Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2013,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Ivan Gazidis (England), 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
arisen between the parties
I.
Facts of the case
1.
The player from country B, Player A (hereinafter: player or Claimant), and the club
from country D, Club C (hereinafter: club or Respondent), entered into an
employment contract valid until 30 June 2013.
2.
The parties also signed a private agreement whereby additional financial
conditions were agreed to.
3.
Moreover, the parties signed a second private agreement in which it was mutually
agreed that “in case of a permit transfer of Player X to another club, or any other
releasing of his contract (till 30/08/2011) the club is obliged to up grate the private
agreement 20.000€ more in 1 installment at 30/05/2011”.
4.
According to the contract, the club agreed to pay/provide to the player, inter alia,
the following:
EUR 826 as salary, payable at the latest at the end of each month, 12
months per year;
5.
EUR 826 as Christmas bonus; EUR 413 as Easter bonus and EUR 413 as
holiday bonus;
EUR 77,500 payable according to the following schedule:
EUR 7,500 on 30 September 2011;
EUR 7,500 on 30 January 2012;
EUR 12,500 on 30 April 2012;
EUR 7,500 on 30 July 2012;
EUR 12,000 on 30 September 2012;
EUR 13,000 on 30 January 2013; and
EUR 17,500 on 30 April 2013.
“Pension contributions and social security expenses, as foreseen by the
law, promptly and fully paid”.
According to the agreement, in addition to the amounts provided for in the
contract, the player would receive, inter alia,:
Season 2011/2012 – EUR 22,500 as follows:
EUR 7,500, until 30 September 2011;
EUR 7,500 until 30 January 2012; and
EUR 7,500, until 30 April 2012.
Player A, country B / Club C, country D
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Season 2012/2013 – EUR 45,000 as follows:
EUR 7,500, until 30 July 2012;
EUR 12,000 until 30 September 2012;
EUR 13,000 until 30 January 2013;
EUR 12,500 until 30 April 2013.
EUR 15,000 as signing-on fee.
6.
By letter dated 9 March 2012, the player terminated the contract, invoking just
cause.
7.
On 9 March 2012, the player filed a claim before FIFA against the club and (i)
requested the DRC to declare that he had terminated the contract and the private
agreement with just cause; (ii) claimed for the payment of an aggregate amount
of EUR 188,522 as follows:
Outstanding remuneration
EUR 4,956 as salaries from October 2011 until February 2012, plus the
Christmas bonus.
EUR 4,500 as pension contributions due between June 2011 and February
2012;
EUR 15,000 as per the amounts due under the contract (EUR 7,500 due on
30 September 2011 and EUR 7,500 due in January 2012);
EUR 35,000 as per the amounts due under the private agreement (EUR 7,500
until 30 September 2011; EUR 7,500 until 30 January 2012 and EUR 20,000
“because of the transfer of the goalkeeper Player X”).
Compensation
EUR 129,066, as the residual value of the contract and the private
agreement.
The player also requests for the reimbursement of proceedings’ and attorney’s
fees.
8.
According to the player, to the date of the claim, he had only received from the
club, the corresponding signing-on fee and three monthly salaries.
9.
By letter dated 5 March 2012 addressed to the club, the player requested the
payment of EUR 59,456 which were allegedly outstanding, however, to no avail.
Player A, country B / Club C, country D
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10.
In spite of having been invited to do so, the club has not presented any reply to
the player´s claim.
11.
On 8 August 2012, the player informed FIFA that he had signed a contract with the
club from country B, Club M, valid as from 15 July 2012 until 30 May 2014,
according to which he was entitled, inter alia, to a monthly salary of EUR 1,200,
plus a signing-on fee of EUR 5,000 for each of the two seasons.
*****
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 9 March 2012. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and par.
3 of the 2008 and 2012 editions 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 and par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), 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 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 and 2010), and considering that the present claim was lodged on 9
March 2012, the 2010 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the 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 as well as a private agreement, both
valid as from 1 August 2011 until 30 June 2013.
Player A, country B / Club C, country D
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5.
