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 D, from country B
as Claimant
against the club,
Club W, from country P
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 20 July 2009, Player D, from country B (hereinafter: the Claimant) and Club W,
from country P (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract) valid as from 20 July 2009 until 30 June 2012.
2.
According to clause 5 of the contract, the Respondent agreed to pay to the
Claimant the following amounts:
a. EUR 2,710 for the period between 22 July 2009 and 31 July 2009;
b. EUR 77,000 for the season 2009-2010 payable in 11 equal monthly
installments;
c. EUR 84,000 for the season 2010-2011 payable in 12 equal monthly
installments;
d. EUR 84,000 for the season 2011-2012 payable in 12 equal monthly
installments.
3.
For the season 2010-2011, the Claimant was loaned to Club G, from country P,
however it was agreed that the Respondent would remain in charge of paying the
Claimant’s salaries.
4.
On 28 June 2010, the parties entered into an agreement titled “Appendix no 1”
(hereinafter: the appendix), which modified the salary of the Claimant for the
season 2010-2011 to a monthly salary of 15,000 currency of country P as from 1
July 2010 until 30 June 2011.
5.
On 8 September 2011, the Claimant lodged a claim in front of FIFA requesting the
total amount of EUR “67,514” plus 5% interest as from 30 July 2011, as follows:
- EUR 7,000 corresponding to the outstanding salary of July 2011;
- EUR 60,365 corresponding to compensation for breach of contract.
6.
In particular, the Claimant explained that on 1 July 2011, after the loan period
with Club G expired, the Claimant returned to the Respondent. However,
according to the Claimant, the Respondent sent him to train with its U-21 team
and started to pressure him for the early termination of the contract by offering
him a series of settlement agreements. The Claimant further alleges that the
Respondent did not register him for the 2011-2012 season.
7.
On 13 July 2011, after the Respondent allegedly prevented the Claimant from
training with both the first team and the U-21 team, the Claimant sent a letter to
the Respondent demanding the payment of 4 outstanding salaries for the months
of March, April, May and June 2011 and requesting the latter to allow him to join
the first team. Similar letters were sent on 19, 21 and 25 July 2011.
Player D, from country B / Club W, from country P
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8.
The Claimant further acknowledged that on 21 July 2011 the Respondent paid his
salaries for the months of March and April 2011, but did not allow him to join the
first team.
9.
On 29 July 2011, the Claimant sent to the Respondent a notice of termination by
means of which the Claimant unilaterally terminated the contract invoking just
cause and, therefore, demanded the payment of his salaries of May and June 2011
as well as the remaining value of the contract. At a later stage, the Claimant
recognized that on 2 and 4 August 2011, the Respondent paid his salaries of May
and June 2011.
10.
On 8 August 2011, the Claimant signed a new contract of employment with Club
Q, from country B valid until 30 June 2013 where he received a monthly salary of
3,030 currency of country B.
11.
On 27 September 2011, the Respondent sent its answer to the claim. Firstly, it
stated that FIFA’s Dispute Resolution Chamber had no jurisdiction to decide on the
present matter. The Respondent based its argument on article 14.3 of the
contract, which reads: “Any disputes concerning the validity, existence or
termination hereof shall be resolved by the relevant country P Football Association
authorities. Financial disputes relating to the contract shall be submitted by the
parties for resolution by the Football Arbitration Court”.
12.
In this context, the Respondent stressed that, on 18 August 2011, it lodged a claim
against the Claimant in front of the DRC of the country P Football Association and
that, on 7 November 2011, the country P Football Association issued a decision
where it declared the contract between the parties terminated for reasons
attributable to the Claimant.
13.
In continuation, the Respondent alleged that the Claimant had no just cause to
terminate the contract in accordance with article 11.3 of the contract which states
that “[the Claimant] may apply to the country P Football Association Competition
Division for the termination of the contract (…) in the event of a gross breach of
[the Respondent’s] obligations, in particular a breach of the obligation to pay (…)
for a period of no fewer than three months”. Therefore, the Respondent is of the
opinion that failure to pay two monthly installments was not considered by the
parties as a just cause to terminate the contract.
