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 player,
Player A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 12 January 2012, the Player of Country B, Player A (hereinafter: the
Claimant), and the Club of Country D, Club C (hereinafter: the Respondent),
signed an employment contract (hereinafter: the contract), valid as from the
date of signature until 31 May 2015.
2.
According to art. 4 of the contract, the Respondent undertook to pay the
Claimant, inter alia, the following amounts “on a net basis, free of any
taxation and state levies”:
EUR 30,000 upon signature of the contract;
2011/12 Season:
o
EUR 120,000 (4 instalments of EUR 30,000, due at the end of
each month, beginning on 29 February 2012 and the last on 31
May 2012);
2012/13 Season:
o
EUR 97,500 (3 instalments of EUR 32,500, due on 31 August
2012, 30 September 2012, 30 October 2012);
o
EUR 227,500 (10 instalments of EUR 22,750, due at the end of
each month, beginning on 31 August 2012 and the last on 31
May 2013);
2013/14 Season:
o
EUR 105,000 (3 instalments of EUR 35,000, due on 31 August
2013, 30 September 2013, 30 October 2013);
o
EUR 245,000 (10 instalments of EUR 24,500, due at the end of
each month, beginning on 31 August 2013 and the last on 31
May 2014);
2014/15 Season:
o
EUR 112,500 (3 instalments of EUR 37,500, due on 31 August
2014, 30 September 2014, 30 October 2014);
o
EUR 262,500 (10 instalments of EUR 26,250, due at the end of
each month, beginning on 31 August 2014 and the last on 31
May 2015);
EUR 50,000 additional bonus for each season in which the Respondent
qualifies for any of the UEFA club tournaments, payable immediately
upon completion of the relevant season.
3.
According to art. 9.2 of the contract, “[i]f the Respondent fails to pay two
installments of the Claimant’s salary, partly or in full, in due time, the Claimant
may serve a seven (7) day notice to the Respondent. If, notwithstanding the
notice, the overdue salary payments are not entirely wire transferred to the
Claimant, the Claimant shall be entitled to terminate the employment
relationship for just cause, with immediate effect”.
Player A, Country B / Club C, Country D
2/11
4.
In addition, according to art. 9.3 of the contract, “[i]n case of premature,
unilateral termination of this contract with/without just cause by either party,
the party in breach of this contract shall immediately pay compensation to the
injured one, amounting to the entire residual value of this contract, including
the UEFA bonuses stipulated hereinabove. The compensation shall be paid on
a net basis, free of any taxation. The Parties hereby explicitly agree that no
adjustment shall apply on the compensation amount. An interest rate of 10%
per year as of the day following the termination date shall apply in case of
delay of payment”.
5.
Moreover, according to art. 11.1 of the contract, “[a]ny amendments, additions
or deletions of this contract are only valid if agreed in writing.”
6.
On 15 November 2012, the Claimant lodged a claim before FIFA against the
Respondent for breach of contract without just cause and requested the
payment of the total amount of EUR 1,395,000, plus interest of 10% p.a. as
from 16 June 2012, made up of:
EUR 325,000 corresponding to salaries for 2012/13 season;
EUR 350,000 corresponding to salaries for 2013/14 season;
EUR 375,000 corresponding to salaries for 2014/15 season;
EUR 150,000 corresponding to UEFA bonus payments for the 2012/13,
2013/14 and 2014/15 seasons (3 x EUR 50,000);
EUR 195,000 (6 monthly salaries of EUR 32,500) as compensation for
“sporting and moral damages and emotional distress” pursuant to Art.
337 Par. 3 of the Swiss Code of Obligations.
7.
In addition, the Claimant requested sporting sanctions to be imposed on the
Respondent.
8.
In his arguments, the Claimant requested that the DRC apply the principle of
“positive interest”. Specifically, the Claimant requested that the DRC order the
Respondent to pay him “the due compensation on a net basis, free of any
taxation, the [Respondent] being responsible for the filing and payment of all
taxes relating to this payment of compensation to the [Claimant].” In support,
the Claimant referred to the jurisprudence of CAS.
9.
In addition, the Claimant claimed that the parties clearly agreed on the
compensation payable in the event of breach of contract in art. 9.3 of the
contract. The Claimant affirmed said clause has to be considered valid and fully
effective, and that in particular, the remuneration and other benefits due to
the Claimant under a new employment contract, should not be considered by
the DRC when determining the amount of compensation, since “no
adjustment shall apply on the compensation amounts”.
