Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 September 2012,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
Player B, from country F
as Claimant
against the club,
Club L, from country P
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 31 August 2010, Player B, from country F (hereinafter: player or Claimant) and the
Club L, from country P (hereinafter: club or Respondent), entered into an
employment contract valid from that date until 30 June 2012.
2.
According to the contract, the club agreed to pay to the player, inter alia, the
following salary:
• For the 2010-2011 season, a total amount of EUR 151,410;
• For the 2011-2012 season, a total amount of EUR 181,692.
Payment of the aforementioned amounts was to be made, pro rata, in arrears by
the 10th day of the following month.
3.
On 27 December 2011, the player filed a claim with FIFA against the club invoking just
cause for the unilateral termination of the contract and requesting that the club be
ordered to pay an aggregate amount of EUR 168,063, as follows:
• monthly salary for June and salary for 10 days of July for the amount of EUR
20,188;
• compensation for breach of contract for the total amount of EUR 147,875, as
follows:
- EUR 40,376 as salary for July 2011, August 2011 and September 2011; and
- EUR 107,499, representing the difference between the player’s salary at the
club and his salary at his new club, Club F, from 1 October 2011 until 30 June
2012.
4.
According to the player, in a meeting that allegedly took place at the beginning of
June 2011, the club informed him that he would no longer be entitled to train with
any of the club’s teams, without giving any reason for such a decision. The player
alleges that, at that same meeting, the club “[s]howed him a paper (an appendix of
15.04.2011) with a faked signature of Player B, say that both parties agree to cancel
the contract to the 30.06.2011.” According to the player, he had a good contract with
the club and did not have any reason to terminate it.
5.
The player went on to maintain that, on 30 June 2011, after several discussions
between both parties, the club informed him that he would be allowed to train with
the reserve team. The player provided a document signed by the club which states
that “[I]n reply to Player B’S manager request we agree, as management of the Club
L, that he can take part in training of the reserve team, until he gets new contract
signed in new club.” According to the player, this permission was cancelled by the
club, orally, on 5 July 2011 and the player was prevented from training.
Player B, from country F / Club L, from country P
6.
In a letter dated 6 July 2011 addressed to the club, the player maintained that he had
been prevented from training by the club since 5 July 2011, despite having a valid
contract until 30 June 2012, and requested the club to allow him to train.
7.
On 10 July 2011, the player terminated the contract based on the fact that the club
had prevented him from training with the team since 5 July 2011 and requested the
club to pay him for services rendered until that date.
8.
The player claimed that the club informed him that, in its opinion, the contract had
already been terminated on 30 June 2011. The player stressed once again that he had
not agreed to any early termination of the contract.
9.
The player also claimed that the salary for June 2011 had not been paid by the club
and that the latter informed him that no further salaries would be paid since, in the
club’s opinion and as stated, the contract had ended on 30 June 2011.
10.
Despite having been invited to do so, the club did not present its position.
11.
The player informed FIFA that, on 1 October 2011, he signed an employment contract
with the Club F, from country Q.
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, it took note that the present matter was submitted to FIFA on 27 December
2011, thus after 1 July 2008. 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. article 21 par.
2 and 3 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 Players (edition 2010)
(hereinafter: Regulations) 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 F player and a country P club.
3.
Furthermore, the DRC analysed which 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 on the Status and Transfer of Players
Player B, from country F / Club L, from country P
(edition 2010) and also considering that the present claim was lodged in front of FIFA
on 27 December 2011, the edition 2010 of the Regulations on the Status and Transfer
of Players (hereinafter: the 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 Dispute Resolution Chamber entered into the substance of the
matter. The members of the Chamber started by acknowledging the facts of the case,
as well as the documentation contained in the file. In this respect, the Chamber
recalled that the parties had signed an employment contract valid from 31 August
2010 until 30 June 2012, in accordance with which the Claimant was entitled to
receive, inter alia, a total amount of EUR 151,410 for the 2010-2011 season and EUR
181,692 for the 2011-2012 season.
5.
