Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 September 2011,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Zola Majavu (South Africa), member
Michele Colucci (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
M,
as Claimant
against the club,
P,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
The player, M (hereinafter: player or Claimant), and the club, T, signed an
employment contract, which bears no date of signature, but was registered by the
regional football federation I on 7 September 2008, valid during twelve months
and ending on 5 September “2008” (sic), in accordance with which the player was
to receive a monthly salary of USD 8,000.
2.
On 15 September 2008, the player signed an employment contract with the club,
P (hereinafter: P or Respondent), valid as from 16 September 2008 for one season
(2008-09), in accordance with which the player was to receive the total amount of
USD 80,000 payable as follows: 20% on the date of signature; 20% upon the end
of half of the season; 20% upon the termination of the season “on the basis of
good performance”; 40% on a weekly basis during 40 weeks of the season at 1%
of the total amount of USD 80,000 per week.
3.
Article 8 of the employment contract with P stipulates that “Parties to contract
signed it with full cognizance of FIFA and A laws, Football Federation Rules of I
and its sole credential. The dispute settlement authorities are precedent to
League Organization Jury I, and in case of rejection of their decree, Judicial
Authorities whose decree shall binding to both and parties to contract in addition
of waiving their object to such decree have waived their reference to any other
judicial court”.
4.
On 16 January 2009, the player lodged a claim against P in front of FIFA for
breach of contract without just cause maintaining that, in the second week of
November 2008, the club tried to make him sign a mutual agreement on the early
termination of the employment contract, which he refused. Thereafter, the club
allegedly excluded him from training and cancelled his residence permit.
Therefore, he was forced to leave the country on 10 December 2008 after he had
received an air ticket from club P.
5.
In support of his claim, the player also presented a copy of a letter dated 23
November 2008, which was addressed by club P to club T, in which P informed the
latter that the agreement between the clubs was cancelled with immediate effect,
as the player had allegedly made false declarations about his qualification to play
for club P in the light of the regulations I regarding Superior League football
teams.
6.
The player rejects such allegation and asserts that, in any case, such allegation
could not be a valid reason to terminate the employment contract.
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7.
In light of the above, while pointing out that he did not receive a single payment
from P, the player asks to be awarded payment of the total contractual amount of
USD 80,000 for the breach of the employment contract by club P.
8.
With respect to the connection between the club P and the club T, the player
stated that the club T is acting as the “parent body” of P and that P is acting
under the umbrella of the club T.
9.
In reply to the claim, the club P confirms that the player was employed by club P
and club T and that he was transferred on a loan basis to club P by club T further
stated that the player’s contract with P does not legally cancel his contract with T.
10.
P asserted that T paid the amount of USD 20,000 to the player.
11.
In addition, according to P, the player abandoned training and left to the country
C without prior notification to P, which the latter considers to be a unilateral
termination of the employment contract by the player.
12.
P refers to art. 8 of the employment contract and stated that the player should
have lodged his claim in front of the deciding body of the Football Federation I
(FFI).
13.
In his replica, the player rejects the allegations put forward by P and asserts that
he was expelled from the A team by club P and that he never breached any of his
obligations.
14.
The player further points out that nobody professionally employed can leave I
without exit visa and that the club had applied for his exit visa and arranged for
his return air ticket.
15.
The player confirms that he received USD 20,000 from club P and points out that
this amount was representing a “transfer fee” for Mr. Y, a licensed agent.
16.
Consequently, according to the player, such payment of USD 20,000 was not
related to the financial obligations of club P towards him.
17.
In its duplica, P denies that an exit visa would have needed the club’s permission
and points out that the player apparently made no difference between a
residence permit and an exit permit.
18.
As regards the document presented by the player relating to the USD 20,000
payment, P points out that if an agent was involved in the player’s transfer, the
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costs should have been paid by T prior to his transfer to P. Therefore, according to
P, this is not a matter related to P.
19.
P also points out that with respect to contracts relating to the loan of players, the
player receives all his wages from the principal and original club, i.e. T, unless the
club receiving the player and his original club agree differently, which agreement
does not exist in the matter at stake. Therefore, P considers that the player shall
claim from the club with which he has a contractual relation.
20.
After the closure of the investigation in this matter, the player presented
additional comments pointing out that he rendered his services to P during three
months without having received any remuneration and that the only relevant
document is the employment contract that he signed with P. He further asserts
that his passport had been taken when he entered country I, which was given
back to him the day he left; therefore, he could not have left the country I
whenever he would have wished to do so. He furthermore presented a copy of a
non-signed statement drafted in English, allegedly by P, regarding the
termination of the employment contract, which he refused to sign.
