Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), member
Philippe Piat (France), member
Philippe Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
on the claim presented by the player
Player A, X,
as Claimant/Counter-Respondent
against the club
Club B, Y,
as Respondent/Counter-Claimant
regarding a contractual dispute arisen between the club and the player.
I.
Facts of the case
1.
The player A (hereinafter: the Claimant) maintains that he concluded an
employment contract dated 1 June 2005 with the club B (hereinafter: the
Respondent) for a duration of five football seasons, namely from 1 July 2005 to 30
June 2010. The contract presented by the Claimant only bears the Claimant's
signature. However, the Respondent has referred expressly to this agreement and
does not contest it as the contractual basis of the dispute.
2.
Clause 3 of the contract establishes that the Claimant should receive the following
remuneration:
EUR 20,000 (10 x EUR 2,000) for the period from 1 July 2005 to 30 June 2006.
Furthermore, if the player were to take part in 15 official matches, the sum
would be increased by 10%; if the player were to take part in 23 official
matches, the stipulated sum (EUR 2,000) would rise to EUR 4,000;
EUR 40,000 (10 x EUR 4,000) for the 2006/07 season, increased by 10% (EUR
4,000) after 15 matches and subject to a bonus of EUR 20,000 if the player
were to take part in 23 matches;
EUR 50,000 (10 x EUR 5,000) for the 2007/08 season, increased by 10% (EUR
5,000) after 15 matches and subject to a bonus of EUR 30,000 if the player
were to take part in 23 matches;
EUR 70,000 (10 x EUR 7,000) for the 2008/09 season, increased by 10% (EUR
7,000) after 15 matches and subject to a bonus of EUR 40,000 if the player
were to take part in 23 matches;
EUR 90,000 (10 x EUR 9,000) for the 2009/10 season, increased by 10% (EUR
9,000) after 15 matches and subject to a bonus of EUR 50,000 if the player
were to take part in 23 matches.
3.
In a letter dated 12 March 2007, the Respondent informed the Claimant of the
unilateral breach of contract by the Claimant as a result of him abandoning his
employment as from 24 August 2006 without justifying his absence. In this letter,
the Respondent considered the cancellation of the employment contract to have
taken effect from 14 September 2006 in accordance with Y law.
4.
On 18 June 2007, the Claimant lodged a complaint with FIFA against the
Respondent for breach of the employment contract without just cause. The
Claimant requested that the Respondent be ordered to pay him EUR 18,333 by
way of salary arrears and the sum of EUR 851,000 as compensation for his claimed
financial damages, as well as an additional EUR 10,000 for his legal expenses,
giving a total amount of EUR 879,333.
5.
On 9 July 2007, the Respondent rejected the Claimant's claim, considering that it
was the Claimant who had breached the contract without just cause by
abandoning his employment. In this respect, the Respondent lodged a
counterclaim for the sum of EUR 4,000,000 against the Claimant as a result of
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Player A, X / Club B, Y
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breach of contract without just cause, based on Clause 6 of the employment
contract presented by the Claimant. The text of Clause 6 reads:
"In the event of culpable non-respect of this contract by the 'practising party'
[the player], the latter shall be obliged to pay [the club] the sum of EUR
4,000,000 in respect of the penalty clause by way of compensation for damages
caused to [the club]."
6.
In order to allow the case in question to be fully understood, the Claimant’s
activities during the 2006/07 season must be described.
7.
The Claimant maintains that at the start of the 2006/07 season, he went to club C,
Y (hereinafter: C) on loan and started training with C on trial. However, it appears
that C was not interested in including the Claimant in its team and he therefore
left the club on 24 August 2006. According to the Claimant, on 8 September 2006
C requested the restitution of the keys of the house he was living in and, on 13
September 2006, he took a flight to Z.
8.
On 30 January 2007, the Claimant lodged a claim with FIFA against C based on the
claimed existence of a valid loan contract. C rejected the complaint and denied
that there had ever been a valid loan contract linking the club to the Claimant or
the Respondent.
