Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 July 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Theodore Giannikos (Greece), member
on the matter between the player,
D, from country R
as Claimant / Counter-Respondent
and the club,
Club X, from country T
as Respondent / Counter-Claimant
and the club,
Club Y, from country T
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On an unspecified date, the player D from country from country R (hereinafter: the
Claimant / Counter-Respondent or player), and Club X from country T (hereinafter:
the Respondent / Counter-Claimant or Club X), entered into an employment
contract (hereinafter: the contract) valid as from January 2013 until 31 May 2014.
2.
According to the contract, Club X undertook to pay the player:
- EUR 100,000 in the 2012/2013 season, payable in 5 equal monthly installments of
EUR 20,000;
- EUR 200,000 in the 2013/2014 season, payable in 10 equal monthly installments of
EUR 20,000.
3.
According to the contract, the monthly salaries fell due on the 20 th of each month.
4.
Furthermore, the “Special Provisions” of the contract provided that Club X “will
guarantee our football team to benefit from the applicable contribution system.”
5.
On 1 April 2014, the player lodged a claim against Club X in front of FIFA, alleging
that he had terminated the contract with just cause on 6 June 2013 via a regular
notification, and on 15 July 2013 via “public notary”.
6.
The player explained that, until May 2013, he had received only one monthly
salary of EUR 20,000 and, as a result, he had sent a default letter to Club X on 23
May 2013 requesting payment of the amount of EUR 80,000 within 7 days.
However, according to the player, said default letter remained unanswered,
reason for which he terminated the contract.
7.
As a consequence, the player requested to be awarded the following:
- EUR 80,000 as outstanding remuneration plus interest “from the actual payment
dates”;
- EUR 35,000 as compensation for breach of contract;
- EUR 10,000 as additional compensation for “bad faith and for the bonuses from
which the Claimant has become devoid of”;
- legal costs.
8.
In this context, the player indicated that, on 19 July 2013, he signed a new contract
with the Club Y from country T, earning the total amount of EUR 165,000 between
19 July 2013 and 15 May 2014, “so the loss of the [the player] is EUR 35,000.”
9.
In its reply to the claim, Club X indicated that “Players only need to be paid in
February, March, April and May 2013 are salaries. Our club announced it would
Player D, from country R / Club X, from country T / Club Y, from country T
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pay the players, although players with their own unilateral termination of the
contract has. He had done the unilateral termination charge a fee for the player is
absolutely unacceptable under any name.”
10.
Therefore, Club X deemed that the player acted in breach of the contract and, as a
result, lodged a counter-claim against the player requesting the amount of EUR
50,000.
11.
In reply to the counter-claim, the player held that Club X recognized that 4
monthly salaries were outstanding and that, therefore, it was clear that he had a
just cause to terminate the employment contract with Club X.
12.
In view of Club X’s counter-claim and considering art. 17 par. 2 and 4 of the
Regulations on the Status and Transfer of Players, Club Y was invited to provide its
comments in relation to the present matter; however it failed to do so.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
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 1 April 2014. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21
par. 2 and par. 3 of the 2012 edition 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 R and a country T club,
with the involvement of another country T club.
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 2012) and considering that the present claim was lodged in front of FIFA
on 1 April 2014, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
Player D, from country R / Club X, from country T / Club Y, from country T
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4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation
contained in the file. 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.
5.
First of all, the members of the Chamber acknowledged that it was undisputed
between Club X and the player that they had concluded an employment contract
valid for the period as from January 2013 until 31 May 2014. As to the financial
terms of the contract, the Chamber took note that it had been agreed upon that
Club X would remunerate the player with the total amount of EUR 100,000 for the
2012/2013 season, payable in 5 equal instalments of EUR 20,000 on the 20th of each
month. As for the 2013/2014 season, Club X would pay the player the amount of
EUR 200,000 in 10 equal instalments of EUR 20,000 each.
6.
In continuation, the members of the Chamber noted that the player lodged a
claim against Club X in front of FIFA maintaining that he had terminated the
employment contract with just cause on 6 June 2013, after having previously put
Club X in default by means of a letter sent on 23 May 2013, requesting payment of
the amount of EUR 80,000 within 7 days. However, according to the player, the
aforementioned default letter remained unanswered by Club X.
7.
In this context, the player asserted that at the time he terminated the employment
contract with Club X, the latter had only paid him his salary for the month of
January 2013, whereas the salaries for the months of February to May 2013
remained outstanding. The Chamber duly observed that, as a consequence, the
player requested to be awarded his outstanding remuneration as well as
compensation for breach of contract.
8.
The Chamber observed that Club X, for its part, did not contest that the salaries for
the months of February to May 2013 had not been paid at the time that the player
terminated the contract. Club X merely indicated that it had announced to the
player that it would pay him his salaries and stressed that, therefore, the
termination of the contract by the player was unacceptable. As a result, Club X
deemed that it was in fact the player who had breached the contract and lodged a
counter-claim against him for the amount of EUR 50,000.
9.
On account of the above, the Chamber observed that the fundamental issue in the
present dispute, considering the claim of the player and the allegations of Club X,
is to determine whether the player had indeed a just cause to terminate the
employment contract with Club X on 6 June 2013, as alleged by the player.
Player D, from country R / Club X, from country T / Club Y, from country T
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10.
In this respect, the Chamber reiterated that it had remained uncontested by Club X
that it had failed to pay the player his monthly salaries for February, March, April
and May 2013. Furthermore, Club X did not invoke any valid reason as to why it
had failed to pay these salaries. Indeed, Club X did not provide any documentary
evidence corroborating the allegation that it had announced that it would pay its
players; thus the Chamber could not sustain such allegation (cf. art. 12 par. 3 of the
Procedural Rules). Equally the Chamber observed that Club X had not contested
the fact that it had not responded to the player’s default notice letter dated 23
May 2013.
