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 club,
Club B, from Country C,
as Claimant
against the player,
Player M, from Country N
as Respondent
and the club,
Club A, from Country N
as Intervening Party
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 July 2008, Club B (hereinafter referred to as club or Claimant) and the player M
(hereinafter referred to as player or Respondent), born in January 1987, signed an
employment contract valid for two sporting seasons, entering into force as from the
signature date until 31 May 2010.
2.
According to art. 3 par. a) of the contract, the player was to receive the following
amounts:
For the sporting season 2008/09:
Upon signature
Monthly payments
USD 100,000
USD 4,800
“Transfer fee”
USD 195,200
Total
USD 300,000
12 installments of USD 400, payable as
of July 2008 until June 2009
10 installments of USD 19,520, payable
as of August 2008 until May 2009
For the sporting season 2009/10:
On 25 August 2009
Monthly payments
USD 100,000
USD 4,800
“Transfer fee”
USD 195,200
Total
USD 300,000
12 installments of USD 400, payable as
of July 2009 until June 2010
10 installments of USD 19,520, payable
as of August 2009 until May 2010
3.
On 29 January 2009, the club lodged a claim in front of FIFA against the player,
requesting the termination of the contract and compensation as a result of the
player’s alleged breach of contract.
4.
In this respect, the club held that in spite of having paid to the player all the amounts
that were due to him on the basis of the contractual terms, the player left the club
without any authorisation or any further communication on 22 December 2008.
5.
In support of its position, the club submitted various documents corresponding to
payments dated between 30 June 2008 and 15 December 2008, representing the total
amount of USD 159,760.
6.
In addition, the club submitted documents relating to three fines that were imposed
upon the player by the club’s board of directors on 2, 7 and 14 January 2009,
representing the total amount of 135,000 currency of country C. The fines were
apparently notified to the player to his address in Country N.
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7.
According to the club, the fines imposed upon the player by the club’s board of
directors are based on “recognition of unattendance by the player” of, inter alia,
various trainings which were confirmed by notary public’s reports.
8.
The club stressed that the player’s departure from the club without authorisation or
any communication after only five months constitutes a breach of contract.
9.
Therefore, the club asked that the player be ordered to pay the following monies:
USD 85,000, corresponding to the three fines imposed upon the player;
USD 450,000, corresponding to the residual value of the contract.
10.
In addition, the club asked that sporting sanctions be imposed on the player,
consisting in a ban from playing for four months.
11.
The player was invited, inter alia, to submit his position in relation to the club’s claim
and asked to provide FIFA with copies of any employment contracts he would have
signed between 1 December 2008 and 1 June 2010.
12.
No reply from the player was ever received.
13.
Based on the information received from the Football Federation of Country N (FFN)
at FIFA’s request, Club A is the first club the player registered with after having left
Country C.
14.
After having been invited by FIFA to present its position on the club’s claim lodged
against the player Club A (hereinafter referred to as Club A or Intervening Party)
submitted its answer and confirmed, inter alia, that it signed an employment contract
with the player on 28 April 2010 and attached a copy of said contract to its reply.
15.
Club A further specified that it signed the aforesaid contract after the player’s
employment contract with Club B would have come to an end and, in this respect,
submitted a document in language of Country N presented as a players’ data base
managed by the FFN, from which it allegedly would be visible that the employment
contract between the Claimant and the Respondent would have ended on 25 April
2010.
16.
FIFA was further provided by the FFN with a copy of the employment contract that the
player signed with Club A on 28 April 2010, which was valid as from its signature date
until 10 December 2010.
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 29 January
2009. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
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Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of
the Procedural Rules).
2.
Subsequently, the members of the Dispute Resolution 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) the Chamber is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a club from Country C, a player from Country N and a club from country N.
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 par. 2 of the Regulations on the Status and Transfer of Players (editions
2010 and 2009), and considering that the present claim was lodged on 29 January
2009, the 2008 edition of said regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
In continuation, and entering into the substance of the matter, the members of the
Chamber firstly acknowledged that, on 1 July 2008, the Claimant and the Respondent
concluded an employment contract valid during 2 sporting seasons, i.e. as from 1 July
2008 until 31 May 2010.
5.
