Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 29 September 2016,
by Theo van Seggelen (Netherlands), DRC judge,
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.
On 25 July 2014, 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 as from 25 July 2014 until 30
June 2016.
2.
Pursuant to the contract, the Claimant was entitled to receive the total amount of
EUR 30,000 net, payable as follows:
EUR 1,500 on 30 September 2014;
EUR 1,500 on 30 October 2014;
EUR 1,500 on 30 November 2014;
EUR 1,500 on 30 December 2014;
EUR 1,500 on 30 January 2015;
EUR 1,500 on 28 February 2015;
EUR 1,500 on 30 March 2015;
EUR 1,500 on 30 April 2015;
EUR 1,500 on 30 May 2015;
EUR 1,500 on 30 June 2015;
EUR 1,500 on 30 September 2015;
EUR 1,500 on 30 October 2015;
EUR 1,500 on 30 November 2015;
EUR 1,500 on 30 December 2016;
EUR 1,500 on 30 January 2016;
EUR 1,500 on 28 February 2016;
EUR 1,500 on 30 March 2016;
EUR 1,500 on 30 April 2016;
EUR 1,500 on 30 May 2016;
EUR 1,500 on 30 June 2016.
3.
On the same date, the Claimant and the Respondent concluded an additional
agreement (hereinafter: the agreement).
4.
In accordance with the agreement, the Claimant was entitled to receive the
following remuneration:
From 21 July 2014 until “31” June 2015: EUR 21,211.50 net payable, as
follows:
- 2,121.15 on 30 September 2014;
- 2,121.15 on 30 October 2014;
- 2,121.15 on 30 November 2014;
- 2,121.15 on 30 December 2014;
- 2,121.15 on 30 January 2015;
Player A, country B / Club C, country D
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- 2,121.15 on 28 February 2015;
- 2,121.15 on 30 March 2015;
- 2,121.15 on 30 April 2015;
- 2,121.15 on 30 May 2015;
- 2,121.15 on 30 June 2015;
From 1 July 2015 until “31” June 2016: EUR 31,211.50 net payable, as follows:
- 3,121.15 on 30 September 2015;
- 3,121.15 on 30 October 2015;
- 3,121.15 on 30 November 2015;
- 3,121.15 on 30 December 2015;
- 3,121.15 on 30 January 2016;
- 3,121.15 on 28 February 2016;
- 3,121.15 on 30 March 2016;
- 3,121.15 on 30 April 2016;
- 3,121.15 on 30 May 2016;
- 3,121.15 on 30 June 2016.
5.
In addition, the agreement provides that the Claimant and his girlfriend are
entitled to “an apartment and a car and one (1) ticket to and from his country per
year”.
6.
The agreement further specifies that “the [Claimant] is going to be paid with
23.788,50 through the [contract] and 21.211,50 through the [agreement], (Total
45.000 €) for the first year and with 23.788,50 through the [contract] and 31.211,50
€ through the [agreement] (Total 55.000€) for the second year”.
7.
Finally, the agreement stipulates that “[i]n the event of disputes arising out from
this contract, both parties explicitly agree to submit the case before the DRC of
FIFA, Switzerland”.
8.
On 30 January 2016, the Claimant sent a correspondence to the Respondent
outlining his side-lining from the team and requesting the latter to pay him the
amount of EUR 18,455.15 by no later than 10 February 2016, insisting that if it
does not pay the requested amount “until the prescribed deadline, [he] will
terminate th[e] Contract (and [agreement])”.
9.
On 10 February 2016, the Claimant sent a correspondence to FIFPro of country D,
pointing out the outstanding debt as well as his side-lining and the alleged
threatening behaviour of the team’s captain towards him.
10.
On 12 February 2016, the Claimant sent an e-mail to the Respondent, enclosing a
letter dated 11 February 2016 which, inter alia, reads as follows:
“The fact that your club doesn’t want to comply with the agreed contractual terms
and I have not received my salaries for such a long period of time, which means
Player A, country B / Club C, country D
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that the position of my existence is endanger, entitles me to terminate the
contract with the immediate effect.
Also, I wish to inform you that I will turn to FIFA relevant bodies in terms of
protection my legitimate rights, just as prescribed in the [agreement] from 25 July
2014”.
