Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 11 June 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Carlos González Puche (Colombia), member
Santiago Nebot (Spain), member
Mohamed Al-Saikhan (Saudi Arabia), member
Zola Majavu (South Africa), member
on the claim presented by the club,
Club A, country B
as Claimant/Counter-Respondent
against the player,
Player C, country D,
as Respondent/Counter-Claimant
and the club,
Club E, country D
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 11 September 2012, the player from country D, Player C (hereinafter: the
Respondent/Counter-Claimant) and the club from country B, Club A (hereinafter:
the
Claimant/Counter-Respondent),
concluded
an
employment
contract,
(hereinafter: the contract), valid as from the date of signature until 30 June 2015.
2.
According to art. 4 of the contract, the Claimant/Counter-Respondent undertakes
to pay the Respondent/Counter-Claimant, inter alia, the following monies:
i.
USD 8,333 as monthly salary;
ii. USD 400,000 as “productivity bonus” per season payable as follow:
Season 2012/2013:
1. USD 250,000 payable at the signature of the contract;
2. USD 150,000 payable on 1 January 2013.
Season 2013/2014:
3. USD 250,000 payable on 1 July 2013;
4. USD 150,000 payable on 1 January 2014.
Season 2014/2015:
5. USD 250,000 payable on 1 July 2014;
6. USD 150,000 payable on 1 January 2015.
iii. a furnished apartment and a car during the duration of the contract.
3.
According to art. 7 of the contract “The player is committed to the sanction rules
provided by the Club. For instance, in case the player extends his leave without
written authorisation of the club, he will incur a delay penalty fixed to the amount
of five hundred American dollars (500 USD) each day delayed”.
4.
On 17 June 2013, the Claimant/Counter-Respondent agreed to loan the
Respondent/Counter-Claimant to the club from country G, Club F (hereinafter:
Club F), for a period of one year, from 1 July 2013 to 30 June 2014. The parties
agreed upon a loan fee of USD 500,000 as well as upon an option of permanent
transfer for an amount of USD 1,000,000.
Club A, country B / Player C, country D / Club E, country D
2
5.
On 22 July 2014, the Claimant/Counter-Respondent lodged a claim against the
Respondent/Counter-Claimant in front of FIFA for breach of contract without just
cause, requesting the payment of EUR 1,000,000 as compensation. Equally, the
Claimant/Counter-Respondent requested the imposition of sporting sanctions on
the Respondent/Counter-Claimant and that all costs of the proceedings be borne
by him.
6.
In its claim, the Claimant/Counter-Respondent holds that after the end of the loan,
the Respondent/Counter-Claimant did not come back to country B. On 4 and 5 July
2014, the Claimant/Counter-Respondent contacted the Respondent/CounterClaimant by email on XXXX to invite him to resume training, but he did not reply.
In
this
context,
the
Claimant/Counter-Respondent
deems
that
the
Respondent/Counter-Claimant unilaterally terminated the contract without just
cause.
7.
On 24 September 2014, the Respondent/Counter-Claimant also lodged a claim in
front of FIFA against the Claimant/Counter-Respondent for breach of contract
without just cause, requesting the payment of the total amount of USD 1,142,000
broken down as follows:
i.
USD 250,000 corresponding to the outstanding instalment due on 1 July
2014 (cf. point 2.ii. above);
ii.
USD 25,000 as outstanding remuneration, corresponding to the salaries
from July to September 2014 (3 x USD 8,333);
iii.
USD 150,000, corresponding to the instalment due on 1 January 2015;
iv.
USD 75,000, corresponding to 9 monthly salaries for the remaining period
of contract;
v.
USD 42,000, corresponding to the costs for the accommodation and the car
until the end of the contract ( [USD 2,500 x 12 = USD 30,000] for the
accommodation plus, [USD 1,000 x 12 = USD 12,000] for the car);
Club A, country B / Player C, country D / Club E, country D
3
vi.
USD 500,000 as compensation for the loss allegedly incurred by the
Respondent/Counter-Claimant due to his impossibility to be hired by a new
club;
vii.
8.
USD 100,000 for image and psychological damages.
