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 matter involving the player,
Player M, from country C
as Claimant / Counter-Respondent
and the club,
Club S, from country T
as Respondent / Counter-Claimant
and the club,
Club N, from country G
as Intervening party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 20 December 2011, the country C player, Player M (hereinafter: the Claimant /
Counter-Respondent), and Club S, from country T (hereinafter: the Respondent /
Counter-Claimant), concluded an employment contract (hereinafter: the contract)
valid as of the date of signature until 19 December 2015.
2.
The contract specifies, inter alia, that the Respondent / Counter-Claimant is to
provide the Claimant / Counter-Respondent with the following remuneration for
each season:
- USD 24,000 payable in 12 monthly instalments of USD 2,000 each;
- USD 20,000 as performance-related bonus.
3.
Pursuant to the contract, the Respondent / Counter-Claimant is to cover, inter alia,
the Claimant / Counter-Respondent’s costs for accommodation and car as well as to
provide the Claimant / Counter-Respondent with two return-flight tickets country Tcountry C per season.
4.
On 8 April 2013, the Claimant / Counter-Respondent terminated the contract in
writing.
5.
On 5 June 2013, the Claimant / Counter-Respondent lodged a complaint before FIFA
against the Respondent / Counter-Claimant for breach of contract, requesting the
amount of USD 165,172.82, plus 5% interest p.a. “from the dates on which they fell
or fall due until the date of final payment”, according to the following breakdown:
USD 4,000 as unpaid salaries for January and February 2013;
USD 20,000 corresponding to the salaries due from March to December 2013;
USD 48,000 corresponding to the salaries for the third and fourth year;
USD 3,172.82 corresponding to part of the performance-related bonuses due for
the first year;
USD 90,000 as performance-related bonuses for the second, third and fourth year.
Additionally, the Claimant / Counter-Respondent requested the imposition of
sporting sanctions on the Respondent / Counter-Claimant and legal costs to be
borne by the Respondent / Counter-Claimant.
6.
The Claimant / Counter-Respondent alleges that the Respondent / Counter-Claimant
failed to meet its primary obligation of payment. The Respondent / CounterClaimant apparently did not pay his salary for January and February 2013. The
Claimant / Counter-Respondent holds that the Respondent / Counter-Claimant
already showed some delay in the payment of his salary in 2012, apparently due to
the Respondent / Counter-Claimant’s financial difficulties. In this regard, the
Claimant / Counter-Respondent provided a list of payments with their dates.
Player M, from country C / Club S, from country T / Club N, from country G
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7.
As to the performance-related bonus, the Claimant / Counter-Respondent asserts
that the Respondent / Counter-Claimant only paid the total amount of currency of
country T 44,675 corresponding to approximately USD 26,872.18 for the first year.
Yet, the Claimant / Counter-Respondent was allegedly entitled to USD 30,000. In this
respect, the Claimant / Counter-Respondent explains that in addition to USD 20,000
based on the contract, an amount of USD 10,000 was foreseen in a “supplemental
agreement” which was allegedly not given to the Claimant / Counter-Respondent in
spite of his request to the Respondent / Counter-Claimant.
8.
In this context and equally referring to the lack of security in country T due to the
political turmoil, on 5 March 2013, the Claimant / Counter-Respondent apparently
informed the Respondent / Counter-Claimant of his intention to put an end to the
contract with just cause and then left the country on 9 March 2013.
9.
In its reply, the Respondent / Counter-Claimant recognizes having had delays in the
payment of its players’ salaries considering the political situation in country T.
However, the Respondent / Counter-Claimant holds that such delays never exceeded
two months. The Respondent / Counter-Claimant also asserts having paid the
Claimant / Counter-Respondent’s salary after he had left the Respondent / CounterClaimant.
10.
Furthermore, the Respondent / Counter-Claimant deems that the Claimant /
Counter-Respondent is not entitled to the claimed performance-related bonuses
since the latter does not play for the Respondent / Counter-Claimant anymore and
did not take part in the official matches with the Respondent / Counter-Claimant.
The Respondent / Counter-Claimant quotes the Regulations of the country T
Football Federation which apparently state that the allocation of such performancerelated bonuses depends on the number of matches played by the player and the
number of official matches in which the club takes part.
11.
In this context, the Respondent / Counter-Claimant asserts having fulfilled all of its
financial obligations towards the Claimant / Counter-Respondent until the unilateral
termination of the contract by the latter. The Respondent / Counter-Claimant thus
affirms that the Claimant / Counter-Respondent did not have a just cause to
terminate the contract.
12.
