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,
P, from country B,
as Claimant
against the club,
Club A, from country A
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 21 August 2011, the country B player, V (hereinafter: the player), and the country A
club, Club A (hereinafter: the club), entered into an employment contract (hereinafter:
the contract), valid from that date until 30 June 2012.
2.
According to the contract, the club agreed to pay the player, inter alia, a monthly
salary of USD 30,000 for a period of ten months and to provide him with furnished
accommodation. The club also agreed to provide the player with three business-class
air tickets and one economy-class air ticket.
3.
Article 3 established inter alia that “the player shall undertake the following:
3.1- to participate in all matches, training sessions and all related activities, unless
otherwise required by the Club and unless his health prevents him from doing so,
subject to verification of medical reports and acceptable to the club.
[…]
3.4- to comply with the provisions of all rules and decisions issued by the Football
Association and by the Club disciplinary code for the first team […]
[…]
3.8- not to leave the state without having a written permission from the chairman of
the club or the CEO or any official representative thereof.
[…]”
4.
On 24 February 2012, the player filed a claim with FIFA against the club for breach of
contract and requested the payment of an aggregate amount of USD 187,430.06, plus
interest as from the date of notification of the claim, as follows:
USD 16,552 as outstanding salary for the period between 1 to 16 February 2012;
USD 133,448 as compensation corresponding to the residual salaries under the
contract;
USD 37,008 as compensation corresponding to the agreed flight tickets under
the contract;
USD 422.06 as compensation corresponding to the fines and costs borne by the
player due to the non-renewal of the player’s family residency authorisation by
the club.
5.
According to the player, on 31 January 2012, the club informed him of its intention to
terminate the contract prematurely. The player asserted that he refused said
premature termination and informed the club about his intention to fulfil the contract.
6.
The player maintained that, as a consequence of the above, the club prohibited him
from accessing the facilities as well as joining the team’s activities, including training,
without justification.
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7.
According to the player, from 31 January 2012 to 6 February 2012, he went repeatedly
to the club’s premises, requesting his re-integration in the team. The player asserted
that the club refused such access with the argument that the coach no longer wanted
the player’s services.
8.
By letter dated 6 February 2012 addressed to the club, the player demanded his
immediate re-integration in all team activities and informed the club of his intention
to keep fulfilling the contract.
9.
The player maintained that he went to the club’s premises on 7 and 8 February 2012
and his access to training was again denied.
10.
On 8 February 2012, the player addressed another letter to the club, essentially with
the same message contained in the letter of 6 February and again requesting that
access to the activities of the club be granted immediately.
11.
According to the player, access to the club’s premises continued to be refused every day
until 16 February 2012.
12.
Moreover, the player stated that, in the meantime, he learned that the club had
refused to support the renewal of the residency authorisation for his wife and son.
13.
In light of the above, the player alleged having unilaterally terminated the contract in
writing invoking just cause, on 16 February 2012.
14.
The club presented its response to the claim and also filed a counter-claim.
15.
The club denied all facts stated by the player in his claim. According to the club, the
“player’s complaint had contained no evidence to prove the truth of the alleged facts
that he had stated”. In continuation, the club asserted that “all the correspondences
are not entertained in the confirmation, as they are fabricated evidences made by the
[player] to suggest the truth of his case”.
16.
Furthermore, the club sustained that the documents attached to the player’s claim “are
illegal correspondences as they were not accompanied with a legal attorney that gives
the advocate or the legal consultant the right to address the correspondences to the
club or to talk on behalf of the player at the time, the thing which made the club
neglect the correspondences and not entertain them”.
17.
In continuation, the club further stated that by leaving the country on 17 February
2012 without authorisation, the player breached the contract as well as “the
stipulation of the Article 16 of the Bill of Player’s status, issued by the International
Association”.
18.
Furthermore, the club asserted that, in response to the player’s letter date 16 February
2012 (cf. point I.13), it had sent a letter to the player, dated 21 February 2012, rejecting
all of the player’s allegations and demanding the player to return to the club and
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resume training, which allegedly constitutes evidence that the club wished to fulfil its
end of the contract and that it was the player who was in breach.
19.
Moreover, according to the club, the fact that, despite not being provided for in the
contract, it handled the residence permit for the player’s wife and son, as
acknowledged by the player himself, constitutes further evidence that the club always
sought for the player to remain with the club.
20.
On the other hand, the short time span between 31 January 2012 (date until which the
player states that no issues had arisen) and 17 February 2012 (date on which the player
left the country) evidences that the player always had the intention of leaving the club.
According to the club, “if there are disputes between players and clubs, these disputes
take much time in amicable procedures between a player and a club, if good intention
is available”.
21.
