Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 August 2014,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Guillermo Saltos Guale (Ecuador), member
John Newman (USA), member
Leonardo Grosso (Italy), member
on the claim presented by the player,
Player Z, from country S
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.
Player Z, from country S (hereinafter: player or Claimant), and Club A, from
country T (hereinafter: club or Respondent) signed an employment contract valid
as from 27 August 2010 until 31 May 2012.
2.
In accordance with the employment contract, the player was entitled to receive,
inter alia, the following remuneration for each of the seasons 2010-11 and
2011-12:
i. EUR 200,000 as down payment due in August*;
ii. EUR 10,000 per month as from August until May;
iii. EUR 2,941 per country T super league game**.
* The amounts paid as down payment “are to be treated as advance payments
and provided that the player plays for the club until the end of the season”.
** The amounts payable per game are to be paid 60 days following every 4 th
game, 100% if the player is in the starting 11 or appears on the pitch afterwards
and 75% (EUR 2,205.75) if he is on the bench throughout the game.
3.
On 2 November 2011, the player put the club in default of payment of EUR
200,000 as down payment due in August 2011 as well as the amount of EUR
221,649 relating to the 2010-11 season.
4.
On 14 November 2011, the player sent another default notice to the club.
5.
These default notices having remained without reply, on 23 November 2011, the
player terminated the employment contract.
6.
On 31 July 2012, the player lodged a claim against the club in front of FIFA
maintaining that due to the club’s failure to respect its contractual obligations,
even after having been put in default, he had just cause to terminate the
employment contract.
7.
Therefore, the player asks that the club be ordered to pay outstanding
remuneration in the total amount of EUR 436,059 net plus 5% interest p.a. and
compensation for breach of contract amounting to EUR 60,000 plus 5 % interest
p.a. as of 23 November 2011.
8.
In addition, the player asks that the relevant amounts are to be made on a net
basis, free of any taxation.
Player Z, from country S / Club A, from country T
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9.
The player holds that for the 2010-11 season, he is entitled to receive EUR 300,000
(EUR 200,000 down payment and 10 monthly payments of EUR 10,000 each) plus
EUR 44,850 for appearance bonuses (13 x starting bonus and 3 x on the bench
bonus), thus the total amount of EUR 344,850. In addition, as regards the 2011-12
season, until the termination of the contract on 23 November 2011, the player
maintains that he is entitled to receive the EUR 200,000 down payment due in
August 2011 as well as 4 monthly payments of EUR 10,000 each and EUR 4,410 as
appearance bonuses (2 x on the bench bonus), thus the total amount of EUR
244,410.
10.
The player specified that throughout the duration of the employment relation he
received the following payments from the club, totalling EUR 153,201:
a. EUR 10,099 on 24 September 2010;
b. EUR 99,800 on 26 January 2011;
c. EUR 8,844 on 8 April 2011;
d. EUR 4,458 on 2 May 2011;
e. EUR 20,000 on 6 October 2011;
f. EUR 10,000 on 19 October 2011.
11.
In spite of having been invited to do so, the club has not replied to the claim.
12.
On 1 February 2012, the player signed an employment contract with Club X, from
country T, valid until 31 May 2013, in accordance with which he was entitled to
receive, until 31 May 2012, a monthly salary of EUR 25,000 over 4 months as well
as the amount of EUR 25,000 payable in February 2012.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 31 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. 1 and par. 2
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
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Players (edition 2014) 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 S player and a country T club.
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 2 of the Regulations on the Status and Transfer of Players
(2014), and considering that the present claim was lodged on 31 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. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
The members of the Chamber acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 27 August 2010 until 31
May 2012, which was terminated in writing by the Claimant on 23 November 2011
after the Claimant had put the club in default of payment of his contractual
receivables on two occasions.
6.
The Chamber then reviewed the claim of the Claimant, who maintains that he
terminated the employment contract with just cause due to the Respondent’s
failure to respect the financial terms of the employment contract. Consequently,
the Claimant holds that the Respondent is to be held liable for breach of contract
and, consequently, he asks to be awarded inter alia compensation for breach of
contract in the amount of EUR 60,000 in addition to allegedly outstanding
remuneration of EUR 436,059.
7.
In continuation, the members of the Chamber highlighted 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. In this way, the Chamber considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of
the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the
Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it
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shall take a decision upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
9.
The Chamber then turned its attention to the financial terms of the employment
contract at the basis of the present dispute as well as the claim put forward by the
Claimant. The Claimant holds that he was entitled to receive EUR 300,000 (EUR
200,000 as down payment and 10 monthly payments of EUR 10,000 each) as well
as EUR 44,850 relating to appearance bonuses, thus the total amount of EUR
344,850, for the entire 2010-11 season. In addition, as regards the 2011-12 season,
until the termination of the contract on 23 November 2011, the player maintains
that he was entitled to receive EUR 200,000 as down payment due in August 2011
as well as 4 monthly payments of EUR 10,000 each and EUR 4,410 as appearance
bonuses, thus the total amount of EUR 244,410. In conclusion, according to the
Claimant, in accordance with the employment contract he was entitled to receive
the total amount of EUR 589,260 until the day on which he terminated the
contractual relation, whereas, until then, the Respondent had only paid him the
amount of EUR 153,201, as a result of which the Claimant maintains that the
Respondent still owed him the amount of EUR 436,059 when he terminated the
employment contract on 23 November 2011.
10.
With respect to the appearance bonuses, which according to the employment
contract were subject to the player’s level of appearance in matches, the members
of the Chamber took due note that the Claimant had corroborated such claim
with additional documentary evidence.
11.
