Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 15 July 2016,
by Theo van Seggelen (Netherlands), DRC judge
on the matter between the player,
Player A, country B
as Claimant
and the club,
Club C, formerly known as Club D, country E
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 13 August 2012, the player from country B, Player A (hereinafter: the
Claimant), concluded an employment contract (hereinafter: the contract) with the
club from country E, Club C, formerly known as Club D (hereinafter: the
Respondent), valid as from 18 August 2012 until the end of the season 2012-2013.
2. According to the second clause of the contract, the Claimant was entitled to the
total amount of USD 32,000, payable every 30 days in 8 instalments of USD 4,000.
3. On 13 August 2013, the Claimant lodged a claim before FIFA against the
Respondent, and requested the payment of the following amounts:
- USD 12,000, corresponding to outstanding salaries as from September until
November 2012, plus 5% interest “as from the maturity date of every and each
missing obligation”;
- USD 4,000, corresponding to the rent amount, from August 2012 until
November 2012 (i.e. 4 months);
- USD 4,200, corresponding to three flight tickets (i.e. 1,400*3);
- USD 20,000, as compensation for breach of contract without just cause, plus
5% interest p.a. as from 30 November 2012, corresponding to the residual
value of the contract (i.e. until May 2013).
4. In addition, the Claimant requested the payment of undetermined moral
damages as a result of not receiving his salaries.
5. Furthermore, the Claimant requested the imposition of sporting sanctions on the
Respondent.
6. According to the Claimant, the Respondent failed to pay his entire salary. In this
regard, he explained that he requested the payment of his salaries several times
to the Respondent, but the latter never acted in order to solve this situation.
7. In view of the above, the Claimant stated that he sent a letter to the FA of
country E on 5 November 2012, by means of which he requested his “release” (in
Spanish, “solvencia de oficio”) in order to be able to work for another club.
8. Despite being invited to do so, the Respondent failed to reply to the claim lodged
by the Claimant.
9. On 4 June 2014, the Football Association of country E confirmed that the
Respondent changed its name for the season 2013-2014 to “Club F”.
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Player A, country B / Club C, formerly known as Club D, country E
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10. Subsequently, on 14 March 2016 the Football Association of country E informed
that the club “Club F” transferred its sporting rights to Club C. In particular, the
Football Association of country E confirmed that Club C overtook all the rights
and obligations of Club D, and that consequently, it must be considered as its
legal successor.
11. Moreover, the Claimant informed FIFA that he concluded a contract with the club
from country G, Club H, valid as from 1 January 2013 until 30 May 2013, which
was terminated on 26 February 2013.
12. According to the information available in the Transfer Matching System (TMS),
the Claimant was entitled to a remuneration in the amount of 40,000 per month
to be paid by Club H.
13. In reference to said contract, the Claimant explained that he had no copy of it,
and underlined that he “has no burden of proof regarding his employment
situation after the breach of the contract” and that “in fact, according to what
indicates FIFA’s jurisprudence, this would only serve to reduce the amount of the
compensation due by the Respondent to [him]”. For this reason, the Claimant
expressed his will to “impugn the deduction that FIFA decision-making bodies
would eventually do as from” his contractual situation following the termination
of the contract.
14. In addition, and according to the information available in the TMS, the 2012-2013
season in country E concluded on 30 June 2013.
II. Considerations of the DRC judge
1. First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was submitted
to FIFA on 13 August 2013. Consequently, the 2012 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand
(cf. art. 21 of the 2012, 2014 and 2015 editions of the Procedural Rules).
2. Subsequently, the DRC judge referred to art. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22
lit. b of the Regulations on the Status and Transfer of Players (edition 2016), the
DRC judge 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 E.
3. In this regard, the DRC judge wished to clarify the status of the Respondent and
its standing in the proceedings. In particular, the DRC judge took note that, on 14
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Player A, country B / Club C, formerly known as Club D, country E
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March 2016, the Football Association of country E confirmed that the Club C
overtook all the rights and obligations of Club D, and that consequently, it must
be considered as its legal successor. Consequently, the DRC judge established that
the Respondent, Club C, formerly known as Club D, has legal standing to be
considered as such.
4. The competence of the DRC judge having been established, the DRC judge
analysed which edition of the Regulations on the Status and Transfer of Players
should be applicable as to the substance of the matter. In this respect, he
confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (editions 2012, 2014, 2015 and 2016), and
considering that the present matter was submitted to FIFA on 13 August 2013, the
2012 edition of the aforementioned regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
5. Having established the foregoing, and entering into the substance of the matter,
the DRC judge continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the
matter. However, the DRC judge emphasised that in the following considerations
he will refer only to the facts, arguments and documentary evidence which he
considered for the assessment of the matter at hand.
6. In this respect, the DRC judge acknowledged that the parties to the dispute had
signed a valid employment contract on 13 August 2012, valid until the end of the
season 2012-2013, i.e. until 30 June 2013 (cf. point I. 14 above), in accordance with
which the Respondent would pay the Claimant a monthly salary in the amount of
USD 4,000.
