Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 23 September 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player A, from country M
as Claimant
against the club,
Club R, from country S
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 31 August 2012, Player A, from country M (hereinafter: player or Claimant), and
Club R, from country S (hereinafter: club or Respondent), signed an employment
contract valid as from 31 August 2012 until 30 June 2013.
2.
In accordance with the employment contract, the player was entitled to receive
inter alia the following benefits:
a. EUR 5,000 “in currency of country M equivalent” upon signature of the
contract;
b. EUR 5,000 “in currency of country M equivalent” on 1 November 2012;
c. EUR 2,000 “in currency of country M equivalent” as monthly salary;
d. Accommodation and food.
3.
On 29 January 2013, the player put the club in default of payment of the total
amount of EUR 20,000 (including salaries as of September 2012 until January 2013)
setting an 8 days’ time limit to remedy the breach, which notice has remained
unanswered.
4.
On 13 February 2013, the club also having failed to respond to a second default
notice, the player notified the club of the termination of the employment contract.
5.
On 11 March 2013, the player lodged a claim against the club in front of FIFA
maintaining that the club acted in breach of the employment contract.
Consequently, the player asks that sanctions be imposed upon the club and he
claims payment of compensation in the amount of EUR 10,000 in addition to
outstanding remuneration of EUR 20,830 as follows:
a. EUR 10,000 related to the EUR 5,000 due upon signature and the EUR 5,000
due on 1 November 2012;
b. EUR 1,330 related to the remainder of his September 2012 salary;
c. EUR 8,000 related to his salaries as from October 2012 until January 2013;
d. EUR 1,500 related to accommodation for 5 months;
e. EUR 10,000 as compensation equalling the remaining value of the
employment contract (February 2013 until June 2013);
f. 5% interest p.a. as of the respective due dates for each of the outstanding
amounts and in accordance with Swiss law for the amount of compensation.
6.
The player indicated that after the aforementioned termination of the employment
contract with the club he did not enter into any other employment contract.
Player A, from country M / Club R, from country S
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7.
The club has failed to respond to the claim in spite of having been invited to do so.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 11 March 2013. Consequently, the 2012 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 at hand (cf. art. 21
par. 2 and par. 3 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
2012), he is competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a player
from country M and a country S 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 2012) and considering that the present claim was lodged on 11 March 2013,
the 2012 edition of said Regulations (hereinafter: the Regulations) is applicable to
the present matter 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 acknowledged that, on 31 August 2012, the Claimant and the
Respondent signed an employment contract valid as from the date of signature
until 30 June 2013, in accordance with which the player was to receive a monthly
salary of EUR 2,000 in addition to two instalments of EUR 5,000 each, falling due at
the signature of the employment contract and on 1 November 2012, respectively.
The DRC judge further noted that the employment contract does not indicate any
monetary value with regard to “accommodation and food” that the Claimant was
entitled to receive from the Respondent.
5.
The DRC judge acknowledged that the Claimant inter alia maintains that, in
addition to the aforementioned two instalments of EUR 5,000 each, the Respondent
failed to pay part of his September 2012 salary as well as his salaries as from
October 2012 until January 2013 in the total amount of EUR 19,330. Therefore, the
Claimant holds that the Respondent acted in breach of contract and, consequently,
Player A, from country M / Club R, from country S
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in addition to the outstanding remuneration, the Claimant asks to be awarded
compensation for breach of contract without just cause by the Respondent.
6.
The DRC judge further took into account that, in January 2013, the Claimant had
put the Respondent in default of payment of his remuneration as of September
2012 and that, on 13 February 2013, the Claimant terminated the employment
contract in the light of fact that his default notices remained without action by the
Respondent.
7.
The Respondent, for its part, did not respond to the claim of the Claimant, in spite
of having been invited to do so. In this way, so the DRC judge, the Respondent
renounced its right to defence and, thus, accepted the allegations of the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.
On account of the aforementioned considerations, the DRC judge established that
the Respondent undisputedly failed to remit to the Claimant part of his September
2012 salary, his salaries as from October 2012 until January 2013 as well as the
above-mentioned two instalments of EUR 5,000 each, totalling EUR 19,330.
Reverting to the Claimant’s claim relating to accommodation and food, however,
bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any
party claiming a right on the basis of an alleged fact shall carry the burden of proof,
the DRC judge took into account that no documentation was presented by the
Claimant in this regard and that the relevant contractual clause does not indicate
any monetary value.
10.
Having established the above, the DRC judge decided that the Claimant had just
cause to terminate the employment contract on 13 February 2013 and that the
Respondent is to be held liable for the early termination of the employment
contract.
11.
Consequently, the DRC judge decided that the Respondent, in accordance with the
general legal principle of pacta sunt servanda, is liable to pay to the Claimant the
outstanding remuneration in accordance with the employment contract in the total
amount of EUR 19,330.
12.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the
Player A, from country M / Club R, from country S
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outstanding payments as of the day following the day on which the relevant
payment had fallen due.
13.
Furthermore, 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
DRC judge focussed his 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 from the Respondent an amount of money as
compensation for breach of contract in addition to the aforementioned outstanding
payments on the basis of the relevant employment contract.
14.
In continuation, the DRC judge focussed his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, he
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.
15.
In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
16.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from
February 2013 until 30 June 2013, taking into account that the Claimant terminated
the employment contract on 13 February 2013 and that the contract was to run
until 30 June 2013. Consequently, the DRC judge concluded that the amount of EUR
10,000 (i.e. salary as from February 2013 until June 2013) serves as the basis for the
final determination of the amount of compensation for breach of contract.
17.
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 Dispute Resolution Chamber, such
remuneration under a new employment contract shall be taken into account in the
Player A, from country M / Club R, from country S
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calculation of the amount of compensation for breach of contract in connection
with the player’s general obligation to mitigate his damages.
18.
The DRC judge noted that the Claimant had not signed any other employment
contract until the end of June 2013.
19.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC judge decided that the Respondent must
pay the amount of EUR 10,000 to the Claimant as compensation for breach of
contract. Bearing in mind the Claimant’s request and in accordance with the
constant practice of the Dispute Resolution Chamber in this respect, the DRC judge
decided to award 5% interest p.a. on the amount of compensation as of the date of
the present decision, i.e. as of 23 September 2013.
20.
The DRC judge concluded his deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club R, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, outstanding remuneration amounting to EUR 19,330
plus interest at the rate of 5% p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of EUR 5,000 as of 1 September 2012;
b. 5% p.a. on the amount of EUR 1,330 as of 1 October 2012;
c. 5% p.a. on the amount of EUR 2,000 as of 1 November 2012;
d. 5% p.a. on the amount of EUR 5,000 as of 2 November 2012;
e. 5% p.a. on the amount of EUR 2,000 as of 1 December 2012;
f. 5% p.a. on the amount of EUR 2,000 as of 1 January 2013;
g. 5% p.a. on the amount of EUR 2,000 as of 1 February 2013.
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 10,000 plus interest at the rate of 5% p.a. as of 23 September 2013 until the
date of effective payment.
4.
In the event that the amounts plus interest 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.
Player A, from country M / Club R, from country S
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5.
Any further claim lodged by the Claimant is rejected.
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 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 A, from country M / Club R, from country S
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