Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2015,
in the following composition:
Geoff Thompson (Engand), Chairman
Carlos González Puche (Colombia), member
Theo van Seggelen (Netherlands), member
Guillermo Saltos Guale (Ecuador), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the decision
1.
On an unknown date, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract) valid for one season
starting as from 3 July 2013.
2.
Pursuant to articles 7.1 and 7.2 of the contract, the Claimant is to receive a net
fixed-remuneration amounting to USD 200,000, composed of:
USD 80,000 upon signature and receipt of the International Transfer
Certificate (ITC);
USD 120,000 split into instalments of USD 24,000 each, payable “every two
month in ten months” as from 23 September 2013.
3.
Article 4.7 foresees that the Respondent is to provide the Claimant and his wife with
two round-trip tickets city E-country B.
4.
Article 8 par. 2, 3 and 4 of the contract stipulate that “8-2. In case of any dispute
between both parties, the issue will be taken to Football Federation of country D.
8-3. If any party is not satisfied with the decision, the issue will be taken to FIFA and
any decision taken by Fifa is final.
8-4. If any of the articles of the contract or any part of the contents is in contest
with FIFA rules and regulations, it will be null and void. In this case, the contract in
general and other articles will be still valid.”
5.
On 17 and 20 January 2014, on behalf of the Claimant, the Football Association of
country B contacted the Respondent by e-mail in order to receive explanations
regarding outstanding amounts due to the Claimant.
6.
On 27 January 2014, the Respondent replied to the Football Association of country
B, stating that “the [Respondent] manager is changing” and that it needs time “to
be able to talk to new club president” and “will let you [the Football Association of
country B] know the result”.
7.
On 30 January 2014, the Football Association of country B sent an e-mail to the
Football Federation of country D in order to report mainly the default of payment
by the Respondent to the Claimant, but also the passport of the Claimant having
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been confiscated by the Respondent, as well as his visa in order to exit the country
not having been issued since the Respondent did not pay the taxes in this regard.
8.
On 1 February 2014, the Claimant put the Respondent in default, requesting the
payment of the outstanding amount of USD 72,000 within 8 days, corresponding to
the instalments of September 2013, November 2013 and January 2014.
9.
On 5 February 2014, the Respondent sent an e-mail to the Football Association of
country B, requesting more time to solve the matter, i.e. one week.
10.
On the same date, the Football Association of country B replied by e-mail,
conceding the deadline of one week requested by the Respondent but pointing out
at the same time the delay of payment of the Claimant’s salary for more than 6
months and the absence of answer from the Respondent towards the Football
Association of country B’s past communications.
11.
On 8 February 2014, the Respondent sent an e-mail to the Football Association of
country B, reiterating the same argumentation pertaining to the Respondent’s new
management and the will of the new president of the Respondent to solve the
matter shortly.
12.
On 10 February 2014, the Football Association of country B requested the
Respondent’s final position pertaining to the payment of the Claimant’s salary since
the deadline of one week had expired.
13.
On 18 February 2014, the Claimant terminated the contract with the Respondent in
writing.
14.
On 19 February 2014, the Respondent contacted the Football Association of country
B, still insisting on the change in its management and also informing the Claimant
that it solved the tax issue so that he is “free to leave the country”. The Respondent
further suggested to set a meeting before the Claimant’s departure in order to
“compromise about the termination of the contract if both parties agree on this”.
15.
On the same date, the Football Association of country B responded to the
Respondent, informing that the Claimant would leave on 20 February 2014,
nonetheless he was available for a meeting with the Respondent in order to solve
the issue pertaining to the payment of the outstanding amounts. In this regard, the
Claimant requested to be provided prior thereto with a written offer by the
Respondent.
16.
On 12 March 2014, the Claimant lodged a complaint before FIFA against the
Respondent, requesting the amount of USD 120,540, plus 5% interest p.a. as of 23
Player A, country B / Club C, country D
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September 2013. The Claimant also requested legal costs to be borne by the
Respondent.
17.
The Claimant first of all acknowledged the payment of the sign-on fee in the
amount of USD 80,000. However, the Claimant alleged that, as from 23 September
2013, the Respondent did not comply with its contractual obligation of payment.
18.
