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 P, from country A
as Claimant
against the club,
Club U, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
In August 2012, Club D, form country A, loaned the country A player, P
(hereinafter: the player or the Claimant), to Club U, from country C
(hereinafter: the club or the Respondent).
2.
On 10 August 2012, the player and the club concluded an employment
contract (hereinafter: the contract) valid as from 10 August 2012 until 30 May
2013 as well as a supplementary agreement valid for the same period of time.
3.
In accordance with the contract, the player was entitled to the amount of EUR
20,000, payable in ten monthly installments of EUR 2,000.
4.
In accordance with the supplementary agreement, the player was entitled to
the amount of EUR 35,000, payable in ten monthly installments of EUR 3,500.
5.
Additionally, in accordance with the supplementary agreement, the player was
entitled to EUR 10,000 “with the signing of the contract” as well as to the rent
“of a furnished flat for the needs of the player (maximum 350 Euros per
month)”.
6.
On 17 May 2013, the player lodged a claim before FIFA against the club
indicating that, by 18 December 2012, the club should have paid the amount
of EUR 33,400 (4 x EUR 5,500 + 4 x EUR 350 + EUR 10,000), however, it had only
paid him the amount of EUR 7,500.
7.
Therefore, on 18 and 26 December 2012 respectively, the player sent a letter to
the club requesting the latter to pay the amount of EUR 25,900 within 3 days
as of receipt of the notification of such letter. Nevertheless, no payment was
received and, as a result, the player informed the club on 1 January 2013 that
he terminated the contract.
8.
On 11 January 2013, Club D entered an instruction into the Transfer Matching
System (TMS) in order for the player to return, however, the request was
rejected by the Respondent.
9.
On account of the above, the Claimant requested to be awarded with the
amount of EUR 47,900 as well as interest, calculated as follows:
- EUR 31,400 as outstanding remuneration;
- EUR 16,500 as compensation for breach of contract.
10.
In reply to the claim, the Respondent stated that:
Player P, from country A / Club U, from country C
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- it had paid the Claimant the amount of EUR 19,500 in cash;
- the Claimant was “allowed to receive the amount of EUR 27,500 (5 x EUR
2,000 and 5 X 3,500).”
- the total amount of EUR 8,000 is still outstanding, which the Respondent is
willing to pay in four monthly installments.
11.
Upon request, the player informed FIFA that after the termination of the
contract, he resumed his employment relationship with Club D. In accordance
with his contract with the country A club, the player would receive a monthly
salary of USD 7,000.
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, the DRC judge took note that the present
matter was submitted to FIFA on 17 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 an country A player and a country C club.
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 on the Status and Transfer of Players (edition 2012) and
considering that the present claim was lodged in front of FIFA on 17 May 2013,
the 2012 edition 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 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 as well as the
documentation contained in the file.
Player P, from country A / Club U, from country C
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5.
In this respect and first of all, the DRC judge acknowledged that the Claimant
and the Respondent concluded an employment contract as well as a
supplementary agreement both valid as from 10 August 2012 until 30 May
2013.
6.
Equally, the DRC judge duly noted that the Claimant asserted that the
Respondent had only paid him the amount of EUR 7,500 between August and
December 2012, reason for which he had put the club in default on 18 and 26
December 2012, however to no avail. As a result, the Claimant informed the
Respondent on 1 January 2013 that he terminated the contract.
7.
In this regard, the DRC judge observed that the Claimant requested the
amount of EUR 31,400 as outstanding remuneration and the amount of EUR
16,500 as compensation for breach of contract.
8.
In addition, the DRC judge took note that, for its part, the Respondent
asserted that it had paid the Claimant the amount of EUR 19,500 in cash and
that therefore only an amount of EUR 8,000 was still outstanding.
9.
In this context, the DRC judge first recalled the basic principle of the burden of
proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to
which a party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof.
10.
In this respect, the DRC judge noted that the Respondent did not present any
documentary evidence in respect of the payments it sustained to have paid in
cash to the Claimant. As a result, in view of the lack of documentary evidence
provided by the Respondent, the DRC judge decided he could not take into
consideration the aforementioned statement of the Respondent.
11.
Having taken into consideration all the previous considerations, the DRC judge
noted that, as from August 2012 until, and including, December 2012, the
Claimant was entitled to the total amount of EUR 39,450, corresponding to
five monthly salaries, five rent payments and the sign-on fee. Equally, the
Claimant noted that the player had only received the amount of EUR 7,500.
12.
On account of the above, the DRC judge decided that it could be established
that the Respondent was found to be in breach of the employment contract
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 1 January 2013, having previously put the Respondent in
default of payment of the outstanding amounts.
Player P, from country A / Club U, from country C
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13.
On account of the above, the DRC judge established that the Claimant had
terminated the employment contract with just cause on 1 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.
14.
Bearing in mind the previous 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.
15.
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 31,400, as
requested by the Claimant as outstanding remuneration.
16.
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.
17.
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.
18.
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.
19.
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
Player P, from country A / Club U, from country C
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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
of the contract amounts to EUR 29,250 and that such amount shall serve as the
basis for the final determination of the amount of compensation for breach of
contract.
20.
In continuation, the DRC judge remarked that the Claimant had returned to
his club of origin where he was entitled to a monthly salary of USD 7,000.
21.
In view of all of the above, the DRC judge decided that the Respondent must
pay the amount of EUR 2,750 to the Claimant, which is considered by the DRC
judge to be reasonable and justified amount as compensation for breach of
contract, given the particular circumstances of the present dispute.
22.
As a consequence, the DRC judge decided that the Respondent is liable to pay
the total amount of EUR 34,150 to the Claimant, consisting of the amount of
EUR 31,400 corresponding to the Claimant’s outstanding remuneration at the
time of the unilateral termination of the contract by the Claimant and the
amount of EUR 2,750 corresponding to compensation for breach of contract.
23.
In continuation 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 31,400 as from 17 May 2013 and on the amount
of EUR 2,750 as from 23 September 2013.
24.
The DRC judge concluded his deliberations in the present matter by rejecting
any further claim of the Claimant.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player P, 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 31,400 plus 5% interest p.a. on said amount as from 17 May
2013 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
amounting to EUR 2,750 plus 5% interest p.a. on said amount as from 23
September 2013 until the date of effective payment.
4.
In the event that the above-mentioned amounts plus interest are not paid by
the Respondent within the stated time limits, the present matter shall be
Player P, from country A / Club U, from country C
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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 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 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 P, from country A / Club U, from country C
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