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 N, from country B
as Claimant
against the club,
Club A, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 June 2012, Player N, from country B (hereinafter: the Claimant), and Club
A, from country C (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) starting “from the day of receiving a valid
International Transfer Certificate (ITC) from the proper Football Federation or
any other Association he may be registered to and his employment ends on 31
May 2015”.
2.
According to the contract, the Claimant was entitled to receive EUR 20,000 per
season, payable in 10 monthly instalments of EUR 2,000 each.
3.
On 2 June 2012, the parties signed a supplementary agreement according to
which the Claimant would receive:
- EUR 30,000 for the 2012/2013 season, payable in 10 equal monthly
instalments of “EUR 3,200” each;
- EUR 35,000 for the season 2013/2014, payable in 10 equal monthly
instalments of EUR 3,500 each;
- EUR 40,000 for the season 2014/2015, payable in 10 equal monthly
instalments of EUR 4,000 each;
- one return family ticket country C – country B per year;
- a car and accommodation.
4.
On 26 February 2013, the Claimant lodged a complaint in front of FIFA against
the Respondent, indicating that he had signed the contract in March 2012,
started training with the team in July 2012, but that on 8 August 2012 the
Respondent’s president informed his representative over the phone that it was
no longer counting on the Claimant’s services.
5.
On 15 August 2012, the Claimant was not allowed to join the first team and
was sent to the Respondent’s youth team. Equally, the Claimant was not
registered with the club for the 2012/2013 season, his car was taken away from
him on 29 September 2012 and the Respondent did not pay the salaries due in
August and September 2012. Finally, in mid-October, the landlord asked the
Claimant to leave his flat since the Respondent had failed to pay the rent. In
respect of the rent, the Claimant provided a “rental agreement” which
indicated that the rent for the accommodation amounted to EUR 500 per
month.
6.
On 20 and 24 October 2012, the Claimant sent a fax to the Respondent asking
the latter to fulfil its contractual obligations, however, no reply was received.
On 2 November 2012, after negotiations with the Respondent had failed, the
Player N, from country B / Club A, from country C
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Claimant sent another fax to the Respondent requesting it to pay the amount
of EUR 17,350 until 8 November 2012 at the latest. Since no payment was
received, the Claimant terminated the contract on 9 November 2012.
7.
On account of the above, the Claimant requested FIFA to confirm that he
terminated the contract with just cause and to order the Respondent to pay
him the total amount of EUR 184,850, calculated as follows:
Outstanding remuneration: EUR 19,350:
- EUR 15,000 corresponding to the salaries of August to October 2012;
- EUR 2,000 corresponding to the rent of July to October 2012;
- EUR 2,000 corresponding to “tickets costs/change for two adults”;
- EUR 350 corresponding to the rent of a car and taxi costs.
Compensation for breach of contract: EUR 165,500:
- EUR 15,500 corresponding to 31 rent payments of EUR 500;
- EUR 35,000 corresponding to the salaries from November 2012 to May 2013;
- EUR 55,000 corresponding to the salaries from August 2013 to May 2014;
- EUR 60,000 corresponding to the salaries from August 2014 to May 2015.
8.
Equally, the Claimant requested interest over the above-mentioned amounts.
9.
Although having been invited by FIFA to provide its position to the claim of
the Claimant by no later than 19 March 2013, the Respondent only replied to
the claim on 15 April 2013 after the investigation-phase had already been
concluded.
10.
On 31 January 2014, the Claimant informed FIFA that he had signed a new
contract with Club V, country B, valid as from 1 June 2013 until 30 November
2013, in accordance with which he would receive a monthly salary of currency
of country B 1,200.
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 26 February 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).
Player N, from country B / Club A, from country C
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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 B player and a country C club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players 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 on 26 February 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. 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.
5.
First of all, the members of the Chamber acknowledged that, on 1 June 2012,
the Claimant and the Respondent had concluded an employment contract
starting “from the day of receiving a valid International Transfer Certificate
(ITC) from the proper Football Federation he may be registered to and his
employment ends on 31 May 2015.” Equally, the Chamber noted that the
parties had signed a supplementary agreement on 2 June 2012.
6.
As to the financial terms of the contract and the agreement, the Chamber took
note that it had been agreed upon between the parties that the Respondent
would remunerate the Claimant with the total amount of EUR 50,000 for the
2012/2013 season, the amount of EUR 55,000 for the 2013/2014 season and the
amount of EUR 60,000 for the 2014/2015 season. Equally, the Claimant was
entitled to accommodation, a car and one return ticket country C – country B
for his family per year.
