Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 April 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Jon Newman (USA), member
Taku Nomiya (Japan), member
Mario Gallavoti (Italy), member
John Bramhall (England), member
on the claim presented by the player,
A, country S,
represented by Mr xxxxx
as Claimant
against the club,
B, country N,
represented by Mr xxxxxx
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 13 January 2011, the player from S, A (hereinafter: the player or Claimant), and
the club from N, B (hereinafter: the club or Respondent), signed an employment
contract valid as from 12 January 2011 until 31 December 2012.
2.
In accordance with the employment contract, the player was inter alia entitled to
receive monthly remuneration of xxxx (xxx) 30,000 and a sign-on fee of xxx
300,000 payable as follows:
a.
b.
c.
d.
e.
xxx 50,000 payable upon signature;
xxx 25,000 payable on 30 June 2011;
xxx 75,000 payable on 30 August 2011;
xxx 75,000 payable on 30 January 2012;
xxx 75,000 payable on 30 June 2012.
3.
In addition, the contract provides that the player is entitled to accommodation as
well as a return flight, Y-X-Y, to be used during the prescribed break, and bonus
payments.
4.
On 2 February 2011, the player lodged a claim before FIFA against the club asking
that he be paid compensation for breach without just cause by the club in the
amount of xxx 690,000 pertaining to twenty three monthly instalments of xxx
30,000 each and xxx 300,000 pertaining to his sign-on fee. In addition, the player
claims bonuses, accommodation and food allowance to be fairly determined by
the Dispute Resolution Chamber (DRC).
5.
The player alleges that on 16 January 2011, the club informed him that his services
were no longer required and that the contract signed was not enforceable as it
was not official and he would not receive his sign-on bonus. The club allegedly
provided him with a ticket to S dated 18 January 2011.
6.
On 17 January 2011, the player alleges that the club’s secretary general looked to
pay him a form of reimbursement of expenses incurred in the amount of EUR
1,000 in cash, under the condition that the player signed ‘one piece of paper’,
which he refused to do. The club allegedly called the player on the same day to
ask him to return to the club on 23 January 2011.
7.
According to the player, on 18 January 2011, he left N, and then tried to contact
the club on 20 and 21 January 2011, and the Football Federation of N on 23, 24
and 26 January 2011, and requested he be sent the return flight ticket allegedly
promised to him for 23 January 2011. He received no answer until after he had
lodged the claim in front of FIFA.
Player A, country S / Club B, country N
2/8
8.
In its reply to the claim, the club claimed that the player had acted
unprofessionally and that after a preparation match on 14 January 2011 the player
refused to undertake an intensive physical preparation course until he would
return from S a couple of days later. In this respect, the club alleges that it
informed the player of the responsibility he has to respect his contractual
obligations and that it considered that the justifications given for the player’s
absence, i.e. he had to return to extend his visa and marry his wife, were invalid.
9.
According to the club, on 15 January 2011, the player and the club allegedly
agreed that he would re-join the team on 17 January 2011. The club claims that on
the same day they paid the player xxx 50,000 (or EUR 4,500 according to the club)
in cash, and that the player refused to sign a receipt of acknowledgement which
only indicated EUR 1,000 and then never came back to the club.
10.
After having already provided its first reply to the claim, the club then claims it
sent a letter on 28 March and 1 April 2011 to the player asking that he return and
execute his obligations with regards to the contract by no later than 12 April 2011.
Should the player not respect this deadline, the club claims the player should be
made to pay EUR 6,000 in legal fees, xxx 990 000 (or EUR 90,000 according to the
club), EUR 30,000 for damages caused to the club as well as the imposition of
sporting sanctions against the player.
11.
In reaction, the player asserts that the club was aware of his departure from N, as
it was the club who provided him with his flight tickets (cf. point I./5. above) and
had him expelled from his hotel on 17 January 2011. He also reiterates that he was
willing to return on 23 January 2011 as allegedly agreed.
12.
The player also adds that he considers the club’s invitation made 28 March 2011
for the player to return to the club by no later than 12 April 2011 to be deceitful.
Indeed, he claims that the club had no intention of letting him play, in particular
because the flight ticket provided to him with the invitation was dated 11 April
2011 with a return for 10 May 2011, whereas his contractual obligations were to
last at least until 30 June 2011. In addition, he questions the timing of the letter
sent.
13.
In its final remarks, the club asserts that they looked to have to player return to it,
making reference to the correspondence sent to the player urging him to return
before 12 April 2011. They add that the player signed his contract on 13 January
2011, allegedly “disappeared” on 17 January 2011 and lodged his claim on 2
February 2011, and thereby acted in bad faith.
14.
The club also add that the player should not receive his sign-on bonus as he has
not played in any match.
Player A, country S / Club B, country N
3/8
15.
In reply to FIFA’s pertinent request, the player indicated that he had not signed
any professional contract, but has been actively playing football with various S
amateur clubs since September 2011.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the matter at stake. In
this respect, it took note that the present matter was submitted to FIFA on 2
February 2011. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
the 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 is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from S and a club from N.
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
(edition 2015), and considering that the present claim was lodged on 2 February
2011, the 2010 edition of said regulations (hereinafter: the 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 aforementioned facts as well as the
arguments and 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.