In addition, the club filed a counter-claim against the player for breach of contract and
requested:
Confirmation that the player had violated his contractual obligations and had
terminated the contract without just cause;
The application of sporting sanctions for breach of contract by the player within
the protected period, according to article 17 paragraph 3 of the FIFA Regulations
on the Status and Transfer of Players; and
The payment by the player of USD 500,000 as “compensation of the actual
materialistic damage which incurred as a result to his contract with the player
which did not generate any benefit for the club as a normal result of his
contractual and legal obligations”.
The payment by the player of “the fees and expenses”.
22.
In this respect, the club asserted that it fulfilled entirely its contractual obligations and
that it was the player who left country A for country B on 17 February 2012 without
prior permission in violation of clause 3.8 of the contract.
23.
The club also stated that the actions of the player constituted a breach of clauses 3.1
and 3.4 of the contract.
24.
The player presented his replica and position regarding the club’s counter-claim.
According to the player, the club’s allegations that he had abandoned the club are
false and he never “declined to attend to the Club nor to any training session”. In
continuation, the player asserted that “it was the Club that, illegally, prohibited the
Player of attending to the Club facilities and to the professional team activities, despite
the successive and repeated interpellations of the Player for his reintegration”.
25.
The player referred back to the facts originally described in his claim. According to him,
he was prevented from accessing the club’s facilities from 31 January 2012 until 16
February 2012, despite having shown up at the club’s premises every day. The player
maintains that sixteen days of consecutive illegal prohibition from accessing the club’s
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facilities and an absence of a response from the club to the player’s requests for
compliance with the club’s obligations, left him with no option other than to
terminate the contract.
26.
Moreover, the player asserted that he only left the club and the country after having
terminated the contract by letter dated 16 February 2012.
27.
In continuation, the player maintained that, despite having been asked to reintegrate
the player in the team, the club decided to “neglect the correspondences” with the
excuse that the correspondence was “fabricated” and illegal, because the signatory
lawyer did not attach to his communications a power of attorney from the player. The
player disputed the accusation that the communications were “fabricated” and stated
that, if the club did not agree with their content, it could have refuted them in writing,
which it did not. The player maintained that the silence of the club in this respect
“reveals the veracity of the facts imputed as well as his conformation, and should be
appreciated by this Chamber in that way, considering the burden of proof rule”.
28.
With regard to his legal representation, the player stated that the communications
sent to the club were “simple warnings” and were within the normal powers of a
lawyer. In addition, the player stated that the termination of the contract was
executed by means of a letter signed exclusively by the player and not by his legal
representative. The player concluded by asserting that “due to the nature and the
content of those communications, he didn’t need to exhibit a specific power of
attorney signed by the Player” and that the club never asked the player to exhibit any
specific power of attorney.
29.
With respect to the club’s counter-claim, the player re-affirmed that the termination of
the contract was legally admissible and that, consequently, “the Club has no legal right
to be compensated, nor invokes any serious or real damages”.
30.
The club presented its duplica and essentially re-stated what it had already mentioned
in its response to the player’s claim. The club also referred to the evidence presented
together with such response.
31.
The club again emphasized that the player’s lawyer was not entitled to represent him
without a power of attorney and that, as a consequence, it did not have to respond to
the letters submitted by the legal representative.
32.
The player informed FIFA that he had signed a new employment contract with the
country B club, Club X, on 5 March 2012 and that such contract was valid from that
date until 30 November 2012. According to the new employment contract, the player
was to receive a monthly salary of 7,500 until 18 May 2012 and 12,500 for the
remaining period of the contract.
33.
Notwithstanding the above, the player presented a declaration signed by Club X
whereby Club X states that, because the international transfer certificate request was
rejected by the Football Association of country A for the reason that the player was
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allegedly still under contract with the club, it “desisted from this contract”. In such
document, Club X asserts that it is not paying any salaries to the player.
34.
Despite having been invited to do so, Club X did not present its position.
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 24 February 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 FIFA Regulations on the Status and Transfer of Players, the DRC 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 analyzed which regulations should be applicable as to the
substance of the matter. In this respect, the DRC confirmed that in accordance with art.
26 par. 1 and 2 of the FIFA Regulations on the Status and Transfer of Players (edition
2010) and also considering that the present claim was lodged in front of FIFA on 24
February 2012, the edition 2010 of said regulations (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 Chamber entered into the analysis of the substance of the dispute at
stake, acknowledging all the arguments and documentation presented by the parties.
The members present at the meeting first of all recalled that on 21 August 2011, the
player and the Club had entered into an employment contract set to expire on 30 June
2012.
5.
The DRC took note that the player lodged a claim against the club for alleged breach
of contract, claiming outstanding amounts as well as compensation. Furthermore, the
members of the DRC took note that the club rejected the player’s claim and lodged a
counter-claim arguing that, in fact, the player breached the contract, asking for
compensation.
6.
The members of the Chamber noted, first of all, that the club alleged that, by leaving
the country A on 17 February 2012, the player had breached the contract. On the other
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hand, the player alleged having unilaterally terminated the contract in writing on 16
February 2012.
