Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 March 2015,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 8 January 2014, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent) signed an
employment contract (hereinafter: the contract) valid for the 2013-2014 season.
2.
Pursuant to article 2 of the contract, the Claimant is to receive a total amount of
USD 45,000 payable as follows:
USD 10,000 upon signature of the contract;
“the rest will be distributed as monthly salaries”.
3.
On 4 March 2014, the Respondent terminated the contract with the Claimant “for
technical reasons”.
4.
On 19 July 2014, the Claimant lodged a claim before FIFA against the Respondent
for breach of contract, requesting the payment of the following amounts:
USD 27,500 as outstanding remuneration corresponding to USD 10,000 as
sign-on fee, plus USD 17,500 as salary for January and February 2014;
USD 26,250 as compensation corresponding to the residual value of the
contract from March 2014 until May 2014.
5.
According to the Claimant, the Respondent put an end to the contract without just
cause. The Claimant alleges that by the time the Respondent terminated the
contract, his salary for January and February 2014 as well as the sign-on fee of USD
10,000 were outstanding.
6.
In this context, the Claimant deems being entitled to compensation in accordance
with article 17 of FIFA Regulations. In this respect, the Claimant alleged that the
relevant sporting season in country D, i.e. season 2013-2014, ended on 8 May 2014.
7.
In spite of having been invited to do so, the Respondent did not provide its position
pertaining to the matter at stake.
8.
Upon FIFA’s request, the Claimant alleges having remained unemployed as from 4
March 2014.
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, he took note that the present matter was submitted to FIFA
on 19 July 2014. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
Player A, country B / Club C, country D
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(hereinafter: the Procedural Rules) are applicable to the matter at stake (cf. art. 21
of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 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 2015), the
DRC judge 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 an club from country D, and which value does not exceed CHF
100,000.
3.
Furthermore, the DRC judge analysed which regulations 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 2012, 2014 and 2015), and considering that the present claim was lodged
in front of FIFA on 19 July 2014, the 2012 edition of said Regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the DRC
judge emphasised that in the following considerations he will refer only to the
facts, arguments and documentary evidence which it considered pertinent for the
assessment of the matter at hand.
5.
In this respect, and in first instance, the DRC judge recalled that on 8 January 2014
the parties had signed an employment contract valid for the 2013-2014 season, in
accordance with which the Claimant was to receive a total amount of USD 45,000,
including USD 10,000 payable upon signature and the rest to be allocated as
monthly salary.
6.
The DRC judge also took due note of the termination of the contract by the
Respondent by means of a written notice dated 4 March 2014 sent to the Claimant.
At this stage, the DRC judge took due note that, as indicated in the said written
notice, the termination was grounded on “technical reasons”.
7.
In continuation, the DRC judge took into account that the Claimant pointed out
that the Respondent had terminated the contract without just cause. Moreover, the
DRC judge noted that the Claimant underlined that at the time of the termination
of the contract by the Respondent, the latter had not paid the Claimant’s salary for
January and February 2014 as well as the sign-on fee of USD 10,000.
Player A, country B / Club C, country D
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8.
Furthermore, the DRC judge duly took note that the Respondent, for its part, failed
to present its response to the claim of the Claimant, in spite of having been invited
to do so. Consequently, the DRC judge deemed that the Respondent had renounced
its right to defence and, thus, had accepted the allegations of the Claimant.
9.
As a consequence of the preceding consideration, the DRC judge established that in
accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon
the basis of the documents on file.
10.
In this respect, the DRC judge was eager to emphasise that, according to its wellestablished jurisprudence, and as a general rule, only a breach or misconduct which
is of a certain severity justifies the termination of a contract. In other words, only
when there are objective criteria which do not reasonably permit to expect a
continuation of the employment relationship between the parties, a contract may
be terminated prematurely. Hence, if there are more lenient measures which can be
taken in order for an employer to ensure the employee’s fulfilment of his
contractual duties, such measures must be taken before terminating an employment
contract. A premature termination of an employment contract can only ever be an
ultima ratio measure.
11.
In view of the above, and in absence of documentation in the contrary, the DRC
judge observed that, first of all, the Respondent apparently did not put the
Claimant in default prior to the termination by the Respondent. Furthermore, the
DRC judge was of the firm opinion that, in any case, the Respondent did not have
just cause to prematurely terminate the employment contract with the Claimant,
since the “technical reasons” advanced by the Respondent in its termination notice
dated 4 March 2014 could not legitimately be considered as being severe enough to
justify the termination of the contract, inter alia considering the lack of information
and documentation with regard to the relevant “technical reasons”.
12.
On account of the above, the DRC judge decided that the Respondent had no just
cause to unilaterally terminate the employment relationship between the Claimant
and the Respondent and, therefore, concluded that the Respondent had terminated
the employment contract without just cause on 4 March 2014 and that,
consequently, the Respondent is to be held liable for the early termination of the
employment contact without just cause.
13.
Bearing in mind the previous considerations, the DRC judge went on to deal with
the consequences of the early termination of the employment contract without just
cause by the Respondent.
14.
First of all, the DRC judge concurred that the Respondent must fulfil its obligations
as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”. Consequently,
Player A, country B / Club C, country D
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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 USD 27,500, consisting of the sign-on fee of USD 10,000 as well as the amount of
USD 17,500 as salary for January and February 2014.
15.
In continuation, the DRC judge focused his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
DRC judge 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 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.
16.
In application of the relevant provision, the DRC judge held that he 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 contract.
In this regard, the DRC judge established that no such compensation clause was
included in the said employment contract at the basis of the matter at stake.
17.
As a consequence, the DRC judge determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge recalled
that said provision provides for a non-exhaustive enumeration of criteria to be
taken into consideration when calculating the amount of compensation payable.
18.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as
from its date of termination without just cause by the Respondent, i.e. 4 March
2014, until its original date of expiry.
19.
In this respect, the DRC judge addressed the issue pertaining to the term of the
contract, which was set for the 2013-2014 season. Pursuant to the Claimant, the
2013-2014 season ended on 8 May 2014. However, the DRC judge stressed the
information contained in the Transfer Matching System, in accordance with which
the 2013-2014 season in country D ended on 26 April 2014. Therefore, the DRC
judge decided that the compensation should be calculated as from 4 March 2014
until 26 April 2014.
20.
The DRC judge thus concluded that the Claimant would have received USD 17,500 as
total guaranteed remuneration if the contract had been executed until 26 April
Player A, country B / Club C, country D
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2014. Consequently, the DRC judge concluded that the amount of USD 17,500 serves
as the basis for the final determination of the amount of compensation for breach
of contract in the case at hand.
21.
In continuation, the DRC judge verified as to whether the Claimant 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 DRC judge, 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 Claimant’s
general obligation to mitigate his damages.
22.
In casu, the DRC judge took note that, in accordance with the Claimant’s
allegations, the latter remained unemployed as from 4 March 2014.
23.
As a consequence, and bearing in mind that the Claimant had not been able to
mitigate damages since he remained unemployed between the date of termination
of the contract by the Respondent and the ending date of the contract, the DRC
judge concluded by deciding that the Respondent has to pay the total amount of
USD 17,500 to the Claimant, as compensation for breach of contract.
24.
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 is partially accepted.
2.
The Respondent has to pay to the Claimant outstanding remuneration in the
amount of USD 27,500, 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 USD 17,500, 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 abovementioned 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 A, country B / Club C, country D
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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 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 A, country B / Club C, country D
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