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 Majavu (South Africa), member
on the claim presented by the player,
Player A, from country B
as Claimant/Counter-Respondent
against the club,
Club C, from country D
as Respondent/Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 14 January 2010, the player from country B, Player A (hereinafter: the
Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter:
the Respondent/Counter-Claimant), signed an employment contract (hereinafter:
the contract), valid as from the date of signature until 30 June 2012.
2.
According to the contract, the Respondent/Counter-Claimant undertook to provide
the Claimant/Counter-Respondent, inter alia, with the following:
a)
b)
3.
a monthly salary of EUR 12,000 net, payable “until the 30th day of the
following month”;
“a home, paying his rent”.
In addition, the parties agreed upon the following clauses:
a)
Article IV.1.2: “The [Respondent/Counter-Claimant] shall have insurance policy
for the [Claimant/Counter-Respondent] in accordance with law in force,
including additional social security.”
b)
Article IV.1.3: “The [Respondent/Counter-Claimant] shall have insurance
policy, mandatory, to cover any accident or disease of the [Claimant/CounterRespondent] with insurance indemnification not inferior to 20,000 for each
year of game or a part of it.”
c)
Article IX.1.7: “The contract […] may be interrupted for [Respondent/CounterClaimant]’s fault, for non performance of financial obligations toward the
[Claimant/Counter-Respondent]. […] Settlement of financial obligations is
evidenced with a certificate with the [Claimant/Counter-Respondent]
signature notarized or signature of a representative. Settlement can be
evidenced by a certificate of the amount deposited in bank in favour of the
[Claimant/Counter-Respondent]. For non compliance with financial obligations
is considered payment default of two monthly remunerations after date
scheduled for payments.”
d)
Article VIII.1.2: “Temporary Labour Incapacity. If the [Claimant/CounterRespondent] is sick, without fault, even as labour related accident, [the
Claimant/Counter-Respondent] is entitled to temporary labour incapacity
according to the Social Security Code. If the [Respondent/Counter-Claimant]
does not inform the related authority on the labour related accident, [the
Claimant/Counter-Respondent] is entitled to continuous indemnification
including basic monthly remuneration.”
4.
On 13 May 2011, the Claimant/Counter-Respondent unilaterally terminated the
contract based on the Respondent/Counter-Claimant’s alleged failure to pay him
two consecutive salaries, corresponding to February and March 2011.
5.
On 23 November 2011, the Claimant/Counter-Respondent lodged a claim for breach
of contract in front of FIFA against the Respondent/Counter-Claimant, requesting
Player A, from country B / Club C, from country D
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sporting sanctions and the payment of the total amount of EUR 276,000, plus 5%
interest p.a., broken down as follows:
a)
b)
c)
EUR 48,000, as outstanding remuneration, corresponding to the monthly
salaries of February to May 2011;
EUR 156,000, as compensation, corresponding to the residual value of the
contract, i.e. 13 months from June 2011 until June 2012;
EUR 72,000, as additional compensation pursuant to art. 337c par. 2 of the
Swiss Code of Obligations, corresponding to six monthly salaries.
6.
In his claim, the Claimant/Counter-Respondent explains that on 27 April 2011, he
warned the Respondent/Counter-Claimant with regard to the non-payment of his
salaries of February and March 2011 and urged it to make the payments until 12
May 2013. Due to the Respondent/Counter-Claimant’s alleged failure to comply
with its financial obligations towards him, the Claimant/Counter-Respondent
terminated the contract on 13 May 2011 (cf. point I.4. above).
7.
The Claimant/Counter-Respondent further explains that, in light of art. 337c par. 2
of the Swiss Code of Obligations and the fact of being unemployed during seven
months, he is entitled to an additional compensation equal to six monthly salaries.
8.
In its
response, the
Respondent/Counter-Claimant
states that
“the
[Claimant/Counter-Respondent] was injured” and “suspended his training and
playing activities”. Therefore, the Respondent/Counter-Claimant claims that the
Claimant/Counter-Respondent breached the contract by “not performing [his]
duties” and, according to arts. 8 and 125 of the Labour Code in country D, he is not
entitled to his salaries of February to April 2011 because he did not fulfil his
obligations.
9.
The Respondent/Counter-Claimant further explains that “the salaries were not due”
in consideration of art. VIII.1.2 (cf. point I.3.d) above). In this sense, the
Respondent/Counter-Claimant asserts that the Claimant/Counter-Respondent was
entitled only to compensation according to law in country D, i.e. the remuneration
was to be paid by the National Insurance Institute of country D according to the
statutory amount.
