Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 March 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player M, from country B
as Claimant
against the club,
Club H, from country I
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 31 October 2009, Player M, from country B (hereinafter: player or Claimant),
and Club H, from country I (hereinafter: club or Respondent), concluded an
employment contract (hereinafter: contract) valid as from the date of signature
“until the end of league championship and cup games of the season 2009/2010”.
The country I Football Federation confirmed that the 2009/2010 season ended on
19 May 2010.
2.
3.
In accordance with the contract, the player was entitled to receive, inter alia, the
total amount of USD 60,000:
USD 12,000 “after signature of the contract and receipt the I.T.C card from
country B FOOTBALL FEDERATION and registration in the Football Federation
of the country I for the period of 48 hours (…)”
USD 48,000 to be paid in 7 monthly equal instalments of USD 6,858.
4.
On 25 November 2009, the player lodged a claim before FIFA maintaining that the
club, by failing to fulfil both its administrative and financial obligations, had
breached the employment contract without just cause and, in consequence,
requested to be awarded the total amount of USD 66,858, plus 5% interest p.a. as
of 10 November 2009:
USD 12,000, corresponding to the signing-on fee;
USD 13,716, corresponding to his monthly salary of November and
December 2009;
USD 34,284, corresponding to the residual value of the contract as of
January 2010 until May 2010;
USD 6,858 as compensation.
5.
Upon his arrival in country I on 30 October 2009, the player claims to have been
provided with the pertinent visa, valid until 14 November 2009. However,
inexplicitly, on 10 November 2009 after the club´s failure to request the pertinent
International Transfer Certificate (ITC), the player was apparently informed that his
skills no longer fitted with the club´s demands, reason for which, with no apparent
written explanation, the club arranged for the player´s imminent return flight
home.
6.
On 12 November 2009, the player formally contacted the club via the country I
Football Federation, requesting a written explanation, as per solving the matter in
an amicable manner.
Player M, country B / Club H, from country I
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7.
On 17 November 2009, after having failed to receive a reply from the club and
bearing in mind that his pertinent visa had expired on 14 November 2009, the
player, once again, formally notified the club via the country I Football Federation,
seeking immediate explanation or in default, compensation for the club´s apparent
breach of contract without just cause.
8.
Notwithstanding the club´s lack of response, the player is nonetheless adamant
that a contract is valid upon signing; the failure of the club to request the ITC does
not exempt the club from its duties towards a player. Moreover, the club´s oral
excuse regarding his skills upon signing must never be considered a valid reason
for not fulfilling its contractual obligations.
9.
In its reply, the club claims that the player was first invited to country I for
“Technical and Medical Test” and only after participating in one of the club´s
training sessions, upon the recommendation of the club´s manager, an “internal
contract” was signed with the player “for motivating him to train better”.
10.
Moreover, the club informed FIFA that according to country I regulations, contracts
must be registered in the Football Association of each city as well as in the country
I Football Federation, which in the case at hand was not possible since the player
had allegedly left country I before the club could do so. Furthermore, according to
the club, during the player´s stay, the city suffered several earthquakes which
seemed to frighten the player, eventually forcing him to leave the country without
permission.
11.
The club finally points out that as a result of the “unavailability of the player” it
could neither register the above-mentioned contract in the country I Football
Federation nor request the ITC for the player.
12.
Finally, the player informed FIFA that on 4 January 2010, he concluded an
employment contract with the Club S, from country S, valid as from the date of
signature until 7 July 2010, in accordance with which he was entitled to receive the
total amount of currency of country B 5,600 to be paid in four monthly instalments
of currency of country B 1,400.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was submitted
to FIFA on 25 November 2009. Consequently, the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (edition
Player M, country B / Club H, from country I
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2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article
21 par. 2 and 3 of the 2008 and 2012 editions of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 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 (edition 2012) he 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 an country I club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2009, 2010 and 2012), and considering that the present claim was lodged
on 25 November 2009, the 2009 edition of said regulations (hereinafter:
Regulations) is applicable to the substance of the matter at hand.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, the DRC judge acknowledged that the Claimant and the Respondent
concluded an employment contract on 31 October 2009 valid as from the date of
signature “until the end of league championship and cup games of the season
2009/2010”, which according to the country I Football Federation was to end on 19
May 2010.
5.
According to said contract, the parties established, among other details, that the
Claimant would be entitled to receive, inter alia, a signing-on fee of USD 12,000
and a salary of USD 48,000, providing for a total remuneration of USD 60,000 for
the duration of the contract.
