Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 August 2013,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player R, from country B
as Claimant
against the club,
Club B, from country R
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 July 2011, Player R, from country B (hereinafter: player or Claimant), and the
Club B, from country R (hereinafter: club or Respondent), signed an employment
contract, valid as of the date of signature until 30 June 2013 (hereinafter: contract).
2.
On 1 July 2011 the parties signed an addendum to the contract (hereinafter:
addendum) valid as of the date of signature until 30 June 2013.
3.
According to the contract, the player was entitled to receive a monthly salary of
currency of country R 740.
4.
In accordance with the addendum, the player was entitled to receive, inter alia, a
signing-on fee of EUR 10,000, EUR 72,000 in twelve equal instalments of EUR 6,000
each between July 2011 and June 2012, EUR 80,000 in twelve equal instalments of
EUR 6,667 each between July 2012 and June 2013, accommodation in the amount of
EUR 250 per month as well as three roundtrip air tickets country B-country R for two
adults and one child.
5.
On 24 July 2012, the player lodged a claim against the club in front of FIFA for
breach of contract requesting that the club be ordered to pay the amount of EUR
163,837, which was detailed as follows:
Half of the signing-on fee
Monthly salary as from September until December 2011
(EUR 6,000 X 4 instalments)
Monthly salary as from January 2012 until July 2012
(EUR 6,000 x 7 months)
Monthly salary as from August 2012 until June 2013
(EUR 6,667 x 11 months)
Rent allowance as from January until June 2012
(EUR 250 x 6 months)
Damages
EUR 5,000
EUR 24,000
EUR 42,000
EUR 73,337
EUR 1,500
EUR 18,000
6.
Furthermore, the player requested to be awarded 5% interest p.a. ‘’over the
outstanding salaries (EUR 24,000) and half of the sign on fee (EUR 5,000) and the
salaries to remain unpaid’’ as of the date on which the claim was lodged.
7.
The player explained that, in December 2011, when he went to country B on
vacation, the club allegedly owed him the total amount of EUR 33,000, relating to
outstanding salaries as of September until December 2011, i.e. EUR 24,000, part of
the advance payment in the amount of EUR 5,000 and EUR 4,000 corresponding to
air tickets and rent allowance.
Player R, from country B / Club B, from country R
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8.
The player sustained that the club failed to pay the air tickets to return from vacation
on 9 January 2012 and that, no longer being interested in his services, the club sent
him a proposal for the cancellation of the employment contract (hereinafter:
proposal), according to which the club would pay him the total amount of EUR
22,000.
9.
The player maintained that, the amount offered by the club being `much lower than
the amount owed’, he did not accept the proposal and requested the air tickets to
return to the club. To substantiate his arguments, the player submitted a copy of an
email he sent to the club, dated 27 January 2012, which states inter alia the
following: ``I don’t agree a rescission without any economical details in the
agreement’’, ``to have an amicable settlement I send you in attachment the
document that I propose for signature’’.
10.
On 17 July 2012 and with the aim of ``obtaining a reasonable and amicable solution’’,
the player put the club in default of payment of the total amount of EUR 33,000.
11.
In spite of having been invited by FIFA to do so, the club did not present any reply to
the player’s claim.
12.
According to the employment contract with his new club, Club A valid as of 7 March
2013 until 27 October 2013, the player was entitled to receive a monthly salary in the
amount of currency of country B 678.
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 24 July 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. art. 21 par. 2 and par. 3 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
conjunction 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 country B Player and a country R club.
Player R, from country B / Club B, from country R
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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 par. 2 of the Regulations on the Status and Transfer of Players (editions
2012 and 2010), and considering that the present claim was lodged on 24 July 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 an addendum valid as of 1 July
2011 until 30 June 2013, in accordance with which the Claimant was entitled to
receive, inter alia, a signing-on fee of EUR 10,000, EUR 72,000 in twelve equal
instalments of EUR 6,000 each between July 2011 and June 2012, EUR 80,000 in
twelve equal instalments of EUR 6,667 each between July 2012 and June 2013,
accommodation in the amount of EUR 250 per month as well as three roundtrip air
tickets country B – country R for two adults and one child.
5.
The members of the Chamber highlighted that the underlying issue in this
dispute was to determine as to whether the contract had been terminated by one
of the parties, and, in the affirmative, as to whether such termination was with or
without just cause. The Chamber also underlined that, subsequently, if it were
found that the contract was terminated without just cause, it would be necessary
to determine the consequences for the party that was responsible for the early
termination of the contractual relation.
6.
In this context, the Chamber acknowledged that, in December 2011, the Claimant
had allegedly left country R to go to country B on vacation and that he was to return
to the Respondent on 9 January 2012.