21.
In reply to these additional comments, P merely stated that the present matter
would fall within the competence of the FFI referring to the employment contract
and certain “disciplinary by-laws” of the FFI.
22.
The FFI, at FIFA’s request for information relating to its Regulations dealing with
dispute resolution at national level, pointed out that according to art. 18 of the
Disciplinary Code of the Football Federation I “should the player or club fail to
fulfill their commitments towards one another according to their contract,
Disciplinary Committee of Football Federation I shall have the right to investigate
and resolute the dispute between the player and club, before Players’ Status
Committee of FFI begins to function”.
23.
The player informed FIFA that he was registered as an amateur player with a
country C club during the period of time between December 2008 and December
2009.
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 16 January 2009. Consequently, the Rules Governing the Procedures of the
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Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
par. 2 and 3 of the Procedural Rules)
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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2010), the Dispute Resolution Chamber is, in principle, competent
to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a player and an club.
3.
In this context, the Chamber referred to the argument of the Respondent
according to which the present matter would fall within the competence of the
FFI on the basis of the employment contract and certain “disciplinary by-laws” of
the FFI, the contents of which “by-laws”, however, were not divulged by the
Respondent.
4.
In this respect, and regardless of the fact that the relevant employment contract
contains a reference to dispute resolution at national level, which reference, the
Chamber pointed out, was worded in a rather vague manner, the members of the
Chamber referred to the contents of art. 22 b) of the Regulations on the Status
and Transfer of Players as well as to the respective well-established jurisprudence
of the Dispute Resolution Chamber according to which, in general, in
employment-related disputes between a club and a player that have an
international dimension, i.e. the parties do not belong to the same country, both
parties were entitled to refer the dispute to FIFA’s deciding bodies, unless an
independent arbitration tribunal respecting the principle of equal representation
of players and clubs with an independent chairman has been established at
national level.
5.
The members of the Chamber acknowledged that in the case at hand the
Respondent has failed to prove that an independent arbitration tribunal in
compliance with the requirements of the FIFA regulations has been established in
country I. As a consequence, 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 to hear
the dispute at stake.
6.
In continuation, 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
(editions 2009 and 2010), and considering that the present claim was lodged on 16
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January 2009, the 2008 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
7.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
8.
The Chamber then reviewed the claim of the Claimant, who maintains that the
Respondent had terminated the employment contract without just cause by trying
to persuade him to terminate the employment contract by mutual agreement,
excluding him from training and forcing him to leave the country on 10 December
2008. In addition, the Claimant submits that his remuneration has remained fully
unpaid by the Respondent.
9.
The Respondent, for its part, rejects the claim and, whilst confirming that the
player was employed by the Respondent and T and that he was transferred by the
latter on a loan basis to the Respondent, points out that with respect to contracts
relating to the loan of players, the player receives all his wages from the principal
and original club, i.e. T, unless the club receiving the player and his original club
agree differently, which agreement does not exist in the matter at stake. In
addition, the Respondent submits having paid the amount of USD 20,000 to the
Claimant and that the Claimant abandoned training and left to country C without
prior notification to the Respondent.
10.
In order to be able to establish, first and foremost, as to whether, as claimed by
the Claimant and contested by the Respondent, the Respondent had acted in
breach of the employment contract, the Chamber proceeded with a more detailed
analysis of the circumstances surrounding the present matter, the parties’
arguments as well as the documentation on file, bearing in mind the contents of
art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming
a right on the basis of an alleged fact shall carry the burden of proof, i.e. the
general legal principle of the burden of proof.
11.
