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 player,
Player A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 4 September 2012, the Player of Country B, Player A (hereinafter: player or
Claimant), and the Club of Country D, Club C (hereinafter: club or
Respondent), signed an employment contract (hereinafter: contract) valid as of
4 September 2012 until 31 May 2014.
2.
According to Art. 3 of the contract, the club undertakes to pay to the player,
inter alia, the following amounts, payable in Currency of Country D:
- 30,000 on 25 September 2012;
- 3,000 as monthly salary for the season 2012/13;
- 30,000 on 25 September 2013;
- 3,000 as monthly salary for the season 2013/14;
- 4,117 “per match salary for every 1. League of Country D match he takes
part in the first 11 players”;
- 3,087.75 “per match salary for every 1. League of Country D match he
joins the match later”.
3.
On 18 January 2013, the player received notification via the Football
Federation of Country D that the club terminated his contract due to his
alleged low performance.
4.
On 19 December 2014, the player lodged a claim with FIFA against the club for
breach of contract without just cause and requested to be awarded payment
of 90,116.24 as outstanding remuneration plus 5% interest as of 18 January
2013, as follows:
- The “down payment” due on 25 September 2012
30,000
- Salary of September 2012
3,000
- Salary of October 2012
3,000
- Salary of November 2012
3,000
- Salary of December 2012
3,000
- Salary of January 2013 (until termination)
1,800
- Match bonuses (9x 4,117 plus 3x 3,087.75)
46,316.25
Total
90,116.24
Furthermore, the player requested to be awarded the amount of 283,167 as
compensation plus 5% interest as of 31 May 2014, as follows:
- Salary of January 2013 (after the termination)
1,200
- Salaries of February 2013 until 31 May 2014
42,000
- The “down payment” due on 25 September 2013
30,000
- Match bonuses (51 x 4,117)
209,967
Total
283,167
In addition, the player requested to be awarded an amount covering legal
expenses.
Player A, Country B / Club C, Country D
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5.
The player stated that he fulfilled his contractual obligations and that the club
failed to pay his remuneration and terminated the contract between the
parties without a valid reason.
6.
Despite having been invited to do so, the club has not responded to the
player’s claim.
7.
According to the Transfer Matching System (TMS), the player signed an
employment contract valid as from 15 April 2013 until 15 October 2013 with
the Club of Country E, Club F, including a monthly salary of USD 8,000.
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 matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 19 December 2014. Consequently, the Rules governing the procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (edition
2014; hereinafter: 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 of Country B and a Club of
Country D.
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
19 December 2014, the 2014 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
Subsequently, with regard to the fact that the employment contract at the
basis of the present dispute was concluded on 4 September 2012 and that the
Claimant had lodged his claim on 19 December 2014, the DRC considered that
it should examine if the present claim, or any part of it, could possibly be timebarred.
Player A, Country B / Club C, Country D
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5.
In continuation, the members of the Chamber referred to art. 25 par. 5 of the
Regulations, which, in completion to the general procedural terms outlined in
the Procedural Rules, establishes that the decision-making bodies of FIFA shall
not hear any dispute if more than two years have elapsed since the event
giving rise to the dispute arose and that the application of this time limit shall
be examined ex officio in each individual case.
6.
In this respect, the Chamber referred to the claim of the Claimant, according to
which the latter requested, inter alia, outstanding salaries and match bonuses
for the period as from September until November 2012.
7.
On account of the foregoing and considering that the contract did not specify
due dates for the payment of the various remuneration, except for the “down
payment”, the DRC departed from the presumption that remuneration fell due
at the end of each month during which the relevant services were provided by
the Claimant.
8.
Bearing in mind the foregoing, the DRC recalled that the Claimant requested,
inter alia, the payment of outstanding remuneration for the months of
September to November 2012 in the total amount of 72,965.25, consisting of
the amount of 30,000 due on 25 September 2012 and salaries plus match
bonuses for September to November 2012, which, thus, fell due at the end of
these months, respectively.
9.
As a consequence, given that the present claim was submitted to FIFA on 19
December 2014, the DRC concluded that the aforementioned time limit of two
years had elapsed with regard to the said remuneration totalling 72,965.25.
Therefore, the members of the DRC determined that such specific request of
the Claimant was time-barred and, consequently, inadmissible. The Chamber
concluded its reasoning by stating that the Claimant’s other requests were
made within the stated 2 years’ time limit and, therefore, will be further
analysed as to their substance.
10.
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 above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
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.
11.
First of all, the members of the Chamber acknowledged that, on 4 September
2012, the Claimant and the Respondent had concluded an employment
contract valid as from 4 September 2012 until 31 May 2014.
Player A, Country B / Club C, Country D
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12.
In continuation, the members of the Chamber noted that the Claimant lodged
a claim against the Respondent maintaining inter alia that the club terminated
the employment contract without just cause on 18 January 2013.
Consequently, the Claimant asks to be awarded payment of outstanding
receivables as well as compensation for breach of the employment contract
without just cause.
13.
Subsequently, the DRC noted that the Respondent failed to present its
response to the claim of the Claimant, in spite of having been invited to do so.
By not presenting its position to the claim, the Chamber was of the opinion
that the Respondent renounced its right of defence and, thus, accepted the
allegations of the Claimant.
14.
Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall
take a decision upon the basis of the documentation on file.
15.
