Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 July 2015,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), 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.
On an unspecified date, the player from country B, Player A (hereinafter player
or Claimant), and the club from country D, Club C (hereinafter club or
Respondent) signed an employment contract (hereinafter contract) valid as
from 10 July 2012 until 31 May 2015, i.e. three sporting seasons.
2.
According to art. 3 of the contract, the player was entitled to the following
remuneration:
A total amount of EUR 700,000 for the sporting season
2012/2013,composed of a signing-on fee in the net amount of EUR
200,000 as well as ten equal monthly salaries of EUR 50,000 net each,
payable as from 30 August 2012 until 30 May 2013;
A total amount of EUR 700,000 for the sporting season 2013/2014,
composed of a down payment in the net amount of EUR 200,000
payable on 1 July 2013 as well as ten equal monthly salaries of EUR
50,000 net each, payable as from 30 August 2013 until 30 May 2014;
A total amount of EUR 700,000 for sporting season 2014/2015,
composed of a down payment in the net amount of EUR 200,000
payable on 1 July 2014 as well as ten equal monthly salaries of EUR
50,000 net each, payable as from 30 August 2014 until 30 May 2015.
3.
On 6 May 2013, the player lodged a claim before FIFA against the club for
compensation for breach of contract. In this context, the player requested that
the club be ordered to pay him the following amounts, totalling EUR 1,750,000
net:
4.
EUR 250,000 corresponding to the remaining value of the player’s
remuneration for the first sporting season, calculated as from January
2013 up and until May 2013 included;
EUR 700,000 corresponding to the entire player’s remuneration for the
second sporting season;
EUR 700,000 corresponding to the entire player’s remuneration for the
third sporting season;
EUR 100,000 as damages for the loss of a chance to receive additional
incomes based on contractual bonuses, such as match bonuses or
ranking bonuses;
5% interest p.a. to be applied on the aforementioned amounts;
An (unspecified) allowance for the player’s legal expenses.
In his statement of claim, the player explained that as the team’s results were
not satisfactory, the club’s management decided to hire a new coach on 18
October 2012. However, and according to the player, the club’s new coach was
not interested in the player’s profile.
Player A, country B/ Club C, country D
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5.
Additionally, and whereas the player was earning one of the highest salaries
of the club, the club would have taken the decision to diminish the club’s
aggregate payroll.
6.
In this context, the club informed the player as well as the media of its
intention to put an end to the contract signed with the player and that,
alternatively, and should the player refuse to leave, he would have to play
with the club’s B team. Eventually, and on 29 December 2012, the club
published on its Facebook account the information that the contract signed
with the player was officially terminated. The player further specified in this
respect having obtained a confirmation of said news by the club over the
phone.
7.
In this context, the player stressed that for his part, he always fully complied
with all his obligations.
8.
On the other hand, the player underlined that the club’s announcement, i.e.
“we have separated our paths with [the player]” does not refer to any reason
for the termination of the contract. In the player’s opinion, the club’s
termination of the contract is not based on any just cause and stands as a
violation of the FIFA Regulations, in particular art. 14 of the Regulations on
the Status and Transfers of Players. Accordingly, the club shall be ordered to
pay compensation to the player.
9.
In spite of having been invited to present its position in relation to the player’s
claim, no reply was received from the club.
10.
On 31 January 2013, the player and the club from country B, Club E, signed an
employment contract valid until 30 June 2013. According to said contract, the
player was to receive a monthly remuneration in the gross amount of EUR
70,000. According to the player, the aforementioned corresponds to a net
monthly salary of EUR 37,345 and totals EUR 186,725 net over five months.
11.
The aforementioned contract further contains an automatic renewal clause for
two additional sporting seasons, i.e. until 30 June 2015, and in accordance with
which the player would receive a gross monthly remuneration of EUR 60,000
during the sporting season 2013/2014 as well as during the sporting season
2014/2015. According to the player, the aforementioned corresponds to a net
monthly salary of EUR 32,010 and totals EUR 384,120 net over twelve months.
Player A, country B/ Club C, country D
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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, he took note that the present matter was submitted to
FIFA on 6 May 2013. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: the Procedural Rules) is 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 and par.
2 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 employmentrelated 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 (edition 2015), and considering that the present claim was lodged on 6
May 2013, the 2012 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. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the documentation available on 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.