9.
In this respect, and for the above-mentioned proceedings only, the Claimant
presented a copy of a loan contract signed by and between himself and the
Respondent on 18 July 2006 for the period from 1 July 2006 to 30 June 2007, but
without the signature of a C representative. In the current proceedings, both the
Claimant and the Respondent have referred to the copy of the loan contract
presented within the other aforementioned proceedings, although the
Respondent was not a party to the proceedings. Neither party has produced a
copy of an employment contract between the Claimant and C.
10.
With respect to the loan contract, the Y Football Federation confirmed in a
correspondence of 11 July 2007 that it had not registered any contract signed by
the Respondent, C and the Claimant.
11.
The Claimant puts forward that during the proceedings relating to his complaint
against C, the latter confirmed that no valid loan contract had been concluded by
the parties in question.
12.
In this context, the Claimant considers that his employment contract with the
Respondent had not ceased effect and he should have been allowed to rejoin his
club of origin, which would be obliged to pay him the contractually agreed salary.
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Player A, X / Club B, Y
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13.
The Claimant alleges, however, that from the month of August 2006 until the
present time, the Respondent has refused to restore him to the team despite the
Claimant’s attempts to return to his club of origin. He claims that the Respondent
was totally disinterested in his sporting and financial situation, even though it had
a contractual obligation in this respect, and the contractual link would persist until
30 June 2010.
14.
Furthermore, the Claimant asserts that the refusal to take him back led to a
situation in which he was unable to play football at the highest level and this
situation had jeopardised his professional career.
15.
In letters sent to C on 14 and 22 December 2006, the Claimant issued formal notice
to C demanding the payment of salary (at this time still considering that C was the
club with the relevant obligation). Equally, he informed the Respondent of the
situation on two occasions by sending it copies of the said letters on 15 and 22
December 2006 and expressly requested the Respondent’s comments on the
situation. The Claimant alleges that the Respondent did not react to this
information.
16.
The Claimant considers that the compensation for his financial damages should
not only take into account the residual value of the contract, but also the increases
in salary that he would have been able to negotiate with the Respondent during
the various transfer periods between summer 2007 and summer 2010. For this
reason, he considers it justified to value the financial damages suffered at the sum
of EUR 851,000, of which EUR 351,000 correspond to the residual value of the
contract concluded with the Respondent and EUR 500,000 for the loss of earnings
suffered by the Claimant, established as a fixed amount.
17.
On the basis of the above-mentioned reasoning, the Claimant requests that the
Dispute Resolution Chamber should:
order the Respondent to pay the Claimant the sum of EUR 18,333 in respect
of salary arrears for the period from 1 July 2006 to 31 May 2007.
rule that the employment contract was breached without just cause for
reasons entirely attributable to the Respondent.
order the Respondent to pay the Claimant the sum of EUR 851,000 by way of
redress for financial damages, corresponding to the residual value of the
contract until the 2009/10 season (EUR 351,000) and loss of earnings suffered
by the Claimant, established as a fixed amount (EUR 500,000).
order the Respondent to pay a penalty of EUR 200 per day of delay until the
complete settlement of the sums due.
order the Respondent to pay EUR 10,000 in order to cover the legal expenses
of the Claimant.
take appropriate disciplinary measures against the Respondent.
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Player A, X / Club B, Y
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18.
In response to the claim of the Claimant, the Respondent firstly asserts that the
loan contract between itself, C and the Claimant was concluded and implemented
in a valid manner.
19.
The Respondent also claims that it has not been in contact with the Claimant since
24 August 2006. The club alleges, although it does not provide any evidence in
these proceedings, that it had sent a letter to the Claimant on 22 December 2006,
indicating that he had abandoned his employment and that this fact represented
a breach of contract without just cause by the Claimant.
20.