First and foremost, the Chamber took into account the Respondent’s notice
dated 18 January 2013, sent via the Football Federation of Country D,
addressed to the Claimant, which established that the contractual relation
between the parties was terminated by the club due to the player’s alleged
low performance.
16.
Having established that the Respondent terminated the employment contract
on 18 January 2013, the Chamber turned its attention to the question as to
whether the contract had been terminated by the Respondent with or without
just cause.
17.
In the light of the reason at the basis of the termination of the contract by the
Respondent in the matter at hand, the Chamber wished to emphasise that in
accordance with this Chamber’s longstanding jurisprudence, alleged low
performance of a player cannot be considered a valid reason to unilaterally
terminate an employment contract.
18.
In this context, and in the absence of any other reason for the termination of
the contract by the Respondent, the Chamber concluded that the Respondent
had no just cause to unilaterally terminate the contract on 18 January 2013
and, therefore, decided that the Respondent is to be held liable for the early
termination of the employment contract without just cause.
19.
In continuation, prior to establishing the consequences of the termination of
the employment contract without just cause by the Respondent in accordance
with art. 17 par. 1 of the Regulations, the Chamber held that it had to address
Player A, Country B / Club C, Country D
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the issue of any unpaid remuneration at the moment when the Respondent
terminated the employment relation.
20.
In this regard, the members of the Chamber took into account that at the date
of termination of the contract, i.e. 18 January 2013, the Claimant’s salary of
December 2012 in the amount of 3,000 and 3 bonuses in the amount of 4,117
each for matches played in December 2012 had undisputably fallen due and
remained unpaid by the Respondent without valid reason.
21.
Consequently, on account of the above and in accordance with the general
legal principle of pacta sunt servanda, the Chamber decided that the
Respondent is liable to pay to the Claimant the amount of 15,351 in
connection with the remuneration due to the Claimant in accordance with the
employment contract until its early termination.
22.
In addition, taking into consideration the Claimant’s claim, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. on the amount
of 15,351 as of 18 January 2013.
23.
Having established the above, the Chamber turned its attention to the
question of the consequences of the termination of the employment contract
by the Respondent without just cause on 18 January 2013.
24.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant is entitled to receive compensation for breach of
contract from the Respondent.
25.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract 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 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.
26.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract agreement
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
Player A, Country B / Club C, Country D
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such compensation clause was included in the employment contract at the
basis of the matter at stake.
27.
As a consequence, the members of the Chamber 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 Chamber recalled that said provision provides for a nonexhaustive 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.
28.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
new contract, which criterion was considered by the Chamber to be essential.
The members of the Chamber deemed it important to emphasise that the
wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
29.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
as from the date of termination without just cause by the Respondent, i.e. 18
January 2013, until the original date of expiry, i.e. 31 May 2014, and concluded
that the Claimant would have received remuneration in the total amount of
81,000 had the contract been executed until its ordinary expiry date.
Consequently, the Chamber concluded that the amount of 81,000 serves as the
basis for the final determination of the amount of compensation for breach of
contract in the case at hand.
30.
In this respect, as regards the Claimant’s claim relating to the estimated loss of
209,967 for bonuses relating to the second half of the 2012/2013 season and
the 2013/2014 season, the members of the Chamber stressed that the payment
and the amount of such bonuses are linked to matches to be played in the
future, i.e. after the termination of the relevant contract, and, therefore, are
fully hypothetical. Consequently, the Chamber did not take into consideration
these bonuses while assessing the residual value of the contract. In this regard,
the members, referring to the principle of the burden of proof explicitly
stipulated in art. 12 par. 3 of the Procedural Rules, also stressed that the
Claimant had not submitted any convincing documentary evidence in this
respect.
31.
In continuation, the Chamber 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
Player A, Country B / Club C, Country D
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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.
32.
In this respect, the Chamber recalled that the Claimant had found new
employment with the Club of Country E, Club F, as from 15 April 2013 until 15
October 2013. In accordance with the employment contract signed between
the Claimant and Club F, the Claimant was entitled to a monthly salary of USD
8,000 and therefore received the total amount of USD 48,000, corresponding
to approximately 85,750. In this context, the DRC concluded that the Claimant
mitigated his damages in full for the period between 15 April 2013 and 15
October 2013 and that, therefore, no compensation for breach of contract
should be awarded for this specific period of time, even though the
Respondent has terminated the contract without just cause
33.
Nevertheless, the Chamber noted that the Claimant remained unemployed
during the period of time as of the termination of the contract until 14 April
2013 as well as between 16 October 2013 and 31 May 2014, and that he
therefore had not been able to mitigate his damages during these specific
periods of time.
34.
Consequently, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amount of 33,000 to the
Claimant as compensation for breach of contract.
35.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of compensation as of the date on which the claim was lodged, i.e. 19
December 2014, until the date of effective payment.
36.
In addition, as regards the claimed legal expenses, the Chamber referred to
art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the Chamber decided to reject the
Claimant’s request relating to legal expenses.
37.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
Player A, Country B / Club C, Country D
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted, insofar as it is
admissible.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of 15,351 plus 5% interest p.a. as from 18 January 2013 until the date
of effective payment.
3.
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 33,000 plus 5% interest p.a. as from 19 December 2014 until the
date of effective payment.
4.
In the event that the amounts due to the Claimant 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.
5.
Any further claim lodged by the Claimant is rejected.
6.
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 article 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
Player A, Country B / Club C, Country D
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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:
Markus Kattner
Acting Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D
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