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 31 January 2012, the player from country B, Player A (hereinafter: the player), and
the club from country D, Club C (hereinafter: the club), signed an employment
contract valid as from 31 January 2012 until 31 May 2014.
2.
In accordance with the employment contract, the player was inter alia entitled to
receive the following remuneration:
3.
a.
for the second half of the 2011/2012 season, a total of 20,000 as follows:
i. 5,000 payable as an advance;
ii. 15,000 divided by 15 matches, i.e. 1,000 per match.
b.
for the 2012/2013 season, a total of 80,000, as follows:
i. 30,000 payable as an advance;
ii. 50,000 divided by the number of league matches.
c.
for the 2013/2014 season, a total of 120,000, as follows:
i. 50,000 payable as an advance;
ii. 70,000 divided by the number of league matches.
The contract further provides that each match is paid within 45 days following four
completed matches, under the following conditions: the player is
a. entitled to 100% if the player is in the starting eleven;
b. entitled to 75% if the player enters during the course of a match;
c. entitled to 50% if the player is named in the squad but does not play. ¨
4.
The contract provides in its article 8: the parties have the obligation to immediately
declare to the Football Federation of country D and to each other via registered post
of any kind of modification to their respective addresses. Otherwise the notifications
made to addresses in the present contract will be deemed to be valid.
5.
On 13 February 2014, the player lodged a claim before FIFA against the club asking
that he be paid outstanding remuneration in the amount of 76,734 and compensatory
damages for the unilateral breach of the contract by the club without just cause in the
amount of EUR 500,000, as well as the imposition of sporting sanctions on the club.
The player does not claim interest.
6.
The player states that he was not paid 2,250 for the 2011/2012 season; a further 4,484
for the 2012/2013 season; and 70,000 for the 2013/2014 season. Indeed, regarding the
2013/2014 season, the player claims that he was paid the advance of 50,000 on 14
October 2013 but received no other amount.
Player A, country B / Club C, country D
Page 2 of 9
7.
According to the player, all members of the club were invited to participate in the
mid-season training camp on 5 January 2014. On 4 January 2014, the player was
allegedly told his services were no longer required and he needn’t re-join the squad.
On 5 January 2014, the player was allegedly informed that he should go back to the
club and terminate his contract as well as waive his rights to any claim or financial
compensation, and to return to country B.
8.
The player claims that approximately a week later, the club provided him with a
lawyer who would help him find a new club under the condition that he waives his
rights. The player refused and found his own legal representation. His new
representative was allegedly told that the club had found the player a new club to
which he could be transferred (without specifying which one) and they would
facilitate his departure if he waived his rights. The player claims that after another
refusal by him, the club threatened to unilaterally terminate the contract and was told
that the player could initiate proceedings in front of whatever jurisdiction he wanted.
9.
The player states that when he inquired regarding the issues he was having with the
renewal of his resident’s permit, the club replied that this was conditioned by the
termination of the contract as well as the waiving of all rights and claims against the
club.
10.
The club allegedly threatened to have the player deported as he was no longer legally
on the territory, and finally acted upon the threat and submitted a missing persons
report. He claims to have been informed of the missing persons report on 27 January
2014. In this regard, the player states that the club could have in no way considered he
was a missing person as he was allegedly in constant contact with the club over the
phone.
11.
Without specifying a date, the player then claims he was informed of the unilateral
termination of the contract by the club.
12.
The player further claims that he was racially abused and insulted by the club.
13.
In its reply to the player’s claim, the club asserts that all references to racial abuse are
false, and it asks the Dispute Resolution Chamber to reject the claim for compensation.
14.
In continuation, the club asserts that the player was absent without justification from
5 January 2014 until 8 January 2014. Despite his absence, the club allegedly prepared a
new training program and warned the player of the termination of the contract in
case he was still absent, which it sent to the address mentioned in the contract on 10
January 2014. The player never received it because the address provided in the
contract was allegedly not accurate. After having seen the sending of the notification
of the training program fail, the club allegedly called the player as from 12 January
2014 and reminded him of his obligations and the legal consequences of his failure to
Player A, country B / Club C, country D
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attend training, although they were never allegedly able to reach him. They claim he
was to return on 22 January 2014 to the club, which he allegedly did not do. The club
claim that in virtue of clause 8 of the contract (cf. point 4 above) and his multiple
absences, the player has breached the employment contract.
15.
The club acknowledges it knew about the expiration of player’s resident’s permit, and
claims that the player had not initiated any procedure to extend it, and did not
provide the club with the necessary documentation and information to facilitate the
task. As a consequence, the club filed a missing persons report on 22 January 2014
with the police in order to find the player.