7.
According to the Claimant, the Respondent failed to provide him with the relevant
air ticket as stipulated in the addendum and sent him a proposal for the cancellation
of the employment contract. Furthermore, the Chamber noted that, on 17 July 2012,
the Claimant had put the Respondent in default of its contractual obligations.
8.
In this respect, the Chamber emphasized that, according to the Claimant, when he
left for vacation in December 2011, the total amount of EUR 33,000, relating to
outstanding salaries as of September until December 2011, i.e. EUR 24,000, part of
the signing-on fee in the amount of EUR 5,000 and EUR 4,000 corresponding to air
tickets and rent allowance were yet to be paid by the Respondent.
Player R, from country B / Club B, from country R
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9.
The Chamber took due note that 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 DRC deemed that the Respondent had renounced its right to
defence and, thus, had accepted the allegations of the Claimant.
10.
Furthermore, 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.
11.
On account of the above circumstances, the Chamber deemed that, by not complying
with its contractual obligation of purchasing an air ticket in order for the Claimant to
return to the club after his vacation on 9 January 2012, which has remained
uncontested by the Respondent, the latter had no longer been interested in the
Claimant’s services. The Chamber felt confirmed in its belief that the Respondent no
longer wished to make use of the Claimant’s services in the light of the explicit
proposal made by the Respondent to the Claimant to terminate the employment
contract.
12.
In addition, the members of the Chamber established that a considerable part of the
Claimant’s remuneration had fallen due and remained outstanding at the time that
the Claimant was to return to render his services to the Respondent in January 2012,
i.e. besides part of the signing-on fee, salaries as of September 2011.
13.
Consequently, the Chamber concurred that the Respondent had seriously neglected
its contractual obligations towards the Claimant and concluded that such conduct
clearly constitutes a breach of contract and, accordingly, the Chamber decided that
the Respondent has produced the premature termination without just cause, on 9
January 2012, of the employment contract and addendum entered into between the
parties on 1 July 2011.
14.
On account of the above, and in accordance with the legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant
the remuneration which was outstanding under the contract at the moment of the
termination; i.e. the total amount of EUR 29,000, corresponding to half of the
signing-on fee (EUR 5,000), as well as salaries as from September 2011 until December
2011 (EUR 24,000).
15.
In addition, taking into consideration the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber, the Chamber decided to
award interest at the rate of 5% p.a. over the amount of EUR 29,000 as of 24 July
2012 until the date of effective payment.
Player R, from country B / Club B, from country R
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16.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract and the addendum without just cause, the Chamber
decided that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is
liable to pay compensation to the Claimant.
17.
Subsequently, the Chamber focused its attention on 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.
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 and/or the addendum
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 and/or the addendum at the basis of the
matter at stake.
19.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
and the addendum for the remaining period of time until 30 June 2013 and
concluded that the Claimant would, in fact, have received EUR 116,837 as
remuneration (as from January 2012 until June 2013) had the contract been
executed until its expiry date.
20.
In continuation, the Chamber assessed 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.
Player R, from country B / Club B, from country R
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21.
In this respect, the Chamber noted that the Claimant signed an employment
contract with the Club A, from country B, valid as of 7 March 2013 until 27 October
2013, under which he was entitled to receive a monthly salary in the amount of
currency of country B 678. However, and regarding the matter at hand, the
Chamber deemed it fit to point out that after the premature termination of the
contract in early January 2012, the Claimant has had opportunities to find a new club
at an earlier stage given that at least two transfer periods had been open and, thus,
the Claimant had been able to mitigate further his loss. Consequently, on account
of all of the above-mentioned considerations and the specificities of the case at
hand, the Chamber decided to partially accept the Claimant´s claim and that the
Respondent must pay the amount of EUR 100,000 to the Claimant as
compensation for breach of contract.
22.
Furthermore, taking into account the Claimant’s petition and the constant
practice of the DRC, the Chamber decided to award the Claimant interest at the
rate of 5% p.a. over the amount of compensation, as from 30 August 2013 until
the date of effective payment.
23.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player R, is partially accepted.
2.
The Respondent, Club B, 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
29,000, plus interest at 5% p.a. as of 24 July 2012 until the date of effective payment.
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 100,000 plus interest at 5% p.a. as of 30 August 2013 until the date of effective
payment.
4.
In the event that the above-mentioned amounts plus interest due to the Claimant
are not paid by the Respondent within the stated time limits, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and decision.
5.
Any further claim lodged by the Claimant is rejected.
Player R, from country B / Club B, from country R
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6.
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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player R, from country B / Club B, from country R
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