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
Johan van Gaalen (South Africa), member
Paul Newman (USA), member
Damir Vrbanovic (Croatia), member
Todd Durbin (USA), member
on the claim presented by the player,
Player A, from country B,
as Claimant
against the club,
Club K, from country T
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 4 August 2008, Club D or and Club A as well as Player A, from country B
(hereinafter: player or Claimant), signed a loan agreement (hereinafter: loan
agreement) by means of which Club D transferred the player on a loan basis to
Club K (hereinafter: club or Respondent) as from 4 August 2008 until 31 May
2009.
2.
According to the loan agreement, the club was to pay the player a monthly wage
of EUR 2,000.
3.
Furthermore, the loan agreement stipulates the following conditions with regard
to the payment by the club of match bonuses, the basic amount of which is EUR
2,000 net:
100% of EUR 2,000 should the player be in the squad’s starting eleven;
75% of EUR 2,000 should the player be fielded during the match;
50% of EUR 2,000 if the player is called for the match but does not play;
No match bonuses are applicable for Cup matches.
4.
In addition, the player and the club signed a document referred to as “Protocol”
(hereinafter: protocol). On the basis of the protocol, the player was to receive a
signing-on fee in the fix amount of EUR 10,000, a monthly salary of EUR 2,000
and match bonuses in the amount of EUR 2,000 per match.
5.
On 5 May 2009, the player put the club in default of payment of the amount of
EUR 48,000 net, corresponding to eight monthly salaries in the amount of EUR
2,000 each, EUR 10,000 as signing-on fee, and 11 match bonuses of EUR 2,000
each, and requested the payment of the aforementioned amounts within the
next five days.
6.
On 11 May 2009, the player lodged a claim before FIFA for breach of contract
against the club, which he modified later on during the proceedings. According
to the Claimant, the Respondent, without any explanation or justification, did
not pay him anything during the whole period of time during which he rendered
his services to the Respondent. The Claimant asserts that his default notice
remained unanswered but, in reaction, the Respondent would have excluded him
from the training sessions of the team.
7.
After having received the Respondent’s response (cf. points I./9. to I./13. below),
the Claimant modified his claim and asked to be awarded payment of the
following outstanding amounts:
Player A, from country B / Club K, from country T
2/11
a) EUR 47,415.75 based on the protocol and made up of the following net
amounts:
- EUR 10,000 as signing-on fee;
- EUR 18,000 as monthly salaries between August 2008 and April 2009;
- EUR 710 as monthly salary for May 2009 prorata temporis (11 days out of 31
days of the month of May 2009);
- EUR 24,000 corresponding to 12 match bonuses in the amount of EUR 2,000
each;
- minus EUR 5,294 paid by the club and acknowledged by the player.
b) Alternatively, EUR 41,915.75 net based on the loan agreement and made up of
the above-cited amounts, except for the match bonuses, totaling EUR 18,500.
8.
Additionally, as a result of the Respondent’s alleged breach of the contractual
relation without just cause, the Claimant requested to be granted compensation
in the amount of EUR 7,290 (EUR 1,290 as salaries for the remaining 20 days of
the month of May 2009, plus EUR 6,000 as lost remuneration related to the last
three league matches the Respondent had to play in May 2009 for the sporting
season 2008/09 and in which the Claimant could not participate).
9.
In its reply to the claim, the club acknowledged having signed the loan
agreement with the player, for a period of time of nine months, starting on 4
August 2008 until 31 May 2009. Consequently, the Respondent pointed out that
the Claimant was to receive the amount of EUR 18,000 as salaries. The
Respondent also specified that “any salaries to be received by the player were
gross salaries and would be paid after deductions for taxes”.
10.
With regard to match bonuses, the Respondent referred to the above-cited
conditions (cf. point I./3. above) and specified that the player started in 3
matches, participated as a substitute in 10 matches, and was called for 1 match,
albeit without participating. As a result, the club calculated that the player was
to receive EUR 22,000 as match bonuses.
11.
In continuation, the Respondent presented payment receipts representing,
according to the Respondent, the total amount of currency of country T
30,916.76 and which cover a period of time starting as of 4 August 2008 until 23
March 2009.
12.
In view of the above, the Respondent held that, if one considers that the
Claimant’s salaries total currency of country T 34,480.08, that the total amount
for the match bonuses is currency of country T 42,143.20, and bearing in mind
that the Respondent already paid via a cheque and cash payments the amount of
currency of country T 30,916.76 to the Claimant, the Claimant has a credit of
currency of country T 45,706.52 to receive from the Respondent, which, according
to the club, corresponds to EUR 23,860.
