Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 19 January 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
Wouter Lam brecht (Belgium ), member
on the claim presented by the player,
Play er A, from country A
as Claimant
against the club,
Club B, from country B
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 17 March 2015, the player from country A (hereinafter: player or Claimant)
and the Club B, from country B (hereinafter: club or Respondent) signed an
employment contract (hereinafter: contract) valid as from 19 January 2015 until
30 June 2016.
2.
According to art. 9 par. 1 and art. 12 of the contract, the player was entitled to
receive a salary of 3,292.18 on a monthly basis.
3.
According to art. 13 of the contract, “Unilateral termination of contracts harmful
consequences are defray by side who broke the contract” and “If there are
grounds for termination of the agreement, termination of the contract will be
approved by the Players’ Status Committee in the first instance. To appeal in the
second instance for the players of premier League”
4.
On 4 March 2016, the player sent a default notice to the club reading that before
he returned to country A on 1 June 2015, the club had failed to pay him his last
three salaries. Hence, the player granted the club a deadline until 15 March 2016
to pay these salaries, i.e. 9,876.54, as well as 29,629.62 as the contractual value
until the end of the contract.
5.
On 18 March 2016, the player lodged a claim in connection with outstanding
remuneration and alleged breach of contract against the club before FIFA. In said
claim, the player reiterated the information contained in his above-mentioned
default notice and added that the club never responded to him.
6.
Therefore, the player asked that the club be ordered to pay him 9,876.54
corresponding to this outstanding salaries for the months of April, May and June
2015, as well as 29,629.62 as compensation for breach of contract, i.e. nine
instalments of 3,292.18 each.
7.
The club, for its part, rejected the player’s claim and held that it is the player who
left the club and unilaterally terminated the contract.
8.
In this respect, the club explained that, on 20 January 2016, it lodged a claim
against the player in front of the “Committee for status of players in affiliated
registry Football Association of country B in order to “determine the employment
contract termination” and that, on 1 February 2016, said Committee decided that
as of 19 June 2015, the contract had been unilaterally terminated by the player.
9.
Additionally, said decision reads that the club’s Disciplinary Committee sanctioned
the player with a fine of 6,000 and that the termination of the contract as of 19
June 2015 was pronounced on the basis of the allegations that the player had not
Player A, from country A / Club B, from country B
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resumed training as of 10 June 2015, had not justified his absence and remained
absent from the club who was unaware of his place of residence.
10.
Additionally, the club specified that according to the aforementioned decision
and “pursuant to provisions of the Ordinance on Registration, status and Transfer
of Players” the consequences of the termination of contract shall be borne by the
player.
11.
In his replica, the player asserted that as early as on 3 June 2015 he had already
asked the club to pay his salaries for February and May 2015, as well as match
bonuses, and added that the club was therefore aware of all his contact details,
should it have wished to contact him.
12.
In continuation, the player explained that on 1 June 2015, the day after the last
match of the season, he flew back to country A with the ticket the club had
provided him with.
13.
However, he considered that the club had breached the contract without just
cause as of 19 June 2015, since the club (i) had failed to pay his salaries for the
months of February, May and June “2016” and (ii) did not send him his return
flight ticket for the 2015/2016 season.
14.
The player maintained his claim against the club and asserted that he “never
unilaterally breached [his] contract with the club and [that he is] not sure if the
Football Association of country B is competent to declare [his] contract terminated
as of 19-6-2015 as a consequence of the request done by Club B on 20-1-2016, 7
months after [he] “supposedly” breached [his] contract.”
15.
The club has not presented any final comments on the matter, in spite of having
been invited to do so.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 18 March 2016. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
of the Procedural Rules).
2.
In continuation, 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
Player A, from country A / Club B, from country B
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Players (edition 2016) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a country A player and
a country B Club.
3.
However, the Chamber noted that the Respondent deems that the Dispute
Resolution Chamber has no competence to deal with the claim at stake by virtue
of the application of the legal principle of res iudicata.
4.
In this respect, the Respondent pointed out that the Claimant’s claim is aimed at
obtaining a decision from the Dispute Resolution Chamber ruling that the
Respondent terminated the contractual relationship with the Claimant without
just cause, whereas the employment relationship between the parties has already
been considered terminated at the Claimant’s fault by means of the decision
passed on 1 February 2016 by the Committee for status of players of the Football
Association of country B on the basis of the claim lodged by the Respondent
against the Claimant in front of said deciding body on 20 January 2016.
5.
Against such background, the Chamber deemed it appropriate to first briefly
recall that on the basis of the principle of res iudicata, a decision-making body is
not in a position to deal with the substance of a case in the event that another
deciding body has already dealt with the same matter by passing a final and
binding decision. Indeed, the parties to the dispute as well as the deciding
authority are bound by the final and binding decision previously passed.
6.
