Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 April 2015,
in the following composition:
Geoff Thompson (England), Chairman
Leonardo Gross (Italy), member
Theo van Seggelen (Netherlands), member
Philippe Diallo (France), member
Todd Durbin (USA), member
on the claim presented by the player,
A, country P
represented by Mr xxxxx
as Claimant
against the club,
B, country R
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
Facts relating to the preliminary issue of the competence of the DRC:
1.
On 2 July 2013, the player from P, A (hereinafter: the player or Claimant) and the
club from R, B (hereinafter: the club or Respondent), signed an employment
contract (hereinafter: the contract) which stipulates in its article 14.3 that “this
contract will be considered to be signed in R and all disputes, controversies or
disputes arising out of or in connection with this contract shall be governed,
interpreted, understood and resolved in accordance with R laws and the sports
statutes and regulations of FFR or LPF”. In addition, article 14.5 stipulates that
“Parties shall make in good faith all the efforts to resolve amicably any dispute,
controversy or disagreement arising out of or in connection with this contract. If
this is not possible, the dispute shall be submitted to arbitration only to the sports
courts in the jurisdiction of FFR or LPF”.
2.
The club contested the competence of FIFA to deal with the present matter
maintaining that there are competent committees organised by the FFR and
Professional Football League (LPF). In this respect the club submitted excerpts of
the Statutes of the Football Federation of R (FFR) (2011 edition) as well as the
Regulations of Application of the FFR Statute (2011 edition). In addition, it
submitted a letter from the Professional Football League relating to the
composition of the Dispute Resolution Commission and Appeals Commission. The
club further submitted a letter from the FFR relating to the composition of the
National Dispute Resolution Chamber.
3.
The player, for his part, insists that FIFA is competent to deal with the present
matter.
Facts relating to the substance of the matter:
4.
The contract signed between the player and the club on 2 July 2013 was valid
from 2 July 2013 until 30 June 2016.
5.
In accordance with the employment contract, the player was inter alia entitled to
receive the following monthly remuneration, payable on the 15th day of the
following month:
a. 2013/2014 season, EUR 9,000;
b. 2014/2015 season, EUR 10,000;
c. 2015/2016 season, EUR 11,000.
6.
The contract further provides for accommodation: “the club will ensure an
apartment in Iasi for EUR 400/month and car for the player during the contract”.
Player A, country P / Club B, country R
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7.
In addition, with regard to any notice sent, clause 13.2 of the contract provides “if
such notification is made by mail, it shall be made by registered letter with
acknowledgment of receipt and shall be deemed received on the date that the
sender receives confirmation of receipt with date and stamp recipient. If
notification is by fax, it will be considered as received by the party who is notified
of the second business day immediately following the date of transmission”.
8.
The player formally put the club in default of payment of EUR 27,000 on 18
December 2013 by fax and in default of payment of EUR 28,600 on 30 December
2013.
9.
On 13 January 2014, the player sent notice of unilateral termination of the
contract as a result of alleged failures of the club relating to remuneration owed
to him under the terms of the contract.
10.
On 27 January 2014, the player lodged a claim before FIFA against the club asking
that he be paid total outstanding remuneration relating to the contract in the
amount of EUR 38,400, plus 5% interest p.a. as of the relevant due dates. In
addition, the player claims compensation for breach of contract by the club in the
amount of EUR 318,000 plus 5% interest p.a. as of the date of claim. He further
claims the application of sporting sanctions on the club as a result of the breach
occurring during the protected period.
11.
The player argues that although the termination letter was sent on 13 January
2014, it only takes effect two business days following the receipt of said letter in
accordance with clause 13.2 of the contract, i.e. is to be deemed as executed on
the 15th of January 2014. The player stresses this point as he deems that as a
consequence remuneration pertaining to the month of December 2014 and due
on 15 January 2014 had indeed fallen due.
12.
