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 L, from country S
as Claimant
against the club,
Club Y, from country C
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 22 February 2012, Player L, from country S (hereinafter: the Claimant), and
Club Y, from country C (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as from the date of its signature
“until the end of the 2013 country C Super league”.
2.
According to the country C Football Association, the 2013 country C Super
League ended on 3 November 2013.
3.
In accordance with the contract, the Claimant was entitled to receive a signing
fee of EUR 50,000 as well as the following net amounts, due on the 12 th of the
following month:
- EUR 20,000 monthly for the season of 2012;
- EUR 25,000 monthly for the season of 2013, only if the Respondent
agreed to extend the contract with the Claimant.
4.
Art. 5.12 of the contract states that “Party A [the Respondent] may at its sole
discretion reassign party B [the Claimant] to a different position between the
Senior Team and the Reserves Team of the Club to meet the needs of the Club
[…]. During the period of Party B to be sent to the Reserves Team, Party B has
no rights to take the salary as stipulated in the contract, party B only takes
1,500 currency of country C salary by as the currency format of country C of
Reserves Team. Party B should not have the rights to claim on the appeal of
any kinds or demand the compensation”.
5.
Art. 8.4 stipulates that “Party A [the Respondent] shall provide party B [the
Claimant] with training lawn field and other training facilities up to the
standards set forth by country C Football Association.
6.
Art. 16.1 provides that if the Claimant leaves the team without written
permission and thus does not participate in “work, training or competitions
within more than 24 hours”, he will be fined with USD 5,000; if the absence is
for up to 48 hours, the fine will be of USD 10,000 and for every additional 24
hours, the fine will be increased in USD 10,000.
7.
On 12 September 2012, the Claimant lodged a claim against the Respondent in
front of FIFA, indicating that on 13 July 2012, the coach of the Respondent
informed the Claimant that the Respondent had not registered him for the
second part of the 2012 season, since another foreign player was coming to
the team, and so he was not allowed to train with the first team of the
Respondent anymore. According to the Claimant, he was also told that he
should look for another team. The Claimant did not receive further reasons or
instructions, and was not allowed to join the trainings of either teams of the
Player L, from country S / Club Y, from country C
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Respondent. The Claimant asserted that, eventually and in order to keep
himself on a competitive level, he began to train on his own initiative under
inadequate training conditions, without any coach and needed requirements.
In the meantime, he expressed in several letters to the Respondent his
discomfort about his situation, requesting the Respondent to accept him again
in the training sessions and to motivate in writing the decision the Respondent
had taken.
8.
In this respect, the Claimant submitted several letters addressed to the
Respondent dated 23, 25, 27, 31 July and 3 August 2012. In the letter dated 3
August 2012, the Claimant requested the Respondent to provide him with
adequate training requirements prior to 6 August 2012, otherwise he would
immediately take legal measures without another warning.
9.
On 7 August 2012, the Claimant informed the Respondent about the
termination of the contract “with immediate effect and with just cause, due to
the unilaterally breach of the contract by your club for unfulfilled
training/medical requirements, according to the FIFA Regulations on the Status
and Transfer of Players, Art. 14 and 17.1”.
10.
In view of the above, the Claimant asserted that not registering the player
and, in particular, not arranging “the work allowance as a daily training for a
football player means a grave violation of the contractual obligations”.
Therefore, according to the Claimant, the Respondent breached the contract
and the Claimant requested FIFA:
a) to be awarded with the amount of EUR 400,517 plus 5% interest rate p.a.,
calculated as follows:
- EUR 25,517 as outstanding salary related to the Claimant’s salary of
July 2012 and of the days 22 to 29 of February of 2012;
- EUR 375,000 as compensation related to the time remaining under the
contract.
b) to “impose disciplinary sanctions on the Respondent” as the breach of
contract was made during the protected period.
11.
The Respondent, in its response, recognized that, on 12 July 2012, it had
decided not to register the Claimant for the second part of the 2012 season.
However, the Respondent asserted it had offered the Claimant to play for the
second team during the remaining period of the season and, in the season of
2013, the Respondent would register him again in the country C Football
Association, without altering the conditions of the contract. According to the
Respondent, the Claimant “totally agreed with the decision of the club”,
however he changed his mind a few days later and refused to train with the
team. The Respondent emphasized that it never told the Claimant that he
Player L, from country S / Club Y, from country C
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could not train with the team; it even tried to persuade the Claimant to come
and train with the team again.
12.
Regarding the termination of the contract, the Respondent firstly declared
that it only became aware of such termination when the Claimant returned
the keys of his apartment and, in addition, indicated that the Claimant had left
the Respondent without any written “application” or permission, considering
that the Claimant had thus breached the contract. According to the
Respondent, it sent a letter to the Claimant on 7 August 2012 in which it
stated that the Claimant did not attend the training sessions for 7 days and
that, if he did not return before 15 August 2012, the Respondent would have
the right to unilaterally terminate the contract.
13.
