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 A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 June 2013, the player from country B, Player A (hereinafter: the player or
Claimant), and the club from country D, Club C (hereinafter: the club or
Respondent), signed an employment contract valid as from 1 June 2013 until 30
June 2014 (hereinafter: the contract) after having previously been contractually
bound to the club for the 2012/2013 season.
2.
In accordance with the contract, the player was inter alia entitled to receive
monthly remuneration of EUR 3,000 payable until the 15th day of every month as
from 30 June 2013 until 30 May 2014, totalling EUR 36,000.
3.
On 2 June 2013 an ‘Agreement for the purchase of image rights’ (hereinafter: the
agreement) was signed as an “additional and inextricable part of the contract of
employment dated 1 June 2013”, valid until 30 June 2014, entitling the player to
receive a monthly EUR 6,000 plus EUR 1,200 as an “image rights fee” payable as
from 30 June 2013 until 30 June 2014, in addition to a EUR 4,000 bonus in case of
European qualification, totalling EUR 86,400.
4.
The player gave notice of unilateral termination of the contract and the
agreement to the club by formal notice on 16 September 2013 on the basis of
article 2.c of the contract which provides that “Instalments have to be paid until
the 15th of every month. If the club fails to deliver payment in additional 30
working days, the player has the right to unilaterally terminate the Contract of
Employment with just cause and the club shall be liable for all financial damages
incurred by the player”. The unilateral termination was also based on the fact that
the club did not register the player with the Football Association from country D.
5.
On 27 September 2013, the player lodged a claim in front of FIFA against the club
maintaining that he terminated the employment relation with just cause and
asking that he be paid outstanding remuneration deriving from the contract in
the amount of EUR 9,000, i.e. three months’ pay at EUR 3,000 as established in the
contract, and EUR 21,600 amounting to three months’ pay of EUR 6,000 plus EUR
1,200 as established in the agreement. Additionally, the player claims
compensation for the residual value of the contract and the agreement, i.e. EUR
27,000 and EUR 64,800 respectively. Thus, the player claims payment of the total
amount of EUR 122,400. Finally, the player claims 5% interest p.a. as from the first
day of non-compliance by the club.
6.
The player claims that he had never been paid in accordance with the contract and
the agreement, and that the club had failed to register him for the 2013/2014
season.
Player A, from country B / Club C, from country D
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7.
The player alleges that the club proposed a decrease of salary of between 40%
and 50% suggesting that if the player “agrees on the decrease then there will be
no problem otherwise as you can understand we need to find a termination
solution”. The player further claims that if he did not accept the decreased salary,
he would be refused to travel to pre-season training with the squad. The player
refused by proposing a counter offer amounting to a decrease of salary of 15%.
According to the player, the club never responded to the counter proposal.
8.
In reply to the claim, the club states that as a result of the birth of the player’s
child, he prolonged his stay in his home country after having requested “not to
join the team for training until the 1/8/2013 and/or the 1/9/2013” and the player
should therefore not receive any salary pertaining to that period.
9.
With regard to the non-registration of the player, the club claim that “given that
the Player refused to return to country D prior to being paid a sum that he
claimed was due to him by virtue of the Contract of Employment and/or a
previous Contract of Employment with the Club, the Club did not register him
with the Football Association from country D”. The club adds that it was not able
to commercially exploit the player’s image rights.
10.
The club claims the contract was illegally terminated and that the player never
offered any services to it, so the player should not be entitled to claim. The club
adds that EUR 1,200 monthly, allegedly pertaining to the housing benefit
provided for in the agreement, cannot be claimed “for failing to show damages
with regards to his allowance”.
11.
In his replica, the player asserts that he was given written permission by the club
to go on paid leave between 18 July 2013 and 5 August 2013.
12.
The club, in its duplica, reiterates its rejection of the player’s statements and adds
that the reason the player was not registered was because registration “had to
take place on August 2013 the latest and the Player at the time was on leave at his
home country while searching for a new football Club to register, the Club could
not register him to the Association as a Player of Club C”.
13.
