Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
Player A, from country B
as Claimant/Counter-Respondent
against the club,
Club C, from country D
as Respondent/Counter-Claimant
and the club,
Club E, from country B
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 5 January 2012, the player from country B, Player A (hereinafter: the
Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter:
the Respondent/Counter-Claimant), signed an employment contract (hereinafter:
the contract), valid as of 8 January 2012 until 30 November 2014, i.e. 3 years,
containing three appendixes.
2.
According to art. 3. of appendix 2 of the contract, the Respondent/CounterClaimant undertook to provide the Claimant/Counter-Respondent, inter alia, with
the following:
a)
b)
c)
3.
“Gross income will be 90,000 per month playing in the First League in country
D. […] Net income shall be paid via bank on the 15th each month in arrears.”
“[…] The [Respondent/Counter-Claimant] pays for the immigration-costs for
[Claimant/Counter-Respondent]’s family, that means [two] flight tickets from
country B to country D, one child and one grown up.”
“Sign-on
fee.
The
[Respondent/Counter-Claimant]
will
pay
the
[Claimant/Counter-Respondent] a sign-on fee of 1,216,000.”
In addition, the parties agreed upon the following clauses:
“2.a) [of the contract] The [Claimant/Counter-Respondent] is obliged to participate
in training sessions, at training camps and to carry out individual training according
to the [Respondent/Counter-Claimant]’s regulations.”
“Appendix 1. Expiration/termination of contract. C. […] The [Claimant/CounterRespondent] may terminate the contract with one month notification if:
1.
2.
The [Respondent/Counter-Claimant] does not fulfil their salary obligations
according to this contract and the delay in payment for one term exceeds one
calendar month.
The [Respondent/Counter-Claimant] commits a material breach of its
obligations according to this contract and any such breach is continued after
the [Claimant/Counter-Respondent] has notified the [Respondent/CounterClaimant] in writing of the breach.”
4.
On 17 July 2013, the Claimant/Counter-Respondent unilaterally terminated the
contract based on clause C of appendix 1 of the contract (cf. point I.3. above), due
to the Respondent/Counter-Claimant’s alleged failure to pay his salaries of May
2013 and June 2013 –payable, as per the Claimant/Counter-Respondent, on 15 June
2013 and 15 July 2013– and in view of the alleged fact that he “was forced to work
separately [of his] teammates, [although he] was hired to work in the first team of
the club”.
5.
On 19 August 2013, the Claimant/Counter-Respondent lodged a claim in front of
FIFA for breach of contract against the Respondent/Counter-Claimant, requesting,
after amending his claim, sporting sanctions and the payment of the total amount
of 1,820,000 and EUR 4,883.21, plus interest of 5% p.a. as from the relevant due
date until the date of effective payment, broken down as follows:
Player A, from country B / Club C, from country D / Club E, from country B
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a)
b)
c)
1,620,000, corresponding to outstanding salaries from June 2013 until
November 2014, i.e. 18 months;
200,000, corresponding to a compensation for breach of contract;
EUR 4,883.21, corresponding to the reimbursement of migration costs of the
payer’s family.
6.
In
his
claim,
the
Claimant/Counter-Respondent
explains
that
the
Respondent/Counter-Claimant stopped paying his salaries in June 2013.
Consequently, the Claimant/Counter-Respondent notified the Respondent/CounterClaimant via email on 19 June 2013 of its failure to pay his salary of May 2013,
without receiving any reply. Subsequently, the Claimant/Counter-Respondent
terminated the contract on 17 July 2013 (cf. point I.4. above). The
Claimant/Counter-Respondent further argues that he tried to amicably settle the
matter with the Respondent/Counter-Claimant on 29 July 2013, with no result.
7.
In its response, the Respondent/Counter-Claimant claims that in April and May 2013
the Claimant/Counter-Respondent wanted to terminate the contract and informed
the media in country B of said intention.
8.
The Respondent/Counter-Claimant explains that prior to a match on 16 May 2013
the Claimant/Counter-Respondent reported ill, stopped training and stated to the
press and the media that he wanted to return to country B. The
Respondent/Counter-Claimant submitted different articles of newspapers, quoting
the Claimant/Counter-Respondent as follows:
-
“I’m not going to play anymore” (27 May 2013);
“I am not going to play for [the Respondent/Counter-Claimant] anymore no
matter what” (29 May 2013).
9.
The Respondent/Counter-Claimant further affirms that, in spite of the expiration of
his sick leave on 24 June 2013, the Claimant/Counter-Respondent only returned to
country D on 27 June 2013 from country B and did not train with the rest of the
team until 11 July 2013, while negotiating with the Respondent/Counter-Claimant
about a salary deduction for “his illegal absence”.