Consequently, the player claims that between the time of signature of the
contract and the time of termination of the contract he was owed EUR 54,000
relating to salaries and EUR 2,400 relating to accommodation expenses, however
was only paid EUR 18,000. He therefore alleges to still be owed EUR 38,400 in
outstanding remuneration (i.e. four monthly instalments of EUR 9,000 as well as
six monthly instalments of EUR 400).
13.
The player also deems he terminated the contract with just cause, and as a result is
entitled to compensation in the amount of EUR 318,000 relating to the residual
value of the contract, which includes monthly remuneration and accommodation
expenses.
Player A, country P / Club B, country R
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14.
In its reply as to the substance of the matter, the club claim that there is no legal
basis for the claim as the player had left the club on 9 December 2013 and that all
financial obligations had been complied with. In this respect, the club submitted
an agreement entitled “Agreement on permission to leave the club to undergo
medical treatment” signed by both parties dated 9 December 2013, the terms of
which establish that the club will pay EUR 4,000 as an advance of payment of
expenses to be incurred whilst the player is abroad receiving treatment for an
injury. The agreement does not make reference to the terms of the employment
contract. According to this agreement, the player must “notify the Club of the
medical doctors to carry out the Medical Treatment” and “to notify the Club of
the costs of the Medical Treatment”
15.
The club adds that as a result of the player’s “absence” coupled to the fact that he
did not comply with his obligation of informing the club of his recovery program
as prescribed by the agreement, his claim for compensation should also be
rejected.
16.
Additionally, without forming an explicit counterclaim, the club argue that it
“would be entitled to damages as a result of the absence of player A in training
and official games played, in the amount of EUR 200,000, representing in part
only expenditure made by club to player by the date on which he signed with the
club convention until unjustified denunciation of the convention by the player, as
well as damages”.
17.
On 7 February 2014 the player signed an employment contract with the club D,
valid from 7 February 2014 until 30 June 2015, the terms of which provide for total
remuneration of xxxxxxxx (xxx) 441,150.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 27 January
2014. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2012; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber would, in principle, be
Player A, country P / Club B, country R
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competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from P and a
club from R.
3.
The Chamber, however, acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies, stating that any dispute arisen between the
parties should be submitted to the deciding bodies of the FFR and of the LPF.
4.
The Chamber equally noted that the Claimant rejected such a position and insisted
on the fact that FIFA had jurisdiction to deal with the present matter since the
deciding bodies of the FFR and the LPF do not respect the principle of equal
representation of players and clubs and cannot provide for fair proceedings.
5.
Taking into account the above, the Chamber emphasised that in accordance with
art. 22 lit. b) of the FIFA 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 imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010
dated 20 December 2005. In this regard, the members of the Chamber 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.
While analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber considered that it should, first and foremost, analyse whether
the contract at the basis of the present dispute actually contains a jurisdiction
clause.
7.
Having said this, the Chamber noted that the employment contract which is at the
basis of the Claimant’s claim inter alia stipulates in its article 14.5 that “Parties
shall make in good faith all the efforts to resolve amicably any dispute,
controversy or disagreement arising out of or in connection with this contract. If
this is not possible, the dispute shall be submitted to arbitration only to the sports
courts in the jurisdiction of FFR or LPF”.
8.
In view of the aforementioned clause, the members of the DRC were of the
opinion that article 14.5 of the employment contract does not make clear
reference to one specific national dispute resolution chamber in the sense of art.
22 lit. b) of the aforementioned Regulations. Therefore the members of the
Chamber deemed that the aforementioned clause can by no means be considered
Player A, country P / Club B, country R
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to be a clear arbitration clause in favour of either of the national deciding bodies,
i.e. of the FFR or the LPF, and therefore cannot be applicable.
9.
Having established that the first criteria for the recognition of the competence of
a national decision-making boy is not fulfilled in the present matter, the Chamber
deemed it unnecessary to examine any further point which would need to be
assessed before concluding to the competence of a national deciding body.