In his claim, the Respondent/Counter-Claimant holds that, at the end of his loan
period with Club F, he tried several times to contact the Claimant/CounterRespondent to be informed of the date of the start of the training for the new
season and also to invite the Claimant/Counter-Respondent to proceed to the
formalities to obtain his visa, but the Claimant/Counter-Respondent allegedly did
not react.
9.
The Respondent/Counter-Claimant further holds that the Claimant/CounterRespondent did not pay his salaries as from the month of July 2014 as well as the
instalment due on 1 July 2014 (cf. points 2.i. and 2.ii. above).
10.
Based on the foregoing, the Respondent/Counter-Claimant deems that the
Claimant/Counter-Respondent breached the contract without just cause, since it
expressed its complete lack of interest in maintaining his services for the 2014/2015
season, by not providing him with a return visa and also by hiring new foreign
players and reaching the maximum number of foreigners allowed. In this respect,
the Respondent/Counter-Claimant stated that the Claimant/Counter-Respondent
excluded him from its list of players for the 2014/2015 season, did not renew his
professional license and even started proceedings for the termination of his
contract in front of FIFA, without informing him in advance. Thus, the
Respondent/Counter-Claimant
deems
that
the
Claimant/Counter-Respondent
terminated the contract with him without just cause.
11.
In its reply to the Respondent/Counter-Claimant’s claim, the Claimant/CounterRespondent maintains its claim and holds that the Respondent/Counter-Claimant is
responsible for the termination of the contract since he did not contact the
Claimant/Counter-Respondent, ignored the emails sent to him and did not even
want to provide his address. The Claimant/Counter-Respondent provided an email
Club A, country B / Player C, country D / Club E, country D
4
conversation
between
the
Claimant/Counter-Respondent
and
the
Respondent/Counter-Claimant in which the Respondent/Counter-Claimant wrote
from the email address XXXX on 25 August 2014: “Good morning please I want to
ask you if you don’t need me they should tell “; reply of the Claimant/CounterRespondent dated 5 September 2014 “Good Morning, please we need your
personal
address
as
soon
as
possible.
Thanks”
Respondent/Counter-Claimant
on
the
day:
same
and
“Like
reply
how”.
of
the
Thus,
the
claim,
the
Respondent/Counter-Claimant’s claim should be rejected.
12.
In
his
answer
to
the
Claimant/Counter-Respondent’s
Respondent/Counter-Claimant explains that, at the end of his loan with Club F, he
flew back to country D to rest for few days, and planned to come back to city H to
re-join the Claimant/Counter-Respondent at the beginning of July 2014. According
to the Respondent/Counter-Claimant, he was waiting to receive his flight ticket
and visa from the Claimant/Counter-Respondent, which he did not receive,
therefore, he was blocked in country D. The Respondent/Counter-Claimant
underlines that the Claimant/Counter-Respondent did not provide FIFA with any
document such as travel document or a visa request formular to allow him to
return to country B.
13.
Finally, the Respondent/Counter-Claimant deems that the Claimant/CounterRespondent could contact his agent if it could not reach the Respondent/CounterClaimant himself and also claims that, the Claimant/Counter-Respondent, with its
claim, only intended to hide the fact that already on 16 July 2014, it replaced him
by another foreign player, Player I.
14.
In its final comments, the Claimant/Counter-Respondent maintains that the
Respondent/Counter-Claimant did not contact the Claimant/Counter-Respondent
after his loan and underlines that he violated the contract by returning to country
D, without the Claimant/Counter-Respondent’s permission. In addition, the
Claimant/Counter-Respondent holds that it did not have the Respondent/Counter-
Club A, country B / Player C, country D / Club E, country D
5
Claimant’s address in order to be able to proceed with the formalities to obtain his
visa.
15.
In his final position, the Respondent/Counter-Claimant maintains his previous
argumentation
and
rejects
entirely
the
arguments
presented
by
the
Claimant/Counter-Respondent.
16.
The club from country D, Club E (hereinafter: Club E), the intervening party, denies
having induced the Respondent/Counter-Claimant to breach the contract and
holds not to be affected by the provisions of art. 17 par. 2 and 4 of the FIFA
regulations.
