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 (England), Chairman
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Alejandro Marón (Argentina), member
Guillermo Saltos (Ecuador), 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 between the parties
I.
Facts of the case
1.
On 17 December 2013, the player from country B, Player A (hereinafter: player
or Claimant), and the club from country D, Club C (hereinafter: club or
Respondent), signed an employment contract (hereinafter: contract) valid
from 1 January 2014 until 31 December 2014.
2.
According to the contract, the club undertook to pay the player a monthly
salary of 130,000, due on the first working day of the following respective
month.
3.
Moreover, according to the contract, the club undertook to pay the player
“Allowance and accommodation allowance during the training for 10,000 per
month” and a “ticket fee” of 60,000 per year.
4.
According to the player, the club terminated the contract unilaterally on 22
June 2014.
5.
On 29 July 2014 with a subsequent amendment on 6 August 2014, the player
lodged a claim in front of FIFA against the club for breach of contract without
just cause and requested payment of the following monies:
- 420,000 corresponding to outstanding salaries plus the monthly
accommodation allowance of March to May 2014;
- 60,000 corresponding to the “air ticket” allowance per year;
- 102,667 corresponding to the outstanding pro-rata salary of June 2014;
- 814,667 corresponding to the residual value of the contract.
In addition, the player requested “interest in amount not less than 5% per
annum”, sporting sanctions for the club and “any other or further remedy
that the FIFA Dispute Resolution Chamber deems appropriate”.
6.
The player stated that the club had no just cause to unilaterally terminate the
contract and that he fulfilled all his contractual duties. Furthermore, the
player held that the aforementioned salaries were outstanding on the date of
termination and that he is entitled to compensation in the amount of the
residual value of the contract.
7.
In reply, the club presented stated: “Ask for clarification of Player A cases not
accept money form the Club C because athletes celebrities said the club
informed the athlete through agent from country D. To cancel contract. The
News went to audition, and played for the club, Club E and athletes of the
club and has played for the club in a First League items that club has issued
according to transfer system. Companies with Premier League of country D are
correct. The players we have transferred form team. The club have no need to
pay for athletes”.
Player A, country B / Club C, country D
Page 2 of 8
8.
On 23 June 2014, the player signed a new employment contract with the club
from country D, Club E, valid as of 23 June 2014 until 10 November 2014,
including a monthly salary of 80,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 29 July 2014. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
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 2015) 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.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2015), and considering that the present claim was lodged on
29 July 2014, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber recalled that, on 17 December 2013, the parties
had signed an employment contract valid as from 1 January 2014 until 31
December 2014.
6.
In continuation, the members of the Chamber noted that the Claimant lodged
a claim against the Respondent maintaining that the latter had terminated
Player A, country B / Club C, country D
Page 3 of 8
the employment contract without just cause on 22 June 2014. In this respect,
the Chamber noted that the Claimant had not presented any written notice of
termination issued by the Respondent in support of his position. Therefore,
the DRC understood that the Claimant implicitly invokes a verbal termination
of the employment contract.
7.
Furthermore, the Chamber took note of the Claimant’s allegation that the
Respondent had failed to pay his remuneration including salaries and
accommodation allowances for March until May 2014. Consequently, the
Claimant asks to be awarded, inter alia, these outstanding dues as well as
compensation for breach of the employment contract.
8.
The DRC further noted that the Respondent, for its part, submitted its answer
in rather incomprehensible English, but from which the members of the
Chamber understood that the Respondent rejected the Claimant’s claim. The
Chamber further took into account that the Respondent had not submitted
any documentation in support of its position, which, in addition to possibly
constituting evidence in accordance with art. 12 par. 3 of the Procedural Rules,
may have clarified the Respondent’s comments as regards the player’s claim.
9.
Having said this, the DRC acknowledged that the central issue in the matter at
stake was to determine as to whether the contract was terminated by one of
the parties with or without just cause and to decide on the consequences
thereof.
10.
In continuation, on account of the above, the DRC established that it has
remained undisputed that the Claimant left the club on 22 June 2014 and
signed an employment contract with a new club on 23 June 2014.
