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,
A, country D,
represented by xxxxxx
as Claimant
against the club,
B, country T
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 8 August 2012, the player from D, A (hereinafter: the player) and the club from T,
B (hereinafter: the club) signed an employment contract valid as from 8 August 2012
until 31 May 2013.
2.
The contract provided the club with an option to extend the contract until the end of
the 2013/2014 season under the same terms and conditions as the previous season.
This option was applied by the club on 1 April 2013.
3.
In accordance with the employment contract, the player was inter alia entitled to the
following remuneration for the 2012/2013 season:
a. a sign-on fee to be paid in cash in the amount of EUR 40,000;
b. a monthly EUR 8,750 for eight months from September 2012 until May 2013;
c. EUR 10,000 for the month of February 2013.
4.
In light of the extension of the contract, it follows that the player was inter alia
entitled to receive the following remuneration for the 2013/2014 season:
a. a sign-on fee to be paid in cash in the amount of EUR 40,000;
b. a monthly EUR 8,750 for eight months from September 2013 until May 2014;
c. EUR 10,000 for the month of February 2014.
5.
On 19 November 2013, the player formally put the club in default of amounts
allegedly owed to him in the amount of EUR 57,500 (i.e. sign-on fee due on 10 August
2013 of EUR 40,000, EUR 8,750 owed on 30 September 2013 and 31 October 2013).
6.
On 26 November 2013, the club formally unilaterally terminated the contract on the
basis that the player suffered from an injury for which the recovery lasted for more
than six months, and in virtue of article 27 of the Professional Players’ Status and
Transfers Regulations of the Football Federation of T as per a decision taken by the
board of directors of the club the previous day.
7.
On 28 January 2014, the player lodged a claim in front of FIFA against the club for
breach of contract asking that he be paid EUR 57,500 in outstanding remuneration
and a further EUR 120,000 in compensation for breach as well as the imposition of
sporting sanctions on the club plus 5% interest p.a..
8.
The player explains that he suffered an injury for which he had to have an MRI scan
on 15 July 2013, he then received treatment and allegedly played until 1 October
2013. On 13 November 2013, the player underwent another MRI scan which clarified
that the player would need surgery. The club and the player agreed on 15 November
2013 that the player would receive treatment abroad and return to the club on 2
January 2014.
Player A, country D / Club B, country T
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9.
The player claims that he was not paid from 1 August 2013 and put the club in default
on 19 November 2013. The player alleges that on 29 November 2013, the club
announced that it had terminated the employment contract with the player on its
website and he received notice of unilateral termination of the employment contract
by and from the club on 1 December 2013. Despite having sent, on 2 December 2013,
a letter of protest to the club, the player received no further communication or
payment of any kind.
10.
In spite of FIFA’s pertinent request, the club did not respond to the claim or make any
statement during the course of the investigation.
11.
The player informed FIFA that he had not signed any further employment contract
until 1 July 2014.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 28 January
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. 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 from D and a club from T.
3.
Furthermore, the Chamber analysed which edition of the 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 28
January 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 Dispute Resolution Chamber and the applicable regulations
having been established, the Chamber entered into the substance of the matter. The
Chamber started by acknowledging the aforementioned facts of the case as well as
the documentation contained in the file. In this respect, the Chamber recalled that
the parties had signed an employment contract and its extension making it valid as
from 8 August 2012 until 31 May 2014.
Player A, country D / Club B, country T
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5.
In continuation, the members of the Chamber noted that the Claimant lodged a claim
against the Respondent maintaining that the Respondent had terminated the
contract without just cause on 1 December 2013, and this, in spite of having
previously formally put the Respondent in default on 19 November 2013 as a result of
alleged failure in paying the Claimant’s remuneration. In this respect, the Claimant
asserts having not received the sign-on fee and two monthly salary instalments.
Consequently, the Claimant asks to be awarded the aforementioned outstanding
sums as well as the payment of compensation for breach of the employment contract
without just cause.