6.
The DRC judge noted that the Claimant, on the one hand, maintains that after the
Respondent´s failure to secure the pertinent ITC, on 10 November 2009, he was
arranged with a flight ticket home on the basis of the fact that his skills no longer
fitted with the clubs demands. Whilst, the Respondent on the other hand, not
contesting the player´s allegations of lack of skills, holds the Claimant responsible
for the non-registration and failed ITC request. The Respondent explained that,
according to the country I Regulations, contracts must be registered in the Football
Association of each city as well as in the country I Football Federation, which in the
case at hand, according to the Respondent, was not possible as the Claimant had
left the country before it could actually do so. As a result of the “unavailability of
the player”, the Respondent assures to have been unable to i) register the
Player M, country B / Club H, from country I
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employment contract in the country I Football Federation and ii) request the ITC
for the player.
7.
Consequently, and bearing in mind that the validity of the contract had, as such,
not been contested by the parties, the DRC judge firstly focussed his attention on
the question as to whether the non-acquisition of the ITC and the non-registration
of the player in the pertinent football association, could be deemed as a valid
reason not to execute the employment contract concluded by the parties on 31
October 2009.
8.
In this respect, the DRC judge first and foremost outlined that as soon as an
employment contract is signed between a club and a player, rights and
responsibilities ensue on both sides without being subject to any particular
condition. Having said this, the DRC judge considered relevant to recall past
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 of the employment contract with the
national football association, this being the sole responsibility of a club.
9.
As regards the case at stake, the club acknowledged that no ITC was requested.
Bearing in mind that according to Annexe 3 of the Regulations an ITC request
depends on the new club´s application to the new association to register a
professional, the club is actually in the position to prevent the occurrence of the
condition precedent of receipt of an ITC by wilfully choosing not to proceed with
the application of an ITC request. Moreover, the DRC judge emphasised that, as a
general rule, the homologation and/or registration of an employment contract at a
federation does not constitute a condition for its validity. In fact, the DRC judge
deemed that the validity of an employment contract cannot be linked to the
willingness of the association of the club concerned to register the player.
10.
Consequently and taking into account that the Respondent did not contest that it
had not performed any of its obligations under the employment contract, the DRC
judge decided that such conduct constituted a clear breach of contract and,
accordingly, decided that the Respondent was responsible for the premature
termination without just cause of the employment contract entered into between
the parties.
11.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the DRC judge focused
his attention on the consequences of such termination. Taking into consideration
art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is
entitled to receive from the Respondent an amount of money as compensation for
Player M, country B / Club H, from country I
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breach of contract. In this context, the DRC judge wished to outline that although
a valid contract was concluded between the parties, such contract was in fact never
executed.
12.
In continuation, the DRC judge focused his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the DRC judge 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.
13.
In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
14.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of
the monies payable to the player under the terms of the employment contract until
19 May 2010 and concluded that the Claimant would have received a total
remuneration of USD 60,000 had the contract been executed until its expiry date.
15.
In continuation, the DRC judge 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 Dispute Resolution Chamber, 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 player’s general obligation to mitigate his damages.
16.
Indeed, on 4 January 2010, the DRC judge noted that the Claimant found
employment with the Club S, from country B. In accordance with the pertinent
employment contract, which has been made available by the Claimant, valid as of
the date of signature until 7 July 2010, the Claimant was entitled to receive the
total amount of currency of country B 5,600 (approx. USD 3,824).
Player M, country B / Club H, from country I
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17.
In accordance with the constant practice of the Dispute Resolution Chamber and
the general obligation of the player 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. What is more, the DRC
judge also considered it important to point out that, although the employment
contract was fully valid and enforceable, the execution of the contract actually
never started, an element which equally should be taken into consideration in the
calculation of the amount of compensation.
18.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC judge decided that the Respondent must
pay to the Claimant the amount of USD 20,000 plus 5% interest p.a. on said
amount as of 6 March 2013, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
19.
The DRC judge concluded his deliberations in the present matter by establishing
that any further claim filed by the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player M, is partially accepted.
2.
The Respondent, Club H, has to pay to the Claimant the amount of USD 20,000 plus
5% interest p.a. on said amount as of 6 March 2013 until the date of effective
payment.
3.
If the aforementioned sum plus interest is 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.
4.
Any further claim lodged by the Claimant is rejected.
Player M, country B / Club H, from country I
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5.
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 DRC
judge 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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player M, country B / Club H, from country I
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