Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 27 August 2014,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player B, from country S
as Claimant
against the club,
Club E, from country C
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 8 July 2013, Player B, from country S (hereinafter: the Claimant), and Club E, from
country C (hereinafter: the Respondent), signed an initial employment contract
(hereinafter the “2013/2014 contract”) valid from the date of signature until 30 May 2014.
In addition, on 14 August 2013, a further supplementary contract to the 2013/2014
contract was signed.
2.
The 2013/2014 contract specified that the player would be entitled to receive from the
club the net payment of EUR 15,000 for the 2013/2014 season, to be paid in ten monthly
instalments of EUR 1,500 each, with the first payment due on 30 August 2013 and the
following payments at the end of each month.
3.
The supplementary contract meanwhile stipulated an additional payment to the player
of EUR 10,000 to be paid in ten monthly instalments of EUR 1,000 each, with the first
payment also due on 30 August 2013. Also included in this supplementary contract was a
payment to the player of EUR 300 per month for accommodation costs, to be paid from
the start of the rental contract, as well as a return ticket to his country of origin.
4.
Both contracts established that “the player agrees to grant the club a period of grace of
45 days”.
5.
According to the player, on 8 July 2013, the parties also signed another employment
contract (hereinafter the “2014/2015 contract”) valid from 1 June 2014 to 30 May 2015,
as well as another supplementary contract to the 2014/2015 contract, with the same
financial terms and conditions mentioned in points 1, 2 and 3.
6.
On 2 April 2014, the player lodged a claim with FIFA against the club, requesting the
payment of the total amount of EUR 51,230 plus 5% annual interest, broken down as
follows:
a. Pending salary payments under the 2013/2014 contract and the corresponding
supplementary agreement, in the amount of EUR 14,630 plus 5% interests since
the date of the termination as follows:
EUR 400 net for September 2013;
EUR 2,500 net for October 2013;
EUR 2,500 net for November 2013;
EUR 2,500 net for December 2013;
EUR 2,500 net for January 2014;
EUR 2,500 net for February 2014;
EUR 1,500 net for rent for the months of October, November and December
2013 and for January and February 2014 (EUR 300 x 5);
EUR 230 net for the return flight ticket to his country of origin.
b. Compensation for unilateral termination of the contracts in the amount of EUR
37,500:
Player B, from country S / Club E, from country C
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EUR 7,500 net corresponding to the salary payments that the player should
have received from March to May 2014 under the 2013/2014 contract and the
corresponding supplementary contract (3 x EUR 2,500);
EUR 30,000 net corresponding to the salary payments that the player should
have received from August 2014 to May 2015 under the 2014/2015 contract and
the corresponding supplementary contract (10 x EUR 2,500).
7.
In his claim, the player asserted that the club had only paid the salary for the month of
August 2013 and part of September 2013.
8.
Subsequently, the player had initially, on 18 January 2014, sent a letter to the club
informing it that it owed him part of the salary for September and the full salary
payments for October, November and December 2013 as well as three months of
accommodation allowance, and issuing a deadline of seven working days to make the
payment, threatening to rescind the contract with just cause if the payments were still
not made.
9.
Finally, as the club still did not pay the outstanding remuneration, the player sent a
letter, on 4 March 2014, notifying the club of the termination of the contract with just
cause and of his return to his country of origin.
10. Despite the country C club having been invited to submit a response to the player’s claim
and, upon request of the club, an extension to the deadline for submitting its response
having been granted, the club sent his reply on 7 August 2014 after the closure of the
investigation phase on 5 June 2014.
11. In his reply, the club stated that firstly, the DRC judge is not competent to examine the
supplementary contracts as said contracts has not been registered within the country C
Football Association and did not concern and employment related dispute. Furthermore,
the club asserted that he paid to the player all the outstanding salaries until the leaving
of the player and also that he imposed some fines to the player due to his bad behaviour,
absence in some training sessions and damages cause to the house and car provided by
the club, but without enclosing any evidence in this respect.
II. Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the matter at
hand. In this respect, he took note that the present matter was submitted to FIFA on 2
April 2014. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 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 2014) he is
Player B, from country S / Club E, from country C
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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 C
club,.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26 par.
1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2014), and
considering that the present claim was lodged on 2 April 2014, the 2012 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect, the
DRC judge started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the DRC judge
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.
In this respect, the DRC judge acknowledged that the parties to the dispute had signed
the 2013/2014 contract as well as the supplementary contract, both valid from 8 July 2013
until 30 May 2014, in accordance with which the Respondent would pay the Claimant a
net salary per season of EUR 25,000, payable in ten equal monthly instalments of EUR
2,500 each year as well as the payment of a return flight to his origin country and EUR
300 per month for accommodation costs.
6.
The DRC judge further took note that, on 8 July 2013, the parties also signed the
2014/2015 contract as well as the supplementary contract, both valid from 1 June 2014 to
30 May 2015, in accordance with which the Respondent would pay the Claimant a net
salary per season of EUR 25,000, as well as the payment of a return flight to his origin
country and EUR 300 per month for accommodation costs.
7.
The DRC judge further acknowledged that the Claimant lodged a claim against the
Respondent, requesting the payment of the total amount of EUR 51,230, regarding
outstanding remuneration and compensation for breach of contract.
8.
Subsequently, the DRC judge observed that the Respondent, for its part, in spite of
having been invited to do so, failed to present its response to the claim of the Claimant
within the relevant time-limit. In fact, the reply of the Respondent was only received
after the investigation-phase of the matter had already been concluded. As a result, the
DRC judge decided not to take into account the reply of the Respondent and established
that, in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision
upon the basis of those documents on file that were provided prior to the closure of the
investigation-phase, in casu, upon the statements and documents presented by the
Claimant.
