Official Documents
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
Santiago Nebot (Spain), 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 5 July 2011, 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 from the date of its signature
until 31 May 2014.
2.
Clause IV. of the contract provided, inter alia, for the following net remuneration:
monthly salary of EUR 7,000 net for 10 months (August until May) per season
payable until the 10th day of the following month;
“in front”: EUR 30,000 net payable on 1 August 2012;
“in front”: EUR 30,000 net payable on 1 August 2013;
costs for a three room apartment.
3.
On 13 December 2011, the Claimant informed the Respondent in writing that he had
to wait several months before he received his first two salaries, that his salary is months
in delay and if the Respondent fails to pay the relevant amounts a claim will be lodged
in front of FIFA.
4.
On 17 October 2012, after having again put the Respondent in arrears in writing on 8
October 2012, the Claimant terminated the contract in writing with immediate effect.
The reasons therefore were the fact that his salary was outstanding since January 2012
and he neither received the amount of EUR 30,000 due on 1 August 2012 nor the costs
for housing, a car and flight tickets.
5.
On 2 November 2012, the Respondent replied to the Claimant in writing stating that
it received his letter on 22 October 2012 and admitted that the amount of EUR 74,633
was outstanding on 22 October 2012. In this respect, the Respondent proposed to pay
the outstanding amount as follows:
EUR 10,000 on the date the Claimant would confirm the payment schedule;
EUR 4,633 on 15 December 2012;
EUR 60,000, payable in instalments of EUR 5,000 on a monthly basis between 31
December 2012 and 30 November 2013.
6.
On 6 November 2012, the Claimant lodged a complaint before FIFA for breach of
contract by the Respondent requesting the total amount of EUR 211,500 plus 5%
interest as set out below:
EUR 39,500 corresponding to outstanding salaries due between 1 February and
1 October 2012 (6 monthly salaries minus EUR 2,500 received);
EUR 30,000 corresponding to the lump sum due on 1 August 2012;
EUR 142,000 as compensation corresponding to the residual value of the contract
composed of:
o EUR 112,000 corresponding to the salaries due between 1 November 2012 and
1 May 2014;
Player A, country B / Club C, country D
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o EUR 30,000 corresponding to the lump sum due on 1 August 2013;
costs of a three room apartment for the period from 5 July 2012 to 17 October
2012;
legal costs.
7.
In this respect, the Claimant held that he had “duly served [the Respondent] under
[the contract] from 5 July 2012 to 17 October 2012”, while the Respondent breached
the contract by failing to pay him the above-mentioned amounts. According to the
Claimant, the Respondent had already started to be in delay of payment as of
September 2011. Since February 2012 he had allegedly only received the amount of
EUR 2,500 on 10 July 2012 as so-called “pocket money”.
8.
In addition, the Respondent had allegedly never paid for a three room apartment and
the Claimant had to share a room at the training ground with two other players.
Despite having promised the Claimant various times to pay the outstanding amounts,
the Respondent apparently failed to pay his remuneration.
9.
In its reply, the Respondent confirmed having received the Claimant’s termination
letter via DHL only on 22 October 2012 and stated that the Claimant had not attended
training between 17 and 20 October 2012. In addition, the Respondent stated that its
correspondence dated 2 November 2012 remained unanswered by the Claimant.
10.
Finally, the Respondent assured that it wanted to pay the outstanding amount of EUR
74,633 as follows:
EUR 10,000 on the date the Claimant would confirm the payment schedule;
EUR 4,633 on 31 January 2013;
EUR 60,000 payable in instalments of EUR 5,000 on a monthly basis between 28
February 2013 and 31 January 2014.
11.
In his replica, the Claimant confirmed to have not attended training between 17 and
22 October 2012, since he terminated the contract on 17 October 2012 with immediate
effect. In this respect, the Claimant contested the Respondent’s allegation that it was
informed of such letter only on 22 October 2012, since he had already given prior
warning about his intention to terminate the contract in writing.
12.
Furthermore, the Claimant explained that he did not accept the Respondent’s proposal
for the payment of EUR 74,633, since it represented less than 35% of the amount he is
entitled to.
13.
Despite having been invited to do so, the Respondent did not provide its final position
as to the Claimant’s claim.
14.
The Claimant signed a contract and was registered with Club E, upon a decision of the
Single Judge of the Players’ Status Committee authorising the Claimant’s provisional
registration. The contract between the Claimant and the club from country B provides
Player A, country B / Club C, country D
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for a term of validity of 23 August 2013 to 31 December 2013 and a total remuneration
of 8,100 (EUR 9,396).
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 6 November
2012. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
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 conjunction 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
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 (editions 2012
and 2010), and considering that the present claim was lodged on 6 November 2012,
the 2010 edition of said 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, 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. In this respect, the Chamber recalled that the
parties had signed an employment contract valid as from 5 July 2011 until 31 May 2014,
in accordance with which the Claimant was entitled to receive, inter alia, a monthly
salary of EUR 7,000, due 10 times per year, as well as two lump sums of EUR 30,000 due
respectively on 1 August 2012 and 1 August 2013.
5.