According to the Respondent, there is no question that the Claimant is responsible
for the breach as he did not attend any training sessions held by C after 24 August
2006 and neither did he present himself to the Respondent.
21.
On the basis of Clause 6 of the employment contract signed on 1 June 2005, the
Respondent considers that the Claimant owes it EUR 4,000,000 as a result of the
breach of contract without just cause. According to the Respondent, the breach of
contract by the Claimant led the club to suffer significant damages that fully
justify the claimed compensation of EUR 4,000,000.
22.
In this context, the Respondent requests that the Dispute Resolution Chamber
should:
declare that the loan contract binding the two clubs and the Claimant was
concluded in a valid manner;
reject the complaint lodged by the Claimant;
declare that the employment contract signed on 1 June 2005 ceased effect as
a result of the Claimant abandoning his employment without just cause;
order the Claimant to pay EUR 4,000,000 by way of compensation for the
breach of contract without just cause.
23.
The Claimant reacts on the counter-claim of the Respondent and states that C had
confirmed to him that it had informed the Respondent of its wish not to retain the
Claimant in its team.
24.
The Claimant emphasises that he did not leave the town on a sudden impulse, but
rather because C had informed him in August 2006 that his trial would not have a
favourable outcome.
25.
The Claimant adds that, after 24 August 2006 and after having realised that
Olhanense did not want him, he made contact with the Respondent in order to
rejoin the team, considering himself to be contractually linked to the club for a
further four seasons. However, the Respondent had simply refused to reinstate
him at the start of the 2006/07 season, stating that the Claimant should rejoin C.
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Player A, X / Club B, Y
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26.
With regard to the letter claimed to have been sent by the Respondent to the
Claimant on 22 December 2006, the latter denies having received it and retorts
that he had himself sent to the Respondent copies of his formal notices to C on 15
and 22 December 2006, but that the Respondent had not reached. The Claimant’s
legal representative asserted that the Respondent could have sent a response to
him, as the Respondent knew of his mandate by means of the letter of 15
December 2006.
27.
From a sporting point of view, the Claimant revealed that he had been training
with the French club D, an amateur team of the French eighth division, from
December 2006 until the present time.
28.
From a financial point of view, the Claimant emphasised that his financial
situation was critical due to the fact that he had not received any salary from the
Respondent since the beginning of the 2006/07 season and that currently he had
no means of support.
29.
Regarding the compensation of EUR 4,000,000 claimed by the Respondent on the
basis of the penalty clause of the employment contract, the Claimant considers
that it was the Respondent, by its unacceptable attitude, that was responsible for
the breach of the employment contract without just cause and therefore the
clause could not apply in the present case. Moreover, the Claimant considers that
Clause 6 of the contract is disproportionate in comparison with the other financial
terms of the employment contract. It is also unilateral, insofar as solely a breach of
contract attributable to the Claimant is considered to trigger the right to such
compensation. In this respect, the Claimant considers that even if he were culpable
of the breach without just cause, the application of this clause should be rejected
due to its excessive nature.
30.
The Respondent, in its reaction to the replication of the Claimant, insists that the
Claimant did not have the right to leave C, even if the latter no longer wanted to
retain the Claimant in its team. The Respondent also claims that the Claimant did
not inform it of his departure and that he did not present himself in Madeira. The
Respondent contests that the Claimant wanted to rejoin the Respondent after
having left C and asserts that it did not have any information with regard to his
place of residence after this time.
31.
In respect of the Claimant’s criticism that the Respondent had not responded to
the copies of the correspondence he had sent to C in order to give the latter
formal notice, the Respondent replies that there was no reason for it to reply to
this correspondence.
32.
The Respondent maintains that the Claimant is ignorant of Portuguese law which
sets out the rights of an employer to cancel an employment contract if a player,
without just cause, abandons his employment. According to the Respondent, the
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Player A, X / Club B, Y
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employer can do this by sending a letter to the player (employee). The Respondent
claims to have sent such a letter on 12 March 2007 (the acknowledgement of
receipt shows that the player no longer lived at the relevant address) which was
registered by the FPF on 15 March 2007.