In this context, the Chamber firstly turned to the argument of the Respondent
relating to the contractual financial obligations in the context of the transfer on a
loan basis of the player from club T to the Respondent. According to the
Respondent, players who are on loan receive all wages from the club of origin,
unless the club receiving the player on loan and his original club agree differently,
which agreement, according to the Respondent, does not exist in the matter at
stake. In this respect, the Chamber noted that the Claimant was contractually
bound to club T (cf. number I./1. above) and that an employment contract was
entered into by and between the Claimant and the Respondent on the occasion of
the undisputed loan of the player to the Respondent. The Chamber further took
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into account that, in this respect, no loan agreement was presented by the
Respondent, although such agreement appears to have been in place as could be
noted from the letter dated 23 November 2008, which was addressed by the
Respondent to T and via which the Respondent informed the club of origin of the
player that the agreement between the clubs in connection with the player was
cancelled with immediate effect. Consequently, in the absence of a copy of the
pertinent loan agreement, the members of the Chamber were not in the position
to verify the accuracy of the statement made by the Respondent with respect to
the contractual financial obligations towards the player. Nevertheless, the
Chamber deemed it fit to highlight that contrary to the position of the
Respondent, in general, unless specifically agreed upon differently between the
parties involved in a transfer on a loan basis of a player, clubs that receive a player
on a loan basis will become responsible for, inter alia, the payment of the player’s
remuneration on the basis of an employment contract that is entered into
between the player and the club receiving him on a loan basis. The members of
the Chamber also emphasised that in the specific case at hand an employment
contract was entered into between the club receiving the player on a loan basis,
i.e. the Respondent, and the player (cf. number I./2. above), on the basis of which
the Claimant has lodged the present claim, and that such employment contract
specifically provided for the amount of remuneration payable by the Respondent
to the player. For these reasons, the Chamber had to reject this argument of the
Respondent and established that the Respondent is to be held liable for the
fulfilment of the contractual obligations that it entered into with the Claimant by
means of said employment contract.
12.
Having said this, the members of the Chamber focussed their attention on the
Claimant’s assertion that the Respondent had failed to remit any of his
remuneration that he was entitled to receive in accordance with the pertinent
employment contract. As established above, the Chamber had rejected the
argument of the Respondent in accordance with which the player’s club of origin,
i.e. T, would have been responsible for the payment of the player’s remuneration
during the loan period and had established that the Respondent was liable for the
fulfilment of the contractual obligations that it entered into with the Claimant by
means of the pertinent employment contract. According to the employment
contract signed by and between the Claimant and the Respondent, valid as from
16 September 2008 for one season (2008-09 season), the Claimant was to receive
the total amount of USD 80,000 payable as follows: 20% on the date of signature,
i.e. USD 16,000; 20% upon the end of half of the season, i.e. USD 16,000; 20%
upon the termination of the season “on the basis of good performance”, i.e. USD
16,000; 40% on a weekly basis during 40 weeks of the season at 1%, i.e. USD 800,
of the total amount of USD 80,000 per week.
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13.
The members of the Chamber took into account that according to the Respondent
the Claimant was duly paid USD 20,000, receipt of which was, as noted by the
members of the Chamber, confirmed by the Claimant. The Claimant, however,
insists that this payment is not related to the financial obligations of the
Respondent towards him, but is rather related to a “transfer fee” for a licensed
agent. The Chamber duly took note of the non-signed statement dated 2 October
2008 that was presented by the Claimant in support of such position, according to
which he confirmed having received in cash USD 20,000 from club P “as the
tuition of my transfer from the C to [P] for my FIFA manager Mr. M in 2 October
2008.” The Respondent, for its part, rejects such position and pointed out that if
an agent was involved in the player’s transfer, the costs should have been paid by
T prior to his transfer to P. T being the player’s club of origin, the Chamber
deemed the Respondent’s argument in this regard plausible. In addition, said
written statement was not signed by either of the parties and, even if so, it would
not unambiguously demonstrate that such payment would not be related to the
Respondent’s financial obligations towards the Claimant. Consequently, and in
the absence of documentation demonstrating any other payment possibly made
by the Respondent to the Claimant (cf. art. 12 par. 3 of the Procedural Rules), the
Chamber concluded that the Respondent had paid the total amount of USD
20,000 to the Claimant as part of the remuneration due to the latter.
14.
In continuation, the Chamber turned to the Claimant’s statements that, in the
second week of November 2008, the Respondent tried to make him sign a mutual
agreement on the early termination of the employment contract. In addition,
according to the Claimant, the Respondent excluded him from training and
cancelled his residence permit, as a result of which he was allegedly forced to
leave the country on 10 December 2008 after having received an air ticket from
the Respondent. The Respondent, for its part, however, alleges that the Claimant
had abandoned training and returned to country C without prior notification.
15.
In the light of such diverging stance of the parties involved, and bearing in mind
art. 12 par. 3 of the Procedural Rules, the Chamber focused its attention on the
documentation presented by the parties along with their respective statements.
16.
