Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 May 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player N, from country J
as Claimant
against the club,
Club E, from country I
as Respondent
regarding an employment-related dispute
between the parties
1.
Facts of the case
1.
On 17 December 2011, Player N, from country J (hereinafter: player or Claimant),
and Club E, from country I (hereinafter: club or Respondent), concluded an
employment contract valid as from 1 January 2012 until 30 June 2012, according
to which the player was entitled to receive a monthly salary of “currency of
country I .1,99,000”.
2.
On 15 August 2012, the player lodged a claim before FIFA against the club
maintaining that the latter had not respected the agreed contractual
relationship.
3.
According to the player, on 18 December 2011, after signing the contract, he
returned to country J to switch the status of his country I work visa. Subsequently,
on or about 26 January 2012, his work visa had been issued by the Republic of
country I.
4.
On 31 January 2012, the player was allegedly informed by his agent via SMS, that
the required ITC had been applied for and that once the ITC process had been
cleared, an air ticket from country J to country I would be purchased and sent to
him.
5.
After several SMS exchanges between the player and his agent, it was not until
19 April 2012, that the player received an email from the latter stating that “in
the Club E contract there is a clause that the contract is null and void if we fail to
secure Visa and ITC, though we got a VISA but we failed to get ITC for which the
contract is not valid since you were not cleared by country I Football Federation
AND FIFA as a player for Club E. However Club E wants to settle the case by
paying you ticket money and 1 month salary. They shall again bring you back in
June./July when fresh window or season opens”.
6.
In this respect, the player stresses that an employment contract cannot be made
conditional upon the registration of a player; it is the club´s responsibility to
initiate all necessary actions in order to obtain the registration of the player.
7.
In light of the above-mentioned, the player considers the employment contract
concluded between the parties to be valid, legally binding and as result requests
to be awarded the following:
- “payment of 1,194,000 currency of country I in salary;
- interest in an amount not less than 5% per annum in respect to the outstanding
amount;
- sporting sanctions (…)”
Player N, from country J / Club E, from country I
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8.
In spite of having been invited to do so, the club has not presented any reply to
the player´s claim.
9.
Finally, upon FIFA´s request, the player stated that he had not concluded any
employment contract with any other club between January 2012 and July 2012.
*****
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he was
competent to deal with the case at hand. In this respect, the DRC judge took note
that the present matter was submitted to FIFA on 15 August 2012. Consequently,
the DRC judge concluded that the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber,
(hereinafter: the Procedural Rules), is applicable to the matter at hand (cf. art. 21 of
the 2008 and 2012 edition of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 lit. i. in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2012) the DRC judge is competent to deal with the matter at stake, which concerns
an employment–related dispute with an international dimension between a
country J player and an country I club.
3.
In continuation, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (editions 2010 and 2012) and
considering that the present claim was lodged in front of FIFA on 15 August 2012,
the 2010 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, the DRC judge acknowledged that the Claimant and the Respondent had
signed an employment contract on 17 December 2011 valid as from 1 January
2012 until 30 June 2012, according to which the player was entitled to a monthly
salary of “currency of country I 1,99,00”.
Player N, from country J / Club E, from country I
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5.
In continuation, the DRC judge observed that the Claimant alleged that the
Respondent had unilaterally terminated the contract without just cause on 19
April 2012, when he was informed by his agent that the club considered that his
contract was null and void.
6.
The Claimant, upon being informed on 19 April 2012 that his contract was
considered null and void, maintains not to have received any monetary payments
from the club. The DRC judge noted that, in view of all of the above, the
Claimant requested to be awarded payment of currency of country I 1,194,000
corresponding to six months´ salary as from January 2012 up until June 2012.
7.
The Respondent, for its part, in spite of having been invited to do so, failed to
present its response to the claim of the player. In this way, the DRC judge deemed
that the Respondent renounced to its right of defence and, thus, accepted the
allegations of the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the DRC
judge stressed that in accordance with art. 9 par. 3 of the Procedural Rules, he
shall take a decision upon the basis of the documents on file, in other words,
upon the statements and documents presented by the Claimant.