In continuation, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that he had terminated the
employment contract with just cause on 9 March 2012, after previously having put
the club in default, since the Respondent allegedly failed to pay the Claimant’s
remuneration. In this respect, the Claimant submits to have only received the
corresponding signing-on fee and three monthly salaries from the Respondent at
the time he terminated the employment contract. Consequently, the Claimant asks
to be awarded his outstanding dues as well as the payment of compensation for
breach of the employment contract.
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, thus, had
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 upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
8.
In accordance with the employment contract and the private agreement, the
Respondent, in addition to the sign-on fee and the first three salaries, was obliged
to pay to the Claimant at the time the contract was terminated by the player, i.e.
on 9 March 2012, the amount of EUR 15,000 due on 30 September 2011, the
amount of EUR 15,000 due on 30 January 2012, and the amount of EUR 4,956 as
salary for the months of October 2011 until February 2012 plus the corresponding
Christmas bonus.
9.
On account of the aforementioned, in particular in view of the considerations
under point II./7. and II./8. above, the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant, until 9 March 2012, date
on which the Claimant terminated the contract, the total amount of EUR 34,956.
Consequently, and considering that the Respondent had repeatedly and for a
significant period of time been in breach of its contractual obligations towards the
Claimant, the Chamber decided that the Claimant had just cause to unilaterally
terminate the employment contract on 9 March 2012 and that, as a result, the
Respondent is to be held liable for the early termination of the employment
contact with just cause by the Claimant.
Player A, country B / Club C, country D
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10.
In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant, the
Chamber focused its attention on the consequences of such termination. In this
regard, the members of the Chamber determined that the Respondent was not
only to pay the amount of EUR 34,956 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.
11.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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.
12.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained 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 such compensation clause
was included in the employment contract at the basis of the matter at stake.
13.
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 non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of
compensation payable.
14.
Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the employment contract until 30 June 2013, taking into account that the
player´s remuneration until March 2012 is included in the calculation of the
outstanding remuneration (cf. no. II./9. above). Consequently, the Chamber
concluded that the amount of EUR 129,066 (i.e. remuneration as from March 2012
Player A, country B / Club C, country D
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until June 2013) serves as the basis for the determination of the amount of
compensation for breach of contract.
15.
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
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.
16.
Indeed, on 15 July 2012, the Claimant found employment with the club from
country B, Club M. In accordance with the pertinent employment contract, which
has been made available by the Claimant, valid until 30 May 2014, the Claimant
was entitled to receive a monthly salary of EUR 1,200 as well as a signing-on fee of
EUR 5,000. Consequently, the Chamber established that the value of the new
employment contract concluded between the Claimant and Club M for the period
as from July 2012 until and including June 2013 amounted to EUR 19,400.
17.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 109,666 to the Claimant, which was to be considered a
reasonable and justified amount of compensation for breach of contract in the
present matter.
18.
In conclusion, for all the above reasons, the Chamber decided to partially accept
the Claimant´s claim and that the Respondent must pay to the Claimant the
amount of EUR 34,956 as outstanding remuneration and EUR 109,666 as
compensation for breach of contract.
19.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
20.
In continuation, the Chamber focused its attention on the further consequences of
the breach of contract in question and, in this respect, addressed the question of
sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates inter alia that, in addition to the obligation to pay
compensation, sporting sanctions shall be imposed on a club found to be in breach
of contract during the protected period.
21.
Subsequently, the members of the Chamber referred to item 7 of the “Definitions”
section of the Regulations, which stipulates, inter alia, that the protected period
Player A, country B / Club C, country D
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shall last “for three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the
28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this respect, the Chamber
took note that the breach of the employment contract by the Respondent had
occurred in the beginning of March 2012. Therefore, the Chamber concluded that
such breach of contract by the Respondent had occurred within the protected
period.
22.
As a result, by virtue of art. 17 par. 4 of the Regulations and also considering that
the Respondent had on a previous occasion been found in breach of an
employment contract without just cause by the Chamber, the Chamber decided
that the Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
23.
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 A, is partially accepted.
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
EUR 34,956.
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 109,666.
4.
In the event that the aforementioned amounts are not paid within the stated time
limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated
time limits and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its consideration and a formal decision.
5.
Any further request filed by the Claimant is rejected
Player A, country B / Club C, country D
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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.
7.
The Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
*****
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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