Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
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 E,
as Claimant
against the club,
Club A, from country T,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 6 February 2008, the player J from country E (hereinafter: player or Claimant), and
the club A from country T. (hereinafter: club or Respondent), signed an employment
contract, valid as of 6 February 2008 until 31 May 2010 (hereinafter: contract).
2.
According to the contract, the player was entitled to receive, inter alia, for the 2009/10
season the following amounts:
Advance payment
EUR 200,000
Monthly salary as from August 2009 to May 2010
(EUR 15,000 X 10 instalments)
EUR 150,000
Super League matches of country T (EUR 4,411 per game in which he
participated)
Monthly legal minimum wage
3.
On 10 December 2009, the player put the club in default of payment of the total
amount of EUR 187,644 plus 3,259 ( currency of country T )relating to outstanding
salaries, match bonuses and the advance payment.
4.
This default notice having remained unanswered, on 28 December 2009, the player
terminated the employment contract.
5.
On 21 April 2010, the player lodged a claim against the club in front of FIFA, sustaining
that the club did not comply with its obligations and failed to pay him remuneration in
the total amount of EUR 202,644.
6.
Therefore, the player requested the Dispute Resolution Chamber to establish that the
club breached the contract and that it be ordered to pay the total amount of EUR
409,947 plus interest at 5% p.a., accrued as from 28 December 2009, as follows:
EUR 202,644 as outstanding salaries relating to the 2009-10 season:
a) Advance payment
b) Monthly salaries as from August 2009 to December 2009
c) Four league games played (EUR 4,411 x 4)
EUR 200,000
EUR 75,000
EUR 17,644
Amount paid by the club on 24 September 2009
- EUR 90,000
EUR 207,303 as compensation for breach of contract:
a) Remaining league games until the termination
of the contract (EUR 4,411 X 13)
b) Monthly salaries as from January to May 2010
c) League games relating to the second half of
the 2009/10 season (EUR 4,411 x 17)
Player J, from country E / Club A, from country T
EUR 57,343
EUR 75,000
EUR 74,987
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7.
The player explained that, on 15 September 2009, the club was relegated to a lower
division in accordance with a decision of the disciplinary committee of the Football
Federation of country T. Accordingly, the player held that he was no longer able to
play in league matches due to the club’s fault.
8.
The player submitted that, on 24 September 2009, the club paid him the sum of EUR
90,000.
9.
In spite of having been invited by FIFA to do so, the club did not present any reply to
the player’s claim.
10.
On 4 January 2010, the player signed an employment contract with the Club S from
country E ,valid for three sporting seasons (2009/10 until 2011/12), in accordance with
which he was entitled to receive, inter alia, the amount of EUR 60,000 in five monthly
installments of EUR 12,000, the first being due on 5 February 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 21 April 2010.
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 conjunction with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2010), 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 E and a club from country T.
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 (editions 2009 and
2010), and considering that the present claim was lodged on 21 April 2010, the 2009
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. The members of
the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. In this respect, the Chamber recalled that the
parties had signed an employment contract valid as from 6 February 2008 until 31 May
Player J, from country E / Club A, from country T
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2010, in accordance with which the Claimant was entitled to receive, inter alia, the
total amount of EUR 350,000 for the 2009/10 season, plus a monthly legal minimum
wage, the amount of which was not specified in the employment contract, as well as
EUR 4,411 per game in which he participated in the 2009/10 Super League of country T.
5.
The Chamber, first and foremost, focused its attention on the question as to when the
termination of the contract had taken place and which party had proceeded with such
termination. In this respect, the Chamber acknowledged that the Claimant had put the
club in default of its contractual obligations and had notified the Respondent that he
would terminate the contract in the event that the Respondent would fail to comply
with its obligations regarding the payment of his receivables. According to the
Claimant, the Respondent failed to remedy the breach, as a result of which, on 28
December 2009, he terminated the employment contract. Following the above, the DRC
pointed out that the central issue in the present matter would be, thus, to determine if
the Claimant had had just cause or not to terminate the contract.
6.
In this respect, the Chamber wished to emphasize that, according to the Claimant, upon
the termination of the contract on 28 December 2009, the total amount of EUR 187,644
plus TRY 3,259 relating to outstanding salaries, match bonuses and the advance
payment were yet to be paid.
7.
The Chamber took due 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.
Consequently, the DRC deemed that the Respondent had renounced its right to
defence and, thus, had accepted the allegations of the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the members of
the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a
decision shall be taken upon the basis of the documents already on file; in other words,
upon the statements and documents presented by the Claimant.
9.
Taking into account the documentation presented by the Claimant in support of his
petition, the Chamber established that a considerable part of the advance payment of
EUR 200,000, four monthly salaries, as from August to November 2009, as well as four
match bonuses had fallen due and remained outstanding at the time of the
termination of the contract by the Claimant. Consequently, the Chamber concurred
that the Respondent had seriously neglected its financial contractual obligations
towards the Claimant.
10.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause to
unilaterally terminate the contract and that the Respondent is to be held liable for the
early termination of the contract with just cause by the player.
Player J, from country E / Club A, from country T
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11.
As a consequence, and in accordance with the legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination; i.e. EUR
187,644, corresponding to the advance payment (EUR 200,000), salaries as from August
2009 until November 2009 (EUR 60,000) as well as four league games played by the
Claimant (EUR 17,644) minus EUR 90,000, which were paid to the Claimant by the
Respondent on 24 September 2009 (cf. point I.8 above).
12.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided to award interest
at the rate of 5% p.a. over the amount of EUR 187,644 as of 29 December 2009
until the date of effective payment.
13.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided that,
in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay
compensation to the Claimant.
14.
Subsequently, the Chamber focused its 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 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.
15.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract 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
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
16.
The Chamber recalled that the Claimant had requested compensation for breach of
contract in the amount of EUR 207,303, corresponding to the aggregate amount of
salaries to which he would be entitled under the contract until its original expiry date
and bonuses relating to the remaining league games he would be entitled to until
the date of termination of the contract as well as the league games corresponding
to the second half of the 2009/10 season.
17.
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 31
Player J, from country E / Club A, from country T
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May 2010 and concluded that the Claimant would, in fact, have received EUR 90,000
as salaries (as from December 2009 until May 2010) had the contract been executed
until its expiry date.
18.
In continuation, the Chamber assessed 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.
19.
In this respect, the Chamber noted that the Claimant signed an employment
contract with the club S from country E , under which he was entitled, inter alia, to
the amount of EUR 60,000 in five monthly installments of EUR 12,000 each, the first
being due on 5 February 2010.
20.
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 42,000 to the Claimant as compensation for breach of
contract.
21.
Furthermore, taking into account the Claimant’s petition and the constant practice
of the DRC, the Chamber decided to award the Claimant interest at the rate of 5%
p.a. over the amount of compensation, as from 25 October 2012 until the date of
effective payment.
22.
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 A, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 187,644 plus interest at 5%
p.a. as of 29 December 2009 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
EUR 42,000 plus interest at 5% p.a. as from 25 October 2012 until the date of
effective payment.
4.
In the event that the above-mentioned amounts due to the Claimant are not paid
by the Respondent within the stated time limits, the present matter shall be
Player J, from country E / Club A, from country T
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submitted, upon request, to the FIFA Disciplinary Committee for consideration and
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 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:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player J, from country E / Club A, from country T
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