Moreover, according to the Respondent, it sent a further letter to the Claimant
on 10 September 2012 stating it did not allow the Claimant to leave and that
by not training with the team, he had breached the contract and the
Respondent’s regulations. Accordingly, the Respondent decided to terminate
the contract as from the date of that notice. Furthermore, in this letter, the
Respondent offered the Claimant to pay him the salaries of July and August
2012, but the Claimant never replied.
14.
Additionally, the Respondent made reference to its right to reserve actions
against the Claimant for an alleged breach of contract.
15.
In his replica, the Claimant explained that he never asked the Respondent for a
mutually agreed termination of the contract as the Respondent alleged. The
Claimant stressed that, on the contrary, the Respondent contacted him
informing him that it would issue the relevant International Transfer
Certificate (ITC) only if the Claimant did not claim any financial titles.
16.
Furthermore, the Claimant declared that he never received the abovementioned correspondence dated 10 September 2012, allegedly sent by the
Respondent by means of which it offered the payment of the salaries of July
and August.
17.
In addition, the Claimant stated that he was never asked by the Respondent to
play for the second team during the remaining period of the season without
altering the conditions of the contract. The Claimant further pointed out that
under the country C regulations, a foreign player who is not registered with
the country C Football Association is not allowed to play for the second team
either.
Player L, from country S / Club Y, from country C
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18.
In response, the Respondent repeated its previous arguments and reiterated its
right to reserve actions against the Claimant “if the player [the Claimant] still
makes this tangle” and provided various figures it could ask from him.
19.
Upon FIFA’s request, the Claimant confirmed he signed a contract with Club R,
from country S, valid as from 28 August 2012 until 30 June 2013. The
remuneration the Claimant was entitled to receive from this new club is EUR
300 per month plus EUR 16,500 paid in three installments as follows: (i) EUR
3,000 payable on 15 September 2012; (ii) EUR 3,000 payable on 1 March 2013
and (iii) EUR 10,500 payable in ten equal monthly installments of EUR 1,050
each, starting in September 2012.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 12 September 2012. Consequently, the previous edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2012), the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
In continuation, the Chamber 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, it referred, on the one hand, to art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2010 and
2012), and, on the other hand, to the fact that the present claim was lodged in
front of FIFA on 12 September 2012. Therefore, the DRC concluded that the
2010 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the 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 members of the Chamber entered into the substance of the
Player L, from country S / Club Y, from country C
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matter. In doing so, it started by acknowledging the abovementioned facts of
the matter as well as the documentation contained in the file.
5.
In this respect, the members of the Chamber acknowledged that the parties
had signed a valid employment contract on 22 February 2012 in accordance
with which the Respondent would pay the Claimant, inter alia, a monthly
remuneration in the amount of EUR 20,000 for the season 2012 and a monthly
salary of EUR 25,000 for the season 2013.
6.
In continuation, the Chamber noted that the Claimant lodged a claim against
the Respondent maintaining that the Respondent had breached the
employment contract by “de-registering” the Claimant for the second part of
the 2012 season and by preventing him from training with the team.
7.
Furthermore, the Chamber noted that the Claimant maintains that, on the one
hand, the “de-registration” of a player is not admitted under the Regulations
and it involves a serious violation of the contractual obligations and that, on
the other hand, as a result of his “de-registration”, he was no longer able to
play in official competitions for the Respondent. Equally, the Claimant held
that he was not even allowed to train with the teams of the Respondent in
order to keep a competitive level and, as such, was prevented from carrying
out his profession. Therefore, eventually, on 7 August 2012, the Claimant
unilaterally terminated the employment contract.
8.
The Chamber then focused its attention on the Respondent’s allegations and
noted that the Respondent sustained that the “de-registration” was only
temporary given that the player would allegedly be registered again for the
following season of the year 2013. The Chamber further noted that the
Respondent maintained that the “de-registration” would not have altered the
conditions of the contract and that the Claimant had initially accepted the
decision of the Respondent, but that he later on changed his mind.
9.
Equally, the members of the Chamber took note of the Respondent’s position,
which held that it did not prevent the Claimant from training with its teams
but, on the contrary, it had encouraged him to train with them and it was the
Claimant’s decision not to do so.
10.
In this regard, the Chamber, first and foremost, highlighted that the
underlying issue in the present dispute is to determine whether the unilateral
termination of the employment contract by the Claimant on 7 August 2012,
following his de-registration from the country C Football Association, had
been with or without just cause.
Player L, from country S / Club Y, from country C
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11.
In this respect, the members of the Chamber emphasized that the fact that the
Claimant had been “de-registered” by the Respondent on 12 July 2012 had not
been disputed by the parties and had, in fact, been acknowledged by the
Respondent.
12.
In light of the above, the members of the Chamber considered important to
point out, as has been previously sustained by the DRC, that among a player’s
fundamental rights under an employment contract, is not only his right to a
timely payment of his remuneration, but also his right to access training and to
be given the possibility to compete in the team’s official matches.
13.
Furthermore, the members of the DRC wished to highlight that by “deregistering” a player, even for a limited time period, a club is effectively
barring, in an absolute manner, the potential access of a player to competition
and, as such, is violating one of his fundamental rights as a football player.
14.
