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 a matter between the player
Player D, from country I
as Claimant / Counter-Respondent
and the club
Club C, from country U
as Respondent / Counter-Claimant
and the club
Club A, from country C
as intervening party
regarding an employment-related dispute arisen between the parties.
I.
Facts of the case
1.
On 24 July 2007, Player D, from country I (hereinafter: the player), and Club C,
from country U, concluded an employment contract (hereinafter: the contract)
valid from 25 July 2007 until 25 December 2010. According to clauses 6.2 and 6.3 of
the contract, the latter could not be unilaterally terminated by the player, but Club
C was allowed to unilaterally terminate the contract before 31 December 2007.
2.
In accordance with clauses 6.4 and 6.5 of the contract, the club could terminate the
contract “under the initiative of the management of club” inter alia in case of
“truancy without a valid excuse”.
3.
Clause 7.1 of the contract stipulates the jurisdiction of the “appropriate bodies of
Professional football league of country U, Federation of football of country U,
UEFA and FIFA”. Furthermore, it states that “all disputes and disagreements which
may arise during performance of obligations under the present contract,
coordinate the parties by negotiations”.
4.
The appendix of the contract provided for a monthly remuneration of USD 15,000,
increased by USD 1,000 per year. Furthermore, the player was entitled to receive a
payment of USD 50,000 (hereinafter: the sign-on fee) after 31 December 2007, in
case the contract was not terminated. Finally, Club C was obliged to pay the air
tickets (at most twice a year) of the player and his family to the country of their
constant residence.
5.
In accordance with clause 3.3 of the contract, Club C shall “provide the [player]
and his family with all kinds of social insurance and obligatory personal insurance
of his health and life on the basis of the established rules (conditions) of
insurance”.
6.
On 11 February 2009, the player lodged a complaint before FIFA claiming that Club
C had breached the contract.
7.
The player requested sanctions to be imposed on Club C and the payment of a
total amount of USD 481,256 as set out below plus 5% interest as from the date of
noncompliance with the contract:
USD 94,590 as outstanding payments composing of:
USD 50,000 corresponding to the sign-on fee;
USD 37,333 corresponding to two and a half monthly salaries;
USD 7,257 corresponding to the air tickets to country B;
USD 386,666 as compensation composing of:
USD 74,666 corresponding to the residual value of the contract for the
first semester of 2009;
USD 204,000 corresponding to the season 2009/2010 (12x USD 17,000);
Player D, from country I / Club C, from country U / Club A, from country C
2
USD 108,000 corresponding to the second semester of 2010 (6x
USD 18,000).
8.
In this regard, the player explained that Club C did not pay the sign-on fee and as
from September 2008, it paid the salaries late and in currency of country U instead
of USD. Thus, the salary of November was paid on 31 January 2009 and in currency
of country U, which constitutes a damage of USD 5,000 for the player. Finally, Club
C allegedly stopped paying any salary.
9.
Therefore, after two months of waiting for his salaries, the player decided to
terminate the contract on 6 February 2009. The player had allegedly also paid the
air tickets although it would have been the club’s obligation.
10. In its statement of defence dated 2 March 2009, Club C stated that the player had
left the club on 7 February 2009 without permission and he should therefore be
considered responsible for the termination of the contract. According to Club C, it
has complied with its contractual obligations. Despite its efforts to contact the
player, the latter had started to negotiate with other clubs.
11. Moreover, Club C referred to clauses 6.4 and 6.5 of the contract, according to
which the club can terminate the contract “under the initiative of the
management of club” in case of “truancy without a valid excuse”. Therefore, Club
C concluded that the contract could have been revoked as from 7 February 2009.
However, Club C underlined that before the player’s absence, it had no intentions
to cancel the contract.
12. As a consequence, Club C lodged a counterclaim against the player and, after
amending it, requested disciplinary sanctions as well as compensation due to the
player’s termination of the contract without just cause, based on the following
calculation plus 5% interest p.a. from the date on which the breach occurred:
costs and expenses needed to engage the player for the period from 25 July
2007 until 25 December 2010:
- USD 550,000 for agent services;
- USD 50,000 as sign-on fee.
