Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 12 June 2012,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player V, from country L
as Claimant
against the club,
Club K, from country A
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 15 July 2008, Player V, from country L (hereinafter: the Claimant), and the Club
K, from country A (hereinafter: the Respondent), signed an employment contract
in country A language valid as from the date of signature until 30 June 2010.
2.
According to the employment contract the Claimant was entitled to receive, inter
alia, a monthly salary of currency of country A 5,000.
3.
On 18 March 2010, the Claimant lodged a complaint before FIFA against the
Respondent for breach of contract without just cause and claimed the payment of
the total amount of currency of country A 80,000 or USD 96,000 as compensation,
made up of the salaries from April 2009 until July 2010, i.e. 16 months.
4.
In his arguments, the Claimant pointed out that in April 2009 the Respondent
unilaterally terminated the contract without just cause, expelled him from the
club and forced him to leave country A.
5.
In his support, the Claimant provided a statement allegedly sent to his legal
representative on 1 June 2009, according to which he requests the latter to take
measures against the Respondent due to the lack of settlement for the salaries of
April and May 2009 of USD 6,000 each, as well as to request the amount due until
the end of the contract.
6.
Furthermore, the Claimant provided an English translation of the employment
contract signed between the parties, which mentions that the employment
contract is valid as of 15 July 2008 until 30 July 2010.
7.
In its reply to the claim, the Respondent rejected the claim and provided another
employment contract in English language signed by the parties with the same
contents as the employment contract provided by the Claimant and also valid until
30 June 2010. The Respondent stated that this was the only contract that was
registered at the Association of Football Federations of country A and that
according to this contract, the Respondent fulfilled all its obligations towards the
Claimant. Furthermore, the Respondent stated that the Claimant refused to return
to the Respondent to continue his training in June 2009.
8.
In this respect, the Respondent provided two documents dated 30 January 2009
and an undated document signed by its vice-president and chief accountant,
referring to the player “Player R” according to which “Club K does not have debt
wages Player R” and according to which the latter paid the salary of “6,000” each
as from 19 September 2008 until 15 January 2009 and as from 16 February 2009
until 13 August 2009, respectively.
Player V, from country L / Club K, from country A
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9.
In his replica, the Claimant stressed that the Respondent alleges to have paid his
salary until 13 August 2009 with the supportive documents in its position.
However, said documents were only signed by the representatives of the
Respondent and thus are not supportive evidence that his salary was duly paid
until 13 August 2009 and thus rejects the Respondent’s position.
10.
Furthermore, the Claimant pointed out that the Respondent always paid the
Claimant’s salary in cash and that he only received his salary until 1 April 2009.
11.
Moreover, the Claimant stated that the Respondent was no longer interested in
his services as from 17 May 2009 and therefore the Claimant joined the Finnish
club, Club B, without, however, having signed a contract with the latter, as from 1
September 2009 until 15 October 2009.
12.
In its final position, the Respondent maintained its previous position and stressed
again that in June 2009 the Claimant left the Respondent after not having
returned from his vacation. The Respondent allegedly failed in its attempt to
contact him to urge him to return to the Respondent.
13.
On 15 March 2010, the Claimant found new employment with the Club W, from
country L, valid as from the date of signature until 31 December 2010. According
to said contract, the Claimant was entitled to receive a monthly salary of currency
of country L 5,500.
II.
Considerations of the DRC Judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was submitted
to FIFA on 18 March 2010. Consequently, the 2008 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf.
art. 21 par. 2 and 3 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 2 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations; edition 2010) 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 L player and an country A club.
Player V, from country L / Club K, from country A
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3.
Furthermore, the DRC judge analysed which regulations 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
(edition 2010), and considering that the present claim was lodged on 18 March
2010, the 2009 edition of 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. The DRC
judge started by acknowledging the above-mentioned facts and documentation
contained in the file.
5.
First and foremost, the DRC judge noted that the Claimant claimed that the
Respondent had breached the employment contract concluded between the
parties without just cause and requested the payment of the total amount of
currency of country A 80,000 or USD 96,000 as compensation consisting of the
remaining salaries of April 2009 until July 2010. The Claimant argues that the
Respondent breached the contract, since in April 2009 the latter was apparently
no longer interested in the Claimant’s services and the Claimant had to leave
country A.
6.
The DRC judge acknowledged that the Respondent, on the other hand, considered
that it is the Claimant who breached the contract without just cause, because the
Claimant did not return from his vacations in June 2009 and the Respondent failed
in its attempt to contact him to urge him to return to the Respondent, although
the Respondent allegedly paid the Claimant’s salary until 13 August 2009.
7.
Having established the aforementioned, the DRC judge deemed that the
underlying issue in this dispute, was to determine whether the employment
contract had been unilaterally terminated with or without just cause and which
party was responsible for the early termination of the contractual relationship.
The DRC judge also underlined that subsequently, if it were found that the
employment contract was terminated without just cause by one or the other
party, it would be necessary to determine the financial and/or sporting
consequences for the party that terminated the relevant employment contract.
8.
Bearing in mind the aforementioned, the DRC judge deemed that, first of all, it
had to be established until when the employment contract was to be considered
valid, since the validity of the employment contract was disputed by the parties.
9.
In view of the above, the DRC judge noted that the Claimant requests salaries until
July 2010 based on the English translation of the employment contract provided
by the latter, which states a validity of the employment contract until 30 July 2010.
Player V, from country L / Club K, from country A
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10.
