Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 April 2013,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Joaquim Evangelista (Portugal), member
Philippe Diallo (France), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player B, from country C
as Claimant
against the club,
Club K, from country P
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 August 2008, Club K, from country P (hereinafter: the Respondent), and
Player B, from country C (hereinafter: the Claimant), concluded an
employment contract (hereinafter: the contract) valid as from the day of
signing until 30 June 2011.
2.
According to the contract, the Claimant was entitled to the following
remuneration:
- For the season 2008/2009: currency of country C 155,210 gross;
- For the season 2009/2010: currency of country C 169,320 gross;
- For the season 2010/2011: currency of country C 197,760 gross.
The salaries were payable in monthly instalments until the tenth day of the
following month at the latest.
3.
Clause 4 par. 3 of the contract establishes: “all the sums specified in the
Contract are equal with the sums given in Euro with the rate from August 11 th
2008 in the amount of 3,26; all the sums paid shall be revalorized with the
current Euro rate announced by the National Bank of country P coming for the
day of payment of the given remuneration”.
4.
Clause 6 of the contract states: “All the disputes concerning validity, existence
or dissolution of the contract are solved by relevant country P Football
Association authorities acting in accordance with the separate regulations.
Property disputes resulting from the herein contract are subject to
competences of football Arbitration Court”.
5.
On 25 January 2010, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting to be awarded with the amount of EUR 93,600
calculated as follows:
- EUR 9,900 as outstanding salaries corresponding to October, November
and December 2009;
- EUR 8,000 as the unpaid difference between the applied exchange rate
and, according to the contract, the one that should have been applied;
- EUR 75,700 as compensation corresponding to the remaining salaries until
the end of the contract.
6.
According to the Claimant, since the beginning of the season 2009-2010, the
Respondent tried to terminate the contract on several occasions, alleging
serious infringement of obligations by the Claimant such as unjustified
absences. After the Respondent had requested the country P Football
Association Committee to terminate the contract with the Claimant, on 11
September 2009, the country P Football Association Committee issued a
decision in favour of the Claimant declaring that (i) the absence of the
Player B, from country C / Club K, from country P
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Claimant was due to a holiday break approved by the Respondent, and that (ii)
the basic premises for the termination of contract according to the national
regulations were not met, and so declared that the contract was not
terminated.
7.
Furthermore, the Claimant indicated that after the abovementioned decision
was taken, the Respondent moved him to the second team without giving a
written notification. According to the Claimant, in the second team he was not
allowed to play matches, but only to train and he did not receive the monthly
salaries of October, November and December 2009 to which he was entitled as
per the contract.
8.
Accordingly, the Claimant alleged that the Respondent had unilaterally
terminated the contract without just cause and requested the payment of
outstanding salaries plus compensation.
9.
In addition, the Claimant explained that he received his first salary according
to the exchange rate of 10 August 2009, that was 3,25 currency of country P - 1
Euro. However, according to the Claimant, the Respondent paid the next due
salaries according to the same exchange rate, even when such exchange rate
had increased up to 4,7 currency of country P – 1 Euro.
10.
On 7 July 2010, the Claimant informed FIFA that he was forced to leave
country P on 8 July 2010.
11.
In reply to the claim lodged against it, the Respondent contested FIFA’s
competence to deal with the dispute on the basis of clause 6 of the contract
and alleging that the country P Football Association has established an
arbitration tribunal composed of members chosen in equal numbers by players
and clubs with an independent chairman. Upon FIFA’s request to provide the
pertinent documentation in relation to the independent arbitration tribunal in
country P, the club sent only the English translation of the regulations that
rule the Sporting Dispute Resolution Chamber of the country P Football
Association, which were approved on 4 March 2010. In particular, the club
stressed article 3 of the said Regulations, which states:
“The Chamber consists of the following people elected for the term of office
of the country P Football Association’s governing bodies:
a) a chairman and 3 deputy chairmen, jointly chosen by player and club
representatives, as specified in points b) and c) from a list of at least 8
people, specified by the Executive Board of the country P Football
Association.
b) six player representatives selected by the Executive Board of the
country P Football Association on a motion from the country P
Footballers Association,
Player B, from country C / Club K, from country P
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c) six club representatives, selected by the Executive Board of the country
P Football Association on a joint motion from Club E and the country P
Football League.”
12.
The abovementioned Regulations also state that the Chamber takes the
decisions with a simple majority of votes and, in the event of a tied vote, the
Chairman will take the final decision (art. 31). It is also determined that any
party not satisfied with a decision, can submit an appeal to the “Court of
Arbitration for Sports at the International Olympic Committee in Lausanne,
operating in accordance with the provisions of the Code of Sports Arbitration”
(art. 36).
