Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 15 March 2013,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Zola Majavu (South Africa), member
on the claim presented by the player,
Player A, from country C
as Claimant
against the club,
Club G, from country B
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 30 November 2009, Player A, from country B (hereinafter: player or Claimant),
and Club G, from country B (hereinafter: club or Respondent), signed an
employment contract (hereinafter: contract) valid as from 1 January 2010 until 31
December 2012.
2.
According to the contract, the player was entitled to receive, inter alia, the total
amount of USD 82,000, as follows:
-
Advance payment
Salary (36 monthly instalments of USD 2,000 each)
USD 10,000
USD 72,000
3.
The contract contained the following clause: ``in case of lack of understanding
between the parties, either of them may unilaterally terminate the contract
invoking just cause. The party in breach shall pay compensation to the other party
in the pertinent amount stipulated in the contract (…)’’ (free translation from
French).
4.
Furthermore, according to clause 9, the contract stipulated that ``in case of breach
of contract by the player the latter shall pay the club the sum of USD 800,000’’
(free translation from French).
5.
On 16 March 2011 the player lodged a complaint before FIFA against the club,
maintaining that the latter breached the contract without just cause during the
protected period. Therefore, the player requested that the club be banned from
registering new players for two registration periods and claimed the total amount
of USD 299,500, which was detailed as follows:
USD 49,500:
- Salaries as of 1 January 2011 until 31 December 2012
- Air ticket country B-country C
USD 48,000
USD 1,500
USD 250,000 as compensation for breach of contract during the protected
period.
6.
In this respect, the player stated that he was loaned to Club G, from country B, as
from 1 January 2010 until 31 December 2010. After his return to Club G, the
president of the club allegedly told him that he would no longer belong to the
team.
7.
Furthermore, the player maintained that he tried to reach an amicable settlement
with the club, however, his attempts were unsuccessful.
Player A, from country C / Club G, from country B
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8.
Consequently, on 1 March 2011, the player returned to country C acquiring the air
ticket at his own expense.
9.
Moreover, the player stated that he had not found any employment with another
club for the period from 1 January 2011 until 31 December 2012.
10.
In spite of having been invited to submit its position in this matter, no reply was
received from the club.
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 16 March 2011. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
par. 2 and par. 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 country C player and an country B club.
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 16
March 2011, the 2010 edition of said regulations (hereinafter: 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 1 January 2010 until 31
December 2012, in accordance with which the Claimant was entitled to receive,
inter alia, the total amount of USD 82,000, consisting of USD 10,000 as advance
payment plus thirty six monthly instalments of USD 2,000 each.
Player A, from country C / Club G, from country B
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5.
At this stage, the Chamber acknowledged the Claimant’s allegation that, as from 1
January 2010 until 31 December 2010, he was on loan with Club G, from country B,
and that, at his return to the Respondent, he was told by the president of the
Respondent club that his services were no longer required.
6.
In continuation, the members of the Chamber took into account that, on 13
December 2010 and on 11 January 2011, the Claimant pointed out to the
Respondent, in writing, that it had terminated the contract without just cause.
Moreover, the Chamber noted that in the aforementioned letters addressed by the
Claimant to the Respondent, which apparently remained unanswered, the
Claimant had sought an amicable settlement of the present dispute and put the
Respondent in default, respectively.
7.
Furthermore, the Chamber duly noted that the Respondent, for its part, failed to
present its response to the claim of the Claimant, in spite of having been invited to
do so. Consequently, the Chamber deemed that the Respondent had renounced its
right to defence and, thus, had accepted the allegations of the Claimant.
8.
As a consequence of the aforementioned consideration, the members of the
Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a
decision shall be taken upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
9.
Taking into account the preceding considerations, as well as the documentation on
file, the Chamber concluded that the Claimant’s allegation that the Respondent
had terminated the contract without just cause by refusing to admit him to the
team while a valid employment contract had still been in place between the
parties had not been contested by the Respondent.
10.
The members of the Chamber decided, therefore, that the Respondent terminated
the employment contract without just cause in the beginning of January 2011.
11.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract without just cause, the Chamber decided that, in
accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay
compensation for breach of contract to the Claimant.
