Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 25 April 2013,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Alejandro Marón (Argentina), member
Theo van Seggelen (Netherlands), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player B, from country H
as Claimant / Counter-Respondent
against the club,
Club D, from country T
as Respondent / Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 10 July 2009, Player B, from country H (hereinafter: player or Claimant/ CounterRespondent), and Club D, from country T (hereinafter: club or Respondent/CounterClaimant), signed an employment contract, valid as of 10 July 2009 until 31 May 2012
(hereinafter: contract).
2.
According to the contract, the player was entitled to receive, inter alia, for the
2009/10 season the following amounts:
Advance payment (on or before 9 July 2009)
EUR 75,000
Payment (on or before 31 July 2009)
EUR 25,000
Monthly salary as from August 2009 to May 2010
(EUR 10,000 X 10 instalments, all due at the end of the month) EUR 100,000
Per match payments duly specified in the contract
Monthly legal minimum wage
3.
Moreover, the contract stipulates that the player was entitled to the equal amount
of EUR 200,000 for each of the 2010/11 and 2011/12 seasons, totaling EUR 400,000.
4.
On 3 May 2010, the player formally notified the club of the unilateral termination of
the contract. In his termination notice the player claimed that the club failed to
comply with the payment terms under the contract and stated that his salaries as
well as 20 per match payments from the 2009/10 season were still outstanding.
5.
On 4 May 2010, the player lodged a claim against the club in front of FIFA
maintaining that, at the time of the termination of the contract, i.e. 3 May 2010, the
club had failed to pay the following amounts (totalling EUR 74,616):
- EUR 50,000 for his salaries (as from December 2009 until April 2010)
- EUR 22,416 relating to per match credits:
a) EUR 13,230 corresponding to 9 matches in the first eleven; 9 x EUR 1,470;
b) EUR 3,306 corresponding to 3 matches in which player participated;
c) EUR 5,880 corresponding to 8 matches in which player was nominated in
the squad of 18 but did not participate.
- EUR 2,200 for his minimum wage according to country T Labour Law.
6.
Therefore, the player requested the Dispute Resolution Chamber to order the club to
pay the total amount of EUR 74,616 as outstanding salaries plus 5% interest. The
player also requested to be awarded EUR 510,000 as compensation for breach of
contract, which amount he amended later on during the proceedings to the amount
of EUR 250,000 (cf. point I. / 12. below).
Player B, from country H / Club D, from country T
2/10
7.
On 14 June 2010, with its reply to the player’s claim the club lodged a counterclaim
against the player maintaining that the player unilaterally terminated the contract,
due to the fact that the team possibly would be relegated, as it was communicated
to the player three weeks before the end of the 2009/10 season.
8.
Moreover, according to the club, EUR 140,000 were paid against the player’s EUR
200,000 credit for the 2009/10 season, which left an outstanding amount of EUR
60,000, plus EUR 22,419 owed to him as per match payments, totaling EUR 82,419.
9.
The club further submitted that fines had been imposed upon the player, in the total
amount of EUR 92,105, which, according to the club, is to be deducted from the
amount of EUR 82,419 owed to the player.
10.
In light of the above, the club requested that the player be ordered to pay to the
club EUR 9,686.
11.
In his reply to the club’s counterclaim, the player alleged that as of the date of the
unilateral termination of the contract, i.e. 3 May 2010, there was no longer a legal
relationship between the parties, thus he could not validly have been imposed fines
for the total amount EUR 92,105 subsequent to the date of termination of the
contract. Moreover, he argued that the fine amounting to currency of country T
2,500 imposed on him for sportive reasons was not valid.
12.
The player requested that the club’s claim be rejected, maintained his request to be
awarded EUR 74,616 and asked compensation in the amount of EUR 250,000 instead
of EUR 510,000, plus 5% interest on both amounts.
13.
In its replica, the club alleged that the amount of compensation requested by the
player constitutes unjustified enrichment and insisted on its previous statements.
14.
In his final comments, the player reiterated his previous position and referred to the
employment contract with his new club explaining that he suffered a significant loss
on wages.
