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 A, from country B
as Claimant
against the club,
Club M, from country U
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 15 June 2010, the player from country B, Player A (hereinafter: player or
Claimant) signed an employment contract with the country U club, Club M
(hereinafter: club or Respondent) valid as of 1 July 2010 until 30 June 2013
(hereinafter: contract).
2.
According to art. 4 of the contract, the player was paid wages which consist of
“official salary … in accordance to the manning table of the football team in
currency of country U”. In addition, the player was entitled to receive from the
club “different payments, premiums, fringe benefits and other remunerations”.
3.
In addition, on 15 June 2010, the player and the club signed an “Agreement
about disciplinary sanctions and bonuses” (hereinafter: agreement).
4.
In accordance with articles 2.1 to 2.3 of the agreement, the player was entitled to
receive, as of 1 July 2010 until 30 June 2013, inter alia a yearly salary of EUR
60,000 for the period starting on 1 July 2010 until 30 June 2011; a further EUR
84,000 for the period starting on 1 July 2011 until 30 June 2012; and EUR 120,000
for the final period starting on 1 July 2012 until 30 June 2013.
5.
On 7 November 2011, the player lodged a claim against the club in front of FIFA
asking that it be established that the club terminated the contract without just
cause and that he be awarded the total amount of EUR 264,000 corresponding to
the remuneration for the full duration of the contract.
6.
The player claims that he was brought to the club’s pre-season training camp
shortly after having entered into the contract, where, upon arrival, he was
expelled from training without any explanation.
7.
Apart from the contract and the agreement, the player submitted a press release
allegedly published on the Club M website dated 17 June 2010 stating “we signed
the contract with Player A according to the scheme 3+2 (…)”.
8.
In support of his claim, the player submitted a faxed letter from the club
addressed to his former club, dated 13 July 2010. In this letter, the club informs
the player’s former club that the state of the player’s health, according to
previous medical examinations, was not satisfactory, and urges the former club to
sign a cancellation proposal dated 3 July 2010.
Player A, from country B / Club M, from country U
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9.
The player further submitted said proposal made by the club, signed only by the
club on 3 July 2010, for the cancellation of inter alia the contract and the
agreement binding the club and the player.
10.
In spite of having been invited to do so, the club has not responded to the
player’s claim.
11.
The player informed FIFA that he signed a new employment contract, on 1
December 2010, with the club, Club Z (Country B) valid until 31 January 2014, in
accordance with which the player was to receive the annual amount of currency
of country B 25,000 payable as follows:
i.
“first instalment in amount of 12,500 currency of country B immediately
after signing of the contract, and second instalment in the amount of
12,500 currency of country B on completion of the autumn part of the
2011/12 competitive season”. The second instalment is payable only if the
player regularly participates in training and in 70% of the official
matches;
ii.
“Financial and all other conditions for the remaining period of the
contract duration are identical to the conditions for the first year of
duration.”
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 7 November 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 is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and a country U club.
Player A, from country B / Club M, from country U
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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
(2012), and considering that the present claim was lodged on 7 November 2011,
the 2010 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. 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
facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
The members of the Chamber acknowledged that the Claimant and the
Respondent signed an employment contract and an “Agreement about
disciplinary sanctions and bonuses” valid as from 1 July 2010 until 30 June 2013.
6.
The Chamber then reviewed the claim of the Claimant, who maintains that the
Respondent terminated the employment contract and the agreement without just
cause and, consequently, the Claimant asks to be awarded compensation for
breach of contract in the amount of EUR 264,000 corresponding to the total value
of the employment contract and the agreement.
7.
According to the Claimant, the Respondent expelled him from training shortly
after the contract and agreement had been signed.
8.
The Chamber further noted from the documentation presented by the Claimant
that the Respondent had proposed the player’s former club to enter into a
tripartite cancellation agreement with the purpose to cancel the effects of the
transfer contract as well as of the employment contract and of the agreement
relating to transfer and employment of the Claimant, respectively. It was further
taken into account that according to the Respondent’s correspondence dated 13
July 2010 addressed to the player’s former club, the Respondent wished to cancel
said contracts due to the player’s alleged unsatisfactory state of health.
9.
In continuation, the members of the Chamber highlighted that the Respondent,
for its part, failed to present its response to the claim of the Claimant, in spite of
having been invited to do so. In this way, the Chamber considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of
the Claimant.
Player A, from country B / Club M, from country U
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10.
Furthermore, as a consequence of the aforementioned consideration, the
Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it
shall take a decision upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
11.
