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
Mohamed Al-Saikhan (Saudi Arabia), member
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
on the matter between the player,
Player A, country B
as Claimant
and the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 3 October 2014, the player from country B, Player A (hereinafter: the
Claimant), concluded an employment contract (hereinafter: the contract) with
the club from country D, Club C (hereinafter: the Respondent), valid as from 1
October 2014 until 30 June 2017.
2. According to the “Appendix n°2” to the contract, the Claimant was entitled, inter
alia, to the amount of EUR 245,000, “for all years of the Contract”, to be paid in
“35 monthly parts of EUR 7,000”, as follows:
2014
1
October
€ 10 000,00
Until November 20,2014
2
November
€ 7 350,00
Until December 20,2014
3
December
€ 7 350,00
“Until January 20,2014”
2015
4
January
€ 7 350,00
Until February 20,2015
5
February
€ 7 350,00
Until March 20,2015
6
March
€ 7 350,00
Until April 20,2015
7
April
€ 7 350,00
Until May 20,2015
8
May
€ 7 350,00
Until June 20,2015
9
June
€ 7 350,00
Until July 20,2015
10
July
€ 7 350,00
Until August 20,2015
11
August
€ 7 350,00
Until September 20,2015
12
September
€ 7 350,00
Until October 20,2015
13
October
€ 7 350,00
Until November 20,2015
14
November
€ 7 350,00
Until December 20,2015
15
December
€ 7 350,00
Until January 20,2016
2016
16
January
€ 7 350,00
Until February 20,2016
17
February
€ 7 350,00
Until March 20,2016
18
March
€ 7 350,00
Until April 20,2016
19
April
€ 7 350,00
Until May 20,2016
20
May
€ 7 350,00
Until June 20,2016
21
June
€ 7 350,00
Until July 20,2016
22
July
€ 7 350,00
Until August 20,2016
23
August
€ 7 350,00
Until September 20,2016
24
September
€ 7 350,00
Until October 20,2016
25
October
€ 7 350,00
Until November 20,2016
26
November
€ 7 350,00
Until December 20,2016
27
December
€ 7 350,00
Until January 20,2017
2017
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2
Player A, country B / Club C, country D
28
29
30
31
32
33
January
February
March
April
May
June
€ 7 350,00
€ 7 350,00
€ 7 300,00
€ 7 300,00
€ 7 300,00
€ 7 300,00
Until February 20,2017
Until March 20,2017
Until April 20,2017
Until May 20,2017
Until June 20,2017
Until July 20,2017
3. On 9 November 2015, the Claimant lodged a claim before FIFA against the
Respondent, and requested the payment of a sum corresponding to a total
amount of EUR 193,350, plus 5% interest p.a. as from the due dates, detailed as
follows:
- EUR 25,350, corresponding to outstanding salaries as from April until June
2015, as well as for “half the salary for March 2015”
- EUR 176,400, corresponding to compensation for the Respondent’s breach of
contract, calculated as 24 monthly instalments in the amount of EUR 7,350.
4. In addition, the Claimant requested the imposition of sporting sanctions against
the Respondent.
5. According to the Claimant, on 11 May 2015, he notified the Respondent in
relation to outstanding monthly payments as from 1 March 2015, giving a
deadline of 5 days to solve the matter.
6. In addition, the Claimant explained that he sent a new notification to the
Respondent, on 21 May 2015, after not having received any reply from the
Respondent to his previous letter, giving a deadline of 10 days to solve the
matter.
7. Subsequently, the Claimant explained that the Respondent provided a reply on
15 June 2015, where it explained that the aforementioned payments were not
performed due to the Respondent’s sponsor failure to fulfil its obligations. In this
regard, the Respondent offered a new payment schedule for the outstanding
payments and a mutual termination to the Claimant.
8. Furthermore, and as a replica to the Respondent’s previous correspondence, the
Claimant explained that, on 23 June 2015, he sent a default notice to the
Respondent, where he granted a deadline of ten days to the Respondent in order
to settle all outstanding payments, and that failure to do so would entitle him to
“immediately breach the contract based on just cause” and to lodge a claim
before FIFA.
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Player A, country B / Club C, country D
9. Moreover, the Claimant explained that, on 9 July 2015, he sent a termination
letter to the Respondent, “with immediate effect for a just cause”.
10. In its reply to the claim, the Respondent agreed with the Claimant and exposed
that it is “unable to provide specific objections”. Nevertheless, the Respondent
explained that, “sending the complaint to FIFA cannot speed up the procedure
for payment of overdue salaries” due to his suffering of an “exceptionally severe
financial crisis”. In addition, the Respondent wished to explain that “in the new
budget-2016, the payment of old debts is included and provided, so [the
Respondent] (…) will be able to pay all overdue salaries, gradually”.
11. Finally, the Claimant informed FIFA on 15 January 2016 that he did not enter into
any other employment relationship since he left the Respondent.
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, it took note that the present matter was submitted to FIFA on 9
November 2015. Consequently, the 2015 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 2015 edition 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 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 a club from
country D.
3. The competence of the Chamber having been established, 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, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2015), and considering that the present matter was
submitted to FIFA on 9 November 2015, the 2015 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as
to the substance.
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Player A, country B / Club C, country D
4. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the
matter. However, the Chamber emphasised that in the following considerations it
will refer only to the facts, arguments and documentary evidence which it
considered for the assessment of the matter at hand.