15.
According to the employment contract with his new club, Club D, valid as of 1 July
2010 until 30 June 2012, the player was entitled to receive, inter alia:
- for the 2010/11 season a monthly salary in the amount of EUR 13,000;
- for the 2011/12 season, the monthly salary was not indicated and for the
2012/13 season, if the contract was extended, a monthly salary of EUR 15,500
was agreed upon.
Player B, from country H / Club D, from country T
3/10
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 4 May 2010.
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. art. 21 par. 2 and 3 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
2012), 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 country H player and a country T club.
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 (editions 2012,
2010 and 2009), and considering that the present claim was lodged on 4 May 2010,
the 2009 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members of
the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. In this respect, the Chamber recalled that the
parties had signed an employment contract valid as from 10 July 2009 until 31 May
2012, in accordance with which the Claimant/Counter-Respondent was entitled to
receive, inter alia, a total guaranteed amount of EUR 200,000 for the 2009/2010
season (partly consisting of ten monthly instalments of EUR 10,000), plus a monthly
legal minimum wage, the amount of which was not specified in the employment
contract, as well as per match payments, i.e. EUR 1,470 per match if he played in the
squad of first eleven, EUR 1,102.50 if he joined during the game and EUR 735 if he
was nominated in the squad of eighteen but he did not participate.
5.
In continuation, the members of the Chamber noticed that it was undisputed by the
parties that, on 3 May 2010, the Claimant/Counter-Respondent notified the
Respondent/Counter-Claimant of the termination of the contract on the basis of
outstanding remuneration and twenty per match payments corresponding to the
2009/10 season.
Player B, from country H / Club D, from country T
4/10
6.
The DRC highlighted that the central issue in the matter at stake would be, thus, to
determine as to whether the Claimant/Counter-Respondent had just cause to
terminate the contract on 3 May 2010. The Chamber also underlined that
subsequently, if it were found that the employment contract was terminated with
just cause, it would be necessary to determine the consequences thereof.
7.
In this respect, the Chamber wished to emphasize that, according to the
Claimant/Counter-Respondent, at the time of the termination of the contract on 3
May 2010, the total amount of EUR 74,616, corresponding to salaries as from
December 2009 until April 2010, as well as EUR 22,416 relating to match bonuses, was
yet to be paid by the Respondent/Counter-Claimant.
8.
The DRC then turned its attention to the arguments of the Respondent/CounterClaimant and acknowledged that according to the latter, EUR 140,000 were paid
against the Claimant/Counter-Respondent’s EUR 200,000 credit for the full 2009-2010
season. In this context, the DRC noted that the Respondent/Counter-Claimant had
submitted documentary evidence demonstrating that, in fact, it had paid
remuneration to the Claimant/Counter-Respondent in the amount of EUR 140,000.
9.
Furthermore, the Chamber duly noted that the Respondent/Counter-Claimant
admitted that salaries and match bonuses in the total amount of EUR 82,419, i.e.
consisting of EUR 60,000 relating to salaries and EUR 22,419 relating to match
bonuses, had not been paid to the Claimant/Counter-Respondent. However, the
Respondent/Counter-Claimant deemed that fines totalling EUR 92,105, which were
imposed on the Claimant/Counter-Respondent by the Respondent/Counter-Claimant
for alleged undisciplined training and failure to attend a match without permission,
are to be deducted from the amount of EUR 82,419. Consequently, the
Respondent/Counter-Claimant submitted that it was owed the amount of EUR 9,686
by the Claimant/Counter-Respondent.
10.
Therefore, the Respondent/Counter-Claimant lodged a counterclaim against the
player, maintaining that the Claimant/Counter-Respondent terminated the contract
due to the fact that the team could be relegated and requested that the
Claimant/Counter-Respondent be ordered to pay EUR 9,686 to the club.
11.
