Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 January 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Theo van Seggelen (Netherlands), 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 an unspecified date, the player from country B, Player A (hereinafter: the
Claimant) and the club from country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract), valid as of 5 July
2014 until 31 May 2017.
2.
Pursuant to art. 3 of the contract, the Claimant was entitled to receive the
following net remuneration:
- 2014-15 season: ten equal monthly salaries of EUR 50,000;
- 2015-16 season: ten equal monthly salaries of EUR 60,000;
- 2016-17 season: ten equal monthly salaries of EUR 60,000.
3.
Art. 3 further specifies that “[if] payment will be made in instalments then the
amounts payable and dates of payment under this contract shall be clearly
indicated. Otherwise, general provisions of the Code of Obligations and the terms
and conditions of the Regulations on the Status and Transfer of Professional
Football Players shall apply”.
4.
On 25 November 2014, the Respondent signed a document titled “Declaration /
Authorization” by means of which it states, inter alia, the following:
“(…)
4. [the Claimant] had suffered a serious injury and it should be subjected to a
surgical intervention.
5. [the Respondent] authorize [the Claimant] to have the surgical intervention in
country B and remain in country B until fully recovered.
6. [the Respondent] assume the responsibility of all the cost of surgical
intervention and also all the cost with the process of recuperation.
7. In case of dispute the parts should appeal to FIFA.”
5.
By means of a correspondence dated 24 April 2015, but received on 2 May 2015,
the Claimant put the Respondent in default of paying his salaries for January,
February and March 2015 within ten days.
6.
By means of a correspondence dated 10 June 2015, but received on 19 June 2015,
the Claimant terminated the contract in writing.
7.
On 19 October 2015, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting the following:
- EUR 250,000, plus 5% interest p.a. as of each due date, as outstanding salaries for
the months of January, February, March, April and May 2015;
- EUR 3,368.67 as reimbursement of the medical costs incurred;
Player A, country B / Club C, country D
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- EUR 1,200,000, plus 5% interest p.a. as of 10 June 2015, as compensation
corresponding to the residual value of the contract;
- Sporting sanctions to be imposed on the Respondent.
8.
In his claim, the Claimant explains that after he injured his knee, and in spite of
having expressly committed to do so by means of the “Declaration /
Authorization”, the Respondent failed to comply with its contractual obligations,
i.e. paying his salary as well as his medical costs. The Claimant further emphasises
that the Respondent’s failure occurred when he was undergoing an injury, which is
a crucial period.
9.
In spite of having been invited to do so, the Respondent did not reply to the
Claimant’s claim.
10.
According to the information contained in the Transfer Matching System, on 12
January 2016, the Claimant and the club from the country E, Club F, concluded an
employment contract valid as of 1 January 2016 until 31 December 2016 and
according to which he is entitled to receive a total remuneration of USD 275,000.
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 19 October 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
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 2015), 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 and 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 2015), and considering that the present claim was lodged on 19 October
2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
Player A, country B / Club C, country D
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4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. However, the Chamber emphasised that in
the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
In this respect, the Chamber acknowledged that the parties had signed an
employment contract, valid as of 5 July 2014 until 31 May 2017 and that the
Claimant had unilaterally terminated said contract with the Respondent on 19
June 2015, i.e. before the ordinary expiry of the employment contract, after
having put the latter in default on 2 May 2015.
6.
In continuation, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that he had terminated the
employment contract with just cause. In particular, the Claimant alleges that the
club failed to pay his salaries for the period as from January until May 2015 as well
as to reimburse him the medical expenses he had incurred in spite of having
expressly committed to do so.
7.
Subsequently, the DRC observed that the Respondent, for its part, failed to present
its response to the claim of the Claimant, in spite of having been invited to do so.
Consequently, the Chamber deemed that the Respondent had renounced to its
right of defence and, thus, had accepted the allegations of the Claimant.
8.
As a consequence of the aforementioned consideration, the DRC held that, in
accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken
upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
9.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute was to determine whether the contract had been terminated
by the Claimant on 19 June 2015 with or without just cause.
10.
At this stage, the Chamber first recalled that by means of the “Declaration /
Authorization”, the Respondent committed to “assume the responsibility of all the
cost of surgical intervention and also all the cost with the process of recuperation”.
In this respect, the members of the Chamber noted that the Claimant submitted
documentation evidencing the medical expenses that he incurred in relation to his
knee injury.
11.
