Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 January 2013,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Johan van Gaalen (South Africa), member
Todd Durbin (USA), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player S, from country C
as Claimant
against the club,
Club Z, from country B
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 17 August 2009, Player S, from country C (hereinafter: the Claimant) and Club Z,
from country B (hereinafter: the Respondent) concluded an employment contract
(hereinafter: the contract) valid as from 17 August 2009 until 31 January 2011,
according to which the Claimant was entitled to receive from the Respondent the
amount of currency of country B 700 as “personal income”. Furthermore, the
Respondent undertook to provide the Claimant with “food and lodging”.
2.
On 21 August 2009, the Claimant and the Respondent signed a document named
“Contract annex of a non amateur player” (hereinafter: the contract annex), valid
as from 17 August 2009 until 31 January 2011, according to which the Claimant was
entitled to receive from the Respondent the following:
EUR 7,500 ”by signing the main Contract and the Annex”;
EUR 7,500 “to be received till 15th January 2010”;
three plane tickets “on a relation from country B to country C”; and
EUR 2,500 as “personal income”.
3.
Furthermore, art. 3 of the contract annex stipulated that “Both sides have made an
agreement that a player can make an arrangement abroad while this Contract is on
power and this Contract Annex by sharing the total transfer in proportions of 60%
player and 40% club”.
4.
On 3 April 2010, the Claimant lodged a claim before FIFA against the Respondent
for breach of contract, which he amended on 20 July 2010. The Claimant reported
that the Respondent had stopped paying his salaries from November 2009 and had,
subsequently, stopped using his services as a professional football player and,
moreover, had not allowed him to take part in the Respondent’s matches forcing
him to play with the Respondent’s youth team without the right to receive his
salary. According to the Claimant, the Respondent had also prevented him from
joining another team. Furthermore, the Claimant explained that he had to leave his
apartment because the Respondent stopped paying the rent.
5.
In view of the foregoing, the Claimant requested the Dispute Resolution Chamber
to order the Respondent to pay EUR 92,500, corresponding to:
EUR 7,500 for an outstanding one-off payment due on 15 January 2010;
EUR 25,000 for outstanding salaries for October 2009 to July 2010;
EUR 5,000 as compensation for food, accommodation and travel;
EUR 15,000 as compensation for the salaries for the remaining term of the contract,
ie from August 2010 until 31 January 2011;
EUR 20,000 as compensation for moral damages;
EUR 20,000 as compensation for preventing him from working and joining another
team and for the ensuing loss of value caused.
-
Player S, from country C / Club Z, from country B
2
6.
In its position in reply to the claim, the Respondent rejected the Claimant’s claim in
its entirety, arguing that the Claimant had not complied with his contractual
obligations. Furthermore, the Respondent stated that the Claimant had been
suspended “due to his nonappearance at the beginning of preparation in January
2010 for the season 2009/2010”. In this respect, the Respondent provided FIFA with
a decision, dated 12 January 2010, by means of which the Claimant was “suspended
for an indefinite period of time until the disciplinary procedure is finished”.
Furthermore, the Respondent argued that the Claimant went to country K “for trial
matches” during his suspension “without the knowledge of the club”. Moreover,
the Respondent stated that it had provided the Claimant with currency of country B
6,500 on 25 December 2009, “for a plane ticket from country B to country C to visit
his family”, but that the latter “never went to country C and did not justify the
money by plane tickets”.
7.
In turn, the Claimant mainly reiterated the allegations made in his previous
submission. In addition, the Claimant confirmed that he had received money from
the Respondent for the plane tickets country B-country C (outward flight on 30
December 2009 and return flight on 20 January 2010) and provided FIFA with an
invoice for EUR 3,138.33 as proof that he had bought the relevant tickets. However,
the Claimant stated that he eventually did not go to country C due to visa problems
and that therefore, on 11 January 2010 (despite the Claimant’s claim that the
Respondent had approved his leave for 20 days as of 5 January 2010), he had turned
up for the preseason training sessions and trained with the team for about 20 days,
before the rest of the team left for country C. On 5 February 2010, the Respondent
allegedly went to country C to continue with its preseason preparation but the
Claimant was not invited to join the team. Moreover, the Claimant explained that
he had never received any notification of the suspension. Finally, the Claimant
explained that in July 2010, when he started attending the summer preseason
training sessions, he had tried to solve the matter with the Respondent, but that he
could not accept the conditions of the proposal made by the Respondent. Lastly,
the Claimant asserted that the Respondent frustrated his joining the country C club
Club H by requiring a EUR 40,000 transfer fee to be paid to the Respondent.
8.