10.
In any case, the Respondent/Counter-Claimant affirms that it paid the
Claimant/Counter-Respondent’s salaries from February until April 2011 and that,
consequently, the player did not have just cause to terminate the contract on 13
May 2011. In this regard, the club submitted salary slips signed by the
Claimant/Counter-Respondent in respect of February, March and April 2011, in the
amount of 22,131.47, 23,044.21 and 23,276.97, respectively.
11.
Finally, the Respondent/Counter-Claimant lodged on 17 September 2013, a
counterclaim against the Claimant/Counter-Respondent for restitution of payments
in satisfaction of non-existent obligations, requesting the payment of:
a)
EUR “171 125.00”, corresponding to the player’s salaries from February until
April 2011;
Player A, from country B / Club C, from country D
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b)
c)
9,493.55, corresponding to “the excess of the permissible limit for rent
payment”;
legal expenses.
12.
In his reply to the counterclaim, the Claimant/Counter-Respondent reiterates that
his salaries from February until April 2011 were not paid.
13.
In its final position, the Respondent/Counter-Claimant argues that the
Claimant/Counter-Respondent is not entitled to any compensation since he did not
have just cause to terminate the contract. In this sense, the Respondent/CounterClaimant explains that the Claimant/Counter-Respondent terminated the contract
based on alleged outstanding remuneration, which was actually paid, as evidenced
by the salary slips submitted by the Respondent/Counter-Claimant and signed by
the Claimant/Counter-Respondent.
14.
The Respondent/Counter-Claimant emphasised that the Claimant/CounterRespondent did not contest the authenticity of the payment slips in his reply to its
counterclaim.
15.
The Respondent/Counter-Claimant argues that if any salary is due, it would only be
the one between 1 May 2011 and 13 May 2011.
16.
Finally, the Claimant/Counter-Respondent informed FIFA that he signed an
employment contract with the club from country B, Club X, valid from 1 November
2011 until 10 May 2012, under which he received the total amount of 25,000.
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
23 November 2011. Consequently, the 2008 edition of the Rules governing the
procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is 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 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (editions 2010, 2012 and 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 B, on the
one hand, and a club from country D, on the other.
3.
Furthermore, the Chamber analysed which edition of the 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 claim of the Claimant/Counter-
Player A, from country B / Club C, from country D
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Respondent was lodged on 23 November 2011, the 2010 edition of 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 started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the
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 acknowledged that it was undisputed by the parties
that they were contractually bound by the contract concluded between them on 14
January 2010, valid as from 14 January 2010 until 30 June 2012.
6.
In addition, the DRC noted that the parties did not dispute the fact that the
Claimant/Counter-Respondent terminated the contract on 13 May 2011, after
having sent to the Respondent/Counter-Claimant a warning by fax on 27 April 2011
in connection with the alleged non-payment of his salaries of February and March
2011 in the total amount of EUR 24,000 net.
7.
The Chamber further noted that the Claimant/Counter-Respondent, on the one
hand, lodged a claim against the Respondent/Counter-Claimant for breach of
contract, arguing that he terminated the contract with just cause on 13 May 2011,
based on the non-payment of his salaries of February and March 2011.
8.
The Chamber also noted that the Respondent/Counter-Claimant, on the other hand,
lodged a counterclaim against the Claimant/Counter-Respondent for breach of
contract, arguing that the latter terminated the contract without just cause since his
receivables were paid.
9.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the respective claims of the Claimant/CounterRespondent and the Respondent/Counter-Claimant, was to determine whether the
contract had been unilaterally terminated with or without just cause by the
Claimant/Counter-Respondent.
10.
In view of the above, the DRC first of all took into consideration the content of art.
14 of the Regulations, which provides that “a contract may be terminated by either
party without consequences of any kind (either payment of compensation or
imposition of sporting sanctions) where there is just cause”.
11.
The Chamber stressed that the definition of just cause and whether just cause exists
shall be established in accordance with the merits of each particular case.
12.
In this sense, the members of the DRC recalled the content of art. IX.1.7 of the
contract (cf. point I.3.c) above), which provides that there is just cause for the
Claimant/Counter-Respondent to terminate the contract if two monthly
remunerations are not paid within the due dates.
Player A, from country B / Club C, from country D
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13.