In continuation, the members of the Chamber acknowledged that the
Claimant/Counter-Respondent rejected the Respondent/Counter-Claimant’s claim
sustaining that the fines were not to be deducted from his receivables and pointed
out that said fines were imposed upon him after the termination of the contract and
that the fine amounting to currency of country T 2,500 imposed on him for sportive
reasons was not valid. After careful study of the documentation presented by the
Respondent/Counter-Claimant with regard to said fines, the members of the
Chamber duly noted that, indeed, apart from the fine amounting currency of country
T 2,500, the fines were imposed by the club on the player subsequent to the date of
termination of the employment contract.
Player B, from country H / Club D, from country T
5/10
12.
In this context, the Chamber concurred that the fines imposed on the
Claimant/Counter-Respondent by the Respondent/Counter-Claimant shall not be
taken into consideration, since a) a fine based on bad sporting performances cannot
be considered valid and b) a fine based on the absence of a player after the player
terminated the employment relation cannot be justified.
13.
Furthermore, and irrespective of the foregoing consideration, the Chamber wished to
point out that the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a means to set off outstanding financial
obligations towards players. Consequently, the Chamber decided to reject the
Respondent/Counter-Claimant’s argument in this connection.
14.
In continuation, the DRC stressed that according to the legal principle of the burden
of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right
on the basis of an alleged fact carries the burden of proof.
15.
In view of the above, the DRC stressed that the Claimant/Counter-Respondent carries
the burden of proof in connection with his allegations as regards the sum of EUR
2,200 claimed as minimum wages in accordance with country T labour law, which
amount has not been acknowledged by the Respondent/Counter-Claimant as
outstanding. The Chamber highlighted that the contract does not indicate any
specific amount applicable as such minimum wage and that the Claimant/CounterRespondent had not presented any other supporting documentation in this regard.
As a consequence, the DRC decided to reject the Claimant/Counter-Respondent’s
respective claim pertaining to said amount of EUR 2,200 as legal minimum wage.
16.
Furthermore, as a consequence of the aforementioned considerations, in particular
numbers II. / 9 and II. / 12, the Chamber established that at least five monthly salaries
as well as a considerable part of the match bonus payments had fallen due and
remained outstanding at the time of the termination of the contract by the
Claimant/Counter-Respondent. Consequently, the Chamber concurred that the
Respondent/Counter-Claimant had seriously neglected its financial contractual
obligations towards the Claimant/Counter-Respondent.
17.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant/CounterRespondent had just cause to unilaterally terminate the contract on 3 May 2010 and
that the Respondent/Counter-Claimant is to be held liable for the early termination
of the contract with just cause by the player.
Player B, from country H / Club D, from country T
6/10
18.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, bearing in mind the financial claim of the Claimant/Counter-Respondent
the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the
Claimant/Counter-Respondent the amounts which were outstanding under the
contract at the moment of the termination, i.e. EUR 72,416 corresponding to match
bonuses in the amount of EUR 22,416 and salaries amounting to EUR 50,000.
19.
In addition, taking into consideration the Claimant/Counter-Respondent’s request as
well as the constant practice of the Dispute Resolution Chamber in this regard, the
members of the Chamber decided to award the Claimant/Counter-Respondent
interest at the rate of 5% p.a. on the outstanding amount of EUR 72,416 as of 4 May
2010 until the date of effective payment.
20.
In continuation, having established that the Respondent/Counter-Claimant is to be
held liable for the termination of the contract with just cause by the
Claimant/Counter-Respondent, 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 Respondent/Counter-Claimant is liable to
pay compensation to the Claimant/Counter-Respondent.
21.
Consequently, the Chamber decided that the Claimant/Counter-Respondent is
entitled to receive compensation from the Respondent/Counter-Claimant for the
termination of the contract with just cause in addition to the aforementioned
amount of EUR 72,416 on the basis of the relevant employment contract.
22.
Subsequently, the members of the Chamber firstly recalled 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/Counter-Respondent 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.
23.
In application of the relevant provision, the Chamber held that it 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.
The members of the Chamber assured themselves that no such compensation clause
was included in the employment contract at the basis of the matter at stake.
Player B, from country H / Club D, from country T
7/10
24.
