Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 January 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Zola Percival Majavu (South Africa), member
on the claim presented by the club,
Club A, from country B
as Claimant / Counter-Respondent
against the player,
Player C, from country D
as Respondent / Counter-Claimant
with the club,
Club E, from country D
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 August 2010, the player from country D, Player C (hereinafter:
Respondent/Counter-Claimant or player) and the club from country B, Club A
(hereinafter: Claimant/Counter-Respondent or club) signed an employment
contract valid as from the date of signature until 30 June 2013.
2.
In accordance with the employment contract, the player was entitled to receive
total remuneration of USD 1,500,000 payable as follows:
a. USD 150,000 upon signature of the contract;
b. USD 400,000 in 11 instalments of USD 36,363 each as from 1 August 2010
until 30 June 2011;
c. USD 450,000 in 12 instalments of USD 37,500 each as from 1 July 2011
until 30 June 2012;
d. USD 500,000 in 12 instalments of USD 41,666 each as from 1 July 2012
until 30 June 2013;
e. Various fringe benefits (car, apartment, air tickets without monetary
indication).
3.
Art. 3.1 of the contract stipulates that if the player’s condition does not suit the
coach and if the club is not satisfied with the player’s performance, the contract
may be terminated by giving compensation of 2 months’ salary.
4.
According to art. 6.2 of the contract, the player may terminate the contract if the
club has breached any obligation stipulated therein.
5.
Following various faxes addressed by the club to FIFA to report about the player’s
alleged absence from training without its approval since 18 January 2012, on 21
February 2012, the club informed FIFA that the employment contract was to be
considered terminated by the player without just cause.
6.
On 1 October 2013, the player and the club from country D, Club E, signed an
employment contract valid as from 1 October 2013 until 30 June 2014.
Claim of the club:
7.
On 19 March 2012, the club lodged a claim in front of FIFA against the player
maintaining that the player is to be held liable for breach of contract without just
cause on 18 January 2012 and payment of compensation in the amount of USD
702,500 plus 5% interest p.a. as of 18 January 2012.
Club A, from country B / Player C, from country D / Club E, from country D
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8.
The club further claims that any new club of the player shall be deemed jointly
and severally liable for the payment of compensation and asks that sporting
sanctions be imposed on the player and any new club.
9.
The club maintains that the player joined the club’s training camp in country F on
11 January 2012 and suddenly left with his agent without the club’s permission on
18 January 2012.
10.
According to the club, in spite of having provided the player with an air ticket to
return to the club in country B on 4 February 2012 after the training camp, the
player returned to country D instead.
11.
In support of its claim, the club presented a list containing the travel schedule of
each of the club’s players in the period of time between 22 December 2011 and 5
February 2012, duly signed by the player(s) as well as a copy of the relevant eticket for the player.
12.
In addition, the club presented a calculation in accordance with which it confirms
that it paid, inter alia, the amount of USD 197,500 (apart from rent and bonuses)
to the player for the second year of the employment contract.
13.
The club deems that the player abandoned work without its consent and that he,
therefore, is to be held liable for breach of contract without just cause.
Reply of the player and his counterclaim:
14.
The player, for his part, rejects the club’s claim and, on 30 March 2012, lodged a
counterclaim against the club for breach of contract. In this regard, the player
asks to be awarded payment of the following outstanding remuneration and
compensation for breach of contract:
a. If the contract is considered terminated on 18 January 2012:
i. USD 64,274.20 as outstanding remuneration (USD 15,000 for the
2010-11 season and USD 49,274.20 for the 2011-12 season [USD
246,774.20 due until 18 January 2012 minus USD 197,500
received]);
ii. USD 752,016.20 as compensation;
iii. USD 50,000 ex aequo et bono for the loss of fringe benefits;
iv. 5% interest p.a. as of 30 March 2012 on all amounts.
Club A, from country B / Player C, from country D / Club E, from country D
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b. If the contract is considered terminated on 21 February 2012:
i. USD 107,155.20 as outstanding remuneration (USD 15,000 for the
2010-11 season and USD 92,155.20 for the 2011-12 season [USD
289,655.20 due until 21 February 2012 minus USD 197,500
received]);
ii. USD 710,344.90 as compensation
iii. USD 50,000 ex aequo et bono for the loss of fringe benefits;
iv. 5% interest p.a. as of 30 March 2012 on all amounts.
15.
In addition, the player asks that sporting sanctions be imposed on the club.
16.
According to the player, at the beginning of the 2011-12 season, the new coach
made him understand that he was no longer counting on his services. He adds
that from his playing record it can be noted that, since then, he was no longer
systematically selected for official matches.
