Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 2 October 2012,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
V, from country S
as Claimant
against the club,
Club X, from country Z
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 7 September 2009, the country S player, V (hereinafter: the Claimant), and
the country Z club, club X (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as from the date of signature until 30
June 2011.
2.
According to art. 5 of the contract, the Claimant was entitled to receive, inter
alia:
- EUR 17,000 as a signing-on fee;
- EUR 3,000 as a monthly salary payable on the 15th of every month
3.
On 8 July 2010, the Claimant lodged a claim in front of FIFA against the
Respondent indicating that he received the signing-on fee as well his salaries for
September and October 2009, but that, on 21 November 2009, he was informed
by the Respondent that his services were no longer needed, that his visa expired
and that he, thus, should leave the country immediately.
4.
The Claimant explains that on 26 November 2009 he had left country Z and that
on 14 January 2010 the Respondent informed him that it terminated the
contract as from 7 September 2009 due to the Claimant’s “non-excused
exemption of trainings and matches”.
5.
On account of the above, the Claimant is of the opinion that the Respondent
unilaterally terminated the contract without just cause on 14 January 2010 and
requests to be awarded with the following amounts:
EUR 7,400 as outstanding remuneration:
- EUR 6,000 for the salaries of November and December 2009;
- EUR 1,400 for 14 days of January 2010
EUR 52,600 as compensation:
- EUR 1,600 for 16 days of January 2010
- EUR 51,000 for the remaining 17 salaries of EUR 3,000 each;
6.
Furthermore, the Claimant requests 5% interest on the amount of EUR 60,000 as
from 14 January 2010.
7.
Finally, the Claimant requests an indemnity of EUR 16,500 for the period
between 14 January 2010 and 30 June 2010, since he was not able to find a new
club before the new summer transfer period.
8.
In spite of having been invited by FIFA to do so, the Respondent failed to
provide its position to the Claimant’s claim, although it was informed that in
absence of a reply, a decision would be taken upon the basis of the documents
on file.
Player V, from country S / Club X, from country Z
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9.
Upon FIFA’s request, the Claimant indicated that he had signed a new contract
with the country S club, club Y , valid as from 1 September 2010 until 30 June
2011 with a monthly salary of 50,000 (note: approximately EUR 473 on 1
September 2010) and added that the contract between him and the latter club
was mutually terminated in October 2010 and that he received the total
amount of “EUR 6,102 (641,818) instead of the agreed EUR 17,000 until June
2011”. Finally, the player added that “he was not in the club since the end of
October 2010, but the contract was terminated on 7 February 2011,
retroactively per 31 January 2011”. The player stated that “Thus, he should
earn the total amount of 738,126, but he was paid only the total amount of
641,818, resulting to EUR 6,102. We kindly ask to consider only paid amount of
EUR 6,102 for the formal decision”. Finally, the Claimant indicated that as from
31 January 2011 until 30 June 2011 he was not able to find new employment.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he
was competent to deal with the matter at stake. In this respect, the DRC judge
took note that the present matter was submitted to FIFA on 8 July 2010.
Consequently, the DRC judge concluded that the 2008 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 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 lit. i. in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players
(edition 2010) the DRC judge is competent to deal with the matter at stake,
which concerns an employment–related dispute with an international
dimension between a player and a club.
3.
Furthermore, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations (editions 2009 and 2010) and considering that the present
claim was lodged in front of FIFA on 8 July 2010, the 2009 edition 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 DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well
as the documentation contained in the file.
Player V, from country S / Club X, from country Z
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5.
First of all, the DRC judge acknowledged that, on 7 September 2009, the
Claimant and the Respondent had concluded an employment contract valid as
from the date of signature until 30 June 2011, in accordance with which the
Respondent would pay the Claimant a sign-on fee of EUR 17,000 as well as a
monthly salary of EUR 3,000.
6.
The DRC judge further observed that the Claimant lodged a claim in front of
FIFA against the Respondent indicating that the Respondent had informed him
in November 2009 that his services were no longer needed, that his visa
expired and that he should therefore immediately leave the country. The
Claimant outlined that, on 26 November 2009, he left the country and that,
thereafter, on 14 January 2010, the Respondent informed him in writing that
his contract was terminated due to his non-authorized absence. The Claimant
stated that, in view of the foregoing, it is evident that the Respondent
unilaterally terminated the employment contract without just cause.