The Chamber further noted that the Claimant asserted having paid the total amount
of USD 159,760 to the Respondent in connection with the execution of the
employment contract and that it presented various documents corresponding to
contractual payments totalling the amount of USD 159,760 between 30 June 2008
and 15 December 2008.
6.
The members of the Chamber further acknowledged that the Claimant asserted that
the Respondent unilaterally breached the employment contract by having left on 22
December 2008 without any authorisation and any further communication.
7.
On such basis, the Claimant deemed that the Respondent shall be sentenced to pay
compensation for breach of contract to the Claimant in the amount of USD 450,000,
which, according to the Claimant, corresponds to the residual value of the
employment contract signed by and between the Claimant and the Respondent on 1
July 2008.
8.
In addition, the Claimant claimed the payment of three fines that were imposed upon
the player by the club’s board of directors and further asked that sporting sanctions
be imposed on the Respondent.
9.
In continuation, the Chamber duly took note that, in spite of having been invited to
do so, the Respondent did not submit any response to the claim lodged against him.
In this way, so the Chamber, the Respondent renounced his right to defence and,
thus, accepted the allegations of the Claimant.
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10.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a
decision upon the documents already on file.
11.
The Intervening Party, for its part, highlighted that it signed an employment contract
with the player after his contract had allegedly already ended, i.e. on 28 April 2010,
and it submitted a document issued by the FFN in the language of country N only. In
the light of the fact that such document was not presented along with a translation
into an official FIFA language (cf. art. 9 par. 1 lit. e) of the Rules), the Chamber could
not take it into account.
12.
Nonetheless, the Chamber wished to emphasise that Club A respective argument is
not relevant as will be demonstrated below.
13.
In light of all the above, the Chamber concluded that the employment contract
between the Claimant and the Respondent was unilaterally terminated by the
Respondent on 22 December 2008, i.e. the date on which the Respondent left the
club and, thus, ceased to render his services to the Claimant without any
authorisation or any further communication.
14.
Having established the aforementioned, the DRC deemed that the underlying issue in
this dispute was to determine as to whether the employment contract had been
unilaterally terminated with or without just cause by the Respondent. The Chamber
also underlined that subsequently, if it was found that the employment contract has
been breached by the Respondent without just cause, it would be necessary to
determine the financial and/or sporting consequences to be imposed as a result of the
breach of the relevant employment contract without just cause.
15.
In this respect, and as a consequence of the absence of any statement or evidence
submitted by the Respondent with regard to the circumstances related to his
departure from the Claimant, the Dispute Resolution Chamber could only find, in line
with its well-established jurisprudence, that the Respondent had unilaterally
terminated the employment contract signed with the Claimant without just cause on
22 December 2008.
16.
This being established, the Chamber stated that it, therefore, had to assess the
consequences of this unilateral termination of the employment contract without just
cause by the Respondent, in accordance with the provisions provided for by Chapter
IV of the Regulations.
17.
As a matter of fact, by unilaterally and prematurely terminating the employment
contract with the Claimant without just cause, in accordance with article 17 par. 1 of
the Regulations, the Respondent is liable to pay compensation to the Claimant.
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18.
Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of the
Regulations, the Chamber established that the Respondent’s new club, i.e. the
Intervening Party, shall be jointly and severally liable for the payment of
compensation.
19.
In this respect, and reverting to the statement put forward by Club A, the Chamber
was eager to point out that the joint liability of a player’s new club is independent
from the question as to whether this new club has committed an inducement to
contractual breach. This conclusion is in line with the well-established jurisprudence
of the Chamber that was repeatedly confirmed by the Court of Arbitration for Sport
(CAS).
20.
In continuation, the Chamber focussed 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
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 under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years, the fees and expenses paid or
incurred by the former club (amortised over the term of the contract) and 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
which the parties had beforehand agreed upon an amount of compensation payable
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 for breach of contract in the present matter 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 non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body. Furthermore, the Chamber highlighted that each
request for compensation for breach of contract has to be assessed on a case-by-case
basis.
23.
Having said this, the Chamber turned its attention to the remuneration and other
benefits due to the player under the existing contract and/or the new contract. The
members of the Chamber deemed it important to emphasise that the wording of
article 17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and any new contract(s) in the calculation of the amount of
compensation.