In reply to FIFA’s pertinent request, the player indicated that on 1 January 2014 he
signed an employment contract and a supplementary agreement with the club
from country D, Club E, valid from 1 January 2014 until 30 May 2015. Said contract
and supplementary agreement provide for total remuneration of EUR 10,000
between January 2014 and June 2014.
Player A, from country B / Club C, from country D
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II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the 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
September 2013. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter:
the 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
conjunction with art. 22 lit. (b) of the Regulations on the Status and Transfer of
Players (edition 2014), the DRC is competent to deal with the matter at stake
which concerns an employment-related dispute with an international dimension
between a player from country B and a club from country D.
3.
Furthermore, the Chamber analysed which edition of the regulations should be
applicable as to the substance of the matter. In this respect, the Chamber
confirmed that in accordance to art. 26 par. 1 and 2 of the Regulations (edition
2014), and considering that the present claim was lodged in front of FIFA on 27
September 2013, the 2012 edition of said regulations (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 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. The Chamber
emphasised, however, 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.
First, the members of the Chamber acknowledged that after having previously
been contractually bound to the Respondent for the 2012/2013 season, the
Claimant and the Respondent had concluded an employment contract valid as
from 1 June 2013 until 30 June 2014. Furthermore, the members of the Chamber
acknowledged that on 2 June 2013 the parties concluded an image rights
agreement valid until 30 June 2014.
6.
In continuation, with regard to the claimed payments in connection with the
image rights agreement signed by the parties, the Chamber also had to verify
Player A, from country B / Club C, from country D
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whether, for formal reasons, it was competent to deal with this specific
component or not. In fact it remains that this part of the claim could possibly not
be considered due to the Chamber lacking competence to deal with disputes
related to image rights.
7.
Whilst analysing whether it was competent to hear this part of the claim, the
Chamber, without entering into any discussion regarding to the title of the
agreement which undoubtedly defines the agreement as an image rights
agreement, wished to highlight that said agreement contained further elements
which led it to believe that it was not in fact an image rights agreement but
rather a separate agreement to the employment contract, i.e. directly linked to
the services of the Claimant as a player.
8.
In this regard, as a general rule, if there are separate agreements, the DRC tends
to consider the agreement on image rights as such and does not have the
competence to deal with it. Such a conclusion, however, might be different if
specific elements of the separate agreement suggest that it was in fact meant to
be part of the actual employment relationship. In the case at hand, such elements
appear to exist. In particular, the agreement inter alia contains stipulations
regarding bonus payments which are typical for employment contracts and not for
image rights agreements. Consequently, the Chamber decided not to consider the
image rights agreement as such, but determined that said agreement was in fact
an additional agreement to the employment contract instead.
9.
In view of all of the above, the Chamber established that the image rights
agreement is to be considered, meaning that it is in a position to take it into
consideration when assessing the Claimant’s claim.
10.
In continuation, the members of the Chamber took into account that on 16
September 2013 the Claimant notified the Respondent of the unilateral
termination of the contract and agreement on the basis of outstanding
remuneration and non-registration of the player. The Respondent, for its part,
submits that the Claimant terminated the contract on 16 September 2013 without
just cause.
11.
In view of the diverging positions of the parties with respect to the termination of
their contractual relationship, the DRC highlighted that the central issue in the
matter at stake would be to determine whether the Claimant had just cause to
terminate the contract on 16 September 2013.
12.
The Chamber then reviewed the claim of the Claimant, who maintains that
remuneration had been outstanding since June 2013 in the amount of EUR 9,000
relating to the contract and EUR 21,600 relating to the agreement. In addition,
Player A, from country B / Club C, from country D
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the Chamber took into account that according to the player, the Respondent had
failed to register him for the new season. Equally, the members of the Chamber
noted that the Claimant is requesting compensation for breach of the
employment contract and agreement in the amount of EUR 27,000 and EUR
64,800 respectively.
13.
The DRC then turned its attention to the arguments of the Respondent and
acknowledged that according to the latter, the Claimant’s prolonged absence
after his leave meant no payment of salaries were due to him during that period.
In addition, the Respondent asserts that the Claimant’s absence rendered his
registration with the Football Association from country D impossible.
14.