In
this
regard,
Club
E
stressed
that
it
only
hired
the
Respondent/Counter-Claimant on 15 January 2015, which is six months after the
termination of his contract with Club A. In addition, Club E points out that there is
no reason for the Respondent/Counter-Claimant to leave Club A for a small club,
with which he earns two percent of the value of his former contract.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 22 July 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. article 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
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012, 2014 and 2015), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-
Club A, country B / Player C, country D / Club E, country D
6
related dispute with an international dimension between a player from country D
and a club from country B.
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
(editions 2012, 2014 and 2015), and considering that the present claim was lodged
on 22 July 2014, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, it
started to acknowledge the facts of the case as well as the documents contained in
the file.
5.
However, the Chamber 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.
6.
In this respect, the members of the Chamber started by acknowledging the facts of
the case, as well as the documentation contained in the file. The Chamber recalled
that the parties had signed an employment contract valid as from 11 September
2012 until 30 June 2015.
7.
In continuation, the Chamber took note that it is undisputed by the parties
involved that as from 1 July 2013 until 30 June 2014, the Respondent/CounterClaimant was on loan with the club from country G, Club F (cf. point I.4. above).
The Claimant/Counter-Respondent, on the one hand, maintains that the
employment contract was terminated by the Respondent/Counter-Claimant
without just cause as a result of the latter’s absence as from the end of the loan
period. The Respondent/Counter-Claimant, on the other hand, rejects such claim
and lodged a counterclaim on 24 September 2014 against the Claimant/Counter-
Club A, country B / Player C, country D / Club E, country D
7
Respondent maintaining that the latter had acted in violation of its contractual
obligations.
8.
The Chamber highlighted that the underlying issue in this dispute, considering the
conflicting positions of the parties, was to determine whether the employment
contract had been prematurely and unilaterally terminated with or without just
cause by either of the parties. The DRC also underlined that, subsequently, if it
were found that the employment contract was breached by one of the parties
without just cause, it would be necessary to determine the consequences for the
party that is to be held liable for the breach of the employment contract without
just cause.
9.
In continuation, the Chamber, first and foremost, acknowledged that it has
remained undisputed by both parties that the Respondent/Counter-Claimant did
not resume his duty with Club A after the end of his loan with Club F on 30 June
2014. In the absence of any formal termination document issued by either party,
the DRC deemed it appropriate to consider the uncontested initial date of the
player’s absence at the club, i.e. 1 July 2014, as the termination date of the
contract by the Respondent/Counter-Claimant. Having established that the
contract was to be considered as terminated by the Respondent / CounterClaimant on 1 July 2014, the DRC went on to analyse whether the player in fact
had a just cause to unilaterally end his relationship with the club on that date.
10.
In this context, the Chamber noted that, according to the Claimant/CounterRespondent, the Respondent/Counter-Claimant was absent as from 1 July 2014
without its authorisation. The Chamber took due note of the documentation
presented by the Claimant/Counter-Respondent in this regard, i.e. a copy of the
emails dated 4 and 5 July 2014 sent to the Respondent/Counter-Claimant to the
email address XXXX, address from which he later on replied, to invite him to come
back to the club for the trainings as well as a notary statement dated 21 July 2014
which confirmed the Respondent/Counter-Claimant’s undisputed absence as from
1 July 2014 (cf. point I.6. above). In addition, the Claimant/Counter-Respondent
Club A, country B / Player C, country D / Club E, country D
8
asserted that the Respondent/Counter-Claimant never communicated with it or
replied to its emails.
11.
The Respondent/Counter-Claimant, for his part, held that he tried to contact the
Claimant/Counter-Respondent to obtain information on the start date of the
upcoming season as well as for the issuance of his visa, but without success. In
addition, according to him, the club did not pay his salaries as from the month of
July 2014, as well as the instalment due on 1 July 2014, and did not request the
return of his ITC. The members of the Chamber noted that, for these reasons, the
Respondent/Counter-Claimant deemed that the Claimant/Counter-Respondent
breached the contract without just cause, since it expressed its complete lack of
interest in his services for the upcoming season.
12.