In its final statement, dated 18 March 2011, the Respondent reiterated the
arguments put forward in its previous submission and, in addition, claimed that
“from January 12, 2010 we do not know where the player S is”. In addition, the
Respondent stressed that following the Claimant’s suspension it sought to agree on
a mutual termination of the contract. However, according to the Respondent,
despite the various solutions put forward to the Claimant, the latter did not accept
any of them.
9.
Finally, asked about his labour situation during the period from 1 January 2010
until 31 January 2011, the Claimant first reiterated that even though he had been
authorized to leave on holidays for 20 days he turned up on 11 January 2010 for the
preseason training sessions and trained together with the rest of the team until 4
Player S, from country C / Club Z, from country B
3
February 2010. Finally, the Claimant stated that he had been unemployed until 31
January 2011.
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, the Chamber took note that the present matter was submitted to
FIFA on 3 April 2010. Therefore, the DRC concluded that the 2008 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter
at hand (cf. art. 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 2012) the Dispute Resolution Chamber is competent to decide on
the present litigation, concerning an employment-related dispute of an
international dimension between a country C player and a country B club.
3.
In continuation, the DRC analysed which edition of the regulations should be
applicable as to the substance of the matter. In this respect, the Chamber confirmed
that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2009, 2010 and 2012) and also considering that the
present claim was lodged in front of FIFA on 3 April 2010, the 2009 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Dispute Resolution Chamber and the applicable regulations
having been established, the Chamber entered into the substance of the matter.
The DRC started by acknowledging that the parties to the dispute had signed an
employment contract as well as an annex to the contract valid as from 17 August
2009 until 31 January 2011.
5.
Equally, the Dispute Resolution Chamber observed that, read in conjunction, the
contract and the contract annex concluded between the parties stipulated a
remuneration made up of a signing bonus and a one-off payment amounting to
EUR 7,500 each and a monthly salary of EUR 2,500 and currency of country B 700. In
addition, according to the contractual arrangements between the parties, the
Respondent undertook to provide the Claimant with three plane tickets from
country B to country C. Furthermore, the Chamber noted that according to the
contract annex during the term of the contract the Claimant may move to another
club abroad in exchange for a transfer fee to be split between the parties as
follows: 60% for the Claimant and 40% for the Respondent.
Player S, from country C / Club Z, from country B
4
6.
In continuation, the Dispute Resolution Chamber noted that the Claimant lodged a
claim against the Respondent requesting the payment of EUR 92,500,
corresponding to: i) EUR 7,500 as one-off fee, due on 15 January 2010; ii) EUR
25,000 for outstanding salaries for the period from October 2009 until July 2010; iii)
EUR 5,000 as compensation for food, accommodation and travel; iv) EUR 15,000 as
compensation for the salaries for the remaining term of the contract, i.e. from
August 2010 until 31 January 2011; v) EUR 20,000 as compensation for moral
damages; and vi) EUR 20,000 as compensation for preventing the Claimant from
working and joining another team and for the ensuing loss of value caused.
7.
Having said this, the DRC turned its attention to the arguments of the Respondent
and took note of the fact that the Respondent had acknowledged that it had
rendered a decision, dated 12 January 2010, by means of which the Claimant was
suspended for an indefinite period of time and until the disciplinary procedure was
finished. Further, the Chamber observed that the Respondent adopted the decision
on the basis of the Claimant’s nonappearance at the beginning of the preparation
sessions for the season 2009/2010, in January 2010.
8.
In this context, the Chamber recalled that according to the legal principle of the
burden of proof, any party claiming a right on the basis of an alleged fact shall
carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
9.
In this respect, the Dispute Resolution Chamber firstly ascertained that the
Respondent was unable to prove that the relevant decision had been duly notified
to the Claimant. Further, in relation to the arguments put forward by the
Respondent as the basis for the indefinite suspension, that is the Claimant’s
nonappearance at the beginning of the preparation sessions for the season
2009/2010, it could be drawn from the submissions of the parties during the
investigation that the Respondent had not sufficiently proved the actual Claimant’s
absence as well as its unjustified nature. In particular in relation to the alleged
unjustified absence, the Chamber noted that the Respondent admitted that, by the
end of December 2009, it had paid the Claimant the amount of currency of country
B 6,500 to buy a flight ticket to country C and pointed out that the Claimant had
provided evidence that he had indeed bought such flight tickets. In view of the
foregoing, the Chamber concluded that the Claimant’s absence had been
authorised by the Respondent on 25 December 2009. What is more, the DRC
deemed it at this stage also vital to emphasise that, at the time of rendering the
decision to suspend the Claimant for an indefinite period of time, the Respondent
was already in breach of its contractual obligations since it had failed to pay the
Claimant his salaries for the months of October, November, and December 2009, a
fact that remained uncontested by the Respondent during the proceedings. On
account of all the above, the DRC stated that it could be concluded that the
suspension for an indefinite period of time is tantamount to a de facto termination
of the contract without just cause.