In continuation, the members of the Chamber took into account that, on 2 November
2012, the Claimant notified the Respondent of the termination of the contract on the
basis of outstanding remuneration. The Respondent, for its part, acknowledged that
amounts due to the player were outstanding and merely stated that the player was
absent from training as from 17 October 2012 although it only received the player’s
termination letter on 22 October 2012.
Player A, country B / Club C, country D
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6.
The DRC highlighted that the central issue in the matter at stake would be, thus, to
determine as to whether the Claimant had just cause to terminate the contract at the
time he addressed the termination notice to the Respondent on 17 October 2012.
7.
In this respect, the Chamber wished to emphasise that, according to the Claimant, at
the time of the termination of the contract on 17 October 2012, the total amount of
EUR 69,500 was yet to be paid by the Respondent, including in particular the monthly
salaries as from February until September 2012. The DRC also took due note that the
Respondent even acknowledged that the amount EUR 74,633 was outstanding on the
date it received the notice of termination and offered to pay the stated amount
according to a specific schedule.
8.
On account of the above, and as a consequence of the parties’ submissions, the
Chamber established that it was undisputed between the parties that at the time of
the termination of the contract by the Claimant, six monthly salaries were outstanding
and a lump sum of EUR 30,000 was two months in delay. Consequently, the Chamber
concurred that the Respondent had seriously neglected its financial contractual
obligations towards the Claimant.
9.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause to
unilaterally terminate the contract on 17 October 2012 and that the Respondent is to
be held liable for the early termination of the contract with just cause by the Claimant.
10.
As a consequence, 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
the amounts which were outstanding under the contract at the moment of the
termination, i.e. EUR 69,500 corresponding to the monthly salaries as from February
until September 2012, as well as the lump-sum of EUR 30,000 due on 1 August 2012,
with deduction of EUR 2,500 which the player admits having received.
11.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amount of EUR 69,500 as of 6 November 2012 until the date of effective
payment.
12.
At this stage, the members of the Chamber turned their attention to the Claimant’s
request for the reimbursement for the costs of an apartment for the period from 5 July
2012 until 17 October 2012. In this regard, the DRC held that in the absence of any
monetary value in the contractual condition relating to an apartment, and of any
documentary evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules), the
Chamber had to reject the Claimant’s claim relating to said fringe benefit.
Player A, country B / Club C, country D
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13.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided that,
in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay
compensation to the Claimant.
14.
In this context, the DRC judge 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.
15.
In application of the relevant provision, the DRC judge held that he 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
DRC judge established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
16.
Subsequently, the DRC judge noted that the remaining value of the employment
contract as from the date of the termination until the original expiry of the
employment contract amounted to EUR 149,000, i.e. seventeen monthly salaries in
the amount of EUR 7,000 each plus EUR 30,000 corresponding to the lump sum due
on 1 August 2013. Consequently, the DRC judge concluded that the remaining
value of the contract as from its early termination by the Claimant until the regular
expiry of the contract amounted to EUR 149,000 and that such amount shall serve
as the basis for the final determination of the amount of compensation for breach
of contract.
17.
In continuation, the Chamber remarked that the Claimant had concluded a new
employment contract with the club from country B, Club E, which ran from 23
August 2013 until 31 December 2013 in accordance with which the Claimant would
receive a total salary equivalent to EUR 9,396.
18.
Consequently, and bearing in mind the provision of art. 17 par. 1 of the Regulations
and in accordance with the constant practice of the Dispute Resolution Chamber
as well as the general obligation of the player to mitigate his damages, such
remuneration under the new employment contract shall be taken into account for
the calculation of the amount of compensation for breach of contract.
19.
In view of all of the above, and taking into account the fact that it was not
possession of information relating to the player’s earnings as from 31 December
2013 although the contract was due to expire on 31 May 2014, the DRC decided
Player A, country B / Club C, country D
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that the Respondent must pay the amount of EUR 120,859 to the Claimant, which
is considered by the Chamber to be a reasonable and justified amount as
compensation for breach of contract.
20.
For all the above considerations, the DRC judge decided to partially accept the
Claimant’s claim and held that the Respondent is liable to pay the total amount of
EUR 190,359 to the Claimant, consisting of the amount of EUR 69,500
corresponding to the Claimant’s outstanding remuneration at the time of the
unilateral termination of the contract with just cause by the Claimant and the
amount of EUR 120,859 corresponding to the compensation for the unilateral
breach of contract.
21.
In continuation, the DRC held that the Claimant’s claim pertaining to legal costs has to
be rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence.
22.
Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claim of the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, Player A, within 30 days as from
the date of notification of this decision, outstanding remuneration in the amount of
EUR 69,500 plus 5% interest p.a. on said amount as from 6 November 2012 until
the date of effective payment.
3.
The Respondent, Club C, has to pay to the Claimant, Player A, within 30 days as from
the date of notification of this decision, compensation for breach of contract in the
amount of EUR 120,859 plus 5% interest p.a. on said amount as from 6 November
2012 until the date of effective payment.
4.
In the event that the amounts due to the Claimant, Player A, in accordance with
the above-mentioned numbers 2. and 3. are not paid by the Respondent, Club C,
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, Player A, is rejected.
6.
The Claimant, Player A, is directed to inform the Respondent, Club C, 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 A, country B / Club C, country D
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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:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player A, country B / Club C, country D
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