon the
allegations and documents provided by the Claimant.
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6.
In this respect, the Dispute Resolution Chamber started by acknowledging that the
contract provided for a monthly salary for the player of EUR 4,000 net until 30
June 2009 and a monthly salary of EUR 4,500 net from 1 July 2009 until the end of
the contract, to be paid on the 15th day of every month, beginning on 15 February
2009.
7.
Subsequently, the Chamber acknowledged that the Claimant requested the
payment of outstanding salaries in a total amount of EUR 8,000. In this context,
the Claimant alleged to only have received his first salary on 15 February 2009 and
that subsequently, on 16 April 2009, he was forced by the Respondent to leave the
country. The members of the Chamber recalled, in this regard, that the
Respondent did not submit any comment with regard to the claim, in particular, it
did not contest this allegation of the Claimant.
8.
Thus, the Dispute Resolution Chamber held that, in accordance with the basic
legal principle of pacta sunt servanda, the Respondent must fulfill its obligations
as per the employment contract entered into with the Claimant and,
consequently, pay the outstanding remuneration which is due to the latter.
9.
As to the amount of outstanding salaries due to the Claimant, the members of the
Dispute Resolution Chamber determined that the Claimant was to receive the
uncontested amount of EUR 8,000.
10.
In continuation, the Dispute Resolution Chamber took note of the fact that the
Claimant claimed the remaining value of the contract as compensation for the
breach of contract without just cause, amounting to EUR 57,500. In this context,
the Chamber considered that, by failing to pay the Claimant’s salaries due for two
months, which had not been contested at any stage by the Respondent, the latter
had breached the relevant employment agreement without just cause. On account
of the foregoing, the members of the Chamber also held that the Respondent was
not only to pay the outstanding remuneration to the Claimant, but also to pay
compensation for breach of contract in conformity with art. 17 par. 1 of the
Regulations.
11.
For the assessment of the applicable amount of compensation, the Chamber
referred to the aforementioned provision of the Regulations (art. 17 par. 1), in
particular to the non-exhaustive enumeration of the objective criteria which need
to be taken into account.
12.
In continuation, the Dispute Resolution Chamber pointed out that art. 17 par. 1 of
the Regulations also grants a certain degree of discretion to the deciding body
when calculating the relevant compensation. The Chamber recalled that it
regularly makes use of this margin of action, also in the event the Respondent
does not provide FIFA with any comments on the claim.
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13.
In casu, the Dispute Resolution Chamber observed that the residual value of the
contract claimed by the Claimant amounted to EUR 57,500. Furthermore, the
Chamber acknowledged that the Claimant had been rendering his services to the
Respondent for approximately three months, i.e. from 15 January until 16 April
2009, and that the relevant employment contract still had approximately one year
and one month to run at the moment of its termination. Furthermore, the
members of the Chamber noted that, at the time of the decision, the Claimant
had concluded a new employment contract with the F club, P, valid from 15 July
2009 until 31 October 2009, which provides for a monthly salary of EUR 1,000
gross, and that he had therefore been able to mitigate his damages.
14.
On account of the above, in particular in view of the original duration of the
contract, the Claimant’s contractual entitlements, his financial claim, his new
employment contract as well as the general obligation of the Claimant to mitigate
the damages, the Dispute Resolution Chamber decided that not the entire
remaining contract value, but the amount of EUR 30,000, corresponding
approximately to the residual value of seven months of the contract, was to be
considered reasonable and justified as compensation for breach of contract.
15.
Moreover, the Chamber noted that the Claimant requested flight tickets for his
family in the amount of EUR 732.28. In this respect, the Chamber went on to
examine the documentary evidence presented by the Claimant, i.e. the copy of the
employment contract. Consequently, the members of the Chamber drew their
attention to the fact that the employment contract at the basis of the present
dispute contains a clause which provides for the obligation of the Respondent to
pay to the Claimant the amount of EUR 1,000 per season for flight tickets for the
Claimant’s family. Therefore, the members of the Chamber concluded that, since
the Respondent did not contest the claim in this regard and additionally the
parties expressly agreed that the Claimant’s family flight tickets had to be paid by
the Respondent up to the amount of EUR 1,000 per season, the Claimant was to
receive the uncontested amount of EUR 732 concerning the flight tickets for his
family.
16.
With regard to the Claimant’s claim for the reimbursement of his legal expenses,
the Chamber recalled the contents of art. 15 par. 3 of the Procedural Rules, which
clearly stipulates that no procedural compensation is awarded in proceedings in
front of the Dispute Resolution Chamber. Therefore, the members of the Chamber
had no other alternative than to reject this part of the claim, even though the
Respondent did not contest the claim in this regard.
17.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on
the present dispute by deciding that the Respondent has to pay the total amount
of EUR 38,732 to the Claimant, consisting of EUR 8,000 concerning outstanding
salaries, plus 5% interest as from their respective due dates, of EUR 30,000 as
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compensation for breach of contract and of EUR 732 as flight tickets for the
Claimant’s family, and that any further request lodged by the Claimant is rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, D, is partially accepted.
2.
The Respondent, D, must pay to the Claimant, D, the amount of EUR 4,000, plus
interests at the rate of 5% per year as from 15 April 2009, within 30 days as from
the date of notification of this decision.
3.
The Respondent, D, must pay to the Claimant, D, the amount of EUR 4,000, plus
interests at the rate of 5% per year as from 15 May 2009, within 30 days as from
the date of notification of this decision.
4.
If the aforementioned amounts (cf. no. 2 and 3 above) are not paid within the
aforementioned time limit, the matter will be submitted, upon request, to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
5.
The Respondent, D, must pay to the Claimant, D, the amount of EUR 30,732,
within 30 days as from the date of notification of this decision.
6.
If the aforementioned amount (cf. no. 5 above) is not paid within the
aforementioned time limit, an interest rate of 5% per year as of the expiry of the
fixed time limit will apply and the matter will be submitted, upon request, to
FIFA’s Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
7.
The Claimant, D, is directed to inform the Respondent, D, directly and 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 filed by the Claimant, D, is rejected.
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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
Jérôme Valcke
Secretary General
Encl.
CAS directives
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