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
Jon Newnan (USA), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 August 2013, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract) valid from 1 July
2013 until 31 May 2014.
2.
In accordance with the contract, the Claimant was entitled to receive the total
amount of 369,237 payable as follows:
a. 11 monthly “wage payments” of 22,968;
b. 11 payments “amounting to food, lodging and travel expenses” of
9,000;
c. 11 “other payments” of 1,599.
3.
Also on 1 August 2013, the parties concluded an Appendix to the Contract
(hereinafter: the appendix), which established in its article 2.1 that “The gross
overall basic salary of the [Claimant] shall be the sum of 369,237 (…). This sum
shall be divided into 11 gross monthly salaries of 33,567 (…) each. Each salary
shall be paid to the [Claimant] on the 9th of the month (…). The first salary
shall be paid for July 2013. Each month salary will include 9,000 Gross (…) for
board and lodging expenses, and 1,599 gross for fuel”.
4.
On 16 December 2013, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting the following amounts:
a. 100,701 corresponding to outstanding salaries for the months of
September, October and November 2013 plus 5% interest as from the
day the Respondent was in breach of the agreement;
b. 201,402 for “the remaining salaries for the 2013/14 season until the
end of the period fixed in [the contract]” plus 5% interest as from the
day the Respondent was in breach of the agreement;
c. 54,000 for the “equivalent value of the Claimant’s car and apartment”
plus 5% interest as from the day the Respondent was in breach of the
agreement;
Player A, from country B / Club C, from country D
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d. 276,720 as “specificity of sports compensation (…) reflecting the yearly
difference between the Claimant’s value when signing at the
Respondent August 2013 (33,567 net per month) to his current value
reflected in Club X offer to him nowadays (USD 3,000 net per month
equivalent to 10,507)”;
e. 78,869 as legal fees;
f. Sporting sanctions to be imposed on the Respondent.
5.
In particular, the Claimant explained that the Respondent had paid him only
the salaries of July and August 2013.
6.
Furthermore, the Claimant argues that the Respondent did not register him
with the Football Association from country D and did not report to the
Football Association from country D that it had signed a contract with the
Claimant. Consequently, “[the Claimant] was not allowed to play in any official
match during the 2013/14 season, seriously damaging his professional ability
and reputation”. In this regard, the Claimant claims that he “repeatedly asked
[the Respondent] to update his registration within the Football Association
from country D (…)”.
7.
In continuation, the Claimant asserts that in “mid-November 2013”, the
Respondent “orally informed [him] that it unilaterally terminates the
agreement”. The Claimant further argues that he was obliged to leave his
apartment and return his vehicle “by the end of the month”.
8.
On 12 November 2013, the Claimant sent a letter to the Respondent
requesting the payment of the outstanding salaries, however, according to the
Claimant, the Respondent did not answer.
9.
The Claimant further states that after the alleged breach, he “struggled to find
an alternative club”, and that the only offer made to him came from Club X, a
club playing in country D’s second division. The Claimant argues that Club X
only “offered him to sign an agreement for 6 months for the significant lower
remuneration payment of USD 3,000 per month”.
10.
Despite having been asked to do so, the Respondent did not respond to the
claim of the Claimant.
Player A, from country B / Club C, from country D
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11.
On 2 January 2014, the Claimant and the club from country D, Club Y,
concluded an employment contract valid as from 2 January 2014 until 31 May
2014 in accordance with which the Claimant was entitled to a monthly salary
of 15,500.
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 16 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 par. 1 and par. 2 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 2 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 player from country B and a club from
country D.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 24 March 2014 by means of which
the parties were informed of the composition of the Chamber, the member
Mario Gallavotti and the member Eirik Monsen refrained from participating in
the deliberations in the case at hand, due to the fact that the member Mario
Gallavotti has the same nationality as the Claimant. In order to comply with
the prerequisite of equal representation of club and player representatives,
also the member Eirik Monsen refrained from participating and, thus, the
Dispute Resolution Chamber adjudicated the case in presence of three
members in accordance with art. 24 par. 2 of the Regulations on the Status and
Transfer of Players.
4.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that in
Player A, from country B / Club C, from country D
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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
on 16 December 2013, the 2012 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
5.
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.
6.
First of all, the members of the Chamber acknowledged that, on 1 August
2013, the Claimant and the Respondent had concluded an employment
contract valid as from 1 July 2013 until 31 May 2014 as well as an appendix to
the contract. As to the financial terms of said employment contract and its
appendix, the Chamber took note that it had been agreed upon between the
parties that the Respondent would remunerate the Claimant with a monthly
salary of 33,567 as from 1 July 2013 until 31 May 2014.
