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 S, from country R
as Claimant
against the club,
Club L, from country A
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 29 July 2010, Player S, from country R (hereinafter: the player or Claimant), and Club
L, from country A (hereinafter: the club or Respondent), signed an employment contract
valid as from the date of its signature until “31 June 2012” [sic] (hereinafter: the
contract).
2.
In accordance with “ARTICLE THREE: A)” of the contract, the player was entitled to
receive the total amount of USD 120,000 for the period 2010 - 2011 to be paid as follows:
a. USD 30,000 on the date of signing the contract (29 July 2010);
b. USD 65,000 in 10 monthly instalments as of 1 August 2010 (i.e. USD 6,500 each
month);
c. USD 25,000 in March 2011.
3.
Furthermore, in accordance with “ARTICLE THREE: B)” of the contract, the player was
entitled to receive the total amount of USD 150,000 for the period 2011 – 2012 to be
paid as follows:
a. USD 50,000 in August 2011;
b. USD 70,000 as salaries in 10 monthly instalments as of 1 August 2011 (i.e. USD
7,000 each month);
c. USD 30,000 in March 2012.
4.
The employment contract does not contain a compensation clause.
5.
On 26 September 2011, the player lodged a claim against the club in front of FIFA. In
particular, the player asked to be awarded the payment of the following amounts plus
5% interest p.a.:
a. Outstanding salaries:
USD 5,445 [USD 6,500 – currency of country A 830, which is equivalent to
approx. USD 1,038 on 29 July 2010] for the month of May 2011;
USD 50,000 matured in August 2011;
USD 5,945 (USD 7,000 – 830 currency of country A) for the month of August
2011.
b. Compensation:
USD 63,000 as of 1 September 2011 in 9 monthly instalments (i.e. each
month USD 7,000);
USD 30,000 to be paid in March 2012.
In addition, the player asks that sporting sanctions be imposed on the club and requests
from the club to be paid its “defence fees and costs” amounting to the sum of EUR
20,500.
Player S, from country R / Club L, from country A
Page 2 of 10
6.
In this respect, the player argued that by letter dated 1 September 2011 addressed to the
club, he unilaterally terminated the relevant employment contract with just cause. The
player pointed out that since May 2011, the club stopped paying the salary as agreed in
the contract but that he only received currency of country A 830 (instead of USD 6,500
and USD 7,000 respectively) for the months of May and August 2011. The player asserted
that he had contacted the club on several occasions requesting the outstanding salaries.
With a letter dated 28 July 2011, the player reminded the club that the salary for May
2011 was due and that soon he would also be entitled to receive the amount of USD
50,000 during the month of August 2011. Subsequently, with a letter dated 3 August
2011 the player reminded once again the club that the salary of May 2011 was overdue
and also requested the payment of USD 50,000. On 17 August 2011 the player formally
notified an ultimatum to the club referring to the two aforementioned letters and giving
the latter a deadline of 7 days to make the relevant payments.
7.
Furthermore, the player stated that he was released of his duties by the club and
permitted to attend trials and trainings with other clubs on 2 June 2011. Therefore, he
left country A in order to find a new club where to play and to be transferred to. The
player added that the club failed to renew his residence permit upon expiry and that by a
letter of 22 September 2011 he reminded the club that his temporary residence permit
issued by the Republic of country A had expired.
8.
On 26 October 2011, the club explained in its reply to the claim that they have always
fulfilled their obligations mentioned in the relevant contract.
9.
In particular, the club clarified that it was obliged to remunerate the player for his
services, but not for his absence. The club stated that after the end of the season
2010/2011, the coaching staff of the club decided to transfer the player, which was also
announced on their official website and in the media. Subsequently, they allowed the
player to attend trials with other clubs, but not to sign a contract. According to the club,
the letter dated 2 June 2011 cannot be interpreted as a document of “release”. In this
respect, the club highlighted that there had not been another request from another club
for the transfer of the player and therefore the latter had to return to the club.
