Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 February 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
John Bramhall (England), member
Santiago Nebot (Spain), member
on the claim presented by the player,
Player G, from country N
as Claimant
against the club,
Club C, from country S
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 3 July 2012, Club V, from country S (hereinafter: the Respondent), and Player
G, from country N (hereinafter: the Claimant), concluded an employment contract
(hereinafter: the contract) valid as from 3 July 2012 until 3 July 2014.
2.
According to the contract, the Claimant was entitled to a yearly remuneration of
EUR 135,000 net, payable as follows:
-
EUR 20,000 payable between 15 and 25 July 2012 and EUR 9,583.33
payable each month;
“for the second year of the Contract”, EUR 20,000 payable until the end
of August 2013 and EUR 9,583.33 payable each month.
3.
On 18 October 2013, the Claimant lodged a claim in front of FIFA against the
Respondent, explaining that for the first 6 months of the contract he was entitled
to the amount of EUR 77,500, however, he had only received the amount of EUR
66,575.35, leaving a balance of EUR 10,924.65.
4.
Equally, the Claimant indicated that the Respondent had not paid the salary for
January, June and July 2013, reason for which he sent a default letter to the club
on 31 July 2013, 16 August 2013 and 28 August 2013. Nevertheless, the Claimant
indicated that no payment was received and argues that, since 3 months of
salaries were not paid, the contract should be considered terminated as from 28
August 2013.
5.
To its claim, the Claimant enclosed a letter of the Respondent dated 17 July 2013
by means of which the latter informed an agency that the Claimant “does not
start with sports training with [the Respondent]. He can look for another club to
continue career, and in the case that he found another club, [the Respondent] will
not require compensation for transfer. This document is valid until 18 July 2013.”
6.
On account of all the above, the Claimant requested to be awarded with the total
amount of EUR 165,090.98, specified as follows:
-
7.
EUR 10,924.65 as outstanding remuneration corresponding to the period
July 2012 – December 2012;
EUR 28,749.66 as outstanding remuneration corresponding to the months
of January 2013, June 2013 and July 2013;
EUR 125,416.67 as compensation for breach of contract.
Equally, the Claimant requested 5% interest as from the respective due dates as
well as to impose sporting sanctions on the Respondent.
Player G, from country N / Club V, from country S
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8.
Although having been invited to submit its reply in respect of the claim lodged by
the Claimant, the Respondent never replied to the claim of the Claimant.
9.
Upon request of FIFA, the Claimant confirmed that he had entered into an
employment contract with Club L, from country C, valid as from 7 January 2014
until 31 May 2014, in accordance with which he would be entitled to a monthly
remuneration of EUR 1,500.
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 18 October 2013. Consequently, the 2012 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand
(cf. art. 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 2012), 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 country N player and a country S club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2012), and considering that the claim was lodged in front of
FIFA on 18 October 2013, the 2012 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, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file.
5.
First of all, the members of the Chamber acknowledged that, on 3 July 2012, the
Claimant and the Respondent had concluded an employment contract valid as
from 3 July 2012 until 3 July 2014. As to the financial terms of said employment
Player G, from country N / Club V, from country S
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contract, the Chamber took note that it had been agreed upon between the
parties that the Respondent would remunerate the Claimant with a monthly
salary of EUR 9,583.33. Furthermore, the Chamber duly noted that the
Respondent would pay the Claimant twice the amount of EUR 20,000; the first
time between 16 and 25 July 2012 and the second time until the end of August
2013.
6.
The Chamber further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of EUR 39,674.31
corresponding to his outstanding remuneration as well as the amount of EUR
125,416.67 as compensation for breach of contract, asserting that the Respondent
had not fulfilled its contractual obligations towards him. More specifically, the
Claimant indicated that the Respondent had neither paid him his salaries for the
months of January, June and July 2013, nor the outstanding amounts for the
period as from July 2012 until December 2012 in the amount of EUR 10,924.65.
7.
Equally, the members of the Chamber noted that, following two default letters
dated 31 July 2013 and 16 August 2013 in which the Claimant requested the
Respondent to pay him his outstanding salaries and which remained unanswered,
the Claimant sent another letter to the Respondent on 28 August 2013 by means
of which he informed the Respondent that he terminated the contract.
8.