In particular, the Chamber took note of the letter dated 23 November 2008 that
the Claimant presented along with his statement of claim, which was addressed
by the Respondent to T and in which the Respondent informed the latter that the
agreement between the clubs was cancelled with immediate effect, as the
Claimant had allegedly made false declarations about his qualification to play for
the Respondent in the light of the country I regulations regarding Superior
League football teams. Although said letter does not directly refer to the
termination of the employment contract with the Claimant, the Chamber deemed
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that said letter gave strong indications that the Respondent no longer wished to
make use of the Claimant’s services.
17.
The Chamber further took note of the non-signed communication made out on
club T letterhead, which was also presented by the Claimant, stating that “Your
ticket has been reseved and ok. For Sunday 7 December 2008 … Therfore you
have to leave club P at Saturday 6 Dec. 2008 … to reash your flight. Mr S will help
you to sent you to the country I to airport”. The Chamber considered that this
document, the existence or accuracy of which were not contested by the
Respondent, basically indicated that the Respondent, as claimed by the Claimant,
indeed had provided the Claimant with an air ticket.
18.
Bearing in mind art. 12 par. 3 of the Procedural Rules, the members of the
Chamber duly took into account that the Respondent, on the other hand, had not
presented any documentation in support of its allegations that the Claimant had
abandoned training and returned to the country C without prior notification. In
fact, the Chamber considered that the documents presented by the Claimant in
support of his claim, again, which were not contested by the Respondent,
indicated at least that the Claimant had not left the club without prior
notification.
19.
At this stage, the members of the Chamber deemed it fit to highlight that none of
the parties involved in the case at hand has alleged that the relevant employment
contract had come to an end due to a mutual agreement between the contractual
parties.
20.
On account of all of the above, the Chamber established that the Respondent had
unilaterally terminated the employment contract without just cause by midNovember 2008.
21.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber
focussed its attention on the consequences of such breach of contract. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract, in addition to any outstanding payments on
the basis of the relevant employment contract.
22.
Taking into account the documentation remitted by the Claimant to substantiate
his claim, i.e. the relevant employment contract, the fact that the employment
relation between the parties is considered terminated as of mid-November 2008
and the consideration under point II./13. above, the Chamber decided that the
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Respondent is liable to pay to the Claimant the amount of USD 2,400 in
connection with the remuneration due to the Claimant for his services rendered in
accordance with the employment contract as from 15 September until midNovember 2008, i.e. during 8 weeks (8 weeks x USD 800 plus the 20% signing-on
fee, i.e. USD 16,000, minus the USD 20,000 already received).
23.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
24.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. The Chamber established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
25.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that the said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
26.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
new contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of
art. 17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and any new contract in the calculation of the amount of
compensation.
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27.
In accordance with the employment contract signed by the Claimant and the
Respondent, which was to run for 32 more weeks during the 2008-09 season after
the breach of contract occurred, the Claimant was to receive remuneration
amounting to USD 57,600 bearing in mind that the first 20% instalment of the
USD 80,000 and 8 weeks of salary were included in the calculation of the
outstanding remuneration (cf. number II./22. above) and are thus to be excluded
from the basis for the calculation of compensation. Consequently, the Chamber
concluded that the amount of USD 57,600 serves as the basis for the final
determination of the amount of compensation for breach of contract.
28.
The Chamber then took due note of the employment situation of the Claimant
after the termination of the employment contract with the Respondent.
According to the Claimant, he was registered as an amateur player with a club of
the country C during the period of time between December 2008 and December
2009. However, the Chamber highlighted that at least one registration period had
been open during the remaining period of time of the pertinent employment
contract, during which time the Claimant obviously had the possibility to further
mitigate his damages by signing an employment contract with a new club.
29.
Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance
with the constant practice of the Dispute Resolution Chamber as well as the
general obligation of the player to mitigate his damages, such fact shall be taken
into account in the calculation of the amount of compensation for breach of
contract.
30.
Therefore, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay not the entire residual value
of the employment contract, but the amount of USD 45,000, which is to be
considered reasonable and proportionate as compensation for breach of contract
in the case at hand.
31.
On account of the above, the Chamber decided that the Respondent is liable to
pay the total amount of USD 47,400 to the Claimant, consisting of USD 2,400
related to outstanding remuneration and USD 45,000 as compensation for breach
of contract.
32.
The Chamber concluded its deliberations in the present matter by rejecting any
further request(s) filed by the Claimant.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, M, is partially accepted.
2.
The Respondent, P, has to pay to the Claimant the amount of USD 47,400 within
30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for its consideration and a formal
decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent 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.
*****
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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:
Markus Kattner
Deputy Secretary General
Encl: CAS directives
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