Acórdão do FIFA, processo 02160255-E_2016-02-01

Data

01/02/2016

Fonte

inside.fifa.com

Labour Disputes

Texto da decisão

Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 February 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Johan van Galeen (South Africa), member
Mohamed Al-Saikhan (Saudi Arabia), member
Eirik Monsen (Norway), 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 between the parties

Facts of the case

On 1 September 2012, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent), signed an
employment contract valid as from 1 September 2012 until the end of the 2014/2015
season (hereinafter: the contract).

In accordance with the contract, the Claimant was entitled to receive USD 150,000 for the
2012/2013 season, as follows:
a. USD 75,000 payable on 1 September 2012;
b. USD 3,750 as monthly remuneration, payable as from 1 October 2012 until 1 July
2013; and,
c. USD 37,500 payable on 1 August 2013.

In accordance with the contract, the Claimant was entitled to receive USD 250,000 for the
2013/2014 season, and USD 300,000 for the 2014/2015 season.

On 6 August 2013, the Claimant gave notification to the Respondent of unilateral
termination of contract with just cause for non-payment of monies owed under the
terms of the contract stating he had not been remunerated for the 2012/2013 season.

On 2 January 2014, the Claimant lodged a claim in front of FIFA against the Respondent
asking that he be paid a total of USD 750,000, as follows:
- outstanding remuneration: USD 150,000 relating to the entire 2012/2013
season plus “interest from the actual payment dates”;
- compensation for breach: USD 550,000 corresponding to the residual value of
the contract, no interest requested;
- compensation: USD 50,000 relating to the Respondent’s bad faith and alleged
bonuses he was deprived of.

The Claimant claims he has not been paid since the start of his employment and that he
communicated with the Respondent in view of resolving the issue and deems that the
termination was with just cause.

After the closure of investigation the Respondent submitted its response claiming that
the Claimant was loaned for the 2012/2013 season to the Club E from country D, who
allegedly remunerated the Claimant and that it “didn’t benefit from the player because
the club didn’t participate in the league of country D 2012/2013”. The Respondent claims
that the Claimant never returned to the Respondent after the end of the 2012/2013
season.

The Respondent also claims that with regard to the terms of the transfer agreement
concluded with the Club F from country B, the Respondent never paid Club F, i.e. the

Player A, country B / Club C, country D

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Claimant’s former club, and it therefore acknowledges that the Claimant should be
returned to Club F.
9.

The Respondent stated that it informed the Football Association of country D on 25 and
29 July 2013 of the Claimant’s alleged absence from the “preparation period” and that
he left country D.

10.

In addition, the Respondent stated that the Claimant did not return to train after the
2012/2013 season despite having been invited to do so. Furthermore, the Respondent
claims that the “player [does not] have any financial rights from Club C”.

11.

In another unsolicited and incomplete submission, the Respondent states that the
Claimant was registered with it on 6 September 2012 and was temporarily transferred on
the same day to another club from country D “interior club” and “participated in the
games player Mlitan five hundred and sixty thousand pounds and received player of the
Interior after the club signed a contract high loaned to club linen”.

12.

The Respondent alleges it attached a document demonstrating that the Claimant was on
loan on 10 September 2012, which was allegedly submitted to the Football Federation of
country D. From the documents on file it can be noted that the Respondent provided a
one page document entitled “Loan Contract” seemingly dated 5 September 2012 in
which the Respondent is the first party, the second party is “interior club” and the third is
the Claimant. It must also be noted that this sheet of paper has no conditions, and is only
signed by the Respondent.

13.

In relation to the loan, the Respondent claims to have paid 2,612 and 5,020 to “the city G
branch of the Football Federation of country D”. It claims to have sent a letter on 19
August 2013 to the embassy of country D in country B in order to have the Claimant
return to the club for the 2013/2014 season preparation. The Respondent further claims
that it also sought to contact the Claimant whilst he was in country H via his agent, but
he did not return thereby causing prejudice to the Respondent.

14.

The Claimant claims to have not been registered with a new club since the unilateral
termination of his contract.

II.

