Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamazaki (Japan), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
Player S, from country B
as Claimant
against the club,
Club K, from country T
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1. On 27 August 2010, Club S, from country B (hereinafter: Club S), and Club K, from
country T (hereinafter: the Respondent), concluded a loan agreement for the country B
player, Player G (hereinafter: the Claimant), valid as from the date of signature until 31
May 2011, i.e. for 9 months.
2. On the same date, Respondent and the Claimant signed an employment contract
(hereinafter: the contract), valid for the same period as the loan contract.
3. According to art. 2.1 of the loan agreement, the Respondent undertakes to provide the
Claimant with:
-
a monthly salary of USD 15,000 net;
-
bonus per win and for promotion to the 1st Division of the country T
Championship;
-
an apartment;
-
a car;
-
flight tickets to country B – country T – country B
4. Art. 3 of the employment contract establishes that the Claimant is entitled, inter alia, to
the total amount of USD 185,000 net, for the season 2010/2011, payable in one
instalment of USD 50,000, on 27 August 2010, and in 9 instalments of USD 15,000 each,
payable on 10 September 2010, 10 October 2010, 10 November 2010, 10 December
2010, 10 January 2011, 10 February 2011, 10 March 2011, 10 April 2011 and 10 May
2011.
5. On 4 January 2011, following a written warning dated 29 November 2010, Club S
unilaterally terminated the loan agreement with the Respondent, in writing, and
requested the return of the Claimant to country B, since the Respondent had not paid
the Claimant’s salaries of September until December 2011, nor provided him with a car
or an apartment.
6. On 10 January 2011, the Respondent terminated the contract with the Claimant, in
writing, alleging that he breached the employment contract, by not participating in the
club’s trainings, in spite of the warnings sent on 28 December 2010 and 3 January 2011.
7. On 4 March 2011, the Single Judge of the Players’ Status Committee authorized the
Claimant’s registration with Club S.
Player G, from country B / Club K, from country T
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8. On 1 April 2011, the Claimant lodged a claim in front of FIFA against the Respondent
for breach of contract without just cause, requesting the total amount of USD
139,402.54, plus interests of 5% p.a. as from August 2010, made up of:
-
USD 65,000, corresponding to the partial salary of September 2010 (USD 5,000)
and the full salaries of October 2010 until January 2011 (4 x USD 15,000);
-
USD 60,000 of compensation, consisting of the remaining salaries from February
2011 to May 2011 (4 x USD 15,000);
-
USD 5,200 in bonuses per win, for three matches;
-
USD 9,202.54 corresponding to car rental expenses;
-
procedural costs.
9. In his claim, the Claimant states only having received the first instalment, due on 27
August 2010 (USD 50,000) and part of the second one, due on 10 September 2010 (USD
10,000).
10. Moreover, the Claimant participated in three matches won by the Respondent, but did
not receive the corresponding bonus, which by then allegedly corresponded to USD
1,300 per win. Based on the aforementioned facts, the Claimant requests the payment
of USD 5,200.
11. In addition, the Claimant states never having been provided a car, as established in the
contract.
12. In its reply, the Respondent rejects all the Claimant’s allegations and states that the
amounts of USD 60,000 and currency of country T 3,000 (USD 2,008) had already been
paid to the Claimant. The following bank statements were enclosed by the Respondent
to its response:
-
Currency of country T 15,200 on 2 December 2010;
-
Currency of country T 3,000 on 2 December 2010, on behalf of the Claimant, for
rent expenses;
-
USD 50,000 or currency of country T 75,650 paid on 2 September 2010, on behalf
of Club D;
-
Currency of country T 1,000 on 12 December 2010, on behalf of the Claimant, for
the match bonus against Club E;
-
Currency of country T 4,000 on 30 November 2010, on behalf of the Claimant, for
the match bonuses against Club H;
-
Currency of country T 2,000 on 11 November 2010, on behalf of the Claimant, for
the match bonus for the XY Cup.
Player G, from country B / Club K, from country T
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13. Furthermore, the Respondent considers the Claimant responsible for the breach of
contract and points out that he had not been attending the trainings, in spite of having
been warned by the Respondent on 28 December 2010 and 3 January 2011. In this
respect the Respondent has provided FIFA with a copy of several documents issued by a
notary public, attesting the absence of the Claimant from training, dated between 20
December 2010 and 7 January 2011. Mentioning the aforementioned reasons, the
Respondent terminated the contract with the Claimant on 10 January 2011.
14. The Respondent claims never having received any warnings from the Claimant,
regarding the payment of late salaries. Since the contract was terminated on 10 January
2011 and since before that the Claimant had not been complying with his contractual
obligations, the Respondent deems that he is not entitled to his salary of January 2011.
15. With regard to the payment of bonuses, the Respondent asserted that no specific
amount was defined. Furthermore, currency of country T 7,000 had already been paid in
bonuses to the Claimant, as listed above.
16. The Respondent also deems that the Claimant is not entitled to the amount
corresponding to car expenses for the entire duration of the contract. For the period
during which he was registered with him, he was provided with a rental car.
17. In his replica, the Claimant states that the Respondent did not present satisfactory
evidence in support of its allegations, since they consist basically of declarations issued
by a notary public and do not evidence the correct payment of the Claimant’s salaries,
bonuses and car expenses. In addition, the Claimant claims that it was verbally agreed
between the parties that, for each match won by the Respondent, the Claimant would
receive the amount of USD 1,300.