Moreover, the Respondent / Counter-Claimant asserts that the Claimant / CounterRespondent showed some insubordination towards the staff and administration of
the Respondent / Counter-Claimant as well as a declining level of performance, after
the Respondent / Counter-Claimant decided not to select him for the “Coupe de
Confédération Africaine des clubs” in January 2013. In connection with his bad
behaviour, the Respondent / Counter-Claimant allegedly summoned the Claimant /
Counter-Respondent for a disciplinary hearing, but he failed to attend.
Player M, from country C / Club S, from country T / Club N, from country G
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13.
Subsequently, the Respondent / Counter-Claimant noted that the Claimant /
Counter-Respondent had left the country without the Respondent / CounterClaimant’s authorisation. In this respect, the Respondent / Counter-Claimant
provided a “Procès Verbal” dated 22 and 23 April 2013 establishing the Claimant /
Counter-Respondent’s absence from training. The Respondent / Counter-Claimant
alleges having tried to contact the Claimant / Counter-Respondent via the country C
Football Federation in order to request his return to the Respondent / CounterClaimant; but these attempts were apparently received with an outright refusal.
14.
As a result, on 26 June 2013, the Respondent / Counter-Claimant lodged a
counterclaim before FIFA against the Claimant / Counter-Respondent, requesting
the amount of USD 613,000 broken down as follows:
- USD 128,000 corresponding to the residual value of the contract;
- USD 10,200 as rent expenses;
- USD 75,000 corresponding to the transfer fee for the Claimant / CounterRespondent;
- USD 6,000 as travel expenses;
- USD 23,800 for the car lease;
- USD 70,000 as salary, performance-related bonuses and other advantages already
paid to the Claimant / Counter-Respondent;
- USD 300,000 for sporting and financial damages.
15.
In his replica, the Claimant / Counter-Respondent asserts that he always took part in
matches and training “when called or listed to participate”. He also emphasizes the
lack of evidence as to the Respondent / Counter-Claimant’s allegations pertaining to
his alleged absences and undisciplined behaviour. Regarding the annual additional
bonus of USD 10,000 provided for in the “supplemental agreement”, the Claimant /
Counter-Respondent maintains that he was entitled to such bonus. The Respondent
/ Counter-Claimant apparently even invited the Claimant / Counter-Respondent’s
mother in order to find a solution about the payment of said bonus, in vain. In this
respect, the Claimant / Counter-Respondent provided a letter of invitation dated 24
November 2012 which was addressed to his mother.
16.
In its duplica, the Respondent / Counter-Claimant purely reiterates its position,
insisting on the Claimant / Counter-Respondent’s absences and his undisciplined
behaviour by which he did not comply with his obligations as a football player.
17.
Upon FIFA’s request, the Claimant / Counter-Respondent confirmed that he signed a
contract with Club N, from country G on 17 August 2013, valid as of the date of
signature until 31 May 2015. The contract states that the Claimant / CounterRespondent is entitled to the following fixed remuneration:
Season 2013-2014
- EUR 5,000 as sign-on fee;
- EUR 35,000 as salary payable in 10 monthly instalments of EUR 3,500 each.
Season 2014-2015
Player M, from country C / Club S, from country T / Club N, from country G
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- EUR 50,000 as salary payable in 12 monthly instalments of EUR 4,166.67 each.
18.
Upon the request from the country G Football Association, on 11 September 2013,
the Single Judge of the Players’ Status Committee (PSC) authorised the country G
Football Association to provisionally register the Claimant / Counter-Respondent
with its affiliated club, Club N, following the refusal by the country T Football
Federation to deliver the International Transfer Certificate (ITC) for the Claimant /
Counter-Respondent.
19.
As regards Club N, the latter solely refuses to be involved whatsoever in the dispute
between the Claimant / Counter-Respondent and the Respondent / CounterClaimant. Club N relies on the decision rendered by the Single Judge of the PSC (cf.
point 18 above) to legitimate the registration of the Claimant / CounterRespondent.
20.
On 2 June 2014, Club N and the Claimant / Counter-Respondent mutually agreed
upon the termination of their contract.
21.
Subsequently, according to the information contained in TMS, the Claimant /
Counter-Respondent concluded a contract with a new club, Club U valid from 1
August 2014 until 30 June 2015. Pursuant to article 3 of said contract, the Claimant /
Counter-Respondent is entitled to the amount of EUR 4,200 as monthly salary.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 5 June 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 stake (cf. art. 21 par. 1 and 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 C player and a country T 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 (editions
Player M, from country C / Club S, from country T / Club N, from country G
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2012 and 2014), and considering that the present claim was lodged in front of FIFA
on 5 June 2013, the 2012 edition of said Regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered the substance of the present matter. In doing so, it started by
acknowledging the abovementioned facts of the matter as well as the
documentation contained in the file. 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.
In this respect, the Chamber acknowledged that the Claimant / Counter-Respondent
and the Respondent / Counter-Claimant entered into a contractual relationship,
which was to run for four years as from 20 December 2011 until 19 December 2015.
