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
Takuya Yamazaki (Japan), member
Essa M. Saleh Al-Housani (U.A.E.), member
on the claim presented by the player,
Player D, from country B,
as Claimant
against the club,
Club N, from
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 8 January 2010, Player D, from country B (hereinafter: player or Claimant),
signed an employment contract with the country H club, Club N (hereinafter: club
or Respondent), valid as from 8 January 2010 until 30 June 2012.
2.
In accordance with the employment contract, the player was to receive from the
club a monthly salary of currency of country H 87,000.
3.
In addition, on 8 January 2010, the parties signed an “Agreement”, valid as from
8 January 2010 until 30 June 2012 (hereinafter: agreement), in accordance with
which the player was entitled to receive inter alia a monthly salary of EUR 2,600
until 31 December 2010 and, as of 1 January 2011, EUR 3,000. Furthermore, apart
from bonuses, the player was to receive a monthly lodging allowance of currency
of country H 50,000.
4.
On 11 October 2010, the player lodged a claim against the club in front of FIFA
maintaining that the club is to be held liable for breach of contract without just
cause. Therefore, the player asked to be awarded payment of outstanding
remuneration and compensation for breach of contract as follows:
a.
b.
c.
d.
EUR 5,980 relating to outstanding salaries (30% out of the April 2010
salary, salaries of May and June 2010);
EUR 72,200 as compensation for breach of contract;
Interest over the total amount as from the date on which each instalment
fell due;
In addition, he asked that sporting sanctions be imposed on the club.
5.
The player explained that, in May 2010, he left country H for vacation while 30%
of his April salary as well as his May salary had not yet been paid. He submitted
that, on 23 June 2010, he sent an e-mail to the club asking about the starting time
of the training on 28 June 2010, which the club duly replied to. In this respect, the
player presented a copy of his electronic flight ticket showing 27 June 2010 as
date of arrival in country H. He further held that when he arrived at the club’s
training premises on 28 June 2010, the club communicated that all foreign players
would be fired due to its financial difficulties.
6.
In addition, the player asserted that in the beginning of July 2010, he had a
meeting with the club director, during which the player indicated that he would
leave against his wish and asked for the remittance of his unpaid salaries and the
club’s authorization to sign on with another club. The club then allegedly
informed him that his release would be subject to the payment of EUR 12,500.
Player D, from country B / Club N, from country H
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7.
The player added that between 2 July 2010 and 11 July 2010, he informed the
club in writing of his wish to remain on the team and to receive the outstanding
payments. Furthermore, he highlighted that he asked a country H agent (Mr. K;
hereinafter: agent) as well as the country H Football Federation to clarify his
situation.
8.
These requests having remained without action from the club’s side and his salary
as of April 2010 having remained unpaid, the player considered that the
employment contract was terminated at the club’s fault on 14 July 2010 and he
returned to country B.
9.
In reply to the claim, the club, for its part, submitted that, at the end of the 200910 season, the player had indicated that due to family reasons he wished to be
transferred. According to the club, it was then verbally agreed that if the player
would find a club willing to pay EUR 10,000 plus V.A.T., the club would agree to
have him transferred or else he would remain with the club until the expiration of
the employment contract.
10.
According to the club, after these discussions the player returned home and it was
in constant contact with the agent, but no transfer offer was received.
11.
The club further alleged that the player did not appear at the training on 28 June
2010, following which “minutes” regarding such breach of contract were drafted
and approved by the club’s director. In addition, according to the club, after a
meeting with the player on 2 July 2010, he refused to further participate in
training sessions, as a result of which, following a disciplinary meeting on 5 July
2010, it suspended all payments to the player until he would report for work.
12.
Moreover, the club considered that the employment contract was still valid and
that it had no intention to terminate it, since the club had not received the
amount of EUR 10,000 plus V.A.T.
13.
The club asked that these facts be taken into consideration.
14.
In his replica, the player contested the club’s allegation that he was not present at
the training on 28 June 2010 and refers to the flight ticket he presented, his email exchange with the club in which the latter never mentioned that he did not
appear at the training and, in this respect, he presented a written statement from
a team mate confirming inter alia his presence at said training.
Player D, from country B / Club N, from country H
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15.
The player further denied that he wished to be transferred for family reasons, in
fact, he was satisfied with his contract with the club and wished to stay until its
expiry.
16.
In addition, the player contested that Mr K was his agent and highlighted that, in
fact, this agent was the club’s agent as proven by the documents presented by the
club. He pointed out that he only authorized Mr K to negotiate on his behalf with
the club until 28 February 2010.
17.
In its duplica, the club rejected the player’s allegations and insisted on its position.
18.
It, in particular, pointed out that the fact that the player stayed in country H does
not mean that he participated in the club’s trainings. It further highlighted that
the agent was never employed by the club and that he was, in fact, the player’s
agent and also present at the signature of the employment contract.
19.
The club stressed that its financial condition did not allow it to lose the amount of
EUR 10,000 that it paid for the registration of the player.