7. Subsequently, the DRC judge noted that the Claimant lodged a claim against the
Respondent maintaining that he had terminated the employment contract with
just cause on 5 November 2012, since the Respondent allegedly failed to pay the
Claimant’s remuneration. Consequently, the Claimant asks to be awarded his
outstanding dues as well as the payment of compensation for breach of the
employment contract.
8. Moreover, the DRC judge 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, the DRC judge was of the opinion that the
Respondent renounced its right of defence and, thus, accepted the allegations of
the Claimant.
9. Furthermore, as a consequence of the aforementioned consideration, the DRC
judge 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.
10. Within this context, the DRC judge took note that the Claimant considered the
contract as terminated with just cause as from 5 November 2012, on the grounds
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Player A, country B / Club C, formerly known as Club D, country E
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that the Respondent apparently had a debt of USD 12,000 towards him,
corresponding to three months of outstanding salaries.
11. In this respect, the DRC judge was of the opinion that, in accordance with its longstanding and well-established jurisprudence, unless otherwise stipulated by the
parties, salaries are due at the last day of each month.
12. In view of the above, the DRC judge considered that, in particular, the
outstanding salaries requested by the Claimant, respectively fell due on 30
September 2012, 31 October 2012 and 30 November 2012.
13. Consequently, In this regard, the DRC judge concluded that the payment for the
month of November 2012 had clearly not fallen due yet on the date of the alleged
termination, i.e. 5 November 2012.
14. In this respect, the DRC judge wished to emphasize that, according to the
principle of contractual stability, the unilateral termination of a contract must be
considered as an absolute last resort, where, given the particularities of the
situation at stake, it could not be expected that one of the parties could
reasonably continue to be bound by the contractual relationship. In what
concerns financial obligations, one of the consequences of the aforementioned
principle is that only a persistent and substantial non-compliance of these
obligations could justify the unilateral termination of a contract.
15. Moreover, taking into account the documentation presented by the Claimant and
in accordance with art. 12 par. 3 of the Procedural Rules, the DRC judge observed
that the Claimant failed to present sufficient evidence to prove that it previously
put the Respondent in default by means of, for example, a default notice.
Therefore, the DRC judge understood that the Claimant did not provide its
counterparty with an opportunity to remedy the alleged breach.
16. In view of the above, the DRC judge was of the opinion that the Claimant did not
have just cause to prematurely terminate the employment contract with the
Respondent, since there would have been other measures to be taken, in order to
find a remedy to the situation which is at the basis of the termination of the
employment contract by the Claimant.
17. Notwithstanding the above, the DRC judge observed that, considering the lack of
evidence to the contrary, the Respondent had failed to pay the salary of the
Claimant for the months of September 2012 and October 2012, i.e. USD 8,000, in
accordance with the contract.
18. As a consequence, the DRC judge established that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as
per the contract concluded with the Claimant and, consequently, is to be held
liable to pay the outstanding amount of USD 8,000 to the Claimant in relation to
the referred salaries of September 2012 and October 2012.
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Player A, country B / Club C, formerly known as Club D, country E
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19. In addition, taking into consideration the Claimant’s claim, the Chamber decided
to award the Claimant interest at the rate of 5% p.a. on said amounts as of the
day following the day on which said instalments fell due.
20. Moreover, as to the Claimant’s petition on the reimbursement of rent expenses
and flights tickets, the DRC judge decided to reject said requests for a lack of
contractual basis, since both aspects were not stipulated in the contract concluded
by the parties.
21. Subsequently, the DRC judge analysed the request of the Claimant corresponding
to compensation for moral damages. In this regard, the DRC judge deemed it
appropriate to point out that the request for said compensation presented by the
Claimant had no legal or regulatory basis and pointed out that no corroborating
evidence had been submitted that demonstrated or quantified the damage
suffered.
22. Finally, the DRC judge concluded his deliberations by rejecting any further claim
lodged by the parties.
III. Decision of the DRC judge
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, formerly known as Club D, has to pay to the Claimant,
within 30 days as from the date of notification of this decision, outstanding
remuneration in the amount of USD 8,000, plus 5% interest p.a. until the date of
effective payment, as follows:
a.
b.
5% p.a. as of 1 October 2012 on the amount of USD 4,000;
5% p.a. as of 1 November 2012 on the amount of USD 4,000.
3. In the event that the amount foreseen in point 2. plus interest is not paid within
the stated time limit by the Respondent, the matter shall be submitted, upon
request, to the FIFA 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 under point 2. is to be made and to
notify the DRC judge of every payment received.
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Player A, country B / Club C, formerly known as Club D, country E
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Note relating to the motivated decision (legal remedy):
According to art. 58 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 (CAS)
Avenue de Beaumont 2
CH-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 DRC judge:
Marco Villiger
Deputy Secretary General
Enclosed: CAS directives
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Player A, country B / Club C, formerly known as Club D, country E
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