Bearing in mind the above, in particular the list of payments received by the
Claimant from the Respondent, the Chamber concluded that, during the 2010-11
season, the total amount of EUR 123,201 had been received by the Claimant out
of the total of EUR 344,850 that was due for the relevant period of time.
Consequently, the total amount of EUR 221,649 for the 2010-11 season had
remained outstanding by the time the Claimant terminated the employment
contract, which amount, in fact, corresponds to the amount for which the
Claimant had put the Respondent in default on 2 November 2011.
12.
In addition, turning their attention to the 2011-12 season, the members of the
Chamber established that, in fact, by the time the player terminated the
employment contract, i.e. 23 November 2011, the following monies relating to
the 2011-12 season had fallen due: three monthly payments of EUR 10,000 each,
i.e. as from August until October 2011; EUR 60,000 out of the EUR 200,000 down
payment of August 2011, which in fact constituted an advance payment according
to the wording of the employment contract, on a pro rata temporis basis; and the
amount of EUR 4,410 relating to appearance bonuses, totalling EUR 94,410. On
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the other hand, the Chamber noted that according to the list of payments
presented by the Claimant, the Respondent had remitted the total amount of EUR
30,000 during the 2011-12 season to the Claimant. Consequently, the total
amount of EUR 64,410 for the 2011-12 season had remained outstanding by the
time the Claimant terminated the employment contract.
13.
On account of the aforementioned, in particular in view of the considerations
under points II./7. and II./8 above, the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant, until 23 November 2011,
date on which the Claimant terminated the contract, the total amount of EUR
286,059 relating to the 2010-11 and 2011-12 seasons.
14.
All of the above led the Chamber to conclude that the Respondent was liable for
breach of the employment contract by repeatedly and for a significant period of
time failing to respect its contractual obligations towards the Claimant.
Consequently, the members of the Chamber decided that the Claimant had just
cause to terminate the employment contract with the Respondent on 23
November 2011.
15.
Following the above, the Chamber established that the Respondent is to be held
liable for the early termination of the employment contract with just cause by the
Claimant on 23 November 2011.
16.
Subsequently, the Chamber focussed its attention on the consequences of such
termination with just cause of the employment contract by the Claimant. Taking
into consideration art. 17 par. 1 of the Regulations and the DRC’s respective
jurisprudence, the Chamber decided that the Claimant is entitled to receive from
the Respondent compensation for the termination of the contract with just cause
in addition to payments that have remained outstanding on the basis of the
relevant employment contract when the Claimant terminated the contract with
just cause.
17.
Taking into account the documentation remitted by the Claimant to substantiate
his claim as well as the considerations under numbers II./11. to II./13. above, the
Chamber decided that the Respondent is liable to pay to the Claimant the amount
of EUR 286,059 in connection with outstanding remuneration due to the Claimant
in accordance with the relevant contract until the date of termination of the
employment contract with just cause by the Claimant on 23 November 2011.
18.
In addition, taking into consideration the Claimant’s claim for interest, the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
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amount of EUR 286,059 as of the day on which the claim was lodged, i.e. 31 July
2012, until the date of effective payment.
19.
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, and depending on whether the contractual breach falls
within the protected period.
20.
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. The Chamber established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
21.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that the said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
22.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
new contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of
art. 17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and the new contract in the calculation of the amount of
compensation.
23.
In accordance with the employment contract signed by the Claimant and the
Respondent, which was to run for seven months more after the breach of contract
occurred, i.e. as from November 2011 until 31 May 2012, the Claimant was to
receive remuneration amounting to EUR 210,000 bearing in mind that 3/10th of
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the down payment of EUR 200,000 for the 2011-12 season was included in the
calculation of the outstanding remuneration (cf. point II./12. above). Said amount
of EUR 210,000 consists of the remainder of EUR 140,000 of the August 2011
down payment and of EUR 70,000 in monthly payments. Consequently, the
Chamber concluded that the amount of EUR 210,000 serves as the basis for the
final determination of the amount of compensation for breach of contract.
24.
The Chamber then took due note of the employment situation of the Claimant
after the termination of the employment contract with the Respondent and of
the relevant new employment contract that he had entered into. It was duly
noted that, on 1 February 2012, the player signed an employment contract with
the Club X, from country T, valid until 31 May 2013, in accordance with which he
was entitled to receive, until 31 May 2012, a monthly salary of EUR 25,000 over 4
months as well as the amount of EUR 25,000 payable in February 2012.
25.
Hence, the Chamber concluded that on the basis of the aforementioned new
employment contract the Claimant has received income amounting to EUR
125,000 as from February 2012 until the end of May 2012.
26.
Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance
with the constant practice of the Dispute Resolution Chamber as well as the
general obligation of the player to mitigate his damages, such remuneration
under the new employment contract(s) shall be taken into account in the
calculation of the amount of compensation for breach of contract.
27.
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 85,000 to the Claimant as
compensation for breach of contract.
28.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 31 July 2012,
until the date of effective payment.
29.
Subsequently, the members of the Chamber referred to the Claimant’s request to
be awarded the amounts claimed on a net basis. In this respect, the Chamber took
into account that the relevant employment contract does not include any clause
stipulating that the amounts payable by the Respondent to the Claimant are on a
net basis and, consequently, the Chamber had to reject the Claimant’s claim in this
regard.
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30.
The Chamber concluded its deliberations on the present matter by rejecting any
further request filed by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player Z, is partially accepted.
2.
The Respondent, Club A, 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 286,059 plus interest of 5% p.a. as from 31 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
EUR 85,000 plus interest of 5% p.a. as from 31 July 2012 until the date of effective
payment.
4.
In the event that the amounts 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 a formal
decision.
5.
Any further claim lodged by the Claimant is rejected.
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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 article 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
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