However, the DRC judge noted from the contents of the original employment
contract written in country A language that it mentions the date of 30 June 2010,
this date also being confirmed by the Respondent as being the expiry date of the
employment contract. Moreover, the DRC judge pointed out that the Claimant did
not object to this argument of the Respondent, i.e. the employment contract
being valid only until 30 June 2010, in his replica.
11.
Consequently, the DRC judge held that he would consider the employment
contract to be valid as of 15 July 2008 until 30 June 2010.
12.
In continuation, the DRC judge deemed it fundamental to establish as from when
the contractual relationship between the parties came to an end. In this respect,
the DRC judge turned his attention to the argument of the Respondent, according
to which the Claimant did not return from his vacations in June 2009 despite of
having tried to urge him to return to the Respondent. Moreover, the Respondent
provided two documents, one dated 30 January 2009, and one undated document
signed by its vice-president and chief accountant, referring to the player “Player
R” according to which “Club K does not have debt wages Player R” and according
to which the latter paid the salary of “6,000” each as from 19 September 2008
until 15 January 2009 and as from 16 February 2009 until 13 August 2009,
respectively.
13.
In this regard, the DRC judge recalled the basic principle of burden of proof,
according to which a party claiming a right based on an alleged fact shall carry the
respective burden of proof (art. 12 par. 3 of the Procedural Rules). Consequently,
the DRC judge was of the opinion that the Respondent carried the burden of
proof as regards the alleged argumentation that it does not have any outstanding
financial obligations towards the Claimant and that despite its interests in the
Claimant’s services, the latter did not return from his vacations.
14.
In this respect, the DRC judge noted that the Respondent only provided the abovementioned documentary evidence, which refers to the player “Player R”, this
clearly not being the Claimant. Therefore, the DRC judge decided that the
Respondent could not provide any founded evidence in this matter and could not
support its arguments with any kind of substantiated proof.
15.
In view of all the aforementioned considerations, the DRC judge concluded that
the Respondent has breached the contract without just cause and should
therefore be held liable to pay to the Claimant compensation for the early
termination of contract without just cause.
Player V, from country L / Club K, from country A
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16.
Consequently, the Chamber came to the conclusion that the contractual
relationship was terminated without just cause by the Respondent by the end of
March 2009.
17.
On account of the above, the DRC judge went on to establish the consequence of
the early termination of the contract by the Respondent without just cause, and,
first of all, whether there were, at the moment of termination, outstanding
salaries due to the Claimant by the Respondent.
18.
Considering the Claimant’s claim, the DRC judge noted that it was undisputed that
there were no outstanding salaries, to be paid by the Respondent to the Claimant
by the end of March 2009.
19.
Subsequently, the DRC judge taking into account art. 17 par. 1 of the Regulations,
decided that the Respondent is liable to pay compensation for breach of contract
to the Claimant.
20.
According to 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.
21.
In application of the relevant provision, the DRC judge held that it first of all had
to clarify as to whether 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.
22.
Equally, and in order to evaluate the compensation to be paid by the Respondent,
the members of the DRC judge took into account, inter alia, in line with art. 17
par. 1 of the Regulations, the remuneration due to the Claimant in accordance
with the contract, the time remaining on the same contract as well as the
professional situation of the Claimant after the early termination which occurred.
23.
In this context, the DRC judge took into account that the Claimant would have
been entitled to receive a monthly remuneration amounting to currency of
country A 5,000 until 30 June 2010. Therefore the remaining value of the contract
Player V, from country L / Club K, from country A
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as from the date of breach, i.e. end of March 2009, until 30 June 2010, equals to
currency of country A 75,000.
24.
Furthermore, the DRC judge recognised that the Claimant found new employment
with the Club B, as of 1 September 2009 until 15 October 2009, without however
having signed an employment contract with the latter club. On 15 March 2010, the
player signed a new employment contract with the Club W, from country L, valid
until 31 December 2010. In accordance with the relevant employment contract,
which has been made available by the Claimant, the latter was entitled to receive
until 30 June 2010 the total amount of currency of country L 19,256 equalising to
currency of country A 6,072 and therewith, enabled to reduce his loss of income.
Consequently, according to the constant practice of the DRC, such remuneration
under the new employment contract shall be taken into account in the calculation
of the amount of compensation for breach of contract.
25.
Taking into account all of the above, in particular in view of the original duration
of the contract, the Claimant’s contractual entitlements, his financial claim as well
as the general obligation of the Claimant to mitigate his damage, the DRC judge
concluded that the amount of compensation for breach of contract without just
cause to be paid by the Respondent to the Claimant shall be of currency of country
A 68,928 (currency of country A 75,000 minus currency of country A 6,072) which is
to be considered reasonable and justified as compensation for breach of contract.
26.
On account of all the above, the DRC judge decided to partially accept the
Claimant’s claim and that the Respondent must pay him an amount of currency of
country A 68,928 as compensation for breach of contract.
27.
The DRC judge concluded his deliberations by deciding that any further claims of
the Claimant are rejected.
*****
Player V, from country L / Club K, from country A
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III.
Decision of the DRC judge
1.
The claim of the Claimant, Player V, is partially accepted.
2.
The Respondent, Club K, has to pay to the Claimant within 30 days as from the
date of notification of this decision the amount of currency of country A 68,928.
3.
If the aforementioned sum is not paid within the above-mentioned deadline,
interest at the rate of 5% p.a. will fall due as of expiry of the above-mentioned
time limit and the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for its consideration and a formal decision.
4.
Any further claim filed by the Claimant is rejected.
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.
*****
Player V, from country L / Club K, from country A
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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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player V, from country L / Club K, from country A
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