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 Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
Philippe Piat (France), member
on the claim presented by the player
P, X,
represented by Mr XY, attorney-at-law
as Claimant/Counter-Respondent
against the club
C, Y
as Respondent/Counter-Claimant
regarding a contractual dispute arisen between the player and the club.
I.
Facts of the case
1.
The X player P (hereinafter: the Claimant) and the Y club C (hereinafter: the
Respondent) concluded the two following employment contracts:
2.
On the one hand, the “Professional Player’s contract” (hereinafter: the professional
contract) dated 24 January 2006 which was registered with the Y Football
Association. It provides for a period of validity from 24 January 2006 until 31 May
2008 and the following remuneration:
- Monthly salary: “Cannot be less then minimum wage”
- “Other payments to the player: 50,000 paid as cash”.
3.
On the other hand, the “contract” (hereinafter: “the contract”) which provides for
a period of validity from 15 January 2006 until 31 May 2008 and for the following
remuneration:
a) For the first two years, i.e. from 15 January 2006 until 15 January 2008: EUR
200,000 per year, payable as follows:
o EUR 60,000 in cash upon the signing of the contract, at the latest on 15
January 2006 and 15 January 2007, respectively.
o EUR 60,000 in ten equal monthly instalments in the amount of EUR 6,000
as of 15th February of each year.
o EUR 80,000 depending on the performance of the player in the official
matches. About EUR 2,350 per official match with an average of 34
matches per year.
b) For the period from 15 January 2008 until 31 May 2008: EUR 100,000, payable as
follows:
o EUR 30,000 in cash, payable at the latest on 15 January 2008.
o EUR 30,000 in six monthly instalments in the amount of EUR 5,000, as of
the 15th of each month for the month passed.
o EU 40,000 depending on the performance of the player in official matches.
A sum of about EUR 2,320 per match for an average of 17 matches
annually.
4.
On 23 May 2006, the Claimant lodged a formal complaint at FIFA, explaining that
two employment contracts had been concluded between him and the Respondent
due to some financial considerations of the Respondent. He put forward that both
contracts were valid as parties are free to sign more than one
contract. He informed that he terminated the employment contract with the
Respondent unilaterally on 8 May 2006 by informing the Y Football Federation as
the Respondent had allegedly breached the contract by failing to pay him the
salaries. The Claimant asserted that at the time when he left the
2
Respondent, he had received the total amount of EUR 69,200 EUR from the club by
means of the following instalments:
o EUR 60,000
on 18 January 2006
o EUR 1,000 (or 1,620)
on 10 March 2006
o EUR 1,200 (or 1,944)
on 17 March 2006
o EUR 4,500 (or 7,335)
on 13 April 2006
o EUR 2,500
on 27 April 2006.
5.
However, the Claimant put forward that at the time of his unilateral termination
of the contract, he should have received the total amount of EUR 117,850 resulting
from the contract plus 52,265 from the professional contract which, according to
the Claimant’s assertion, equals to EUR 26,800 and which leads to a total due sum
of EUR 144,650. The Claimant stated that these amounts could be broken down as
follows:
6.
According to the contract, the Claimant claims that the following amounts were
due:
o EUR 60,000
o EUR 18,000 (3 monthly salaries in the amount of EUR 6,000)
o EUR 4,600 (monthly salary for 15 April until 8 May 2006)
o EUR 35,250 (15 matches x EUR 2,350).
7.
According to the professional contract, the Claimant claims that the following
amounts were due:
o 50,000 (which had not been paid to him)
o 2,124 (4 monthly salaries of 531 which is allegedly the “minimum wage”)
o 141 (8 days in May of the minimum wage).
8.
The Claimant stated that subtracting the amount of EUR 69,200 which he had
received from the Respondent from the total due amount of EUR 144,650, it lead
to an outstanding amount of EUR 75,450 at the time of his unilateral termination,
i.e. 8 May 2006.
9.
