Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 August 2015,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Jon Newman (USA), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 12 July 2012, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract), valid as from the date of
signature until 30 December 2013.
2.
According to art. 7.1 of the contract, the Claimant was entitled to receive a
monthly salary amounting to USD 60,000 net, payable “per month on 12 of each
month in the period of this contract […]”.
3.
According to art. 9.5 of the contract, “[the Respondent] is in charge of booking
air ticket for [the Claimant]. If [the Claimant] buys the air ticket by himself, [the
Respondent] shall pay [the Claimant] agreement of price of air ticket signed by
and between [the Respondent] and Airline company”.
4.
Furthermore, art. 15 of the contract stipulates that “if [the Claimant] violates the
club rules and regulations and discipline, absenteeism, absent training and
competition or violation of disciplinary penalties affect the race track, or out,
home leave is not affected by time and rejoin the training, competitions, clubs
and other conditions of work a parties deemed necessary, without any conditions
will have the right to unilaterally terminate the contract [the Respondent] does
not assume any liability, [the Claimant] has no right to any form of appeal and
compensation requirements, such as by [the Respondent] to terminate the
contract […]”.
5.
In accordance with art. 20 of the contract, “if [the Claimant] is to be transferred
to another Club in the period under contract with [the Respondent], the transfer
fee belong to the [Respondent]”.
6.
Finally, art. 24 of the contract establishes that “in 10 working days after the end
of 2012 season […] [the Respondent] have right terminate this contract with [the
Claimant] without any compensation. [The Respondent] also will not pay to [the
Claimant] the rest salary”.
7.
On 5 November 2013, the Claimant lodged a claim against the Respondent in
front of FIFA for breach of contract, requesting the payment of the total amount
of USD 840,000, plus interest, broken down as follows:
a) USD 60,000 corresponding to the outstanding salary due in November
2012;
b) USD 60,000 corresponding to the outstanding salary due in December
2012;
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c) USD 12,000 corresponding to 6 days of outstanding salary due in January
2013
(USD 60,000 : 30 x 6);
d) USD 708,000 corresponding to the residual value of the contract, i.e. 11
months [February-December 2013] and 24 days [from January 2013], USD
60,000 x 11.24 as per the Claimant.
8.
In his claim, the Claimant explains that the amount of USD 132,000 was allegedly
outstanding at the end of the 2012 season (cf. points I.7. a), b) and c) above). In
view of the lack of payment, the Claimant decided not to resume training with
the Respondent after the end of the 2012 season. On 8 October 2013, the
Claimant allegedly sent a letter to the Respondent in order to try to reach an
amicable settlement. This letter, however, remained unanswered, as per the
Claimant.
9.
In its reply, the Respondent rejected the Claimant’s allegations and explained
that he allegedly travelled back to his native country B at the end of the 2012
season, where he “passed his willing to serve to Club E through our team
translator to our club. And the player asked for releasing his ITC from country D
back to country B”. As a consequence, and referring to art. 24 of the contract (cf.
point I.6. above), the Respondent terminated the contract with the Claimant on 2
December 2012. In its termination letter, the Respondent states that “according
to the report of coaches’ decision, your ability isn’t fit for the request of training
and playing matches for our team […] And also finish all the economic relation
between our club and you”. Equally, taking into account the Claimant’s absence
after the holiday break, the Respondent pointed out that it had a just cause to
terminate the contract based on art. 15 of the contract (cf. point I.4. above).
Finally, the Respondent, referring to art. 20 of the contract (cf. point I.5. above),
stated that it is entitled to receive the relevant transfer compensation that would
have arisen from the transfer of the Claimant to the Club E Association. Thus, the
Respondent deems not to have any obligation to pay compensation to the
Claimant since their contractual relationship ended at the end of the 2012
season.
10.
In his replica, the Claimant confirmed having travelled to country B for holidays
at the end of the 2012 season. In this context, he explained that he was willing
to return to country D and resume training after the holiday break but,
ultimately, remained in country B due to the alleged existence of outstanding
salary payments and to the fact that the Respondent failed to provide him with a
return ticket to country D. Equally, the Claimant stated never having received the
Respondent’s communication regarding the termination of the contract on 2
December 2012 and insists that he terminated the contract with the club with
just cause at the end of the 2012 season. With regard to the Respondent’s
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request for the payment of a transfer compensation in accordance with art. 20 of
the contract, the Claimant claims that the Respondent should not be entitled to
it, since it alleges having terminated his contract on 2 December 2012 already,
whereas his ITC was only issued by the Football Association of country D on 25
January 2013, i.e. after the Respondent had considered their contract as
terminated.
