Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 June 2013,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Johan van Gaalen (South Africa), member
Mario Gallavotti (Italy), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player,
Player D, from country B
as Claimant
against the club,
Club A, from country G
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
In July 2008, the country B player, Player D (hereinafter: the player or the
Claimant), and the country G club, Club A (hereinafter: the club or the
Respondent), concluded an employment contract (hereinafter: the contract)
valid as from 1 July 2008 until 30 June 2010.
2.
Art. 4.4 of the contract provided that the player would be entitled to a total
remuneration of EUR 352,411.16 payable in 18 instalments, as follows:
-
3.
EUR 16,395.94 per month for the period as from 30 August 2008 until 30
May 2009 (10 salary payments);
EUR 23,556.47 per month for the period as from 30 August 2009 until 30
March 2010 (8 salary payments).
On 10 August 2009, the club and player concluded an “agreement” in the
language P, the translated version of which reads as follows:
- 1. The club wishes to terminate the agreement of this player and wished
to lend him for the period 2009-10, for a team which shall be interested in
buying the player.
2. The PLAYER also wishes and accepts the conditions hereof.
3. Both parties agree and execute this lending agreement as follows:
“FIRST: The Player shall have receive from Club A the amount which
supplements the agreement offered by the Club to which he shall be lent,
until it completes the net amount in the agreement the player would have
with Club A within the period 2009-10”.
- “SECOND: The Club shall enter into a new agreement with the player, in
July 2010, with two years term, and the following quantities: For the
period between 2010-11, the free amount of EUR 220,000.00 (…), and for
the period between 2011-12, the free amount of EUR 230,000.00 (…)”
- “THIRD: If any Club appears to hire the player for such period, the player
shall exercise in the Club, receiving the amount set forth in his agreement
on due dates, and if the player acquires his multiple passport, the Club
reactivates the player in the period of transfers of January 2010 as part as
its team”.
4.
On 26 March 2010, the player lodged a claim against the club in front of FIFA
and requested, after amending his claim, a total amount of EUR 188,451.88
composed of the following elements:
- EUR 70,670 as outstanding salaries for the months of August, September
and October 2009;
- EUR 18,060 as outstanding salary for the 23 days worked in November
2009;
Player D, from country B / Club A, from country G
Page 2 of 12
- EUR 99,721.88 as compensation for breach of contract.
5.
Furthermore, the player requested 5% interest p.a. “over the total amount
due, as from the date of payment of each instalment” as well as legal costs
and disciplinary sanctions.
6.
The player explained that he had fulfilled all his obligations in accordance with
the contract, but that the club, in July 2009, informed him that it was no
longer interested in continuing the employment relationship, as he had not
been granted the country P nationality. The player refused the termination of
the contract, however, “was convinced by the club to accept it under some
conditions established on another contract” i.e. the agreement of 10 August
2009. The player indicated that pursuant to the agreement, the club was
“interested in terminating the previous employment contract and in loaning
the player during the 2009/2010 season.”
7.
The Claimant stressed that the agreement of 10 August 2009 stipulated that:
i) If he was not hired by another club during the 2009/2010 season, he would
continue to train with the Respondent and receive his salaries in
accordance with the contract, and
ii) In case the player would obtain a country P passport, he would be officially
reintegrated in the team.
8.
Consequently, and since the Respondent was not able to find him a new club,
the player was requested to continue to render his services to the Respondent.
However, the Respondent did not honour the contract and, on 6 November
2009, the Claimant requested the payment of his salaries for August,
September and October “2010”, which request remained unanswered. Two
further letters were sent in November 2009, which also remained unanswered,
after which the player terminated “his professional relationship” with the club
by means of a letter dated 23 November 2009.
9.
In reply to the claim lodged against it, the Respondent stated that the parties,
on 10 August 2009, decided to terminate the contract of July 2008 by mutual
consent. In this respect, the Respondent submitted another document dated 10
August 2009, addressed to the country G Football Federation called “solemn
declaration”, which was signed by the Claimant and stipulated “I accept the
termination of my contract with mutual consent with [the Respondent]. I also
declare that I do not have, neither I will raise in the future any financial claim
against [the Respondent] regarding regular payments or bonuses after the
payment of 12,000 euros”, which amount was paid to the player on 17 August
2009. The Respondent acknowledged that, on the same day, the parties signed
the “agreement” by means of which the Respondent “undertook the
Player D, from country B / Club A, from country G
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obligation to help the player find a new club and by means of which the terms
of a possible future co-operation between the parties were also agreed”.
10.
In this context, the Respondent first stated that FIFA has no jurisdiction to
decide on the claim based on the agreement dated 10 August 2009, since the
Regulations on the Status and Transfer of Players do not “include disputes
arising from or related to agreement like the one in question”, asserting that
only ordinary civil courts have jurisdiction in this respect.
