Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 September 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
on the claim presented by the player,
M,
as Claimant
against the club,
N FC,
as Respondent
regarding an employment-related contractual dispute arisen between the player and the
club
I.
Facts of the case
1.
On 10 January 2008, the B player, M, (hereinafter: the Claimant) and the A club, N
FC, (hereinafter: the Respondent) signed an employment contract valid as from 10
January 2008 until 1 May 2009 (hereinafter: the contract).
2.
In accordance with the contract, the Claimant was entitled to receive inter alia
salaries as follows:
a. As from 10 January 2008 to 31 May 2008: a total of USD 50,000;
b. As from 1 June 2008 to 31 May 2009: a total of USD 150,000;
c. 50% of the annual salary is paid at the beginning of the season;
d. 50% is paid in equal instalments over 12 months at the end of each month.
3.
In addition, according to the contract, the Respondent was to provide the Claimant
with accommodation and two air tickets.
4.
According to art. 4 par. 1 of the contract, “If the player plays less than 40% of the
games in the main championships until 31st May of 2008 then the club has the right
to terminate this contract”.
5.
According to art. 6 par. 4 of the contract, the Claimant can prematurely terminate
the contract, inter alia, if the Respondent does not fulfil its contractual
responsibilities. In such case, according to the same article, the Claimant has the
right to receive the salaries for the period of time during which he rendered his
services to the Respondent.
6.
On 3 and 22 August 2008, the Claimant turned to FIFA claiming that the
Respondent had failed to pay the following monies:
a. Salaries for March, April, and May 2008
b. Salaries for June and July 2008
c. Advance payment for the new season
d. House rent
e. Air ticket to return to B
USD 30,000
USD 12,500
USD 75,000
USD 6,000
USD 1,800
7.
In addition, according to the Claimant, the Respondent forbade him to train with
the team.
8.
For these reasons, the Claimant asked that he be authorised to sign on with another
club.
9.
The Claimant asserts having returned to B on 13 August 2008.
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10.
In reply, the Respondent informed FIFA that it considered the matter with the
Claimant as settled. It added that the Claimant was granted a free transfer to
another A club and that the financial problems were solved.
11.
In reaction, the Claimant asked the Respondent to provide him with documentation
demonstrating a) the termination of the employment contract, b) that the Claimant
is free to join the club of his choice, and c) the dates on which the amounts owed to
the Claimant will be paid.
12.
The Respondent then pointed out that according to the contract, it had the
authority to terminate the contract without the obligation to pay compensation if
the Claimant would not play 40% of the games of the remaining championship.
13.
It asserts that at the end of the season there were no financial issues between the
parties when the Claimant left for B.
14.
However, the Claimant failed to resume his duties after the holidays, in fact, he did
not return to A. In this regard, the Respondent refers to its letter dated 14 August
2008, sent to FIFA, indicating that the Claimant left the Respondent in May 2008
without having returned, in violation of the terms of the contract and leaving the
Respondent without the opportunity to “discuss the contract terms and payments”.
15.
In his replica, the Claimant amended his claim. In addition to the outstanding
salaries and the advance payment for the new season (cf. no. I/6. above) he claimed
that the Respondent had breached the contract and requests that the Respondent
be ordered to pay to him compensation for breach of contract.
16.
This is, the Claimant maintains that the Respondent acted in breach of the
employment contract and therefore claims payment of the following monies:
a. Salaries as from March 2008 to July 2008
USD 42,500
b. Advance payment for the new season
USD 75,000
c. Compensation for breach of contract
USD 62,500
d. 5% interest p.a. as of the due date of each
instalment
17.
Equally, the Claimant confirms having returned to B on 26 May 2008 for vacation
after the end of the season, when his salary as of March 2008 had still remained
outstanding.
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18.
The Claimant further asserts having returned to the Respondent on 23 June 2008,
when, in the meantime, the USD 75,000 advance payment for the new season had
also fallen due. He was then informed by the Respondent that he was not allowed
to train or to enter its facilities.
19.
Efforts were made to settle the matter amicably and the Respondent told the
Claimant to look for another club. In view of his financial hardship and the situation
with the Respondent having remained unresolved he decided to return to B on 13
August 2008.
20.
The Claimant considers that art. 4 par. 1 of the contract, which is invoked by the
Respondent, is abusive and not acceptable. In any way, according to the Claimant,
he was never formally notified by the Respondent of any contract termination. The
Claimant considers that the pertinent contract was still in force when he referred his
case to FIFA in August 2008.
21.