The Claimant stressed that, before putting an end to the contract on 18 February
2014, he “patiently” attempted to solve the present matter on a friendly manner. In
this regard, the Claimant recalled that, by the time he terminated the contract, his
salary due on 23 September 2013, 23 November 2013 and 23 January 2014 was
outstanding. The Claimant further emphasised that his salary was paid every two
months, representing in total 6 months without any remuneration.
19.
In addition, referring to art. 4.7 of the contract, the Claimant held having used only
a single flight ticket to city F on 20 February 2014 and thus required the Respondent
to reimburse the related-expenses. In this regard, the Claimant provided an invoice
from a travel agency, in the amount of USD 540, for the journey city E-city G-city F.
20.
Finally, the Claimant insisted on the status of “repeated offender” of the
Respondent.
21.
In its statement of defence, the Respondent first of all disputed the jurisdiction of
FIFA to deal with the matter at stake. In this regard, the Respondent referred to the
jurisdiction clause contained in art. 8 par. 2 of the contract. The Respondent
asserted that there existed a “qualified and impartial dispute-settlement authority
at the national level within the FA of country D to deal with disputes at the
preliminary stage”. In this context, the Respondent deemed that the Claimant
should have lodged his complaint before the Football Federation of country D.
22.
In spite of having been invited to do so, the Respondent did not provide the
relevant documentation as per the alleged competence of the national dispute
resolution chamber of the Football Federation of country D.
23.
Moreover, the Respondent was of the opinion that art. 13 through to art. 16 of the
FIFA Regulations on the Status and Transfer of Players did not allow the Claimant to
put an end to the contract during a season.
24.
Finally, the Respondent sustained that, irrespective of whether or not the just cause
was materialised in this present matter, the Claimant played less than 120 minutes
for the Respondent and terminated the contract while there were matches still
being played for the current season.
Player A, country B / Club C, country D
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25.
Upon FIFA’s request, the Claimant alleged having remained unemployed as of
February 2014 until 20 August 2014.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the DRC analysed whether it was competent to deal with the matter at
stake. In this respect, the DRC referred to art. 21 par. 1 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 12
March 2014. Therefore, the DRC concluded that the edition 2012 of the Procedural
Rules was applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the DRC 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 b) of
the Regulations on the Status and Transfer of Players (edition 2015; hereinafter: the
Regulations), the DRC shall adjudicate on employment-related disputes between a
club and a player, with an international dimension.
3.
Having said that, the Chamber stated that it would, in principle, be competent to
decide on the present litigation involving a player from country B and a club from
country D regarding an employment-related dispute.
4.
However, the DRC acknowledged that the Respondent contested the competence of
FIFA’s DRC to deal with the present case, referring to art. 8.2 of the contract
according to which “In case of any dispute between both parties, the issue will be
taken to Football Federation of country D”, insisting on the existence of a
“qualified and impartial dispute-settlement authority at the national level within
the FA of country D to deal with disputes at the preliminary stage”.
5.
Taking into account the above, 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. In this respect, the Chamber observed
that the Respondent did not provide the relevant documentation as per the alleged
competence of the national dispute resolution chamber of the Football Federation
of country D, in spite of having been invited to do so by the FIFA administration.
6.
Considering that the Respondent did not support its allegations with documentary
evidence in this respect, the DRC is therefore competent to deal with the present
matter, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of
Player A, country B / Club C, country D
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Players, as to the substance, and thus, the Respondent’s objection to the
competence of FIFA had to be rejected.
7.
Having established that the Claimant’s claim was admissible, the Chamber
subsequently 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 2015), and
considering that the present claim was lodged in front of FIFA on 12 March 2014,
the 2012 edition of said Regulations (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
8.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into 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 DRC 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.
9.
In this respect, the Chamber acknowledged that the Claimant and the Respondent
entered into a contractual relationship, which was to run for one season as from 3
July 2013 and according to which the Claimant was entitled to USD 80,000 as signon fee and a total salary amounting to USD 120,000, split into instalments of USD
24,000 each and payable every two months over ten months as from 23 September
2013. The contract also stated that the Respondent is to provide the Claimant and
his wife with two round-trip tickets city E-country B.
10.
