Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
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 H, from country G
as Claimant
against the club,
Club F, from country R
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 15 June 2010, Player H, from country G (hereinafter: the Claimant) and
Club F, from country R (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract) valid as of 1 July 2010 until 30
May 2011.
2.
According to the contract, the Claimant was entitled to a total remuneration
of EUR 210,000 net, for the period of 1 July 2010 until 30 May 2011, payable as
follows:
- EUR 50,000 net due in July 2010;
- EUR 50,000 net due in September 2010;
- EUR 110,000 net, payable in 11 monthly instalments of EUR 10,000 net
each, due on the 15th day of each month.
3.
Clause IV.1 lit. c) of the contract established that the Claimant was also entitled
to two flight tickets per season, “on the route country R-country G-country R”.
4.
Clause VII.2 of the contract specified that “disputes arising from the
performance or interpretation of the provisions of this civil contract shall be
settled amicably or, otherwise, by the competent bodies of country R Football
Federation and LPF under the aegis of FIFA”.
5.
On 27 July 2010, the Claimant lodged a claim against the Respondent before
FIFA requesting the acknowledgement of the unilateral termination of
contract with just cause as well as the following amounts:
- EUR 210,000 net as compensation for the breach of contract by the
Respondent, corresponding to the whole value of the contract;
- EUR 30,000 as compensation for moral damages;
- interest of 5% p.a. “on deferred payment”.
6.
In this respect, the Claimant declared that after signing the contract, he moved
with the team on 28 June 2010 to Austria for pre-seasonal training and
matches. However, on 4 July 2010, the Claimant was allegedly told by the
Respondent to undertake “some extra medical exams”, which had to be done
in country P, where the Claimant had his residence. The Respondent then paid
the Claimant a one way flight ticket country D-country P for the 7th of July
2010 and, according to the Claimant, the Respondent informed that a return
ticket would be provided after the medical exams were concluded.
7.
The Claimant explained that after trying to contact the Respondent by
telephone without any response, on 13 July 2010 he sent a fax to the
Respondent stating that “he was ready to return to country R” and requested
Player H, from country G / Club F, from country R
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them to provide him with a return ticket. On 16 July 2010, the Claimant once
again requested the Respondent to provide him with a return ticket to country
R before the 19th of July 2010 or “he would be forced to proceed with the
unilateral termination of the contract, with just cause, with all due and legal
consequences”. Due to the alleged lack of response from the Respondent, the
Claimant terminated the contract on 20 July 2010.
8.
In this regard, the Claimant alleged that he had not received any of the
amounts as agreed upon in the contract and therefore, besides the
compensation for the breach of contract, he requested an additional
compensation for moral damages as he was put in a difficult financial situation
by the Respondent.
9.
The Respondent, in its response to the claim, firstly alleged FIFA’s lack of
competence to deal with the present matter on the basis of Clause VII.2 of the
contract. Moreover, it invoked that “the country R Football Federation has
independent arbitration tribunals, which guarantee fair proceedings and
respect the principle of equal representation of players and clubs”. In this
respect, the Respondent indicated that the Claimant had “failed to resort to
the bodies of the country R Football Federation or the country R Professional
League”.
10.
Upon several requests of FIFA to provide FIFA with the pertinent
documentation to prove that the matter should be dealt with by the relevant
deciding body in country R, the Respondent sent only a part of the country R
2010 edition of the Regulations for the Status and Transfer of Players, as well
as part of the 2010 edition of the Statutes of the country R Football
Federation. According to the articles provided, the composition of the National
Dispute Resolution Chamber (NDRC) under the RFF would consist of “one
president and one vice-president elected by consensus by the players’ and the
clubs’ representatives […], three players’ representatives proposed by the
Association of Amateur and Non-Amateur players; and three clubs’
representatives proposed by the Executive Committee of the country R
Football Federation”.
11.
Regarding the appeal procedure, the provisions sent by the Respondent state
that the rulings of the NDRC can be appealed before the Appeal Commission
existing under the RFF and, at the same time, the decisions of the latter can be
appealed before the Court of Arbitration for Sport in Lausanne.
12.
With regard to the substance, the Respondent firstly stated that the contract
could not be properly registered under the Professional Football League (PFL)
because of the Claimant’s fault, as he did not provide the Respondent with the
Player H, from country G / Club F, from country R
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documents required to a foreign citizen in order to register the contract, which
is required by art. 19 of the Regulations on the Status and Transfer of Players
of the country R Football Federation.
13.