11.
On 23 March 2016, the Claimant lodged a claim against the Respondent in front of
FIFA requesting the following:
EUR 42,000.15 plus 5% interest “for every unpaid salary”, broken down as
follows:
- EUR 18,894.40 as outstanding remuneration;
- EUR 23,105.75 as compensation.
To order the Respondent to pay the procedural costs and to compensate him
for the legal costs incurred.
12.
In his claim, the Claimant sustains that the Respondent started to fail to comply
with its obligations at the beginning of the 2015-16 season, after he rejected a
proposal to mutually terminate the employment relationship. In this respect, the
Claimant stresses that the Respondent’s failures “endangered his and his fiancé’s
existence” and obliged them to borrow money from friends in order to “feed
themselves”.
13.
In particular, the Claimant emphasises that from 1 July 2015 until 31 January 2016,
he received the amount of EUR 4,211.35 whereas he should have received EUR
23,105.75. In support of his assertion, the Claimant submitted his bank statement,
pointing out the following payments by the Respondent:
EUR 530.45 on 25 August 2015;
EUR 530.45 on 22 September 2015;
EUR 530.45 on 22 October 2015;
EUR 500 on 4 December 2015;
EUR 2,120 on 21 December 2015.
14.
Furthermore, the Claimant alleges that the Respondent failed to pay the rent of
his apartment for several months.
15.
In continuation, the Claimant argues that as from 20 January 2016, the
Respondent obliged him to train alone and that on 10 February 2016, the team’s
captain threatened him.
16.
In view of the above, the Claimant explains that due to the Respondent’s refusal to
receive his termination letter on 11 February 2016, he sent it via e-mail on 12
February 2016 and subsequently left the country on 13 February 2016.
Player A, country B / Club C, country D
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17.
In its reply to the claim, the Respondent argues that by means of his letter dated
11 February 2016, the Claimant did not terminate the contractual relationship but
rather informed the Respondent of his alleged right to do so. In this respect, the
Respondent emphasises that a termination notice must state expressly that the
contract is terminated with immediate effect, quod non.
18.
In continuation, the Respondent rejects the Claimant’s assertion as to the alleged
threats made by the captain of the team towards him.
19.
In addition, the Respondent points out that the bank statement submitted by the
Claimant demonstrates that he has never gone through financial difficulties.
20.
Besides, the Respondent alleges that in addition to the ones identified by the
Claimant, the following payments were made to him:
EUR 1,500 on 25 August 2015;
EUR 1,500 on 22 September 2015;
EUR 1,500 on 22 October 2015;
EUR 1,806.68 on 13 February 2016;
EUR 1,806.68 on 26 February 2016.
21.
In view of the above, the Respondent holds that in any case the Claimant would
not have had just cause to terminate the contract at the beginning of February
2016 and eventually acknowledges an outstanding debt of EUR 10,780.32.
22.
In his replica, the Claimant insists that after putting the Respondent in default on
30 January 2016, he terminated the employment relationship by means of his
letter dated 11 February 2016.
23.
Moreover, the Claimant reiterates that the team’s captain reportedly threatened
him in the dressing room, fact that he immediately reported to FIFPro of country
D.
24.
In continuation, the Claimant stresses on the Respondent’s bad faith, which
refused to receive several correspondence and never replied to his requests.
25.
Finally, the Claimant reiterates his financial claim.
26.
In its final comments, the Respondent points out that without terminating the
contractual relationship, the Claimant left the country and abandoned the
Respondent, thereby breaching said relationship.
27.
Furthermore, the Respondent highlights that the fact that a club has overdue
payables towards a player does not automatically mean that said player has just
cause to terminate the contract. In this respect, the Respondent first outlines that
Player A, country B / Club C, country D
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the amounts referred to in the default notice dated 30 January 2016 did not
correspond with the reality. The Respondent further argues that at the beginning
of February 2016, less than EUR 15,000 were outstanding and were so for only two
months and some days, i.e. “since 30 November 2011”. In view of the above, the
Respondent reiterates its allegation regarding the Claimant’s lack of just cause to
terminate the contract.
28.
Finally, the Respondent rejects the Claimant’s assertions as to the bullying he was
victim of and his side-lining, emphasising that he did not submit any relevant
evidence in their support.