11.
As to the substance, the club asserted that with the agreement of 10 August
2009 “indeed, the executive director of [the Respondent] and the player
agreed that [the Respondent] would try to find a club for the player to go and
play until the moment he would have been able to return to [the Respondent]
and sign a new employment contract with the club, that is, until the moment
he would receive his country P passport in order to be a community player
since all the foreign players’ positions of [the Respondent] were already taken
or until a position for a foreign player was freed”. The Respondent pointed
out that the Claimant had misled it when he signed the employment contract
reassuring the Respondent that he would obtain the country P nationality by
the end of 2008, which however did not happen.
12.
The Respondent added that the intention of the parties was that the Claimant
would join another club and that, if he obtained his country P passport, he
would return to the Respondent in January 2010. Otherwise, the parties had
agreed upon the terms of a “possible future co-operation” from July 2010
until June 2012. Further, the club stated that the agreement signed on 10
August 2009 is not an employment contract, since “no employment was
agreed and no employment existed following the termination of the
employment contract of 8 July 2008”.
13.
The Respondent continued and stated that “in an effort to help the player and
make him feel more secure following the termination of his employment
contract, [the Respondent] agreed to pay the player, in case no team were to
be found to sign him for the 2009-2010 season, the amount that the player
would have received if his contract had not been terminated and to allow him
to be training with [the Respondent], in order for him to remain fit. However,
it is more than obvious that the said arrangement and agreement of the
parties is not an employment contract, since no employment is established by
the said arrangement”. According to the Respondent, the Claimant only had
the right to participate to the team’s trainings, but no obligation.
14.
Moreover, the Respondent stated that if there was a club willing to sign the
Claimant and the salary offered was lower than the one the Claimant would
have received if his employment contract was not terminated on 10 August
2009, the Respondent agreed to pay an additional amount to the player in
Player D, from country B / Club A, from country G
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order for him to receive the same amount that he would have received if his
employment contact had not been terminated.
15.
In this respect, the Respondent stated that it was in fact the Claimant who had
breached the agreement of 10 August 2009; it had presented several proposals
from other clubs to the player, one of which coming from the country G club
Club L, all of which the player rejected since he “preferred to stay unemployed
and then demanded [the Respondent] to pay him the amounts that he would
have received if the employment contract had not been terminated”. In this
context, according to the Respondent, exemplary for the bad faith of the
Claimant is that he refused to sign a contract with Club L when the
Respondent proposed it to him, but that, later on, he signed an employment
contract valid as from 2 January 2010 until 30 June 2011 with the exact same
club. In this respect, the Respondent submitted a letter received from Club L
dated 18 September 2009 which reads as follows: “We kindly ask you to give
us the player Player D and to inform us of the terms under which you accept
the said transfer”.
16.
Finally, the Respondent alleged that the Claimant is “wrongly asking for the
payment of gross amounts as being net” since the amounts established in the
employment contract are gross amounts. Therefore, 21,2% tax is to be
withheld according to country G legislation.
17.
In his replica, the Claimant firstly indicated that FIFA is competent to hear the
present matter, since the dispute relates to the breach of the employment
contract and not just to a simple agreement. Thereby, the agreement was
subsidiary and linked to the employment contract and clearly stipulated that if
the player would not be hired by another club, he would receive his salaries in
the same conditions as under the employment contract.
18.
As to the merits, the Claimant stressed that he entirely fulfilled his obligations
and even travelled to re-join the squad when the club already owed him 3
salaries in an attempt to avoid the collapse of the employment relationship. As
to the alleged offers made, the Claimant stated that the Respondent only
submitted one letter of Club L in which the latter club merely demonstrates its
“intention in acquiring the player’s rights”.
19.
Furthermore, the Claimant outlined that he never deceived the Respondent by
stating that he had the country P nationality “what would be arranged upon
the signature of the employment contract”. In this respect, the player pointed
out that he played for the team in the first year under the country B
nationality. Moreover, the player indicated that the contract signed with Club
L was only signed after the termination of the employment relationship with
the club.
Player D, from country B / Club A, from country G
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20.
Finally, the player referred to art. 4.4 of the contract and alleged that the total
remuneration to be received should be interpreted as a net amount, since the
contract literally stipulates “Al jugador le será pagada una cantidad total de
352.411,16 (…)”.
21.
In its duplica, the club reiterated its previous position in full, pointing out that:
i)
ii)
iii)
There was no employment relationship as the club had not agreed to
pay the player salaries, but merely an amount equal to the salaries
that he would have received if the employment contract of 8 July 2008
had not been terminated; the player neither rendered his services to
the club, nor had any obligations to the club;
Art. 17 of the Regulations on the Status and Transfer of Players does
not apply to the present matter;
In country G the amounts mentioned in the contracts of the League
and the country G Football Federation are always gross amounts,
unless specifically mentioned as net.