In addition, the Respondent contested the facts presented by the Claimant. In
this regard, it alleged that the Claimant asked for a few days leave in order to
fly to country P “claiming he had urgent matters to solve”. Consequently, the
Respondent paid the Claimant a flight ticket “although it was not under the
obligation to do so”. The Respondent indicated that after 7 July 2010, it was
impossible to get in contact with the Claimant and that, because of his
absence, it was forced to sign another player.
14.
Furthermore, the Respondent acknowledged the receipt of the Claimant’s
faxes dated 13 and 16 July 2010, but was surprised of its contents as it
expected the Claimant’s return before the end of the training trip in country
A, which ended on 12 July 2010. In this respect, the Respondent stated that it
was not obliged to provide the Claimant with flight tickets other than for the
route “country R-country G-country R”, and therefore allegedly informed the
Claimant by telephone that he should pay for his own return ticket to country
R, which the Claimant confirmed to do. Finally, upon the receipt of the fax
dated 20 July 2010, the Respondent allegedly tried to clarify the unilateral
termination of the contract and contacted the Claimant without any success.
15.
The Claimant, in his comments to the Respondent’s position, declared that he
was not told to provide any additional documentation for the registration of
the contract and insisted that the Respondent instructed him to travel to
country P in order to take extra medical exams, the Respondent therefore
being obliged to pay the return ticket. In this respect, the Claimant submitted
two documents issued by a clinic in country P dated 12 July 2010.
16.
Furthermore, the Claimant declared that he would not “abandon a EUR
210,000 net contract for a EUR 30,000 contract on the country P second
division”.
17.
The Claimant further asserted FIFA’s competence to deal with the matter at
hand since the “bodies of PFL/country R Football Federation do not comply
with the standards and rules imposed by FIFA”.
18.
In its final position, the Respondent reassured that in order to request an
International Transfer Certificate (ITC) to enable the Claimant’s registration, at
least a registered contract from the Claimant’s former club is necessary and so
it is the Claimant’s obligation to provide such type of documentation.
Player H, from country G / Club F, from country R
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19.
Furthermore, the Respondent denied that it sent the Claimant to country P for
medical exams, since there are specialized doctors working for the Respondent
and “such medical controls could only be made in country R, at authorized
medical centres”.
20.
Finally, upon FIFA’s request, the Claimant confirmed that he signed a new
employment contract with the country P club, Club M, on 26 July 2010 and
valid until 30 June 2011. According to the employment contract, the Claimant
received remuneration in the total amount of EUR 16,625 for the whole term
of the contract (made up of ten instalments in the amount of EUR 1,662.5
each, payable as of August 2010 until and including May 2011).
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 27 July 2010. Consequently, the 2008 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) are applicable to the matter at
hand (cf. art. 21 of the 2008 and 2012 editions 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 (edition 2012) the Dispute Resolution Chamber shall
adjudicate on employment-related disputes between a club and a player that
have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation involving a country G player and
a country R club regarding an alleged breach of the employment contract
concluded between the aforementioned parties.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause VII.2 of the
employment contract and alleging that only the deciding bodies of the
country R Football Federation and/or the PFL were competent to deal with the
present case. In particular, the Chamber took note that the Respondent argued
that the country R Football Federation has independent arbitration tribunals
that respect the principles set out in art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, FIFA Circular no. 1010 of 20 December 2005 and
Player H, from country G / Club F, from country R
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the National Dispute Resolution Chamber (NDRC) Standard Regulations, in
particular, the Respondent held that such arbitration tribunals respect the
principle of equal representation of players and clubs and guarantee fair
proceedings.
5.
In this regard, the Chamber acknowledged that the Claimant contested the
competence of the deciding bodies of the country R Football Federation and
PFL and insisted on the fact that FIFA has jurisdiction to deal with the present
matter.
6.
Taking into account the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and
Transfer of Players it is competent to deal with a matter such as the one at
hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players
and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the Chamber referred to the FIFA Circular no. XXXX dated 20
December 2005. In this regard, the members of the Chamber further referred
to the principles contained in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations, which came into force on 1 January 2008.
7.
While analysing whether it was competent to decide on the present matter,
the Chamber first referred to the fact that the Respondent indicated that the
player had never been registered with the country R Football Federation. The
Chamber held that, as a consequence of the fact that the player had never
been registered with the country R Football Federation, the player had
evidently also never fallen under the jurisdiction of the country R Football
Federation. The foregoing fact was, in the Chamber’s view, the first basis on
which it could be established that the relevant arbitration bodies in country R
were not competent to adjudicate on the matter between the Claimant and
Respondent.