17.
Furthermore, the player holds that, on 23 December 2011, the club published an
interview with him on its official website, in which he indicated that he was not
often selected by the coach and that he was thinking of leaving the club during
the winter transfer period and that his managers had started to look for a new
club.
18.
The player further highlights that, during the training camp in country F in
January 2012, the club indicated that it would be in the interest of both parties if
he would transfer to another club during the registration period. In this respect,
he refers to another interview published on the club’s official website on 19
January 2012, in which the club president confirmed that the player left the
training camp and was negotiating with two clubs interested in his services.
19.
The player stresses that the club authorised him to leave the training camp as of
18 January 2012 while remaining at the disposal of the agents that were
mandated by the club to enter into transfer negotiations with potential new
clubs. In this regard, the player presented copies of various mandates given by the
club to agents for this purpose for the period of time between 23 January and 25
February 2012.
20.
According to the player, in the meantime the club had failed to pay his
remuneration as of December 2011.
21.
The player further points out that the correspondence sent by the club to FIFA in
February 2012 was never received by him.
Club A, from country B / Player C, from country D / Club E, from country D
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22.
Moreover, the player presented a copy of the club’s correspondence dated 20
February 2012 by means of which the club “urgently invites” the player and his
agent to country B and he points out that then, on 21 February 2012, the club
informed FIFA that it considered the employment contract as terminated by him
without just cause.
23.
On account of the above, the player rejects the club’s claim that he is to be held
liable for breach of contract without just cause and holds that, due to the club’s
breach of its financial obligations and bearing in mind art. 6.2 of the contract, he
would have had just cause to terminate the employment contract.
24.
Therefore, the player holds that the club terminated the employment contract
without just cause and lodged the aforementioned counterclaim against it.
Club’s reply to the counterclaim:
25.
The club highlights that it has not been in default of 3 months’ salary payments
“which is accepted as a termination with a just cause by the FIFA DRC” and that
the player is not entitled to receive salary payments for the period of time in
which he did not render any services to the club. It stresses that it continued to
pay his salary even when he was in the reserve team.
26.
Furthermore, the club stresses that the leave granted by the club was with regard
to the player’s search for a new club and does not relate to leaving the training
camp or club without permission. The club deems that the player failed to return
to the club in spite of having reminded him to do so via its correspondence to
FIFA.
27.
Therefore, the club rejects the counterclaim and asserts that the player is not
entitled to compensation. Should the DRC deem that the player is entitled to
compensation, though, the club asserts that art. 3.1 of the employment contract
should apply. As a result and in such event, the compensation should not exceed
EUR 75,000.
Position of Club E:
28.
Club E considers that it has no involvement whatsoever in this matter and points
out that it was only contacted by the player towards the end of September 2013,
i.e. more than 1,5 years after the termination of the employment relation
between the player and the Club A and even 3 months after the original date of
Club A, from country B / Player C, from country D / Club E, from country D
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expiry of the employment contract between the player and the club from country
B.
29.
Club E highlights that the provisions of the FIFA Regulations, in particular, art. 17
paras 2 & 4 are related to a situation in which a new club would be involved
during that contractual period of the employment contract between a player and
a club.
30.
Club E further points out that the player never received a “license” due to the
situation between him and the Club A, as a result of which no agreement ever
entered into force between Club E and the player.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 19 March 2012. 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 Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination
with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition
2014) 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 player from country D and a club from country B, with the involvement of
a club from country D.
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 2014),
and considering that the present claim was lodged on 19 March 2012, the 2010
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. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
Club A, from country B / Player C, from country D / Club E, from country D
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Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
The members of the Chamber took note that the Claimant/Counter-Respondent,
on the one hand, maintains that the Respondent/Counter-Claimant is to be held
liable for breach of contract without just cause by having abandoned work
without its consent as of 18 January 2012 and that therefore, the
Respondent/Counter-Claimant is to be held liable for payment of compensation
for breach of contract to the Claimant/Counter-Respondent.
6.
The Chamber further noted that the Respondent/Counter-Claimant, for his part,
rejects the claim and holds that the Claimant/Counter-Respondent was no longer
interested in his services and had ceased the payment of his remuneration since
December 2011. He further alleges that he was authorised to leave the club on 18
January 2012 in order for him to search a new club. The Respondent/CounterClaimant also deems that he would have had just cause to terminate the
employment contract on the basis of clause 6.2 of the employment contract.