5.
In this regard, the members of the Chamber noted that the Claimant and the
Respondent signed an employment contract valid as from 12 January 2011 until 31
December 2012, in accordance with which the Respondent would inter alia pay
monthly remuneration of xxx 30,000, and a sign-on fee of xxx 300,000 payable in
five instalments until 30 June 2012. The DRC equally noted that the employment
contract provided for accommodation, bonuses, as well as a flight ticket, to be
paid by the Respondent to the Claimant.
Player A, country S / Club B, country N
4/8
6.
The Chamber then noted that, on the one hand, the Claimant claims the
Respondent has breached the contractual relationship without just cause, by
informing him, on 16 January 2011, that his services were no longer required and
by failing to remit the first instalment of his sign-on fee. In this regard, the
Chamber acknowledged that the Claimant asserted that the Respondent had
further informed him that his contract was not enforceable.
7.
The members of the Chamber observed that it has remained undisputed that the
Respondent had bought a flight ticket to S for the Claimant dated 18 January
2011 with no return date. The DRC further noted that on multiple occasions, the
Claimant contacted the Respondent in order to be given the return flight to N of
23 January 2011, which was allegedly promised to him in order to fulfil his
obligations.
8.
On the other hand, the members of the Chamber noted that the Respondent
claims that the Claimant acted unprofessionally and was absent without leave as
from 17 January 2011. In addition, the Chamber noted that the Respondent had
sent notice multiple times to the Claimant that he should return to the club, but
highlighted that said notices were sent only after the Claimant lodged his claim in
front of FIFA against the Respondent.
9.
In view of the above, the DRC observed that the Respondent was aware of the
departure of the Claimant on 18 January 2011, as it was the party who had
provided the flight ticket to the Claimant. The Chamber noted in continuation
that in spite of a valid employment contract, the Respondent only provided the
Claimant with a one-way flight ticket to S, and failed to provide any return flight
for the Claimant in spite of his multiple, validly documented, reminders.
10.
In view of the aforementioned facts, coupled with the observation that the
Respondent only sought out the services of the Claimant after the latter had
lodged a claim against the Respondent in front of FIFA, the DRC agreed, as
claimed by the Claimant, that the Respondent was not interested in the player’s
services any longer.
11.
As a consequence of all the aforementioned allegations combined with the
documentation provided by the Claimant in accordance with art. 12 par. 3 of the
Procedural Rules, the Chamber established that the Respondent had refused to
accept the Claimant’s services in accordance with the employment contract
without any valid reason. Such conduct constitutes, in the Chamber’s view, a clear
breach of contract without just cause.
12.
Accordingly, the Chamber decided to reject the Respondent’s allegations and that
the Respondent is to be held liable for the early termination of the employment
contract without just cause.
Player A, country S / Club B, country N
5/8
13.
Having established the above, the members of the Chamber turned their attention
to the question of the consequences of the Respondent’s liability for the early
termination of the contract without just cause.
14.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant is entitled to receive compensation from the Respondent for the
early termination of the employment contract without just cause. In this regard,
the members of the Chamber recalled that the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the
basis of the dispute at hand, 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.
15.
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 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 hand.
16.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract, a criterion
which was deemed by the Chamber to be essential.
17.
Bearing the foregoing in mind, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract and
concluded that the Claimant would have received a total remuneration of xxx
990,000 had the contract been executed until its expiry date. In this regard, the
Chamber highlighted that, in the absence of any pecuniary value in the
employment contract relating to accommodation as well as the fact that the
contract does not include any entitlement to food allowances, accommodation
and food allowances, as claimed by the Claimant, cannot be taken into
consideration in the determination of the amount of compensation.
18.
Furthermore, with regards to the Claimant’s claim relating to bonuses, the
members of the Chamber stressed that the payment and the amount of such
bonuses were linked to matches to be played in the future, i.e. after the early
termination of the relevant contract and, therefore, are fully hypothetical.
Accordingly, the Chamber decided that such bonuses cannot be taken into
consideration in the determination of the amount of compensation.
19.
The Chamber therefore concluded that the amount of xxx 990,000 serves as the
basis for the determination of the amount of compensation for breach.
Player A, country S / Club B, country N
6/8
20.
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 mitigate his loss of income. According
to the constant practice of the Dispute Resolution Chamber, remuneration
provided for by 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. The members of the
DRC noted that according to the Claimant’s declaration, he had not been able to
sign an employment contract with another club during the relevant period of
time.
21.
In this context, the Chamber further took into account that, although the relevant
employment contract was fully valid and enforceable, the execution thereof had
actually never started. The Chamber deemed that such circumstance must be
taken into consideration in the calculation of the amount of compensation for
breach of contract and decided to reduce the aforementioned amount of xxx
990,000 to xxx 330,000.
22.
Consequently, on account of all the aforementioned considerations and
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of xxx 330,000 to the Claimant as compensation for breach of
contract in the matter at hand.
23.
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 partially accepted.
2.
The Respondent, B, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract amounting to
Moroccan Dirham (xxx) 330,000.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
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 consideration and a formal
decision.
4.
Any further claim lodged by the Claimant is rejected.
Player A, country S / Club B, country N
7/8
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player A, country S / Club B, country N
8/8