Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 April 2014,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
Ivan Gazidis (England), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player P, from country F
as Claimant
against the club,
Club B, from country T
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
Facts relating to the preliminary issue on the competence of the DRC:
1.
On 31 January 2011, Player P, from country F (hereinafter: player or Claimant) and
Club B, from country T (hereinafter: club or Respondent) signed an employment
contract valid as from the date of signature until 31 May 2012 (hereinafter:
contract).
2.
Art. 9 of the contract stipulates that “Par les presentes, l’autorisation pour
résoudre les litiges resultant due contrat appartient exclusivement à la Comité de
Résolution des Litiges. Les parties ne peuvent avoir recours qu’au Comité
d’Arbitrage de la Féderation Football de pays T délai contre la décision du Comité
de Résolution des Litiges ». (Free translation of the first sentence: the
authorization to resolve disputes arising from the contract is exclusively held by the
Dispute Resolution Committee).
3.
On 4 July 2011, the player lodged a claim against the club in front of FIFA.
4.
The club contests FIFA’s competence to deal with the present matter invoking art.
9 of the contract and referring to art. 22 b) of the FIFA Regulations on the Status
and Transfer of Players.
5.
In accordance with the country T “Directive of Dispute Resolution Committee”,
which entered into force on 24 August 2011, clubs and players, inter alia, are free
to accept or reject the authority of the “Dispute Resolution Committee”.
Furthermore, according to its art. 3, the “Dispute Resolution Committee consists of
an arbitrator or an arbitrator board to be selected according to the arbitrator
nomination method of Code of Civil Procedure.” Furthermore, the arbitrators are
selected from a list created by the “Board of Directors”. This list is developed from
candidates put forward by leagues associations, players’ association, coaches’
association, bars, university faculties of law.
6.
As regards the possibility of appeal, said directives state that “…; it is possible to
pursue judicial remedies within the context of the Law Regarding to the Formation
and Duties of the country T Football Federation and the Code of Civil Procedure”.
7.
Furthermore, the club alleges that it started proceedings in front of the country T
“Dispute Resolution Board” against the player on 10 June 2011 with a request to
be compensated for breach of contract without just cause by the player.
Player P, from country F / Club B, from country T
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8.
After having been asked by FIFA to provide further details on these proceedings,
the club indicated that no case was yet filed before the country T courts or the
country T Football Federation, more precisely, that the case was cancelled by court
due to a law amendment relating to the authorities of the country T Football
Federation.
Facts relating to the substance of the matter:
9.
In accordance with art. 3 of the contract, the player was entitled to receive from
the club the following remuneration:
1. EUR 48,000 to be paid in 4 instalments during the 2010-11 season;
2. EUR 150,000 to be paid in 10 instalments during the 2011-12 season if the
club would remain in the Super Ligue. If the club would enter the XY Ligue
as of the 2011-12 season, the player would have “an option right”. In this
case, the player would renounce his receivables or the club would pay him
EUR 120,000 corresponding to a 20% decrease compared to the Super
Ligue amount (cf. art. 3.2 of the contract) (Note: free translation from
language of country F).
10.
After the 2010-11 season, the club was relegated.
11.
On 21 June 2011, the player put the club in default of payment of his monthly
salaries for March, April, and May 2011. In the same correspondence, the player
informed the club of the termination of the contract with immediate effect with
just cause.
12.
On 5 July 2011, the club terminated the contract invoking the player’s absence
from training as of 27 June 2011.
13.
In his claim against the club in front of FIFA, dated 4 July 2011, the player asks to
be awarded payment of outstanding salaries in the total amount of EUR 36,000
relating to March, April, and May 2011.
14.
In addition, he asks that the contract be enforced for the 2011-12 season in the
event that he would remain without club or that the difference in salary between
any new contract and his contract with the club be awarded in the event that he
would earn less at a new club.
15.
The player explains that once he had asked the club to pay his outstanding
receivables, the club discarded him and informed him that he should accept a
Player P, from country F / Club B, from country T
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lower amount and the cancellation of the contract for the 2011-12 season or he
would receive nothing.