In this respect, the DRC acknowledged that on an unspecified date, the parties
to the present dispute signed an employment contract that entered into force
on 10 July 2012 and was to expire on 31 May 2015, in accordance with which
the Respondent would pay the Claimant a total guaranteed remuneration in
the amount of EUR 2,100,000 over three sporting seasons, i.e. EUR 700,000 per
sporting season.
6.
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 within said time limit, the DRC was
Player A, country B/ Club C, country D
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of the opinion that the Respondent renounced its right of defence and, thus,
accepted the allegations of the Claimant.
7.
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 already on file; in other
words, upon the statements and documents presented by the Claimant.
8.
In this context, the Chamber acknowledged that it had to examine whether
the reasons surrounding the termination of the contract by the Respondent, if
any, could justify the termination of the contract in the present matter.
9.
In this respect, the Chamber first of all recalled that as it did not present any
response to the claim lodged against it, the Respondent never brought any
justification regarding its apparent unilateral decision to early terminate the
employment contract signed with the Claimant.
10.
Equally, the Chamber observed that in the document by means of which the
Respondent disclosed to the Claimant/public that the contract the parties had
signed was terminated, the Respondent did not bring forward any explanation
of any kind in support of its decision.
11.
On account of the above, the Chamber decided that the Respondent had no
just cause to unilaterally terminate the employment relationship between the
Claimant and the Respondent and, therefore, concluded that the Respondent
had terminated the employment contract without just cause on 29 December
2012. Consequently, the Respondent is to be held liable for the early
termination of the employment contact without just cause.
12.
Having established the above, the Chamber turned its attention to the
question of the consequences of the unilateral termination of the employment
contract by the Respondent without just cause on 29 December 2012.
13.
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.
Player A, country B/ Club C, country D
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14.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the contracts at the basis of the present dispute
contain 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 contracts at the basis of the
matter at stake.
15.
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. In
this regard, the Dispute Resolution Chamber emphasised beforehand that each
request for compensation for contractual breach has to be assessed by the
Chamber on a case-by-case basis taking into account all specific circumstances
of the respective matter.
16.
In order to estimate the amount of compensation due to the Claimant in the
present case, the members of the Chamber first turned their attention to the
remuneration and other benefits due to the Claimant under the existing
contracts 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.
17.
On the basis of the contract signed by the Claimant and the Respondent,
which was to run for two and a half seasons more, i.e. until 31 May 2015, after
the breach of contract occurred, as well as the claim of the Claimant, which
includes the total amount of EUR 1,650,000 in relation to his guaranteed
remuneration until the end of the 2014/2015 season, the Chamber concluded
that the amount of EUR 1,650,000 serves as the basis for the final
determination of the amount of compensation for breach of contract.
18.
Indeed, and as regards the Claimant’s claim relating to the estimated loss of
EUR 100,000 for matches and ranking bonuses relating to the upcoming
seasons, 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, and as per its long standing and well-established
jurisprudence, the Chamber decided not to include said claim in the calculation
Player A, country B/ Club C, country D
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of the amount of compensation to be received by the Claimant and, more
generally, to reject such claim.
19.
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.
20.
The Chamber recalled that, on 31 January 2013, the player signed an
employment contract with the club from country B Club E, valid until 30 June
2015, in accordance with which the player was to receive a net monthly salary
of EUR 37,345 during the five months pertaining to the sporting season
2012/2013 and a net monthly salary of EUR 32,010 during both the sporting
seasons 2013/2014 and 2014/2015. This employment contract therefore
enabled the Claimant to earn an income of EUR 954,965 (i.e. 5 months x EUR
37,345 plus 24 months x EUR 32,010) until 30 June 2015, which is only one
month more than the initial duration of the contract signed with the
Respondent.
21.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand as well as the Claimant’s general obligation
to mitigate his damage, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay the amount of EUR
695,035. 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. 6 May 2013, until the date of effective payment.
22.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal expenses in accordance with art. 18 par. 4 pf the
Procedural Rules and its constant practice.
23.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
rejected
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.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 695,035 plus 5%
interest p.a. as from 6 May 2013 until the date of effective payment.
3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, 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.
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 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:
Player A, country B/ Club C, country D
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Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B/ Club C, country D
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