10.
Considering the above and, particularly, the Claimant/Counter-Respondent’s
declared
intention
of
terminating
the
contract
unilaterally,
the
Respondent/Counter-Claimant claims that it was entitled to withhold the
Claimant/Counter-Respondent’s salaries in June 2013 and July 2013.
11.
Finally, the Respondent/Counter-Claimant lodged a counterclaim against the
Claimant/Counter-Respondent for breach of art. 2.a) of the contract (cf. point I.3.
above) during May and June 2013, requesting sporting sanctions and the payment
of compensation in the total amount of 2,213,000, broken down as follows:
a)
b)
c)
608,000, corresponding to 50% of the Claimant/Counter-Respondent’s sign-on
fee;
1,530,000, corresponding to the residual value of the contract;
85,000, corresponding to legal and procedural fees.
Player A, from country B / Club C, from country D / Club E, from country B
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12.
In his reply to the counterclaim, the Claimant/Counter-Respondent rejects it in full,
stating that the Respondent/Counter-Claimant breached the contract, and asserts
that the Respondent/Counter-Claimant did not provide any evidence of its
allegations but only speculative articles of newspapers, which should not be taken
into consideration.
13.
In
this
sense,
the
Claimant/Counter-Respondent
explains
that
the
Respondent/Counter-Claimant breached clause C of appendix 1 of the contract (cf.
point I.3. above) in respect of his salary of May 2013, after warning the
Respondent/Counter-Claimant of its non-payment on 19 June 2013 (cf. point I.6.
above).
14.
Despite of having been invited by FIFA to do so, the Respondent/Counter-Claimant
did not provide its final comments on the present matter. Equally, the
Claimant/Counter-Respondent’s new club from country B, Club E (hereinafter: the
Intervening Party), did not provide any comments, in spite of having been invited
by FIFA to do so.
15.
Finally, the Claimant/Counter-Respondent informed FIFA that he signed the
following new contracts:
a)
b)
with the Intervening Party, a contract valid from 18 August 2013 until the end
of the season 2013/2014, for a monthly remuneration of 400,000.
with Club F, country B, a contract valid from 1 January 2014 until 31 May 2017,
for a monthly remuneration of USD 2,000.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA on
19 August 2013. Consequently, the 2012 edition of the Rules governing the
procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par.
1 and par. 2 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 (editions 2012 and 2014), 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, on one hand, and a
club from country D, on the other.
3.
Furthermore, the Chamber analysed which edition of the 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 2014), and considering that the claim of the
Claimant/Counter-Respondent was lodged on 19 August 2013, the 2012 edition of
said Regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
Player A, from country B / Club C, from country D / Club E, from country B
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4.
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 all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
The members of the Chamber acknowledged that it was undisputed by the parties
that the Claimant/Counter-Respondent and the Respondent/Counter-Claimant were
contractually bound by means of the contract signed between them, valid as from 8
January 2012 until 30 November 2014.
6.
In addition, the DRC noted that the parties did not dispute the fact that the
Claimant/Counter-Respondent terminated the contract on 17 July 2013 (cf. point I.4
above).
7.
Finally, the DRC also noted that the parties did not dispute the fact that the
Respondent/Counter-Claimant did not pay the Claimant/Counter-Respondent’s
salaries corresponding to May and June 2013.
8.
The Chamber further noted that the Claimant/Counter-Respondent, on the one
hand, lodged a claim against the Respondent/Counter-Claimant for breach of
contract, arguing that he terminated the contract with just cause on 17 July 2013
based on the delay of salary payments by the Respondent/Counter-Claimant for
more than a month.
9.
The Chamber also noted that the Respondent/Counter-Claimant, on the other hand,
lodged a counterclaim against the Claimant/Counter-Respondent for breach of
contract, arguing that the Claimant/Counter-Respondent did not train in May and
June 2013 and, particularly, would have had the intention of terminating the
contract unilaterally.
10.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant/Counter-Respondent and
the counterclaim of the Respondent/Counter-Claimant, was to determine whether
the contract had been unilaterally terminated with or without just cause by the
Claimant/Counter-Respondent on 17 July 2013.
11.
In view of the above, the DRC took into consideration the content of art. 14 of the
Regulations, which provides that “a contract may be terminated by either party
without consequences of any kind (either payment of compensation or imposition
of sporting sanctions) where there is just cause”.
12.
The Chamber stressed that the definition of just cause and whether just cause exists
shall be established in accordance with the merits of each particular case.
13.
In this context, the Chamber took due note that the agreement of the parties to the
contract was that “the [Claimant/Counter-Respondent could] terminate the contract
with one month notification if the [Respondent/Counter-Claimant did] not fulfil
Player A, from country B / Club C, from country D / Club E, from country B
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their salary obligations according to this contract and the delay in payment for one
term [exceeded] one calendar month” (cf. point I.3. above).