Consequently, the Respondent/Counter-Claimant lodged a counterclaim against
the Claimant/Counter-Respondent for breach of contract without just cause
asking, inter alia, that the latter be held liable to pay compensation for breach in
addition to allegedly outstanding remuneration.
7.
Said counterclaim was subsequently rejected by the Claimant/CounterRespondent, who insists that the Respondent/Counter-Claimant was not
authorised to leave the club. The Claimant/Counter-Respondent further deems
that the Respondent/Counter-Claimant was not entitled to receive remuneration
for the period of time during which he did not render his services to the club and
that, above all, it was not in default of 3 monthly salary payments.
8.
Considering the diverging position of the parties with regard to the question as to
which party is liable for the early termination of the pertinent employment
contract, the members of the Chamber highlighted that the central issue in this
dispute was to determine as to which party is to be held liable for the early
termination of the employment contract, whether the termination was with or
without just cause as well as to decide on the consequences thereof.
9.
Subsequently, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, 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.
Club A, from country B / Player C, from country D / Club E, from country D
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10.
The members of the Chamber noted that prior to lodging its claim in front of
FIFA, the Claimant/Counter-Respondent had sent multiple faxes to FIFA in order to
report about the player’s alleged absence without its approval. In addition, on 21
February 2012, the Claimant/Counter-Respondent informed FIFA that the relevant
employment contract was to be considered terminated by the player without just
cause. In this respect, the Claimant/Counter-Respondent highlights that the player
failed to return to it in spite of having requested him to do so via its
correspondence to FIFA.
11.
In this regard, the Respondent/Counter-Claimant states that none of these
communications addressed by the Claimant/Counter-Respondent to FIFA were
ever received by him, which position seems to be confirmed by the lack of
evidence of transmission of said faxes to the player.
12.
The members of the Chamber then turned their attention to the main argument
put forward by the Claimant/Counter-Respondent, i.e. the Respondent/CounterClaimant’s alleged absence from work as from 18 January 2012 without its
consent, which argument was rebutted by the Respondent/Counter-Claimant,
who maintains that he was authorised by the Claimant/Counter-Respondent to be
absent while remaining at the disposal of the agents that were mandated by the
club to enter into transfer negotiations with potential new clubs.
13.
The Chamber also noted the somewhat contradictory reaction of the
Claimant/Counter-Respondent
to
the
statements
made
by
the
Respondent/Counter-Claimant in this regard, the first confirming that the leave
granted by it was with regard to the player’s search for a new club, but that it
does not relate to leaving the training camp or club without permission.
14.
After careful study of the documentation presented by the parties in this
connection, the Chamber established that the club had mandated various agents,
for the period of time between 23 January and 25 February 2012, in order to find
a new club for the Respondent/Counter-Claimant. In addition, the Chamber took
note of the Claimant/Counter-Respondent’s notification dated 20 February 2012
via which the Claimant/Counter-Respondent “urgently invited” the
Respondent/Counter-Claimant and his agent to country B and that such
notification does not at all refer to the player’s alleged absence without the club’s
consent at that time.
15.
As a consequence, due to the lack of documentation corroborating the
Claimant/Counter-Respondent’s position, the Chamber decided that it cannot be
established that the Respondent/Counter-Claimant was absent without the
Club A, from country B / Player C, from country D / Club E, from country D
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approval of the Claimant/Counter-Respondent and that, therefore,
Claimant/Counter-Respondent’s related argument had to be rejected.
the
16.
For the sake of completeness, bearing in mind that according to the
Claimant/Counter-Respondent the player was absent as from 18 January 2012 and
that the documentation on file permits to conclude that the player’s absence as
from 23rd January 2012 was justified, the Chamber wished to highlight that in
accordance with the Chamber’s well-established jurisprudence, a few days’
absence between 18 January 2012 and 23 January 2012 could not constitute, per
se, a valid reason for the termination of an employment contract. Only a breach
or misconduct which is of certain severity would justify the termination of a
contract.
17.
On account of the above, the Chamber concluded that the Claimant/CounterRespondent had no just cause to unilaterally terminate the employment contract
on 21 February 2012 and, therefore, decided that the Claimant/CounterRespondent is to be held liable for the early termination of the employment
contact without just cause.
18.
Consequently, the members of the Chamber rejected the claim of the
Claimant/Counter-Respondent.
19.
Bearing in mind the previous considerations and, in particular, the counterclaim
lodged by the Respondent/Counter-Claimant, the Chamber went on to deal with
the consequences of the early termination of the employment contract without
just cause by the Claimant/Counter-Respondent.