In continuation, the members of the DRC took due note that the Claimant/CounterRespondent based the termination of the contract with just cause on the nonpayment of his salaries of February and March 2011, while the Respondent/CounterClaimant asserts that those salaries were actually paid.
14.
At this point, the members of the Chamber deemed it appropriate to refer the
parties to art. 12 par. 3 of the Procedural Rules, which stipulates that “any party
claiming a right on the basis of an alleged fact shall carry the burden of proof”.
15.
In this context, the members of the Chamber analysed the salary slips that may be
found on the file (cf. point I.10. above), submitted by the Respondent/CounterClaimant to evidence the payment of the Claimant/Counter-Respondent’s salaries of
February and March 2011, on the basis of the termination of the contract by the
Claimant/Counter-Respondent.
16.
Taking into consideration that it appears that the Claimant/Counter-Respondent
signed the abovementioned payment slips and the fact that he did not contest their
authenticity, the DRC concluded that the salaries of February and March 2011 were
paid to the Claimant/Counter-Respondent and decided that he did not have just
cause to unilaterally terminate the contract on 13 May 2011.
17.
At this point, the Chamber deemed it appropriate to refer to the counterclaim
lodged by the Respondent/Counter-Claimant on 17 September 2013, based on the
alleged breach of contract without just cause on the part of the Claimant/CounterRespondent.
18.
In this respect, the Chamber deemed that, having been lodged on 17 September
2013 only, a counterclaim relating to the termination of a contract that occurred on
13 May 2011 must be considered barred by the statute of limitations in accordance
with art. 25 par. 5 of the Regulations, which, in any case, was informed by the FIFA
administration to the Respondent/Counter-Claimant on 18 November 2013.
19.
Consequently, on account of the abovementioned consideration, the Chamber
decided that the counterclaim of the Respondent/Counter-Claimant is inadmissible.
20.
Having established that the Claimant/Counter-Respondent had not had a just cause
to terminate the contract on 13 May 2011 and that the counterclaim of the
Respondent/Counter-Claimant is inadmissible due to the fact that it is time-barred,
the Chamber held that it still had to address the issue of any unpaid remuneration
at the moment the contract was terminated by the Claimant/Counter-Respondent.
21.
Indeed, in his claim, the Claimant/Counter-Respondent alleges that outstanding
salaries in the amount of EUR 48,000, corresponding to his monthly salaries of
February to May 2011 were due at the time he terminated the contract. Bearing in
mind the content of art. 12 par. 3 of the Procedural Rules, the Chamber drew its
attention to the fact that the Respondent/Counter-Claimant evidenced the payment
of the salaries of February, March and April 2011 (cf. point I.10. above and II.15.
above).
Player A, from country B / Club C, from country D
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22.
In this regard and without prejudice of the fact that each monthly salary was to fall
due on the “30th day of the following month” (cf. point I.2.a) above), the Chamber
took into account that the Respondent/Counter-Claimant did not pay to the
Claimant/Counter-Respondent the remuneration corresponding to the days he
worked during May 2011, which was, in any case, not disputed by the
Respondent/Counter-Claimant (cf. point I.15. above).
23.
In accordance with the principle pacta sunt servanda, the Chamber decided that the
claim of the Claimant/Counter-Respondent is partially accepted and that the
Respondent/Counter-Claimant is to be held liable to pay him outstanding
remuneration in the total amount of EUR 5,032 pursuant to the contract (cf. point
I.2.a) above).
24.
In addition, taking into account the Claimant/Counter-Respondent's request as well
as the constant practice of the Dispute Resolution Chamber in this regard, the
members of the Chamber decided to award the Claimant/Counter-Respondent
interest at the rate of 5% p.a. on the outstanding amount of EUR 5,032 as of 23
November 2011 until the date of effective payment.
25.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant/Counter-Respondent
is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.
2.
The Respondent/Counter-Claimant, Club C, is ordered to pay to the
Claimant/Counter-Respondent outstanding remuneration in the amount of EUR
5,032, plus 5% interest p.a. as from 23 November 2011 until the date of effective
payment, within 30 days as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant/Counter-Respondent in
accordance with the above-mentioned number 2., plus interest, is not paid by the
Respondent/Counter-Claimant within the stated time limit, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
4.
Any further claims lodged by the Claimant/Counter-Respondent are rejected.
5.
The counterclaim of the Respondent/Counter-Claimant is inadmissible.
6.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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 C, from country D
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*****
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 C, from country D
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