Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theodore Giannikos (Greece), member
Mario Gallavotti (Italy), member
Eirik Monsen (Norway), member
Jon Newman (USA), member
on the claim presented by the player,
Player S, from country B
as Claimant
against the club,
Club J, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On an unspecified date, Player S, from country B (hereinafter: the Claimant), and
Club J, from country C (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the contract) valid as from 1 March 2013 until 30 November
2014.
2.
In accordance with the contract, the Claimant was entitled to receive as
remuneration from the Respondent, inter alia, the total amount of USD 929,930
payable as follows:
a.
USD 100,000 as signing fee payable within 5 days following the signing of the
contract;
b. USD 50,000 before 30 June 2013;
c. USD 300,000 as salaries for the season 2013, payable in 10 equal instalments
of USD 30,000;
d. USD 479,930 as salaries for the season 2014, payable in 11 equal instalments
of USD 43,630;
3.
In continuation, article 7.3 of the contract stated that “When [the Claimant] fails to
reach the match times, playing time or ratio required by [the Respondent], [the
Respondent] has the right to duly subtract the above salary and the subtract
methods shall be specified in the Supplementary Agreement. Subtract the approach:
reducing 10% playing time in 70% of full game time (that 20% of 72 minutes), 20%
of the monthly wages will be subtracted, thus decreasing, but other than the team
doctor confirmed the injury and except for the tactical arrangements of coaching
staff. And the [Claimant]’s training and life will be under management by foreign
aid Club J Football Respondent regulations”.
4.
In addition, article 11.4 of the contract stipulated that “if [the Claimant’s]
professional ability cannot be accepted by [the Respondent’s] request in the season
2013 (appearance rate less than 80%), [the Respondent] can cancel the contract
with [the Claimant] at the end of the season 2013, and [the Respondent] do not
need to make any compensation”.
5.
On 11 December 2013, the Claimant lodged a claim against the Respondent in front
of FIFA, requesting the total amount of USD 589,960 as follows:
a.
USD 50,000 for the payment due on 30 June 2013 plus 5% interest p.a. as
from the due date;
b. USD 60,000 as outstanding salaries of October and November 2013 plus 5%
interest p.a. as from the due date;
Player S, from country B / Club J, from country C
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c.
USD 479,960 “as compensation for breach of contract (salary of December
2013 and the season 2014)” plus 5% interest p.a. as from the due date;
d. Procedural costs.
6.
In particular, the Claimant argued that after the non-payment of the USD 50,000
due on 30 June 2013, on 10 July 2013, he notified the Respondent requesting the
above-mentioned payment. Another reminder was sent on 31 July 2013, but the
Respondent failed to respond to both.
7.
Subsequently, the Claimant stressed that the Respondent failed to pay him his
salaries for October and November 2013. Furthermore, he claims that the
Respondent refused to summon him for the final matches of the 2013 country C
season, which ended in November 2013, just to impede him to achieve the 80% of
appearances with the Respondent.
8.
In view of the foregoing, the Claimant asserted that he “is entitled to terminate the
contract unilaterally with just cause”.
9.
On 7 January 2014, the Respondent replied to the claim stating that in accordance
with article 7.3 of the contract, if the Claimant failed to achieve an 80% rate of
“match times”, the Respondent had the right to subtract the former’s salary.
10.
In this respect, the Respondent claims that according to the Claimant’s playing time
with the Respondent, it deducted USD 75,000 of the Claimant’s salary for the season
2013, nonetheless, and since the Respondent owed the Claimant 2 months’ salary,
the Respondent only deducted the amount of USD 60,000.
11.
In this regard, the Respondent claims that despite the fact that it owes the Claimant
the salaries from October and November 2013 and the payment due on 30 June
2013, because of the above-mentioned deduction, it only needs to pay the Claimant
the amount of USD 50,000.
12.
The Respondent further argues that on 6 November 2013, the Respondent’s
financial staff approached the Claimant in order to pay him the outstanding
amounts, however, the Claimant refused to accept the payment, while all the other
players of the club received their salaries on time.
13.
In addition, the Respondent alleges that on 20 December 2013, it asked the
Claimant for his bank account details in order to make what it considered as the
outstanding payments but the Claimant never answered.