Amortised over the term of the contract, the amount of USD 330,000
remains.
the sporting damage suffered by the club as a result of losing one of its
leaders and starting defenders:
Said damage should correspond to no less than six months of the average
salary of the contract.
Furthermore, the new club, Club A, should be held jointly and severally liable for
any damage suffered by Club C, in accordance with art. 17 of the FIFA Regulations.
The player should also cover all costs of the proceedings.
13. In this regard, Club C submitted a copy of the contract dated 24 June 2007, which
it had concluded with the agent R (hereinafter: the agreement), according to
Player D, from country I / Club C, from country U / Club A, from country C
3
which the latter should assist Club C in transferring the player. In case of a
successful transfer, Club C shall pay the amount of USD 50,000 to the agent.
Moreover, if Club C neither repudiates the services of the player nor cancels the
employment contract up to 1 December 2007, the agent shall be entitled to
receive a further payment of USD 500,000. Finally, Club C submitted a copy of two
documents named “reports” dated respectively 22 August 2007 and 8 January
2008 signed by Club C and the agent, in which the latter confirmed having
received the amount of USD 50,000 and USD 500,000, respectively, as stipulated in
the agreement.
14. According to Club C, the player allegedly never tried to settle the present dispute
by negotiating with the club, in compliance with clause 7.1 of the contract, but
had lodged a claim before the Football Federation of country U.
15. In his replica, the player contested the allegations of Club C maintaining his
previous statements. In addition, the player explained that the contract did not
refer to any agent. Consequently, payments which were done to said agent would
not have their origin in the contract and, therefore, cannot affect the relation
between the player and the club.
16. Furthermore, the player stated that Club C did not provide any evidence for having
fully paid the player’s salary in time.
17. Finally, the player contested having lodged a claim before any other deciding body
than the Dispute Resolution Chamber (DRC).
18. Despite having been invited to do so, the club did not provide FIFA with a copy of
the claim the player had allegedly lodged before the Football Federation of
country U.
19. On 19 April 2011, Club C submitted a position alleging having paid more than the
player was entitled to receive, this is, the total amount of USD 416,431.80 instead
of only USD 405,625. Additionally, Club C explained that the money would be on
the “card account” of the player, i.e. the player has the possibility to withdraw it
anytime.
20. With regard to the delayed payment in November 2008, Club C explained that the
club had financial problems (financial crisis) at the time. Since the currency of
country U lost in value, the player’s salary was factually raising and “became a
heavy finance burden”. Therefore, and in order to be able to keep all players, the
club’s manager allegedly proposed to the players to pay their salaries in currency
of country U instead of USD with a constant currency rate of 6. According to Club
C, all players agreed. Consequently, the club stated that it had no salary debts.
However, Club C explained having always paid all salaries in currency of country U
“due to the official exchange rate fixed by the National Bank of country U on the
day of payment”, except of the payment made on 20 October 2008.
Player D, from country I / Club C, from country U / Club A, from country C
4
21. With regard to the player’s statement that he did not receive the amount of
USD 50,000 as agreed upon in annex 1 of the contract, the club mentioned that it
paid even USD 50,495 on 25 January 2008.
22. Moreover, Club C pointed out that the player had left the club in the middle of the
season, when the club had already booked his flight and hotel for the second
training camp. According to Club C, the player was a leading footballer of the
team and unfortunately, it was not possible to replace him for the current season.
23. Furthermore, Club C held that even if the DRC would state that the country U club
was in breach of contract, the player did still not have just cause to unilaterally
terminate the contract, since, in accordance with the jurisprudence of the DRC and
the Court of Arbitration for Sport (CAS), the player neither gave the club sufficient
notice (warning letter) nor was the delay in payment sufficient. Therefore, he
should not be entitled to receive any compensation.
24. In the same line, Club C held that the salary of January 2009 was due on 1 February
2009, i.e. one week prior to the termination by the player and consequently,
“should not be considered sufficiently over due in order to constitute a just cause
to terminate the contract”. With regard to the player’s letter dated 27 February
2009, according to which the latter allegedly offered to return to the club in case it
paid him the amount of USD 55,714, Club C concluded that the player “expressed a
willingness to accept late payment”. This goes also for the amount of USD 50,000,
which was due on 31 December 2007, but not requested by the player until 7
February 2009.