20.
On 8 June 2011, the Claimant signed an employment contract with the country M
Club I, valid during the 2011-12 season, in accordance with which the Claimant
was entitled to receive from Club I the total amount of EUR 11,000 until
December 2011. Furthermore, the Claimant appears to have rendered his services
to Club P, from country Q as from the end of January 2012 until at least June 2012
in exchange of which he received the amount of USD 45,000.
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 11 October 2010. 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 par. 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 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012) the Dispute Resolution Chamber is competent to deal with
Player D, from country B / Club N, from country H
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the matter at stake, which concerns an employment-related dispute with an
international dimension between a country B player and a country H club.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 19 February 2013 by means of which
the parties were informed of the composition of the Chamber, the member R and
the member T refrained from participating in the deliberations in the case at
hand, due to the fact that the member R has the same nationality as the Claimant
and that, in order to comply with the prerequisite of equal representation of club
and player representatives, also the member T refrained from participating and
thus the Dispute Resolution Chamber adjudicated the case in presence of three
members in accordance with art. 24 par. 2 of the Regulations.
4.
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 par. 2 of the Regulations on the Status and Transfer of Players
(editions 2012 and 2010), and considering that the present claim was lodged on
11 October 2010, the 2010 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
5.
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 the above-mentioned facts as well as the
arguments and the documentation submitted by the parties.
6.
The members of the Chamber acknowledged that the parties were contractually
bound by means of an employment contract as well as an additional agreement
(hereinafter: contracts) both valid as from 8 January 2010 until 30 June 2012.
7.
The Claimant, on the one hand, maintained that the Respondent was to be held
liable for the early termination of the contracts on 14 July 2010 by having failed
to remit his remuneration as of April 2010 and for not having reacted to his
various written requests dating back to the beginning of July 2010.
8.
The Chamber duly noted that the Respondent, on the other hand, rejected the
allegations put forward by the Claimant and held that the contracts had still been
in force, while emphasising that the player was absent from training on 28 June
2010 and that it had no intention to terminate the contracts since it had not
received the amount of EUR 10,000 plus V.A.T. corresponding to the amount it
allegedly had paid for the registration of the player.
9.
The members of the Chamber highlighted that the underlying issue in this
dispute, considering the diverging position of the parties, was to determine as to
Player D, from country B / Club N, from country H
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whether the contracts had been terminated by one of the parties with or without
just cause. The Chamber also underlined that, subsequently, if it were found that the
contracts were terminated without just cause, it would be necessary to determine the
consequences for the party that was responsible for the early termination of the
contractual relation.
10.
Having said that, the members of the Chamber took into account that it has remained
uncontested that the Claimant left country H in May 2010 for vacation and that, at
that time, 30% of the Claimant’s salary for April 2010 and his salary for May 2010 had
not yet been paid by the Respondent. The Claimant further asserted that, by the time
he definitely left country H, i.e. on 14 July 2010, in addition to the aforementioned
salaries, his salary for June 2010 had remained unpaid.
11.
In continuation, the Chamber noted that, in fact, the Respondent had not contested
that any of the aforementioned salaries remained outstanding. However, the
Respondent alleged that the payment of the Claimant’s remuneration was suspended
following a disciplinary meeting on 5 July 2010, on the basis of the alleged absence of
the Claimant on 28 June 2010 and his alleged refusal to further participate in
training. In this regard, the Respondent presented a copy of the club’s
aforementioned disciplinary decision.
12.
The Claimant, for his part, asserted that he duly returned to the Respondent in order
to resume training on 28 June 2010 and, in this connection, he presented a copy of his
electronic flight ticket and referred to the fact that the Respondent never sent him a
warning or reminder concerning his alleged absence.
13.
After careful study of the documents on file, which include inter alia exchanges of
correspondence between or with the player, the club and/or the agent, the
members of the Chamber noted that there were no documents on file
demonstrating that the Respondent had put the Claimant in default of his
contractual obligations prior to passing the disciplinary decision on 5 July 2010.
The Chamber highlighted that the “minutes” of a meeting on 28 June 2010
following the Claimant’s alleged absence on 28 June 2010 were apparently sent to
the agent and not to the player. In this regard, it was further noted from the
documentation on file that the agent appears to have been hired by the club as
from 22 March 2010 until 21 March 2012 with the exclusive right to “sell” the
Claimant and that the agent was authorised by the Respondent until 15 January
2010 to mediate in the hiring of the Claimant and by the Claimant until 28
February 2010 to negotiate his transfer to country H clubs. In conclusion, there is
no evidence on file demonstrating that the agent was authorised to act on behalf
of or represent the Claimant subsequent to 28 February 2010.
Player D, from country B / Club N, from country H
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14.
In addition, the Chamber noted from said disciplinary decision that the Claimant
had not been present at the relevant meeting. Furthermore, from the documents
at its disposal, the Chamber could not establish that the Claimant had been
notified of any disciplinary proceedings initiated against him by the Respondent,
or that he had been given the opportunity to be heard at the disciplinary
meeting.