In continuation, and referring to art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, the members of the Chamber first took into
account
that
the
Respondent/Counter-Claimant
had
not
presented
any
documentary evidence corroborating his assertion that he tried to contact the
Claimant/Counter-Respondent after the end of his loan, either to request the
issuance of his visa, the return of his ITC or the payment of his remuneration,
which he me mentioned in his counter-claim.
13.
In addition, the members of the Chamber recalled, as stated above, that the
Respondent/Counter-Claimant confirms not having resumed his contract with the
Claimant/Counter-Respondent after the end of his loan on 30 June 2014, but
claims that the Claimant/Counter-Respondent failed to pay him his “productivity
bonus” in the amount of USD 250,000 due on 1 July 2014 (cf. point I.2.ii.5. above)
as well as his monthly salaries for July to September 2014. In this respect, the
Chamber first noted that a player which uncontestably did not return to his club of
origin after the end of a loan cannot possibly be entitled to a “productivity bonus”
due for a period in which he was not even present at the club and could not, in
good faith, justify his absence by the lack of payment of such bonus.
Club A, country B / Player C, country D / Club E, country D
9
14.
In continuation, based also on the uncontested absence of the player as from 1
July 2014, the Chamber considered that his argument pertaining to the nonpayment of his salaries from July to September 2014 must also be rejected, as such
salaries did not fall due prior to the date of termination and could not possibly
justify it.
15.
Equally, the Chamber addressed the Respondent/Counter-Claimant’s argument
that the Claimant/Counter-Respondent did not inform him of the date of the
restart of the team’s training. In this respect, the Chamber deemed that this is not
a valid cause not come back to the club since the contract signed by and between
the parties was valid until 30 June 2015. For this reason, the Chamber considered
that it is the obligation of the Respondent/Counter-Claimant to immediately
return to the club of origin after the end of his loan. In light of the above, the
Chamber concluded that this argument must be rejected.
16.
In addition, the Chamber recalled that the Claimant/Counter-Respondent provided
enough evidence that the Respondent/Counter-Claimant received the emails sent
to him on 4 July, 5 July and 5 September 2014 but did not reply to the first two,
requesting his return, and did not provide his address as requested in the third one
(cf. point I.11. above). At this point, the Chamber deemed it appropriate to point
out that all three emails of the Claimant/Counter-Respondent were sent to the
same email address – i.e. XXXX - ; while the first two reminders remained
unanswered,
the Respondent/Counter-Claimant replied
to the third one,
confirming the correctness of such address. Thus, the members of the Chamber
concluded
that
the
Claimant/Counter-Respondent
indeed
contacted
the
Respondent/Counter-Claimant immediately after the end of the loan, requesting
that he resume his services, whereas the player only contacted the club almost two
months later after the date on which he was supposed to return, asking if the club
was still interested in his services.
17.
Additionally, the Chamber noted that the flight ticket
for which the
Respondent/Counter-Claimant was also allegedly waiting to be able to return to
Club A, country B / Player C, country D / Club E, country D
10
country B was not provided for in the contract. Thus, the Chamber decided that
this argument must be rejected.
18.
On account of the above considerations, the members of the Chamber
unanimously reached the conclusion that the Respondent/Counter-Claimant had
not submitted any evidence that he in fact intended to resume his contract with
the Claimant/Counter-Respondent or that he had a just cause not to do so. In view
of the evidence on file, the Chamber concluded that the Respondent/CounterClaimant had breached the employment contract without just cause on 1 July
2014, by not resuming duty after the end of his loan spell with Club F.
19.
Having established that no amounts had remained unpaid to the player up until
the date of termination, the Chamber focused its attention on the calculation of
the amount of compensation for breach of contract payable by the player to the
club in the case at stake. In doing so, the members of the Chamber firstly
recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless 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
Respondent/Counter-Claimant under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five
years, the fees and expenses paid or incurred by the former club (amortised over
the term of the contract) and whether the contractual breach falls within the
protected period.
20.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable 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.
Club A, country B / Player C, country D / Club E, country D
11
21.
As a consequence, the members of the Chamber determined that the amount of
compensation for breach of contract in the present matter 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, other objective criteria may be taken into
account at the discretion of the deciding body. Furthermore, the Chamber
highlighted that each request for compensation for breach of contract has to be
assessed on a case-by-case basis taking into account all specific circumstances of
the respective matter.
