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
Theodore Giannikos (Greece), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player A, country B,
as Claimant/Counter-Respondent
against the club,
Club C, country D
as Respondent/Counter-Claimant
and the club,
Club E, country B
as Intervening Party
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 4 September 2012, the player from country B, Player A (hereinafter: the
Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter:
the Respondent/Counter-Claimant), signed a “protocol” valid for the seasons
2012/2013 and 2013/2014.
2.
According to art. 4 of the protocol, the Respondent/Counter-Claimant undertakes
to pay the Claimant/Counter-Respondent, inter alia, remuneration in the amount
of EUR 600,000 per season, broken down as follows:
a. For the 2012/2013 season:
i.
EUR 70,000 per month, payable until the 20th day of each month, starting
on 20 September 2012 until 20 February 2013;
ii.
EUR 60,000 per month, payable until the 20th day of each month, starting
on 20 March 2013 until 20 May 2013.
b. For the 2013/2014 season:
i.
EUR 60,000 per month, payable on the 20th day of each month, starting
on 20 August 2013 until 20th May 2014.
3.
On 24 April 2013, the Claimant/Counter-Respondent lodged a claim in front of
FIFA against the Respondent/Counter-Claimant for breach of contract without just
cause, requesting the payment of the total amount of EUR 1,273,947.37 plus 5%
interest p.a. as from the date of the claim, broken down as follows:
i.
EUR 895,000 corresponding to “the sum of the salaries that Player A is
entitled to receive for the remaining period of the contract“ (EUR 235,000
as in point I.5. below + EUR 60,000 for May 2013 + EUR 600,000 for season
2013/2014).
Player A, country B / Club C, country D / Club E, country B
Page 2 of 12
ii.
EUR 378,947.36 corresponding to “additional compensation for the
damages caused by the breach of the Contract in the amount
correspondent to six months of salaries”.
iii.
4.
Sporting sanctions on the Respondent/Counter-Claimant.
In his claim, the Claimant/Counter-Respondent states that he fully respected all his
contractual obligations. However, the Respondent/Counter-Claimant failed to pay
him as per the contract; it “is not paying correctly the Players’ wages resulting in a
debt of EUR 235,000”.
5.
On 29 April 2013, the Claimant/Counter-Respondent sent a notice to the
Respondent/Counter-Claimant by means of which he reminded it of its arrears,
underlining that he was entitled to receive the amount of EUR 540,000 to that
date but he only received the amount of EUR 305,000. Therefore, the amount of
EUR 235,000 is outstanding. In addition, the Claimant/Counter-Respondent
informed the Respondent/Counter-Claimant that, in case he would not be paid
within two days, he would refer the matter to FIFA or the Football Federation of
country D.
6.
On 7 May 2013, the Claimant/Counter-Respondent sent a second notice to the
Respondent/Counter-Claimant giving it 24 hours to comply with its contractual
obligations.
7.
On 13 May 2013, the Claimant/Counter-Respondent terminated the employment
contract in writing with immediate effect, alleging that the Respondent/CounterClaimant has not made any payment and underlining the facts mentioned in
points I.5. and I.6..
8.
In its reply to the Claimant/Counter-Respondent’s claim, the Respondent/CounterClaimant complains about the short deadline given by the Claimant/CounterRespondent to comply with its obligations, as well as the moment of their
Player A, country B / Club C, country D / Club E, country B
Page 3 of 12
notification. According to the Respondent/Counter-Claimant, the reminders and
the termination letter were all sent close to a match day. In addition, the
Respondent/Counter-Claimant holds that this case is only “an attempt to unjust
enrichment” underlining that the Claimant/Counter-Respondent sent his claim to
FIFA before the Respondent/Counter-Claimant received any written reminder
from him, which is clearly unfair.
9.
Consequently, the Respondent/Counter-Claimant rejected the Claimant/CounterRespondent’s claim and on 7 June 2013, lodged a counterclaim against him, since
the Claimant/Counter-Respondent had allegedly no just cause to unilaterally
terminate the contract. In particular, the Respondent/Counter-Claimant requested
EUR 895,000 as compensation for the unjustified termination corresponding to
the residual amount of the contract.
10.
Despite
having
been
invited
by
FIFA
to
provide
his
reply
on
the
Respondent/Counter-Claimant’s counterclaim, the Claimant/Counter-Respondent
did not answer.
11.
Also, despite having been invited by FIFA to provide its comments on the present
affair, the intervening party, Club E, did not answer.
12.
Finally,
the
Claimant/Counter-Respondent
informed
FIFA
that
after
the
termination of the contract with the Respondent/Counter-Claimant, he found new
employment with the club from country B, Club E, from 2 January 2014 until 31
December 2014, for which he was entitled to a monthly salary of 10,000. The
Claimant/Counter-Respondent claims to have terminated such contract by mutual
consent on 2 July 2014 and to be ever since unemployed.
