Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 September 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Johan van Gaalen (South Africa), 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 case
1.
The player from country B, Player A (hereinafter: the Claimant), and the club from
country D, Club C (hereinafter: the Respondent), signed an undated employment
contract, valid as from 5 January 2012 until 31 May 2015.
2.
Article 5 lit. a) and b) of the contract establish that “The professional footballer shall: a)
fulfil all obligations assigned to him under professional footballer agreement; b) take
part and participate in all nationwide and international games and competitions of the
club […]”.
3.
On 5 January 2012, the parties signed a protocol, valid for the seasons 2011/2012 to
2014/2015, according to which the Respondent undertook to provide the Claimant with
the following benefits (art. 4 of the protocol):
- EUR 150,000 net as total remuneration for the 2011/2012 season, payable in 5
instalments of EUR 30,000, on 5 January 2012, 30 January 2012, 28 February 2012,
30 March 2012 and 30 April 2012;
- EUR 325,000 net as total remuneration for the 2012/2013 season, payable in 3
instalments of EUR 32,500 on 15 August 2012, 15 September 2012 and 15 October
2012, and in 10 instalments of EUR 22,750 payable on 30 July 2012, 30 August 2012,
30 September 2012, 30 October 2012, 30 November 2012, 30 December 2012, 30
January 2013, 28 February 2013, 30 March 2013 and 30 April 2013;
- EUR 350,000 net as total remuneration for the 2013/2014 season, payable in a
similar way as the 2012/2013 season;
- EUR 400,000 net as total remuneration for the 2014/2015 season, payable in a
similar way as the 2012/2013 season, the last payment due on 30 April 2015;
- air tickets for the player, his wife and child;
- a car;
- a house.
4.
In addition, art. 5 of the protocol stipulates that “lit. c) Work in this contract all sums
guarantee money is. Work on this contract under the convention on the football and
professional football, or payments will be made net; […] lit. h) “If the club doesn’t pay
any guarantee sums of the all payments in time for the period of 45 days, the contract
will automatically cancelled and the player shall take all sums of money that writes in
this contract”.
5.
On 27 December 2012, the Respondent granted the Claimant written authorisation not
to participate in the preparation camp of the A-team, as from 27 December 2012 until
20 January 2013, due to the fact that the “Technical Committee report, in line with the
board of director meeting held on 26.12.2012 […] decided to no longer dormant
football your services”. Furthermore, the authorisation stipulates that “This permits not
only be found in any clubs transfer negotiations and / or agreement was notified by us
in order to help you get 27/12/2012”.
Player A, Country B / Club C, Country D
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6.
On 28 December 2012, the Respondent provided the Claimant with a second
authorisation, allowing him not to participate in the training camp of the A-team and
to search for a new club of his choice, until 10 January 2013.
7.
On 15 January 2013, the Respondent warned the Claimant in writing that he was in
breach of art. 5 lit. a) and b) of the contract (cf. point I.2. above), as he allegedly failed
to resume training after the expiry of the second authorisation on 10 January 2013. The
Respondent further stated that, in case the Claimant would not resume the contract in 7
days, it would be considered as terminated.
8.
On 22 January 2013, the Claimant contacted the Respondent in writing, requesting the
payment of outstanding remuneration in the total amount of EUR 66,514 (i.e. EUR
384,000 due minus EUR 317,486 received) and that the execution of his contract be
resumed. The Claimant further requested the Respondent to indicate whether they are
still interested in his services and, if not, that the termination be then acknowledged in
accordance with art. 5 lit. c) and h) of the protocol (cf. point I.4. above) and that the
amounts provided for in art. 4 of the protocol (cf. point I.3. above) be paid to him.
9.
On 25 January 2013, the Respondent again warned the Claimant in writing of his
allegedly unauthorised and continued absence at training. The Respondent further
stated that “this is out last warning to you and the total amount of receivables being
35,000 Euros were deposited in your […] account […]”. Finally, in case the Claimant
would not resume training in 3 days, the contract would be considered as unilaterally
terminated with just cause by the Respondent.
10.
Finally, on 31 January 2013, the Respondent unilaterally terminated the contract with
the Claimant, in writing, based on his alleged absence, after the expiry of the second
authorisation and in spite of the two warnings previously sent to him by the
Respondent.
11.
On 7 February 2013, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting, after amending his claim, the payment
of the total amount of EUR 1,051,782.29, broken down as follows:
- EUR 872,514 as compensation for breach of contract, corresponding – as per the
Claimant – to the residual value of the contract:
o EUR 54,264 as outstanding remuneration until 30 January 2013 (cf. point I.15.
below);
o EUR 45,500 as 2 instalments of the 2012/2013 season, i.e. 30 March 2013 and 30
April 2013;
o EUR 350,000 as total remuneration for the 2013/2014 season;
o EUR 400,000 as total remuneration for the 2014/2015 season;
- EUR 179,268.29 as additional compensation, corresponding to 6 monthly salaries, as
per the Claimant;
Player A, Country B / Club C, Country D
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-
sporting sanctions on the Respondent.