10.
Furthermore, the club mentioned that all residence permits for foreign players playing
for them had been renewed “till” the beginning of the football season in country A, i.e.
6 August 2011, and that the player’s residence permit expired on 21 September 2011.
Consequently, the player had demonstrated an unserious attitude and did not fulfil his
contractual obligation by not coming back to the club after the summer break. The club
stressed that the player instead of coming to country A within the period between 1
September 2011 and 21 September 2011, demanded a payment of instalments for the
season 2011/2012, which seems to be absurd, because the player demands the amount of
money for the season, during which “he has not even appeared in the team”.
Player S, from country R / Club L, from country A
Page 3 of 10
11.
The club held that with a letter dated 23 September 2011, they reminded the player that
he had not arrived until after the transfer window was closed (i.e. 31 August 2011) and
this was considered as a huge breach of the player’s contractual obligations.
12.
On 28 January 2013, the player informed FIFA that, following the termination of his
contract with the club, he has signed an employment contract with Club P on 23 March
2012 for a period of three months, i.e. valid until 30 June 2012. Said employment
contract refers to an agreement concluded by the parties with Ref. no. 103 of 15
September 2011. According to art. 5.1.1 and art. 5.1.2 of said contract, the player is
entitled to receive a net monthly salary of EUR 2,500 provided that he participated in
minimum 70% of the total cumulated number of minutes of matches. If the mentioned
percentage is not reached, the monthly fee will be determined by considering the
number of minutes effectively played compared to the total cumulated number of
minutes of the matches scheduled monthly in the official competitions (x% of 100%) but
without being less than 30% of EUR 2,500, i.e. EUR 750. According to the player, he was
entitled to receive a monthly salary amounting to EUR 750, because he had participated
in less than 70% of the matches of the club.
13.
According to information contained in the Transfer Matching System (TMS 47618), the
player apparently signed an employment contract (version in country R language) with
Club P on 15 September 2011 with validity as from the date of the signature until 30 June
2012. According to the translation of the contract into English, provided by the country R
Football Federation during the procedure regarding the issuance of the international
transfer certificate (ITC), the contract in question runs from 15 September 2011 until 30
June 2012 and contains the same remuneration clause as in the abovementioned contract
(cf. point I.12.).
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,
the Chamber took note that the present matter was submitted to FIFA on 26 September
2011. Consequently, the 2008 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 par. 2 and par. 3 of the
Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (hereinafter: Regulations; edition
2010), it is competent to decide on the present litigation, which concerns an
Player S, from country R / Club L, from country A
Page 4 of 10
employment-related dispute with an international dimension, between a country R
player and an country A club.
3.
Furthermore, the DRC analysed which edition of the Regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations (editions 2012 and 2010) and
considering that the present matter was submitted to FIFA on 26 September 2011, the
2010 edition of said Regulations is applicable to the present matter as to the substance.
4.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file. In this
respect, the DRC acknowledged that the Claimant and the Respondent signed an
employment contract setting out a period of validity as from 29 July 2010 until “31 June
2012”, in accordance with which the Respondent would, inter alia, pay the Claimant a
monthly salary of USD 6,500 for the period from 1 August 2010 until 31 May 2011, a
monthly salary of USD 7,000 for the period from 1 August 2011 until 31 May 2012 as well
as lump sums of USD 50,000 due in August 2011 and USD 30,000 due in March 2012. The
DRC further noted that the Claimant maintains that the Respondent is to be held liable
for the early termination of the employment contract by having failed to (fully) pay his
remuneration due for the months of May 2011 and August 2011. In particular, the DRC
observed that the Claimant, after allegedly not having received the said monies, had
terminated his contract with the Respondent on 1 September 2011 invoking just cause.
5.