On account of the aforementioned, and, in particular, taking into account that the
Respondent did not reply and thus, did not contest that the claimed salaries as
well as the medical expenses incurred had remained unpaid, the DRC established
Player A, country B / Club C, country D
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that the Respondent, without any valid reason, failed to remit to the Claimant,
until 19 June 2015, the salaries for January until May 2015, as well as to reimburse
the medical costs incurred by the Claimant. Consequently, and considering that the
Respondent had repeatedly and for a significant period of time been in breach of
its contractual obligations towards the Claimant, the Chamber decided that the
Claimant had just cause to unilaterally terminate the employment contract on 19
June 2015 and that, as a result, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
12.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the Chamber focused its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant is entitled to receive from the
Respondent an amount of money as compensation for breach of contract in
addition to any outstanding payments on the basis of the relevant employment
contract.
13.
At this stage, the DRC made reference to its previous considerations and recalled
that at the time of the termination, i.e. on 19 June 2015, the salaries for January
until May 2015 were outstanding.
14.
Consequently, in accordance with the principle of pacta sunt servanda, the DRC
judge decided that the Respondent is liable to pay the Claimant the amount of
EUR 250,000 as outstanding remuneration.
15.
In addition, and taking into consideration the Claimant’s claim, the DRC decided
that the Respondent had to pay default interest at a rate of 5% as follows:
a. 5% p.a. as of 1 February 2015 on the amount of EUR 50,000;
b. 5% p.a. as of 1 March 2015 on the amount of EUR 50,000;
c. 5% p.a. as of 1 April 2015 on the amount of EUR 50,000;
d. 5% p.a. as of 1 May 2015 on the amount of EUR 50,000;
e. 5% p.a. as of 1 June 2015 on the amount of EUR 50,000.
16.
Equally, as regards the Claimant’s claim pertaining to the reimbursement of the
medical costs incurred, on the basis of the invoices submitted by the Claimant and
referring to the relevant terms of the “Declaration / Authorization”, the Chamber
decided that the Respondent must pay to the Claimant the amount of EUR
3,368.67.
17.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent 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
Player A, country B / Club C, country D
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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.
18.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained 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 Chamber established that no such compensation clause
was included in the employment contract at the basis of the matter at stake.
19.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
20.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract until
31 May 2017, taking into account that the Claimant’s remuneration until May 2015
is included in the calculation of the outstanding remuneration. Consequently, the
Chamber concluded that the amount of EUR 1,200,000, i.e. remuneration as from
June 2015 until 31 May 2017, serves as the basis for the determination of the
amount of compensation for breach of contract.
21.
In continuation, the Chamber verified as to whether the Claimant 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.
22.
The Chamber noted that according to the documentation in its possession, the
Claimant concluded a new employment contract valid until 31 December 2016,
according to which he is entitled to receive a total remuneration of USD 275,000
which corresponds to an amount of EUR 250,000.
23.
In view of all of the above, and taking into consideration the respective duration
of the original and of the new contract, the DRC decided that the Respondent
must pay the amount of EUR 950,000 to the Claimant, which is considered by the
DRC to be a reasonable and justified amount as compensation for breach of
contract.
Player A, country B / Club C, country D
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24.
In addition, taking into account the Claimant’s request as well as its longstanding
and well-established jurisprudence, the Chamber decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of compensation as of
the date on which the claim was lodged, i.e. 19 October 2015, until the date of
effective payment.
25.
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
2.
The claim of the Claimant, Player A, is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 3,368.67 as reimbursement of
medical costs.
4.
In the event that the amount set forth in point 2 is not paid by the Respondent within
the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.
5.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, outstanding remuneration in the amount of EUR 250,000
plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
5% p.a. as of 1 February 2015 on the amount of EUR 50,000;
5% p.a. as of 1 March 2015 on the amount of EUR 50,000;
5% p.a. as of 1 April 2015 on the amount of EUR 50,000;
5% p.a. as of 1 May 2015 on the amount of EUR 50,000;
5% p.a. as of 1 June 2015 on the amount of EUR 50,000.
6.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract amounting to EUR
950,000 plus 5% interest p.a. on said amount as from 19 October 2015 until the date
of effective payment.
7.
In the event that the amounts plus interest due to the Claimant in accordance with the
above-mentioned points 4. and 5. are not paid by the 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.
Player A, country B / Club C, country D
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8.
Any further claim lodged by the Claimant is rejected.
9.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are 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. 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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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