16.
The player points out that, at that time, he had indicated to the club that he
preferred to continue to be bound to the club.
17.
In addition, the player asserts that according to the employment contract, he had
the option to terminate the contract in the event of the club’s relegation for 201112 season.
18.
The club having failed to pay his receivables, he maintains to have put an end to
the contract on 21 June 2011.
19.
In reaction to the player’s claim and as to the substance of the present matter, the
club reserved its rights to demand compensation for breach of contract by the
player, alleging that the player unduly terminated the employment contract.
Ultimately, no counterclaim was received.
20.
The club admits that the amount of EUR 36,000 remained outstanding for the
2010-11 season.
21.
However, according to the club, if the player unilaterally terminated the contract,
he waived all of his receivables in accordance with art. 3.2 of the contract. The club
added that it had not received “the termination proceeding”.
22.
In addition, the club deems that the player should have followed the rules of the
country T Football Federation, in accordance with which he should have granted
the club a 30 days’ time limit in order to make the relevant payments and in order
for the termination to be justified in the event of non-compliance. According to
the club, non-respect of this rule would lead to an illegitimate contract
termination.
23.
Therefore, the club holds that the player had no just cause to terminate the
contract.
24.
The club adds that since the player had been absent from training as of 27 June
2011, the club terminated the employment contract on 5 July 2011.
25.
For these reasons, in case FIFA’s Dispute Resolution Chamber would consider itself
competent to decide on the present matter, the club asks that it be established
that the player terminated the contract without just cause.
Player P, from country F / Club B, from country T
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26.
The player informed FIFA that after the termination of his contract with the club,
he was registered with the French unemployment agency and that, on 5 January
2012, he signed an employment contract with the Club H, from country I, valid
until 31 May 2012, in accordance with which he was entitled to receive the total
amount of currency of country I 47,000.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA on
4 July 2011. 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. 1 and par. 2
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 2012) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a country F player and a
country T club.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. 9 of the contract and
referring to art. 22 b) of the FIFA Regulations on the Status and Transfer of Players.
4.
The members of the Chamber then turned their attention to said art. 9 of the
contract, which reads as follows: “Par les presentes, l’autorisation pour résoudre les
litiges resultant due contrat appartient exclusivement à la Comité de Résolution
des Litiges. Les parties ne peuvent avoir recours qu’au Comité d’Arbitrage de la
Féderation Football de pays T délai contre la décision du Comité de Résolution des
Litiges ». (Free translation of the first sentence: the authorization to resolve
disputes arising from the contract is exclusively held by the Dispute Resolution
Committee). Hence, the DRC outlined that said clause explicitly and exclusively
refers to a national dispute resolution chamber, i.e. the “Dispute Resolution
Committee”.
Player P, from country F / Club B, from country T
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5.
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. 1010 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.
6.
In continuation, the DRC turned its attention to the principle of equal
representation of players and clubs and underlined that this principle is one of the
very fundamental elements to be fulfilled, in order for a national dispute
resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned
in the Regulations on the Status and Transfer of Players, in the FIFA Circular no.
1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the
aforementioned principle as follows: “The NDRC shall be composed of the
following members, who shall serve a four-year renewable mandate: a) a chairman
and a deputy chairman chosen by consensus by the player and club representatives
(…); b) between three and ten player representatives who are elected or appointed
either on proposal of the players’ associations affiliated to FIFPro, or, where no
such associations exist, on the basis of a selection process agreed by FIFA and
FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA
Circular no. 1010 states the following: “The parties must have equal influence over
the appointment of arbitrators. This means for example that every party shall have
the right to appoint an arbitrator and the two appointed arbitrators appoint the
chairman of the arbitration tribunal (…). Where arbitrators are to be selected from
a predetermined list, every interest group that is represented must be able to
exercise equal influence over the compilation of the arbitrator list”.
7.