Player A, from country B / Club K, from country T
3/11
13.
The club further explained that since the player left at the end of the loan period
without having given it any contact details, it was unable to remit him his dues.
14.
The club concluded that it did not breach the agreement and expressed its
readiness to proceed with the payment of the aforementioned EUR 23,860 only.
15.
In his replica, the Claimant pointed out that he never was able to cash a cheque
in the amount of currency of country T 19,000 he received from the club.
Consequently, the Claimant highlighted that during the execution of the
contractual relation, he only received currency of country T 12,416.76, which
according to the Claimant corresponds to EUR 5,294.
16.
However, the Claimant recalled that in accordance with the protocol, he was to
receive EUR 52,000, or, based on the loan agreement, he should have been paid
EUR 46,500 between 4 August 2008 and 11 May 2009, whereas the Respondent
has only proven having paid EUR 5,294.
17.
Furthermore, the player held that the payment documents presented by the
Respondent do not correspond to salaries or match bonuses but to “results
bonuses”, which is why the payments were made in such a chaotic way. Hence,
the player reiterated that he did not receive any payment in connection with
salaries or match bonuses from the club.
18.
In its final comments, the Respondent pointed out that its good intentions were
stopped by financial difficulties which developed into a conflict with the
Claimant.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as to
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 11 May 2009. 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. art. 21
par. 1 and par. 2 of the Procedural Rules).
2.
Subsequently, the members of the Dispute Resolution 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 Chamber is competent to deal with the matter at
stake, which concerns an employment-related dispute with an international
dimension between a country B player and a country T club.
Player A, from country B / Club K, from country T
4/11
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
(editions 2012, 2010 and 2009), and considering that the present claim was
lodged on 11 May 2009, the 2008 edition of said regulations (hereinafter:
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 and reviewed
the facts of the case.
5.
In this respect, the Chamber acknowledged that the Claimant and the
Respondent signed a loan agreement on 4 August 2008 valid as from the date of
signature until 31 may 2009 as well as a “protocol” which does not bear any date
of signature. It further acknowledged that, on 11 May 2009, the Claimant lodged
a claim before FIFA against the Respondent as a result of its alleged repeated
failure to comply with its contractual obligations and, in particular, on the basis
of the fact that it would not have paid him various salaries and bonuses in a
timely manner.
6.
The Claimant therefore considered that the employment relation was unilaterally
terminated by the Respondent without just cause and, subsequently, he claimed
payment of outstanding remuneration as well as compensation for breach of
contract.
7.
In this regard, the Chamber particularly noted that, on 5 May 2009, the Claimant
put the Respondent in default of payment of the net amount EUR 48,000, an
amount that he afterwards amended during the unravelling of the investigation
into the matter at hand.
8.
On the other hand, the Chamber duly noted that if the Respondent admitted in
its statements that it did not always fully comply with its financial obligations
towards the Claimant, it held that it is not responsible for any breach of contract
without just cause and proposed to pay to the Claimant the amount of EUR
23,860, which is the amount it admitted it still owes to the Claimant.
9.
With this in mind, the Chamber concurred that the circumstances leading to the
obvious imperfect execution of the agreement and the protocol at stake had to
be examined in greater detail, in order for the Chamber to be in a position to
determine as to the whether the agreement and the protocol have been
breached with or without just cause, and which party is to be held responsible for
the early termination of the employment relation in question.
Player A, from country B / Club K, from country T
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10.
The Chamber also underlined that, if it was found that the employment relation
was breached by one of the parties without just cause, it would be necessary to
determine the consequences for the party that caused the unjust breach of the
agreement and/or of the protocol.
11.
In this context, the members of the Chamber deemed it relevant to firstly revert
to the financial terms agreed upon between the Claimant and the Respondent
and which are stipulated in the agreement and in the protocol signed by and
between the Claimant and the Respondent.
12.
By doing so, the Chamber concluded that on the basis of the agreement and the
protocol, the Respondent was to pay to the Claimant the amount of EUR 2,000 as
monthly salary as from the beginning of the month of August 2008 until the end
of the month of May 2009, i.e. ten payments of EUR 2,000 each.
13.
Furthermore, and on the basis of the protocol, it noted that the Respondent
undertook to pay to the Claimant the amount of EUR 10,000 as a signing-on fee.
14.
Additionally, the Chamber noted that both the agreement and the protocol
contained an obligation for the Respondent to pay match bonuses to the
Claimant.
15.
