Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Alejandro Marón (Argentina), member
Rinaldo Martorelli (Brazil), member
Santiago Nebot (Spain), member
on the claim presented by the player,
Player S, from country R
as Claimant
against the club,
Club E, from country B
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 2 March 2011, Player S, from country R (hereinafter: player or Claimant), and the
Club E, from country B (hereinafter: club or Respondent) signed an employment
contract valid as from the date of signature until 1 June 2013.
2.
In accordance with the employment contract, the player was inter alia entitled to
receive a gross monthly salary of currency of country B 350,000.
3.
On 30 April 2013, the player lodged a claim against the club maintaining that the
club terminated the employment contract without just cause on 31 March 2012 and
that, therefore, it is liable to pay his salary for the month of March 2012 in the
amount of USD 10,000 net as well as compensation for breach of contract in the
amount of USD 122,400.
4.
The player further asks to be awarded interest of 5% p.a. on the total amount of
USD 132,400 and that sporting sanctions be imposed on the club.
5.
According to the player, his monthly net salary amounted to currency of country B
320,000, which allegedly equals USD 10,000. In addition, as regards the amount of
compensation sought, the player deducted the amount of USD 7,600 he earned with
his new clubs from the alleged total remaining contractual value of USD 130,000.
6.
The player explains that following the club’s last match on 7 November 2011, the
player, as well as his teammates, left on vacation and that the club would revert to
him as regards the date on which he was expected to join the team again.
7.
According to the player, the club no longer contacted him and his attempts to reach
the club manager failed. He adds that the club never invited him to the preparation
camps outside of country B and that by the time the team returned to country B to
start the championship in March 2012, his visa had expired.
8.
The player further holds that in spite of the club having paid his salary up to the
month of February 2012, the club’s attitude is unacceptable “since he found himself
in an unclear situation”. He further maintains that after he realised that the club
had breached the employment contract the registration periods had already closed
and due to the lack of contact with the club, potential new clubs were reluctant to
enter into an employment contract with him.
9.
According to the player, on 26 October 2012, he signed an employment contract
with a country R club and during the procedure in the transfer matching system
(TMS) the club uploaded a document dated 28 August 2012, signed by the club, in
accordance with which the club confirmed that the employment contract with the
Player S, from country R / Club E, from country B
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player was terminated on 31 March 2012 and that the player was offered the status
of “free agent” and that the parties have no financial, moral or any other claims
towards each other.
10.
The player points out that he did not sign this document and that he does not agree
with its contents.
11.
On account of the above, the player deems that the club terminated the
employment contract without just cause on 31 March 2012.
12.
In spite of having been invited to do so, the club has not responded to the claim.
13.
On 26 October 2012, the player signed an employment contract with Club V, from
country R valid until 30 June 2013, in accordance with which he was entitled to
receive a monthly salary of currency of country R 4,000. On 25 February 2013, the
player signed an employment contract with another Club T, from country R, valid as
of 1 February 2013 until 30 June 2013, in accordance with which he was to receive a
monthly salary of currency of country R 3,425.
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 30 April 2013.
Consequently, the Rules governing the procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules)
are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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
2014) 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 R player and a country B club.
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 2 of the Regulations on the Status and Transfer of Players (edition 2014),
and considering that the present claim was lodged on 30 April 2013, the 2012
Player S, from country R / Club E, from country B
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edition of said regulations (hereinafter: 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 Chamber entered into the substance of the matter. In this respect,
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.
Having said this, the members of the Chamber acknowledged that the Claimant and
the Respondent signed an employment valid as from 2 March 2011 until 1 June 2013.
6.
The Claimant lodged a claim against the Respondent, maintaining that the
Respondent terminated the employment contract without just cause on 31 March
2012 and that, therefore, the Respondent is liable to pay his salary for the month of
March 2012 as well as compensation for breach of contract.
7.
The Chamber further noted that according to the Claimant he left on vacation after
7 November 2011 and that the Respondent would revert to him as regards the date
on which he was expected to join the team again, which it failed to do. The Claimant
highlights that the Respondent never invited him to the preparation for the second
leg of the country R Championship and that by the time the team returned to
country B in March 2012, his visa had expired and he was left “in an unclear
situation”.
8.
The Claimant further holds that the Respondent stopped paying his salary as from
March 2012.
9.
The members of the Chamber took note that according to the Claimant, during a
registration procedure in the transfer matching system (TMS), the Respondent
uploaded a document dated 28 August 2012, signed by the Respondent only, in
accordance with which the Respondent confirmed that the employment contract
with the Claimant was terminated on 31 March 2012. In this context, the Claimant
points out that he did not sign this document and that he does not agree with its
contents.
10.
For these reasons, the Claimant holds that the Respondent terminated the
employment contract without just cause on 31 March 2012.
11.
In continuation, the members of the Chamber highlighted that the Respondent, for
its part, failed to present its response to the claim of the Claimant, in spite of having
Player S, from country R / Club E, from country B
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been invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
12.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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.
13.
The members of the Chamber highlighted that the underlying issue in this dispute,
was, thus, to determine as to whether the contract had been terminated by one of
the parties, and, in the affirmative, as to whether such termination was with or
without just cause. The Chamber also underlined that, subsequently, if it were found
that the contract was terminated without just cause, it would be necessary to
determine the consequences for the party that was responsible for the early
termination of the contractual relation.