Furthermore, the Chamber observed that the Respondent failed to present its
response to the claim of the Claimant, despite having been invited to do so. In this
way, so the Chamber deemed, the Respondent renounced its right of defence
and, thus, accepted the allegations of the Claimant.
9.
As a consequence of the preceding consideration, the Chamber established that in
accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon
the basis of the documents on file.
10.
Having taken into consideration all the previous considerations, the Chamber
decided that it could be established that the Respondent had seriously neglected
its contractual obligations towards the Claimant in a continuous and constant
manner, i.e. the Respondent had failed to remunerate the Claimant for a
substantial period of time. Therefore, the Chamber considered that the
Respondent was found to be in breach of the employment contract and that the
breach was of such seriousness that, in line with the Chamber’s long-standing and
well-established jurisprudence, the Claimant had a just cause to unilaterally
terminate the contractual relationship with the Respondent on 28 August 2013,
having previously put the Respondent in default of payment of the outstanding
amounts.
Player G, from country N / Club V, from country S
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11.
On account of the above, the Chamber established that the Claimant had
terminated the employment contract with just cause on 28 August 2013 and that,
consequently, the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
12.
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.
13.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract in accordance with the general
legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that
the Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination i.e. the amount of EUR 39,674.31,
consisting of the three monthly salaries of January, June and July 2013, as well as
of the amount of EUR 10,924.65 corresponding to the remaining payments
between July and December 2012.
14.
In continuation, 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 in addition to any outstanding salaries on
the basis of the relevant employment contract.
15.
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 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.
16.
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. 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.
17.
Subsequently and prior to assessing the relevant criteria in determining the
amount of compensation due to the Claimant by the Respondent, the Chamber
first of all recalled that the Claimant is claiming the amount of EUR 125,416.67 as
compensation, corresponding to the remaining value of the employment contract,
Player G, from country N / Club V, from country S
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i.e. eleven monthly salaries amounting to EUR 9,583.33 each and the payment due
until the end of August 2013 in the amount of EUR 20,000.
18.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by the Respondent, the members of the Chamber took into account
the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In this
respect, the Chamber pointed out that at the time of the termination of the
employment contract, the contract would run for another eleven months.
Consequently, the Chamber concluded that the remaining value of the contract as
from its early termination by the Claimant until the regular expiry of the contract
amounts to EUR 125,416.63 and that such amount shall serve as the basis for the
final determination of the amount of compensation for breach of contract.
19.
In continuation, the Chamber remarked that the Claimant had found new
employment with a club from Club L, from country C, as from January 2014 until
May 2014. In accordance with the employment contract signed between the
Claimant and Club L, the Claimant was entitled to a monthly salary of EUR 1,500.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the Claimant to mitigate his damages,
such remuneration under the new employment contract shall be taken into
account in the calculation of the amount of compensation for breach of contract.
20.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of EUR 117,916.63 to the Claimant, which is considered by the
Chamber to be reasonable and justified amount as compensation for breach of
contract.
21.
As a consequence, the DRC decided that the Respondent is liable to pay the total
amount of EUR 157,590.94 to the Claimant, consisting of the amount of EUR
39,674.31 corresponding to the Claimant’s outstanding remuneration at the time
of the unilateral termination of the contract by the Claimant and the amount of
EUR 117,916.63 corresponding to compensation for breach of contract.
22.
In continuation and with regard to the Claimant's request for interest, the
Chamber decided that the Claimant is entitled to receive interest at the rate of
5% p.a. on the amount of EUR 39,674.31 as from the respective due dates and on
the amount of EUR 117,916.63 as from 18 October 2013.
23.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
Player G, from country N / Club V, from country S
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*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player G, is partially accepted.
2.
The Respondent, Club V, 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 39,674.31, plus 5% interest until the date of effective payment as follows:
a. 5% p.a. as of 1 January 2013 on the amount of EUR 10,924.65;
b. 5% p.a. as of 1 February 2013 on the amount of EUR 9,583.33;
c. 5% p.a. as of 1 July 2013 on the amount of EUR 9,583.33;
d. 5% p.a. as of 1 August 2013 on the amount of EUR 9,583.
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 117,916.63 plus 5% interest p.a. on said amount as from 18 October 2013
until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. 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 claim lodged by the Claimant is rejected.
6.
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.
*****
Player G, from country N / Club V, from country S
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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 G, from country N / Club V, from country S
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