11.
Furthermore, the members of the Chamber recalled that the Respondent had
not presented any documentation in support of its apparent rejection of the
Claimant’s allegations that his remuneration for March until and including
May 2014 had remained unpaid.
12.
In view of the aforementioned, the Chamber agreed that the Claimant
terminated the employment contract by signing an employment contract with
a new club on 23 June 2014.
13.
In continuation, on account of the fact that the Claimant’s salaries for March
until May 2014 were outstanding at the time of the termination of the
contract by the Claimant, and taking into consideration the Chamber’s
pertinent longstanding and constant jurisprudence, the Chamber decided that
the Claimant had just cause to unilaterally terminate the employment contract
on 23 June 2014 and that the Respondent is to be held liable for the early
termination of the contract with just cause by the Claimant.
Player A, country B / Club C, country D
Page 4 of 8
14.
Subsequently, prior to establishing the consequences of the termination of the
employment contract with just cause by the Claimant in accordance with art.
17 par. 1 of the Regulations, the Chamber held that it had to address the issue
of unpaid remuneration at the moment when the contract was terminated by
the Claimant.
15.
In this regard, the members of the Chamber recalled that at the date of the
termination of the contract, i.e. 23 June 2014, salaries and accommodation
allowance pertaining to March until May 2014 in the total amount of 420,000
had fallen due and remained unpaid by the Respondent without valid reason.
16.
Consequently, on account of the above 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 amount of 420,000 with
regard to the remuneration due to the Claimant in accordance with the
employment contract until its early termination.
17.
In addition, taking into consideration the Claimant’s claim, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. as of the date of
the amended claim, i.e. 6 August 2014, until the date of effective payment.
18.
Having established the above, the Chamber turned its attention to the
consequences of the termination of the employment contract by the Claimant
with just cause on 23 June 2014.
19.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant is entitled to receive compensation for breach of
contract from the Respondent.
20.
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 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.
21.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains a
provision by means of which the parties had beforehand agreed upon an
Player A, country B / Club C, country D
Page 5 of 8
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 employment contract at the basis of
the matter at stake.
22.
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 nonexhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
23.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
new contract, which criterion was considered by the Chamber to be essential.
The members of the Chamber deemed it important to emphasise that the
wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
24.
Bearing in mind the foregoing, the Chamber proceeded with the calculation
of the monies payable to the player under the terms of the employment
contract as from the date of termination with just cause by the Claimant until
31 December 2014, bearing in mind that, according to the Claimant, he would
have received in total 977,334 as remuneration for the period as from June
until December 2014, including the flight ticket, had the contract been
executed until its ordinary expiry date. Consequently, the Chamber concluded
that the amount of 977,334 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 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 the
player’s general obligation to mitigate his damages.
26.
In this respect, the Chamber recalled that the Claimant had found new
employment with the club from country D, Club E, as from 23 June 2014 until
10 November 2014. In accordance with the employment contract signed
between the Claimant and Club E, the Claimant was entitled to a monthly
salary of 80,000 and therefore received the total amount of 360,000 during
the relevant period of time.
Player A, country B / Club C, country D
Page 6 of 8
27.
Consequently, on account of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to
mitigate his damage, the Chamber decided to partially accept the Claimant’s
claim and that the Respondent must pay the amount of 617,334 as
compensation for breach of contract to the Claimant.
28.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of compensation as of the date on which the claim was amended, i.e.
6 August 2014, until the date of effective payment.
29.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of 420,000 plus 5% interest p.a. as from 6 August 2014 until the date
of effective payment
3.
The Respondent has to pay to the Claimant, within 30 days as from the
date of notification of this decision, compensation for breach of contract in
the amount of 617,334 plus 5% interest p.a. as from 6 August 2014 until the
date of effective payment.
4.
In the event that the amounts due to the Claimant are not paid by the
Respondent within the stated time limits, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
Player A, country B / Club C, country D
Page 7 of 8
6.
The Claimant is directed to inform the Respondent immediately and directly
of the account number to which the remittance is to be made and to notify
the Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Acting Deputy Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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