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24.
In connection with the employment contract signed by and between the Claimant
and the Respondent, the Chamber firstly recalled that the breach of contract in the
case at hand occurred when the relevant employment contract was still to run for
more than seventeen months, i.e. as from 22 December 2008 until 31 May 2010.
25.
It further recalled, on the one hand, that the Claimant demonstrated that it paid the
amount of USD 159,760 to the Respondent prior to the early termination of the
contract and, on the other hand, that it was requesting the payment of the amount
of USD 450,000 as compensation for breach of contract, which amount it had not
further specified.
26.
Bearing in mind that the Respondent left the Claimant on 22 December 2008, the
Chamber concluded that on that date, and based on the financial terms of the
relevant contract, the Claimant should have paid to the Respondent the amount of
USD 180,080 for services rendered by the Respondent to the Claimant.
27.
In view of the above, the Chamber held that the residual value of the contract at the
time when the Respondent acted in breach of the contract was USD 419,920.
28.
In continuation, the Chamber noted that subsequent to the moment in time when
the breach of contract occurred, as from 22 December 2008 until 31 May 2010, the
Respondent appeared to have remained unemployed until 28 April 2010, i.e. during a
period of time of 16 months, when he signed on with Club A.
29.
Likewise, the Chamber took into account that the Respondent’s remuneration under
his new employment contract has been significantly lower than the remuneration
stipulated in the contract signed with the Claimant.
30.
In continuation, and referring to art. 12 par. 3 of the Procedural Rules, although
bearing in mind that the Claimant had not specifically included any of these costs in
its claim, the Chamber established that it had no indication at its disposal regarding
possible fees and expenses paid or incurred by the Claimant for the acquisition of the
player’s services and that therefore, it could not further consider that criterion in the
specific case at hand, whereas according to art. 17 par. 1 of the Regulations such fees
and expenses may be included as one of the criteria to be taken into account in the
calculation of compensation.
31.
Furthermore, the Chamber underlined that at the time of the early termination of
the contract by the Respondent without just cause, the Claimant had not fully
complied with its contractual obligations. Indeed, the Claimant substantiated that it
paid the amount of USD 159,760 to the Respondent, whereas, at the time when the
breach occurred, i.e. on 22 December 2008, and as previously detailed, the total
amount of USD 180,080 based on the financial contractual terms had fallen due, the
difference corresponding to one month’s remuneration.
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32.
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 USD
150,000 to the Claimant as compensation for breach of contract, which was
considered a fair and adequate amount of compensation in the present matter.
Furthermore, the Chamber decided that the Intervening Party, i.e. Club A, is jointly
and severally liable for the payment of the relevant compensation in accordance with
art. 17 par. 2 of the Regulations.
33.
Finally, and with regard to the Claimant’s claim relating to the payment of three fines
that were imposed upon the Respondent by the Claimant’s board of directors, the
members of the Chamber wished to point out that said fines were related to missed
trainings as from 28 December 2008 until 10 January 2009 and the Respondent’s
absence in connection with a match on 18 January 2009.
34.
In this respect, without addressing the issue as to whether these fines were
proportionate and to be considered valid, the members of the Chamber unanimously
agreed that the compensation for breach of contract and the fines at stake were both
related to the Respondent’s illegitimate absence. Hence, a simultaneous imposition
upon the Respondent of the obligation to pay compensation for breach of contract
on the one hand, and the obligation to pay said fines, on the other hand, would in
fact consist of the imposition of a double sanction based on the same breach of
obligations.
35.
The DRC members therefore unanimously rejected the Claimant’s claim for the
payment of the three fines that were imposed upon the Respondent by the
Claimant’s board of directors.
36.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club B, is partially accepted.
2.
The Respondent, player M, has to pay to the Claimant compensation for breach of
contract amounting to USD 150,000 within 30 days as from the date of notification of
this decision.
3.
In the event that the aforementioned amount is not paid within the stated time limit,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time
limit and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
4.
The Intervening Party, Club A, is jointly and severally liable for the payment of the
aforementioned amount.
5.
Any further claim lodged by the Claimant is rejected.
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6.
The Claimant is directed to inform the Respondent and the Intervening Party
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
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