11.
In spite of having been invited to do so, the Respondent failed to present its final
comments on the present affair.
12.
The Claimant informed FIFA that he concluded the following new employment
contracts:
a) Club E (country B), from 3 January 2013 until 2 January 2014 for a
monthly salary of USD 15,000. As per the player, this contract was
terminated on 15 June 2013;
b) Club F (country G), from 10 October 2013 until 30 June 2015, for a
monthly salary of 1,082,000. As per the player, this contract was
terminated on 15 December 2014.
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 Chamber referred to art. 21 par. 1 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules). The present matter was submitted
to FIFA on 5 November 2013. Therefore, the Chamber concluded that the edition
2012 of the Procedural Rules was applicable to the matter at hand (cf. art. 21 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 b) of the Regulations on the Status and Transfer of
Players (edition 2015; hereinafter: the Regulations), the Dispute Resolution
Chamber shall adjudicate on an employment-related dispute with an
international dimension, between a player from country B and a club from
country D.
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 par. 2 of the Regulations (editions 2012, 2014 and 2015), and
considering that the present claim was lodged on 5 November 2013, the 2012
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edition of said regulations is applicable to the matter at hand 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,
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.
In this respect, the members of the DRC acknowledged that it was undisputed by
the parties that, on 12 July 2012, they signed an employment contract valid until
30 December 2013, as per which the Claimant was entitled to receive the
remuneration and benefits detailed in points I.2. and I.3. above.
6.
Subsequently, the Chamber took note of the argumentation put forward by the
Claimant, according to which the Respondent had failed to pay his remuneration
for November and December 2012, consequent to which he decided not to
resume training with the club after the his year-end holidays in December 2012
and to sign a new employment contract with the club from country B, Club E, on
3 January 2013. Thus, the Claimant claims from the Respondent the payment of
the total amount of USD 840,000, as outstanding remuneration and
compensation, the breakdown of which is detailed in point I.7. above.
7.
The Chamber also took note of the argumentation of the Respondent, which
claims to have terminated the contract with the Claimant in writing on 2
December 2012, due to his allegedly poor performance (cf. point I.9. above). The
Respondent also claims that, since the Claimant did not return to the club at the
end of his 2012 year-end holidays, it had another just cause to terminate the
contract with him.
8.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant and the
allegations of both parties, was to determine whether the employment contract
had been unilaterally terminated with or without just cause by one of the
parties, and which party was responsible for the early termination of the
contractual relationship in question. The DRC also underlined that, subsequently,
it would be necessary to determine the consequences for the party that caused
the breach of the relevant employment contract.
9.
In view of the above, the Chamber first deemed necessary to establish the exact
date of termination of the contract, in view of the parties’ diverging statements
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in this regard. In this context, the DRC first noted that, while the Respondent
claims to have terminated the contract with the Claimant in writing on 2
December 2012, the Claimant denies having ever received such letter from the
Respondent and deems to have terminated the contract unilaterally by not
returning from his holidays at the end of 2012. The Chamber then noted that the
Respondent had provided a copy of the termination letter of 2 December 2012.
Furthermore, the DRC noted that, even though the Claimant contests having
received such letter, the latter was uploaded in the Transfer Matching System
(TMS) by Club E, in the context of the Claimant’s transfer to the club from
country B in January 2013. The transfer is described in TMS as “engage out of
contract free of payment” and the termination letter of 2 December 2012 is
uploaded as “proof of last contract end date”.
10.
In view of the foregoing and based on the documentation at its disposal, the
Chamber deemed that the Respondent put an end to the contractual
relationship on 2 December 2012.
11.
Having established the foregoing, the Chamber subsequently went on to
deliberate as to whether the reasons given by the Respondent for the unilateral
termination on 2 December 2012, i.e. the Claimant’s alleged insufficient
performance and his failure to return from his 2012 year-end holidays, could be
considered as a just cause for it to prematurely terminate their employment
relationship.
12.
In accordance with its longstanding and well-established jurisprudence, the
Chamber was keen to emphasize that the poor performance of a player –
indicated in the Respondent’s letter of 2 December 2012 as the reason for
termination – does not constitute a just cause for a club to prematurely
terminate the employment relationship, as this judgement is mainly and
unmeasurable. Thus, due to the subjective and arbitrary nature of such grounds
for dismissal, the Chamber concluded that this argument of the Respondent
could not be sustained in order to justify the unilateral termination of the
contract on 2 December 2012.
13.