9.
Consequently, the DRC judge concluded that it is uncontested that the
Respondent unilaterally terminated the employment contract.
10.
In continuation, the DRC judge went on to deliberate whether on the basis of the
facts of the present case the Respondent had just cause to prematurely terminate
the employment contract.
11.
In view of the club´s lack of response, the validity of the contract had, as such, not
been contested by the parties, reason for which, the DRC judge firstly focussed his
attention on the question as to whether the non-acquisition of the ITC and the
non-registration of the player in the pertinent football association, could be
deemed as a valid reason not to execute the employment contract concluded by
the parties on 17 December 2011.
12.
In this respect, the DRC judge first and foremost outlined that as soon as an
employment contract is signed between a club and a player, rights and
responsibilities ensue on both sides without being subject to any particular
condition. Having said this, the DRC judge considered relevant to recall past
jurisprudence in accordance with which the validity of an employment contract
cannot be made conditional upon the execution of (administrative) formalities,
such as, but not limited to, the registration of the employment contract with the
national football association, this being the sole responsibility of a club.
Player N, from country J / Club E, from country I
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13.
Bearing in mind that according to Annexe 3 of the Regulations an ITC request
depends on the new club´s application to the new association to register a
professional, the club is actually in the position to prevent the occurrence of the
condition precedent of receipt of an ITC by wilfully choosing not to proceed with
the application of an ITC request. Moreover, the DRC judge emphasised that, as a
general rule, the homologation and/or registration of an employment contract at
a federation does not constitute a condition for its validity.
14.
Consequently and taking into account that the Respondent did not contest that it
had not performed any of its obligations under the employment contract, the
DRC judge decided that such conduct constituted a clear breach of contract and,
accordingly, decided that the Respondent was responsible for the premature
termination without just cause of the employment contract entered into between
the parties.
15.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the DRC judge
focussed his attention on the consequences of such breach of contract. Taking
into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that
the Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract.
16.
In this context, the DRC judge recalled that the Claimant asks to be awarded
payment of six months´ salary as from January 2012 up until June 2012.
17.
Having said this, the DRC judge focussed his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the DRC judge 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.
Player N, from country J / Club E, from country I
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18.
In application of the relevant provision, the DRC judge held that he first of all
had to clarify whether or not 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 DRC judge established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
19.
As a consequence, the DRC judge 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 DRC judge
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.
20.
Equally, and in order to evaluate the compensation to be paid by the
Respondent, the DRC judge took into account, in line with art. 17 par. 1 of the
Regulations, the remuneration due to the Claimant in accordance with the
contract as well as the time remaining on the same contract, as well as the
professional situation of the Claimant after the early termination occurred.
21.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of
the monies payable to the player under the terms of the employment contract.
Consequently, the DRC judge concluded that the amount of currency of country I
1,194,000 (i.e. 6 monthly salaries as from January 2012 until June 2012) serves as
the basis for the final determination of the amount of compensation for breach
of contract.
22.
In continuation, the DRC judge 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.
23.
The DRC judge 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 but nonetheless, considered important to highlight that, although
the employment contract was fully valid and enforceable, the execution of the
contract actually never started, an element which equally should be taken into
consideration in the calculation of the amount of compensation.
Player N, from country J / Club E, from country I
Page 6/8
24.
Consequently, on account of all the above-mentioned considerations and the
specificities of the case at hand, the DRC judge decided to partially accept the
Claimant´s claim and decided that the Respondent must pay the amount of
currency of country I 398,000 plus 5% interest p.a. on said amount as of 17 May
2013 until the date of effective payment, which was considered a reasonable and
proportionate amount of compensation for breach of contract in the case at
hand.
25.
The DRC judge concluded the deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player N, is partially accepted.
2.
The Respondent, Club E, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of currency of country I 398,000
plus 5% interest p.a. on said amount as of 17 May 2013 until the date of effective
payment.
3.
If the aforementioned sum plus interest is not paid within the stated time limit,
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 N, from country J / Club E, from country I
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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 DRC
judge 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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player N, from country J / Club E, from country I
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