Player S, from country C / Club Z, from country B
5
10. In continuation, the Chamber was eager to emphasise that in any event only a
breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective
criteria which do not reasonably permit to expect a continuation of the
employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in order
for an employer to assure the employee’s fulfillment of his contractual duties, such
measures must be taken before terminating an employment contract. A premature
termination of an employment contract can always only be an ultima ratio.
11. In view of the above, the Chamber was of the opinion that the Respondent did not
have just cause to prematurely terminate the employment contract with the
Claimant, since there would have been more lenient measures to be taken (e.g.,
among others, a temporary suspension or a fine), in order to sanction the absence,
which is at the basis of the termination of the employment contract by the
Respondent.
12. Overall, the Chamber decided that there was no just cause to unilaterally terminate
the employment relationship between the Claimant and the Respondent and,
therefore, that the Respondent had breached the employment contract without
just cause.
13. Having established that the Respondent is to be held liable for the early
termination of the employment contract, the Chamber focused its attention on the
consequences of such termination. 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.
14. First of all, the Chamber reverted to the Claimant’s financial claim, which includes
outstanding remuneration amounting to EUR 32,500, namely: EUR 7,500 for an
outstanding one-off payment due on 15 January 2010; and EUR 25,000 for
outstanding salaries for the period from October 2009 to July 2010. In addition, the
Claimant’s financial claim includes EUR 5,000 as compensation for food, as well as
EUR 15,000 as compensation for the salaries for the remaining term of the contract,
i.e. from August 2010 until 31 January 2011. Finally, the Claimant requested EUR
20,000 as compensation for moral damages and EUR 20,000 as compensation for
preventing him from working and joining another team and for the ensuing loss of
value caused.
15. Consequently, taking into account the documentation remitted by the Claimant to
substantiate his claim and the fact that the employment contract was considered
terminated as of 12 January 2010, the Chamber decided that the Respondent is
liable to pay to the Claimant outstanding remuneration in the amount of EUR
7,500, i.e. the monthly salaries from October to December 2009.
Player S, from country C / Club Z, from country B
6
16. 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
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.
17. 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.
In this regard, the Chamber established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
18. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract until
31 January 2011, taking into account that the Claimant’s remuneration until
December 2010 is included in the calculation of the outstanding remuneration (cf.
no. II./15. above). Consequently, the Chamber concluded that the amount of EUR
40,000 (i.e. the EUR 7,500 one-off payment that fell due on 15 January 2010 and the
monthly salaries for the remaining term of the contract, that is from January 2010
to January 2011 (13 x EUR 2,500)) serves as the basis for the final determination of
the amount of compensation for breach of contract.
19. In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the Dispute Resolution Chamber, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection
with the player’s general obligation to mitigate his damages.
20. The Chamber noted that the Claimant had been unemployed until 31 January 2011.
21. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 40,000 to the Claimant as compensation for breach of
contract.
Player S, from country C / Club Z, from country B
7
22. Furthermore, the DRC assessed the Claimant’s requests for compensation i) for food,
accommodation and travel in the amount of EUR 5,000; ii) for moral damages in the
amount of EUR 20,000; and iii) for preventing him from working and joining
another team and for the ensuing loss of value caused set by the Claimant at EUR
20,000.
23. In this regard, the Chamber reiterated that according to the legal principle of the
burden of proof, any party claiming a right on the basis of an alleged fact shall
carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
24. Therefore, the Chamber found that while pursuant to the contract the Respondent
undertook to provide the Claimant with food and lodging, the Claimant had failed
to provide the basis on which the Chamber could assess the compensation
requested.
25. Further, as regards the Claimant’s claim pertaining to moral damages, which was
not at all specified by the Claimant, the Chamber agreed that such claim is to be
rejected due to a lack of legal basis.
26. Finally, as regards the Claimant’s claim pertaining to the loss of value caused by the
Respondent, the Chamber noted that the Claimant had failed to sufficiently prove
that the Respondent’s acts and conduct had prevented him from joining another
team and thus caused him a loss of value.
27. The DRC concluded its deliberations by rejecting any further claim lodged by the
Claimant.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player S, is partially accepted.
2.
The Respondent, Club Z, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 7,500.
3.
The Respondent, Club Z, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, compensation for breach of contract
amounting to EUR 40,000.
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
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 FIFA’s
Disciplinary Committee for consideration and a formal decision.
Player S, from country C / Club Z, from country B
8
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are 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. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player S, from country C / Club Z, from country B
9