22.
Having said this, the Chamber turned its attention to the remuneration and other
benefits due to the Respondent/Counter-Claimant under the existing contract
and/or the new contract. The members of the Chamber deemed it important to
emphasise that the wording of article 17 par. 1 of the Regulations allows the
Chamber to take into account both the existing contract and any new contract(s)
in the calculation of the amount of compensation thus enabling the Chamber to
gather indications as to the economic value attributed to a player by both his
former and his new club(s).
23.
In this regard, the Chamber noted that, as per the employment contract signed
with the Claimant/Counter-Respondent, the Respondent/Counter-Claimant was
entitled to a total salary of USD 500,000 from the date of termination, i.e. 1 July
2014, until the original end of the contract i.e., until 30 June 2015.
24.
In continuation, the DRC equally took note of the Respondent/Counter-Claimant’s
remuneration with his new club, i.e. Club E, which corresponded to a total amount
of USD 8,100, until the original end of the contract with the Claimant/CounterRespondent.
25.
Taking into account the aforementioned elements the Chamber concluded that
the average remuneration of USD 254,000 for the time remaining of the relevant
contract should be taken into account in the calculation of the amount of
compensation for breach of contract payable to the Claimant/Counter-Respondent.
Club A, country B / Player C, country D / Club E, country D
12
26.
In this respect and notwithstanding the above, the members of the Chamber
however, after considering all the facts of the case, deemed it important to recall
that, although it had considered that the Respondent/Counter-Claimant was to be
held responsible for having terminated the contract without just cause, one should
consider that the Claimant/Counter-Respondent’s behaviour when establishing the
amount of compensation payable for breach of contract without just cause.
27.
First of all, the Chamber noted that after the first warnings sent to the
Respondent/Counter-Claimant in the beginning of July 2014, the Claimant/Counter
Respondent only contacted the player once again to obtain his address (cf. point
I.11. above) nearly two months later. Having said this, the members of the
Chamber also underlined that the Claimant/Counter-Respondent did not appear to
have provided full support to the Respondent/Counter-Claimant with regard to the
issuance of his visa.
28.
On account of all of the above-mentioned considerations, the Chamber decided
that the basic amount of compensation calculated in point II.23. above should be
mitigated and the Respondent/Counter-Claimant must pay the amount of USD
180,000 to the Claimant/Counter-Respondent as compensation for breach of
contract, which was considered a fair and adequate amount of compensation in
the present matter.
29.
Furthermore, in accordance with the unambiguous content of article 17 par. 2 of
the Regulations, the Chamber established that the Respondent/Counter-Claimant’s
new club, i.e Club E, shall be jointly and severally liable for the payment of
compensation.
30.
In this respect, the Chamber was eager to recall that the joint liability of a player’s
new club is independent from the question as to whether this new club has
committed an inducement to contractual breach. This conclusion is in line with the
well-established jurisprudence of the Chamber that was repeatedly confirmed by
the Court of Arbitration for Sport (CAS). Hence, the Chamber decided that Club E
is jointly and severally liable for the payment of the relevant compensation.
Club A, country B / Player C, country D / Club E, country D
13
31.
Finally, the DRC decided that the Claimant/Counter-Respondent’ claim pertaining
to legal costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s longstanding respective jurisprudence.
32.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant/CounterRespondent are rejected and that the counterclaim of the Respondent/CounterClaimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club A, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Player C, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent
compensation for breach of contract in the amount of USD 180,000, within 30
days as from the date of notification of this decision.
4.
The Intervening Party, Club E, shall be held jointly and severally liable for the
payment of the amount mentioned in point II.3. above.
5.
In the event that the amount due to the Claimant/Counter-Respondent in
accordance with the above-mentioned number III.3. is not paid by the
Respondent/Counter-Claimant within the stated time limits, 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.
6.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
7.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant and the Intervening Party immediately and directly of the account
Club A, country B / Player C, country D / Club E, country D
14
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:
Marco Villiger
Acting Deputy Secretary General
Encl. CAS directives
Club A, country B / Player C, country D / Club E, country D
15