25. In his last position, the player rejected the club’s counterclaim and maintained his
previous statements adding having contacted the club various time in writing and
orally in order to inform it about the noncompliance with the contract before
terminating the latter. With regard to the payment of his salaries in currency of
country U, the player stated that the issue was not about the currency, but that he
finally received less money than what he was entitled to. The player had allegedly
told the club orally that he would not agree with the amount received.
26.
Furthermore, the player underlined that the club had terminated the contract
not only by paying too late and only a partial amount of the salaries due, but
also by failing to provide the player and his family with social security and by not
paying neither the amount of USD 50,000 nor the air tickets.
27.
With regard to his contractual situation, the player informed FIFA that he did not
sign any employment contract between 7 February and 14 December 2009, since
possible interested clubs were afraid of getting into trouble with the Ukrainian
club or FIFA. However, on 14 December 2009, he signed a contract with the Club
A, from country C, valid from 1 January 2010 until 31 May 2010 for the total
remuneration of EUR 10,000. Later on, on 17 July 2010, the player signed an
Player D, from country I / Club C, from country U / Club A, from country C
5
employment contract with the Club T, from country B, valid from the date of
signature until 30 June 2011. The player was entitled to a monthly salary of
USD 7,500.
28.
In its position, Club A explained that the player had offered himself as an
unemployed footballer and that it did not at all induce him to breach his
previous contract. At this time, Club A was allegedly playing in the second
division and had serious financial problems; “Any attention of inducing any
player to leave his contract at the time was unreasonable.” Furthermore, Club A
stated that Club C should prove Club A’s involvement. In summary, Club A held
that even if the player had breached his previous contract, it should be dealt with
between Club C and the player only, since Club A had acted professionally, fair
and lawfully.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 11
February 2009. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber, edition 2008
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 par.
2 and 3 of the 2008 and 2012 edition of the Procedural Rules).
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1
of the Procedural Rules states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2012). In accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the aforementioned Regulations, the Dispute
Resolution Chamber would, in principle, be competent to deal with the matter at
stake, which concerns an employment-related dispute with an international
dimension between an Italian player and an Ukrainian club, with the involvement
of a Cypriot club.
3.
However, the Chamber acknowledged that Club C asserted that the player
already lodged a claim in country U before the Football Federation of country U.
4.
In this regard, the Chamber noted that the player rejected such allegations and
insisted on the jurisdiction of FIFA’s decision-making bodies to deal with the
present matter.
5.
Taking into account the above, the Chamber found it of outmost importance to
recall that, according to art. 12 par. 3 of the Procedural Rules, any party deriving
a right from an alleged fact shall carry the burden of proof. In this context, the
Chamber noted that Club C failed to provide any evidence regarding the alleged
Player D, from country I / Club C, from country U / Club A, from country C
6
complaint filed by the player before the Football Federation of country U despite
having been invited to do so.
6.
Having said this, the Chamber turned to art. 7.1 of the employment contract, in
which FIFA is, amongst others, specified as being competent to deal with the
disputes and disagreements connected to the employment contract. Hence, the
jurisdiction clause contained in the employment contract concluded between the
player and Club C referred to the competence of FIFA to deal with any potential
dispute between the player and said club.
7.
As a consequence of all the above, the Chamber established that it is competent
to adjudicate on the present matter, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players as well as art. 7.1 of the
employment contract.
8.
The competence of the Dispute Resolution Chamber having been established, the
members of 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 2008,
2009, 2010 and 2012) and, on the other hand, to the fact that the present claim
was lodged on 11 February 2009. Therefore, the Chamber concluded that the
2008 version of the Regulations on the Status and Transfer of Players is applicable
to the matter at hand as to the substance.
9.