13.
As to the substance of the present affair, the Respondent did not make any
comments.
14.
On 28 September 2011, FIFA received an unsolicited additional position of the
Claimant, amending his initial claim only in the total amount he requested to
be awarded with. The Claimant calculated the new amount taking into
account the following premises according to the contract:
- the Respondent should have paid each salary on the 10th day of the
following month;
- the Respondent should have applied the average exchange rate published
by the National Bank of country P at the day of payment, and in this
respect submitted a detailed calculation on the exchange rate between
currency of country P and EUR from 10 November 2009 until 11 July 2011.
Therefore, the new amount requested by the Claimant was EUR 81,406.16.
15.
Despite having been invited by FIFA to provide its position as to the unsolicited
comments of the Claimant, the Respondent did not reply.
16.
Upon FIFA’s request, the Claimant confirmed that he did not enter into a new
employment relationship during the period from January 2010 until June 2011.
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 25 January 2010. Consequently, the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the
matter at hand (cf. art. 21 of the 2008 and 2012 edition of the Procedural
Rules).
Player B, from country C / Club K, from country P
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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 2012) the Dispute Resolution Chamber shall adjudicate 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 C 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 clause 6 of the
employment contract and alleging that the arbitration tribunal of the country
P Football Association has established an arbitration tribunal composed of
members chosen in equal numbers by players and clubs with an independent
chairman.
5.
In this respect, 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
DRC referred to FIFA Circular no. XXXX dated 20 December 2005. In this
regard, the DRC judge further referred to the principles contained in the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations, which
came into force on 1 January 2008.
6.
Furthermore, the members of the Chamber observed that clause 6 of the
employment contract does not refer to a specific national dispute resolution
chamber or any similar arbitration body in the sense of art. 22 lit. b) of the
aforementioned Regulations. Therefore, the members of the Chamber deemed
that said clause could not serve as the basis on which the Sporting Dispute
Resolution Chamber of the country P Football Association should be declared
the arbitration tribunal competent to decide on the present dispute, since the
relevant clause did not contain a clear reference granting jurisdiction to said
arbitration tribunal.
7.
Subsequently, the Chamber referred to art. 9 par. 1 lit. e) of the Procedural
Rules which stipulates that all documents of relevance to the dispute shall be
submitted in the original version as well as translated into one of the official
Player B, from country C / Club K, from country P
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FIFA languages. However, the Chamber acknowledged that the documents
provided by the Respondent were only provided in its translated version. This
is, the members of the Chamber did not have at their disposal the original
version of the relevant documentation and, therefore, the Chamber could not
with certainty establish if the Sporting Dispute Resolution Chamber of the
country P Football Association complies with the standards of an independent
arbitration tribunal guaranteeing equal representation and fair proceedings.
The members of the Chamber emphasised that they cannot base their decision
on the basis of documentation that is incomplete.
8.
In addition, the members of the Chamber noted that the translated version of
the above-mentioned regulations governing the Sporting Dispute Resolution
Chamber ,provided by the Respondent, came into force on 4 March 2010. In
consequence, considering that the employment contract at the basis of the
dispute was signed on 1 August 2008, that the relevant claim was lodged on 25
January 2010 by the Claimant in front of FIFA and that the version of the
national regulations provided by the Respondent came in force on 4 March
2010 only, the Chamber determined that such version of the pertinent national
regulations did not correspond in time with the event giving rise to the
dispute, and therefore they could not be applicable, in any case, to the matter
at stake.
9.
As a result, and taking into consideration all of the above circumstances, the
Dispute Resolution Chamber concluded that the Respondent’s objection to the
competence of FIFA to hear the present dispute has to be rejected, and that
the Dispute Resolution Chamber is therefore competent, on the basis of art. 22
b) of the Regulations on the Status and Transfer of Players, to consider the
present matter as to the substance.
10.
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 2009, 2010, 2012) and
considering that the present claim was lodged on 25 January 2010, the 2009
edition of said Regulations is applicable to the present matter as to the
substance.
11.
The competence of the Dispute Resolution Chamber and the applicable
regulations having been established, the Chamber entered into the substance
of the matter. In doing so, it started by acknowledging the abovementioned
facts of the matter as well as the documentation contained in the file.
12.