Notwithstanding the above, the members of the Chamber also noted that the
Respondent had only submitted partial excerpts of the Statutes of the FFR and the
Regulations for the Application of the Statutes of the FFR and therefore, they did
not have the complete documentation at their disposal upon which they could
have based their decision.
10.
In view of the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter had to be rejected and
that the DRC 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.
11.
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
(edition 2015), and considering the present claim was lodged on 27 January 2014,
the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
12.
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 aforementioned facts as well as the
arguments and the documentation submitted by the parties. The Chamber,
however, 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.
13.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid as from 2 July 2013 until 30 June 2016, in accordance with which the
Claimant was inter alia entitled to receive a monthly EUR 9,000 for the 2013/2014
season, and a monthly EUR 10,000 for the 2014/2015 season, as well as a monthly
EUR 11,000 for the 2015/2016 season. In addition, the Chamber noted that the
contract provided that “the club will ensure an apartment in lasi for EUR
400/month and car for the player during the contract”.
14.
In continuation, the Chamber acknowledged that on 13 January 2014, after
having put the Respondent in default, the Claimant notified the Respondent of
the termination of the contract with effect as of 15 January 2014 on the basis of
Player A, country P / Club B, country R
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outstanding remuneration. The Respondent, for its part, submits inter alia that the
Claimant had left the club on 9 December 2013 and that all financial obligations
had been complied with.
15.
The DRC highlighted that the central issue in the matter at stake would thus be to
determine whether the Claimant had just cause to terminate the contract.
16.
In this respect, the Chamber noted that the Claimant alleged that the Respondent
had failed to pay the outstanding amount of EUR 38,400 at the time of
termination, i.e. four monthly salaries and six monthly rental allowances.
17.
Subsequently, the Chamber noted that the Respondent, in its defence, implied
that the non-payment of remuneration to the Claimant was due to the absence of
the Claimant as from 9 December 2013, and that all other monies owed had been
paid to the Claimant.
18.
The members of the Chamber noted that the Respondent had itself provided
documentation (cf. point I./14. above) by means of which it authorised the
Claimant to be absent as from 9 December 2013 for medical treatment.
19.
Furthermore, the Chamber recalled the basic principle of burden of proof, as
stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective burden of
proof.
20.
According to this, the members of the Chamber noted that the Respondent did
not substantiate its defence, as it did not present any evidence in respect of the
payment of monies owed to the Claimant it sustains having performed.
21.
The Chamber, regarding the arguments of the parties, opined that the player was
authorised to leave the club on 9 December 2013 and that the Respondent has not
provided evidence of its defence. Therefore, it could be established that the
Respondent had failed to pay the Claimant the amounts agreed upon between
the parties in the employment contract without just cause. Consequently, the
Chamber rejected the arguments put forward by the Respondent.
22.
On account of the above, in particular the fact that at least three monthly salaries
and 5 monthly rental allowances were outstanding when the Claimant notified
the Respondent of the termination of the contract on 13 January 2014, and taking
into consideration the Chamber’s pertinent longstanding and constant
jurisprudence, the Chamber decided that the Claimant had just cause to
unilaterally terminate the employment contract with effect on 15 January 2014
and that the Respondent is to be held liable for the early termination of the
contract with just cause by the player.
Player A, country P / Club B, country R
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23.
In continuation, prior to establishing the consequences of the termination of the
contract with just cause by the Claimant in accordance with art. 17 par. 1 of the
Regulations, the Chamber held that it had to address the issue of unpaid
remuneration at the moment the contract was terminated by the Respondent.
24.
In this regard, the Chamber recalled that the Respondent had not presented any
evidence of payments allegedly having been made to the Claimant or any valid
reasons justifying non-payment. Furthermore, on 15 January 2014 the fourth
monthly salary and sixth rental allowance had also fallen due. Consequently, the
Chamber decided that in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the employment
contract concluded with the Claimant and consequently, is to be held liable to pay
the outstanding salaries in the amount of EUR 36,000.