33.
With regard to the penalty clause, the Respondent criticises the Claimant for his
ignorance of Portuguese law which is, according to the club, applicable to the
present dispute. Consequently, the club considers that the dispute concerning the
clause should be brought before the Portuguese courts.
34.
Furthermore, the Respondent claims that it has always wanted to maintain the
contractual relationship with the Claimant.
35.
The Claimant finally submitted his last comments on the final position of the
Respondent and with regard to the loan contract and the uncontested attendance
of the Claimant with the club C, the Claimant puts forward that it was not a trial
period within the framework of a contract that had already been concluded and
during which the two parties were able to terminate the contractual relationship
at any time, but rather a trial that allowed the club C to assess the player’s
qualities before possibly taking him on a contract.
36.
According to the Claimant, it is also incontestable and clear that he wanted to
rejoin the Respondent rather than lose a whole season by spending it with an
amateur football team in the French eighth division. However, according to him,
he did not have any choice after learning that C would not look upon him
favourably at the end of the trial and that the Respondent did not want him to
rejoin its team.
37.
Moreover, the Claimant emphasises that the Respondent must provide formal
evidence of misdemeanour by the Claimant in order to be able to cancel the
contract unilaterally for reasons attributable to the Claimant.
38.
The Claimant also considers that the FIFA Dispute Resolution Chamber is fully
competent to issue a ruling on this case in accordance with the prevailing FIFA
regulations.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) analysed whether it was
competent to deal with the matter at stake. In this respect, it referred to art. 18
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 18 June 2007, as a consequence the Chamber concluded that
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Player A, X / Club B, Y
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the revised Rules Governing Procedures (edition 2005) on matters pending before
the decision making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in combination with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a Portuguese club and a Cameroonian
player regarding a dispute in connection with an employment contract.
4.
Subsequently, the members of the Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed by the Claimant on 1 June 2005 and the
claim was lodged at FIFA on 18 June 2007. In view of the aforementioned, the
Chamber concluded that the current FIFA Regulations for the Status and Transfer
of Players (edition 2005, hereinafter: the Regulations) are applicable to the case at
hand as to the substance.
5.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the case. The
members of the Chamber carefully studied the facts outlined above as well as the
entire documentation on file. In this respect, the Chamber noted that the Claimant
maintains that he concluded an employment contract dated 1 June 2005 with the
Respondent for a duration of five football seasons, namely from 1 July 2005 to 30
June 2010, and that the contract presented by the Claimant only bears his own
signature. However, the Chamber emphasised that the Respondent has referred
expressly to this agreement during the entire procedure and never contested it as
the contractual basis of the dispute. Equally, both parties appear to have duly
executed the relevant contract during an entire year, i.e. the 2005/06 season.
Consequently, the members of the DRC deemed that the Claimant and the
Respondent concluded a valid employment contract on 1 June 2005 for the period
of five football seasons, namely from 1 July 2005 to 30 June 2010.
6.
The Chamber also acknowledged that it was undisputed between the parties that
at the start of the 2006/07 season, the Claimant went to C, Y (hereinafter: C) and
started training sessions with C. Yet, disagreement exists as to the grounds for this
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Player A, X / Club B, Y
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move. While the Respondent claims that a valid loan agreement had been found
between the three parties concerned, the Claimant maintains that he had joined C
on trial in order for the parties involved to conclude a possible loan agreement for
the period of the football season 2006/07. The player further explains that
subsequently C was not interested in including him in its team and he left the club
on 24 August 2006. The day of departure is again not contested.
7.
In view of these divergent positions, the Chamber then turned its attention to the
claim lodged by the Claimant, in which he puts forward that there had never been
a valid loan agreement concluded between the Claimant, the Respondent and C.