14.
Subsequently, the Chamber turned its attention to the documentation presented by
the Claimant in support of his position. As stated above, the Claimant presented a
document dated 28 August 2012, which bears the signature of the Respondent only,
by means of which the Respondent confirmed that the employment contract was
terminated on 31 March 2012. Said document further contains a provision according
to which the Claimant was offered the status of “free agent” and the parties have
no financial, moral or any other claims towards each other. It was further noted that
the Claimant stated that he never agreed with the contents of this document and
that this is demonstrated by the fact that he has not signed it.
15.
In this context, the Chamber observed that there is no document on file signed by
both parties, which demonstrates that the Claimant and the Respondent would have
terminated the employment contract with mutual consent.
16.
In continuation, the Chamber acknowledged that the Claimant, by presenting a copy
of his visa which bears the expiry date of 28 February 2012, provided evidence of the
fact that his visa for country B had indeed expired.
17.
The members of the Chamber also took into account that the Respondent had
continued to pay the Claimant’s salary until February 2012, from which they deduced
that the Respondent considered that the parties continued to be bound by the
employment contract until that time. Thereafter, however, the Respondent
considered the employment relation as terminated as of 31 March 2012, as can be
understood from the aforementioned document dated 28 August 2012 and which
was issued by the Respondent itself.
Player S, from country R / Club E, from country B
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18.
Above all, the Chamber reiterated that the Respondent did not answer to the
Claimant’s claim, despite having been invited to provide its position on the present
matter.
19.
On account of the above, the Chamber concluded that the Respondent had no just
cause to unilaterally terminate the employment contract on 31 March 2012 and,
consequently, decided that the Respondent is to be held liable for the early
termination of the employment contact without just cause.
20.
In continuation, prior to establishing the consequences of the breach of contract
without just cause by the Respondent in accordance with art. 17 par. 1 of the
Regulations, the Chamber held that it had to address the issue of any unpaid
remuneration at the moment the contract was terminated by the Respondent.
21.
Indeed, in his statement of claim, the Claimant alleges that his salary for March 2012
in the net amount of currency of country B 320,000 remained outstanding. In
continuation, the Chamber acknowledged that, in accordance with the employment
contract, the Respondent was obliged to pay to the Claimant a gross monthly salary
of currency of country B 350,000 for the whole term of the contract. Bearing in
mind, as stated above, that the contract was terminated by the Respondent on 31
March 2012 and that the Respondent has not replied to the Claimant’s claim, the
Chamber concurred that the Respondent must fulfil its obligations as per
employment contract up until the date of termination of the contract in accordance
with the general legal principle of “pacta sunt servanda”. Consequently, the
Chamber decided that the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of currency of country B 320,000.
22.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of currency
of country B 320,000 as from 30 April 2013 until the date of effective payment.
23.
Having established the above, the Chamber turned its attention to the question of
the consequences of the unilateral termination of the employment contract by the
Respondent without just cause on 31 March 2012.
24.
The members of 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 Claimant under the existing contract and/or the new
Player S, from country R / Club E, from country B
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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.
25.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the contracts at the basis of the present dispute contain 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 contracts at the basis of the matter at stake.
26.
As a consequence, the members of 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
Chamber 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 Dispute Resolution
Chamber emphasised beforehand that each request for compensation for
contractual breach has to be assessed by the Chamber on a case-by-case basis taking
into account all specific circumstances of the respective matter.
27.
In order to estimate the amount of compensation due to the Claimant in the present
case, the members of the Chamber first turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of
art. 17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and the new contract, if any, in the calculation of the amount of
compensation.
28.
On the basis of the contract signed by the Claimant and the Respondent, which
includes the Claimant’s gross remuneration in currency of country B and which was
to run for 14 months more, i.e. until 1 June 2013, after the breach of contract
occurred, as well as on the basis of the claim of the Claimant, the Chamber
concluded that the amount of currency of country B 4,160,000 serves as the basis for
the final determination of the amount of compensation for breach of contract.
29.
In continuation, the Chamber 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 amount of
Player S, from country R / Club E, from country B
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compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
30.
Indeed, the Claimant signed an employment contract with Club V, from country R,
valid as from 26 October 2012 until 30 June 2013, in accordance with which he was
entitled to receive a monthly salary of currency of country R 4,000. On 25 February
2013, the player signed an employment contract with another Club T, from country
R, valid as of 1 February 2013 until 30 June 2013, in accordance with which he was to
receive a monthly salary of currency of country R 3,425. Consequently, as from 1
November 2012 until 1 June 2013, he earned the total approximate amounts of USD
7,600 or currency of country R 236,000 with his new clubs.
31.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay the amount of currency of
country B 3,924,000 to the Claimant as compensation for breach of contract.
32.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 30 April 2013, until
the date of effective payment.
33.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player S, is partially accepted.
2.
The Respondent, Club E, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, outstanding remuneration in the amount of currency
of country B 320,000, plus interest at the rate of 5% p.a. as from 30 April 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 in the amount of
currency of country B 3,924,000, plus interest at the rate of 5% p.a. as from 30 April
2013 until the date of effective payment.
Player S, from country R / Club E, from country B
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4.
In the event that the amounts 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.
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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl: CAS directives
Player S, from country R / Club E, from country B
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