6.
The Respondent, for its part, failed to present its response to the claim of the
Claimant, in spite of having been invited to do so. Consequently, the Chamber
deemed that the Respondent had renounced to its right of defence and had therefore
accepted the allegations of the Claimant.
7.
As a consequence of the aforementioned consideration, the members of the Chamber
concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision
shall be taken on the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
8.
The failure of the Respondent to present its response to the claim notwithstanding,
the members of the Chamber noted that the Respondent had terminated the contract
on 1 December 2013 on the basis that the player had suffered an injury for which the
recovery lasted over six months.
9.
In this respect, the Chamber acknowledged, in accordance with its well established
jurisprudence, that an injury or health condition of a player cannot be a valid reason
to cease the payment of a player’s remuneration and even less a basis for the
termination of an employment contract.
10.
In accordance with the employment contract, the Respondent, in addition to the signon fee of EUR 40,000, was obliged to pay the Claimant EUR 26,250 at the time the
contract was terminated, i.e. on 1 December 2013, amounting to the salaries of
September, October and November 2013.
11.
On account of the aforementioned considerations, in particular those to be found in
points II.7, II.8 and II.9 above, the Chamber established that the Respondent failed to
remit to the Claimant the total amount of EUR 66,250 without a valid reason.
Consequently, and considering that the Respondent had been in breach of its
contractual obligations towards the Claimant and had based its termination of the
contract on an injury, the members of the Chamber decided that the Respondent did
not have just cause to unilaterally terminate the employment contract on 1 December
Player A, country D / Club B, country T
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2013 and that as a result the Respondent is to be held liable for the early termination
of the employment contract without just cause.
12.
In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract without just cause, the Chamber
focused its attention to the consequences of such a termination. In this regard, the
members of the Chamber determined that the Respondent is not only to pay the
amount of EUR 66,250 as outstanding remuneration to the Claimant, but also to pay
compensation for breach of contract in conformity with art. 17 par. 1 of the
Regulations.
13.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the matter at hand. In
this regard, the members of the Chamber first 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 present
dispute, with due consideration of 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.
14.
In application of the relevant provision, the Chamber held that it first had to clarify
whether the pertinent employment contract contained a provision by means of which
the parties had previously agreed on an amount of 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 employment
contract at the basis of the matter at stake.
15.
Consequently, 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 non-exhaustive enumeration of
the criteria to be taken into consideration when calculating the amount of
compensation payable.
16.
Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of monies payable to the player under the terms of
the employment contract until 31 May 2014. Consequently, the Chamber concluded
that the amount of EUR 53,750 (i.e. remuneration from 1 December 2013 until 31 May
2014) serves as the basis for the determination of the amount of compensation owed
for breach of contract.
Player A, country D / Club B, country T
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17.
In continuation, the Chamber verified 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 able to reduce his loss of income. According to the
constant practice of the DRC, remuneration under a new employment contract shall
be taken into account in the calculation of the amount of compensation due for
breach of contract in connection with the player’s general obligation to mitigate his
damages. The Chamber noted that according to the Claimant’s declaration, he had
not been able to sign an employment contract with another club during the relevant
period of time.
18.
Consequently, on account of all the aforementioned considerations and specificities
of the case at hand, the members of the Chamber decided that the Respondent must
pay the amount of EUR 53,750 to the Claimant as compensation for breach of
contract in the matter at hand.
19.
In addition, taking into account that Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the outstanding
remuneration and on the amount of compensation due as of the date the claim was
lodged, i.e. 28 January 2014.
20.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B, 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 66,250
plus 5% interest p.a. as from 28 January 2014 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
EUR 53,750 plus 5% interest p.a. on said amount as from 28 January 2014 until the
date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
aforementioned numbers 2. and 3. plus interest 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.
Player A, country D / Club B, country T
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6.
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 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 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 D / Club B, country T
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