In this respect, the members of the Chamber acknowledged that the parties
had signed a valid employment contract on 1 August 2008 in accordance with
which the Respondent would pay the Claimant, for the season 2008-2009, the
Player B, from country C / Club K, from country P
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amount of currency of country P 155,210, for the season 2009-2010, the sum of
currency of country P 169,320 and for the season 2010-2011, the amount of
currency of country P 197,760. Furthermore, the Chamber acknowledged that,
according to the employment contract, the above-mentioned amounts were
payable to the Claimant in monthly instalments on the tenth day of the
following month and, moreover, that the amounts would be revalorized with
the current rate Euro – currency of country P published by the National Bank
of country P for each day in which the amounts were to be due.
13.
Equally, the Chamber noted that the Claimant maintains that the Respondent
is to be held liable for the early termination of the employment contract
towards the end of January 2010 by having failed to remit his remuneration
for the months of October, November and December 2009.
14.
In this regard, the Chamber, first and foremost, highlighted that the
underlying issue in this dispute was to determine whether the employment
contract had been unilaterally terminated with or without just cause and,
which party was responsible for the early termination of the contractual
relationship in question.
15.
In doing so, the members of the Chamber took into account that, according to
the Claimant, his salaries as from October 2009 had remained unpaid and the
Respondent had repeatedly tried to terminate the contract, even requesting its
termination in front of the country P Football Association Committee, which,
as noted by the Chamber, affirmed the validity of the employment contract.
The members of the Chamber noted that the Respondent has not contested
such particular allegations, by failing to present its response as to the
substance of the claim lodged by the Claimant, in spite of having been invited
to do so. In this way, the Chamber was of the opinion that the Respondent
renounced to its right of defence and, thus, accepted the allegations of the
Claimant.
16.
On account of the above circumstances, the Chamber established that the
Respondent had obviously no longer been interested in the Claimant’s services
by failing to remit his salaries without any valid reason during a considerable
amount of time, by assigning him to the second team and by trying, on several
occasions, to terminate the employment contract. Such conduct constitutes, in
line with the long-lasting jurisprudence of the Chamber, a clear breach of
contract. Accordingly, the Chamber concurred that the Claimant had just cause
to unilaterally terminate the employment contract on 25 January 2010.
Consequently, the Respondent is to be held liable for the early termination of
the employment contact with just cause by the Claimant.
17.
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
Player B, from country C / Club K, from country P
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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 in addition to any
outstanding payments on the basis of the relevant contract.
18.
First of all, the Chamber reverted to the Claimant’s financial claim, which
includes outstanding remuneration of EUR 9,900 relating to the monthly
remuneration as of October 2009 until December 2009 in accordance with the
employment contract. The members of the Chamber recalled that the
Respondent failed to demonstrate that it had in fact paid such remuneration.
In addition, the Claimant asks to be awarded with the amount resulting in the
difference between the exchange rate applied to the paid salaries and the
exchange rate that, according to the contract, should have been applied. In
this respect, the members of the Chamber acknowledged that the Respondent
did not contest this point either.
19.
Consequently, taking into account the documentation remitted by the
Claimant to substantiate his claim, in particular the detailed calculation of the
exchange rate between currency of country P and Euro from 10 November
2009 until 11 July 2011, and the fact that the employment contract was
considered terminated as of 25 January 2010, the Chamber decided that the
Respondent is liable to pay to the Claimant the amount of EUR 10,237 as
outstanding remuneration. Such amount relates to payments due to the
Claimant as from October 2009 up to and including December 2009 in
accordance with the employment contract and the official average exchange
rate published by the National Bank of country P, applicable to the tenth day
of the following month in which each salary was due.
20.
In continuation, the Chamber focussed 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.
21.
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
Player B, from country C / Club K, from country P
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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.
22.
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 30 June 2011, taking into account that the player’s remuneration until
December 2009 is included in the calculation of the outstanding remuneration
(cf. no. II/19 above). Consequently, the Chamber concluded that the amount of
EUR 71,169 (i.e. salary as from January 2010 until June 2011 in accordance with
the official exchange rate between currency of country P and Euro published
by the National Bank of country P, for the tenth day of the following month in
which the salary would have been due) serves as the basis for the final
determination of the amount of compensation for breach of contract.
23.
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 Dispute Resolution Chamber, 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.
24.
The Chamber noted that the Claimant had not signed any other employment
contract.
25.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the Respondent
must pay the amount of EUR 71,169 to the Claimant as compensation for
breach of contract.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player B, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Club K, 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 10,237.
4.
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 EUR 71,169.
Player B, from country C / Club K, from country P
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5.
If the aforementioned sums 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.
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player B, from country C / Club K, from country P
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