On account of the above, the Chamber went on to examine the documentation on
file, i.e. the “Directive of Dispute Resolution Committee”, which entered into force
on 24 August 2011 (hereinafter: Directive).
8.
At the outset, the Chamber noted that according to art. 2 of the Directive, parties,
including players and clubs, are free to accept or reject the authority of the
“Dispute Resolution Committee” for the settlement of disputes. Consequently, the
members of the Chamber concluded that said art. 2 of the Directive offers clubs
and players the right to accept or reject the jurisdiction of the country T “Dispute
Player P, from country F / Club B, from country T
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Resolution Committee”, which appears to be in contradiction with the exclusivity
of art. 9 of the contract.
9.
Furthermore, the members of the Chamber noted that according to art. 3 of the
Directive, the arbitrators are selected according to the “arbitrator nomination
method of Code of Civil Procedure” from a list of arbitrators “created by the Board
of Directors”. In this regard, the Chamber took into account that said “Code of
Civil Procedure” was not made available by the Respondent and that the Directive
does not specify by whom or how the “Board of Directors” is constituted or which
entity it is related to. As a result, the members of the Chamber did not have at
their disposal full information in order to properly assess as to whether the
“Dispute Resolution Committee” meets the aforementioned principles and
requirements.
10.
Notwithstanding the foregoing, the Chamber observed that the Directive does not
contain any indication relating to the nomination of the Chairman of the “Dispute
Resolution Committee”.
11.
In view of the above, the Chamber deemed that the Respondent had failed to
prove that the “Dispute Resolution Committee” is indeed an independent
arbitration tribunal guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs.
12.
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.
13.
In continuation, 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 (2012),
and considering that the present claim was lodged on 4 July 2011, the 2010 edition
of said regulations (hereinafter: Regulations) is applicable to the matter at hand as
to the substance.
14.
The competence of the Chamber and the applicable regulations having been
established, the Chamber 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. However, the
Chamber emphasised that in the following considerations it will refer only to the
Player P, from country F / Club B, from country T
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facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
15.
In this respect, the Chamber recalled that, on 31 January 2011, the parties signed an
employment contract valid as from the date of signature until 31 May 2012, in
accordance with which the Claimant was entitled to receive, for the 2010-11
season, the amount of EUR 48,000 in four instalments of EUR 12,000 each, i.e. as
from February until and including May 2011.
16.
In continuation, the members of the Chamber took into account that, on 21 June
2011, the Claimant notified the Respondent of the termination of the contract on
the basis of outstanding remuneration as of March 2011. The Respondent, for its
part, submits that the Claimant terminated the contract on 21 June 2011 without
just cause and that it reserved its rights to demand compensation for breach of
contract by the Claimant.
17.
In this connection, first and foremost, the members of the Chamber highlighted
that no counterclaim was lodged by the Respondent.
18.
The DRC held 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
21 June 2011.
19.
In this respect, the Chamber emphasized that, according to the Claimant, at the
time of the termination of the contract on 21 June 2011, the total amount of EUR
36,000, i.e. the monthly instalments as of March 2011, was yet to be paid by the
Respondent.
20.
The DRC then turned its attention to the arguments of the Respondent and noted
that the Respondent admitted that the amount of EUR 36,000 for the 2010-11
season had not been paid to the Claimant.
21.
Whereas the Respondent admitted that it owes the monthly instalments as of
March 2011 in the amount of EUR 36,000 to the Claimant, the Respondent deemed
that the Claimant had terminated the contract in an illegitimate manner, since the
Claimant allegedly had disrespected the rules of the country T Football Federation,
in accordance with which the Claimant should have granted the club a 30 days’
time limit to proceed with the relevant payment and in order for the termination
to be justified in case of non-compliance.
22.
In this regard, the Chamber noted that the contract does not include any clause
relating to said 30 days’ time limit. What is more, referring to art. 12 par. 3 of the
Player P, from country F / Club B, from country T
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Procedural Rules regarding the principle of the burden of proof, the Chamber
noted that the Respondent had not presented any documentation in support of its
allegations pertaining to said time limit rule.