11.
In view of the foregoing, the Chamber was satisfied that Club X had seriously
neglected its contractual obligations towards the player in a continuous and
repeated manner, i.e. Club X had failed to remunerate the player for a substantial
period of time and had in fact, since the beginning of the contract, only paid the
player one monthly salary. Therefore, the Chamber concluded that Club X was
found to be in breach of the employment contract and that the breach was of such
seriousness that, in line with the Chamber’s long-standing and well-established
jurisprudence, the player had a just cause to unilaterally terminate the contractual
relationship with Club X on 6 June 2013, having previously put Club X in default.
Consequently, Club X is to be held liable for the early termination of the
employment contact with just cause by the player.
12.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract with just
cause by the player.
13.
First of all, the Chamber, reiterating that Club X was responsible for the
termination of the contract with just cause by the player, decided to reject the
counter-claim lodged by Club X against the player.
14.
In continuation, the members of the Chamber concurred that Club X must fulfill its
obligations as per employment contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the Chamber decided that Club
X is liable to pay to the player the remuneration that was outstanding at the time
of the termination i.e. the amount of EUR 80,000, consisting of the four monthly
salaries of February, March, April and May 2013.
15.
Furthermore, and considering the player’s claim for interest, the Chamber ruled
that Club X must pay 5% interest on the amount of EUR 80,000 as from the
respective due dates.
16.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1
of the Regulations, the player is entitled to receive from Club X compensation for
Player D, from country R / Club X, from country T / Club Y, from country T
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breach of contract in addition to any outstanding salaries on the basis of the
relevant employment contract.
17.
In this context, the Chamber outlined that, in accordance with said provision, 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.
18.
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.
19.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by Club X to the player 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.
20.
Bearing in mind the foregoing as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the employment contract until 31 May 2014, taking into account that the
player´s remuneration until May 2013 is included in the calculation of the
outstanding remuneration (cf. no. II./14. above). Consequently, the Chamber
concluded that the amount of EUR 200,000 (i.e. the remuneration for the
2013/2014 season) serves as the basis for the determination of the amount of
compensation for breach of contract.
21.
In continuation, the Chamber remarked that the player had found new
employment with the Club Y from country T. In accordance with the pertinent
employment contract, which has been made available by the player, he was
entitled to receive a total salary of EUR 165,000 during the 2013/2014 season.
22.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the player to mitigate his damages, such
Player D, from country R / Club X, from country T / Club Y, from country T
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remuneration under the new employment contract shall be taken into account in
the calculation of the amount of compensation for breach of contract.
23.
Consequently, on account of all of the above-mentioned considerations, the
Chamber decided that Club X must pay the amount of EUR 35,000 to the player as
compensation for breach of contract.
24.
As regards the player’s claim relating to the estimated loss of EUR 10,000 for
bonuses, the members of the Chamber stressed that the payment and the amount
of such bonuses are linked to matches that were to be played in the future, i.e. to
matches that take place after the termination of the relevant contract, and,
therefore, are hypothetical. Consequently, the Chamber decided to reject this part
of the player’s claim.
25.
Moreover, the Dispute Resolution Chamber decided to reject the player’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.
26.
In conclusion, for all the above reasons, the Chamber decided to partially accept
the player´s claim and determined that Club X must pay to the player the amount
of EUR 80,000 as outstanding remuneration as well as the amount of EUR 35,000
as compensation for breach of contract.
27.
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.
28.
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
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 Club X had occurred
within the first 5 months following the conclusion of the contract and that, as a
result, on 6 June 2013, the player had terminated the contract. Therefore, the
Chamber concluded that, irrespective of the player’s age, the breach of contract by
the Respondent had occurred within the protected period.
Player D, from country R / Club X, from country T / Club Y, from country T
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29.
As a result, by virtue of art. 17 par. 4 of the Regulations and considering that Club
X had been found in breach of an employment contract without just cause, the
Chamber decided that Club X 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. In this
regard, the Chamber emphasized that apart from Club X having clearly acted in
breach of the contract within the protected period in the present matter, Club X
had also on a previous occasion been held liable by the Chamber for the early
termination of the employment contract with the player J from country C (case ref.
nr.; decision rendered on 27 May 2014), which should be considered as an
aggravating circumstance.
30.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
*****
Player D, from country R / Club X, from country T / Club Y, from country T
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, D, is partially accepted.
2.
The Respondent / Counter-Claimant, Club X, has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 80,000, plus 5% interest until the
date of effective payment as follows:
-
5% p.a. as of 21 February 2013 on the amount of EUR 20,000;
5% p.a. as of 21 March 2013 on the amount of EUR 20,000;
5% p.a. as of 21 April 2013 on the amount of EUR 20,000;
5% p.a. as of 21 May 2013 on the amount of EUR 20,000.
3.
In the event that the amount due to the Claimant / Counter-Respondent in
accordance with the above-mentioned number 2. is not paid by the Respondent /
Counter-Claimant within the stated time limit, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration and
a formal decision.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent compensation for breach of contract in the amount of EUR 35,000,
within 30 days as from the date of notification of this decision.
5.
In the event that the amount due to the Claimant / Counter-Respondent in
accordance with the above-mentioned number 4. is not paid by the Respondent /
Counter-Claimant 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 the FIFA Disciplinary Committee for consideration
and a formal decision.
6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
7.
The counter-claim of the Respondent / Counter-Claimant is rejected.
8.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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.
Player D, from country R / Club X, from country T / Club Y, from country T
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9.
The Respondent / Counter-Claimant 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player D, from country R / Club X, from country T / Club Y, from country T
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