7.
The DRC judge duly noted that, on account of the above, the Claimant is
seeking payment of the amount of EUR 7,400 corresponding to his
outstanding salaries of November and December 2009 as well as 14 days of
January 2010. Equally, the DRC judge noted that the Claimant is requesting
compensation for breach of the employment contract in the amount of EUR
52,600.
8.
What is more, the DRC judge observed that the Respondent failed to present
its response to the claim of the Claimant, despite having been invited to do so.
In this way, so the DRC judge deemed, the Respondent renounced to its right
of defence and, thus, accepted the allegations of the Claimant.
9.
As a consequence, the DRC judge established that in accordance with art. 9
par. 3 of the Procedural Rules he shall take a decision upon the basis of the
documents on file.
10.
Having taken into consideration all the previous considerations, the DRC judge
decided that it could be established that the Respondent had seriously
neglected its contractual obligations and, therefore, had terminated the
employment contract without just cause on 21 November 2009, i.e. the date on
which it informed the Claimant that his services were no longer needed.
Consequently, the Respondent is to be held liable for the early termination of
the employment contact without just cause.
11.
Bearing in mind the preceding consideration, the DRC judge went on to deal
with the consequences of the early termination of the employment contract
without just cause by the Respondent.
12.
First of all, the DRC judge noted the Claimant’s request regarding the
outstanding salaries at the time of the unilateral termination of the contract
Player V, from country S / Club X, from country Z
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by the Respondent. In this regard, the DRC judge stressed that the Respondent
must fulfill its obligations as per employment contract in accordance with the
general legal principle of “pacta sunt servanda”. Consequently, the DRC judge
decided that the Respondent is liable to pay to the Claimant the remuneration
that was outstanding at the time of the termination i.e. the amount of EUR
3,000, corresponding to the salary of November 2009.
13.
In continuation, the DRC judge decided that, taking into consideration the
Claimant’s respective claim and art. 17 par. 1 of the Regulations, the Claimant
is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
14.
In this context, the DRC judge outlined that, in accordance with said provision,
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 DRC judge held that he first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
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 in the employment contract at the basis of the matter at
stake.
16.
Subsequently, the DRC judge noted that the remaining value of the
employment contract as from the date of the termination until the original
expiry of the employment contract amounted to EUR 57,000, i.e. nineteen
monthly salaries amounting to EUR 3,000 each. Consequently, the DRC judge
concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract
amounted to EUR 57,000 and that such amount shall serve as the basis for the
final determination of the amount of compensation for breach of contract.
17.
In continuation, the DRC judge remarked that the Claimant had concluded a
new employment with the country S club, club Y, which ran from 1 September
2010 until 30 June 2011, in accordance with which the Claimant would receive
the total amount of EUR 17,000.
Player V, from country S / Club X, from country Z
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18.
Consequently, and bearing in mind the provision of art. 17 par. 1 of the
Regulations and in accordance with the constant practice of the Dispute
Resolution Chamber as well as the general obligation of the player to mitigate
his damages, such remuneration under the new employment contract shall be
taken into account for the calculation of the amount of compensation for
breach of contract. In this respect, the DRC judge deemed that the Respondent
could not be reproached for the early termination of the contract between the
player and his new club, club Y, this being a separate matter between the
player and said club.
19.
In view of all of the above, the DRC judge decided that the Respondent must
pay the amount of EUR 40,000 to the Claimant, which is considered by the DRC
judge to be a reasonable and justified amount as compensation for breach of
contract.
20.
For all the above considerations, the DRC judge decided to partially accept the
Claimant’s claim and held that the Respondent is liable to pay the total
amount of EUR 43,000 to the Claimant, consisting of the amount of EUR 3,000
corresponding to the Claimant’s outstanding remuneration at the time of the
unilateral termination of the contract without just cause by the Respondent
and the amount of EUR 40,000 corresponding to the compensation for the
unilateral breach of contract without just cause by the Respondent.
21.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claim of the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, V, is partially accepted.
2.
The Respondent, Club X, 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 3,000, plus 5% interest p.a. on said amount as from 14 January
2010 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 40,000 plus 5% interest p.a. on said amount as from 14
January 2010 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent within
the stated time limits, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for consideration and a formal decision.
Player V, from country S / Club X, from country Z
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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 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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl. CAS Directives
Player V, from country S / Club X, from country Z
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