Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2013,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Takuya Yamazaki (Japan), member
Theodoros Giannikos (Greece), member
Essah M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the player,
Player A, from country S
as Claimant / Counter-Respondent
against the club,
Club O, from country C
as Respondent / Counter-Claimant
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 16 July 2011, Player A, from country S (hereinafter: the player), and Club O,
from country C (hereinafter: the club), entered into an employment contract valid
until 31 May 2013 (hereinafter: the contract).
2.
On 17 July 2011, the parties also signed a private agreement (hereinafter: the
private agreement) containing additional financial conditions to the contract.
3.
According to the contract, the club agreed to pay the player a salary of
EUR 30,000, payable in 20 instalments of EUR 1,500 each for the duration of the
contract, the first instalment payable until 30 August 2011 and the last instalment
on 31 May 2013.
4.
According to the private agreement, the club agreed to pay the player inter alia a
salary of EUR 140,000, payable in 20 instalments of EUR 7,000 each for the
duration of the contract, the first instalment payable until 30 August 2011 and
the last instalment on 31 May 2013.
5.
In a letter dated 21 February 2012 addressed to the club, the player informed the
latter that the salaries under the contract and the private agreement regarding
October 2011, November 2011, December 2011 and January 2012 in the
aggregate amount of EUR 28,000 were outstanding and, therefore, requested the
payment of the relevant amount until 23 February 2012.
6.
The club responded to the player’s notice in a letter dated 22 February 2012,
whereby it expressed its surprise due to the fact that the player, allegedly, had
never complained about any outstanding payments and informed him that “the
notice for payment of outstanding salaries within the next day is unfounded and
rejected”. The club informed the player, however, that it would proceed to make
the payment “within the next few days”.
7.
In a letter dated 24 February 2012 addressed to the club, the player terminated
the contract and the private agreement.
8.
On 5 March 2012, the player filed a claim with FIFA, requesting the payment of:
EUR 28,000 as outstanding salaries;
compensation for breach of contract “equal to the monthly salaries until
the expiration of the said Contract of Employment and Agreement”; and
legal expenses.
9.
In this regard, the player explained that the club failed to pay him part of the
salary of October 2011 as well as the salaries regarding November and December
Player A, from country S / Club O, from country C
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2011 and January 2012, and that consequently he had just cause to terminate the
contracts concluded with the club.
10.
On 27 March 2012, the club presented its response to the player’s claim as well as
a counter-claim. The club maintained that the unilateral termination of the
contract by the player was illegal and that the player acted in bad faith.
11.
The club confirmed that, due to some financial difficulties, it had outstanding
payments towards the player, but that this “was well known to the player and he
was never complained about this”.
12.
In continuation, the club asserted that the first time the player complained about
the outstanding payments was by means of his letter dated 21 February 2012,
which the club claimed to have received only on 22 February 2012. The club stated
that the fact that the player set a deadline of one day for the payment to be
made is “against the FIFA Regulations and/or the DRC and the CAS’
jurisprudence”.
13.
The club also asserted that, in virtue of payments made before the termination of
the contract, the outstanding salaries at the date of termination were in the
amount of EUR 27,700 only, and not EUR 28,800 as claimed. In addition, the club
stated that the player also received the amount of EUR 488.75 in excess for
accommodation. In this respect, the club submitted payment receipts in country G
only.
14.
For the aforementioned reasons, the club considered the termination by the
player of the contract to have occurred without just cause and requested
compensation equal to the remaining salaries due to the player under the
contract and the private agreement in the amount of EUR 146,700. The club also
claimed for “damages as the Dispute Resolution Chamber deems fit in the
premises as following from the Player’s behaviour and/or alleged termination
and/or breach”.
15.
On 27 June 2012, the player presented his replica and reaffirmed the allegations
set forth in his claim. Notwithstanding the above, the player accepted that the
outstanding salaries at the time of termination amounted to EUR 27,700 only, but
rejected the allegation that he received the amount of EUR 488.75 in excess for
accommodation.
16.
The player restated that the termination of the contract was lawful and that, as
such, the club’s counter-claim must be rejected.
17.
In its final position, the club reaffirmed the statements made in its original reply.
Player A, from country S / Club O, from country C
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18.
The player informed FIFA that he remained unemployed until the expiry date of
the contracts concluded with the club.
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 5 March 2012, thus after 1 July 2008. 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. article 21 par. 2 and 3 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, 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 S and a club from country C.
3.
Furthermore, the DRC 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 (editions 2012
and 2010) and also considering that the present claim was lodged in front of FIFA on
5 March 2012, the edition 2010 of the Regulations on the Status and Transfer of
Players (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 Dispute Resolution 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.
5.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid from 16 July 2011 to 31 May 2013, in accordance with which the player
was entitled, inter alia, to a total remuneration in the amount of EUR 30,000, payable
in 20 instalments. The DRC also recalled that the parties signed a private agreement
that established an additional remuneration in the amount of EUR 140,000, also
payable in 20 instalments.
Player A, from country S / Club O, from country C
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6.
The DRC further acknowledged that the player filed a claim with FIFA against the
club for breach of contract and requested the payment of outstanding
remuneration, compensation as well as legal costs.
7.
In this context, the Chamber, first and foremost, took note that it remained
undisputed by the parties that the player unilaterally terminated the contractual
relationship in writing, on 24 February 2012.
8.
On account of the above, the members of the Chamber proceeded to analyze
whether the player had just cause to unilaterally and prematurely terminate the
contractual relationship.
9.
