Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 October 2012,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
David Mayebi (Cameroon), member
Damir Vrbanovic (Croatia), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player,
Player J , from Country K
as Claimant
against the club,
Club T, from Country U
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
The player J (hereinafter: Claimant or player), and the club T (hereinafter: Respondent
or club), entered into an employment contract (hereinafter: the contract), valid from 1
December 2011 until 30 June 2014.
2.
According to the contract, the club agreed to pay the player a monthly salary of
USD 4,000 during its validity period.
3.
On 29 March 2012, the player filed a claim with FIFA against the club for breach of
contract during the protected period and requested the payment of an aggregate
amount of USD 144,000 plus interest, as follows:
- USD 120,000 for the total value of the contract; and
- USD 24,000 “as compensation for specificity of sport”.
In addition, the player requested that the club be ordered to pay legal fees and costs
incurred in connection with this matter as well as the application of sporting sanctions
against the club.
4.
According to the player, on 15 January 2012 and before he was even registered with
The Football Association of Country U, the club informed him that its new
management had decided to terminate the contract. The player provided an e-mail
allegedly sent by the club in which it was stated that “club leaders say that will not
recognize any agreement that was made earlier. I feel sorry for you because I know
what player you are. May see an opportunity to find another club by Club T will not
have any obstacle. Sorry my friend.”
5.
The player claimed to have replied to the above e-mail, informing the club that, in the
light of the situation, he would be taking legal actions towards the club. In
continuation, the player asserted that the club replied stating that he did have a right
to get a lawyer to deal with the matter.
6.
The player further stated that, upon asking the club to provide him with an “official
letter of release”, the latter informed him that there was “no need to receive official
release letter from Club T because your name is not registered in [the FIFA Transfer
Matching System] online system. So you are free to go in any club that wants without
hindrance.”
7.
In light of the above, the player sustained that it was clear that the club had
terminated the contract unilaterally, in complete disregard for the principle of
contractual stability.
8.
The player further claimed that, according to the established jurisprudence of the FIFA
Dispute Resolution Chamber (hereinafter: Chamber or DRC), the validity of a contract
is not affected by the non-registration of the player with the respective association.
9.
Despite having been invited to do so, the club did not present its position.
10.
On 11 May 2012, the player informed FIFA that he had signed an employment contract
with the club of Country K, FC X, on 23 January 2012, valid from 1 January 2012 to 31
December 2012. According to this employment contract, the player was entitled, inter
alia, to a monthly salary of Currency of Country K (KKK) 50,000.
11.
After leaving FC X, the player signed a contract with the club of Country A, Club C, on
23 July 2012. Said contract is valid for a period of two years and the player is entitled
to remuneration in the amount of USD 10,000 for each year.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, 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 29 March
2012, thus after 1 July 2008. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2
and 3 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 2010)
(hereinafter: 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 K and an club from Country U.
3.
Furthermore, the DRC analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2010) and also considering that the present claim was lodged in front of FIFA
on 29 March 2012, the edition 2010 of the Regulations on the Status and Transfer of
Players (hereinafter: the 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 Dispute Resolution Chamber entered into the substance of the matter.
The members of the Chamber started by acknowledging the facts of the case, as well
as the documentation contained in the file.
5.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid from 1 December 2011 until 30 June 2014, in accordance with which the
Claimant was entitled to a monthly salary of USD 4,000.
6.
In continuation, the Chamber acknowledged the fact that the Claimant requested the
payment of an aggregate amount of USD 144,000 plus interest for the alleged breach
of the contract by the Respondent.
7.
In this regard, the members of the DRC took note that, according to the Claimant, the
Respondent had terminated the contract unilaterally, in complete disregard for the
principle of contractual stability.
8.
The Chamber, first and foremost, focused its attention on the question as to when the
termination of the contract had taken place and who had promoted such termination.
In this respect, the Chamber acknowledged the Claimant’s assertion that, on 15
January 2012 and before he was even registered with The Football Association of
Country U, the Respondent had allegedly informed him that the new management of
the club had decided to terminate the contract.
9.
The members of the chamber also took due note of the Claimant’s statement that,
upon having been notified of the termination of the contract, he requested an
“official letter of release” from the Respondent and that the latter had allegedly
replied that no letter of release was needed, because the player had never been
officially registered and was, therefore, free to join any other club.
10.
Finally, the Chamber acknowledged the Claimant’s affirmation that, according to the
established jurisprudence of the DRC, the validity of a contract is not affected by the
non-registration of the player with the respective association.
11.
On the other hand, the Chamber took note that the Respondent, for its part, failed to
present its response to the claim of the player, in spite of having been invited to do so.
For that reason, the DRC did not have any option other than to consider that the
Respondent had renounced its right to defense and, thus, had accepted the Claimant’s
allegations.
12.
Furthermore, as a consequence of the aforementioned consideration, the members of
the Chamber stressed that, in accordance with art. 9 par 3 of the Procedural Rules, any
decision would have to be taken upon the basis of the documents already on file, in
other words, upon the statements and documents presented by the Claimant.
13.
In light of the above, the Chamber decided that, based on the documentation on file,
it was undisputed that the Respondent had refused to accept the services of the
Claimant and had not provided the DRC with any explanation for such conduct.
14.
For the sake of good order, the members of the Chamber also wished to confirm that,
indeed, both the Regulations and the DRC’s established jurisprudence are very clear in
determining that the validity of an employment contract cannot be made
conditional upon the execution of (administrative) formalities, such as, but not
limited to, the registration procedure in connection with the international transfer
of a player, which are of the sole responsibility of a club and on which a player has
no influence.
15.
The Chamber decided, therefore, that the Respondent had terminated the contract
unilaterally without just cause on 15 January 2012 and that it must be held liable in
accordance thereto.
16.
Having established that the Respondent is to be held liable for the early
termination of the contract without just cause, 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 is entitled to receive
from the Respondent an amount of money as compensation for breach of contract.
17.
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.
18.
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 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.
19.
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 until 30
June 2014 and concluded that the Claimant would have received in total the
amount of USD 120,000 as salaries had the contract been executed until its expiry
date.
20.
In continuation, the Chamber assessed 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 able 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.
21.
The Chamber noted that, on 11 May 2012, the Claimant had already signed an
employment contract with a club of Country K valid until 31 December 2012,
where he was entitled to a monthly salary of KKK 50,000 per month. The Chamber
also noted that, on 23 July 2012, the Claimant had signed another employment
contract with a club from Country A, valid for a period of two years, according to
which he was entitled to remuneration in the amount of USD 10,000 for each year.
22.
The Chamber also considered important to point out that, although the contract
was fully valid and enforceable, its execution had, in fact, never started as a result
of the Respondent’s conduct.
23.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 35,000 to the Claimant as compensation for breach of
contract.
24.
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
25.
Finally, The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player J, is partially accepted.
2.
The Respondent, Club T, 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 35,000, plus 5% interest p.a. as of 25 October 2012 until the date of
effective payment.
3.
In the event that the aforementioned sum, plus interest, is not paid within the
stated time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
5.
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 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