The DRC duly noted that, on account of the above, the Claimant is seeking payment of
outstanding remuneration of USD 61,390, i.e. USD 5,445 and USD 5,945 pertaining to the
months of May 2011 and August 2011 and USD 50,000 relating to the instalment
matured in August 2011 in accordance with the employment contract, plus 5% interest
p.a. Equally, the DRC noted that the Claimant is requesting compensation for breach of
contract in the amount of USD 93,000, plus 5% interest p.a.
6.
In this respect, the Chamber took note of the Claimant’s default notices for the
respectively due amounts dated 28 July 2011, 3 August 2011 and 17 August 2011
addressed to the Respondent as well as of his correspondence dated 1 September 2011,
by means of which the Claimant informed the Respondent in writing about his unilateral
termination of the employment contract at the club’s fault since they stopped paying his
salary as contractually agreed. The Chamber also noted that the Claimant mentioned
that he was released of his duties by the Respondent and permitted to attend trials and
trainings as of 2 June 2011.
7.
Subsequently, the DRC acknowledged that the Respondent, who fully rejects the claim
put forward by the Claimant, alleges that it has always fulfilled its obligations mentioned
in the relevant contract. In particular, the Chamber observed that the Respondent points
Player S, from country R / Club L, from country A
Page 5 of 10
out that the Claimant breached his contractual obligations by not coming back to the
club until after the transfer window was closed, i.e. 31 August 2011. In this respect, the
Chamber noted that the Respondent stated being obliged to remunerate the player for
his services, but not for his absence as of June 2011.
8.
Having said that, the Chamber recalled that according to the legal principle of the
burden of proof, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
9.
In view of the above, the DRC concluded that the Respondent shall carry the burden of
proof that the entire salary of May 2011 had indeed been paid. In this respect, the DRC
acknowledged that the Respo 0u7ndent was not able to corroborate that it had paid the
contractually agreed salary of May 2011. In particular, the DRC established that the
Respondent did not present any documentary evidence at all for the payment of the
amount of USD 5,445 for the month of May 2011.
10.
Moreover, and with regard to the allegedly outstanding remuneration for August 2011,
the Chamber took note that it is undisputed by the parties that the player’s absence as of
June 2011 had in principle been authorised by the Respondent by means of a letter dated
2 June 2011. In this regard, the DRC recalled that the Respondent had only reminded the
Claimant on 23 September 2011 that – after having allowed the Claimant to attend trials
with other clubs but not to sign a contract – he had not come back until after the
transfer window was closed, i.e. 31 August 2011. In other words, the Respondent had
only requested the Claimant’s return as of 1 September 2011. Consequently, the Chamber
deemed that the absence of the player between June and August 2011 had been
permitted by the Respondent and the Claimant had thus not been obliged to return to
the Respondent during said period. As a result, the Chamber concluded that the
Respondent had no justification for not fulfilling its contractual obligations towards the
player for the period between June and August 2011.
11.
In this regard, the Chamber noted that the Respondent did not contest that the
predominant part of the salary for August 2011 as well as the instalment for August 2011
were still outstanding.
12.
On account of the above circumstances, the Chamber established that the Respondent
had almost entirely failed to remit the contractually agreed salaries without any valid
reason during a considerable period of time (from May 2011 until August 2011). The
Chamber therefore concurred that the Claimant had just cause to unilaterally terminate
the employment contract on 1 September 2011.
13.
Bearing in mind the previous considerations, the DRC went on to deal with the
consequences of the early termination of the employment contract with just cause by the
Claimant.
Player S, from country R / Club L, from country A
Page 6 of 10
14.
First of all, with regard to the Claimant’s request for outstanding salaries at the time of
the unilateral termination of the contract, the DRC recalled that the Respondent had no
justification for the non-payment of the relevant remuneration for the months of May
and August 2011.
15.
In view of the above, the DRC stressed that the Respondent must fulfill its obligations as
per employment contract in accordance with the general legal principle of “pacta sunt
servanda”. Consequently, the DRC decided that the Respondent is liable to pay to the
Claimant the remuneration that was outstanding at the time of the early termination of
the employment contract by the Claimant, i.e. the amount of USD 61,390.