In this respect, the Chamber acknowledged that, by letter dated 21 February 2012,
the player sent a default notice letter to the club requesting the payment of an
allegedly outstanding amount of EUR 28,000, to be paid until 23 February 2012.
10.
The DRC also took due note of the player’s allegation that, upon the termination
of the contract on 24 February 2012, the club had failed to pay almost four
salaries according to the contract and the private agreement, i.e. part of the salary
of October 2011 as well as the salaries for the months of November 2011,
December 2011 and January 2012.
11.
In continuation, the members of the Chamber carefully analyzed the club’s
position in these proceedings and came to the conclusion that the latter never
contested having failed to make the contractually agreed payments to the player.
The Chamber emphasized that, in fact, the club had specifically stated in its letter
dated 22 February 2012 that it would pay the outstanding amounts.
12.
On the other hand, the DRC took note that the club considered the termination
made by the player as unjustified, since the player established a very short
deadline, i.e. allegedly only one day. As a consequence, the club lodged a counterclaim, asking for compensation for the breach of the contract allegedly committed
by the player.
13.
At this juncture, the members of the Chamber wished to emphasize that,
according to its long-standing jurisprudence, confirmed by the Court of
Arbitration for Sport, the non-payment of remuneration by an employer does in
principle – and particularly if repeated as in the present case – constitutes a just
cause for termination of an employment contract, since the employer’s payment
obligation is his main obligation towards the employee. The Chamber wished to
underline in this respect that, once the employer repeatedly fails with this
obligation, the employee can no longer be expected to pursue the employment
relationship.
Player A, from country S / Club O, from country C
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14.
Considering all the above, the Chamber considered that, uncontestedly, more
than three salaries were already outstanding at the moment of termination,
which constitutes a just cause for the player to unilaterally terminate the contract on
24 February 2012.
15.
Additionally, the Chamber highlighted that the player did request the payment of
the outstanding amounts via letter, on 21 February 2012, warning the club, before
terminating the contract unilaterally.
16.
Having established that the player had just cause to terminate the 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
player is entitled to receive from the club an amount of money as compensation
for breach of contract in addition to any outstanding payments on the basis of
the relevant contracts.
17.
First of all, the Chamber reverted to the player’s financial claim, which includes
outstanding remuneration of EUR 27,700 pertaining for the months of October 2011
to January 2012. The members of the Chamber recalled that the club failed to
demonstrate that it had in fact paid such remuneration to the player.
18.
Moreover, the DRC took note that the club alleged having paid the amount of
EUR 488.75 to the player regarding accommodation, allegation which was denied
by the player.
19.
In this regard, the members of the Chamber recalled that according to the legal
principle of the burden of proof, any party claiming a right on the basis of an
alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural
Rules). In particular, the members of the Chamber also pointed out that,
according to the burden of proof rule, it was upon the club to prove that such
payment was made.
20.
In this regard, the DRC took note that, although informed about the contents of
art. 9 par. 1 lit. e) of the Procedural Rules which establishes that all documents of
relevance to the dispute shall be translated into one of the official FIFA
languages, the club submitted copies of payment receipts only in country G
language.
21.
As a consequence, the members of the DRC considered that the club had failed to
prove having paid the amount of EUR 488.75 to the player.
22.
On account of all the above, taking into account the documentation remitted by the
player to substantiate his claim and the fact that the employment contract was
Player A, from country S / Club O, from country C
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terminated on 24 February 2012, the Chamber decided that the player is entitled to
receive from the club outstanding remuneration in the amount of EUR 27,700 relating
to payments due to the player as from October 2011 up to and including January
2012 in accordance with the contract and the private agreement.
23.
In continuation, 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 reminded 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 player 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 and private agreement
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 neither in the employment contract nor in the
private agreement at the basis of the matter at stake.
25.
The Chamber also noted that the player had requested the payment of
compensation for breach of contract corresponding to the residual value of the
contracts, corresponding to the aggregate amount of salaries to which he would
be entitled under the employment contract and the private agreement from the
date of termination until its original expiry date.
26.
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
and the private agreement until 31 May 2013 and concluded that the player
would have received EUR 136,000 as salaries had the contracts been executed
until the expiry date.
27.
In continuation, the Chamber assessed whether the player 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
Player A, from country S / Club O, from country C
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of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
28.
In this respect, the Chamber noted that, according to the player, he did not sign
any employment contract until the present date.
29.
Consequently, on account of all of the above-mentioned considerations, the
remaining period of the contract and the specificities of the case at hand, the
Chamber decided that an amount of EUR 93,500 as compensation would be
adequate in the case at hand.
30.
In addition, the Chamber held that the player’s claim for the reimbursement of legal
costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules as well as the
Chamber’s respective longstanding jurisprudence.
31.
Moreover, the members of the DRC decided that any further claims lodged by the
player are rejected.
32.
The Chamber concluded its deliberations in the present matter by establishing
that any claims lodged by club are 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 O, has to pay to the Claimant/CounterRespondent
outstanding
remuneration
in
the
amount
of
EUR 27,700, within 30 days as from the date of notification of this decision.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/CounterRespondent compensation for breach of contract in the amount of EUR 93,500,
within 30 days as from the date of notification of this decision.
4.
In the event that the aforementioned amounts are not paid within the stated
time limit, interest at the rate of 5% p.a. will apply as of the expiry of the
stipulated time limit and the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for its consideration and a formal decision.
5.
Any further request filed by the Claimant/Counter-Respondent is rejected.
Player A, from country S / Club O, from country C
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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.
7.
The claim of the Respondent/Counter-Claimant is rejected.
*****
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 S / Club O, from country C
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