Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 March 2015,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamazaki (Japan), member
Santiago Nebot (Spain), member
Mohamed Mecherara (Algeria), member
Guillermo Saltos Guale (Ecuador), member
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 1 September 2010, the Player of Country B Player A (hereinafter player or
Claimant) and the Club of Country D Club C (hereinafter club or Respondent)
signed an employment contract valid as from 1 September 2010 until 31 May
2013 (hereinafter contract).
2.
According to art. 4.2.A. of the contract, the player was entitled to the following
remuneration:
3.
EUR 950,000 for the first sporting season and payable via ten equal
installments of EUR 95,000 each, starting as from 5 October 2010 up and
until 5 July 2011;
EUR 950,000 for the second sporting season and payable via ten equal
installments of EUR 95,000 each, starting as from 5 August 2011 up and
until 5 May 2012;
EUR 950,000 for the third sporting season payable via ten equal installments
of EUR 95,000 each, starting as from 5 August 2012 up and until 5 May
2013.
Art. 4.2.B. of the contract inter alia stipulates that the club shall provide the
player with the following fringe benefits:
A house, the rent of which shall be paid by the club;
A car, the rent of which shall be paid by the club;
6 round flight tickets Country D/Country B/Country D per season in business
class for the player, his wife and children;
Education in a College of Country E in City F of Country D for the player’s
children, the costs of which shall be paid by the club.
4.
On 5 July 2012, the player lodged a claim before FIFA against the club and held
that the club breached the above-mentioned contract without just cause. As a
result, the player requested that the club be ordered to pay him the following
amounts:
EUR 742,312 as outstanding salaries, corresponding to the player’s total
remuneration as provided in the contract for the seasons 2010/11 and
2011/12, i.e. EUR 1,900,000, minus the amount of EUR 1,157,688 the player
confirmed having received from the club;
Player A, Country B / Club C, Country D
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EUR 950,000 as compensation for the player’s moral, sporting and financial
prejudices resulting of the club’s behaviour and calculated on the basis of
the player’s remuneration for the sporting season 2012/2013;
EUR 10,000 as compensation for the player’s legal expenses;
A penalty of EUR 250 per day of delay in the club’s payments until full
payment by the club of the amounts decided by the Dispute Resolution
Chamber;
Disciplinary sanctions against the club, including a suspension to compete,
until the amounts granted to the player by the Dispute Resolution Chamber
are fully paid.
5.
In his statement of claim, the player explained that as from the month of
September 2010, the club started to pay him less than the agreed monthly
remuneration.
6.
What is more, the player specified that as from February 2012 included, the club
totally stopped paying him.
7.
As a result of said situation, the player repeatedly put the club in default by
sending it various correspondences between 30 March 2012 and 16 May 2012. In
particular, the player’s letter dated 16 May 2012 reads that in view of the club’s
non-compliance with its obligations, the player deemed being in a position to
terminate his employment contract with just cause. According to the player, all
correspondence addressed to the club remained unanswered by the latter and no
payment was made.
8.
On 29 May 2012, the player terminated the contract in writing.
9.
Finally, on 5 June 2012, the player sent a letter to the club requesting the
payment within a week of the amounts of EUR 742,312 as outstanding salaries
and EUR 950,000 as compensation for his damages.
10.
In its reply to the claim, the club firstly stressed that it was aggrieved by the
player’s level of performance and pointed out in this regard that the club only
fielded him 11 times out of 34 league matches.
11.
In continuation, the club explained that it fulfilled all other obligations it had
towards the player and even took steps to improve the player’s living conditions
whereas it was not contractually bound to do so.
12.
In this respect, the club underlined that whereas art. 4.2.B. of the contract only
provided that the club would be liable to pay the rent of one house, the club
Player A, Country B / Club C, Country D
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declares having rented and paid the rent of a second house in City F of Country D
for the player as well as a third house in City G of Country D for the player’s
family.
13.
Also, the club stressed that upon the player’s request, it also paid for the player’s
children school-related expenses in City G of Country D whereas this was not
what the parties had agreed upon in the contract.
14.
In this regard, the club held that said expenses were four times higher than the
costs of the school located in City F of Country D that the player’s children were
supposed to join.
15.
Accordingly, the club asked for these elements to be taken into account whilst
calculating the player’s receivables.
16.
Likewise, the player reportedly asked the club to arrange flight tickets for him,
his family and friends and the amounts of which should, in the club’s opinion, be
deducted from the player’s receivables. In this respect, the club submitted copies
of about 400 e-tickets.
17.
Additionally, the club submitted a document signed by the player and which
reads that the player accepts that an amount of 12,750, i.e. EUR 5,436, shall be
deducted from his remuneration so as to reimburse the expenses paid by the club
in relation to flight tickets.
18.
In continuation, the club explained that the player was not focused on football
and was going out at night and consuming alcohol. In this respect, the club
asserted that the player had an accident with the EUR 20,000 worth car he was
provided with by the club and that this amount should be deducted from the
player’s balance.