The Chamber then turned its attention to the question as to whether the
employment contract between the parties had been breached or not and, if so,
which party is responsible for such breach. In this respect, the Chamber reviewed
the claim of the player, who stated that he had terminated the employment
contract with just cause, maintaining that Club C failed to pay the sign-on fee as
well as the monthly salaries for December 2008 and January 2009, the plane
tickets and the family insurance. Club C, for its part, based its defence primarily
on the alleged payment of the sign-on fee and the relevant salaries, partially paid
in USD, partially paid in the local currency, after supposedly having agreed so
with all the players, including the player. In this regard, the Chamber also noted
that Club C alleged to have even paid a higher amount in the local currency than
its equivalent in USD as well as that the player never gave notice of the alleged
amounts due.
10.
In addition, the Chamber reviewed the counter-claim of Club C, which held that
the player breached the employment contract without just cause when leaving
the club, since the player had received more than he was entitled to and, even if
payments were outstanding, the player never informed Club C about the delay in
the payment of his salaries nor the sign-on fee. Further to that, Club C indicated
that, in accordance with the CAS and FIFA jurisprudence, two salaries allegedly
due are not enough basis to terminate the contract with just cause.
Player D, from country I / Club C, from country U / Club A, from country C
7
11.
In view of the contradictory positions of the parties, the Chamber stated that it
had to analyse as to whether or not the player had terminated the contract with
just cause on 6 February 2009.
12.
The Chamber proceeded to study the documentary evidence and statements
submitted by the parties. In doing so, the Chamber considered that Club S’
argumentation was mainly based on the statement that it had paid the player
more than he was entitled to. As stated above, the Chamber drew its attention to
the fact that the employment contract clearly stipulated that the player would
receive a sign-on fee of USD 50,000 should the contract not be terminated prior
to 31 December 2007 as well as a monthly salary of USD 16,000 during the second
year of the contract.
13.
In this regard and referring to art. 12 par. 3 of the Procedural Rules, the Chamber
highlighted that Club S failed to provide any conclusive evidence for the payment
of the claimed amounts in the form of bank statements or payment orders. In this
respect, the Chamber pointed out that the document provided by Club S as
“calculations of the payments done under the Employment Contract” was a
document created by Club S itself and that, for obvious reasons, such a document
could therefore not be considered as objective evidence. Equally, the Chamber
found it hard to understand why Club S was able to provide the bank statements
for the payments made to Agent R, but that it failed to provide bank statements
for the payments it alleged to have made to the player. As a result, the Chamber
considered that it had not been provided with the necessary documentary
evidence from which it could be established that indeed the sign-on fee as well as
the two relevant salaries had been paid by Club S to the player, as alleged by the
former. Hence, by not paying the sign-on fee and the two salaries as well as by
paying the November 2008 salary two months late, Club S had repeatedly and
substantially been in breach of its contractual obligations towards the player.
What is more, according to the player, he had notified Club S of its arrears.
14.
In addition, and with regard to the payments in the local currency, the Chamber
noted that the contract provided for the payment of salaries in USD. The
Chamber held that if a contract stipulates the payment of salaries in one
currency, a club cannot on its own initiative and without the prior consent of its
players, start paying its players in another currency. This being established, the
Chamber found no evidence for concluding that the parties had indeed agreed
upon the payment in the local currency. Hence, in view of the lack of
documentation provided by means of which it could be proven that the player
had accepted to receive payments in currency of country U, the Chamber could
not uphold Club S’ line of defence and decided that Club S had, also in this
respect, been in breach of the terms of the contract.
Player D, from country I / Club C, from country U / Club A, from country C
8
15.
In continuation, the Chamber carefully considered the evidence submitted by the
player regarding the payment of the plane tickets. In this regard, the Chamber
concluded that Club S did not pay the plane tickets of the player and his family.
16.
In light of all the above, the Chamber decided to reject Club S’ arguments and
subsequent counterclaim, and decided that the player had terminated the
employment contract with just cause on 6 February 2009, after Club S had
breached the contract by not paying the player in the agreed upon currency, by
having failed to pay him the sign-on fee as well as his salaries of December 2008
and January 2009, and by paying the November 2008 salary late. In other words,
the Chamber came to the conclusion that, on 6 February 2009, the player had just
cause to terminate the employment contract and that, consequently, Club S is to
be held liable for the early termination of the employment contact with just
cause by the player.