As a consequence, the members of the Chamber determined that the amount of
compensation
payable
by
the
Respondent/Counter-Claimant
to
the
Claimant/Counter-Respondent had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable. Therefore,
other objective criteria may be taken into account at the discretion of the deciding
body. In this regard, the Dispute Resolution Chamber emphasized beforehand that
each request for compensation for contractual breach has to be assessed by the
Chamber on a case-by-case basis taking into account all specific circumstances of the
respective matter.
25.
In order to estimate the amount of compensation due to the Claimant/CounterRespondent in the present case, the members of the Chamber first turned their
attention to the remuneration and other benefits due to the Claimant/CounterRespondent under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it
important to emphasise that the wording of art. 17 par. 1 of the Regulations allows
the Chamber to take into account both the existing contract and the new contract in
the calculation of the amount of compensation.
26.
In accordance with the contract signed by the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant, which was to run until 31 May 2012, the
Claimant/Counter-Respondent was entitled to receive the total amount of EUR
410,000, made up of EUR 400,000 of remuneration for the 2010/11 and 2011/12
seasons plus EUR 10,000 payable on or before 31 May 2010. Consequently, the
Chamber concluded that the amount of EUR 410,000 serves as the basis for the final
determination of the amount of compensation for breach of contract.
27.
The Chamber then took due note of the employment situation of the
Claimant/Counter-Respondent after the termination of the contract with the
Respondent/Counter-Claimant and of the relevant new employment contract that he
had entered into, by means of which he was able to reduce his loss of income. It was
duly noted that, on 1 July 2010, the Claimant/Counter-Respondent and Club D, from
country G, signed an employment contract, valid as from 1 July 2010 until 30 June
2012, according to which the Claimant/Counter-Respondent was entitled to a
monthly salary of EUR 13,000 for the 2010/11 season, as well as a monthly salary for
the 2011/12 season which, however, was not indicated in the contract signed
between the parties. The Chamber took into account that, according to the new
employment contract, the Claimant/Counter-Respondent was entitled to a monthly
salary of EUR 15,500 for the 2012/13 season in the event that the contract was
Player B, from country H / Club D, from country T
8/10
extended. Consequently, the members of the Chamber established that the value of
the new employment contract concluded between the Claimant/Counter-Respondent
and Club D for the period as from 1 July 2010 until 30 June 2012 amounts to EUR
299,000 (23 months x EUR 13,000).
28.
The Chamber highlighted that in accordance with the constant practice of the
Dispute Resolution Chamber as well as the general obligation of the player to
mitigate his damages, such remuneration under the new employment contract(s)
shall be taken into account for the calculation of the amount of compensation for
breach of contract.
29.
For all the above reasons, the Chamber decided that the Respondent/CounterClaimant must pay the amount of EUR 111,000 to the Claimant/Counter-Respondent,
as compensation for breach of contract.
30.
Furthermore, taking into account the Claimant/Counter-Respondent’s petition and
the constant practice of the Dispute Resolution Chamber, the members of the
Chamber decided to award the Claimant/Counter-Respondent interest at the rate of
5% p.a. on the amount of compensation, i.e. EUR 111,000, as from 25 April 2013 until
the date of effective payment.
31.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that the counterclaim of the Respondent/Counter-Claimant as well as
any further claims lodged by the Claimant/Counter-Respondent are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player B, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club D, is rejected.
3.
The Respondent/Counter-Claimant, Club D, has to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 72,416, plus interest at 5% p.a. as
of 4 May 2010 until the date of effective payment.
4.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent,
within 30 days as from the date of notification of this decision, compensation for
breach of contract in the amount of EUR 111,000 plus interest at 5% p.a. as from 25
April 2013 until the date of effective payment.
Player B, from country H / Club D, from country T
9/10
5.
In the event that the above-mentioned amounts due to the Claimant/CounterRespondent are not paid by the Respondent/Counter-Claimant within the stated time
limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and decision.
6.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
7.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player B, from country H / Club D, from country T
10/10