Player A, from country C / Club G, from country B
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12.
Prior to proceeding to the calculation of the amount of compensation, the
Chamber put emphasis on the primacy of the principle of the maintenance of
contractual stability. Above all, the Chamber was eager to point out that the
measures provided for by the Regulations concerning in particular compensation
for breach of contract without just cause serve as a deterrent discouraging the
early termination of employment contracts by either contractual party and that a
lack of a firm response by the competent deciding authorities would represent an
inappropriate example towards all the football stakeholders.
13.
In this respect, awarding compensation in favour of the damaged party (either the
player or the club, as the case may be) has proven to be an efficient means and has
always found a widespread acceptance since it guarantees that the fundamental
principle of the respect of the contracts is duly taken care of.
14.
Above all, it was emphasised that the criteria contained in art. 17 of the
Regulations are applied with the principle of reciprocity for clubs and players,
signifying that both clubs and players who are seen to have committed a breach of
contract without just cause will in all cases be subject to pay compensation and,
under specific circumstances, also subject to the imposition of sporting sanctions.
15.
Having stated the above, the Chamber focused its attention on 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.
16.
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.
17.
In this context, the Chamber firstly focussed its attention on art. 9 of the contract,
which stipulates that “in case of breach of contract by the player, the latter shall
pay the club the sum of USD 800,000”.
Player A, from country C / Club G, from country B
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18.
In this regard, the Chamber took into account that such clause appears to be
unilateral and to the benefit of the Respondent only. In the light of such unilateral
character of the pertinent contractual clause the members of the Chamber
concluded that art. 9 of the employment contract cannot be taken into
consideration.
19.
Likewise, the Chamber concluded that clause 8 of the contract (cf. nr. I / 3 above)
does not clearly indicate the value and, therefore, cannot be taken into
consideration.
20.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent had to be assessed in application of the
parameters set out in art. 17 par. 1 of the Regulations. In this regard, the Dispute
Resolution Chamber emphasised beforehand that each request for compensation
for contractual breach has to be assessed by the Chamber on a case-by-case basis
taking into account all specific circumstances of the respective matter.
21.
In casu, the Dispute Resolution Chamber took note that, in accordance with the
contract signed by the Claimant and the Respondent, which was to run for two
more years, i.e. until 31 December 2012, after the breach of contract occurred in
the beginning of January 2011, the Claimant was to receive the total amount of
USD 48,000, made up of 24 monthly salaries in the amount of USD 2,000 each,
during the time remaining on the contract.
22.
As a consequence, and bearing in mind that the Claimant had not been able to
mitigate damages, the Dispute Resolution Chamber concluded by deciding that
the Respondent has to pay the total amount of USD 48,000 to the Claimant, as
compensation for breach of contract.
23.
Reverting to the Claimant’s petition, in light of the fact that according to the
employment contract, there was no contractual obligation for the Respondent to
bear the Claimant’s air ticket costs, the Chamber decided to reject the Claimant’s
claim pertaining to USD 1,500 for an air ticket country B-country C.
24.
In continuation, the Chamber focused its attention on the further consequences of
the breach of contract in question and, in this respect, addressed the question of
sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates inter alia that, in addition to the obligation to pay
compensation, sporting sanctions shall be imposed on any club found to be in
breach of contract during the protected period.
Player A, from country C / Club G, from country B
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25.
Subsequently, the members of the Chamber referred to item 7 of the “Definitions”
section of the Regulations, which stipulates, inter alia, that the protected period
shall last “for three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the
28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this respect, the Chamber
took note that the Respondent terminated the contract without just cause in the
beginning of January 2011. Therefore, the Chamber concluded that such breach of
contract by the Respondent had occurred within the protected period.
26.
Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the
Regulations, the Respondent shall be banned from registering any new players,
either nationally or internationally, for the two next entire and consecutive
registration periods following the notification of the present decision.
27.
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 G, has to pay to the Claimant compensation for breach of
contract in the amount of USD 48,000 within 30 days as from the date of
notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Respondent, Club G, shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
Player A, from country C / Club G, from country B
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6.
The Claimant is directed to inform the Respondent 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 C / Club G, from country B
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