In this context, the Claimant considers that his employment contract with the
Respondent had not ceased effect and therefore he should have been allowed to
rejoin his club of origin which would be obliged to pay him the contractually
agreed salary. Based on this allegation, the Claimant claims that, from the month
of August 2006 until the present time, the Respondent had not wanted to restore
the Claimant to the team despite the Claimant’s attempts to return to his club of
origin. He asserts that the Respondent was totally disinterested in his sporting and
financial situation, even though it had a contractual obligation in this respect, and
the contractual link would persist until 30 June 2010. Furthermore, the Claimant
explains that the refusal to take him back led to a situation in which he was
unable to play football at the highest level and this situation had jeopardised his
professional career.
8.
On the other hand, the Chamber took due note that the Respondent asked to
establish that the loan contract linking the two clubs and the Claimant had been
validly concluded and therefore it bound the Claimant to C for the football season
2006/07. The Respondent asserts that the said loan agreement had been properly
executed at the moment when the Claimant started to work with C by
participating in practice sessions with the C team.
9.
In this respect, the Chamber acknowledged that both parties have referred to the
copy of the loan contract presented in the still pending proceedings between the
Claimant and C, even though the Respondent is not a party in the said procedure.
In view of this fact, the Chamber stated that it would also take into account the
relevant document despite it not being again presented in the present procedure.
10.
In connection with the relevant loan contract, the Chamber took also note of the
fact that, on 30 January 2007, the Claimant had lodged a complaint with FIFA
against C in order to claim alleged outstanding salary payments, the claim being
based on the existence of a purportedly valid loan contract concluded between
the Claimant, the Respondent and C. In order to prove this allegation, the
Claimant had presented a copy of a loan agreement signed by himself and the
Respondent on 18 July 2006 for the period from 1 July 2006 to 30 June 2007, but
not bearing a signature of any C representative.
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Player A, X / Club B, Y
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11.
The Chamber pointed out that C rejected the complaint and continuously denied
that there had ever been a valid loan contract linking the club to the Claimant or
to the Respondent.
12.
With regard to the validity of a possible loan agreement, the Chamber emphasised
that the parties involved could neither produce a copy of a loan agreement signed
by C nor a copy of a possible employment contract concluded between the
Claimant and C for the football season 2006/07. In addition, the Portuguese
Football Federation stated by means of its official player passport that the
Claimant had never been registered with C during the relevant football season
2006/07. Also, the same Federation confirmed that there was no loan agreement
signed between C, the Claimant and the Respondent registered with them.
13.
Bearing in mind all this elements, the members of the Chamber established that
the Respondent was unable to prove that there had ever been a valid loan
agreement concluded between C, the Respondent and the Claimant for the
football season 2006/07. The Chamber stressed that, considering the
aforementioned documentary facts, the sole presence of the Claimant with the C
team and his participation in some of its training sessions was not sufficient
evidence for the execution of a potential loan agreement. In particular, since it is
common practice that, as associated by the Claimant, a player undergoes trials
with his potential new club prior to the conclusion of a c loan agreement.
14.
On the basis of these considerations, the Chamber concluded that the loan
agreement referred to by the parties had not been validly concluded between the
relevant parties and that, as a consequence, the employment contract concluded
between the Claimant and the Respondent on 1 June 2005 for the period of five
football seasons had never ceased its effects.
15.
In a next step, the members of the Chamber turned their attention to the question
whether or not the employment contract was prematurely terminated by one of
the involved parties, and if so, on which date.
16.
The Chamber took due note of the fact that the Respondent claims to have sent a
letter to the Claimant dated 22 December 2006, informing him of his
abandonment of work and that therefore the employment contract was to be
considered as terminated as from 14 September 2006. With regard to this
allegation, the Chamber acknowledged that again the relevant letter had only
been produced within the scope of the procedure between the Claimant and C
(claim lodged on 30 January 2007 as mentioned above), but that, nevertheless, it
could have been considered as evidence if the Respondent had been able to
demonstrate that the letter had actually been sent. However, the Claimant
expressly contested to have received the said letter and the Respondent could not
provide any documentary evidence corroborating the mailing.