23.
Overall, the members of the Chamber concurred that, irrespective of the issue as to
whether the player had to grant the club a 30 days’ time limit to remedy the
breach, the question as to whether the employment contract has been terminated
with or without just cause shall be analysed on a case-by-case basis and taking into
account all of the circumstances surrounding the specific matter before the
Chamber.
24.
The members of the Chamber further took into account that the Respondent had
not indicated any reasons that possibly could have justified the non-payment of
the Claimant’s remuneration as of March 2011, in the total amount of EUR 36,000.
25.
On account of all of the above considerations, the Chamber decided to reject the
arguments put forward by the Respondent in its defence and established that the
Respondent has seriously failed to comply with its contractual obligations.
26.
Consequently, the Chamber decided that the Claimant had just cause to terminate
the employment contract on 21 June 2011 and that the Respondent is to be held
liable for the early termination with just cause by the Claimant.
27.
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 an amount of money from the Respondent as
compensation for the termination of the contract with just cause in addition to any
outstanding payments on the basis of the relevant employment contract.
28.
In this context, the Chamber reverted to the Respondent’s allegation that in
accordance with art. 3.2 of the contract, the Claimant would have waived all of his
receivables by unilaterally terminating the contract. The members of the Chamber
could not uphold such argument, since art. 3.2 of the contract is clearly related to
the Claimant’s remuneration for the 2011-12 season, whereas the Claimant’s claim
in connection with outstanding remuneration concerns the 2010-11 season.
29.
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 amount which was outstanding under the contract at the moment of
the termination, i.e. the amount of EUR 36,000 corresponding to the salaries
relating to March, April and May 2011 of EUR 12,000 each.
Player P, from country F / Club B, from country T
Page 9 of 13
30.
In continuation, 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.
As a consequence, the members of the Chamber 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
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.
33.
The members of the Chamber then turned their attention to the remuneration and
other benefits due to the Claimant 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.
34.
At this point, the Chamber recalled that the Claimant asked to be awarded the
difference in salary between any new contract he would conclude and his contract
with the Respondent, in the event that he would earn less at his new club.
35.
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 as from
its date of termination with just cause by the Claimant until its original date of
Player P, from country F / Club B, from country T
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expiry, i.e. 31 May 2012. In this regard, the Chamber took into account that the
club was relegated for the 2011-12 season and that, therefore, the Claimant would
have been entitled to receive the total amount of EUR 120,000 in 10 instalments
during the 2011-12 season in accordance with art. 3.2 of the employment contract.
Consequently, the Chamber concluded that the amount of EUR 120,000 serves as
the basis for the final determination of the amount of compensation for breach of
contract in the case at hand.
36.
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.
37.
The Chamber recalled that, on 5 January 2012, the Claimant signed an employment
contract with Club H, from country H, valid until 31 May 2012, in accordance with
which he was entitled to receive the total amount of currency of country I 47,000,
which corresponds to approximately EUR 10,000.
38.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to
mitigate his damage, the Chamber decided that the Respondent must pay the
amount of EUR 110,000 to the Claimant as compensation for breach of contract.
39.
The DRC concluded its deliberations in the present matter by accepting the claim
of the Claimant and deciding that the Respondent is liable to pay to the Claimant
the amount of EUR 36,000 as outstanding remuneration as well as the amount of
EUR 110,000 as compensation for breach of contract.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player P, is admissible.
2.
The claim of the Claimant is accepted.
Player P, from country F / Club B, from country T
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3.
The Respondent, Club B, has to pay outstanding remuneration in the amount EUR
36,000 to the Claimant within 30 days as from the date of notification of this
decision.
4.
The Respondent has to pay compensation for breach of contract in the amount EUR
110,000 to the Claimant within 30 days as from the date of notification of this
decision.
5.
In the event that the amounts due to the Claimant are not paid by the Respondent
within the stated time limits, 5% interest 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 article 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
Player P, from country F / Club B, from country T
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For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player P, from country F / Club B, from country T
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