In continuation, the Chamber also took note that it is uncontested by both parties
that the Claimant terminated in writing the contractual relationship on 18 February
2014, after having put the Respondent in default on several previous occasions.
11.
In this regard, the Chamber took due note that the Claimant, on the one hand,
insisted on the fact, at the time of the termination, he had only received the sign-on
fee of USD 80,000. On this basis, the Claimant considered that he had a just cause to
terminate the contract.
12.
The Chamber further took note of the argumentation of the Respondent, which
argued that art. 13 and 16 of FIFA Regulations do not allow the Claimant to
terminate the contractual relationship; as well as that the Claimant had played less
than 120 minutes and that there were still matches to be played when the Claimant
terminated the contract.
13.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim lodged by the Claimant, was to
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determine whether the employment contract had been unilaterally terminated with
or without just cause by the Claimant, and which party was responsible for the early
termination of the contractual relationship in question.
14.
In this respect, the Chamber underlined that it remained uncontested by the
Respondent that the Claimant had not received any payment relating to his salary
to date. Even more, the DRC emphasised that the contractual schedule of payment
provided for the Claimant being remunerated every two months; in other words, at
the time of the termination, the Claimant remained without any remuneration for
six months. Bearing in mind the foregoing, and referring to art. 12 par. 3 of the
Procedural Rules, the Chamber deemed that the Respondent did not provide any
conclusive and coherent reasons justifying the non-payment of the Claimant’s
salary. Therefore, the DRC concurred that the Respondent had seriously neglected
its financial contractual obligations towards the Claimant.
15.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause
to unilaterally terminate the contract on 18 February 2014 and that the Respondent
is to be held liable for the early termination of the contract with just cause by the
Claimant.
16.
As a consequence, and 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. USD 72,000 corresponding to the instalments of USD 24,000 each,
due on 23 September 2013, 23 November 2013 and 23 January 2014.
17.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amount of USD 72,000 as of the due date of each payment until the
date of effective payment.
18.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided
that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is also
liable to pay compensation to the Claimant.
19.
In this context, the Chamber 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
Player A, country B / Club C, country D
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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.
20.
In application of the relevant provision, the Chamber held that it 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 Chamber
established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
21.
Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber 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 Chamber pointed
out that at the time of the termination of the employment contract on 18 February
2014, the contract and the was to run until the end of the season 2013-2014, in
which a total of two instalments of USD 24,000 each were to be paid. Consequently,
taking into account the financial terms of the contract, the Chamber concluded that
the remaining value of the contract as from its early termination by the Respondent
until the regular expiry of the contract amounted to USD 48,000 and that such
amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
22.
In continuation, the DRC 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 compensation for breach of contract in connection with Claimant’s general
obligation to mitigate his damages.
23.
In casu, the Chamber took note that, in accordance with the Claimant’s allegations,
the latter remained unemployed as of February 2014 until August 2014.
24.
As a consequence, and bearing in mind that the Claimant had not been able to
mitigate damages since he remained unemployed between the date of termination
of the contract by the Respondent and the ending date of the contract, the DRC
concluded by deciding that the Respondent has to pay the total amount of USD
48,000 to the Claimant, as compensation for breach of contract.
Player A, country B / Club C, country D
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25.
As regards the Claimant’s claim pertaining to air tickets, on the basis of the
documentation provided by the Claimant and referring to art. 4.7 of the contract,
the Chamber decided that the Respondent must pay to the Claimant the amount of
USD 540 as reimbursement of the single flight ticket for the journey city E-city F.
26.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
USD 48,540 as of 12 March 2014 until the date of effective payment.
27.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
28.
The DRC concluded its 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 is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, outstanding remuneration in the amount of USD
72,000, plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 24 September 2013 on the amount of USD 24,000;
b. 5% p.a. as of 24 November 2013 on the amount of USD 24,000;
c. 5% p.a. as of 24 January 2014 on the amount of USD 24,000.
4.
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
USD 48,540 plus 5% interest p.a. as from 12 March 2014 until the date of effective
payment.
5.
In the event that the amounts foreseen in points 3. and 4. plus interest are not paid
within the stated time limits by the Respondent, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
6.
Any further claim lodged by the Claimant is rejected.
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7.
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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
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