In addition to that, the DRC was keen to point out that the Claimant’s nonreturn from his year-end holidays happened nearly a month after the
Respondent had terminated the contract on 2 December 2012. Therefore, it
could not possibly be retroactively considered as a just cause for the unilateral
termination of the contract by the Respondent.
14.
Consequently, the DRC concluded that the contract was terminated without just
cause by the Respondent on 2 December 2012. Consequently, the Respondent is
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to be held liable for the payment of an amount of money to the Claimant as
compensation for such unilateral breach without just cause.
15.
However, prior to establishing the amount of compensation for breach of
contract due to the Claimant by the Respondent, the DRC proceeded with the
calculation of any outstanding monies payable to the Claimant under the terms
of the employment contract until the date of termination, i.e. 2 December 2012.
16.
At this point and for the sake of good order, the DRC deemed it appropriate to
remind the parties of the basic principle of burden of proof, as stipulated in art.
12 par. 3 of the Procedural Rules, according to which a party claiming a right
from an alleged fact shall carry the respective burden of proof. Bearing in mind
the aforementioned principle, the DRC noted that in the present case the
Respondent bore the burden of proof regarding the payment of the Claimant’s
remuneration.
17.
In this regard, the DRC noted that it remained uncontested by the Respondent
that, as from November 2012, no contractual amounts had been paid to the
Claimant.
18.
Taking into consideration the Claimant’s claim as well as the wording of art. 7.1
of the contract (cf. point I.2. above), the Chamber concluded that, in accordance
with the general legal principle of pacta sunt servanda, the Respondent must
fulfill its obligations as per the employment contract concluded with the
Claimant and, consequently, is to be held liable to pay him the total amount of
USD 60,000, as outstanding salary for November 2012, as the only unpaid salary
due until the date of termination.
19.
The DRC further established that an interest rate of 5% p.a. applies over the
aforementioned amount, as from 5 November 2012, i.e. the date of claim.
20.
In continuation, the DRC focused its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, 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 player 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.
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21.
In application of the relevant provision, the DRC held that it first of all had to
clarify as to whether the pertinent employment contract contained 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 DRC referred to art. 15 of the contract (cf. point I.4. above). In this
regard, the DRC concluded that such clause – describing a possibility of unilateral
termination of the contract by the Respondent to the financial disadvantage of
the Claimant, in total disagreement with the longstanding jurisprudence of the
DRC – cannot be taken into consideration for the determination of the amount
of compensation payable by the Respondent to the Claimant. In any case, the
DRC was keen on pointing out that none of the situations described in art. 15 of
the contract appear to apply to the case at hand.
22.
As a consequence, 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 DRC
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. In this regard, the DRC emphasized beforehand
that each request for compensation for contractual breach has to be assessed on
a case-by-case basis taking into account all specific circumstances of the
respective matter.
23.
In order to estimate the amount of compensation due to the Claimant in the
present case, the Chamber first turned its attention to the remuneration and
other benefits due to him under the existing contract and/or the new contract(s),
which criterion was considered to be essential. The DRC deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take
into account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
24.
In view of the foregoing, the DRC concluded that the residual value of the
contract, to be calculated taking into account the period ranging from 2
December 2012 until 30 December 2013, corresponding to 13 months à USD
60,000, amounted to USD 780,000. This amount should serve as the basis for the
final determination of the amount of compensation for breach of contract.
25.
In continuation, the DRC 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
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amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
26.
Indeed, the Claimant signed new employment contracts with the club from
country B, Club E, on 3 January 2013, and with the club from country G, Club F,
on 10 October 2013, according to which he was entitled to receive the amounts
detailed in point I.12. above.
27.
Consequently, the Chamber established that the total value of the new
employment contracts concluded between the Claimant and Club E and,
subsequently, Club F, for the period of 3 January 2013 until 30 December 2013,
amounted to approximately USD 95,000, after conversion.
28.
In this respect and bearing in mind 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 USD 685,000 to the Claimant, plus 5%
interest p.a. as of 5 November 2013, i.e. the date of the claim, which was
considered to be a reasonable and justified amount of compensation for breach
of contract in the present matter, in addition to the amount of USD 60,000 due
as outstanding remuneration.
29.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim filed by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as
from the date of notification of this decision, the amount of USD 60,000 as
outstanding remuneration, plus 5% interest p.a. as from 5 November 2013 until
the date of effective payment.
3.
The Respondent is ordered to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of USD 685,000 as compensation
for breach of contract, plus 5% interest p.a. as from 5 November 2013 until the
date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
In the event that the amounts due to the Claimant plus interest are not paid by
the Respondent within the stated time limit, the present matter shall be
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submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
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:
Markus Kattner
Acting Secretary General
Encl: CAS directives
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