Player A, Country B / Club C, Country D
3/11
10.
The Claimant argued that the Respondent failed to pay his monthly salaries for
April and May 2012. Therefore, on 7 June 2012, the Claimant faxed to the
Respondent a “7-day default notice”. In his notice, the Claimant asked the
Respondent to transfer to him the amount of EUR 60,000 (2 months salary x
EUR 30,000) within seven days, or he would terminate the contract.
11.
In a letter dated 8 June 2012, the Respondent acknowledged that it did not
pay the Claimant his salaries for April and May 2012. The Respondent further
stated in the letter that “the cash flow due to the Federation of Player A to
April and May salaries this month to pay (June 2012) will pay between twenty
and twenty five.” According to the Claimant, he rejected the Respondent’s
extension of the deadline to pay.
12.
On 15 June 2012, the Claimant faxed to the Respondent a “notice of
termination” in which he unilaterally terminated the contract with immediate
effect on account of the Respondent having failed to pay him the EUR 60,000
corresponding to the salaries for April and May 2012.
13.
Finally, the Claimant indicated that, on 20 June 2012, the Respondent wiretransferred to him the amount of EUR 60,000.
14.
In its response to the claim, the Respondent rejected the Claimant’s arguments
stating that it paid the Claimant the outstanding amount in accordance with
its letter dated 8 June 2012, in which it promised payment between 20 and 25
June 2012. The Respondent acknowledged that it was a “little late” with the
payment “[d]ue to some financial difficulties (cash flow) of the Respondent”,
but that the Respondent acted in good faith and had previously made salary
payments to the Claimant in advance of their due dates in February and March
2012.
15.
The Respondent held that “the Claimant broke the contract only late payment
of 60.000.EUR and now claims 1.395.000.EUR compensation”, which shows the
Claimant acted in bad faith.
16.
The Respondent further asserted that on 20 June 2012, in addition to paying
the Claimant the outstanding amounts, the Respondent invited the Claimant
to pre-season camp commencing on 3 July 2012.
17.
The Respondent claimed that the Claimant was absent from the pre-season
camp, and that the Football Federation of Country D informed the Respondent
on 4 July 2012 that the Claimant had unilaterally terminated his contract.
18.
The Respondent argued that the Claimant acted in bad faith and that the
Respondent has suffered as a result, particularly given that the Respondent
Player A, Country B / Club C, Country D
4/11
paid a transfer compensation of EUR 800,000 to acquire the Claimant for what
amounted to half of a season of play.
19.
The Respondent stated that it “reserve[s] [its] rights for claiming compensation
against the Claimant” and asked FIFA to reject the Claimant’s claim.
20.
In his replica, the Claimant stated that the Respondent did not contest the
validity of the contract, the factual background, FIFA’s jurisdiction and the law
applicable to the merits, the validity of art. 9.2 and 9.3 of the contract and that
the Claimant unilaterally and prematurely terminated the contract.
21.
The Claimant held that the Respondent implied that its letter of 8 June 2012
extended the 7-day deadline for payment stipulated in art. 9.2 of the contract.
In this regard, the Claimant sustained that according to art. 11.1, in the
absence of the Claimant’s clear and unequivocal written agreement, the
Respondent was not in a position to unilaterally extend the 7-day time limit
set.
22.
Regarding the calculation of compensation, the Claimant insisted that there is
no reason to deduct any of the amounts that he has earned with his new club
according to what is stipulated in art. 9.3 of the contract.
23.
The Respondent submitted its final comments, repeating its position.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) 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 15 November 2012. Consequently, the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2008; hereinafter: the Procedural Rules) are applicable to the
matter at hand (cf. art. 21 of the 2008, 2012 and 2014 editions 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 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 of Country B and a Club of
Country D.
Player A, Country B / Club C, Country D
5/11
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players 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 2010, 2012
and 2014), and considering that the present claim was lodged on 15 November
2012, the 2010 edition of the aforementioned 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 started by acknowledging that, on 12 January
2012, the Claimant and the Respondent had concluded an employment
contract valid as from 12 January 2012 until 31 May 2015.
6.