Player B, from country S / Club E, from country C
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9.
Having that in mind, the DRC judge further observed that according to the Claimant, he
terminated the contract in writing on 4 March 2014, after having put the club in default
also in writing on 18 January 2014, inter alia, as a result of his remuneration having
remained unpaid by the Respondent since September2013.
10. The DRC judge highlighted that the underlying issue in this dispute was to determine
whether the contract had been terminated by the Claimant on 4 March 2014 with or
without just cause. The DRC judge also underlined that, subsequently, it would be
necessary to determine the financial consequences for the party that is to be held liable
for the early termination of the pertinent employment contract.
11. In line with the above, the DRC Judge took into consideration that according to the
Claimant, by the time he terminated the contract, the Respondent had failed to pay his
remuneration in the total amount of EUR 14,630, corresponding to the partial monthly
salary of September 2013, the monthly salaries from October 2013 until February 2014,
five months of accommodation costs from October 2013 until February 2014 and a return
flight to his home country (cf. point I.6).
12. Considering the financial conditions of the contracts as well as the arguments brought
forward by the Claimant, the DRC Judge took note that on the date of termination, i.e. 4
March 2014, more than five salaries were outstanding as well as accommodation costs.
13. Having taken into consideration all of the above, the DRC Judge decided that it could be
established that the Respondent had seriously neglected its contractual obligations
towards the Claimant in a continuous and constant manner, i.e. the Respondent had
failed to remunerate the Claimant for a substantial period of time. Moreover, the DRC
judge took into account that the Claimant had put the club in default, establishing a
deadline for the payment of the outstanding remuneration.
14. Therefore, the DRC Judge considered that the Respondent was found to be in breach of
the 2013/2014 contract and supplementary agreement and that the breach was of such
seriousness that, in line with the Chamber’s long-standing and well-established
jurisprudence, the Claimant had a just cause to unilaterally terminate the contractual
relationship with the Respondent on 4 March 2014, having previously put the
Respondent in default of payment of the outstanding amounts.
15. On account of the above, the DRC Judge established that the Claimant had terminated
the contract with just cause on 4 March 2014 and that, consequently, the Respondent is
to be held liable for the early termination of the employment contact with just cause by
the Claimant.
16. Having established that the Respondent is to be held liable for the early termination of
the contract with just cause by the Claimant, the DRC Judge focussed its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC Judge decided that the Claimant is entitled to receive an amount of
money from the Respondent as compensation for the termination of the contract with
Player B, from country S / Club E, from country C
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just cause in addition to any outstanding payments on the basis of the relevant
employment contract.
17. First of all, the DRC Judge concurred that the Respondent must fulfil its obligations as per
the 2013/2014 contract and supplementary contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the DRC Judge decided that the
Respondent is liable to pay to the Claimant the remuneration that was outstanding at
the time of the termination i.e. the amount of EUR 14,630, consisting of the outstanding
salaries corresponding to September (partially), October, November, December 2013 and
January and February 2014 as well as five monthly accommodation costs and a return
flight.
18. As a consequence, the DRC Judge decided that the Respondent is liable to pay the total
amount of EUR 14,630 to the Claimant corresponding to the outstanding remuneration
at the time of the unilateral termination of the contract by the Claimant with just cause.
19. In addition, taking into consideration the Claimant’s claim for interest and in accordance
with its well-established jurisprudence, the DRC Judge decided to award the Claimant
interest at the rate of 5% p.a. as of the date of the termination.
20. In continuation, the DRC Judge focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the DRC Judge
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.
21. In application of the relevant provision, the DRC Judge held that it first of all had to
clarify whether the pertinent 2013/2014 and 2014/2015 contracts contained any clause, by
means of which the parties had beforehand agreed upon a compensation payable by the
contractual parties in the event of breach of contract. In this regard, the DRC Judge
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
22. As a consequence, the DRC Judge 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 DRC Judge recalled that 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.
23. The DRC Judge then turned their attention to the remuneration and other benefits due
to the Claimant under the existing contracts and/or the new contract, which criterion was
considered by the DRC Judge to be essential. The DRC Judge deemed it important to
Player B, from country S / Club E, from country C
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emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC Judge to
take into account both the existing contract and the new contract in the calculation of
the amount of compensation.
24. Bearing in mind the foregoing, the DRC Judge proceeded with the calculation of the
monies payable to the Claimant under the terms of the 2013/2014 and 2014/2015
contracts and its supplementary contracts, as from its date of termination with just cause
by the Claimant, i.e. 4 March 2014, until the date of expiry, i.e. 30 May 2015, and
concluded that the Claimant would have received in total EUR 37,500 as remuneration
had the contracts been executed until its expiry date. Consequently, the DRC Judge
concluded that the amount of EUR 37,500 serves as the basis for the final determination
of the amount of compensation for breach of contract in the case at hand.
25. In continuation, the DRC Judge 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.
26. Indeed, the Claimant informed FIFA that he stills unemployed since the termination of
the contract with the Respondent.
27. Consequently, on account of all of the above-mentioned, the DRC Judge decided to
accept the Claimant’s claim and that the Respondent must pay the amount of EUR 37,500
as compensation for breach of contract in the case at hand.
Decision of the Dispute Resolution Chamber Judge
1.
The claim of the Claimant, Player B, is accepted.
2.
The Respondent, Club E, 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 14,630,
plus 5% interest as from 5 March 2014 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
37,500.
4.
In the event that the amounts due to the Claimant (cf. points 2 and 3) are not paid by
the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due
after expiry of the aforementioned time limit and the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration and a
formal decision.
Player B, from country S / Club E, from country C
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5.
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 DRC judge
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 DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player B, from country S / Club E, from country C
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