7.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the amount of 100,701
corresponding to his outstanding remuneration, the amount of 255,402 as
compensation, as well as 276,720 as “specificity of sports compensation”,
asserting that the Respondent had not fulfilled its contractual obligations
towards him. More specifically, the Claimant indicated that the Respondent
had not paid him his salaries for the months of September, October and
November 2013 nor had he been registered by the Respondent with the
Football Association from country D.
8.
Likewise, the Chamber acknowledged that on 12 November 2013 the Claimant
sent a letter to the Respondent putting the latter in default, however to no
avail.
9.
Equally, the Chamber noted that the Claimant indicated that the Respondent
had orally terminated the contract in “mid November 2013”.
10.
Furthermore, the Chamber observed that the Respondent failed to present its
response to the claim of the Claimant, despite having been invited to do so. In
Player A, from country B / Club C, from country D
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this way, so the Chamber deemed, the Respondent renounced its right of
defence and, thus, accepted the allegations of the Claimant.
11.
As a consequence of the preceding consideration, the Chamber established
that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a
decision upon the basis of the documents on file.
12.
Having taken into consideration the previous considerations, the Chamber
decided that it could be established not only 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, but that the Club
terminated the contract without just cause in “mid-November” by informing
the Claimant that it would proceed to the termination of the contract, an
allegation which, as mentioned previously, remained uncontested.
13.
On account of the above, the Chamber established that the Respondent had
terminated the employment contract without just cause in “mid November
2013” and that, consequently, the latter is to be held liable for such early
termination.
14.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the employment contract
without just cause by the Respondent.
15.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per 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 100,701
consisting of three monthly salaries of 33,567 each, corresponding to the
months of September, October and November 2013.
16.
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.
17.
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
Player A, from country B / Club C, from country D
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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.
18.
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.
19.
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
255,402 as compensation, corresponding to the remaining value of the
employment contract, i.e. six monthly salaries amounting to 33,567 each, the
value of his car and apartment amounting to 54,000, as well as the amount of
276,720 as “specificity of sports compensation”.
20.
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 took into account that the
total salary of the Claimant under the employment contract concluded
between the Claimant and the Respondent amounted to 369,237, payable in
eleven monthly installments as from July 2013 until 31 May 2014. Furthermore,
the Chamber pointed out that at the time of the termination of the
employment contract, the contract would run for another six months.
Consequently, the Chamber concluded that the remaining value of the
contract as from its early termination by the Claimant until the regular expiry
of the contract amounts to 201,402 and that such amount shall serve as the
basis for the final determination of the amount of compensation for breach of
contract.
Player A, from country B / Club C, from country D
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21.
Additionally and for the sake of completeness, the Chamber wished to point
out that the monthly value of the car and apartment i.e. 9,000, is clearly
included in the monthly salary of 33,567, as established in art. 6 of the contract
and art. 2.2 of the appendix. Therefore, the additional amount of 54,000
requested by the Claimant needs to be rejected.
22.
In continuation, the Chamber remarked that the Claimant had found new
employment with a club from country D, Club Y, as from 2 January 2014 until
31 May 2014. In accordance with the employment contract signed between the
Claimant and Club Y, the Claimant is entitled to a total salary of 77,500.
Consequently, in accordance with the constant practice of the Dispute
Resolution Chamber and the general obligation of the Claimant 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.
23.
In view of all of the above, the Chamber decided that the Respondent must
pay the amount of 123,902 to the Claimant, which is considered by the
Chamber to be a reasonable and justified amount as compensation for breach
of contract.
24.
As a consequence, the DRC decided that the Respondent is liable to pay the
total amount of 224,603 to the Claimant, consisting of the amount of 100,701
corresponding to the Claimant’s outstanding remuneration at the time of the
unilateral termination of the contract by the Respondent and the amount of
EUR 123,902 corresponding to compensation for breach of contract.
25.
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 100,701 as from the respective due dates and on the
amount of 123,902 as from 16 December 2013.
26.
Furthermore, the Chamber decided to reject the Claimant’s further claim of
276,720, in accordance with art. 12 par. 3 of the Procedural Rules, since the
Claimant failed to corroborate the entitlement to such amount.
27.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal costs in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence in
this regard.
Player A, from country B / Club C, from country D
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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 A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of 100,701 plus 5% interest until the date of effective payment as
follows:
a. 5% p.a. as of 10 September 2013 on the amount of 33,567;
b. 5% p.a. as of 10 October 2013 on the amount of 33,567;
c. 5% p.a. as of 10 November 2013 on the amount of 33,567.
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 123,902 plus 5% interest p.a. on said amount as from 16 December
2013 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned 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.
5.
Any further claim lodged by the Claimant is rejected.
Player A, from country B / Club C, from country D
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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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, from country B / Club C, from country D
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