8.
What is more, the Chamber referred to clause VII.2 of the employment
contract, on the basis of which the Respondent contested FIFA’s jurisdiction.
According to said clause VII.2, “disputes arising from the performance or
interpretation of the provisions of this civil contract shall be settled amicably
or, otherwise, by the competent bodies of country R Football Federation and
LPF under the aegis of FIFA”. Hence, the members of the Chamber outlined
that the content of clause VII.2 is rather vague and that said clause does not
explicitly refer to a national dispute resolution chamber or any similar
arbitration body in the sense of art. 22 lit. b) of the aforementioned
Player H, from country G / Club F, from country R
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Regulations. In other words, the Chamber held that there is no clear reference
in the employment contract granting jurisdiction to any specific arbitration
body in country R.
9.
Having established the above, the members of the Chamber wished to stress
that, even if the contract at the basis of the present dispute would have
included such clear arbitration clause in favour of national dispute resolution,
the Respondent was unable to prove that, in fact, the relevant arbitration
bodies of the country R Football Federation and/or PFL meet the minimum
procedural standards for independent arbitration tribunals as laid down in art.
22 lit. b) of the Regulations on the Status and Transfer of Players, in the FIFA
Circular no. XXXX as well as in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations.
10.
In this respect, the DRC referred to art. 12 par. 3 which stipulates that any
party claiming a right on the basis of an alleged fact shall carry the burden of
proof. It is therefore the obligation of the Respondent, i.e. the party asserting
that the national arbitration bodies in country R guarantee fair proceedings
and respect the principle of equal representation of players and clubs, to
submit the documentary evidence to prove that such national arbitration
bodies indeed respect the aforementioned requirements.
11.
In this context, the Chamber noted that the Respondent had merely submitted
an excerpt of the relevant rules and regulations which, in the Respondent’s
view, were applicable to proceedings conducted in front of the country R
national arbitration bodies. The Chamber acknowledged however that, even
after having been requested several times to provide the complete set of rules
as well as the full translation of such rules, the Respondent had not provided
the complete documentation. The members of the Chamber emphasised that it
cannot base their decision on the basis of documentation that is incomplete.
Hence, the Chamber was firm in its conclusion that, in absence of the complete
version of the applicable rules, it could not establish that the relevant
arbitration bodies in country R respect the principle of equal representation
between players and clubs and guarantee fair proceedings. This even more so
in the present procedure, where the Respondent indicated that the settlement
of the disputes “rests exclusively with the qualified bodies of The PFL/The
country R Football Federation” and the excerpt provided by the Respondent
exclusively refers to the jurisdiction of the arbitration body of the country R
Football Federation and does not mention anything in relation to the
arbitration body of the PFL.
12.
In view of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has
Player H, from country G / Club F, from country R
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to be rejected, and that the Dispute Resolution Chamber is competent, on the
basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance.
13.
Subsequently, 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, the Chamber referred, on the one hand, to art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (editions 2009,
2010 and 2012) and, on the other hand, to the fact that the present claim was
lodged on 27 July 2010. The Dispute Resolution Chamber concluded that the
2009 edition of the Regulations for the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
14.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing
so, the members of the Chamber started by acknowledging that the parties to
the dispute had signed an employment contract on 15 June 2010 in accordance
with which the Respondent would pay the Claimant two instalments of EUR
50,000, on 1 July and on 1 September 2010 respectively, as well as a monthly
salary of EUR 10,000.
15.
In continuation, the Chamber noted that the Claimant lodged a claim against
the Respondent maintaining that the Respondent had breached the
employment contract by showing no interest in his services and by failing to
remit his salaries.
16.
Thereafter, the members of the Chamber took note of the reply of the
Respondent, who alleged that the absence of the Claimant in the team was
not attributable to it, but only to the Claimant as he requested a personal
leave and never returned to the Respondent.
17.
Moreover, the Chamber noted that the Respondent held that the employment
contract could not be properly registered within the PFL due to the Claimant’s
fault, the latter not providing the relevant documentation
18.
In this context, the Chamber considered relevant to recall its 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 procedure in connection with the
international transfer of a player, which is the sole responsibility of a club and
on which a player has no influence. As regards the matter at stake, the
Respondent asserted that in order to request an ITC to enable a player’s
Player H, from country G / Club F, from country R
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registration, it is the obligation of such player to provide the club with the
relevant documentation. 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
willfully choosing not to proceed with the application for an ITC request. The
Chamber emphasized that, in accordance with art. 2 par. 1 of Annexe 3 of the
Regulations, an application to register a professional shall be accompanied by
a copy of the contract between the new club and the professional. For these
reasons and since the Claimant and the Respondent had already signed a
contract, the members of the Chamber decided to reject the Respondent’s
arguments in this regard.