In this regard, the members of the Chamber duly considered the financial
terms of the employment contract at the basis of this dispute. In this respect,
the Chamber took note that it had been agreed upon between the parties that
the Claimant was to receive an amount of EUR 30,000 at the signing of the
contract, and a salary for the 2011/2012 season of EUR 120,000 payable in 4
equal instalments of EUR 30,000. It was also agreed that the Claimant was to
receive a remuneration of EUR 97,500 payable in 3 equal instalments of EUR
32,500, plus a remuneration of EUR 227,500 payable in 10 equal instalments of
EUR 22,750 for the 2012/2013 season, and a remuneration of EUR 105,000
payable in 3 equal instalments of EUR 35,000, plus a remuneration of EUR
245,000 payable in 10 equal instalments of EUR 24,500 for the 2013/2014
season.
7.
It was also established that the Claimant would receive a remuneration of EUR
112,500 payable in 3 equal instalments of EUR 37,500, plus a remuneration of
EUR 262,500 payable in 10 equal instalments of EUR 26,250 for the 2014/2015
season. Furthermore, the Chamber acknowledged that the claimant was
entitled to a EUR 50,000 additional bonus for each season in which the
Respondent qualifies for any of the UEFA club tournaments, payable
immediately upon completion of the relevant season.
8.
The Dispute Resolution Chamber further acknowledged that, on 15 November
2012, the Claimant lodged a claim in front of FIFA against the Respondent,
stressing that he had unilaterally terminated the employment contract with
Player A, Country B / Club C, Country D
6/11
just cause on 15 June 2012 in accordance with art. 9.2 of the contract, due to
the fact that the Respondent had not paid him his salaries for the months of
April and May 2012. In this respect, the Chamber duly noted that the Claimant
was seeking payment of the amount of EUR 1,395,000 plus interest as well as
sporting sanctions to be imposed on the Respondent.
9.
In this regard, the members of the Chamber noted that the Claimant, on 7
June 2012, had sent a notification to the Respondent via fax in which he
requested the Respondent to pay the outstanding salaries in the amount of
EUR 60,000 within 7 days. Following this, and since no payment was received
until the aforementioned deadline, the Claimant sent a letter to the
Respondent on 15 June 2012 terminating the contract alleging just cause. The
Chamber took due note of the supporting documentation presented by the
Claimant in this regard.
10.
In addition, the DRC took note that the Claimant argued that the parties had
agreed on the compensation payable in the event of breach of contract in art.
9.3 of the contract.
11.
It was observed by the Chamber that the Claimant insisted that the
Respondent never contested the validity of the contract, in particular the
validity of art. 9.2 and art. 9.3 of the contract, as well as the fact that he
terminated the contract unilaterally.
12.
Moreover, the Chamber pointed out that the Claimant acknowledged that the
Respondent paid his salaries corresponding to April and May 2012, on 20 June
2012.
13.
Subsequently, the Dispute Resolution Chamber duly considered the arguments
of the Respondent, where the Respondent held that the Claimant acted in bad
faith after it sent a letter to the Claimant on 8 June 2012, confirming that the
payment of the outstanding salaries would be done between the 20th or 25th of
June 2012.
14.
The DRC found it important to point out that the Respondent accepted paying
the outstanding salaries of the Claimant corresponding to April and May 2012,
on 20 June 2012.
15.
The Chamber then reviewed the claim of the Claimant, who maintained that
he had unilaterally terminated the employment contract with just cause in
accordance with art. 9.2 of the contract, since the Respondent had failed to
pay two of the monthly installments in due time, after having been put in
default by the Claimant, with a seven day notice. On account of the preceding
consideration, the Chamber stated that with the evidence submitted by both
Player A, Country B / Club C, Country D
7/11
parties and after the Respondent admitted only paying the outstanding
remuneration on 20 June 2012, it was obvious that the Respondent had failed
to pay the outstanding remuneration within the seven day deadline given by
the Claimant.
16.
What is more, reverting to art. 9.2 of the employment contract, the Chamber
established that in the light of the preceding considerations, the Respondent
had obviously been in delay of two salary payments. Furthermore, the
Chamber established that the Claimant had duly put the Respondent in default
of its contractual obligations in writing, on 7 June 2012, setting a 7 days’ time
limit to remedy such default. Hence, the conditions set out in art. 9.2 of the
employment contract have been fulfilled, as a result of which such article finds
application in the matter at stake.