16.
The club claims that his absence from training, his not providing details for resident’s
permit extension and the fact they had to initiate proceedings with the police provides
all the necessary evidence to prove that the player had had no contact with the club.
17.
On 28 January 2014, the club deemed it had just cause to terminate the contract. For
information only, it had sent a statement to FIFA explaining the reasons for the
termination of the contract.
18.
The club asks that the DRC establish that the player was absent as from 1 January 2014
until 28 January 2014 without justification and that he breached article 8 of the
employment contract, thereby rendering the actions of the player a breach of contract
without just cause.
19.
The club adds that regarding the claim that the player had been informed that his
services were not required, he did not submit any proof or evidence relating to that
statement. In continuation, the club asserts that even if the claims relating to the
statement that his services were no longer required were true, he still has the
obligation to be present at training unless there exists a written document from an
administrative body which states to the contrary.
20.
Finally, the club alleges that all salaries and other financial obligations have been
fulfilled by it. In addition, it denies the player was pressurised into terminating his
contract and to waive his rights and claims against the club.
21.
The club state that it deems it has terminated the contract with just cause and asks
that all procedural costs be borne by the player. It asks the Dispute Resolution
Chamber to reject the claim.
22.
The player indicated that he had not signed any professional contract but had,
between 5 March 2014 and 20 April 2014, been playing for the club from country F,
Club E, as an amateur. The player provided FIFA with a statement dated 22 April 2014
from the aforementioned club from country F stating that the club “confirms that the
Player A, born 25.09.1993, is not under contract with Club E”.
Player A, country B / Club C, country D
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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 13 February 2014.
Consequently, the Rules governing the procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (2012 edition; 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 (2015 edition) 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 country B and a club from country D.
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 (2015 edition), and considering that the present claim was lodged on 13
February 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. The DRC however 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.
5.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid from 31 January 2012 until 31 May 2014.
6.
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 in January 2014 after having informed the Claimant that his services
were no longer necessary and allegedly refused his participating in training. The
Claimant asserts that he was not paid 2,250 for the 2011/2012 season, a further 4,484
for the 2012/2013 season and 70,000 for the 2013/2014 season, and asks to be awarded
the aforementioned outstanding sums in addition to EUR 500,000 as compensatory
damages for unilateral breach of contract by the club without just cause.
7.
The Respondent, for its part, states that it had paid all amounts due and asserts that
the player was unjustifiably absent from 5 January 2014 until 28 January 2014 and did
Player A, country B / Club C, country D
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not return after that date. In addition, the members of the Chamber noted that the
Respondent considered it had just cause to terminate the employment contract on the
basis of the absence of the Claimant as well as the Claimant’s failure to update his
address, as was prescribed in the contract.
8.
In view of the foregoing, the DRC deemed that the underlying issue in this dispute,
considering the claim of the Claimant and the allegations of both parties, was to
determine whether the contract had in fact been unilaterally terminated by the
Respondent on 28 January 2014 and if so, whether the latter had had just cause to do
so.
9.
In this context, the members of the Chamber took note that the letter of 28 January
2014 (cf. point I.17 above) was sent only to the FIFA administration and was not
notified to the Claimant, as explained by the Respondent in its reply. The DRC also
noted that neither the Claimant nor the Respondent had provided any other
consistent document establishing the termination of the contract in writing by any of
the parties. Furthermore, it was also established by the Chamber that it had remained
undisputed by either party that the player had not provided his services for the club
from 5 January 2014.
10.
From the aforementioned considerations and the unavailability of any consistent
documentation establishing the exact date of the termination of the contract by any
of the parties, the members of the Chamber established that the undisputed date
from which the Claimant did not provide his services for the Respondent, i.e. 5 January
2014, shall be considered as the termination date of the contract. In this regard, the
DRC established that the Claimant had stopped executing his obligations as from 5
January 2014, thereby concluding that the Claimant had terminated the contract on 5
January 2014.
11.
In continuation, having established that the termination of the contract can be
attributed to the Claimant, the DRC analysed whether said termination was with or
without just cause.
12.
Consequently, the Dispute Resolution Chamber recalled the basic principle of burden
of proof as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a
party claiming a right on the basis of an alleged fact shall carry the respective burden
of proof. The Claimant therefore had to provide evidence that he had indeed been
excluded from training, that he had been authorised to be absent from 5 January 2014
or that he had had a just cause to unilaterally terminate the employment contract on
that date.
13.