15.
For these reasons, irrespective of the question as to whether the Respondent
could have validly suspended, on 5 July 2010, the payment of remuneration that
had already fallen due as of April 2010, the Chamber agreed that the
aforementioned disciplinary decision could not be taken into consideration and,
thus, could not constitute a valid reason not to remit the Claimant’s remuneration
that had fallen due as of April 2010.
16.
Furthermore, the members of the Chamber noted that according to the Claimant,
he was told by the Respondent on 28 June 2010 that all foreign players would be
dismissed due to financial difficulties. Subsequently, between 2 July and 11 July
2010, the Claimant, via his apparent legal representative, informed the
Respondent in writing of his wish to remain on the team and asked the latter to
pay the outstanding remuneration.
17.
The Respondent, on the other hand, who did not contest the existence of the
aforementioned correspondence nor the player’s allegations regarding the
dismissal of foreign players, submitted that it was the Claimant’s wish to be
transferred due to family reasons, which allegation, so the Chamber deemed, was
not corroborated by any credible documentary evidence (cf. art. 12 par. 3 of the
Procedural Rules).
18.
In this respect, on account of the above, the members of the Chamber concurred
that, whereas the Claimant did offer his services to the Respondent, the
Respondent was obviously not any longer interested in maintaining the
Claimant’s services.
19.
In addition, taking into account the aforementioned considerations, the Chamber
established that the Respondent had no valid reason to cease the payment of the
Claimant’s remuneration as of April 2010.
20.
On account of all of the above, the Chamber agreed that the contracts had been
terminated by the Claimant with just cause by leaving the club on 14 July 2010
and that the Respondent is to be held liable for the early termination of the
contracts with just cause by the Claimant.
Player D, from country B / Club N, from country H
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21.
Having established that the Respondent is to be held liable for the early
termination of the contracts with just cause by the Claimant, the Chamber
focussed 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 an amount of money from the Respondent as
compensation for the termination of the contract with just cause in addition to
any outstanding payments on the basis of the relevant employment contract.
22.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per the contracts in accordance with the general legal
principle of “pacta sunt servanda”. As stated above, the remuneration that was
outstanding at the time of the termination, i.e. 14 July 2010, amounts to EUR
5,980, i.e. 30% of the salary for April 2010 and the salaries for May and June 2010.
23.
Consequently, the Chamber decided that the Respondent is liable to pay to the
Claimant outstanding remuneration in the amount of EUR 5,980.
24.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the
outstanding monthly salaries as of the day following the day on which such
salaries had fallen due.
25.
In continuation, the Chamber focussed 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
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.
26.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the contracts contain a provision by which the parties had
beforehand agreed upon an amount of compensation payable in the event of
breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the contracts at the basis of the matter at
stake.
Player D, from country B / Club N, from country H
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27.
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. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
28.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
new contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of
art. 17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and the new contract in the calculation of the amount of
compensation.
29.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the contracts until 30 June
2012, taking into account that the player’s remuneration until June 2010 is
included in the calculation of the outstanding remuneration (cf. no. II./22. above).
Consequently, the Chamber concluded that the amount of EUR 72,200 (i.e. the
Claimant’s remuneration as from July 2010 until June 2012) serves as the basis for
the final determination of the amount of compensation for breach of contract.
30.
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.
31.
Indeed, on 8 June 2011, the Claimant signed an employment contract with the
Club I from country M, valid during the 2011-12 season, in accordance with which
the Claimant was entitled to receive from Club I the total amount of EUR 11,000
until December 2011. Furthermore, the Claimant appears to have rendered his
services to Club P, from country Q as from the end of January 2012 until at least
June 2012 in exchange of which he received the amount of USD 45,000 (approx.
EUR 34,000). On this basis, the Claimant was able to reduce his loss of income with
the total amount of EUR 45,000.
Player D, from country B / Club N, from country H
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32.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
the amount of EUR 27,200 to the Claimant as compensation for breach of contract.
33.
In addition, taking into account the Claimant’s petition and the Chamber’s
constant jurisprudence in this regard, the Chamber decided that the Respondent
must pay interest at the rate of 5% p.a. on said amount of compensation for
breach of contract as of the date of the present decision, i.e. 27 February 2013,
until the date of effective payment.
34.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player D, is partially accepted.
2.
The Respondent, Club N, 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 5,980,
plus interest at the rate of 5% p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of EUR 780 as of 1 May 2010;
b. 5% p.a. on the amount of EUR 2,600 as of 1 June 2010;
c. 5% p.a. on the amount of EUR 2,600 as of 1 July 2010.
3.
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 in the amount of
EUR 27,200, plus interest at the rate of 5% p.a. as of 27 February 2013 until the date of
effective payment.
4.
In the event that the amounts due to the Claimant 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.
5.
Any further request filed by the Claimant is rejected.
Player D, from country B / Club N, from country H
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6.
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. 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:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player D, from country B / Club N, from country H
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