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 J, from country C
as Claimant
against the club,
Club A, from country T
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 6 January 2011, the Player J, from country C (hereinafter: the Claimant), and the
Club A, from country T (hereinafter: the Respondent), entered into an employment
contract (hereinafter: the contract) valid from 5 January 2011 until 31 May 2012.
2.
According to the contract, the Claimant was entitled inter alia to the following:
Season 2010/2011:
- EUR 75,000 as sign-on fee, due on “31.01.10” ;
- EUR 51,000 as salary, divided in five monthly instalments of EUR 10,200,
payable on the last day of each month, from January 2011 to May 2011;
- appearance bonus in the amount of EUR 2,000 for each participation in a
Super League match in the starting eleven; or EUR 1,500 “if the player join
to the game from the bench” or EUR 1,000 “in case the player does not act
in any of the matches, but had been listed among the 18 players of the
group”. “The variable compensation is calculated in each 4 (four) games
and will be paid in 45 days after the each fourth game”;
Season 2011/2012:
- EUR 128,000 as advance payment, due on 30 August 2011;
- EUR 128,000 as salary divide in 10 monthly instalments of EUR 12,800,
payable on the last day of each month, “from August 2011 to May 2012”;
- appearance bonus in the amount of EUR 1,882 for each participation in a
Super League match in the starting eleven; or EUR 1,412 “if the player join
to the game from the bench” or EUR 941 “in case the player does not act in
any of the matches, but had been listed among the 18 players of the
group”. “The variable compensation is calculated in each 4 (four) games
and will be paid in 45 days after the each fourth game”;
Accommodation and car for the full term of the contract;
Two economic round-trip flights country T – country C “for each season”;
Bonuses according to the “Professional team’s bonus system”.
3.
According to clause 1.5 of the contract, “If the club fails to make any payment 45
days later from due date, than the player shall be entitled to send a written 14-day
warning to the club, asking for the outstanding salaries. If the club do not make any
payment according to the warning in 14 days than the player will be entitled to
break his contract and get a free transfer to another club at the next transfer period
in which the default is happened.”
4.
On 14 December 2011, after putting the Respondent in default on 3 November 2011
via public notary, the Claimant unilaterally terminated the contract also via public
notary, invoking just cause.
Player J, from country C / Club A, from country T
2/8
5.
On 17 January 2012, the Claimant filed a claim with FIFA against the Respondent
alleging that the latter had breached the contract for failure to make several
payments established in the contract, which led him to unilaterally terminate the
contract with just cause.
6.
In light of the above, the Claimant requested the payment of an aggregate amount
of EUR 328,972.50, according to the following breakdown:
Outstanding Amounts
EUR 75,000 as sign-on fee for the season 2010/2011, plus 5% interest as of 1
February 2011;
EUR 2,400 as unpaid part of salaries owed in relation to the season 2010/2011,
plus 5% interest as of 1 June 2011;
EUR 3,000 as appearance bonuses for the season 2010/2011, plus 5% interest as
of 1 August 2011;
EUR 128,000 as advance payment for the season 2011/2012, plus 5% interest as
of 31 August 2011;
EUR 51,200, as salaries for the season 2011/2012, according to the following
breakdown:
- EUR 12,800 for the August 2011 salary, plus 5% interest as of 1
September 2011;
- EUR 12,800 for the September 2011 salary, plus 5% interest as of 1
October 2011;
- EUR 12,800 for the October 2011 salary, plus 5% interest as of 1
November 2011;
- EUR 12,800 for the November 2011 salary, plus 5% interest as of 1
December 2011.
EUR 3,765 as appearance bonuses for the season 2011/2012, plus 5% interest as
of 1 December 2011; and
EUR 807.50 as reimbursement for flight tickets purchased, plus interest.
Compensation
EUR 64,800 as the aggregate difference between salaries under the contract
and his new employment contract for the period between December 2011 to
May 2012, plus interest.
7.
According to the Claimant, on 8 September 2011, he notified the Respondent in
writing, requesting it to make the payment of all amounts which were outstanding
by then, i.e. EUR 259,600.
8.
In this respect, the Claimant held that despite the letter sent in September 2011, the
Respondent executed only a partial payment in the aggregate amount of EUR
38,400. As a consequence, the Claimant sent a second letter to the Respondent on 3
November 2011 via public notary requesting the payment of the remaining
outstanding amount. According to the Claimant, out of a total amount of
EUR 289,989 due under the contract up until that moment, he had only received EUR
48,600.
Player J, from country C / Club A, from country T
3/8
9.
In addition, according to the Claimant, since mid-November 2011 he was also
deprived of access to the residence which had been provided by the Respondent in
accordance with the contract.
10. According to the Claimant, he also notified the country T Football Federation of the
contract termination. In response, via letter dated 19 December 2011, the country T
Football Federation acknowledged receipt of the termination notice sent to the
Respondent and confirmed that the employment relationship between the parties
had been terminated.
11. Despite having been invited to do so, the Respondent did not present its position to
the claim.
12. On 27 January 2012, the Claimant signed a new employment contract with Club F,
from country S, valid from 1 February 2012 until 30 June 2012. According to the new
contract, the Claimant is entitled inter alia to a monthly salary of EUR 3,000, payable
until 20th of the following month.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect,
the DRC referred to art. 21 par. 2 and 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber. The present matter
was submitted to FIFA on 17 January 2012. As a consequence, the DRC concluded
that 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 in hand.
2.
Subsequently, the members of the DRC referred to art. 3 par. 2 and 3 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 and in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), the DRC is competent to decide on the present litigation with
an international dimension concerning an employment-related dispute between a
country C player and a country T club.
3.