12.
In his arguments, the Claimant claims that he never requested the Respondent to issue
the authorizations of 27 and 28 December 2012 (cf. points I.5. and I.6. above). He
maintains that, in spite of the authorisations, he continued training and kept in contact
with the Respondent. In this regard, he provided a print-out of a whatsapp chat history
between him and Mr E, the club’s director, between 18 December 2012 and 7 February
2013, in which the Claimant inter alia repeatedly requested to be provided with his
training schedule, eventually sent to him on 24 January 2013. Furthermore, he provided
several pictures allegedly taken from 26 January to 5 February 2013, in which he is seen
training and in which a newspaper of the day is shown.
13.
The Claimant claims to have received the Respondent’s warning of 15 January 2013 (cf.
point I.7. above) only on 24 January 2013, i.e. after he had sent the Respondent the
letter of 22 January 2013, in which he claimed outstanding remuneration and requested
a clarification from the Respondent as to his professional situation (cf. point I.8. above).
The Claimant further claims to have received the Respondent’s correspondence of 25
January 2013 and 31 January 2013 (points I.9. and I.10. above) on 29 January 2013 and
on 2 February 2013, respectively. Furthermore, he disputes having received the amount
of EUR 35,000 mentioned by the Respondent in its correspondence of 25 January 2013.
14.
In spite of the Respondent’s termination letter, dated 31 January 2013 and received on
2 February 2013, the Claimant alleges to have continued to train with the Respondent,
until it informed him on 7 February 2013 that the Football Federation of country D had
“formalized” the termination. Thus, he should immediately leave the house and return
the car previously provided to him by the Respondent.
15.
In addition, the Claimant maintains that, out of the EUR 406,750 due to him as from 5
January 2012 until 30 January 2013 (i.e. 5 x EUR 30,000 + 3 x EUR 32,500 + 7 x EUR
22,750), the Respondent only paid him EUR 352,486. Thus, the amount of EUR 54,264
remains outstanding. The Claimant further points out that an amount of EUR 10,000
was transferred by the Respondent to his account, but such amount cannot be
considered as part of his remuneration, as it refers to “a fee due by Club C to his agent
in connection with the agreement signing”.
16.
Finally, the Claimant deems that it is undisputed that the Respondent was willing to
terminate his contract, but not to take responsibility for it. Therefore, it created a false
context in order to blame the Claimant for the early termination of the contract.
17.
In its reply to the claim, the Respondent maintains that the Claimant breached the
contract, by not resuming training and not informing it of his whereabouts after the
expiry of the second authorisation (cf. point I.6. above), in spite of the Respondent’s
reminders. The Respondent further claims to have complied with all its financial
obligations towards the Claimant and to have paid him as from 6 January 2012 until 25
Player A, Country B / Club C, Country D
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January 2013 the total amount of EUR 361,250. The Respondent also claims that, in
order not to hinder the Claimant’s career, it authorised the issuance of his ITC from
country D to country F, in favour of Club G. Finally, the Respondent deems to have
terminated the contract with just cause and requests the DRC to reject the claim of the
Claimant.
18.
In his replica, the Claimant maintains his previous allegations and thoroughly rejects the
Respondent’s reply. The Claimant adds that the information provided to him by the
Respondent regarding his training schedule was not correct, as the club allegedly
indicated the wrong location, consisting of “a distant place with no conditions and
none technical staff to support him”. The Claimant rejects the Respondent’s allegation
regarding the amount allegedly paid to him and refers the DRC to the bank statement
provided with the claim.
19.
In its duplica, the Respondent maintains its previous argumentation.
20.
Upon request, the Claimant informed to have found new employment with the
following clubs:
- Club G (Country F): from 28 February 2013 until 5 May 2013, for a monthly salary of
5,000;
- Club H (Country F): from 6 May 2013 until 4 May 2014, for a monthly salary of 5,000;
- Club I (Country F): from 5 May 2014 until 30 December 2015, for a monthly salary of
1,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, the
Chamber 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 7 February 2013. Therefore, the
Chamber 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 members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with
art. 22 b) of the Regulations on the Status and Transfer of Players (edition 2015;
hereinafter: the Regulations), 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 player from country B and a club from country D.
3.