Player A, country B / Club C, country D / Club E, country B
Page 4 of 12
II.
1.
Considerations of the Dispute Resolution Chamber
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, it took note that the present matter was submitted to FIFA
on 24 April 2013. Consequently, the 2012 edition of the Rules governing the
procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(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 b) of the Regulations on the Status and Transfer of
Players (editions 2012, 2014 and 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 DRC 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 (editions 2012, 2014 and 2015), and considering that the present claim
was lodged on 24 April 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 arguments and the documentation submitted by the parties. 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.
Player A, country B / Club C, country D / Club E, country B
Page 5 of 12
5.
First of all, the members of the Chamber acknowledged that it was undisputed by
the parties that, on 4 September 2012, they had concluded an employment
contract valid as from the date of signature until the end of the 2013/2014 season
(cf. point I.1.above).
6.
The members of the Chamber acknowledged that the Claimant/CounterRespondent lodged a claim in front of FIFA on 24 April 2013 against the
Respondent/Counter-Claimant seeking payment of the total amount of EUR
1,273,947.37 corresponding to outstanding remuneration and compensation, as
detailed in point I.3. above.
7.
The DRC further observed that, on the one hand, the Claimant/CounterRespondent claims that the Respondent/Counter-Claimant has breached the
contractual relationship without just cause, by failing to pay him in accordance
with the contract (cf. point. I.4. above). In this regard, the Chamber acknowledged
the documentation provided by the Claimant/Counter-Respondent, consisting of
an extract of his bank account, according to which he only received the amount of
EUR 305,000 between 1 November 2012 and 9 April 2013. Therefore the
Claimant/Counter-Respondent deemed that the total amount of EUR 235,000 was
outstanding at the date on which his claim was lodged in front of FIFA. The
Chamber further observed that, by means of his correspondence dated 29 April
and
7
May
2013,
the
Claimant/Counter-Respondent
reminded
the
Respondent/Counter-Claimant of its situation of breach of contract and inviting it
to comply with its obligations. As the Respondent/Counter-Claimant did not react
to such reminders, the Claimant/Counter-Respondent terminated the contract on
13 May 2013.
8.
Subsequently, the DRC noted that, on the other hand, the Respondent/CounterClaimant deemed that the Claimant/Counter-Respondent terminated the contract
without just cause, since he lodged a claim in front of FIFA before the termination
of the contract and only gave it a short notice in his reminders.
Player A, country B / Club C, country D / Club E, country B
Page 6 of 12
9.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant/CounterRespondent and the allegations of the Respondent/Counter-Claimant, was to
determine whether the employment contract had been unilaterally terminated
with or without just cause by the Claimant/Counter-Respondent.
10.
At this point already, and in relation to the documentation provided by the
parties, the Chamber deemed it appropriate to refer the parties to the content of
art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a
right on the basis on an alleged fact shall carry the burden of proof”. In this
particular case, the Chamber pointed out that the Respondent/Counter-Claimant
did not provide any evidence in support of its position.
11.
More specifically, the Chamber entering the analysis of the parties’ arguments,
concurred that the Respondent/Counter-Claimant did not provide any valid reason
not to comply with its obligations towards the Claimant/Counter-Respondent as
per the contract.
12.
Subsequently, the Chamber noted that, on the date of termination, i.e. 13 May
2013, the Claimant/Counter-Respondent should have received the total amount of
EUR
540,000
as
remuneration,
in
accordance
with
the
contract.
The
Claimant/Counter-Respondent however claims and provides evidence that the
Respondent/Counter-Claimant only paid him the amount of EUR 305,000. Thus,
the amount of EUR 235,000, corresponding to more than three monthly salaries,
remained unpaid at the date of termination, in spite of the Claimant/CounterRespondent’s reminders previously sent to the Respondent/Counter-Claimant (cf.
points I.5. and I.6. above).
13.
On account of the above and taking into consideration the Chamber’s
longstanding jurisprudence in this respect, the Chamber decided that the
Claimant/Counter-Respondent had just cause to unilaterally terminate the
contract on 13 May 2013 and that the Respondent/Counter-Claimant is to be held
Player A, country B / Club C, country D / Club E, country B
Page 7 of 12
liable for the early termination of the contract with just cause by the
Claimant/Counter-Respondent.
14.
As a consequence, and in accordance with the general legal principle of pacta
sunt servanda, the Chamber decided that the Respondent/Counter-Claimant is
liable to pay to the Claimant/Counter-Respondent the amounts which were
outstanding under the contract at the moment of the termination, i.e. EUR
235,000 (cf. point I.5. above).