29.
Upon request, the Claimant informed FIFA that he had not entered into a new
employment contract between February and June 2016.
II.
Considerations of the DRC judge
1.
First, the DRC judge analysed whether he was competent to deal with the case at
hand. In this respect, the DRC judge took note that the present matter was
submitted to FIFA on 23 March 2016. Consequently, the 2015 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 hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art.
22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), he
is competent to decide on the present litigation, which concerns an employmentrelated dispute with an international dimension between a player from country B
and a club from country D.
3.
Moreover, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in
the present dispute which value does not exceed CHF 100,000.
4.
Furthermore, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that in
accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2016), and
considering that the present matter was submitted to FIFA on 23 March 2016, the
2015 edition of said Regulations (hereinafter: the Regulations) is applicable to the
present matter as to the substance.
Player A, country B / Club C, country D
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5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing so, he
started by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file. However, the DRC judge emphasised that in
the following considerations he will refer only to facts, arguments and documentary
evidence which he considered pertinent for the assessment of the matter at hand. In
this respect, the DRC judge acknowledged that the parties had signed an
employment contract, valid as of 25 July 2014 until 30 June 2016.
6.
In continuation, the DRC judge noted that the Claimant lodged a claim against the
Respondent maintaining that he had terminated the employment contract with
just cause on 12 February 2016. In particular, the DRC judge observed that the
Claimant alleges that for the period running from 1 July 2015 until 2016, the
Respondent only paid him the amount of EUR 4,211.35 out of EUR 23,105.75.
Consequently, the Claimant asks to be awarded his outstanding dues as well as the
payment of compensation for breach of the employment contract.
7.
Subsequently, the DRC judge noticed that the Respondent asserts that the
correspondence sent on 12 February 2016 does not constitute a valid termination
notice and that consequently, the contractual relationship was never formally
terminated. Furthermore, the DRC judge took note that the Respondent considers
that in any case the Claimant did not have just cause to terminate the contractual
relationship in February 2016 since the amount of EUR 10,780.32 only, i.e. less than
three monthly salaries, was outstanding.
11.
Having said the above, the DRC judge deemed that the underlying issue in this
dispute was to determine when and whether the contract had been terminated by
the Claimant with or without just cause.
12.
In this respect, the DRC judge proceeded to the analysis of the content of the
correspondence sent on 12 February 2016 as well as the circumstances surrounding
the sending of the latter. In doing so, the DRC judge observed that the
correspondence follows a previous default notice sent on 30 January 2016 in which
the Claimant explicitly warned the Respondent that should it fail to pay his
outstanding dues by 10 February 2016, he would terminate the contract.
Furthermore, the DRC judge noted that by means of the letter sent on 12 February
2016, the Claimant emphasised that the situation “entitle[d him] to terminate the
contract with the immediate effect” as well as his will to refer the matter to FIFA.
Finally, the DRC judge pointed out that the Claimant left the country the next day,
i.e. on 13 February 2016. In view of the above-mentioned facts, the DRC judge held
that the Claimant’s intention on 12 February 2016 was clearly and unequivocally to
put an end to the contractual relationship and, therefore, concluded that the
latter relationship was terminated on that date.
Player A, country B / Club C, country D
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13.
The foregoing having been established, the DRC judge focused his attention on
the amount outstanding on the date of termination, i.e. on 12 February 2016. In
this regard, the DRC judge observed that apart from the amount of EUR 4,211.35
acknowledged by the Claimant, the Respondent submitted documentation
evidencing the payment of an additional amount of EUR 4,500 until 12 February
2016, amount which is not disputed by the Claimant. Consequently, the DRC judge
concluded that until the date of termination, the Respondent failed to pay to the
Claimant the amount of EUR 14,394.40, corresponding to more than three monthly
remuneration in accordance with the contract and the agreement.
14.
On account of the aforementioned, the DRC judge established that the
Respondent, without any valid reason, failed to remit to the Claimant, until 12
February 2016, a significant part of his remuneration. Consequently, and
considering that the Respondent had repeatedly been in breach of its contractual
obligations towards the Claimant, the DRC judge decided that the Claimant had
just cause to unilaterally terminate the employment contract on 12 February 2016
and that, as a result, the Respondent is to be held liable for the early termination
of the employment contact with just cause by the Claimant.