In this respect, the Chamber was eager to emphasize that, contrary to the information
contained in FIFA’s letter dated 27 August 2015 by means of which the parties were
Player A, Country B / Club C, Country D
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informed of the composition of the Chamber, a specific member refrained from
participating in the deliberations of the case at hand, due to the fact he has the same
nationality as the Claimant. In order to comply with the prerequisite of equal
representation of club and player representatives, also another member refrained from
participating. Thus, the Dispute Resolution Chamber adjudicated the case at stake in the
presence of three members, in accordance with art. 24 par. 2 of the Regulations.
4.
Having said that, 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 par. 2 of the Regulations (editions 2012, 2014 and 2015), and considering
that the present claim was lodged on 7 February 2013, the 2012 edition of said
regulations is applicable to the matter at hand as to the substance.
5.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. The Chamber however 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.
6.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that they had signed an employment contract and a protocol, both valid as from
5 January 2012 until 31 May 2015, in accordance with which the Claimant was entitled
to receive the amounts detailed in point I.3. above.
7.
The DRC further noted that the parties do not dispute that the Respondent issued two
documents, dated 27 and 28 December 2012, authorising the Claimant’s absence for a
certain period of time. In accordance with the latest one dated 28 December 2012, the
Claimant was authorised to be absent from the club until 10 of January 2013.
8.
In continuation, the DRC noted that, on the one hand, the Claimant claims that he
never requested the issuance of such authorisations and that, during their validity, he
still trained and remained in contact with the Respondent. He further claims to have
received the Respondent’s first warning of 15 January 2013 only on 24 January 2013 and
the second warning of 25 January 2013 only on 29 January 2013 (cf. point I.13. above).
In addition, the Claimant states that he only received his training schedule on 24
January 2013, after having repeatedly requested it from the Respondent, and that the
amount of EUR 54,264 corresponding to his remuneration remains outstanding to date.
In view of the foregoing, he deems that the Respondent terminated the contract
without just cause on 2 February 2013, date on which he allegedly received the
termination letter of 31 January 2013.
9.
The Chamber further noted that, on the other hand, the Respondent deems to have
had a just cause to terminate the contract on 31 January 2013, as the Claimant failed to
return to the club after the expiry of the second authorisation on 10 January 2013 and
Player A, Country B / Club C, Country D
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in spite of the two reminders sent to him on 15 and 25 January 2013 (cf. points I.7. and
I.9. above).
10.
Having established the aforementioned, the Chamber deemed that the underlying issue
in the present dispute, considering the positions of both parties, was to determine
whether the employment contract had been unilaterally terminated with or without
just cause by the Respondent.
11.
At this point and for the sake of good order, the Chamber recalled the basic principle of
burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to
which “Any party claiming a right on the basis of an alleged fact shall carry the burden
of proof”.
12.
Bearing in mind the aforementioned principle, the Chamber referred to the
documentation provided by the Claimant as evidence of his alleged presence at the club
during the month of January 2013. Such evidence consists of: a) a print out of a
“whatsapp” conversation between the Claimant and the Respondent’s alleged director,
between 18 December 2012 and 7 February 2013, and b) several pictures in which he is
shown allegedly training and holding the newspaper of the day, dated from 26 January
2013 to 5 February 2013.
13.
After a careful analysis of the foregoing documentation, the Chamber first noted that
the pictures mentioned in point II.11.b) above are neither able to evidence the
Claimant’s presence at the club until 25 January 2013, as they refer to another time
period, nor to prove to the satisfaction of the Chamber that he indeed trained with the
Respondent from 26 January 2013 to 5 February 2013, as the reference to the daily
newspaper does not necessarily imply that such pictures were in fact taken on that same
date. Furthermore, the DRC deemed that the “whatsapp” conversation allegedly held
between the Claimant and the club’s director cannot be considered as substantial
documentation proving the Claimant’s allegations. In fact, the DRC pointed out that the
probative value of such evidence is rather low.
14.
In continuation, the Chamber noted that the Respondent was able to prove that it has,
on two occasions, warned the Claimant of the consequences of his absence beyond the
authorised period and requested his return (cf. points I.7. and I.9. above). Even though
the exact date of receipt of the Respondent’s warnings of 15 and 25 January 2013 is
disputed by the Claimant, their receipt by the latter before the date of termination can
be established. The Claimant himself does not deny having received them on 24 and 29
January 2013, i.e. in any case before 31 January 2013.
15.
Based on the foregoing, the Chamber had to conclude that the Claimant’s alleged
presence at the club as from the expiry of the second authorisation, i.e. 11 January
2013, could not be evidenced by the player, as he claimed. Furthermore, evidence of his
non-return to the club until 31 January 2013 was in fact provided by the Respondent.
Player A, Country B / Club C, Country D
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16.