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Player A, X / Club B, Y
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17.
In view of the aforementioned, the Chamber concluded that the Respondent did
not succeed in proving that the said letter was sent to the Claimant on 22
December 2006 and that therefore it did not constitute any reliable proof for the
Respondent’s respective allegations. This in particular also in view of the fact that
a letter with similar contents was then sent by the Respondent to the claimant in
mid-March 2007.
18.
With regard to the relevant letter dated 12 March 2007 produced by the
Respondent in the current procedure, the Chamber emphasised that only this
letter, dated and sent on the date indicated, confirmed the will of the Respondent
to terminate the contractual relation with the Claimant. In this respect, the
Chamber pointed out that the registration receipt of the letter dated 13 March
2007 proved that this letter had actually been sent off, even though it had
obviously been sent to the wrong address, the Claimant apparently not living in
Portugal anymore since September 2006.
19.
In continuation, the Chamber took note of the fact that the Respondent had
purported that it had always been willing to keep up the contractual relation with
the Claimant. However, the Respondent did not provide the DRC with any
evidence which could be interpreted as a sign of willingness to reintegrate the
Claimant within its team. On the contrary, it appeared to the Chamber that the
Respondent tried to keep its own responsibility limited as long as possible by
asserting that it was C to whom the Claimant was contractually bound for the
football season 2006/07.
20.
Moreover, the Chamber was eager to emphasise that the Respondent was not able
to prove any form of contact to the Claimant - not to mention any form of
expressing a wish to reinstating him in its own team - until its aforementioned
registered letter dated 12 March 2007. On the contrary, the Chamber noted that
the Respondent alleged - but did not succeed to prove - that the Claimant
abandoned work and therefore breached the contract, which according to the
Respondent is to be considered as terminated as from 14 September 2007.
21.
On the other hand, the Chamber emphasised that the Respondent had to
acquiesce the reproach of the Claimant that the Respondent had not reacted to
the two written solicitations by the Claimant of 15 and 22 December 2006, by
means of which the legal representative of the Claimant expressly asked the
Respondent for its comments on the situation concerning the Claimant and C. The
Chamber stressed in particular that the Respondent confirmed having received the
said correspondence, but that it did not deem it appropriate or necessary to
respond.
22.
The Chamber pointed out that with regard to this correspondence, the Claimant
had clearly demonstrated his position by confirming that on the one hand he still
felt somehow contractually bound to C and that he considered having rendered
his services to that club since July 2006. However, on the other hand, by soliciting
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Player A, X / Club B, Y
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the Respondent by copy of the said correspondence, the Claimant had shown his
willingness to render his services also to his club of origin if so deemed
appropriate. The Chamber noted in this respect that, despite the contacting by the
Claimant being rather late considering his departure from C on 24 August 2006,
the Respondent had failed to react in any way, although it was still contractually
bound to the Claimant by the abovementioned employment contract. In this
respect, the Chamber was eager to stress that even in the case that the Claimant
had been validly lent to C, the Respondent, as the club of origin of the Claimant,
would have had the obligation to get in contact with him at the latest after
having been informed by C on 24 August 2007 that the Claimant would not be a
part of its team for the football season 2006/07. Yet, there is no evidence at all for
such a contracting.
23.
On account of all of the above, the Chamber concluded that the Respondent had
not shown any sign of willingness to reintegrate the Claimant in its team, even
after having been informed by him about his situation with C and after the
Claimant having solicited the Respondent by correspondence dated 15 and 22
December 2006 to give his comments on the situation. Concerning these two
solicitations, the Chamber was eager to point out that they were to be considered
as formal offers from the Claimant to play for either one of the two clubs
concerned. The Chamber deemed that, at this point, on the one hand the
Claimant still considered himself contractually bound to C, this belief being
confirmed by the complaint lodged with FIFA against C on 30 January 2007. Yet,
on the other hand the Claimant was still considering also a valid contractual
relation with the Respondent.