14.
Finally, the Respondent added that according to article 11.4 of the contract, the
Respondent has the right to terminate the contract in case the Claimant did not
Player S, from country B / Club J, from country C
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reach a rate of 80% of appearances and since the Claimant’s rate is only 50.5%, the
contract was “automatically terminated”.
15.
On 12 March 2014, the Claimant informed FIFA that he did not enter into an
employment relationship with a new club after December 2013.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on
11 December 2013. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 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 B player and a country C club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2012), and considering that the claim was lodged in front of FIFA
on 11 December 2013, the 2012 edition of the aforementioned regulations
(hereinafter: the 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, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation contained
in the file. However, the Chamber emphasised that in the following considerations
it will refer only to the facts, arguments and documentary evidence which it
considered pertinent for the assessment of the matter at hand.
5.
First of all, the members of the Chamber acknowledged that on an unspecified
date, the Claimant and the Respondent signed an employment contract valid as
from 1 March 2013 until 30 November 2014. The Claimant, on the one hand,
maintains that the Respondent breached the contract by failing to remit his salaries
in a timely manner and refusing to summon him for the club’s matches. The
Player S, from country B / Club J, from country C
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Respondent, on the other hand, rejects such claim and submits that since the
Claimant failed to reach 80% of appearances with it, according to article 7.3, it had
the right to subtract the player’s salary and that, in accordance with article 11.4 of
the contract, such was automatically terminated.
6.
In this context, the Chamber firstly focussed its attention on art. 7.3 of the contract,
which reads as follows: “When [the Claimant] fails to reach the match times,
playing time or ratio required by [the Respondent], [the Respondent] has the right
to duly subtract the above salary and the subtract methods shall be specified in the
Supplementary Agreement. Subtract the approach: reducing 10% playing time in
70% of full game time (that 20% of 72 minutes), 20% of the monthly wages will be
subtracted, thus decreasing, but other than the team doctor confirmed the injury
and except for the tactical arrangements of coaching staff. And the [Claimant]’s
training and life will be under management by foreign aid Club J Football
Respondent regulations”.
7.
Furthermore, the Chamber turned its attention to art. 11.4 of the contract which
states that: “if [the Claimant’s] professional ability cannot be accepted by [the
Respondent’s] request in the season 2013 (appearance rate less than 80%), [the
Respondent] can cancel the contract with [the Claimant] at the end of the season
2013, and [the Respondent] do not need to make any compensation”.
8.
Having taken into account the previous considerations, the Chamber deemed that
the above-described clauses are unilateral and to the benefit of the Respondent
only. In this respect, the members of the Chamber wished to point out that the
decision on the lining-up of a player in a match is normally left fully to the
discretion of the club. Hence, in view of such potestative character of the pertinent
contractual clauses, the members of the Chamber agreed that arts. 7.3 and 11.4 of
the contract cannot be accepted and thus, shall not have any effect.
9.
In this context and for the sake of completeness, the members of the Chamber
wished to highlight that, in general, potestative clauses, i.e. clauses that contain
obligations which fulfilment are conditional upon an event that one party entirely
controls, cannot be considered since they generally limit the rights of the other
contractual party in an excessive manner and lead to an unjustified disadvantage of
the latter towards the other.
10.
In relation to art. 7.3 of the contract, the Chamber duly noted that the Respondent
invoked said provision to justify the complete non-payment of the salaries for
October and November 2013. The Chamber was unanimous in its conclusion that
such a clause, as well as the execution of it, could not be accepted.
Player S, from country B / Club J, from country C
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11.
Also, the Chamber concurred that said art. 11.4 of the contract does not constitute a
reason that can be validly invoked nor a legal basis to unilaterally terminate the
contract. Consequently, the Chamber rejected the Respondent’s argument in this
respect.
12.
The Chamber further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of USD 110,000
corresponding to his outstanding remuneration as well as the amount of USD
479,960 as compensation for breach of contract, asserting that the Respondent had
not fulfilled its contractual obligations towards him. More specifically, the Claimant
indicated that the Respondent had not paid him the amount due on 30 June 2013
and his salaries for the months of October and November 2013.
13.