Having established the Claimant’s absence at the club as from 11 January 2013, the DRC
went on to verify whether he had a just cause not to return to the club on that date. In
this respect, the Chamber noted that the Claimant claims that the amount of EUR
54,264, corresponding to his remuneration, had remained unpaid by the Respondent up
to 31 January 2013. As per the Claimant, this amount corresponds to what he should
have been paid until 30 January 2013, i.e. EUR 406,750, and the amount in in fact
received from the Respondent, i.e. EUR 352,486 (cf. point I.15. above).
17.
In order to verify whether the existence of an amount of outstanding remuneration
would have entitled the Claimant to leave the Respondent on 11 January 2013, the
Chamber proceeded to calculate which amount had in fact not been paid to the
Claimant on that date, if any. In this respect, the Chamber first noted that the Claimant
includes his remuneration of January 2013, in the amount of EUR 22,750, in his
calculations. This amount, however, was only payable on 30 January 2013 (cf. point I.3.
above). Thus, it should be deducted from the EUR 54,264 considered as outstanding by
the Claimant. Furthermore, the DRC noted that the Claimant confirms having received a
further amount of EUR 10,000 from the Respondent, which according to him should not
be considered as paid, since it allegedly corresponds to fees owed to his agent. As no
evidence has been submitted that said amount was payable – and subsequently paid –
to the Claimant’s agent and in view of the fact that the Claimant acknowledges its
receipt in his bank account (cf. point I.15. above), the DRC concluded that this EUR
10,000 should equally be deducted from the amount claimed as outstanding by the
Claimant.
18.
Thus, the DRC reached the conclusion that, on 11 January 2013, the maximum amount
of outstanding remuneration possibly due to the Claimant was EUR 21,514. This amount
corresponds to less than one monthly salary – EUR 22,750 (cf. point I.3. above) – and,
therefore, in accordance with the Chamber’s well-established and longstanding
jurisprudence, it did not give the Claimant a just cause to leave the club on 11 January
2013.
19.
Therefore, in view of the Claimant’s unjustified absence for 21 days, despite the two
reminders uncontestably sent by the Respondent and received by him before the date
of termination, as well as the existence of less than one monthly salary as outstanding
remuneration on 11 January 2013, the Chamber could conclude that the Claimant had
breached the contract by failing to return to the club after the expiry of the second
authorisation and, consequently, the Respondent had a just cause to terminate the
contract with the Claimant on 31 January 2013. In this respect, the Chamber deemed
that 31 January 2013 should be considered as the date of termination, in view of the
lack of evidence allowing the DRC to conclude that the termination letter was only
received by the Claimant on 2 February 2013.
20.
Having established that the Respondent had a just cause to terminate the contract with
the Claimant on 31 January 2013, the Chamber could establish that the Claimant’s claim
for compensation for breach of contract from the club had to be rejected.
Player A, Country B / Club C, Country D
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21.
Notwithstanding the above, the Chamber emphasised that the Claimant was still
entitled to receive from the Respondent any remuneration that remained outstanding
until 10 January 2013. In this regard and once again referring to the legal principle of
burden of proof, the DRC pointed out that the Respondent bore the burden of proving
the correct payment of the Claimant’s remuneration until 10 January 2013. In this
respect, the DRC noted that the Respondent claims having paid the Claimant the total
amount of EUR 361,250 (cf. point I.17. above), i.e. more than the EUR 352,486
mentioned by the player in his calculations (cf. point I.15. above). Furthermore, the DRC
noted that the Claimant denies having received such amount from the Respondent (cf.
point I.18. above) and that the evidence of payment provided by the latter – namely, an
account statement issued by the club itself and not signed by the player – is not able to
prove the effective payment of the higher amount to the Claimant. Consequently, such
argument of the Respondent cannot be uphold.
22.
In continuation, the Chamber referred to the amount calculated in points II.16. and
II.17. above, corresponding to the remuneration that was payable to the Claimant until
December 2012, amounting to EUR 21,514, which remained outstanding. The Chamber
further noted that, in addition to such amount, the Claimant was still entitled to his pro
rata salary due to him until 10 January 2013, amounting to EUR 7,583.
23.
Thus, the Chamber concluded that, in accordance with the legal principle of pacta sunt
servanda, the total amount of EUR 29,097 was due to the Claimant by the Respondent,
corresponding to the total outstanding remuneration until 10 January 2013.
24.
In conclusion, the Chamber decided that the claim of the Claimant is partially accepted,
that the Respondent is ordered to pay to the Claimant outstanding remuneration in the
amount of EUR 29,097.
*****
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 as from the
date of notification of this decision, outstanding remuneration in the amount of EUR
29,097.
3.
Any further claims of the Claimant are rejected.
4.
In the event that the aforementioned amount is not paid within the stated time limit,
interest of 5% p.a. falls due as of expiry of the stipulated time limit and the present
Player A, Country B / Club C, Country D
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matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
5.
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
Player A, Country B / Club C, Country D
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