14.
The members of the DRC recalled that the parties to the contract did not dispute
the fact that the Respondent/Counter-Claimant failed to pay to the
Claimant/Counter-Respondent two salaries (cf. point II.7. above) and confirmed
upon the documentation that may be found on file that the Claimant/CounterRespondent notified the Respondent/Counter-Claimant on 19 June 2013 of its
failure to pay him his salary of May 2013, which fell due on 15 June 2013.
15.
Subsequently, the Chamber established that the period between the due date of
the salary of May 2013, i.e. 15 June 2013, and the termination notice sent by the
Claimant/Counter-Respondent to the Respondent/Counter-Claimant on 17 July 2013
–which is to be found on file– exceeds one calendar month and, therefore, the
Claimant/Counter-Respondent complied with clause C of appendix 1 of the contract
(cf. point I.3. above), which sets forth a just cause for the Claimant/CounterRespondent to terminate the contract.
16.
At this point, the DRC turned its attention to the allegations raised by the
Respondent/Counter-Claimant in its counterclaim and deemed it appropriate to
refer the parties to art. 12 par. 3 of the Procedural Rules, which stipulates that “any
party claiming a right on the basis of an alleged fact shall carry the burden of
proof”.
17.
In this sense, the DRC observed that the Respondent/Counter-Claimant did not
submit any proof to evidence the alleged leave and absence at training of the
Claimant/Counter-Respondent in May and June 2013.
18.
In respect of the alleged intention of the Claimant/Counter-Respondent of
terminating the contract unilaterally, the Chamber noted that the only
documentation provided by the Respondent/Counter-Claimant in support of said
allegation were articles of newspapers.
19.
In this regard, the DRC was eager to emphasize that the information contained in
newspapers, not supported by any additional documentation whatsoever, is of
mainly subjective perception and might be affected by diverse contextual factors;
therefore, the credibility of such type of documentation is quite limited.
20.
Hence, and still bearing in mind the wording of art. 12 par. 3 of the Procedural
Rules, the members of the Chamber concluded that the allegations of the
Respondent/Counter-Claimant cannot be upheld because they are not satisfactorily
proved.
21.
Likewise, the DRC was eager to emphasise that the Respondent/Counter-Claimant
also failed to demonstrate the validity of its alleged entitlement to withhold the
Claimant/Counter-Respondent’s salaries in June 2013 and July 2013 (cf. point I.10.
above), which turned to be an express acknowledgement of the non-payment of
the Claimant/Counter-Respondent’s salaries of May and June 2013.
22.
In summary, the Chamber established that on 17 July 2013 the Claimant/CounterRespondent terminated the contract with just cause based on the existence of two
outstanding salaries and subsequent to having put the Respondent/Counter-
Player A, from country B / Club C, from country D / Club E, from country B
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Claimant in default, in compliance with an express termination clause foreseen by
the parties in the contract as well as with the DRC’s well-established jurisprudence.
23.
In view of the foregoing, the DRC concluded that, in accordance with art. 17 par. 1
of the Regulations and its long-standing jurisprudence, the Respondent/CounterClaimant is liable for the termination of the contract on 17 July 2013 and,
consequently, must pay an amount of compensation to the Claimant/CounterRespondent.
24.
In continuation, prior to establishing the consequences of the breach of contract by
the Respondent/Counter-Claimant in accordance with art. 17 par. 1 of the
Regulations, the Chamber held that it had to address the issue of any unpaid
remuneration at the moment the contract was terminated by the Claimant/CounterRespondent.
25.
Indeed, the Claimant/Counter-Respondent alleges that there were outstanding
salaries at the time he terminated the contract. The Chamber drew its attention to
the fact that the Claimant/Counter-Respondent’s salaries fell due “on the 15th each
month in arrears”. Thus, considering that he terminated the contract on 17 July
2013, his salaries of May and June 2013 were due at that time. Furthermore, the
Chamber noted that the Respondent/Counter-Claimant expressly acknowledged
that said salaries were not paid (cf. point I.10. and II.21. above).
26.
Consequently, the Chamber took into account that, as of the contract's termination
date, the Respondent/Counter-Claimant had not paid to the Claimant/CounterRespondent the total amount of 180,000 in salaries.
27.
In accordance with the principle pacta sunt servanda, the Chamber decided that the
Claimant/Counter-Respondent is, therefore, entitled to outstanding remuneration
in the total amount of 180,000 pursuant to art. 3. of appendix 2 of the contract,
which corresponds to his monthly salaries of May and June 2013.
28.