15.
In addition, taking into consideration the Claimant/Counter-Respondent’s request
as well as the constant practice of the Dispute Resolution Chamber in this regard,
the members of the Chamber decided to award the Claimant/Counter-Respondent
interest at the rate of 5% p.a. on the outstanding amount of EUR 235,000 as of
the date of claim, i.e. 24 April 2013, until the date of effective payment.
16.
In continuation, having established that the Respondent/Counter-Claimant is to be
held liable for the early termination of the employment contract with just cause
by the Claimant/Counter-Respondent, the Chamber focused its attention on the
consequences of such termination. In this regard, the members of the Chamber
determined that the Respondent/Counter-Claimant was not only to pay the
amount of EUR 235,000 to the Claimant/Counter-Respondent (cf. point. II.15.
above), but also to pay compensation for breach of contract in conformity with
art. 17 par. 1 of the Regulations.
17.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation
payable
to
the
Claimant/Counter-Respondent
by
the
Respondent/Counter-Claimant 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/Counter-Respondent under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
Player A, country B / Club C, country D / Club E, country B
Page 8 of 12
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
the
Respondent/Counter-Claimant
to
the
Claimant/Counter-Respondent 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 Claimant/CounterRespondent, the Chamber proceeded with the calculation of the monies payable
to the Claimant/Counter-Respondent under the terms of the employment
contract, i.e., until the end of the season 2013/2014 (cf. point I.2. above).
Consequently, taking into account the financial terms of the contract, the
Chamber concluded that the remaining value of the contract as from its early
termination until the regular expiry of the contract amounts to EUR 660,000,
corresponding to the Claimant/Counter-Respondent’s salary from May 2013 until
20 May 2014 (11 salaries of EUR 60,000 each) and that such amount shall serve as
the basis for the final determination of the amount of compensation for breach of
contract.
21.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 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
Player A, country B / Club C, country D / Club E, country B
Page 9 of 12
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.
22.
Indeed, on 2 January 2014, the Claimant/Counter-Respondent found employment
with the club from country B, Club E (hereinafter: Club E). In accordance with the
pertinent employment contract, which has been made available by the
Claimant/Counter-Respondent,
valid
until
31
December
2014,
the
Claimant/Counter-Respondent was entitled to receive a monthly salary of 10,000.
Consequently, the Chamber established that the value of the new employment
contract concluded between the Claimant/Counter-Respondent and Club E for the
period as from 2 January 2014 until end of May 2014 amounted to
approximatively EUR 14,250.
23.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the Claimant/Counter-Respondent to
mitigate his damages, such remuneration under the new employment contract
shall be taken into account in the calculation of the amount of compensation for
breach of contract.
24.
Consequently, on account of all of the aforementioned considerations and the
specificities
of
the
case
at
hand,
the
Chamber
decided
that
the
Respondent/Counter-Claimant must pay the amount of EUR 645,750 to the
Claimant/Counter-Respondent, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
25.
In addition, taking into account the Claimant/Counter-Respondent’s request as
well as the constant practice of the Dispute Resolution Chamber, the DRC decided
that the Respondent/Counter-Claimant must pay to the Claimant/CounterRespondent interest of 5% p.a. on the amount of EUR 645,750 as from 24 April
2013, i.e. the date of claim, until the date of effective payment.
Player A, country B / Club C, country D / Club E, country B
Page 10 of 12
26.
In conclusion, for all the above reasons, the Chamber decided to partially accept
the Claimant/Counter-Respondent’s claim and that the Respondent/CounterClaimant must pay to the Claimant/Counter-Respondent the amount of EUR
235,000 as outstanding remuneration and the amount of EUR 645,750 as
compensation for breach of contract.
27.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant/Counter-Respondent
is rejected and that the counterclaim of the Respondent/Counter-Claimant is
rejected.
*****
III.
Decision of the of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected.
3.
The Respondent/Counter-Claimant,
has to
pay to
the Claimant/Counter-
Respondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 235,000 plus 5% interest p.a. as
from 24 April 2013 until the date of effective payment.
4.
The Respondent/Counter-Claimant,
has to
pay to
the Claimant/Counter-
Respondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 645,750 plus 5%
interest p.a. as from 24 April 2013 until the date of effective payment.
5.
In the event that the amounts due to the Claimant/Counter-Respondent in
accordance with the above-mentioned numbers 2. and 3. plus interest are not
paid by the Respondent/Counter-Claimant within the stated time limits, 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.
Player A, country B / Club C, country D / Club E, country B
Page 11 of 12
7.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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.
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:
Marco Villiger
Acting Deputy Secretary General
Encl. CAS Directives
Player A, country B / Club C, country D / Club E, country B
Page 12 of 12