7.
In light of the above, the DRC considered that it was necessary to assess when the
contract was terminated as well as whether the relevant party had just cause to
terminate the contract.
8.
The Chamber noted that the player considered having had just cause to terminate the
contract, based on the argument that the club had informed him, on 31 January 2012,
of its intention of terminating the contract and on the allegation that, as a
consequence of that intention, he was prevented from accessing training with the
team for sixteen consecutive days.
9.
The members present at the meeting acknowledged the player’s statement that from
31 January 2012 to 6 February 2012 he was prevented from accessing training by the
club. The Chamber also paid close attention to the letter sent by the player to the club
dated 6 February 2012, by means of which the former requested his immediate
reintegration in the team’s activities.
10.
In continuation, the members of the Chamber also duly noted that the player claims to
have been barred from accessing training also on 7 and 8 February 2012 and, again,
closely examined the contents of the letter sent on the latter date to the club whereby
the former again requested his reintegration in training.
11.
Finally, the DRC acknowledged the player’s statement that between 9 and 16 February
access to training continued to be refused every day and that, as a result, he had no
option other than formally terminating the contract.
12.
The members present at the meeting then reverted to the club response to said
allegations and duly noted that the latter merely generally disputed all the player’s
allegations, but did not specifically address the claim that the latter had been
prevented from training with the team nor provided any explanation in connection
thereto.
13.
In continuation, the DRC also acknowledged the club’s position that the reason why it
had not responded to the letters sent by the player on 6 and 8 February 2012, had
been because said communications had been sent by the player’s legal representative
without any accompanying power of attorney and, for that reason, were allegedly not
valid.
14.
In light of the above, the Chamber emphasized that it appears that there is no hard
evidence demonstrating if the player was or was not prevented from accessing
training, however, the members of the Chamber were convinced that there is
circumstantial evidence that provides important indications and must be analysed.
15.
First of all, the Chamber considered that the club explanation for not having replied to
the player’s letters is not convincing. The DRC was eager to emphasize that, given the
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seriousness of the player’s allegations, even if the club considered the communications
submitted by the player’s legal representative to be formally illegal, it would be
expected that if such allegations were false the club would, at least, try to directly
contact the player and address the issue, which apparently it did not.
16.
Furthermore, the members of the Chamber also wanted to point out that, on 21
February 2012, the club addressed a letter to the player precisely via the latter’s legal
representative apparently without any power of attorney having been provided in the
meantime, which, in the Chamber’s view, severally weakens the club’s argument that it
did not recognize such communications.
17.
Finally, the Chamber also wished to remark, once again, that the club did not
specifically address the player’s allegation that he had been prevented from accessing
training. In fact, from the club’s submissions the Chamber noted that it is not possible
to ascertain the latter’s position in that regard.
18.
In light of all of the above, it was the Chamber’s firm belief that the circumstantial
evidence provided by the player and the lack of information provided by the club
seems to give credibility to the player’s version of the facts. The Chamber decided,
thus, that, by not allowing the player to train, the club violated fundamental
contractual obligations and actually terminated the contract de facto on 31 January
2012 without just cause and therefore, must be held liable for breach of contract.
19.
The Chamber then focused its attention on the consequences of such breach of
contract. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the player is entitled to receive from the club an amount as compensation
for breach of contract.
20.
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 reminded 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 player 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.
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 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.
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22.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the contract between February 2012
and 30 June 2012. Consequently, the Chamber concluded that the player would be
entitled to an amount of USD 150,000 as salaries as well as the flight tickets agreed
under the contract and that these amounts serve as the basis for the final
determination of the amount of compensation for breach of contract.
23.
In continuation, the Chamber assessed if the Player 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.
24.
The Chamber noted that the Player had signed a new contract with the country B club,
Club X, on 5 March 2012 according to which he was to receive a monthly salary of 7,500
until 18 May 2012 and 12,500 for the remaining period of the contract; i.e. until 30
November 2012. The Chamber noted, however, that the player had presented a
declaration signed by Club X whereby the Club X states that, because the international
transfer certificate request had been rejected by the Football Association of country A
it had “desisted from this contract”. In such document, the Chamber noted that Club X
asserts that it was not paying any salaries to the player.
25.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the
amount of USD 175,008, plus 5% interest p.a. as of 25 October 2012 until the date of
effective payment, as compensation for breach of contract.
26.
The DRC concluded its deliberations in the present matter by establishing that any
further claims lodged by the player are rejected and that the counter-claim filed by the
club must also be rejected.
********
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Player, Mr V, is partially accepted.
2.
The Club, Club A, has to pay to the Player, within 30 days as of the date of
notification of this decision, compensation for breach of contract in the amount of USD
175,008, plus 5% interest p.a. as of 25 October 2012 until the date of effective
payment.
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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 Player is rejected.
5.
The Player is directed to inform the Club 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
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