In this respect, the members of the Chamber noted that the Claimant presented
documentation demonstrating that the Respondent had granted him permission
for his absence between 18 July 2013 and 5 August 2013, and ‘that the Player
and/or his representatives shall be free to negotiate with any other club (…) for
his transfer’.
15.
On account of the above, the Chamber established that the Respondent failed to
remit to the Claimant, until 16 September 2013, i.e. the date of termination by the
player, the total amount of EUR 30,600, without any valid reason. Consequently,
the Chamber decided that the Claimant had just cause to unilaterally terminate
the contract and the agreement on 16 September 2013 and that, as a result, the
Respondent is to be held liable for the early termination of the employment
contract and the agreement with just cause by the Claimant.
16.
In continuation, having established that the Respondent is to be held liable for the
premature termination of the employment contract and the agreement with just
cause by the Claimant, the Chamber focused its attention to the consequences of
such termination. In accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the
Claimant the amounts which were outstanding under the contract at the moment
of the termination, i.e. EUR 30,600, as outstanding remuneration.
17.
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 EUR
10,200 as from 16 July 2013 until the date of effective payment; interest of 5%
p.a. on the amount of EUR 10,200 as from 16 August 2013 until the date of
effective payment; and interest of 5% p.a. on the amount of EUR 10,200 as from
16 September 2013 until the date of effective payment.
Player A, from country B / Club C, from country D
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18.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract and the agreement with just cause by the Claimant,
the Chamber decided that, in accordance with art. 17 par. 1 of the Regulations,
the Respondent is liable to pay compensation to the Claimant.
19.
Subsequently, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the matter at hand.
In doing so, the members of the Chamber first 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 to 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 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.
20.
In application of the relevant provision, the Chamber held that it first had to
clarify whether the pertinent employment contract and agreement contained a
provision by means of which the parties had previously agreed upon an amount of
compensation payable by the parties of the contract in the event of a breach. In
this regard, the Chamber established that no compensation clause was included in
the contracts at the basis of the matter at stake.
21.
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 the criteria to be taken into consideration when calculating the
amount of compensation payable.
22.
Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the employment contract until 30 June 2014. Consequently, the Chamber
concluded that the amount of EUR 91,800 (i.e. remuneration as from September
2013 until June 2014) serves as the basis for the determination of the amount of
compensation due for breach of contract.
23.
In continuation, the Chamber verified 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 able to mitigate 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 A, from country B / Club C, from country D
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compensation due for breach of contract in connection with the Claimant’s
general obligation to mitigate his loss of income.
24.
Indeed, the members of the Chamber noted that the Claimant found employment
with the club from country D, Club E, on 1 January 2014. In accordance with the
pertinent employment contract and supplementary agreement, which is valid until
30 May 2015 and which was made available by the Claimant, the Claimant was
entitled to receive a monthly salary of EUR 2,000. Consequently, the Chamber
established that the value of the new employment contract concluded between
the Claimant and Club E for the period running from January 2014 until 30 May
2014 amounted to EUR 10,000.
25.
Consequently, on account of all of the aforementioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 81,800 to the Claimant, as compensation for breach of
contract in the present matter. 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 EUR 81,800 as from the date on which the claim was
lodged, i.e. as from 27 September 2013 until the date of effective payment.
26.
Finally, the members of the DRC concluded their deliberations in the present
matter by establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, is ordered to pay to the Claimant within 30 days of the
date of notification of this decision, outstanding remuneration in the amount of
EUR 30,600 plus 5% interest p.a. until the date of effective payment, as follows:
a. 5% p.a. on the amount of EUR 10,200 as from 16 July 2013;
b. 5% p.a. on the amount of EUR 10,200 as from 16 August 2013;
c. 5% p.a. on the amount of EUR 10,200 as from 16 September 2013.
3.
The Respondent is ordered 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 81,800 plus 5% interest p.a. as from 27 September 2013 until the date of
effective payment.
4.
In the event that the sums due to the Claimant in accordance with the
aforementioned points 2 and 3, plus interest, are not paid by the Respondent
Player A, from country B / Club C, from country D
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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 remittances are 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 A, from country B / Club C, from country D
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