In addition, taking into account the Claimant/Counter-Respondent'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/Counter-Respondent
interest at the rate of 5% p.a. on the outstanding amount of 180,000, as of 16 June
2013 on the amount of 90,000 and as of 16 July 2013 on the amount of 90,000, in
both cases until the date of effective payment.
29.
Equally, as regards to the Claimant/Counter-Respondent's claim pertaining to
migration costs, on the basis of the information provided by FIFA Travel and
referring to the relevant terms of the employment contract (cf. point I.2. above),
the Chamber decided that the Respondent/Counter-Claimant must pay to the
Claimant/Counter-Respondent the amount of USD 5,168 for two air tickets from
country B to country D.
30.
Also taking into account the Claimant/Counter-Respondent's request, the members
of the Chamber decided to award the Claimant/Counter-Respondent interest at the
rate of 5% p.a. on the amount of USD 5,168 as of 19 August 2013, which is the date
on which the claim was lodged, until the date of effective payment.
Player A, from country B / Club C, from country D / Club E, from country B
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31.
Having stated the above, 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 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/Counter-Respondent 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.
32.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains 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 in the employment contract at the basis of the matter at stake.
33.
As a consequence, the members of the Chamber determined that the amount of
compensation
payable
by
the
Respondent/Counter-Claimant
to
the
Claimant/Counter-Respondent 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.
34.
The members of the Chamber then turned their attention to the remuneration and
other benefits due to the Claimant/Counter-Respondent 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.
35.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant/Counter-Respondent under the terms of the
employment contract as from its date of termination with just cause by the
Claimant/Counter-Respondent, i.e. from 17 July 2013 until 30 November 2014, and
concluded that the Claimant/Counter-Respondent would have received in total
1,530,000 as remuneration, had the contract been executed until its expiry date.
Consequently, the Chamber concluded that the amount of 1,530,000 serves as the
basis for the final determination of the amount of compensation for breach of
contract in the case at hand.
36.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 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
Player A, from country B / Club C, from country D / Club E, from country B
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with the Claimant/Counter-Respondent’s general obligation to mitigate his
damages.
37.
The Chamber recalled that, on 18 August 2013, the Claimant/Counter-Respondent
signed an employment contract with the club from country B, Club E, valid until the
end of the season 2013/2014, in accordance with which he was to receive a monthly
salary of 400,000. Furthermore, on 13 January 2014, the Claimant/CounterRespondent signed an employment contract with the club from country B, Club F,
valid from 1 January 2014 until 31 May 2017, in accordance with which he is to
receive a monthly salary of USD 2,000. These employment contracts enabled the
Claimant/Counter-Respondent to earn an income of 154,150 between 17 July 2013
and 30 November 2014.
38.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant/Counter-Respondent’s
general obligation to mitigate his damage, the Chamber decided to partially accept
the Claimant/Counter-Respondent’s claim and that the Respondent/CounterClaimant must pay the amount of 1,375,850, as compensation for breach of contract
in the case at hand, in addition to the outstanding remuneration mentioned in
points II.27. and II. 28. above.
39.
Taking into account the Claimant/Counter-Respondent’s request and considering
that his claim was lodged on 19 August 2013, the Chamber concluded that the
Respondent/Counter-Claimant must pay interest of 5% p.a. on the amount of
1,375,850 as from 19 August 2013 until the date of effective payment.
40.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant/Counter-Respondent
is rejected and that the counterclaim of the Respondent/Counter-Claimant is also
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 C, is ordered to pay to the
Claimant/Counter-Respondent, within 30 days as from the date of notification of
this decision, outstanding remuneration in the amount of s 180,000, plus 5%
interest p.a. until the date of effective payment as follows:
a.
b.
5% p.a. as of 16 June 2013 on the amount of 90,000;
5% p.a. as of 16 July 2013 on the amount of 90,000.
3.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent the reimbursement of two flight tickets in the amount of USD 5,168,
plus 5% interest p.a. as from 19 August 2013 until the date of effective payment,
within 30 days as from the date of notification of this decision.
4.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent compensation for breach of contract in the amount of 1,375,850, plus
Player A, from country B / Club C, from country D / Club E, from country B
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5% interest p.a. as from 19 August 2013 until the date of effective payment, within
30 days as from the date of notification of this decision.
5.
In the event that the amounts due to the Claimant/Counter-Respondent in
accordance with the above-mentioned numbers 2., 3. and 4., plus interests, are not
paid by the Respondent/Counter-Claimant within the stated time limit, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
6.
Any further claims lodged by the Claimant/Counter-Respondent are rejected.
7.
The counterclaim of the Respondent/Counter-Claimant is rejected.
8.
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.
*****
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 B / Club C, from country D / Club E, from country B
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