14.
In his replica, the Claimant argued that the FIFA DRC is the only body competent
to deal with the present matter since there has been an ITC request, while quoting
the case CAS 2009/A/XXXX.
15.
The Claimant argues that on 21 August 2011, he and the Club Q, from country B,
asked FIFA to issue a provisional ITC due to the fact that the country P Football
Association refused to send his permanent ITC to the country B Football Union.
Player D, from country B / Club W, from country P
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The provisional ITC was granted by the PSC Single Judge on 6 September 2011.
Hence, the present matter became of the exclusive jurisdiction of FIFA.
16.
In continuation, the Claimant argued that art. 22 lit. a) of the Regulations on the
Status and Transfer of Players is a lex specialis rule that prevails over any other
arbitration agreements.
17.
Additionally, the Claimant mentioned that the clause established in art. 14.3 of
the contract cannot be applicable since it only mentions unspecified bodies like
the “country P Football Association authorities” and the “Football Arbitration
Court”. Furthermore, the Claimant argued that the country P Football Association
DRC is not an independent arbitral tribunal in the sense of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players and therefore its decision cannot
be considered as res iudicata. In addition, the Claimant claimed he was never
summoned to the proceedings of such national body.
18.
As to the substance of the matter, the Claimant reaffirmed all the statements
contained in his claim.
19.
On 4 July 2013, the country P Football Association informed FIFA that the
Respondent was in bankruptcy proceedings, however, it also confirmed that the
Respondent was still affiliated to it.
20.
Despite having been asked to do so, the Respondent did not provide any final
comments as to the substance of the matter. In relation to FIFA’s request to
provide all documentary evidence that would prove that the matter should be
dealt with by the arbitration bodies of the country P Football Association, the
Respondent referred to its correspondence dated 27 September 2011 and
submitted the decision of the country P Football Association DRC.
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 8 September 2011. Consequently, the 2008 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 2008 and 2012 edition 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 2010 and 2012) the Dispute Resolution Chamber shall adjudicate
Player D, from country B / Club W, from country P
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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 B player and a
country P 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 article 14.3 of the contract,
which, according to the Respondent, clearly excludes the competence of the
Dispute Resolution Chamber to adjudicate on the present matter.
5.
What is more, the Chamber duly noted that the Respondent had lodged a
complaint against the Claimant in front of the country P Football Association DRC
and that said body already rendered a decision declaring the contract terminated
for reasons attributable to the Claimant.
6.
Taking into account all 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. Equally, the
members of the Chamber referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force
on 1 January 2008.
7.
In relation to the above, the Chamber also deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another organ
than the DRC can settle an employment-related dispute between a club and a
player of an international dimension, is that the jurisdiction of the relevant
arbitration tribunal derives from a clear reference in the employment contract.
8.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
actually contained a clear jurisdiction clause.
9.
Having said this, the members of the Chamber turned their attention to art. 14.3
of the employment contract, on the basis of which the Respondent contested
FIFA’s jurisdiction. Said article stipulates that “Any disputes concerning the
Player D, from country B / Club W, from country P
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validity, existence or termination hereof shall be resolved by the relevant country
P Football Association authorities. Financial disputes relating to the contract shall
be submitted by the parties for resolution by the Football Arbitration Court”.
10.
In this respect, and regardless of the fact that the relevant employment contract
contains a reference to dispute resolution at national level, the Chamber pointed
out that such wording was unclear in the sense that it merely refers to “the
relevant country P Football Association authorities” and not to a specific deciding
body in the sense of art. 22 lit. b) of the aforementioned Regulations, or to any
similar arbitration body and, therefore, cannot be applicable. The members of the
Chamber wished to emphasise that the present matter was evidently a dispute
related to the termination of the employment contract, i.e. whether the Claimant
had terminated the contract with or without just cause and that, in accordance
with art. 14.3 of the contract, these kinds of disputes would be dealt with by “the
relevant country P Football Association authorities”, without however indicating a
specific body.
11.
In view of the foregoing, the Chamber held that art. 14.3 of the employment
contract cannot be considered as a clear and exclusive jurisdiction clause in favour
of the country P Football Association DRC or any other national body.