In continuation, the DRC 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 2 of the Regulations on the Status and Transfer of Players (edition 2012
and 2010), and considering that the present claim was lodged on 17 January 2012,
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.
Player J, from country C / Club A, from country T
4/8
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter by acknowledging that the
parties to the dispute had signed an employment contract valid from 5 January 2011
until 31 May 2012.
5.
Subsequently, the Chamber noted 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.
The DRC considered that, by doing so, the Respondent renounced its right to defence
and thus, accepted the allegations of the Claimant.
6.
Furthermore, as a consequence of the aforementioned consideration, the DRC
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.
7.
In line with the above considerations, the members of the DRC considered that it
remained undisputed that the Claimant terminated the contract in writing on
14 December 2011, after having put the Respondent in default, also in writing, on 3
November 2011 thus, complying with the contractual agreed obligations of sending a
14-days period notice before terminating the contract (cf. point. I.3).
8.
In continuation, the Chamber reviewed the claim of the Claimant and established
that according to the Claimant, by the time the contract was terminated, i.e. 14
December 2011, the aggregate amount of EUR 263,365 was outstanding. The
Claimant detailed the aforementioned amount as follows:
EUR 75,000 as sign-on fee for the season 2010/2011;
EUR 2,400 as unpaid part of salaries owed in relation to the season 2010/2011,;
EUR 3,000 as appearance bonuses for the season 2010/2011;
EUR 128,000 as advance payment for the season 2011/2012;
EUR 51,200, as salaries for the season 2011/2012 (August to November 2011);
EUR 3,765 as appearance bonuses for the season 2011/2012.
9.
Considering that the Respondent failed to reply to the claim, there is no evidence
that the above-mentioned amounts were paid. Therefore, it remained uncontested
that the Respondent failed to pay the said amounts, which constitutes a clear breach
of contract. Consequently, in line with the long-standing jurisprudence of the DRC,
the Claimant had just cause to terminate the contract on 14 December 2013.
10. 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.
Player J, from country C / Club A, from country T
5/8
11. Therefore, the DRC concluded that the Respondent had to pay to the Claimant the
aggregate amount of EUR 263,365 as outstanding remuneration.
12. In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. as from the day following each
due date of payment of the respective amounts.
13. Furthermore, the DRC considered that the Claimant requested the reimbursement of
flight tickets in the amount of EUR 807.50. In this regard, the DRC took note that the
Claimant had submitted payment receipts, dated respectively 7 September 2011 and
4 October 2011, in the amounts of currency of country C 9,898 and currency of
country C 10,032.
14. In this context, the DRC highlighted that the contract established that the Claimant
was entitled to two flight tickets per season. Moreover, the DRC made reference to
the principle of the burden of proof and considered that the Claimant had
demonstrated having paid himself for the flight tickets (cf. art. 12 par. 3 of the
Procedural Rules). As a consequence, the DRC considered that the Claimant was also
entitled to receive the amount of EUR 807.50, as well as 5% interest p.a. on the said
amounts as from the date of notification of this decision, as requested by the
Claimant.
15. 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 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.
16. 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.
17. 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 31
May 2012, taking into account that the player’s remuneration until November 2011 is
included in the calculation of the outstanding remuneration (cf. point II.8).
Consequently, the Chamber concluded that the amount of EUR 76,800 (i.e. salaries as
from December 2011 until May 2012) serves as the basis for the final determination
Player J, from country C / Club A, from country T
6/8
of the amount of compensation for breach of contract, corresponding to the residual
value of the contract.
18. 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.
19. The Chamber noted that the Claimant had signed, on 27 January 2012, a new
employment contract with Club F, valid from 1 February 2012 until 30 June 2012. In
particular, the DRC took note that the Claimant was entitled to a monthly salary of
EUR 3,000. Therefore, from February until May 2012 the Claimant would receive the
total amount of EUR 12,000.
20. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
the amount of EUR 64,800 to the Claimant as compensation for breach of contract, as
well as 5% interest p.a. on the said amount as from the date of notification of this
decision until effective payment, as requested by the Claimant.
21. The Chamber concluded its deliberations by establishing that the claim of the
Claimant is fully accepted.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player J, is accepted.
2.
The Respondent, Club A, is ordered to pay to the Claimant, Player J, within 30 days
as from the date of notification of this decision, outstanding remuneration in the
amount of EUR 263,365 as well as flight ticket expenses in the amount of EUR 807.50,
plus 5% interest p.a. on the said amounts until the date of effective payment as
follows:
-
5% p.a. over the amount of EUR 75,000 as of 1 February 2011;
5% p.a. over the amount of EUR 2,400 as of 1 June 2011;
5% p.a. over the amount of EUR 3,000 as of 1 August 2011;
5% p.a. over the amount of EUR 128,000 as of 31 August 2011;
5% p.a. over the amount of EUR 12,800 as of 1 September 2011;
5% p.a. over the amount of EUR 12,800 as of 1 October 2011;
5% p.a. over the amount of EUR 12,800 as of 1 November 2011;
5% p.a. over the amount of EUR 12,800 as of 1 December 2011;
5% p.a. over the amount of EUR 3,765 as of 1 December 2011;
Player J, from country C / Club A, from country T
7/8
- 5% p.a. over the amount of EUR 807.50 as of the date of notification of this
decision.
3.
The Respondent, Club A, has to pay to the Claimant, Player J, within 30 days as
from the date of notification of this decision, compensation for breach of contract in
the amount of EUR 64,800 plus 5% interest p.a. as of the date of notification of this
decision 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.
The Claimant, Player J, is directed to inform the Respondent, Club A, 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:
Markus Kattner
Deputy Secretary General
Player J, from country C / Club A, from country T
8/8