The Claimant explained to have participated in 15 matches for the Respondent. For
the breach of contract allegedly committed by the Respondent, he requests
payment of the aforementioned outstanding salaries in the amount of EUR 75,450
plus compensation in the amount of EUR 356,400 for the rest value of the contracts
which can be broken down as follows:
a) According to the contract:
- First year:
EUR 48,000 (8 monthly salaries in the amount of EUR 6,000)
EUR 1,400 (for the salary of May)
- Second year: EUR 200,000
- Third year:
EUR 100,000.
b) According to the professional contract:
3
13,665 equal to EUR 7,000 (for 25 monthly minimum wages of 531 plus 390 for
the minimum wage for May).
10.
In its response to the claim, the Respondent confirmed to have concluded an
employment contract with the Claimant for 2,5 years and that according to the
contract, the Claimant was entitled to receive the amount of EUR 200,000 for the
first year. In this respect, the Respondent stated that it had paid the amount of EUR
115,533 to the Claimant which was more than half of the money for the first four
months of his first year and even though it had been in a bad financial situation. In
support of its statement, the Respondent submitted a list with all the payments
made to the Claimant in a total amount of EUR 115,553 with the respective
payment dates, some accompanied with the respective debited bank statements.
11.
The Respondent stated that the Claimant had, even though he had been paid the
aforementioned sum, terminated the contract unilaterally. The Respondent
furthermore mentioned that the amount of 50,000 which it undertook to pay to
the Claimant according to the professional contract, had been paid cash to the
Claimant in the building of the club and that it did not have to provide any
evidence for this payment as it clearly emanated from the professional contract
that the amount of 50,000 had been paid to the Claimant in cash in advance. The
Respondent admitted that the payments may not have always been made on time
due to managing problems. By means of a counter-claim, the Respondent claims
payment of EUR 356,400 as compensation plus EUR 165,000 paid to the Claimant’s
former club as transfer compensation from the Claimant which leads to a total
claimed amount of EUR 521,400. Furthermore, with respect to the minimum wage,
the Respondent explained that it varied depending on the period of time and that
at the relevant time, as stated by the government, the minimum wage amounted
to 380.46.
12.
The Claimant rejected the counter-claim of the Respondent and adhered to his
position. He commented that the minimum gross wage of 531 and the amount of
50,000 never had been paid to him and that the Respondent had to provide
evidence to prove the relevant payments. He mentioned that 50,000 is a big
amount of money and that the Respondent should have received a payment
receipt, duly signed by him. Furthermore, he alleged that all the payments had
been effected by the Respondent via bank which would lead to the question why
the afore-mentioned payment had been done in cash at the building of the club.
He explained that the Respondent had admitted to have been late with the
payments and that it could be seen from the payments as indicated in the claim,
that the payments were never effected on time and the Respondent had herewith
breached the contract.
13.
With respect to the payment receipts submitted by the Respondent, the Claimant
informed that two of them, one dated 16 March 2006 in the amount of EUR 2,346
(or 3,800) and one dated 6 April 2006 in the amount of EUR 4,104 (or 6,650), were
related to bonus payments which were paid to all the players in the same amount
and on the same date and were not “transfer documents” and that he therefore
4
did not accept them. Furthermore, the Claimant mentioned that the list submitted
by the Respondent showed the amount of EUR 6,650 instead of 6,650 and that, in
fact, the Respondent had paid 6,650 as bonus payment which has to be calculated
as EUR 4,104. Additionally, the Claimant mentioned that he could not accept the
listed payment of EUR 300 because he had never received this amount and that the
Respondent had not presented any evidence in this regard as the document
submitted by the Respondent did not bear his signature. Furthermore, the
Claimant mentioned that the amount paid to his former club as transfer
compensation was not relevant to the present case.
14.
In its comments thereto, the Respondent stated that the Claimant had terminated
the contract without even awaiting the end of the season. It furthermore affirmed
having paid EUR 115,000 to the Claimant which meant that it had overpaid the
Claimant for the four months during which he had stayed at the club.
15.
In his closing arguments, the Claimant reiterated his statements and put forward
that he had participated in almost all the matches and that the Respondent had
never paid him his salaries on time. The Claimant enclosed a list which outlines all
the matches at which he participated. Additionally, he enclosed a chart with the
minimum wages on the respective dates. For 1 January 2006, the gross amount of
531 and the net amount of 380.50 are indicated.