In relation to the aforementioned burden of proof, the members of the Chamber
noted that the Claimant had failed to substantiate his assertion that the Respondent
had breached the employment contract by showing no interest in his services and
refusing his attendance at training from 5 January 2014. Furthermore, the Chamber
Player A, country B / Club C, country D
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duly noted that the Respondent not only denied the Claimant’s accusations, but also
provided evidence that it at least tried to contact the player during his absence
between 5 and 28 January 2015, requesting that he resume training. In view of the
foregoing, the Chamber deemed that in the absence of any evidence provided by the
Claimant in support of his allegation, said allegation could not be upheld.
14.
In continuation the DRC, having established that the Claimant did not provide any
evidence of his exclusion from training, sought to determine whether the Claimant
had just cause to terminate the contract on the basis of outstanding salaries. The DRC
recalled that according to the Claimant, for the 2011/2012 season the amount of 2,250
had remained outstanding, and that for the 2012/2013 season the amount of 4,484
had also remained outstanding; totalling the amount of 6,734. At this point, the
members referred once again to the principle of burden of proof and stated that the
Respondent had to prove that the payments allegedly made had indeed been
executed. In this context, the Chamber noted that the Respondent had failed to
provide any proof of payment of the aforementioned amounts, which were claimed as
outstanding by the Claimant.
15.
The members of the Chamber further noted with regards to the 2013/2014 season that
the Claimant acknowledged having been paid the amount of 50,000, but claimed that
the Respondent failed to pay him the amount of 70,000 (cf. point I.2.a.ii above). In this
respect, the DRC referred to the wording of the contract and noted that no specific
pay dates were established for the payment of the 70,000. In this regard, having
previously recalled the basic principle of burden of proof, the DRC noted that the
Claimant had provided no substantiating evidence to establish that any portion was
due before he terminated the contract.
16.
The members of the Chamber noted that they were unable to establish with any
certainty whether the amount of 70,000 due for the 2013/2014 was partially,
completely, or even outstanding at all. The Chamber therefore concluded that, based
only on the outstanding amounts described in point II.14 above, the Claimant had
terminated the employment relationship without just cause and would therefore not
be entitled to any compensation.
17.
Consequently, the members of the Chamber concluded that the termination of the
employment relationship can be attributed to the Claimant as a result of his
unjustified absence as from 5 January 2014, acknowledging that the Claimant was
undoubtedly owed outstanding remuneration of 6,734 at the time, corresponding to
amounts owed for the seasons 2011/2012 and 2012/2013.
18.
Notwithstanding the foregoing, the Chamber deemed it appropriate to further
analyse the wording of the employment contract, in particular with regard to the
amount of the Claimant’s remuneration for the 2013/2014 season. In this regard, the
Chamber noted that, as per the contract, the “total payment agreed” for the
Player A, country B / Club C, country D
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2013/2014 season amounted to 120,000, with 50,000 to be paid at the start of the
season and 70,000 payable in parts, per match. The Chamber further noted that the
contract also establishes that, even though the “total payment agreed” by the parties
is 120,000 for the 2013/2014 season, 70,000 of it was made conditional to the player’s
participation in matches. Bearing in mind that the Respondent can unilaterally decide
upon the Claimant’s participation in a match and as a consequence, unilaterally reduce
the “total payment agreed” by the parties for the season, the DRC considered such a
clause to arbitrary and unilateral in nature and is therefore to be considered
unenforceable. Therefore, the members of the Chamber determined that the Claimant
was entitled to receive a pro-rata sum calculated on the basis of the seven months he
had provided his services for the Respondent before leaving, in the total amount of
40,833.
19.
In addition, the members of the Chamber noted that the Respondent did not present
any evidence in respect of the payments it sustains having made. In view of the above,
the DRC concluded that the Respondent had failed to pay to the Claimant all amounts
agreed upon between the parties in the agreement dated 31 January 2012, to which
the Claimant was entitled up until the date of termination. Consequently and in
accordance with the general legal principle of pacta sunt servanda, the Respondent
must fulfil its obligations as per the employment contract concluded with the
Claimant, and is to be held liable to pay the outstanding amounts due to the Claimant
for the 2011/2012 season (i.e. 2,250), the 2012/2013 season (i.e. 4,484) and the amount
of 40,833 for the 2013/2014 season (cf. point 18 above); for a total of 47,567.
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, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of 47,567 within
30 days as from the date of notification of this decision.
3.
In the event that the aforementioned sum is not paid by the Respondent within
the stated time limit, 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 FIFA’s Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player A, country B / Club C, country D
Page 8 of 9
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the 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 B / Club C, country D
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