Likewise, the members of the Chamber noted that the Claimant sent to the
Respondent two default letters dated 10 and 31 July 2013 in which the Claimant
requested the Respondent to pay him the outstanding remuneration due on 30
June 2013, which remained unanswered.
14.
Having taken into account the previous considerations and in view of the conclusion
reached in relation to art. 7.3 and art. 11.4 of the contract, the Chamber decided
that it could be established that the Respondent had seriously neglected its
contractual obligations towards the Claimant in a continuous and constant manner,
i.e. the Respondent had failed to remunerate the Claimant for a substantial period
of time and that, on 11 December 2013, by submitting his claim to FIFA, the
Claimant terminated the contract with just cause.
15.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract with just cause
by the Claimant.
16.
First of all, the members of the Chamber concurred that the Respondent must fulfil
its obligations as per the employment contract in accordance with the general legal
principle of pacta sunt servanda. Consequently, the Chamber decided that the
Respondent is liable to pay to the Claimant the remuneration that was outstanding
at the time of the termination, i.e. the amount of USD 110,000, corresponding to
the payment due on 30 June 2013 in the amount of USD 50,000 and the salaries of
October and November 2013 in the amount of USD 60,000.
17.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1
of the Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to any outstanding salaries on the
basis of the relevant employment contract.
Player S, from country B / Club J, from country C
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18.
In this context, the Chamber outlined that, in accordance with said provision, 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.
19.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by means
of which the parties had beforehand agreed upon a 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.
20.
Subsequently and prior to assessing the relevant criteria in determining the amount
of compensation due to the Claimant by the Respondent, the Chamber first of all
recalled that the Claimant is claiming the amount of “USD 479,960” as
compensation, corresponding to “all the salaries that the Claimant should have
received until 30 November 2014”.
21.
Having recalled the aforementioned, and in order to evaluate the compensation to
be paid by the Respondent, the members of the Chamber took into account the
remuneration due to the Claimant in accordance with the employment contract as
well as the time remaining on the same contract, along with the professional
situation of the Claimant after the early termination occurred. In this respect, the
Chamber pointed out that at the time of the termination of the employment
contract, the contract would run for another twelve months. Taking into account
the foregoing as well as the claim of the Claimant, the Chamber decided that the
amount of USD 479,960 shall serve as the basis for the final determination of the
amount of compensation for breach of contract
22.
In continuation, the Chamber remarked that the Claimant had not found any new
employment contract with another club after the termination of the contract.
23.
In continuation, the Chamber pointed out that for the period of time as from March
2014 until November 2014, the Claimant had not yet concluded any employment
contract. The Chamber considered that this period of time shall also be taken into
consideration when calculating the amount of compensation for breach of contract,
since the Claimant will have the opportunity to conclude a new employment
contract during said period of time in order to mitigate his damages.
Player S, from country B / Club J, from country C
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24.
In view of all of the above, the Chamber decided that the Respondent must pay the
amount of USD 283,595 to the Claimant, which is considered by the Chamber to be
reasonable and justified amount as compensation for breach of contract.
25.
As a consequence, the DRC decided that the Respondent is liable to pay the total
amount of USD 393,595 to the Claimant, consisting of USD 110,000 corresponding
to the Claimant’s outstanding remuneration at the time of the unilateral
termination of the contract by the Claimant and of USD 283,595 corresponding to
compensation for breach of contract.
26.
In continuation and with regard to the Claimant's request for interest, the Chamber
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the
amount of USD 110,000 as from the respective due dates and on the amount of USD
283,595 as from 11 December 2013.
27.
Finally, the DRC decided to reject the Claimant’s claim pertaining to legal costs in
accordance with art. 18 par. 4 of the Procedural Rules.
28.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player S, is partially accepted.
2.
The Respondent, Club J, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
USD 110,000 plus 5% interest until the date of effective payment as follows:
a. 5% p.a. as of 30 June 2013 on the amount of USD 50,000;
b. 5% p.a. as of 1 November 2013 on the amount of USD 30,000;
c. 5% p.a. as of 1 December 2013 on the amount of USD 30,000.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of
USD 283,595 plus 5% interest p.a. on said amount as from 11 December 2013 until
the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
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5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
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
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