Therefore, the Chamber established that the “de-registration” of a player
would in principle constitute a breach of contract since it de facto prevents a
player from being eligible to play for his club.
15.
Subsequently, the Chamber recalled that, according to the Claimant, the
Respondent informed him that he could not train or play anymore with the
first or the second team and, so, in order to keep himself at a competitive
level, he proceeded to train individually and without a coach. The Respondent,
on the other hand, held that the Claimant accepted its decision of “deregistering” him, but that, later on, he refused to train with the team.
Moreover, the members of the Chamber took note of the correspondences
dated 23, 25, 27, 31 July and 3 August 2012 sent by the Claimant to the
Respondent, requesting his reintegration in the Respondent’s training sessions
as well as requesting a clarification of his status with the Respondent, to which
the Respondent had not replied. Furthermore, the members of the Chamber
pointed out that the first communication of the Respondent addressed to the
Claimant was dated 7 August 2012, at the time the Claimant had already put
an end to the contract.
16.
In this respect and bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof, the Chamber was eager to point out that
the Respondent had failed to present documentation in support of its position.
In particular, the members of the Chamber observed that the Respondent was
not able to corroborate that the Claimant indeed accepted his “deregistration”, as the Respondent alleged he initially did. As a consequence, the
Chamber concluded that the Respondent had not presented any evidence
Player L, from country S / Club Y, from country C
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proving the existence of any agreement between the Respondent and the
Claimant on the de-registration of the latter.
17.
Furthermore, the Chamber stressed that the Respondent i) had not provided
any documentation which would prove its interest in the Claimant’s services or
participation with the team, ii) had not proven that it would indeed register
the player again for the 2013 season, and iii) had not proven that the
contractual terms would indeed not be altered, contrary to that stipulated in
art. 5.12 of the contract. Quite to the contrary, the Chamber noted that the
Respondent had systematically ignored all communications from the Claimant
in relation to his status, until the latter had put an end to the contractual
relationship.
18.
On account of the all the above circumstances, in particular, by “deregistering” the Claimant on 12 July 2012, the Chamber established that the
Respondent had de facto excluded the Claimant from the team. Such conduct
constitutes, in line with the jurisprudence of the Chamber, a clear breach of
contract. Accordingly, the Chamber concurred that the Claimant had just cause
to unilaterally terminate the employment contract on 7 August 2012.
Consequently, the Respondent is to be held liable for the early termination of
the employment contract with just cause by the Claimant.
19.
Having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the
Chamber focussed its attention on the consequences of such termination.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant is entitled to receive from the Respondent an
amount of money as compensation for breach of contract in addition to any
outstanding payments on the basis of the relevant contract.
20.
First of all, the Chamber reverted to the Claimant’s financial claim, which
includes outstanding remuneration relating to the monthly remuneration for
July 2012 in accordance with the employment contract. The members of the
Chamber recalled that the Respondent failed to demonstrate that it had in fact
paid the remuneration for July 2012.
21.
Consequently, taking into account the documentation remitted by the
Claimant to substantiate his claim and the fact that the employment contract
was considered terminated as of 7 August 2012, the DRC decided that the
Respondent is liable to pay to the Claimant the amount of EUR 20,000 relating
to the payment due to him for the month of July 2012, plus 5% interest.
22.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
Player L, from country S / Club Y, from country C
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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.
23.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains 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.
24.
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
until 3 November 2013, taking into account that the player’s remuneration
until July 2012 is included in the calculation of the outstanding remuneration
(cf. no. II/21 above). Consequently, the Chamber concluded that the amount of
EUR 350,000 (i.e. salary as from August 2012 until October 2013) serves as the
basis for the final determination of the amount of compensation for breach of
contract.
25.
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 Dispute Resolution Chamber, 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.
26.
Indeed, on 28 August 2012, the Claimant found employment with the Club R,
from country S. In accordance with the pertinent employment contract, which
has been made available by the Claimant, valid until 30 June 2013, the
Claimant was entitled to receive a monthly salary of EUR 300 plus the amount
of EUR 16,500 paid in three different instalments. Consequently, the Chamber
established that the value of the new employment contract concluded
between the Claimant and the new club for the period as from September
2012 until and including June 2013 amounted to EUR 19,500.
Player L, from country S / Club Y, from country C
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27.
In accordance with the constant practice of the Dispute Resolution Chamber
and the general obligation of the player 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.
28.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the DRC decided that the Respondent
must pay the amount of EUR 330,500 to the Claimant as compensation for
breach of contract.
29.
In addition and with regard to the Claimant's request for interest, the
Chamber decided that the Claimant is entitled to 5% interest p.a. on said
amount as of 30 August 2013 until the date of effective payment.
30.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player L, is partially accepted.
2.
The Respondent, Club Y, 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 20,000 plus 5% interest p.a. on said amount as of 12
September 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 330,500 plus 5% interest p.a. on said amount as of 30 August
2013 until the date of effective payment.
4.
If the aforementioned sums plus interests 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 a formal
decision.
Player L, from country S / Club Y, from country C
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5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent 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 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 L, from country S / Club Y, from country C
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