Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 18 March 2014,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player K, from country T
as Claimant
against the club,
Club P, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 1 June 2008, Player K, from country T (hereinafter: the player or the
Claimant), and Club P, from country C (hereinafter: the club or the
Respondent), concluded an employment contract (hereinafter: the contract)
valid as from 1 August 2008 until 31 May 2009.
2.
In accordance with art. 3 of the contract, the Claimant was entitled to a total
remuneration of EUR 50,000 net, payable as follows:
- 10 monthly salary payments of EUR 4,000 each, which should be payable no
later than the last day of every month, starting on 31 August 2008 and
ending on 31 May 2009;
- EUR 10,000 payable “on or before 15 July 2008”.
3.
Furthermore, art. 7 of the contract establishes that: “If the payment of the
Player’s remuneration hereunder is late by 90 (ninety) days or more for any
reason, then this shall be treated as a unilateral breach of contract without just
cause as specified under the FIFA Regulations and the Player shall have the
right to receive compensation from the Club and to terminate this Agreement
and to be employed by any other football club with immediate effect.”
4.
On 30 April 2009, the Claimant lodged a claim against the Respondent in front
of FIFA contending that he lawfully terminated the contract on 10 April 2009,
due to the Respondent’s failure to pay him EUR 12,000 corresponding to the
salaries from January to March 2009.
5.
As a result, the Claimant requested the payment of: a) EUR 12,000 as
outstanding remuneration; b) EUR 8,000 as compensation for breach of
contract and, c) legal expenses.
6.
In its reply to the claim, the Respondent argued that the contract was
terminated due to the unprofessional behaviour of the Claimant as he could
not provide his services during a match that was deemed “critical” by the club
(and took place on 21 March, 2009) since he had been detained for driving
under the influence of alcohol on 19 March 2009. In this respect, the
Respondent provided a copy of a police report dated 3 September 2009, which
indicated that the Claimant was charged for driving under the influence of
alcohol on 19 March 2009. Furthermore, the Respondent claimed that this
attitude was in contravention of its “Internal Rules”, which provided that:
- art. 6: “All Players must behave properly both during training and also
during their personal lives. In the event of any fighting during training or any
misbehaviour outside the field which is reported by the police authorities the
Player K, from country T / Club P, from country C
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club will immediately terminate the contract of employment and/or fine the
player with a fine not exceeding one month salary.”
- art. 11: “In the event that a player wishes to go out in the night after 12
o’clock he can do so only after having the prior express permission of the
coach. Failure to obtain such permission will result to a penalty not exceeding
50% of the player’s monthly salary. Consecutive infringements of this clause
might result in the club terminating the contract of employment of the
player.”
7.
Taking into account the misbehaviour of the Claimant, and the
aforementioned provisions, the Respondent alleged that it imposed fines on
the Claimant as follows:
-
For the violation of art. 6 of the Internal Rules: EUR 4,000
For the violation of art. 11 of the Internal Rules: EUR 2,000
8.
Furthermore, the Respondent claimed that the Claimant breached the contract
as only in the event that his salary was not paid for 90 days, he would have the
right to terminate the contract. However, according to the Respondent, this
did not happen as the Claimant terminated the contract on 10 April 2009.
Additionally, the Respondent claimed that by considering the fines imposed on
the Claimant, the salary was actually delayed for only 26 days.
9.
In his replica, the Claimant claimed that as to his driving under influence, the
police did not proceed with the criminal prosecution. Furthermore, the
Claimant argued that he never signed the “Internal Rules” and that these were
sent from the e-mail of an unknown sender. Finally, the Claimant asserted that
the Respondent did not have the right to deduct any amount from his salary
by concept of a fine.
10.
Although having been invited to provide its final position in the present
matter, the Respondent did not provide any final comments.
11.
Upon request of FIFA regarding the Claimant’s contractual situation between
April and 31 May 2009, the Claimant stated that he did not enter into any
contractual relationship from April to 31 May 2009.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with
the case at hand. In this respect, the DRC judge took note that the present
matter was submitted to FIFA on 30 April 2009. Consequently, the DRC judge
concluded that the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Player K, from country T / Club P, from country C
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the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2008
and 2012 editions of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 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 DRC judge is competent to deal with the matter at stake, which
concerns an employment–related dispute with an international dimension
between a country T player and a country C club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on
the Status and Transfer of Players, the DRC judge confirmed that he may
adjudicate on the present dispute which value does not exceed currency of
country H 100,000.
4.
Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (editions 2008, 2009,
2010 and 2012) and considering that the present claim was lodged in front of
FIFA on 30 April 2009, the 2008 edition of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well
as the documentation contained in the file. However, the DRC judge
emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence which he considered pertinent for the
assessment of the matter at hand.
6.