19.
The club further explained that the postponement of the 2011/12 league, which
was the result of enquiries on match fixings in Country D, created problems in the
club’s cash flows.
20.
However, the club stressed that when it gathered all the players to inform them
of these difficulties, none of them, including the player, objected to the club’s
announcement of future dates on which the club would be able to pay the
players’ outstanding salaries. In this respect, the club stressed that on the dates it
promised to pay the players, it paid the player a total amount of EUR 175,138
between 30 September 2011 and 1 November 2011, which shows its good faith
and efforts.
Player A, Country B / Club C, Country D
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21.
As a conclusion, the club asserted that considering all the costs and expenses it
incurred on the player’s behalf, it does not owe anything to the player and it is
rather the latter that did not act in an ethical way.
22.
Upon request, the player reported that following the termination of the
employment contract with the club, he signed two employment contracts with
two other clubs, the details of which are the following:
On 29 August 2012, the player signed a single season employment contract
with the Club of Country D Club H on the basis of which he received, in
addition to the minimum wage, the total amount of EUR 45,000 until
October 2012. On 11 January 2013, the parties signed a termination
agreement by means of which the club undertook to pay the player EUR
20,000;
On 16 January 2013, the player signed a contract valid until the end of the
sporting season 2013/2014 with the Club of Country B Club I. According to
said contract, and for the sporting season 2012/2013, the player was to
receive a total remuneration of EUR 25,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 5 July 2012. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015), 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 of Country B and a Club of Country D.
3.
Furthermore, the Chamber analysed which 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 2 of the Regulations on the Status and Transfer of Players
(edition 2015), and considering that the present claim was lodged on 5 July 2012,
the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
Player A, Country B / Club C, Country D
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4.
The competence of the Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties available on file.
However, the DRC emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence, which he considered
pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber recalled that the parties had entered into an
employment contract valid as from 1 September 2010 until 31 May 2013, in
accordance with which the Claimant was entitled to receive, inter alia, a total
guaranteed salary of EUR 2,850,000 over the execution of said contract, plus
various benefits.
6.
In continuation, the members of the DRC took into account that, on 29 May 2012,
the Claimant notified the Respondent of the termination of the contract on the
basis of outstanding remuneration.
7.
The Respondent, for its part, mainly submitted that it faced unforeseen financial
difficulties that, in spite of its best efforts, prevented it from fully paying the
Claimant his contractual remuneration and that it covered extra contractual
expenses of the player upon his alleged request.
8.
Furthermore, the Respondent also invoked some behaviour issues and a lack of
performance on the Claimant’s part.
9.
The DRC highlighted that the central issue in the matter at stake would be, thus,
to determine as to whether the Claimant had just cause to terminate the contract
on 29 May 2012, that is, at the end of the parties’ second year of contract.
10.
In this context, the Chamber firstly wished to emphasize that, according to the
Claimant, and on 29 May 2012, an amount of EUR 742,312 of salaries was due
and outstanding.
11.
The DRC also took due note of the Claimant’s indication that, prior to the
termination of the contract, the Respondent had failed to answer or to follow up
on the five default notices the player had sent to the Respondent between 30
March 2012 and 16 May 2012.
12.
The DRC then also recalled the Respondent’s arguments and acknowledged that
according to the latter, and primarily, the postponement of the League of
Country D negatively impacted on the club’s cash flow and prevented it from
fully observing the terms of its financial obligations towards the player.
Player A, Country B / Club C, Country D
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13.
Also, the members of the Chamber took due note that according to the
Respondent, and in spite of the player’s alleged inappropriate behaviour, the
club provided him and his family with better living conditions than the ones
stipulated in the contract and that these voluntary stances should be taken into
account by this deciding body while analysing the club’s non-compliance with its
contractual obligation to pay the player’s salaries.
14.
Against such background, the DRC firstly wished to focus its attention on the
question of the club’s compliance with its contractual obligation to pay the player
his remuneration in the monthly amount of EUR 95,000.
15.
In this respect, the Chamber acknowledged that at the time of the player’s
termination of the contract on 29 May 2012, the latter indicated having only
received EUR 1,157,688 out of a due amount of EUR 1,900,000, hence leaving a
balance of EUR 742,312 in the player’s favour.
16.
Thus, the DRC established that the aforementioned amount approximately
corresponded to eight monthly salaries of the player, while bearing in mind that
the contractual relationship between the parties lasted twenty one months.
17.
On the other hand, the Chamber duly noted that the club asserted having paid all
amounts due to the player if one takes into account the salaries paid to the
player and the additional expenses the club paid for the player or for his family
and friends.
18.
However, and after a careful examination of the club’s submission in this respect,
the DRC noted that even though the club had been duly informed that, if need
be, it had to submit a translation into one of the official FIFA languages of the
documents drafted in Language of Country D it wished to rely on, all the
payment documents submitted by the club in support of its standpoint were only
presented in their original Language of Country D version.
19.