5. In this respect, the Chamber acknowledged that the parties to the dispute had
signed a valid employment contract on 3 October 2014, valid as from 1 October
2014 until 30 June 2017.
6. Subsequently, the Chamber noted that the Claimant lodged a claim against the
Respondent maintaining that he had terminated the employment contract with
just cause on 9 July 2015, after previously having put the Respondent in default,
since the Respondent allegedly failed to pay the Claimant’s remuneration.
Consequently, the Claimant asks to be awarded his outstanding dues as well as
the payment of compensation for breach of the employment contract.
7. Moreover, the DRC noted that the Respondent accepted the contents of the
claim lodged by the Claimant, by stating, in particular, that it is “unable to
provide specific objections”. Consequently, the Chamber presumed that the
description of the events as explained by the Claimant was truthful. Therefore,
the Chamber concluded that it shall take a decision upon the basis of the
documentation already on file; in other words, upon the statements and
documents presented by the Claimant.
8. In continuation, the DRC acknowledged that, in accordance with the contract
provided by the Claimant, the Respondent was obliged to pay to the Claimant
the total amount of EUR 245,000 for the whole term of the contract.
9. In this respect, the members of the Chamber took into consideration that
according to documentation provided by the Claimant at the time he terminated
the contract, the Respondent failed to pay his remuneration in the total amount
of EUR 25,350, corresponding to the salaries of April 2015 until June 2015, for the
amount of EUR 7,350 each, as well as half the salary for March 2015,
corresponding to EUR 3,300.
10. Nevertheless, the members of the Chamber took note that, according to the
Respondent, said remuneration remained unpaid in view of its severe financial
crisis.
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Player A, country B / Club C, country D
11. In this regard, the members of the Chamber wished to emphasize that, in
accordance with the principle of pacta sunt servanda, the parties are expected to
fulfil their contractual obligations, including their obligations of a financial
nature.
12. In this context, the Chamber was of the firm opinion that, regardless of its
existence or not, the occurrence of the financial crisis allegedly suffered by the
Respondent and the possible consequences thereof could not be held against the
Claimant, who had no influence whatsoever on it and bore no responsibility in
this regard.
13. On account of the aforementioned and, in particular in view of the
considerations made above, the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant, until 9 July 2015, date
on which the Claimant terminated the contract, the total amount of EUR 25,350.
14. Consequently, and considering that the Respondent had repeatedly and for a
significant period of time been in breach of its contractual obligations towards
the Claimant, the Chamber decided that the Claimant had just cause to
unilaterally terminate the employment contract on 9 July 2015 and that, as a
result, the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
15. Having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the
Chamber focused its attention on the consequences of such termination. In this
regard, the members of the Chamber determined that the Respondent was not
only to pay the amount of EUR 25,350 as outstanding remuneration to the
Claimant, but also to pay compensation for breach of contract in conformity with
art. 17 par. 1 of the Regulations.
16. Having stated the above, the Chamber turned to the calculation of the amount
of compensation payable to the Claimant by the Respondent 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 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.
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Player A, country B / Club C, country D
17. In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract contained 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.
18. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
19. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the
terms of the employment contract until 30 June 2017. Consequently, the
Chamber concluded that the amount of EUR 176,200 (i.e. remuneration as from 9
July 2015 until 30 June 2017) serves as the basis for the determination of the
amount of compensation for breach of contract.
20. In continuation, the Chamber verified as to whether the Claimant 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 with the
Claimant’s general obligation to mitigate his damages.
21. In this regard, the Chamber noted that, according to the Claimant, he did not
enter into any professional football relationship with a new club following the
termination of the contract.
22. However, and regarding the matter at hand, the Chamber deemed it fit to point
out that after the termination of the contract, the Claimant would have sufficient
time until the original expiration date of the contract with the Respondent (i.e.
30 June 2017) in order to find a new club and thus to mitigate his loss to some
extent. Accordingly, and following its longstanding and well-established
jurisprudence, the members of the Chamber unanimously decided that the
Respondent must pay the amount of EUR 88,200 to the Claimant, which was
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Player A, country B / Club C, country D
considered as a reasonable and justified amount of compensation for breach of
contract in the present matter.
23. In conclusion, for all the above reasons, the Chamber decided to partially accept
the Claimant’s request and that the Respondent must pay to the Claimant the
amount of EUR 25,350 as outstanding remuneration and EUR 88,200 as
compensation for breach of contract.
24. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR
25,350 as from the dates on which each related instalment became outstanding
until the date of effective payment, as well as 5% interest p.a. for the payable
compensation as from the date of the claim.
25. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the Claimant.
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 as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 25,350, plus interest as follows:
-
5% interest p.a. over the amount of EUR 3,300 as of 21 April 2015 until the
date of effective payment;
5% interest p.a. over the amount of EUR 7,350 as of 21 May 2015 until the
date of effective payment;
5% interest p.a. over the amount of EUR 7,350 as of 21 June 2015 until the
date of effective payment;
5% interest p.a. over the amount of EUR 7,350 as of 21 July 2015 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 88,200, plus 5% interest p.a. as from 9 November 2015 until the date of
effective payment.
4. In the event that the aforementioned sums plus interest are not paid within the
stated time limit, the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee for consideration and a formal decision.
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Player A, country B / Club C, country D
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 under points 2. and 3. 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 (CAS)
Avenue de Beaumont 2
CH-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
Acting Secretary General
Enclosed: CAS directives
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Player A, country B / Club C, country D