17.
On account of the above, the Chamber concluded that the Claimant had
terminated the employment contract with just cause on 15 June 2012 and that
the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
18.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the employment contract
with just cause by the Claimant.
19.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract up until the date of
termination of the contract in accordance with the general legal principle of
“pacta sunt servanda”. In this respect, the DRC took note that, at the date of
termination of the contract, two salary payments were outstanding. However,
on 20 June 2012, the Respondent paid the mentioned outstanding salaries to
the Claimant and therefore, no outstanding remuneration is due to the
Claimant.
20.
Subsequently, after having established that the Respondent is to be held liable
for the early termination of the employment contract with just cause by the
Claimant, the Chamber decided that, taking into consideration art. 17 par. 1 of
the Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract.
21.
In this context, the Chamber outlined that, in accordance with said provision,
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
Player A, Country B / Club C, Country D
8/11
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.
22.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
compensation payable by the contractual parties in the event of breach of
contract. Upon careful examination of the employment contract concluded
between the Claimant and the Respondent, the members of the Chamber took
note that art. 9.3 provides that “[i]n case of premature, unilateral termination
of this contract with/without just cause by either party, the party in breach of
this contract shall immediately pay compensation to the injured one,
amounting to the entire residual value of this contract, including the UEFA
bonuses stipulated hereinabove. The compensation shall be paid on a net
basis, free of any taxation. The Parties hereby explicitly agree that no
adjustment shall apply on the compensation amount. An interest rate of 10%
per year as of the day following the termination date shall apply in case of
delay of payment”.
23.
The Chamber duly analysed the contents of said clause and acknowledged that
the aforementioned clause provides that the party in breach of the contract
shall pay compensation to the injured one. In this respect, the Chamber
acknowledged that said contractual clause did not include a precise and
specific amount of compensation, however, it clearly provided for a
determinable amount of compensation payable by the Respondent in the
event of breach of the contract with just cause by the Claimant, which amount
corresponds to the remaining value of the employment contract, including the
bonuses stipulated in the contract, and an interest rate of 10% per year as of
the day following the termination date, which was not considered
disproportionate by the Chamber.
24.
On account of the above, the parties having contractually agreed on the
compensation payable in the event of breach of contract, with such
compensation being reciprocal and not deemed disproportionate, the Dispute
Resolution Chamber concluded that the provision contained under article 9.3
of the pertinent employment contract has to be considered as valid and fully
effective, i.e. the amount of compensation provided for in said article shall be
awarded to the Claimant.
25.
In this regard, and according to the documentation provided by the Claimant
to FIFA, the Chamber established that the remaining value of the relevant
employment contract amounts to EUR 1,200,000 relating to the Claimant’s
financial entitlements under said contract as from June 2012 until May 2015.
Player A, Country B / Club C, Country D
9/11
26.
In this context, the DRC took further and careful notice of the contents of art.
9.3 of the contract in relation to the application of any mitigation on the
compensation payable in the event of breach of contract. In this regard,
according to art. 9.3 of the contract, the parties had mutually agreed that no
adjustment would apply on the compensation amount. As a result, the
Chamber concurred that any remuneration under the new employment is
irrelevant in the case at hand.
27.
Taking into account all of the above, the Chamber decided that the
Respondent has to pay to the Claimant the total amount of EUR 1,200,000 as
compensation for breach of contract.
28.
In addition, the Chamber decided that the Respondent must pay to the
Claimant interest of 10% p.a. on the amount of compensation as of the date
on which the claim was lodged, i.e. 15 November 2012, until the date of
effective payment.
29.
Furthermore, the DRC analysed the request of the Claimant corresponding to
compensation for moral damages in the amount of EUR 195,000. In this
regard, the Chamber deemed it appropriate to point out that the request for
said compensation presented by the Claimant had no legal or regulatory basis
and pointed out that no corroborating evidence had been submitted that
demonstrated the damage suffered or its quantity.
30.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant compensation for breach
of contract in the amount of EUR 1,200,000 plus 10% interest p.a. on said
amount as from 15 November 2012 until the date of effective payment,
within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee for consideration and a formal decision.
Player A, Country B / Club C, Country D
10/11
4.
Any further claim lodged by the Claimant is rejected.
5.
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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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, Country B / Club C, Country D
11/11