24.
The Chamber therefore confirmed that the Claimant had, albeit somewhat late,
validly offered his services to the Respondent, the latter having been disinterested
by the contacting of the Claimant although there had been a valid contractual
relationship between the two parties until 30 June 2010. Furthermore, the
Chamber deemed that by not reacting to the Claimant’s letters of December 2006,
the Respondent had tacitly recognised that a contractual relationship still existed
at that time. In particular, also in view of the fact that it later on informed the
Claimant of the termination of the contract on 12 March 2007.
25.
On the basis of all theses considerations, the members of the Chamber concluded
that the Respondent had unilaterally terminated the employment agreement
concluded between the two parties on 1 June 2005 by means of its letter dated 12
March 2007 without being able to prove the existence of any just cause and thus
acted in breach of contract.
26.
In continuation, the Chamber stated that based on its conclusions, i.e. in particular
the fact that the Respondent had to be considered responsible for the breach of
contract without just cause and not the Claimant, the counter-claim of the
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Respondent needs to be rejected. Therefore, it refrained from analysing the
validity of the penalty clause contained in the employment contract.
27.
The Chamber continued its deliberations by emphasising that, as a general
principle, a club is obliged to remunerate a player, as agreed between the parties,
for the period of time during which he has rendered his services to the club, unless
the club can justify the non-payment of the agreed remuneration.
28.
In view of the above, the Chamber addressed the question whether the
Respondent had valid reasons for not paying to the Claimant the salaries
corresponding to the contractually agreed remuneration for the period from July
2006 until the illegitimate termination of the contract on 12 March 2007.
29.
With regard to the above and in line with its previous considerations, the Chamber
deemed that the Claimant had spent the two months of July and August 2006 in
Portugal having rendered his services to C on trials only, the Respondent thus
remaining liable for the payment of the respective salaries for this period of time.
30.
Furthermore and as of this date, the Claimant considers that - his employment
contract with the Respondent not having ceased effect - he should have been
allowed to rejoin his club of origin in September 2006, the latter being obliged to
pay him the contractually agreed salary. The Claimant alleges, however, that from
the month of August 2006 until the present time, the Respondent had not wanted
to restore him to the team despite the Claimant’s attempts to return to his former
club.
31.
In this respect, the Chamber recalled that the contract between the parties
remained in force until 12 March 2007. Yet, the Respondent asserts that it had not
had any contact with the Claimant since 24 August 2006, the date of the
Claimant’s departure from C. Moreover, the Respondent alleges that the Claimant
had abandoned his employment and that it paid all the salary due to him until
then.
32.
In this regard, the Chamber stated that in fact the Claimant should have offered
his services to his club of origin, i.e. to the Respondent, immediately after having
been told that C was not interested in him, respectively after having left the said
club. Yet, the first evidence for a contacting of his employer by the Claimant are
his letters of December 2006. The Chamber thus concluded that the Claimant was
not able to demonstrate that he had tried to be restored to the Respondent’s
team after having been sent off by C and that he could not prove to have offered
his services to his employer in a sufficient manner prior to contacting C. Instead,
the Claimant left the country without notice until he put C in default by means of
his two faxes dated 14 and 22 December 2006, respectively asking the Respondent
for its comments by copy of these two faxes on 15 and 22 December 2006.
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
13
33.
On account of the aforesaid, the members of the Chamber wished to stress that
during the period from September 2006 until 15 December 2006, the Claimant
could not prove in a sufficient way that he had offered his services to either of the
two involved clubs and thus was not able to substantiate his entitlement to receive
his contractually owed salaries during this time.
34.