However, while analysing this financial obligation of the Respondent, the
Chamber noted that if the agreement contained a detailed calculation method in
relation with the amount to be paid by the Respondent to the Claimant as match
bonuses, i.e. the total amount of EUR 2,000 net per match subject to the
application of a percentage depending on the player’s effective participation in
the relevant matches, the protocol was not setting forth any calculation method
in relation with the amount payable to the Claimant by the Respondent with
respect to match bonuses. Indeed, the protocol solely referred to the payment of
match bonuses in the amount of EUR 2,000 per match, which is the same amount
as the total net amount per match stipulated in the agreement.
16.
In order to determine which contractual provision shall be taken into account in
relation to the determination of the amount payable as match bonuses by the
Respondent to the Claimant, the Chamber unanimously considered as more
significant to refer in this regard to the agreement in order to calculate the
amount(s) payable as match bonuses, if any, as the agreement stipulates a
detailed calculation method.
17.
Having so found, the Chamber recalled that, on the basis of the agreement, the
Claimant asked to be awarded the amount of EUR 18,500 as match bonuses,
which amount was not disputed by the Respondent.
Player A, from country B / Club K, from country T
6/11
18.
In continuation, the Chamber turned its attention to the other remuneration
payable to the Claimant under the agreement and the protocol. At the time
when the Claimant put the club in default and lodged his claim against the
Respondent, i.e. on 5 May 2009 and 11 May 2009, respectively, the salary
corresponding to the month of May 2009 was obviously not due yet by the
Respondent to the Claimant and, therefore, shall not be taken into account, be it
in full or prorata temporis, in the analysis of any outstanding remuneration at
the time when the Claimant lodged his claim against the Respondent.
19.
In view of the above, and bearing in mind the financial terms agreed upon
between the parties in accordance with the agreement and the protocol, the
Chamber came to the conclusion that in the beginning of May 2009, the total
amount of EUR 46,500, composed of EUR 10,000 as signing-on fee, 9 monthly
salaries in the amount of EUR 2,000 each, as from August 2008 up to and
including April 2009, and EUR 18,500 as match bonuses had fallen due.
20.
In continuation, the Chamber turned its attention to the Respondent’s position
and noted that the latter submitted documentation relating to various payments
it asserted having made to the Claimant between 4 August 2008 and 23 March
2009 and on the basis of which it held that it only owed the total amount of EUR
23,860 to the Claimant. Bearing in mind the considerations under points I./9.,
I./10. and I./12. above, the Respondent thus implicitly held that it had paid EUR
16,140 to the Claimant.
21.
However, the Chamber recalled that the Claimant, for his part, denied having
received said amount from the Respondent and confirmed having received the
amount of EUR 5,294 from the Respondent only, as he had not been able to cash
the cheque, a copy of which was presented by the Respondent amid the
documentation relating to the payments it alleged having made to the Claimant.
22.
In light of the above-mentioned situation, the Chamber deemed it relevant to
recall the legal principle set forth in 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.
23.
In this respect, the Chamber was eager to underline that a copy of a cheque does
not prove beyond doubt that the amount referred to on such cheque has indeed
been received by the Claimant.
24.
Furthermore, the Chamber wished to highlight that the Claimant, who stated
that the payment of EUR 5,294 he acknowledged having received from the
Respondent would actually consist of “result bonuses” and not be related to
salaries or bonuses, omitted to present documentation corroborating his position
in this regard in accordance with art. 12 par. 3 of the procedural rules.
Player A, from country B / Club K, from country T
7/11
25.
As a consequence, the Chamber adopted the view that the payment of EUR 5,294
the Claimant admitted having received from the Respondent was indeed related
to the Claimant’s remuneration in accordance with the agreement and the
protocol and was not to be seen as related to unspecified “result bonuses”.
26.
In view of the above, the Chamber came to the conclusion that the Respondent
had only received the amount of EUR 5,294 in total as remuneration from the
Respondent as from the start of the employment relation until 30 April 2009,
based on the terms of the agreement in combination with the protocol, instead
of the amount of EUR 46,500 that had fallen due by then (cf. point II./19. above).
27.
In view of the above, the Chamber concluded that at the time when the Claimant
lodged his claim against the Respondent before this Chamber, i.e. on 11 May
2009, remuneration in the amount of EUR 41,206 had been outstanding.
28.
At this point, the Chamber wished to address the Respondent’s assertion that it
had not been in the position to pay the Claimant’s receivables as a result of the
alleged fact that the player would have left the club at the end of the loan
period without having provided the Respondent with his contact details.