16.
FIFA was informed that the Claimant concluded a new employment contract with
the L club, F, for the period from 11 October 2006 until 31 December 2007. The
indicated remuneration amounts to EUR 10,000 as signing-on fee and EUR 200 as
monthly salary and “any other earnings and allowances in accordance with the
Club’s acts”. The Claimant affirmed that the aforementioned amounts, i.e. EUR
10,000 as signing-on fee and EUR 200 as monthly salary were his total
remuneration at the new club.
17.
Being invited to submit its comments to the present matter as intervening party,
the Claimant’s new club, F, did not provide any comments.
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 23 May 2006, as a consequence the Chamber concluded that
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
5
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 employment-related 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 Y club and a X player regarding a
dispute in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed 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 contracts at the
basis of the present dispute were signed in January 2006 and the claim was lodged
at FIFA on 23 May 2006. In view of the aforementioned, the Chamber concluded
that the current FIFA Regulations for the Status and Transfer of Players (edition
2005, hereafter: the Regulations) are applicable to the case at hand as to the
substance.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging the above-mentioned facts and all further
documentation contained in the file. In particular, they took note that the parties
had concluded two employment contracts: the professional contract - registered
with the Y Football Association - with a period of validity from 24 January 2006
until 31 May 2008 and the contract with a period of validity from 15 January 2006
until 31 May 2008.
6.
The Chamber further noted that according to the professional contract, the parties
had agreed on a monthly net salary not less then the minimum wage which
corresponds to a monthly net salary of 380.50 equal to EUR 220 which was not
disputed. In addition a lump sum payment of 50,000 equal to EUR 28,840 had been
agreed upon. The members of the DRC further took note that according to the
contract, the parties had agreed upon a lump sum payment of EUR 60,000 for each
year, a monthly salary of EUR 6,000 (for the period from 15 January 2008 until 31
May 2008 only EUR 5,000) and about EUR 2,350 for each performed official match.
7.
Equally, the members acknowledged the fact that the Claimant had unilaterally
terminated the employment contract with the Respondent on 8 May 2006, i.e.
before the ordinary expiry of the employment contract.
8.
In this respect, the members of the DRC took note of the fact that the Claimant
considers to have terminated the employment contract with just cause and that he
demands, in particular, payment of EUR 75,450 for outstanding salaries and EUR
6
356,400 as compensation for breach of contract corresponding to the rest value of
the contract.
9.
On the other hand, the Chamber acknowledged that the Respondent alleged to
have paid the amount of EUR 115,533 to the Claimant and that the Claimant had
left the club without just cause. The Respondent therefore demands, by means of a
counter-claim, payment of compensation in the total amount of EUR 521,400 from
the Claimant.
10.
The Chamber stated that, in view of these contradictory positions, it first had to
analyze whether the player had terminated the contract with or without just cause,
and to determine whether a party is accountable for outstanding payments and/or
compensation.
11.
In this respect, the Chamber pointed out that, as a general rule, a party may
terminate an employment contract for just cause at any time (cf. art. 14 of the
Regulations). The Chamber noted that in the case at stake the Claimant terminated
the employment contract as he allegedly had not received all the due salaries.
12.
To that regard, the Chamber stated that, according to its established jurisprudence,
the persistent failure of a club to pay the salaries of a player, without just cause, is
to be considered as a unilateral breach of an employment contract.
13.
In this respect, the Chamber drew its attention to the allegation of the Respondent
to have paid EUR 115,533 to the Claimant. However, the Chamber noted that the
Claimant claims not to have received more than EUR 69,200 from the Respondent
until the date of his unilateral termination of the contract.
14.
With regard to the alleged salary payments, the members of the Chamber
underlined that, as a general rule, the debtor, i.e. in the present case the
Respondent, bears the burden of proof of having paid the due amount (cf. art. 12
par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber).
15.