19.
Subsequently, the Chamber recalled that according to the Claimant, the
Respondent informed him that he had to undertake certain medical
examinations in country P and, accordingly, the Respondent provided him with
a one way flight ticket. The Respondent, on the other hand, held that the
Claimant asked for permission to fly to country P alleging urgent matters and,
in consequence, the Respondent accepted the request for a few days leave and
booked the corresponding flight ticket for the Claimant. Moreover, the
members of the Chamber took note that the Respondent acknowledged the
receipt of the correspondences sent by the Claimant requesting to be provided
with a return flight ticket in order to reincorporate to the Respondent, after
which the Respondent had informed the Claimant over the phone that he
should pay for his own ticket. Furthermore, after receiving the Claimant’s fax
of 20 July 2010, the Respondent claimed that they could not contact the
Claimant to clarify the situation.
20.
In this respect and bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof, the Chamber was eager to point out that
the Respondent had failed to present any documentation in support of its
position. In particular, the members of the Chamber observed that the
Respondent was not able to corroborate that it tried to contact the Claimant
in order to inform him that he should pay for the return flight ticket, as the
Respondent alleged it did. As a consequence, the Chamber concluded that the
Respondent had not presented any evidence proving the existence of any
communication expressing its interest in the Claimant’s return to the team.
21.
On account of all the above circumstances, in particular, by providing the
Claimant only with a one way flight ticket to country P, by not requesting the
relevant ITC although this being the responsibility of the Respondent, and by
not replying to the various fax communications of the Claimant although
Player H, from country G / Club F, from country R
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acknowledging having received such fax communications, the Chamber
established that the Respondent had no longer been interested in the
Claimant’s services. Such conduct constitutes, in the Chamber’s view, a clear
breach of contract. Accordingly, the Chamber concurred that the Claimant had
just cause to unilaterally terminate the employment contract on 20 July 2010
and that, consequently, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
22.
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 focussed its attention on the consequences of such termination.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant is entitled to receive from the Respondent an
amount of money as compensation for breach of contract.
23.
In continuation, 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 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.
24.
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.
25.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
until 30 May 2011 and concluded that the Claimant would have received a
total remuneration of EUR 210,000 had the contract been executed until its
expiry date.
26.
In continuation, the Chamber verified as to whether the Claimant had signed
an employment contract with another club during the relevant period of time,
Player H, from country G / Club F, from country R
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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 player’s
general obligation to mitigate his damages.
27.
Indeed, on 26 July 2010, the Claimant found employment with the country P
club, Club M. In accordance with the pertinent employment contract, which
has been made available by the Claimant, valid until 30 June 2011, the
Claimant was entitled to receive a monthly salary of EUR 1,662.50.
Consequently, the Chamber established that the value of the new employment
contract concluded between the Claimant and the new club for the period as
from August 2010 until and including May 2011 amounted to EUR 16,625.
28.
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 Chamber 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.
29.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the DRC decided that the Respondent
must pay the Claimant the amount of EUR 65,000 which was to be considered
a reasonable and justified amount of compensation for breach of contract in
the matter at hand.
30.
In addition and with regard to the Claimant's request for interest, the
Chamber decided that the Claimant is entitled to 5% interest p.a. on said
amount as of 15 March 2013 until the date of effective payment.
31.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for moral damages in the amount of EUR 30,000. In this regard,
the Chamber deemed it appropriate to point out that the request for said
compensation presented by the Claimant had no legal basis or evidence that
demonstrated the damage suffered or its quantity. In this context, the
members of the Chamber referred to the general legal principle of the burden
of proof, according to which a party deriving a right from an alleged fact has
the obligation to prove the relevant fact (cf. art. 12 par. 3 of the Procedural
Rules). Moreover, the members of the DRC recalled that it had already granted
the Claimant compensation for the breach of the contract and, for that reason
Player H, from country G / Club F, from country R
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he could not claim any further compensation. On account of the
aforementioned, the Chamber decided that the request for compensation
related to moral damages shall be rejected.
32.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
**********
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player H, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club F, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 65,000 plus 5%
interest p.a. on said amount as of 15 March 2013 until the date of effective
payment.
4.
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.
5.
Any further claim lodged by the Claimant is rejected.
Player H, from country G / Club F, from country R
12/13
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player H, from country G / Club F, from country R
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