13.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the DRC judge focused its attention on
the consequences of such termination. Taking into consideration art. 17 par. 1 of
the Regulations, the DRC judge decided that the Claimant is entitled to receive
from the Respondent an amount of money as compensation for breach of contract
in addition to any outstanding payments on the basis of the relevant employment
contract.
14.
At this stage, the DRC judge made reference to his previous considerations (cf.
II.13) and recalled that at the time of the termination, i.e. on 12 February 216, the
amount of EUR 14,394.40 was outstanding. Nevertheless, the DRC judge took note
that on 13 and 26 February 2016, i.e. after the termination of the contract, the
Respondent made two payments of EUR 1,806.68 each in favour of the Claimant.
Consequently, the DRC judge concluded that the amount of EUR 10,781.04
remained outstanding. In this regard, the DRC judge strongly emphasised that the
circumstance that these payments were paid at a later stage by the Respondent,
this is, after the termination of the contract by the Claimant occurred, cannot in
any way repair the Respondent’s disrespect of its contractual obligations.
15.
Consequently, in accordance with the principle of pacta sunt servanda, the DRC
judge decided that the Respondent is liable to pay the Claimant the amount of
EUR 10,781.04 as outstanding remuneration.
Player A, country B / Club C, country D
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16.
In addition, and taking into consideration the Claimant’s claim, the DRC judge
decided that the Respondent had to pay default interest at a rate of 5% p.a. on
said amount as from 23 March 2016 until the date of effective payment.
17.
In continuation, the DRC judge focused his attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent in the case at
stake. In doing so, the DRC judge 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.
18.
In application of the relevant provision, the DRC judge held that he first of all had
to clarify as to whether the pertinent employment contracts 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 DRC judge established that no such compensation
clause was included neither in the contract nor in the agreement at the basis of
the matter at stake.
19.
As a consequence, the DRC judge 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 DRC judge
recalled that said provision provides for a non-exhaustive enumeration of criteria
to be taken into consideration when calculating the amount of compensation
payable.
20.
Bearing in mind the foregoing as well as the claim of the Claimant, the DRC judge
proceeded with the calculation of the monies payable to the Claimant under the
terms of the employment contract until 30 June 2016, taking into account that the
Claimant’s remuneration until January 2016 is included in the calculation of the
outstanding remuneration. Consequently, the DRC judge concluded that the
amount of EUR 23,105.75 serves as the basis for the determination of the amount
of compensation for breach of contract.
21.
In continuation, the DRC judge 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 Dispute Resolution Chamber, such
remuneration under a new employment contract shall be taken into account in the
Player A, country B / Club C, country D
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calculation of the amount of compensation for breach of contract in connection
with the player’s general obligation to mitigate his damages.
22.
The DRC judge noted that it appears from the documentation on file that the
Claimant not sign any contract with a new club within the relevant period. Thus,
the Claimant had apparently not been able to mitigate damages. In this context,
the DRC judge declared that there is no remuneration to be taken into account in
order to mitigate the amount of compensation for breach of contract.
23.
In this respect and bearing in mind all of the above-mentioned considerations and
the specificities of the case at hand, the DRC judge decided that the Respondent
must pay the amount of EUR 23,105.75 to the Claimant, which was to be
considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
24.
Subsequently, taking into consideration the Claimant’s request, the DRC judge
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 lodged, i.e. 23
March 2016, until the date of effective payment.
25.
Moreover, the DRC judge rejected any claim for procedural compensation in
accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution
Chamber’s respective longstanding jurisprudence in this regard.
26.
The DRC judge concluded his deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
*****
III.
Decision of the DRC judge
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
EUR 10,781.04 plus 5% interest p.a. on said amount as from 23 March 2016 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 amounting to
EUR 23,105.75 plus 5% interest p.a. on said amount as from 23 March 2016 until
the date of effective payment.
Player A, country B / Club C, country D
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4.
In the event that the amounts plus interest due to the Claimant in accordance with
the above-mentioned points 2. and 3. 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.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the DRC
judge of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 58 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 DRC judge:
Marco Villiger
Player A, country B / Club C, country D
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Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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