16.
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 26 September 2011
until the date of effective payment.
17.
In continuation, the DRC decided that, taking into consideration the Claimant’s claim and
art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to any outstanding salaries on the basis
of the relevant employment contract.
18.
In this context, 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.
19.
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.
20.
Subsequently, the DRC noted that the remaining value of the employment contract as
from the date of the termination until the original expiry of the employment contract
amounted to USD 93,000, i.e. nine monthly salaries amounting to USD 7,000 each and
the installment due in March 2012. Consequently, the DRC judge concluded that the
remaining value of the contract as from its early termination by the Respondent until the
Player S, from country R / Club L, from country A
Page 7 of 10
regular expiry of the contract amounting to USD 93,000 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 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.
22.
Subsequently, the Chamber took note of the fact that the Claimant claims to have signed
a new employment contract with Club P, from country R, valid as from 23 March 2012
until 30 June 2012, being entitled to remuneration in the total amount of EUR 2,250
(monthly salary of EUR 750) since he had participated in less than 70% of the matches of
the club. Nevertheless, the members of the Chamber noted that according to the
employment contract, which was uploaded by Club P in TMS and the translation of it into
English, provided by the country R Football Federation during the ITC procedure, the
contract in question actually runs from 15 September 2011 until 30 June 2012.
23.
On account of the above circumstances, and taking into consideration that the
employment contract provided by the Claimant in the present procedure even refers to
the contract uploaded in TMS, the members of the Chamber established that the
Claimant signed an employment contract with Club P, from country R from 15 September
2011 until 30 June 2012. In accordance with the pertinent employment contract, the
Claimant was entitled to receive a monthly salary of EUR 2,500. In this context, whilst
referring to art. 12 par. 3 of the Procedural Rules, according to which any party claiming
a right on the basis of an alleged fact shall carry the burden of proof, the Chamber
deemed it fit to highlight that the Claimant had not presented any documentary
evidence corroborating that he had played only in a few matches. Consequently, the
Chamber had no alternative but to establish that the value of the new employment
contract concluded between the Claimant and the new club for the period as from 15
September 2011 until and including June 2012 amounted to USD 32,000 (EUR 23,750).
24.
Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent must pay the amount of
USD 61,000 to the Claimant, which is considered to be a reasonable and justified amount
as compensation for breach of contract.
25.
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.
Player S, from country R / Club L, from country A
Page 8 of 10
26.
Furthermore, the DRC held that the Claimant’s claim pertaining to legal costs has to be
rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence.
27.
For all the above considerations, the DRC decided to partially accept the Claimant’s claim
and held that the Respondent is liable to pay the total amount of USD 122,390 to the
Claimant, consisting of the amount of USD 61,390 corresponding to the Claimant’s
outstanding remuneration at the time of the unilateral termination of the contract with
just cause by the Claimant and the amount of USD 61,000 corresponding to the
compensation for the unilateral breach of contract, plus 5% interest p.a. as of 26
September 2011 and 30 August 2013 on the respective amounts until the date of
effective payment.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player S, is partially accepted.
2.
The Respondent, Club L, is ordered to pay to the Claimant, Player S, within 30 days as
from the date of notification of this decision, outstanding remuneration in the amount
of USD 61,390, plus 5% interest p.a. as of 26 September 2011 until the date of effective
payment.
3.
The Respondent, Club L, is ordered to pay to the Claimant, Player S, within 30 days as
from the date of notification of this decision, compensation for breach of contract in the
amount of USD 61,000, plus interest of 5% p.a. as of 30 August 2013 until the date of
effective payment.
4.
If the aforementioned sums plus interest are not paid within the above-mentioned time
limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
5.
Any further claims lodged by the Claimant, Player S, are rejected.
Player S, from country R / Club L, from country A
Page 9 of 10
6.
The Claimant, Player S, is directed to inform the Respondent, Club L, 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 S, from country R / Club L, from country A
Page 10 of 10