22.
The Claimant informed FIFA that he had signed a contract with Club L valid as
from January 2010 to 30 June 2010 in accordance with which he would receive
EUR 40,000. According to the player, said contract was terminated on 7 May
2010.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, 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 26 March 2010. Consequently, 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 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 shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
In this respect, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies to adjudicate on the present matter,
asserting that the dispute is not an employment-related dispute, but that the
dispute rather derives from the conclusion of an agreement for which only
ordinary civil courts have jurisdiction.
Player D, from country B / Club A, from country G
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4.
The Chamber noted that, in turn, the Claimant insisted on his claim in front of
FIFA, arguing that the present dispute is employment-related and falls under
art. 22 lit. b) of the Regulations on the Status and Transfer of Players
5.
In view of the aforementioned, the Chamber noted that it first had to verify
whether or not the present matter is to be considered an employment-related
dispute that falls under art. 22 lit. b) of the Regulations on the Status and
Transfer of Players and, thus, whether or not FIFA is competent to adjudicate
on the present matter.
6.
In this respect, the Chamber considered that the two agreements signed in
August 2009 had not put an end to the contractual relationship between the
parties, since the Claimant remained bound to the Respondent, with the latter
trying to loan the Claimant to another club. Since no loan was eventually
agreed upon, the Claimant continued to be contractually bound to the
Respondent. In this respect, the Chamber deemed that the conclusion of the
agreement in August 2009 should be considered in light of the employment
contract signed in July 2008, the former being a direct consequence and closely
related to the signing of the latter. In view of the foregoing, the Chamber was
unanimous in its opinion that the present dispute is an employment-related
dispute that falls under the jurisdiction of FIFA.
7.
What is more, the Chamber outlined that there is an arbitration clause for FIFA
by reference, since the Respondent is affiliated to the country G Football
Federation, and, as a consequence, is an indirect member of FIFA and
therefore subject to its Statutes and Regulations. The same applies to the
Claimant, through his registration with the country G Football Federation.
8.
On account of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has
to be rejected, and that the Dispute Resolution Chamber 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.
9.
Subsequently, and entering into the substance of the matter, the Chamber
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,
the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2009, 2010 and
2012) and, on the other hand, to the fact that the present claim was lodged on
26 March 2010. The Dispute Resolution Chamber concluded that, therefore,
the 2009 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.
Player D, from country B / Club A, from country G
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10.
The competence of the Chamber and the applicable regulations having been
established, the members of the Chamber started by acknowledging that, in
July 2008, the Claimant and the Respondent had concluded an employment
contract valid as from 1 July 2008 until 30 June 2010, in accordance with which
the Respondent would pay the Claimant the total amount of EUR 352,411.16
in 18 instalments, as follows:
-
EUR 16,395.94 per month for the period as from 30 August 2008 until
30 May 2009 (10 salary payments);
EUR 23,556.47 per month for the period as from 30 August 2009 until
30 March 2010 (8 salary payments).
11.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the total amount of EUR
188,451.88, asserting that he terminated the employment contract with just
cause in November 2009 after the Respondent had failed to pay him his
salaries for August, September and October 2009.
12.
The Respondent for its part explained the ratio behind the signing of the
contract in August 2009 and deemed that in fact it was the Claimant who had
breached the employment contract by rejecting various loan offers. What is
more, the Respondent held that the Claimant had clearly acted in bad faith by
initially rejecting the offer made from Club L, but later on signing a contract
with the same club.
13.
Finally, the Respondent argued that the Claimant was only entitled to gross
amounts and that it was thus wrongly asking for net amounts.
14.
Taking into account the foregoing positions of the parties, the Chamber first
reiterated, as mentioned in point II./6. above, that the conclusion of the two
agreements in August 2009 did not put an end to the contractual relationship
between the Claimant and the Respondent, since the Claimant remained
bound to the Respondent, the latter trying to loan the Claimant to another
club. However, the Chamber noted that eventually no loan was agreed upon
due to a lack of interested clubs. In this respect, the Chamber wished to stress
that the approach of Club L could not be considered as a concrete offer, but
merely as a first step into negotiations. Further, the Chamber noted that the
Respondent had not submitted any offers from the other clubs allegedly
interested in loaning the Claimant. Hence, and in reference to art. 12 par. 3 of
the Procedural Rules, the Respondent had not proven to the satisfaction of the
Chamber that the Claimant had rejected all the offers allegedly made nor that
the Claimant had acted in bad faith. What is more, the Chamber deemed that,
regardless of the foregoing, the Claimant was also still at liberty not to accept
the relevant offer(s), if not to his liking.