12.
In continuation and for the sake of completeness, the DRC turned its attention to
the principles of fair proceedings and equal representation of players and clubs
and underlined that these principles are fundamental elements to be fulfilled, in
order for a national dispute resolution chamber to be recognised as such.
13.
In this respect, the Chamber noted that the Respondent failed to provide the DRC
with any documentary evidence which could prove that the country P Football
Association DRC meets the requirements established in art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, despite having been asked to do
so by letter dated 12 February 2014.
14.
On account of all the above and referring to the principle of the burden of proof
contained in art. 12 par. 3 of the Procedural Rules, the Chamber established that
the Respondent’s objection towards the competence of FIFA to deal with the
present matter has 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.
15.
In continuation, the Chamber analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and
Transfer of Players (editions 2010 and 2012) and considering that the present claim
was lodged on 8 September 2011, the 2010 edition of said Regulations is
applicable to the present matter as to the substance.
Player D, from country B / Club W, from country P
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16.
The competence of the Chamber and the applicable regulations having been
established, the Chamber acknowledged that the parties signed a valid
employment contract on 20 July 2009 in accordance with which the Respondent
would pay the Claimant EUR 2,710 for the period between 22 and 31 July 2009,
EUR 77,000 for the season 2009-2010, EUR 84,000 for the season 2010-2011 and
EUR 84,000 for the season 2011-2012.
17.
Furthermore, the Chamber acknowledged that on 28 June 2010, in relation to the
loan of the Claimant to Club G, the parties entered into an appendix which
modified the salary of the Claimant for the season 2010-2011 to a monthly salary
of currency of country P 15,000 as from 1 July 2010 until 30 June 2011.
18.
Equally, the Chamber noted that on 29 July 2011, the Claimant terminated the
contract entered into by the parties since the Respondent i) failed to remit his
remuneration for the months of May and June 2011, ii) failed to register him with
the country P Football Association for the 2011/2012 season, and iii) failed to let
him train with the rest of the team.
19.
In this respect, the Chamber further noted that the Claimant argued that on 1 July
2011, after his loan period with Club G expired, he was excluded from the main
team, was sent to train with the U-21 team of the Respondent, and that, later on,
he was also prohibited to train with the U-21 team.
20.
Furthermore, the members of the Chamber observed that the Claimant sent
several reminders to the Respondent during July 2011 in which he asked for the
payment of 4 outstanding salaries, following which the Respondent only paid him
his salaries of March and April 2011, but still did not allow him to train with the
first team. Moreover, the Claimant argues that the Respondent breached the
contract and, thus, is seeking from the latter compensation for breach of contract
in accordance with art. 17 of the Regulations on the Status and Transfer of Players.
21.
In continuation, the Chamber observed that on 8 September 2011 the Claimant
lodged a claim against the Respondent in front of FIFA, requesting the payment of
“EUR 67,514” net corresponding to outstanding salary of July 2011 in the amount
of EUR 7,000 and EUR 60,365 as compensation for breach of contract.
22.
Subsequently, the members of the Chamber noted that the Respondent argues
that the Claimant had no just cause to terminate the employment contract since,
in accordance with clause 11.3 of the contract, it was agreed between the parties
that two outstanding salaries would not constitute a valid reason to terminate the
employment contract.
Player D, from country B / Club W, from country P
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23.
What is more, the Respondent argues that the Claimant failed to comply with his
“elementary duties as a player” and therefore, it had initiated proceedings against
the latter in front of the country P Football Association DRC.
24.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant and the allegations of
the Respondent, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the player, and which party
was responsible for the early termination of the contractual relationship in
question. The DRC also underlined that, subsequently, it would be necessary to
determine the consequences for the party that caused the breach of the relevant
employment contract.
25.
Bearing in mind the above-mentioned considerations, the Chamber firstly noted
that the contract was terminated on 29 July 2011 by the Claimant in writing. The
Chamber pointed out that it was only until late July 2011 when the Respondent
paid the Claimant’s salaries of March and April 2011 and only after having been
put in default by the Claimant on 13 July 2011. What is more, at the time of the
termination of the contract by the Claimant, the salaries of May and June 2011
remained unpaid and it was only after the Claimant had already terminated the
contract, that the Respondent made the relevant payments.