6.
In continuation, the Chamber also took note that it is uncontested by both parties
that the Claimant / Counter-Respondent terminated in writing the contractual
relationship on 8 April 2013 after having left country T on 9 March 2013.
7.
In this regard, the Chamber took due note that the Claimant / Counter-Respondent,
on the one hand, insisted on the fact that his salary for January and February 2013
had not been paid at the time of his departure, albeit having apparently informed
the Respondent / Counter-Claimant on 5 March 2013. In continuation, the Claimant /
Counter-Respondent underlined that the Respondent / Counter-Claimant repeatedly
paid his salary with delay in the previous year, which can notably be seen from the
payments listed by the Claimant / Counter-Respondent. On this basis, the Claimant /
Counter-Respondent considers that he had a just cause to terminate the contract.
8.
The Chamber further took note of the argumentation of the Respondent / CounterClaimant, which argued that the Claimant / Counter-Respondent had unilaterally
terminated the contractual relationship without just cause and had thus lodged a
counterclaim, inter alia, for compensation. The Respondent / Counter-Claimant
acknowledged the delays in the payment of its players’ salaries but maintained that
they never exceeded more than two months. Additionally, the Chamber noted that
the Respondent / Counter-Claimant asserted having paid the Claimant / CounterRespondent’s salary for January and February 2013 after he had left. Therefore, the
Respondent / Counter-Claimant deems that there was no objective reason for the
Claimant / Counter-Respondent to terminate the contract.
9.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim and counterclaim respectively lodged by
the parties, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the Claimant / CounterRespondent, and which party was responsible for the early termination of the
contractual relationship in question. The DRC also underlined that, subsequently, if
Player M, from country C / Club S, from country T / Club N, from country G
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it were found that the employment contract was breached by one of the parties
without just cause, it would be necessary to determine the consequences for the
party that caused the unjust breach of the relevant employment contract.
10.
In view of the above, the Chamber subsequently went on to deliberate as to
whether the outstanding amounts along with the repeated delay can be considered
as a just cause for the Claimant / Counter-Respondent to have prematurely
terminated the employment relationship.
11.
At this point and for the sake of good order, the DRC deemed it appropriate to
remind the parties of the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right from an
alleged fact shall carry the respective burden of proof. Bearing in mind the
aforementioned principle, the DRC noted that in the present case the Respondent /
Counter-Claimant bore the burden of proof regarding the payment of the Claimant
/ Counter-Respondent’s remuneration.
12.
In this regard, the Chamber duly noted that the Respondent / Counter-Claimant did
not dispute that, on 5 March 2013, the Claimant / Counter-Respondent had
informed the Respondent / Counter-Claimant of its intention to leave. The DRC also
noted that the Claimant / Counter-Respondent had presented documentary
evidence establishing the termination of the contract by means of a correspondence
dated 8 April 2013.
13.
Furthermore, the DRC observed that it was also undisputed by the parties that
certain amounts were outstanding at the time the Claimant / Counter-Respondent
left country T on 9 March 2013. Moreover, the Chamber gave particular attention to
the documentation remitted by the Claimant / Counter-Respondent in relation to
payments made by the Respondent / Counter-Claimant for the previous year, i.e.
2012, from which it could be established that the Claimant / Counter-Respondent’s
salary for that period, was repeatedly paid with delay. On this basis, the Chamber
was able to conclude that the Respondent / Counter-Claimant, at the time of the
termination, had failed to pay an amount corresponding to two monthly salaries to
the Claimant / Counter-Respondent. In addition, the Chamber also observed that
the Respondent / Counter-Claimant had been in delay of payment several times over
the previous year, fact which was even acknowledged by the Respondent / CounterClaimant. In this context, the DRC deemed appropriate to highlight that the
Respondent / Counter-Claimant had no valid reason that could possibly have
justified such delays and, particularly, the non-payment of the Respondent /
Counter-Claimant’s remuneration.
14.
In addition, bearing in mind art. 12 par. 3 of the Procedural Rules, the Chamber was
eager to point out that the Respondent had failed to present any documentation in
support of its position. In particular, the members of the Chamber observed that the
Respondent / Counter-Claimant was not able to corroborate that it tried to contact
Player M, from country C / Club S, from country T / Club N, from country G
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the Claimant / Counter-Respondent in order to request his return or to warn him
about his absence, as the Respondent / Counter-Claimant alleged it did via the
country C Football Federation. As a consequence, the Chamber concluded that the
Respondent / Counter-Claimant had not presented any evidence proving the
existence of any communication expressing its interest in the Claimant / CounterRespondent’s return to the team.
15.