The Chamber, first and foremost, focused its attention on the question as to when the
termination of the contract had taken place and who had promoted such
termination. In this respect, the Chamber acknowledged that the Claimant had
provided a copy of the termination letter which he had sent to the Respondent on 10
July 2011 for purposes of terminating the contract and that the latter did not contest
having received such letter. The members of the Chamber decided, therefore, that
there was no doubt that the termination of the contract had taken place on the
aforementioned date and that it had been the Claimant promoting such termination.
The DRC pointed out that the central issue would be, thus, to determine if the
Claimant had had just cause or not to terminate the contract.
6.
In that respect, the Chamber noted the Claimant’s allegation that, in a meeting that
presumably took place in June 2011, the Respondent informed him that he would no
longer be permitted to train with any of the club’s teams. The Chamber also took due
note of the Claimant’s statement that the Respondent eventually authorized him to
train with the club’s teams, but only until he was able to sign with another club. In
particular, the members of the Chamber paid close attention to a letter apparently
sent by the Respondent precisely confirming the nature of the Claimant’s allegations
in connection thereto.
7.
In continuation, the DRC also noted that the Claimant stated that, on 5 July 2011, the
Respondent apparently changed its mind and informed him that he would not be
permitted to train with the club after all.
8.
The Chamber also acknowledged that before terminating the contract, the Claimant
addressed a letter to the Respondent requesting the latter to grant him access to
training, which apparently was unsuccessful.
Player B, from country F / Club L, from country P
9.
Finally, the Chamber also wished to emphasize that, according to the Claimant, upon
termination of the contract on 10 July 2011, the June 2011 salary was outstanding
and was yet to be paid.
10.
The Respondent, for its part, failed to present its response to the claim of the player,
in spite of having been invited to do so. For that reason, the DRC did not have any
option other than to consider that the Respondent had renounced its right to defence
and, thus, had accepted the allegations of the Claimant.
11.
Furthermore, as a consequence of the aforementioned consideration, the members of
the Chamber stressed that, in accordance with art. 9 par 3 of the Procedural Rules,
any decision would have to be taken upon the basis of the documents already on file,
in other words, upon the statements and documents presented by the Claimant.
12.
In light of the above, the Chamber decided that, based on the documentation on file,
it was undisputed that the player had been denied access to training for a
considerable period of time before the termination of the contract.
13.
Furthermore, the DRC stressed that it was not provided with any explanation or
element whatsoever that could justify that action by the Respondent.
14.
To this end, the Chamber reminded its well established jurisprudence that providing
access to proper training to its players constitutes an essential component of a club’s
obligations under an employment contract and that failure to comply with such duty
must be regarded as a fundamental breach of contract.
15.
The Chamber decided, therefore, that the Claimant did have just cause to unilaterally
terminate the contract.
16.
As a consequence, the Chamber decided that the Respondent is liable to pay the
amounts which were outstanding under the contract at the moment of termination;
i.e. EUR 15,141 as salary for June 2011. (cf. point I. 2 above)
17.
The Chamber also established that, in accordance with art. 17 par. 1 of the
Regulations, the Respondent is also liable to pay compensation for damages suffered
by the Claimant as a consequence of the early termination of the contract due to the
breach of contract committed by Respondent.
18.
In continuation, the Chamber focused 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 reminded 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
Player B, from country F / Club L, from country P
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 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. 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.
The Chamber also noted that the Claimant had requested the payment of
compensation for breach of contract on the basis of the aggregate amount of salaries
to which he would be entitled under the contract until its original expiry date, less
the amounts to which he was entitled under his new employment contract with Club
F. (cf. points I. 3 and 11 above)
21.
On account of all of the above-mentioned considerations and having made the
appropriate calculations, the Chamber decided that the Respondent must pay the
amount of EUR 152,892 to the Claimant as compensation for breach of contract.
22.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant were rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player B, is partially accepted.
2.
The Respondent, Club L, has to pay to the Claimant, Player B, within 30 days as from
the date of notification of this decision, outstanding remuneration in the amount of
EUR 15,141 and the amount of EUR 152,892 as compensation for breach of contract.
3.
In the event that the aforementioned amounts are not paid within the stated time
limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time
limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
Player B, from country F / Club L, from country P
5.
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 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 B, from country F / Club L, from country P