In this respect, the Chamber wished to highlight that from the copy of the
decision of the Committee for status of players of the Football Association of
country B that was provided by the Respondent, it could be verified that the
Respondent lodged a claim against the Claimant before said decision-making
body in order to obtain a decision ruling that the contract signed by and between
the parties be deemed unilaterally terminated by the Claimant on the basis of his
arbitrary leave from the Respondent and his failure to comply with his contractual
obligations.
7.
What is more, the Chamber noted that in its decision, the Committee for status of
players of the Football Association of country B decided that the employment
contract concluded between the Respondent and the Claimant “has been
unilaterally terminated by the aforementioned player, as of 19/06/2015” and that
the “consequences of the unilateral termination of the contract (…) shall be
borne by the player A (…).”
8.
In this context, the Chamber further noted that whereas art. 13 of the contract
contains a reference to the competence of the aforementioned decision-making
body in connection with situations of termination of contract, the Claimant, for
his part, did not state that he was unaware of the occurrence of the
aforementioned proceedings but limited himself to assert that he was “not sure if
Player A, from country A / Club B, from country B
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the Football Association of country B [was] competent to declare [the relevant]
contract terminated.”
9.
In view of the aforementioned, and after having also taken due note that the
Claimant had implicitly acknowledged not having lodged any appeal against said
decision of the Committee for status of players of the Football Association of
country B, the members of the Chamber reached the conclusion that the
Claimant’s claim against the Respondent for unlawful termination of the contract
indeed has to be considered a res iudicata and that, therefore, this part of the
Claimant’s claim had to be qualified as inadmissible. Consequently, the Chamber
could not enter into the substance of the Claimant’s claim related to breach of
contract and compensation for breach of contract.
10.
Notwithstanding the above, the Chamber recalled that in his statement of claim,
the Claimant also asserted that the Respondent had failed to pay remuneration in
the amount of 9,876.54 and asked that the Respondent be ordered to pay him
such amount.
11.
In this regard, and after a careful review of the contents of the aforementioned
decision of the Committee for status of players of the Football Association of
country B, the members of the Chamber agreed that this specific part of the
Claimant’s claim did not appear to have been dealt with on the occasion of said
local proceedings.
12.
Therefore, taking into account the articles of the Procedural Rules and the
Regulations on the Status and Transfer of Players referred to under points II./1.
and II./2. above, the Chamber decided that the Dispute Resolution Chamber is
competent to deal with and enter into the substance of the Claimant’s claim
relating to outstanding remuneration.
13.
Subsequently, the DRC analysed which regulations should be applicable as to the
substance of this aspect of the present matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and par. 2 of said Regulations (edition 2016), and
considering that the present claim was lodged on 18 March 2016, the 2015 edition
of the Regulations on the Status and Transfer of Players (hereinafter: Regulations)
is applicable to the substance of this aspect of the present matter.
14.
The competence of the Chamber and the applicable regulations having been
established, the Chamber started by acknowledging the relevant abovementioned facts as well as the arguments and the documentation submitted by
the parties in this respect. 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.
Player A, from country A / Club B, from country B
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15.
On account of the above, the Chamber deemed relevant to recall that in his
statement of claim, the Claimant reported that the Respondent failed to pay his
salaries in connection with the months of April, May and June 2015, i.e. the
amount of 9,876.54.
16.
On the other hand, the DRC noted that in spite of having been invited to do so,
the Respondent had not submitted any comments in connection with this aspect
of the Claimant’s claim. Accordingly, the DRC considered that it was to be
concluded that the Respondent accepted the allegations of the Claimant in this
respect.
17.
In this context, and bearing in mind the relevant terms of the employment
contract as well as the decision of the Committee for status of players of the
Football Association of country B, i.e. in particular its finding that the Claimant
should have resumed his contractual duties on 10 June 2015, the Chamber found
(i) that the Claimant’s salary for the month of June 2015 had not yet fallen due at
the time when the Claimant left the club on 1 June 2015 and (ii) that the Claimant
was only entitled to receive remuneration for 9 days of June 2015.
18.
On account of the above, and in accordance with the general legal principle of
pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to
the Claimant outstanding remuneration in the amount of 7,571, i.e. the
Claimant’s full monthly salary for the months of April and May 2015 as well as
salary of 9 days for the month of June 2015.
19.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted, insofar as it is
admissible.
2.
The Respondent, Club B, is ordered to pay to the Claimant outstanding
remuneration in the amount of 7,571 within 30 days as from the date of
notification of this decision.
3.
If the aforementioned amount is not paid within the above-mentioned time limit,
interest at the rate of 5% p.a. will apply as of expiry of the above-mentioned time
limit and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player A, from country A / Club B, from country B
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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 m otiv ated decis ion (legal remedy):
According to art. 58 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, from country A / Club B, from country B
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