Upon request, on 9 March 2009, the Claimant informed FIFA that he had remained
unemployed since he left A.
22.
The Respondent, for its part, rejects the claim put forward by the Claimant and
insists that, in May 2008, the Claimant had left the Respondent for B without
permission and without having returned to resume training.
23.
The Respondent considers that the issue had been solved in September 2008 and
that it terminated the contract in accordance with its art. 4 par. 1 as the Claimant
had participated in less than 40% of the Respondent’s matches as from January
2008 to May 2008.
24.
It adds that the Claimant had received his remuneration in full while playing for the
Respondent’s team.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the
Chamber” or “the 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
in August 2008. Consequently, the Rules Governing the Procedures of the 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).
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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 2008) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a B player and an A club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2008), and considering that the present claim was lodged in August 2008, the 2008
edition of the said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber acknowledged that the Claimant and the Respondent signed an
employment contract on 10 January 2008 valid until 1 May 2009. The Claimant, on
the one hand, maintains that the Respondent breached the contract by failing to
remit his salaries in a timely manner and excluding him from the team. The
Respondent, on the other hand, rejects such claim and submits that the Claimant
had left the Respondent without its permission and without having resumed his
duties. The Respondent further holds that it duly terminated the contract in
accordance with its article 4 par. 1, as the Claimant had participated in less than
40% of the matches as from January 2008 until May 2008.
5.
In this context, the Chamber firstly focussed its attention on the said art. 4 par. 1 of
the contract, which reads as follows: “If the player plays less than 40% of the games
in the main championships until 31st May of 2008 then the club has the right to
terminate this contract”.
6.
In this regard, the Chamber took into account that such clause appears to be
unilateral and to the benefit of the Respondent only. What is more, the decision on
the lining-up of players in a match is normally left fully to the discretion of the club.
In the light of such potestative character of the pertinent contractual clause, the
members of the Chamber agreed that art. 4 par. 1 of the contract is not acceptable.
7.
Therefore, the Chamber concurred that the said art. 4 par. 1 of the contract does
not constitute a reason that can be validly invoked nor a legal basis to unilaterally
terminate the contract. Consequently, the Chamber rejected the Respondent’s
argument in this respect.
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8.
Subsequently, the members of the Chamber recalled that according to the
Respondent, the Claimant had not resumed his contractual duties after he had left
for his holidays in May 2008. In a later statement, the Respondent added that the
Claimant had left the Respondent without its permission. The Claimant, for his part,
confirms that he had returned to B for vacation on 26 May 2008, pointing out that
at that time his salary as of March 2008 had remained outstanding. The Claimant
also confirms having returned to the Respondent on 23 June 2008, thus refuting the
latter’s allegations that he had not returned to the Respondent. Furthermore,
according to the Claimant, he had finally returned to B on 13 August 2008, the
situation with the Respondent having remained unresolved.
9.
With respect to the Respondent’s allegation that the Claimant had not returned to
the Respondent after his holidays, the Chamber took into account that the
Respondent had failed to present any documentation in support of its position.
From the documentation presented by the Claimant, however, the Chamber took
note of the invoice dated 7 August 2008, issued by the airline company in A, from
which the members of the Chamber noted that such invoice was issued to Mr. X in
the city of A indicating cash payment of a ticket A-F-S. This document, according to
the Chamber, gives strong indications in support of the Claimant’s position that he
had returned to A after he had left for vacation to B in May 2008. For these reasons,
the Chamber rejected the Respondent’s argument that the Claimant had not
returned after his holidays.
10.
In this context, the members of the Chamber took into account that the reason
indicated by the Claimant for his return to B in May 2008, i.e. holidays, must be
considered plausible, especially in the light of the sportive season having come to an
end around that specific period of time.
11.
Irrespective of the aforementioned considerations, the Chamber pointed out that
according to the Claimant, his salaries as of March 2008 had remained unpaid. The
Respondent, for its part, alleges that all financial issues between the Claimant and
the Respondent had been settled at the end of the season when the Claimant left
for B. Bearing in mind 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, the Chamber took due note that the Respondent had failed to
present documentary evidence demonstrating that it had in fact remitted the
Claimant’s salary as of March 2008 in accordance with the relevant clause in the
contract.
12.
In continuation, reverting to the Respondent’s position that the Claimant had left
the Respondent without its permission and without having resumed his contractual
duties, on account of the aforementioned consideration (cf. no. II/11. above), the
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Chamber deemed it fit to point out that the Claimant had just cause not to return
to the Respondent.