Having said this, on account of the aforementioned considerations, the members
of the Chamber concurred that the Respondent, shortly after having entered into
the employment contract and the agreement with the Claimant, obviously was no
longer interested in the player’s services, due to his alleged unsatisfactory state of
health. As a result, although the employment contract and the agreement were
fully valid and enforceable, the execution thereof had actually never started at
the club’s fault.
12.
For the sake of completeness, bearing in mind the contents of the Respondent’s
aforementioned correspondence dated 13 July 2010, the Chamber wished to
emphasize that on the basis of art. 18 par. 4 of the Regulations and the Chamber’s
respective jurisprudence, a club wishing to employ a player has to exercise due
diligence and carry out all relevant medical examination prior to entering into an
employment contract with a player.
13.
In addition, the Chamber highlighted that an injury or health condition of a
player can be no valid reason to terminate an employment contract.
14.
All of the above led the Chamber to conclude that the Respondent was liable for
the failure to execute the terms, i.e. the breach, of the employment contract and
the agreement without just cause shortly after the signature thereof.
15.
Having established that the Respondent is to be held liable for the breach of the
employment contract and the agreement without just cause, the Chamber
focussed its attention on the consequences thereof. In this regard, the members of
the Chamber determined that the Respondent was liable to pay compensation for
breach of contract in conformity with art. 17 par. 1 of the Regulations.
16.
The Chamber then turned its attention to the calculation of the amount of
compensation to be paid by the Respondent for the non-execution, i.e. the
breach, of the employment contract and the agreement. 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,
Player A, from country B / Club M, from country U
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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.
17.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract and/or agreement
contain 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 or agreement at
the basis of the matter at stake.
18.
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
and the agreement and concluded that the Claimant would have received the
total remuneration of EUR 264,000 had the contract and the agreement been
executed as from the starting date until the date of expiry, i.e. as from 1 July 2010
until 30 June 2013. This amount serves as the basis for the final determination of
the amount of compensation.
19.
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.
20.
On 1 December 2010, the Claimant signed an employment contract with the club,
Club Z (country B) valid until 31 January 2014, in accordance with which the player
was to receive remuneration to the approximate amount of EUR 32,000 for the
period of time between 1 December 2010 and 30 June 2013. Consequently, the
Claimant had been able to mitigate damages with the amount of EUR 32,000.
21.
In continuation, the Chamber also considered it important to point out that,
although the employment contract and agreement were fully valid and
enforceable, the execution of the contract and the agreement actually never
started, an element which equally should be taken into consideration in the
calculation of the amount of compensation.
22.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, in particular, the circumstance that the execution
of the employment contract and the agreement had never started, the Chamber
Player A, from country B / Club M, from country U
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decided that the Respondent must pay the amount of EUR 80,000 as
compensation for breach of contract to the Claimant.
23.
The DRC then turned its attention to the question of the possible imposition of
sporting sanctions on the Respondent in accordance with art. 17 par. 4 of the
Regulations. According to the said provision, sporting sanctions shall be imposed
on any club found to be in breach of contract during the protected period, in
addition to the obligation to pay compensation. This sanction shall be a ban from
registering any new players, either nationally or internationally, for two
registration periods.
24.
In this context, the members of the Chamber stated that as elaborated above, the
Respondent had been found in breach of contract. Furthermore, the Chamber
pointed out that the breach, consisting of the Respondent’s failure to execute the
contractual terms shortly after the signature of the relevant contracts,
undoubtedly occurred during the protected period.
25.
Indeed, item 7. of the “Definitions” section of the Regulations stipulates inter alia
that the protected period comprises “three entire seasons or three years,
whichever comes first, following the entry into force of a contract, where such
contract is concluded prior to the 28th birthday of the professional, or two entire
seasons or two years, whichever comes first, following the entry into force of a
contract, where such contract is concluded after the 28 th birthday of the
professional”.
26.
The Respondent having clearly acted in breach of contract without just cause
within the protected period, the Chamber decided that by virtue of art. 17 par. 4
of the Regulations, the Respondent shall be sanctioned with a ban on registering
any new players, either nationally or internationally, for the two next entire and
consecutive registration periods following the notification of the present decision.
27.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by rejecting any further request filed by the Claimant.
Player A, from country B / Club M, from country U
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club M, has to pay compensation for breach of contract in the
amount of EUR 80,000 to the Claimant within 30 days of notification of the
present decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for its consideration and a formal
decision.
4.
Any further claim filed by the Claimant is rejected.
5.
The Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
Player A, from country B / Club M, from country U
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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
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, from country B / Club M, from country U
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