20.
First of all, the members of the Chamber concurred that the Claimant/CounterRespondent must fulfil its obligations as per employment contract up until the
termination of the contract in accordance with the general legal principle of
“pacta sunt servanda”. Consequently, the Chamber decided that the
Claimant/Counter-Respondent is liable to pay to the Respondent/CounterClaimant the remuneration that was outstanding at the time of the termination
of the contract i.e. the amount of USD 80,000, consisting of USD 15,000 relating to
the 2010-11 season, which amount was not contested by the Claimant/CounterRespondent as being due to the Respondent/Counter-Claimant, and the amount
of USD 65,000, i.e. USD 262,500 which had fallen due by the end of January 2012,
minus USD 197,500 paid by the club, in relation with which the Claimant/CounterRespondent had not presented any valid reasons for non-payment.
Club A, from country B / Player C, from country D / Club E, from country D
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21.
In addition, taking into consideration the Respondent/Counter-Claimant’s claim,
the Chamber decided to award the Respondent/Counter-Claimant interest at the
rate of 5% p.a. on the amount of USD 80,000 as of 30 March 2012 until the date
of effective payment.
22.
In continuation, the Chamber decided that, on the basis of art. 17 par. 1 of the
Regulations, the Respondent/Counter-Claimant is entitled to receive from the
Claimant/Counter-Respondent compensation for breach of contract in addition to
the outstanding remuneration on the basis of the relevant employment contract.
23.
Subsequently, 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.
24.
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 members of the Chamber recalled that according to
art. 3.1 of the employment contract, if the player’s condition does not suit the
coach and if the club is not satisfied with the player’s performance, the contract
may be terminated by giving compensation of 2 months’ salary.
25.
The members of the Chamber agreed that this clause is to the benefit of the club
only, i.e. it is not reciprocal as it does not grant similar rights to the player, and
that, therefore, said clause cannot be taken into consideration in the
determination of the amount of compensation.
26.
As a consequence, the members of the Chamber determined that the amount of
compensation 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
Club A, from country B / Player C, from country D / Club E, from country D
Page 10 of 13
the deciding body. In this regard, the Dispute Resolution Chamber emphasised
beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter.
27.
In order to estimate the amount of compensation in the present case, the
members of the Chamber first turned their attention to the remuneration and
other benefits due to the Claimant/Counter-Respondent under the existing
contract and/or the new contract, which criterion was considered by the Chamber
to be essential. The members of the Chamber deemed it important to emphasise
that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
28.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract for
the remaining duration as from February 2012 until June 2013 and concluded that
the Respondent/Counter-Claimant would have received a total remuneration of
USD 687,500. In this context, and bearing in mind the counterclaim of the
Respondent/Counter-Claimant, the members of the Chamber emphasised that the
pertinent employment contract does not include any pecuniary mention relating
to fringe benefits and that, therefore, these could not be taken into
consideration.
29.
In continuation, the Chamber verified as to whether the Respondent/CounterClaimant 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 DRC, 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.
30.
In this regard, the Chamber took into account that the Respondent/CounterClaimant had not found new employment in the relevant period of time.
31.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Claimant/CounterRespondent must pay the amount of USD 687,500 to the Respondent/CounterClaimant as compensation for breach of contract in the case at hand.
Club A, from country B / Player C, from country D / Club E, from country D
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32.
In addition, taking into account the Respondent/Counter-Claimant’s request, the
Chamber decided that the Claimant/Counter-Respondent must pay to the
Respondent/Counter-Claimant interest of 5% p.a. on the amount of compensation
as of on 30 March 2012 until the date of effective payment.
33.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Respondent/Counter-Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club A, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, Player C, is partially
accepted.
3.
The Claimant/Counter-Respondent has to pay to the Respondent/CounterClaimant, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of USD 80,000 plus interest of 5% p.a. as
from 30 March 2012 until the date of effective payment.
4.
The Claimant/Counter-Respondent has to pay to the Respondent/CounterClaimant, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount USD 687,500 plus interest of 5%
p.a. as from 30 March 2012 until the date of effective payment.
5.
In the event that the amounts due to the Respondent/Counter-Claimant are not
paid by the Claimant/Counter-Respondent within the stated time limits, the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
6.
Any further claim lodged by the Respondent/Counter-Claimant is rejected.
Club A, from country B / Player C, from country D / Club E, from country D
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7.
The Respondent/Counter-Claimant is directed to inform the Claimant/CounterRespondent 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 article 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
Club A, from country B / Player C, from country D / Club E, from country D
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