Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 January 2014,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the club,
Club Z, from country H
as Claimant / Counter-Respondent
against the player,
Player C, from country L
as Respondent 1 / Counter-Claimant
and the club,
Club B, from country F
as Respondent 2
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 January 2013, Player C, from country L (hereinafter: the Respondent 1 /
Counter-Claimant), and Club Z, from country H (hereinafter: the Claimant /
Counter-Respondent), signed an employment contract (hereinafter: the
contract) valid as from the day of signing until 30 June 2013.
2.
Clause III of the contract establishes that the Respondent 1 / Counter-Claimant
would receive a monthly salary in the amount of currency of country H
1,200,000 (approx. EUR 4,000), payable “until the 10th day of the month
following the current month”.
3.
According to the Claimant / Counter-Respondent, the Respondent 1 / CounterClaimant was on holiday between 1 and 16 June 2013 and the preparation for
the 2013/2014 season began on 17 June 2013, however the Respondent 1 /
Counter-Claimant did not attend such training sessions and did not give any
reasons to justify his absence. Furthermore, the Claimant / Counter-Respondent
declared that it found out from the media that the Respondent 1 / CounterClaimant “trained with the country F football club B without our permission”.
4.
In this regard, the Claimant / Counter-Respondent considered that the
Respondent 1 / Counter-Claimant had breached the employment contract and
lodged a claim in front of FIFA against the Respondent 1 / Counter-Claimant
on 31 July 2013, requesting the amount of EUR 10,000 as “damages”.
5.
Additionally, the Claimant / Counter-Respondent requested the amount of EUR
10,000 from Club B, from country F (hereinafter: the Respondent 2), alleging
that the latter “failed to inform our club about testing our contracted player”.
6.
The Respondent 1 / Counter-Claimant replied to the claim and stated that
according to art. 18 par. 3 of the Regulations on the Status and Transfer of
Players and given that the contract with the Claimant / Counter-Respondent
finished on 30 June 2013, he was free to sign with any other club for the
season 2013/2014. The Respondent 1 / Counter-Claimant highlighted that he
was never called up for the training session of 17 June 2013, so he did not
know such session was taking place.
7.
In view of the above, the Respondent 1 / Counter-Claimant concluded that he
was not liable for breach of contract because the contract with the Claimant /
Counter-Respondent ended on 30 June 2013 and the contract with the
Respondent 2 was only valid as from 1 July 2013.
Club Z, from country H/ Player C, from country L / Club B, from country F
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8.
Furthermore, the Respondent 1 / Counter-Claimant declared that he did not
receive his salary for June 2013 and, in this regard, lodged a counterclaim
against the Claimant / Counter-Respondent requesting the payment of the
salary of the month of June 2013, in the amount of EUR 4,000.
9.
Equally, the Respondent 2 replied to the claim lodged against it and declared
that the Respondent 1 / Counter-Claimant visited its facilities on 24 June 2013
and, on that same day, both parties signed an employment contract valid as
from 1 July 2013. Moreover, the Respondent 2 explained that the Respondent
1 / Counter-Claimant did not train with the team until 4 July 2013, when it
received an e-mail from the country H club confirming that the contract
between the Respondent 1 / Counter-Claimant and the Claimant / CounterRespondent had finished on 30 June 2013.
10.
In response to the counterclaim lodged by the Respondent 1 / CounterClaimant, the Claimant / Counter-Respondent declared that it had the
intention to extend the employment contract with the Respondent 1 /
Counter-Claimant after he returned from his vacation period. In this respect,
the Claimant / Counter-Respondent stated that if it had known that the
Respondent 1 / Counter-Claimant was negotiating a contract with another
club, it would have increased the contractual offer to the Respondent 1 /
Counter-Claimant accordingly.
11.
According to the Claimant / Counter-Respondent, the Respondent 1 / CounterClaimant should have known the exact date on which he was expected to
return after his holidays and because “he did not return to the club and he did
not start the preparation – he is not entitled to receive his payment for July”.
The Claimant / Counter-Respondent held that all the players were individually
informed about the date on which they were to return.
12.
In view of the above, the Claimant / Counter-Respondent considered that the
Respondent 1 / Counter-Claimant had the obligation to inform them about his
negotiations with other clubs so that it would have had the chance to “make
an agreement with him” or even to get a “possible future transfer fee”.
Moreover, the Claimant / Counter-Respondent stated that it had to sign
another player as a substitute in the amount of EUR 10,000 and, therefore,
maintained its initial petition requesting the amount of EUR 10,000 from the
Respondent 1 / Counter-Claimant for breach of contract and the amount of
EUR 10,000 from the Respondent 2.
13.
Finally, the Respondent 1 / Counter-Claimant declared that he informed the
president of the Claimant / Counter-Respondent about the negotiations with
the Respondent 2 and the new salary he would receive and, according to the
Club Z, from country H/ Player C, from country L / Club B, from country F
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Respondent 1 / Counter-Claimant, the president told him that he could not
“compete with such offers”.
14.
The Respondent 1 / Counter-Claimant, upon request of FIFA, declared that he
only entered into a new labour relationship as from 1 July 2013, by signing a
contact with the Respondent 2. According to such contract, which is valid as
from 1 July 2013 until “the end of season 2014/2015”, the Respondent 1 /
Counter-Claimant is entitled to a monthly salary in the amount of EUR 9,000.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with
the case at hand. In this respect, he took note that the present matter was
submitted to FIFA on 31 July 2013. Consequently, the 2012 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 of the 2012 edition of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par.