In view of all the above, it is established that at the time the Claimant / CounterRespondent left, not only had the Respondent / Counter-Claimant been no longer
interested in the Claimant / Counter-Respondent’s services and also been in delay of
payment several times over the previous year, but most importantly several monthly
salaries were outstanding. Consequently, the Chamber was of the opinion that the
objective circumstances at the time justified the Claimant / Counter-Respondent’s
loss of confidence towards his employer as the latter had repeatedly failed to
comply with its contractual obligations. Therefore, the Chamber considered that, on
the basis of the circumstances detailed above, the Claimant / Counter-Respondent
did have a just cause to prematurely terminate the employment contract with the
Respondent / Counter-Claimant.
16.
Overall, the Chamber decided that there was a just cause to unilaterally terminate
the employment relationship between the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant and that, therefore, the Claimant / CounterRespondent had not breached the employment contract without just cause.
17.
For all these reasons, the Chamber decided to reject the counterclaim lodged by the
Respondent / Counter-Claimant.
18.
Having established that the Respondent / Counter-Claimant is to be held liable for
the early termination of the employment contract, the Chamber focused its
attention on the consequences of such termination. Taking into consideration art.
17 par. 1 of the Regulations, the Chamber decided that the Claimant / CounterRespondent is entitled to receive from the Respondent / Counter-Claimant an
amount of money as compensation for breach of contract in addition to any
outstanding payments on the basis of the relevant employment contract.
19.
First of all, the Chamber reverted to the Claimant / Counter-Respondent’s financial
claim, which includes outstanding amounts composed of salaries for January and
February 2013 as well as performance-related bonuses for the first year of the
contract. In this regard, the Chamber emphasised that the amounts to be taken into
consideration at this stage were all amounts which had fallen due at the time the
Claimant / Counter-Respondent left country T, i.e. 9 March 2013.
20.
In this regard, the DRC noted that according to the statements provided by the
parties, it was able to conclude that the outstanding amounts had been paid by the
Respondent / Counter-Claimant at a later stage. As a result, since the Claimant /
Player M, from country C / Club S, from country T / Club N, from country G
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Counter-Respondent did not contest such statement, the Chamber concluded that
no payments are due as outstanding.
21.
In continuation, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, 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 / Counter-Respondent 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.
22.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained 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 said employment contract at the basis of the matter at stake.
23.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant /
Counter-Respondent 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.
24.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant / Counter-Respondent under the terms of the
employment contract as from its date of termination with just cause by the
Claimant / Counter-Respondent, i.e. 8 April 2013, until its original date of expiry, i.e.
19 December 2015. The DRC thus concluded that the Claimant / CounterRespondent would have received USD 121,000 as total guaranteed remuneration if
the contract had been executed until 19 December 2015. Consequently, the
Chamber concluded that the amount of USD 121,000 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at
hand.
25.
In continuation, the Chamber verified as to whether the Claimant / CounterRespondent 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
Player M, from country C / Club S, from country T / Club N, from country G
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calculation of the amount of compensation for breach of contract in connection
with Claimant / Counter-Respondent’s general obligation to mitigate his damages.
26.
The Chamber recalled that, on 17 August 2013, the Respondent / Counter-Claimant
signed an employment contract with Club N, from country G, which was amicably
terminated on 2 June 2014, in accordance with which the Claimant / CounterRespondent was to receive a total fixed remuneration of EUR 40,000 during the said
period of time. Subsequently, on 1 August 2014, the Claimant / Counter-Respondent
concluded an employment contract with the Club U, from country R, expiring on 30
June 2015 and which provides for a monthly salary of EUR 4,200.
27.
Moreover, in addition to the above-mentioned amounts which are to be imputed
on the amount due as compensation, the DRC considered the specificities of the
case at hand, inter alia, the young age of the Claimant / Counter-Respondent, the
long period of time of the contract with the Claimant / Counter-Respondent, the
fact that his remuneration for the period from July to December 2015 remains
unknown as well as the Claimant / Counter-Respondent’s general obligation to
mitigate his damage.
28.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Dispute Resolution Chamber decided that, even
though the Respondent / Counter-Claimant is considered liable for the breach of the
relevant employment contract, the Claimant / Counter-Respondent did not suffer
any financial loss from the violation of the contractual obligations by the
Respondent / Counter-Claimant and, therefore, the Chamber decided that there is
no amount that should be awarded to the Claimant / Counter-Respondent as
compensation for breach of contract in the matter at hand.
29.
For all the above reasons, the DRC decided that the claim of the Claimant / CounterRespondent is rejected.
30.
Finally, the Dispute Resolution Chamber held that the Claimant / CounterRespondent’s claim for legal costs is rejected in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent is rejected.
2.
The counterclaim of the Respondent / Counter-Claimant is rejected.
*****
Player M, from country C / Club S, from country T / Club N, from country G
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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 M, from country C / Club S, from country T / Club N, from country G
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