Player D, from country B / Club A, from country G
Page 8 of 12
15.
As a consequence, the Chamber pointed out that the Claimant continued to be
contractually bound to the Respondent and that all parties had to comply with
the respective employment-related obligations as agreed upon in the
agreement and employment contract. In this respect, the Chamber noted that
the Claimant had terminated the contract on 23 November 2009, after having
put the Respondent in default for his outstanding salaries. The Respondent for
its part did not deny that it had not proceeded with the payment of these
salaries.
16.
In view of the foregoing, the Chamber determined that it could be established
that the Respondent had seriously neglected its contractual obligations
towards the Claimant in a continuous and constant manner, i.e. the
Respondent had failed to remunerate the Claimant for a substantial period of
time. Therefore, the Chamber considered that the Respondent was found to
be in breach of the employment contract and that the breach was of such
seriousness that, in line with the Chamber’s long-standing and well-established
jurisprudence, the Claimant had a just cause to unilaterally terminate the
contractual relationship with the Respondent on 23 November 2009.
17.
On account of the above, the Chamber established that the Claimant had
terminated the contractual relationship with just cause on 23 November 2009
and that, consequently, the Respondent is to be held liable for the early
termination of the contractual relationship with just cause by the Claimant.
18.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the contractual relationship
with just cause by the Claimant.
19.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract up until the date of
termination of the contract in accordance with the general legal principle of
“pacta sunt servanda”. Consequently, the Chamber decided that the
Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination of the contract i.e. on 23 November
2009.
20.
At the time of the termination, the Chamber noted that the salaries for
August, September and October 2009 were outstanding, i.e. the total amount
of EUR 70,669. As a result, the Respondent is liable to pay to the Claimant the
amount of EUR 70,699 as outstanding remuneration.
21.
In continuation, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations on the Status and Transfer of Players, the Claimant is
Player D, from country B / Club A, from country G
Page 9 of 12
entitled to receive from the Respondent compensation for breach of contract
in addition to any outstanding salaries on the basis of the relevant contract.
22.
In this context, the Chamber outlined that, in accordance with said provision,
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.
23.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
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 contract at the basis of the matter at stake.
24.
At the time of the termination of the contractual relationship on 23 November
2009, the contract would run for another 8 months, whereas the last salary
would be paid in March 2010. Consequently, the Chamber concluded that the
remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounted to EUR 117,782
and that such amount shall serve as the basis for the final determination of the
amount of compensation for breach of contract.
25.
In continuation, the Chamber remarked that following the early termination
of the contract at the basis of the present dispute the Claimant had found new
employment with Club L, in accordance with which he would be remunerated
with a total amount of EUR 40,000. Consequently, in accordance with the
constant practice of the Dispute Resolution Chamber and the general
obligation of the Claimant to mitigate his damages, such remuneration under
the new employment contract shall be taken into account in the calculation of
the amount of compensation for breach of contract.
26.
In view of all of the above, the Chamber decided that the Respondent must
pay the amount of EUR 77,782 to the Claimant as compensation for breach of
contract, which is considered by the Chamber to be a reasonable and justified
amount as compensation.
27.
In conclusion, the DRC decided that the Respondent is liable to pay the total
amount of EUR 148,451 to the Claimant, consisting of the amount of EUR
70,669 corresponding to the Claimant’s outstanding remuneration at the time
Player D, from country B / Club A, from country G
Page 10 of 12
of the unilateral termination of the contract with just cause by the Claimant
and the amount of EUR 77,782 corresponding to compensation for breach of
contract.
28.
In this respect, the Chamber wished to outline that the Respondent’s
argumentation that the amounts were gross had not been supported by any
documentary evidence, nor did such argument have a contractual basis.
29.
In relation to the Claimants’ request for interest, the Chamber decided that the
Respondent had to pay 5% interest on the amount of EUR 70,669 as from the
respective due dates and on the amount of EUR 77,782 as from 7 June 2013.
30.
As to the Claimant’s request for legal expenses, the Chamber referred to art.
18 par. 4 of the Procedural Rules and decided to reject this part of the
Claimant’s claim.
31.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player D, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club A, 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 70,669.41 plus 5% interest until the date of effective payment
as follows:
a. 5% p.a. as of 31 August 2009 on the amount of EUR 23,556.47;
b. 5% p.a. as of 1 October 2009 on the amount of EUR 23,556.47;
c. 5% p.a. as of 31 October 2009 on the amount of EUR 23,556.47.
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 77,782 plus 5% interest p.a. on said amount as from 7 June
2013 until the date of effective payment.
5.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned 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.
Player D, from country B / Club A, from country G
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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 D, from country B / Club A, from country G
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