Considerations of the Dispute Resolution Chamber

First, 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 2 January 2014. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2012; hereinafter: the Procedural Rules) are applicable to
the matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules).

Player A, country B / Club C, country D

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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 conjunction with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), 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 an club from country D.

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 2015), and
considering that the present claim was lodged on 2 January 2014, the 2012 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.

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 from 1 September 2012 until the end of the 2014/2015
season, in accordance with which the Claimant was entitled to receive, inter alia, a total
guaranteed amount of USD 150,000 for the 2012/2013 season, partly consisting of ten
monthly instalments of USD 3,750. In addition, the Chamber noted that the player was
entitled to USD 250,000 for the 2013/2014 season and USD 300,000 for the 2014/2015
season.

In continuation, the members of the Chamber took into account that on 6 August 2013
the Claimant notified the Respondent of the termination of the contract on the basis that
he had not been paid since the beginning of his employment and is therefore owed
outstanding remuneration and compensation for breach of contract.

Subsequently, the Dispute Resolution Chamber 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 closure of the investigation-phase of the matter at hand had already
been concluded. Consequently, the members of 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, the DRC shall take a decision on 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.

Therefore, and in light of all of the above, the Chamber decided that the Claimant had
just cause to terminate the employment relationship with the Respondent on 6 August
2013, who is to be held liable for the premature termination of the contract.

Player A, country B / Club C, country D

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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. USD 150,000 corresponding to monthly salaries and instalments due during the
2012/2013 season (cf. point I.2 above).

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 USD 150,000 until the date of effective payment, as follows:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.

5% p.a. as of 2 September 2012 on the amount of USD 75,000;
5% p.a. as of 2 October 2012 on the amount of USD 3,750;
5% p.a. as of 2 November 2012 on the amount of USD 3,750;
5% p.a. as of 2 December 2012 on the amount of USD 3,750;
5% p.a. as of 2 January 2013 on the amount of USD 3,750;
5% p.a. as of 2 February 2013 on the amount of USD 3,750;
5% p.a. as of 2 March 2013 on the amount of USD 3,750;
5% p.a. as of 2 April 2013 on the amount of USD 3,750;
5% p.a. as of 2 May 2013 on the amount of USD 3,750;
5% p.a. as of 2 June 2013 on the amount of USD 3,750;
5% p.a. as of 2 July 2013 on the amount of USD 3,750;
5% p.a. as of 2 August 2013 on the amount of USD 37,500.

10.

In continuation, having established that the Respondent is to be held liable for the
premature 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.

11.

Furthermore, in the context of the Claimant’s obligation to mitigate damages, the
Chamber highlighted that at least one full registration period had been open after 6
August 2013 allowing the Claimant to find other employment from that date and
thereby mitigate his damages. Consequently, the members of the Chamber agreed that
the amount of USD 550,000, which represents the income that the Claimant would have
earned with the Respondent from August 2013 until the end of the 2014/2015 season,
shall be taken into account in the calculation of the amount of compensation for breach
of contract payable by the Respondent to the Claimant in the present matter.

12.

In this respect, taking into account the petition of the Claimant, the Dispute Resolution
Chamber decided to award USD 250,000 (salary for the 2013/2014 season) to the
Claimant as compensation for breach of contract.

Player A, country B / Club C, country D

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13.

Consequently, the Chamber decided that the Respondent must pay the amount of USD
250,000 to the Claimant as compensation for breach of contract.

14.

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 A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant, within 30 days from the date of
notification of this decision, outstanding remuneration in the amount of USD 150,000 plus
5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.

3. In the event that the amounts due to the Claimant in accordance with the aforementioned
number 2. are not paid by the Respondent within the stated time limit, the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
4. 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 USD
250,000.
5. In the event that the amount due to the Claimant in accordance with the aforementioned
number 4. is not paid by the Respondent within the stated time limits, interest at a rate of
5% p.a. will fall due as of expiry of the aforementioned time limits and the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and
a formal decision.
6. Any further claim lodged by the Claimant is rejected.

Player A, country B / Club C, country D

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7. 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:

Marco Villiger
Deputy Secretary General
Encl.: CAS directives

Player A, country B / Club C, country D

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