29.
In this regard, the Chamber was eager to point out that on the basis of the
aforementioned considerations, it clearly appears that the outstanding monies
due to the player include remuneration that had already fallen due a long time
before May 2009.
30.
Furthermore, the members of the Chamber were of the firm opinion that the
Respondent must have known how to contact the Claimant, as the latter had
most probably returned to his club of origin at the end of loan. Consequently,
the Chamber could not uphold the Respondent’s argument in this regard.
31.
As a result thereof, the Chamber concurred that the Respondent had not given
any valid explanation justifying its obvious persistent non-compliance with its
financial contractual obligations towards the Claimant.
32.
In view of all of the above, the members of the Chamber unanimously agreed
that the Claimant terminated the employment contract with the Respondent
with just cause when he lodged his claim in front of FIFA on 11 May 2009, after
having put the Respondent in default. Consequently, the Respondent is fully
liable for the early termination of the agreement and the protocol by the
Claimant with just cause.
33.
This being established, the Chamber stated that, in continuation, it had to assess
the consequences of this early termination of the employment relation in
accordance with the provisions provided for in Chapter IV of the Regulations.
Player A, from country B / Club K, from country T
8/11
34.
As a matter of fact, being liable for the early termination of the employment
relation by the Claimant with just cause, in accordance with article 17 par. 1 of
the Regulations, the Respondent is liable to pay compensation to the Claimant in
addition to any outstanding payments on the basis of the agreement and the
protocol.
35.
As established above, at the time when the employment relation was terminated,
i.e. 11 May 2009, remuneration in the amount of EUR 41,206 had remained
outstanding (cf. point II./27. above). Consequently, the DRC decided that in
accordance with the general legal principle of pacta sunt servanda the
Respondent is liable to pay to the Claimant outstanding remuneration in the
amount of EUR 41,206.
36.
Moreover, bearing in mind the Claimant’s claim as well as the Respondent’s
position relating to the question as to whether the outstanding amount is
payable net or gross, the DRC decided that all outstanding amounts are payable
net as there is no evidence that the amounts other than the match bonuses
should be paid differently.
37.
In continuation, the DRC focussed its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless 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 player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five
years and whether the contractual breach falls within the protected period.
38.
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 in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the agreement or
in the protocol at the basis of the matter at stake.
39.
As a consequence, the members of the Chamber determined that the amount of
compensation for breach of contract in the present matter had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that 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. Furthermore, the
Player A, from country B / Club K, from country T
9/11
Chamber highlighted that each request for compensation for breach of contract
has to be assessed on a case-by-case basis.
40.
Having said this, the Chamber turned its attention to the remuneration and other
benefits due to the player under the existing contract and/or the new contract.
The members of the Chamber deemed it important to emphasise that the
wording of article 17 par. 1 of the Regulations allows the Chamber to take into
account, if applicable, both the existing contract and any new contract(s) in the
calculation of the amount of compensation.
41.
The Chamber recalled that the termination of the employment relation in the
case at hand was deemed to have occurred at the time when the relevant
relation was still to run for about one more month, equalling the value of EUR
2,000, i.e. the Claimant’s fix salary corresponding to the month of May 2009.
42.
In continuation, bearing in mind the Claimant’s pertinent claim, in view of the
undeniably variable character of the match bonuses, which depend on the level
of the Claimant’s participation in matches, the DRC refused to take into account
future match bonuses while assessing the residual value of the employment
contract. The members, referring to the principle of the burden of proof
stipulated in art. 12 par. 3 of the procedural rules, also stressed that the Claimant
had not submitted any convincing documentary evidence in this respect.
43.
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 2,000 to the Claimant as compensation for breach of contract.
44.
Finally, and for the sake of good order, the Chamber asked the Claimant to
return the aforementioned cheque in the amount of currency of country T 19,000
to the Respondent should it still be in his possession.
45.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club K, has to pay to the Claimant outstanding remuneration in
the net amount of EUR 41,206 within 30 days as from the date of notification of
this decision.
Player A, from country B / Club K, from country T
10/11
3.
The Respondent has to pay to the Claimant compensation for breach of contract
in the amount of EUR 2,000 within 30 days as from the date of notification of this
decision.
4. In the event that the amounts due to the Claimant are not paid by the
Respondent within the stated time limits, 5% interest p.a. will fall due as of
expiry of the aforementioned time limits and the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
5.
Any further request filed by the Claimant is rejected.
6.
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.
Player A, from country B / Club K, from country T
11/11
*****
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 A, from country B / Club K, from country T
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