26.
In continuation, the members of the Chamber acknowledged that the Respondent
did not contest the allegations of the Claimant in respect of his exclusion from the
first team, that he was sent to train with the Respondent’s U-21 team despite
being over 21 years old, that he was not registered for the 2011-2012 season and
that, eventually, he was not even allowed to train at all.
27.
Finally, the members of the Chamber considered that the allegations of the
Respondent in respect that, in accordance with art. 11.3 of the contract, two
outstanding remunerations were not considered by the parties as just cause to
terminate the contract cannot be accepted. In this regard, the Chamber
emphasised that the phrase “[the Claimant] may apply to the country P Football
Association Competition Division for the termination of the contract…”, by using
the verb “may”, it clearly granted a right to the player to terminate the contract if
a certain criteria is met, nevertheless, by no means imposes a limitation on when
the contract can be terminated. What is more, the Chamber wished to reiterate
that, apart from the two outstanding salaries, the Claimant had been excluded
from training with the team and had not been registered for the 2011/2012
season.
28.
In this respect, the members of the Chamber considered it important to point out,
as has been previously sustained by the DRC, that among a player’s fundamental
rights under an employment contract, is not only his right to a timely payment of
his remuneration, but also his right to be given the possibility to compete with his
Player D, from country B / Club W, from country P
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fellow team mates in the team’s official matches. In this respect, the Chamber
emphasized that the “non-registration” of a player effectively bars, in an absolute
manner, the potential access of a player to competition and, as such, is violating
one of his fundamental rights as a football player.
29.
Therefore, the Chamber established that the “non-registration” of a player
constitutes, in principle, a breach of contract since it de facto prevents a player
from being eligible to play for his club.
30.
On account of the above circumstances, the Chamber established that the
Respondent had obviously no longer been interested in the Claimant’s services
and had breached the contract by failing to remit the Claimant his salaries without
any valid reason, by assigning him to the U-21 team, by eventually barring him
from training at all and by not registering him for the season 2011-2012. In the
Chamber’s view, such conduct constitutes a clear breach of contract. Accordingly,
the Chamber concurred that the Claimant had just cause to unilaterally terminate
the employment contract on 29 July 2011. Consequently, the Respondent is to be
held liable for the early termination of the employment contract with just cause
by the Claimant. The Chamber further wished to emphasise that, evidently, the
payment of the salaries of May and June in August 2011 do not affect the
justification of the termination in July 2011.
31.
Having established the aforementioned, the Chamber focused its attention on the
consequences of the early termination of the employment contract with just cause
by the Claimant. 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.
32.
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.
33.
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.
Player D, from country B / Club W, from country P
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34.
Subsequently, 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.
35.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
until 30 June 2012. The Chamber concluded that the amount of EUR 84,000 serves
as the basis for the final determination of the amount of compensation for breach
of contract.
36.
In continuation, the Chamber remarked that the Claimant had found new
employment with a club from Club W, from country B, valid as from 8 August 2011
until 20 June 2013. In accordance with the employment contract signed between
the Claimant and Club Q, during the season 2011-2012, the Claimant was entitled
to a total salary of currency of country B 33,330 which equalled to approximately
EUR 16,863 in August 2011. 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.
37.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of EUR 67,137 to the Claimant as compensation for breach of
contract, which is considered by the Chamber to be a reasonable and justified
amount as compensation.
38.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 8 September
2011, until the date of effective payment.
39.
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 D, is admissible.
2.
The claim of the Claimant is partially accepted.
Player D, from country B / Club W, from country P
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3.
The Respondent, Club W, 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 EUR 67,137 plus 5% interest p.a. on said amount as from 8 September
2011 until the date of effective payment.
4.
In the event that the amount due to the Claimant in accordance with the abovementioned number 3. is not paid by the Respondent 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.
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:
Player D, from country B / Club W, from country P
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Jérôme Valcke
Secretary General
Encl.
CAS directives
Player D, from country B / Club W, from country P
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