In this respect, the Chamber acknowledged that the Respondent had submitted a
list of allegedly effected payments, some along with debit notes of the bank. After
a careful analysis of the statements, which contain the name of the beneficiary,
namely the Claimant, the name of the Respondent, the respective amounts and the
dates of execution, the Chamber concluded that the Respondent had submitted
evidence of payments in the total amount of EUR 75,231.
16.
In particular, the Chamber stated that with respect to the alleged payment of
50,000 equal to EUR 28,840, the Chamber added that it could not be established
from the professional contract that the afore-mentioned amount had been paid to
the Claimant. Furthermore, the Chamber stated that the Respondent had not
provided any documentary evidence to corroborate its assertion to have paid the
aforementioned amount to the Claimant. In consequence, due to lack of
7
documentary evidence, the Chamber stated that it had to be assumed that the
Respondent did not pay the amount of EUR 28,840. Equally, the Chamber noted
that no evidence had been submitted with respect to the allegedly paid amount of
EUR 300. Finally, the Chamber stated that the amount of EUR 2,965 could not be
taken into account as the Respondent obviously did not convert the amount of
6,650 into Euros in its calculation.
17.
In continuation, the Chamber stated that it now had to calculate the salaries which
were due at the time of the Claimant’s unilateral termination of the employment
contract, i.e. on 8 May 2006.
18.
In this respect, the members of the DRC drew their attention to the fact that the
parties had concluded two employment contracts. They noted that neither party
had disputed the validity and implementation of either contract. The Chamber also
noted that the Respondent had asserted to have made salary payments according
to the professional contract and the contract. The Chamber therefore concluded
that both contracts are to be applied.
19.
Taking into account the aforementioned, the members of the DRC started to
calculate the total amount due by counting the salaries and match premiums due
according to the professional contract and the contract. The members calculated
that until 8 May 2006, the amount of EUR 145,110 was due to the Claimant. The
members added that they had taken into consideration the match premiums for
fourteen matches as according to the list provided by the Claimant, the latter had
actively participated in fourteen matches and not in fifteen as claimed by him. The
Chamber remarked that the match premiums were not contested by the
Respondent.
20.
In conclusion of the above, the Chamber summarised that at the time of the
unilateral termination of the employment contract, the amount of EUR 145,110
was due. However, the Respondent had only paid EUR 75,231 to the Claimant
which meant that the Respondent had failed to make salary payments in the
amount of EUR 69,879.
21.
In view of the above, the Chamber decided that by not having paid salaries and
match premiums in the amount of EUR 69,879 to the Claimant, the Respondent
had breached the relevant employment contracts without valid reason. As a
consequence, the Claimant had unilaterally terminated the contracts with just
cause on 8 May 2006.
22.
Furthermore, the Chamber decided that as the Claimant had terminated the
employment contracts with just cause, he is, apart from the undisputedly
outstanding salaries, entitled to receive compensation from the Respondent for
breach of contract without just cause (cf. art. 17 par. 1 of the Regulations).
23.
With respect to the amount of compensation to be paid to the Claimant, the
Chamber took into consideration that the Claimant had signed a new employment
8
contracts with the club F for the period from 11 October 2006 until 31 December
2007. As a consequence, the earnings out of such contract also need to be
considered.
24.
On account of all the above, the Chamber decided as follows: Given that the
Claimant had terminated the employment contracts with the Respondent with just
cause on 8 May 2006, the Claimant is entitled to receive the outstanding salaries of
EUR 69,879.
25.
With regard to the compensation due for breach of contract without just cause
committed by the Respondent, the Chamber decided that taking into account the
aforementioned considerations (points II.22 and II.23 above), the Respondent has
to pay to the Claimant the lump sum of EUR 120,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player P is partially accepted.
2.
The Respondent, Club C, has to pay the total amount of EUR 189,879 (USD 69,879
as outstanding salaries, USD 120,000 as compensation) to the player P, within 30
days following the date of the notification of the present decision.
3.
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 relevant
time-frame and the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
4.
Any further claims submitted by the Claimant are rejected.
5.
The Claimant is directed to inform the Respondent 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.
6.
The counter-claim submitted by Club C is fully rejected.
7.
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:
9
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-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
10