17.
Having established that the player had just cause to unilaterally terminate the
employment contract and that Club S is to be held liable for the early termination
of the contract with just cause by the player on 6 February 2009, the Chamber
focused its attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
player is entitled to receive from Club S an amount of money as compensation for
breach of contract in addition to any outstanding payments on the basis of the
employment contract.
18.
First of all, the Chamber reverted to the player’s claim, which includes an
outstanding sign-on fee of USD 50,000 as well as USD 32,000 relating to the
unpaid monthly salaries of December 2008 and January 2009 and USD 7,257 for
the plane tickets. Consequently, the Chamber decided that Club S is liable to pay
to the player the amount of USD 89,257, which remuneration was outstanding at
the time of the termination of the contract.
19.
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 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 player 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.
20.
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
Player D, from country I / Club C, from country U / Club A, from country C
9
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.
21.
As a consequence, the Chamber determined that the amount of compensation
payable by Club S to the player 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 account when calculating the amount of compensation payable. Therefore,
other objective criteria may be taken into account at the discretion of the
deciding body.
22.
In continuation, the Chamber proceeded with the calculation of the amount
payable to the player until 25 December 2010. Consequently, the Chamber
concluded that the amount of USD 392,000 (i.e. salary as from 1 February 2009
until 25 December 2010) serves as the basis for the final determination of the
amount of compensation for breach of contract.
23.
This being established, the Chamber verified as to whether the player 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 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.
24.
In this regard, the Chamber noted that, according to the player’s declaration, he
signed an employment contract with Club A on 14 December 2009 as from 1
January 2010 to 31 May 2010. Under this contract, the Chamber underlined the
player would receive a total amount of EUR 10,000.
25.
Similarly, the Chamber pointed out that the player signed an employment
contract with Club T as from 17 July 2010 until 30 June 2011. Pursuant to the
employment contract between Club T and the player, he would receive a monthly
salary of USD 7,500.
26.
On the basis of the two preceding paragraphs, the Chamber decided that an
amount of USD 52,000 should be deducted from the amount of USD 392,000,
resulting in the amount of USD 340,000. Equally, and in view of the particularities
of the present matter, the DRC decided to further reduce the amount of
compensation to USD 230,000, which is considered by the Chamber a reasonable
and justified amount as compensation for breach of contract.
27.
Consequently, on account of all the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
player’s claim establishing that Club S must pay the player outstanding
Player D, from country I / Club C, from country U / Club A, from country C
10
remuneration amounting to USD 89,257 and compensation for breach of contract
amounting to USD 230,000 as well as 5% interest on said amounts.
28.
The Chamber concluded its deliberations in the matter at stake by establishing
that any further claim lodged by the player is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Player D, and the counterclaim
of the Respondent / Counter-Claimant, Club C, are admissible.
2.
The claim of the Claimant / Counter-Respondent, Player D, is partially accepted.
3.
The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / CounterRespondent, Player D, within 30 days as from the date of notification of this
decision, the outstanding remuneration in the amount of USD 89,257, as well as
5% interest per year on the said amount as from 11 February 2009 until the date
of effective payment.
4.
Equally, the Respondent / Counter-Claimant, Club C, has to pay to the Claimant /
Counter-Respondent, Player D, within 30 days as from the date of notification
of this decision, the amount of USD 230,000 as compensation for breach of
contract, as well as 5% interest per year on the said amount as from 15 March
2013 until the date of effective payment.
5.
In the event that the above-mentioned amounts due to the Claimant / CounterRespondent, Player D, are not paid by the Respondent / Counter-Claimant, Club
C, within the stated time limits, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and decision.
6.
Any further request filed by the Claimant / Counter-Respondent, Player D, is
rejected.
7.
The Claimant / Counter-Respondent, Player D, is directed to inform the
Respondent / Counter-Claimant, Club C, 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.
8.
The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected.
*****
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
Player D, from country I / Club C, from country U / Club A, from country C
11
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
Enclosed: CAS directives
Player D, from country I / Club C, from country U / Club A, from country C
12