13.
In this respect, and in the light of the foregoing, the Chamber added that the
Claimant had valid reasons to return to B in August 2008, i.e. prior to the expiry of
the contract, which is the moment in time as of which the pertinent contract was
considered terminated at the Respondent’s fault.
14.
For all of these reasons, the Chamber decided to reject the Respondent’s arguments
and to accept the Claimant’s claim that the Respondent had acted in breach of the
employment contract by failing to remit the Claimant’s salaries during a
considerable amount of time, i.e. as of March 2008, without just cause.
15.
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
contract.
16.
The Chamber then reverted to the Claimant’s financial claim, which includes
outstanding remuneration as from March 2008, and recalled that the Respondent
failed to demonstrate that it had in fact paid the Claimant’s remuneration as from
March 2008 onwards. That is, the Respondent has not presented any documentation
in support of its position that the Claimant had received his remuneration in full
while rendering his services to the Respondent and/or that the “issue” with the
Claimant had been settled. Consequently, taking into account the documentation
remitted by the Claimant to substantiate his claim, i.e. the relevant employment
contract, and the fact that the contract was considered terminated as of August
2008 (cf. no. II/13. above) the Chamber decided that the Respondent is liable to pay
to the Claimant the amount of USD 117,500 relating to the payments due to the
Claimant in accordance with the contract as from March 2008 up to and including
July 2008.
17.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. as of the day following the day
on which each of the salary payments included in the global amount of USD 117,500
fell due in accordance with the pertinent employment contract.
18.
In continuation, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, the
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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.
19.
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
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party in the event of breach of contract. Art. 6 par. 4
of the employment contract (cf. no. I/5. above) merely entitles the Claimant to
unilaterally terminate the employment contract, whereupon he would be entitled
to receive the salaries for the period of time that he rendered his services to the
Respondent. The members of the Chamber agreed that such clause does in fact not
provide for any compensation payable by the contractual party in breach of
contract in the sense of the aforementioned art. 17 par. 1 of the Regulations.
Consequently, the Chamber established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
20.
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.
21.
On this basis, the members of the Chamber highlighted that at the moment of the
early termination of the employment contract in August 2008, the Respondent was
in arrears of five monthly salaries. The Chamber deemed that it should consider this
fact in determining the amount of compensation to be paid by the Respondent.
22.
Equally, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the
Claimant in accordance with the contract as well as the time remaining on the same
contract, as well as the professional situation of the Claimant after the early
termination occurred until the present moment. In fact, the Claimant appears to
have remained unemployed until at least 9 March 2009. Finally, the Chamber took
into account that the Claimant, for his part, claims the amount of USD 62,500 as
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compensation for breach of contract, which amount, in fact, reflects the remaining
value of the pertinent employment contract as of the moment on which the breach
of contract occurred.
23.
In view of all of the above, the Chamber concluded that bearing in mind art. 17 par.
1 of the Regulations as well as the circumstances of the case, the amount of
compensation of USD 62,500 as claimed by the Claimant would appear fair and
appropriate.
24.
In light of the above, the Dispute Resolution Chamber decided that the Respondent
has to pay to the Claimant the amount of USD 117,500 as outstanding remuneration
plus interest at the rate of 5% p.a. as of the day following the day on which each of
the payments included in the global amount of USD 117,500 fell due in accordance
with the pertinent employment contract.
25.
Furthermore, the Chamber decided that the Respondent is liable to pay to the
Claimant the amount of USD 62,500 as compensation for breach of contract.
26.
In conclusion, the Chamber decided to fully accept the claim lodged by the
Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the Claimant, M, is accepted.
2.
The Respondent, the Respondent, N FC, has to pay to the Claimant within 30 days as
from the date of notification of this decision outstanding remuneration amounting
to USD 117,500 plus interest until the date of effective payment as follows:
5% p.a. as of 1 April 2008 over the amount of USD 10,000
5% p.a. as of 1 May 2008 over the amount of USD 10,000
5% p.a. as of 1 June 2008 over the amount of USD 10,000
5% p.a. as of 1 July 2008 over the amount of USD 6,250
5% p.a. as of 1 August 2008 over the amount of USD 6,250
5% p.a. as of 30 June 2008 over the amount of USD 75,000
3.
The Respondent, N FC, has to pay to the Claimant compensation for breach of
contract in the amount of USD 62,500 within 30 days as from the date of
notification of this decision. In the event that this amount of compensation is not
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paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of
expiry of the 30 days’ time limit until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its consideration and decision.
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.
*****
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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