25.
Furthermore, in relation to the unpaid accommodation expenses, the Chamber
duly noted that the employment contract provided a pecuniary value regarding
rent and thus, in line with the documentary evidence provided (cf. art. 12 par. 3 of
the Procedural Rules), the members also accepted the Claimant’s request to be
paid EUR 2,400 relating to said benefits.
26.
With regards to the claimed interest, the members of the DRC noted that
according to the contract, the outstanding amount was to be paid on the 15th day
of the following month. Consequently, the DRC decided that the Respondent had
to pay interest at a rate of 5% p.a. as follows:
-
27.
5% p.a. as of 16 August 2013 on the amount of EUR 400;
5% p.a. as of 16 September 2013 on the amount of EUR 400;
5% p.a. as of 16 October 2013 on the amount of EUR 9,400;
5% p.a. as of 16 November 2013 on the amount of EUR 9,400;
5% p.a. as of 16 December 2013 on the amount of EUR 9,400;
5% p.a. as of 16 January 2014 on the amount of EUR 9,400.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent in the
matter at hand. In doing so, the members of the Chamber first 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
Player A, country P / Club B, country R
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contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
28.
In application of the relevant provision, the Chamber held that it first had to
clarify whether the pertinent employment contract contains a provision by means
of which the parties had, beforehand, agreed upon an amount of compensation
payable by either contractual party 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.
29.
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, the objective criteria may be taken
into account at the discretion of the deciding body. In this regard, the Dispute
Resolution Chamber emphasised 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.
30.
In order to estimate the amount of compensation due to the Claimant in the
present case, the members of the Chamber first 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, if any, in the calculation
of the amount of compensation.
31.
Bearing in mind the aforementioned considerations, on the basis of the
employment contract signed by the Claimant and the Respondent, which was to
run for two and a half more years, i.e. until 30 June 2016, after the breach of
contract occurred, the Chamber concluded that the total amount of EUR 318,000
serves as the basis for the final determination of the amount of compensation for
breach of contract.
32.
In continuation, the Chamber verified 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 able 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
Player A, country P / Club B, country R
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compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
33.
It was duly noted that on 7 February 2014, the Claimant signed an employment
contract with the club D, valid as from 7 February 2014 until 30 June 2015, the
terms of which provide for total remuneration of xxx 441,150, which corresponds
to the approximate amount of EUR 127,000. It was further taken into
consideration that following the expiry of this new contract, the time left on the
contract at the basis of the present matter is of one more year, i.e. until 30 June
2016. In this regard, the Chamber deemed it pertinent to point out that the
Claimant had opportunities to further mitigate his loss to some extent.
34.
Consequently, on account of the aforementioned considerations and the
specificities of the case at hand, as well as the Claimant’s general obligation to
mitigate his damages, the Chamber decided to partially accept the Claimant’s
claim and that the Respondent must pay the amount of EUR 150,000, which was
considered reasonable and proportionate as compensation for breach of contract
in the case at hand.
35.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay the Claimant interest of 5% p.a. on the amount of
compensation as from the date of the present claim, i.e. 27 January 2014, until the
date of effective payment.
36.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, B 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
38,400 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
5% p.a. as of 16 August 2013 on the amount of EUR 400;
5% p.a. as of 16 September 2013 on the amount of EUR 400;
5% p.a. as of 16 October 2013 on the amount of EUR 9,400;
5% p.a. as of 16 November 2013 on the amount of EUR 9,400;
5% p.a. as of 16 December 2013 on the amount of EUR 9,400;
Player A, country P / Club B, country R
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f. 5% p.a. as of 16 January 2014 on the amount of EUR 9,400.
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 150,000 plus 5% interest p.a. as from 27 January 2014 until the date of
effective payment.
5.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 3. and 4. are not paid by the Respondent within the stated
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, country P / Club B, country R
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