In this respect, the DRC judge acknowledged that the parties to the dispute
had signed an employment contract on 1 June 2008 valid as from 1 August
2008 until 31 May 2009, in accordance with which the Claimant was entitled to
receive the total amount of EUR 50,000.
7.
Turning to the claim of the Claimant, the DRC judge observed that the
Claimant lodged a claim in front of FIFA against the Respondent seeking
payment of the total amount of EUR 20,000, asserting that the Respondent
had not complied with its contractual obligations towards him and, therefore,
he had terminated the contract in writing on 10 April 2009. Equally, the DRC
judge acknowledged that the Claimant requested legal expenses.
Player K, from country T / Club P, from country C
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8.
Likewise, the DRC judge observed that the Respondent held that the Claimant
was fined twice for his misbehavior in the total amount of EUR 6,000 and that
it was therefore the Claimant who breached the contract, since the latter could
only terminate the contract in the event that his salary was not paid for 90
days. Furthermore, the Respondent asserted that the contract was terminated
due to the Claimant’s alleged unprofessional behaviour as he could not
provide his services during a match that was deemed “critical” by the
Respondent.
9.
In relation to the statements made by the Respondent, the DRC judge recalled
the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the
Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof.
10.
In this context, the DRC judge observed that the Respondent did not provide
any documentation that supported its allegations that the Claimant had been
fined with the total amount of EUR 6,000. In particular, the DRC judge
emphasised that the Respondent had not provided the relevant fines allegedly
imposed on the Claimant.
11.
Consequently, the DRC judge considered that the Respondent had not
substantiated its defence, as it did not present the necessary documentary
evidence which could adduce that the Claimant was indeed fined and, as a
consequence, the DRC judge decided not to take into consideration these
allegations of the Claimant.
12.
On account of the above, the DRC judge decided that it could be established
that the Respondent had failed to pay the Claimant his salaries for January,
February and March 2009.
13.
Furthermore, the DRC judge wished to clarify that the Respondent’s argument
that the contract was terminated due to the Claimant’s misbehaviour was not
supported by any documentary evidence. In fact, the DRC judge noted that it
was the Claimant who had terminated the contract on 10 April 2009 and not
the Respondent.
14.
As a result and considering that at the time of the termination the Respondent
had failed to remunerate the Claimant for a substantial period of time, the
DRC judge determined that the Claimant had just cause to unilaterally
terminate the employment contract on 10 April 2009 and that, consequently,
the Respondent is to be held liable for the early termination of the
employment contract with just cause by the Claimant.
Player K, from country T / Club P, from country C
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15.
Bearing in mind the previous considerations, the DRC judge 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 DRC judge concurred that the Respondent must fulfil its
obligations as per employment contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the DRC judge 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 EUR 12,000.
17.
In continuation, the DRC judge 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.
18.
In this context, the DRC judge 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 DRC judge held that he 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 DRC judge established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
20.
Having recalled the aforementioned, and in order to evaluate the
compensation to be paid by the Respondent, the DRC judge 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 DRC judge took into account that at the time of the
termination of the employment contract, the contract would run for another
two months. Consequently, the DRC judge concluded that the remaining value
of the contract as from its early termination until the regular expiry of the
contract amounts to EUR 8,000 and that such amount shall serve as the basis
for the final determination of the amount of compensation for breach of
contract.
Player K, from country T / Club P, from country C
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21.
In continuation, the DRC judge recalled that the Claimant had not found any
new employment with another club in the period between April 2009 and 31
May 2009.
22.
In view of all of the above, the DRC judge decided that the Respondent must
pay the amount of EUR 8,000 to the Claimant as compensation for breach of
contract.
23.
As a consequence, the DRC judge decided that the Respondent is liable to pay
the total amount of EUR 20,000 to the Claimant, consisting of the amount of
EUR 12,000 corresponding to the Claimant’s outstanding remuneration at the
time of the unilateral termination of the contract and the amount of EUR
8,000 corresponding to compensation for breach of contract.
24.
Furthermore, the DRC judge decided to reject the Claimant’s claim pertaining
to legal costs in accordance with art. 18 par. 4 of the Procedural Rules.
25.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player K, is partially accepted.
2.
The Respondent, Club P, has to pay to the Claimant outstanding remuneration
in the amount of EUR 12,000, within 30 days as from the date of notification
of this decision.
3.
The Respondent has to pay to the Claimant compensation for breach of
contract in the amount of EUR 8,000, within 30 days as from the date of
notification of this decision.
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, interest at the rate of 5% p.a. will fall due as of expiry
of the aforementioned time limits and the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a
formal decision.
Player K, from country T / Club P, from country C
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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 remittance is to be made and to notify the
DRC judge of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player K, from country T / Club P, from country C
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