2 in conjunction with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2012) he is competent to decide on the present
litigation, which concerns an employment-related dispute with an
international dimension between an country H club, and country L player and
a country F club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on
the Status and Transfer of Players, the DRC judge confirmed that he may
adjudicate in the present dispute which value does not exceed currency of
country S 100,000.
4.
In continuation, the DRC judge analyzed which edition of the FIFA Regulations
on the Status and Transfer of Players should be applicable as to the substance
of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2012),
and, on the other hand, to the fact that the present claim was lodged in front
of FIFA on 31 July 2013. The DRC judge concluded that the 2012 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.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing
Club Z, from country H/ Player C, from country L / Club B, from country F
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so, he started by acknowledging the abovementioned facts of the case as well
as the documentation contained in the file. However, the DRC judge
emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence which he considered pertinent for the
assessment of the matter at hand.
6.
In this respect, the DRC judge acknowledged that, on 1 January 2013, the
parties had concluded an employment contract valid as from 1 January 2013
until 30 June 2013, in accordance with which the Claimant / CounterRespondent would pay the Respondent 1 / Counter-Claimant a monthly
remuneration in the amount of currency of country H 1,200,000.
7.
Subsequently, the DRC judge noted that the Claimant / Counter-Respondent
lodged a claim against the Respondent 1 / Counter – Claimant for an alleged
breach of contract, considering that the latter had been absent from training
sessions at the end of June 2013 without a reasonable justification.
8.
Furthermore, the DRC judge took note that the Claimant / CounterRespondent requested compensation from the Respondent 2 as well,
considering that both Respondents had failed to inform the Claimant /
Counter-Respondent about the negotiations that were taking place between
them.
9.
At this stage, the DRC judge turned his attention to the allegation of the
Claimant / Counter-Respondent that the Respondent 1 / Counter-Claimant had
been absent from the training sessions as from 17 June 2013, as he had not
returned from his holiday period.
10.
In this respect, the DRC judge observed that the Claimant / CounterRespondent did not provide any evidence which could establish that the
Respondent 1 / Counter-Claimant should have returned from his holiday by 17
June 2013. Indeed, the DRC judge stressed that the employment contract was
set to terminate on 30 June 2013 and, therefore, there could not be any
evident assumption from the Respondent 1 / Counter-Claimant in the sense
that he had to return to the training sessions for a short period of time.
11.
Furthermore, the DRC judge examined the Claimant / Counter-Respondent’s
allegations that the Respondents had an obligation to inform it of their
contract negotiations. In this respect, the DRC judge first referred to the
second sentence of art. 18 par. 3 of the Regulations which stipulates that a
professional shall be free to conclude a contract with another club if his
contract with his present club has expired or is due to expire within six months.
In view of the foregoing and given the circumstances of the present matter, in
Club Z, from country H/ Player C, from country L / Club B, from country F
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particular the fact that the Respondents had concluded an employment
contract on 24 June 2013 only, the DRC judge could not find any legal or
regulatory basis to uphold the claim of the Claimant / Counter-Respondent.
12.
On account of the above, the DRC judge decided to reject the claim of the
Claimant / Counter-Respondent in its entirety.
13.
In continuation, the DRC judge turned his attention to the counter-claim
lodged by the Respondent 1 / Counter-Claimant, by means of which he
requested the payment of the amount of EUR 4,000 corresponding to the
unpaid monthly salary of June 2013.
14.
The DRC judge considered that the Claimant / Counter-Respondent had not
put forward any valid reasons for such non-payment and, as a result, decided
that, in accordance with the general legal principle of “pacta sunt servanda”,
the Respondent 1 / Counter-Claimant is entitled to that aforementioned salary
payment, for the period of June 2013 in which he was effectively with the
Claimant / Counter-Respondent, i.e. for 16 days of June.
15.
Consequently, the DRC judge decided that the Claimant / Counter-Respondent
is liable to pay to the Respondent 1 / Counter-Claimant outstanding
remuneration in the total amount of currency of country H 640,000.
16.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claims lodged by the Respondent 1 / CounterClaimant are rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant / Counter-Respondent, Club Z, is rejected.
2.
The counter-claim of the Respondent 1 / Counter-Claimant, Player C, is partially
accepted.
3.
The Claimant / Counter-Respondent has to pay to the Respondent 1 / CounterClaimant, within 30 days as from the date of notification of this decision, the
amount of currency of country H 640,000.
4.
If the aforementioned sum is not paid by the Claimant / Counter-Respondent
within the aforementioned deadline, interest at the rate of 5% p.a. will fall
due as of expiry of the stipulated time limit and the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
Club Z, from country H/ Player C, from country L / Club B, from country F
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5.
Any further claim lodged by the Respondent 1 / Counter-Claimant is rejected.
6.
The Respondent 1 / Counter-Claimant is directed to inform the Claimant /
Counter-Respondent immediately and directly of the account number to which
the remittance is to be made and to notify the DRC judge 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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Club Z, from country H/ Player C, from country L / Club B, from country F
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