On account of the above, and in line with art. 9 par. 1 of the Procedural Rules,
the Chamber was left with no alternative but to disregard said documents, to
reject the club’s argument in this respect and to conclude that the club’s level of
indebtedness towards the player was to be based on the amount the player
admitted having received from the club and not based on the club’s standpoint.
20.
Having so found, the members of the DRC nevertheless wished to continue their
analysis of the club’s position and, in particular, to address the Respondent’s
thesis that it provided the player and his family with better conditions than what
it was contractually bound to.
21.
In this respect, and after having carefully reviewed the club’s representation as
well as the various supporting documents it presented in this respect, the
Player A, Country B / Club C, Country D
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Chamber found that although the club uncontestably took several costly actions
inter alia in connection with accommodation, school for the player’s children or
in relation to flight tickets it reportedly bought at the player’s request for the
latter’s friends and family, the Respondent had freely decided to fund these
expenses, which were not agreed upon in the contract.
22.
In other words, the Chamber agreed that even though it is aware of the
(financial) efforts the Respondent did in this respect, such behaviour could not
exempt the Respondent from complying with its primary obligation as an
employer, which is to pay in full and in a timely manner his employee’s
remuneration.
23.
On account of the above, the DRC decided that the various payments the club did
on a voluntary basis with respect to the player’s living conditions were not to be
taken into account whilst assessing the latter’s fulfillment of its primary
contractual obligation to fully pay the player’s salaries.
24.
Likewise, and as regard the club’s argument that the delay in the start of the
sporting season 2011/2012 caused problems in the club’s cash workflow, the
members of the Chamber unanimously agreed that said contention could not be
seen as a valid reason for the club not to comply with its contractual obligations.
25.
In this respect, and for the sake of completeness, the DRC was eager to stress that
according to the player, the club’s non-compliance with its payment obligation
started as from the first month of the execution of the contract, i.e. September
2010, and not only as from the beginning of the sporting season 2011/2012, fact
which was not contested by the club.
26.
On account of the above and taking into consideration the Chamber’s
longstanding jurisprudence in this respect, the Chamber concurred that the
Respondent had seriously neglected its primary financial contractual obligation
towards the Claimant.
27.
Consequently, the DRC decided that the Claimant had just cause to unilaterally
terminate the contract on 29 May 2012 and that the Respondent is to be held
liable for the early termination of the contract with just cause by the player.
28.
As a consequence, and in accordance with the general legal principle of pacta
sunt servanda, the Chamber decided that the Respondent is liable to pay to the
Claimant the amounts which were outstanding under the contract at the moment
of the termination, i.e. EUR 736,876, corresponding to the above-cited amount of
outstanding salaries (EUR 742,312) minus an amount of 12,750 the player
undertook in writing to reimburse to the Respondent in connection with flight
tickets.
Player A, Country B / Club C, Country D
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29.
In continuation, having established that the Respondent is to be held liable for
the early termination of the employment contract with just cause by the
Claimant, the Chamber focussed its attention on the consequences of such
termination. 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.
30.
Accordingly, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber 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.
31.
In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract contains 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 Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
32.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
until 31 May 2013 and concluded that the Claimant would have received a total
remuneration of EUR 950,000 had the contract been executed until its expiry
date.
33.
In continuation, the Chamber 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, 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 the player’s
general obligation to mitigate his damages.
34.
Indeed, on 29 August 2012, the player signed a single season employment
contract with the Club of Country D Club H on the basis of which he received, in
addition to a minimum unspecified wage, the total amount of EUR 45,000 until
October 2012. Furthermore, the Claimant reported that on 11 January 2013, the
Player A, Country B / Club C, Country D
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parties signed a termination agreement by means of which the club undertook to
pay the player EUR 20,000.
35.
In continuation, the player indicated having signed on 16 January 2013 a contract
valid until the end of the sporting season 2013/2014 with the Club of Country B
Club I. According to said contract, and for the sporting season 2012/2013, the
player was to receive a total remuneration of EUR 25,000.
36.
Consequently, the Chamber established that the value of the new employment
contracts concluded between the Claimant and the new clubs for the period as
from 29 May 2012 until and including May 2013 amounted to EUR 90,000.
37.
On account of all of the above-mentioned considerations and the specificities of
the matter at hand, the DRC decided that the Respondent must pay the Claimant
the amount of EUR 860,000 as compensation for breach of contract.
38.
In addition, as regards the claimed legal expenses, the Chamber referred to art.
18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural compensation
shall be awarded in proceedings in front of the Dispute Resolution Chamber.
39.
Consequently, the Chamber decided to reject the Claimant’s request relating to
legal expenses.
40.
Likewise, the Chamber wished to point out that as a result of the absence of legal
basis, the Claimant’s claim for a daily penalty to be imposed upon the club had to
be rejected.
41.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
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
EUR 736,876.
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 amounting to
EUR 860,000.
Player A, Country B / Club C, Country D
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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.
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:
Markus Kattner
Acting Secretary General
Encl.: CAS directives
Player A, Country B / Club C, Country D
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