Concerning the period from 15 December 2006 until 12 March 2007, the Chamber
stated that, in view of its conclusion that no valid loan agreement had ever been
concluded, the situation of the Claimant was to be considered as one in which he
had validly offered his services to his employer, i.e. to the Respondent, without the
latter accepting them, and therefore had regained his entitlement to receive his
contractually promised salaries. Consequently, the Chamber concluded that,
besides the two months of July and August 2006, the Claimant had the right to
receive his contractually agreed salaries for these additional three months. Based
on the contractual provisions for the football season 2006/07, the Claimant was
therefore entitled to receive the claimed amount of EUR 18’333 in respect of salary
arrears.
35.
In continuation, the Chamber turned its attention to the consequences in
connection with the unjustified and premature termination of the employment
contract by the Respondent and concluded that in accordance with art. 17 par. 1
of the Regulations the Respondent is liable to pay compensation to the Claimant
for the breach of contract.
36.
In this context, the Chamber considered that the Claimant requested the sum of
EUR 851,000, of which EUR 351,000 correspond to the residual value of the
contract concluded with the Respondent and EUR 500,000 for the loss of earnings
suffered by the Claimant, established as a fixed amount.
37.
The Chamber referred to art. 17 par. 1 of the Regulations, in particular to the nonexhaustive enumeration of objective criteria for the calculation of the
compensation, and took into account in particular the contractually agreed
remuneration for the remaining time of the relevant employment contract as well
as the time remaining on the said employment contract. Equally, the Chamber
considered that the employment relationship was terminated during the course of
the season and that the Claimant has still not been able to find a new club in
which he would be able to play football as a professional.
38.
On the other hand, the Chamber also took into consideration that the Claimant
had not been able to demonstrate that he had tried to be restored to the
Respondent’s team immediately after having been sent off by C on 24 August
2006 and that he could not prove to have sufficiently offered his services to his
employer prior to 15 December 2006. In fact, the Chamber considered it to be an
essential factor having an importantly reductive effect on the amount of
compensation that the player left for France instead of offering his services. The
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
14
Chamber was of the opinion that by this stance the Claimant certainly contributed
to the deterioration of the relationship with the Respondent.
39.
In view of all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that the amount of EUR 20,000 was to be considered
reasonable and justified as compensation for breach of contract.
40.
Finally, with respect to the Claimant’s request to be awarded his legal expenses,
the Chamber decided to reject the relevant request in conformity with its
longstanding practice and on the basis of art. 15 par. 3 of the Rules governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.
Moreover, the Chamber also stated not to take any other measures against the
club.
41.
As a result, the Dispute Resolution Chamber decided that the Respondent has to
pay EUR 38’333 to the Claimant (EUR 18’333 as outstanding salaries and EUR
20,000 as compensation). Consequently, the DRC partially accepted the Claimant’s
claim and fully rejected the Respondent’s counter-claim.
42.
For the sake of completeness, the Chamber stated that the parties are no longer
contractually bound to each other as of 12 March 2007.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant/Counter-Respondent, A, is partially accepted.
2.
The counter-claim submitted by the Respondent/Counter-Claimant, the club B, is
rejected.
3.
B is ordered to pay the amount of EUR 38’333 to A within 30 days as of
notification of the present decision.
4.
If the aforementioned amount is not paid within the stated deadline, an interest
rate of 5% per year shall apply, as from expiry of the stated deadline.
5.
In the event that the club B does not comply with the present decision, the matter
shall be submitted to FIFA’s Disciplinary Committee, so that the necessary
disciplinary sanctions may be imposed.
6.
Any
further
claims
of
the
Claimant/Counter-Respondent
Respondent/Counter-Claimant are rejected.
7.
The player A is directed to inform B, directly and immediately of the account
number to which the remittance is to be made, and to notify the Dispute
Resolution Chamber about any receipt of the payment.
or
the
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
15
8.
According to art. 61 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 General Secretary
Enclosed: CAS directives
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
16