Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 13 September 2013,
by DRC judge,
on the claim presented by the player,
Player S, from country M
as Claimant
against the club,
Club U, from country X
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 10 August 2012, the player, S from country M (hereinafter: the player or
the Claimant), and the club U from country X (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract)
valid as from 10 August 2012 until 30 May 2013.
2.
On 11 August 2012, the parties also signed a “supplementary agreement for
contract of employment”.
3.
In accordance with the contract, the Claimant was entitled to EUR 20,000
payable in ten monthly installments of EUR 2,000, the first one payable on 30
August 2012 and the last one payable “on 30 July”.
4.
In accordance with the supplementary agreement, the Claimant was to receive:
“A) In consideration of the services to be rendered by the Player according to
the agreement dated 10/08/2012 and in addition to the salary payable to the
player under the said agreement the Employer shall pay to the Player the
additional sum of EUR 40,000, making a total of EUR 60,000 for the whole of
the employment period, the first payment payable according to the present
agreement on the 30th of August 2012 for the additional amount of EUR 4,000
and thereafter the additional amount of EUR 4,000 on the 30th of each
following working month until the end of the employment period 2012-2013.
(…) It is agreed by both parties that the total amount payable by the present
contract dated 10/08/2012 will be no more than EUR 60,000 total for both
agreements. The player accepts to give to the Employer grace period of ten
days to pay his working additional month.
B) The player will receive EUR 10,000 with the contract signing of the contract.
C) The player will receive another EUR 5,000 if the team enters the second
group 5-8.
D) The player will receive another EUR 10,000 if the team plays in Europe.
E) The player will receive another EUR 10,000 if the team wins the cup.
5.
On 11 May 2013, the player lodged a claim before FIFA against the club
indicating that he was entitled to a monthly salary of EUR 6,000 from August
2012 to May 2013.
6.
However, the Claimant indicated that since the beginning of the contract the
Respondent had failed to arrange his visa and since September 2012 the
Respondent also failed to pay him his salaries. As a result, after several oral
reminders, the Claimant sent a letter to the Respondent on 8 January 2013
requesting to pay the outstanding amounts within 48 hours. Since no payment
Player S, from country M / Club Z, from country X
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was received, the Claimant terminated the contract by means of a letter sent
to the club on 15 January 2013.
7.
On account of the above, the Claimant requests to be awarded with the total
amount of EUR 52,500, plus 5% interest as follows:
a) For the salaries of September (part), October, November and
December 2012 as from the due dates;
b) For the remaining salaries “as from 15th January 2013 regarding the
rest of the salaries until total and effective payment is made”.
8.
Although having been invited by FIFA to provide its position to the claim of
the player by no later than 8 July 2013, the Respondent only replied to the
claim on 12 August 2013 after the investigation-phase had already been
concluded.
9.
Upon request of the FIFA administration, the Claimant informed FIFA that he
did not enter into a new employment relationship between January and July
2013.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he
was competent to deal with the matter at stake. In this respect, the DRC judge
took note that the present matter was submitted to FIFA on 11 May 2013.
Consequently, the DRC judge concluded that 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 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 lit. i. in
combination 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 matter,
which concerns an employment–related dispute with an international
dimension between a player S and a club U.
3.
Furthermore, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations (edition 2012) and considering that the present claim was
lodged in front of FIFA on 11 May 2013, the 2012 edition of the Regulations on
Player S, from country M / Club Z, from country X
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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 DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well
as the documentation contained in the file.
5.
First of all, the DRC judge acknowledged that, on 10 August 2012, the
Claimant and the Respondent had concluded an employment contract valid as
from the date of signature until 30 May 2013 as well as a supplementary
agreement, in accordance with which the Respondent would pay the Claimant
a sign-on fee of EUR 10,000 as well as a monthly salary of EUR 6,000.
6.
Equally, the DRC judge duly noted that the Claimant asserted that the
Respondent had failed to arrange his visa and had failed to pay him his salaries
since September 2012. The Claimant stated that, in view of the foregoing and
after several reminders, he terminated the contract with just cause on 15
January 2013.
7.
In this regard, the DRC judge duly noted that, on account of the above, the
Claimant is seeking payment of the amount of EUR 52,500 plus 5% interest.
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.
9.
In view of all the above, the DRC judge concluded that it could be established
that the Respondent had failed to pay the Claimant his salaries in the amount
of EUR 22,500 corresponding to the salaries of September 2012 until December
2012.
10.
Having taken into consideration the previous considerations, the DRC judge
decided that the Respondent had seriously neglected its contractual
obligations and, therefore, determined that the Claimant had terminated the
employment contract with just cause on 15 January 2013, i.e. the date on
which he informed the Respondent of the termination of the contract.
Player S, from country M / Club Z, from country X
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11.
Thus, the DRC judge established that the Claimant had terminated the
employment contract with just cause on 15 January 2013 and that,
consequently, the Respondent is to be held liable for the early termination of
the employment contact with just cause by the Claimant.
12.
Bearing in mind the preceding considerations, the DRC judge went on to deal
with the consequences of the early termination of the employment contract
with just cause by the Claimant.
13.
First of all, the DRC judge decided that the Respondent must fulfill its
obligations as per employment 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 22,500.
14.
In continuation, the DRC judge decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Respondent compensation for breach of contract in addition to any
outstanding salaries on the basis of the relevant employment contract.
15.
In this context, the DRC judge outlined that, in accordance with said provision,
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.
16.
In application of the relevant provision, the DRC judge held that he first of all
had to clarify whether the pertinent employment contract 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.
17.
Having recalled the aforementioned, and in order to evaluate the
compensation to be paid by the Respondent, the DRC judge took into account
the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In
this respect, the DRC judge took into account that the remaining value of the
contract as from its early termination by the Claimant until the regular expiry
Player S, from country M / Club Z, from country X
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of the contract amounts to EUR 30,000 and that such amount shall serve as the
basis for the final determination of the amount of compensation for breach of
contract.
18.
In continuation, the DRC judge remarked that the Claimant had not find new
employment after the termination of the contract until the expiry of the
original contract concluded with the Respondent.
19.
In view of all of the above, the DRC judge decided that the Respondent must
pay the amount of EUR 30,000 to the Claimant, which is considered by the DRC
judge to be a reasonable and justified amount as compensation for breach of
contract.
20.
As a consequence, the DRC judge decided that the Respondent is liable to pay
the total amount of EUR 52,500 to the Claimant, consisting of the amount of
EUR 22,500 corresponding to the Claimant’s outstanding remuneration at the
time of the termination of the contract by the Claimant and the amount of
EUR 30,000 corresponding to compensation for breach of contract.
21.
In addition, and with regard to the Claimant's request for interest, the DRC
judge decided that the Claimant is entitled to receive interest at the rate of
5% p.a. on the amount of EUR 22,500 as from the respective due dates and on
the amount of EUR 30,000 as from 13 September 2013.
22.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claim of the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, player S, is partially accepted.
2.
The Respondent, club U, 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 22,500 plus 5% interest until the date of effective payment as
follows:
a. 5% p.a. as of 1 October 2012 on the amount of EUR 4,500;
b. 5% p.a. as of 1 November 2012 on the amount of EUR 6,000;
c. 5% p.a. as of 1 December 2012 on the amount of EUR 6,000;
d. 5% p.a. as of 1 January 2013 on the amount of EUR 6,000.
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
Player S, from country M / Club Z, from country X
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amount of EUR 30,000 plus 5% interest p.a. on said amount as from 13
September 2013 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. 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.
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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player S, from country M / Club Z, from country X
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