7.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA seeking payment from the Respondent of the amount of EUR 184,850
corresponding to his alleged outstanding remuneration in the amount of EUR
19,350 as well as the amount of EUR 165,500 as compensation for breach of
contract, asserting that the Respondent had not fulfilled its contractual
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obligations towards him. More specifically, the Claimant indicated that the
Respondent had i) not paid him his salaries for the months of August,
September and October 2012, ii) had not paid his rent for the period as from
July 2012 until October 2012, and iii) had informed him that his services were
no longer need.
8.
Equally, the members of the Chamber noted that, following three default
letters sent to the Respondent dated 20, 24 October 2012 and 2 November
2012 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 9 November 2012 by means of which he
informed the Respondent that he terminated the contract.
9.
Subsequently, the DRC observed that the Respondent, for its part, in spite of
having been invited to do so, failed to present its response to the claim of the
Claimant within the relevant time-limit. In fact, the reply of the Respondent
was only received after the investigation-phase of the matter had already been
concluded. As a result, the Chamber decided not to take into account the reply
of the Respondent and established that, in accordance with art. 9 par. 3 of the
Procedural Rules, it shall take a decision upon the basis of those documents on
file that were provided prior to the closure of the investigation-phase, in casu,
upon the statements and documents presented by the Claimant.
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 longstanding and well-established jurisprudence, the Claimant had a just cause to
unilaterally terminate the contractual relationship with the Respondent on 9
November 2012, having previously put the Respondent in default of payment
of the outstanding amounts.
11.
For the sake of completeness, and considering that the employment contract
indicated that it would start “from the day of receiving a valid International
Transfer Certificate (ITC) from the proper Football Federation or any other
Association he may be registered to”, the DRC considered it relevant to recall
its jurisprudence in accordance with which the validity of an employment
contract cannot be made conditional upon the execution of (administrative)
formalities, such as, but not limited to, the registration procedure in
connection with the international transfer of a player, which are of the sole
responsibility of a club and on which a player has no influence. In this regard,
Player N, from country B / Club A, from country C
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the DRC pointed out that it is the responsibility of the club to ensure that the
player is properly registered with it in order to be able to provide his services.
Since the club is supposedly interested in acquiring the rights of the player and
in benefiting from his services, it is also expected that it acts accordingly in
view of obtaining the player’s ITC and his subsequent registration.
12.
On account of all the above, the Chamber established that the Claimant had
terminated the employment contract with just cause on 9 November 2012 and
that, consequently, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
13.
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.
14.
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
19,000, consisting of the three monthly salaries of August, September and
October 2012, the rent as from July 2012 to October 2012 and two flight
tickets. Furthermore and considering the Claimant’s claim for interest, the
Respondent must pay 5% interest on the amount of EUR 19,000 as from 26
February 2013.
15.
Furthermore, and as to the Claimant’s request for the payment of EUR 350 for
the rent of a car and taxi costs, the Chamber referred to the principle of the
burden of proof as stipulated in art. 12 par. 3 of the Procedural Rules, and
stressed that the Claimant had not submitted any documentary evidence in
this respect. Therefore, the Chamber decided to reject this part of the
Claimant’s claim.
16.
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.
17.
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
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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.
18.
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.
19.
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 29 months in which another 25 monthly salaries were to be paid.
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 150,000 and that such amount shall serve as
the basis for the final determination of the amount of compensation for
breach of contract.
20.
In continuation, the Chamber remarked that the Claimant had found new
employment with Club V, from country B , as from 1 June 2013 until 30
November 2013. In accordance with the employment contract signed between
the Claimant and Club V, the Claimant was entitled to a monthly salary of
currency of country B 1,200, corresponding to approximately EUR 366.
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.
21.
What is more, the Chamber pointed out that for the period of time as from
December 2013 until May 2015, the Claimant had not yet concluded any
employment contract. The Chamber considered that this period of time shall
also be taken into consideration when calculating the amount of
compensation for breach of contract, since the Claimant could have had and
will have the opportunity to conclude a new employment contract during said
period of time in order to mitigate his damages.
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22.
In view of all of the above, the Chamber decided that the Respondent must
pay the amount of EUR 117,000 to the Claimant, which is considered by the
Chamber to be reasonable and justified amount as compensation for breach of
contract.
23.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of compensation as of the date on which the claim was lodged, i.e. 26
February 2013, until the date of effective payment.
24.
As a consequence, the DRC concluded that the Respondent is liable to pay the
total amount of EUR 136,000 to the Claimant, consisting of the amount of EUR
19,000 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 117,000 corresponding to compensation for breach of contract.
25.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player N, is partially accepted.
2.
The Respondent, Club A, 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 19,000, plus 5% interest p.a. on said amount as from 26
February 2013 until the date of effective payment.
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 117,000 plus 5% interest p.a. on said amount as from 26
February 2013 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned 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.
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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.
*****
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
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