18. The Claimant denies having failed to comply with his contractual obligations towards
the Respondent and states having tried to find, in vain, an amicable solution for his
problems with the Respondent with help from Club S.
19. Finally, the Claimant points out that the first absence notification presented by the
Respondent is dated 28 December 2010, that is, a month after Club S had notified
Respondent of its arrears towards him.
20. In its final position, the Respondent maintains its previous argumentation and claims
never having received a termination letter from the Claimant.
21. According to the Claimant, after the termination of the contract with Club K, as from 4
January 2011, he resumed his employment contract with Club S, as per which he was
entitled to a monthly salary of currency of country B 8,500, until he was transferred to
Club Y, from country X, in August 2011.
Player G, from country B / Club K, from country T
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II.
Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber
or the DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 1 April 2011.
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. art. 21 par. 1 and par. 2 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 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012)
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
country B player and a country T club.
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 2010 and
2012), and considering that the present claim was lodged on 1 April 2011, the 2010
edition 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 substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment
of the matter at hand.
5. In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 27 August 2010, Club S and the Respondent signed a loan agreement
for the Claimant valid as from the date of signature until 31 May 2011. Furthermore,
the Chamber noted that it was also undisputed by the parties that they signed, on the
same date, an employment contract valid for the same period as the loan contract.
Finally the parties did not contest that the Respondent terminated the contract with the
Claimant in writing on 10 January 2011.
6. The DRC noted that, on the one hand, the Claimant claims that the Respondent failed
to pay him several contractual instalments from September 2010 until January 2011. The
Claimant further states having participated to three victories of his team and is entitled
Player G, from country B / Club K, from country T
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to receive a bonus accordingly. In addition, the player states never having been
provided a car, as stipulated in the contract.
Furthermore, the Claimant maintains that he first tried to find an amicable solution
with the club without success and holds that he has not failed to comply with his
contractual obligations toward the Respondent.
7. Subsequently, the DRC noted that, on the other hand, the Respondent claims that the
Claimant violated his contractual obligations, in particular, by not attending the
trainings in spite of warnings, sent to him on 28 December 2010 and 03 January 2011,
and therefore considers the Claimant responsible for the breach of contract. With
regard to the payment of the bonuses, the club asserted that no amount was defined
and that the player had already been paid the due bonuses. Moreover, the Respondent
holds that he provided the Claimant with a rental car for the period during which he
was registered. Furthermore, the Respondent states the he neither received a warning
from the Claimant regarding the payment of late salaries nor a termination letter. For
these reasons the Respondent deems that it terminated the contract with just cause on
10 January 2011 and that the Claimant’s claim should be rejected.
8. Having established the aforementioned, the Chamber deemed that the underlying issue
in this dispute, considering the claim of the Claimant and the allegations of the
Respondent, was to determine whether the employment contract had been unilaterally
terminated with or without just cause by the Respondent, and which party was
responsible for the early termination of the contractual relationship in question. The
DRC also underlined that, subsequently, if it were found that the employment contract
had been breached by one of the parties without just cause, it would be necessary to
determine the consequences for the party that caused the unjust breach of the relevant
employment contract.
9. In this context, the Chamber acknowledged that it first had to examine whether the
reasons put forward by the Respondent could justify the termination of the contract in
the present matter.
10. In this respect, the Chamber deemed it appropriate to remind the parties of its well
established jurisprudence, according to which only a breach or misconduct which is of a
certain severity justifies the termination of a contract. In other words, only when there
are objective criteria which do not reasonably permit to expect a continuation of the
employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in order for
an employer to ensure the employee’s fulfilment of his contractual duties, such
measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
11. In view of the above, the Chamber first of all observed that the Respondent terminated
the contract with the Claimant alleging unjustified absence for training between 28
Player G, from country B / Club K, from country T
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December 2010 and 3 January 2011. Therefore, the termination was based on an
absence of 7 days only, over Christmas and New Year. Even though the Respondent
allegedly sent the Claimant two warnings during the absences, the Chamber deemed
that the measure is clearly disproportional. Thus, the Chamber was of the opinion that
the Respondent did not have just cause to prematurely terminate the employment
contract with the Claimant, since such breach could not legitimately be considered as
being severe enough to justify the termination of the contract, and that there would
have been more lenient measures to be taken (e.g., among others, a suspension or a
fine) in order to sanction the absence of the Claimant for one week of training, what is
more, during the period of Christmas and New Year.
12. On account of the above, the Chamber decided that the Respondent had no just cause
to unilaterally terminate the employment relationship between the Claimant and the
Respondent and, therefore, concluded that the Respondent had terminated the
employment contract without just cause on 10 January 2011.
13. Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract without just cause
by the Respondent.
14. Prior to establishing the amount of compensation for breach of contract due to the
Claimant by the Respondent, the DRC proceeded with the calculation of the
outstanding monies payable to the Claimant under the terms of the employment
contract until the date of termination, i.e. on 10 January 2011, in accordance with the
general legal principle of “pacta sunt servanda”.
15. At this point and for the sake of good order, the Chamber recalled the basic principle of
burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to
which a party claiming a right from an alleged fact shall carry the respective burden of
proof. In this regard, the Chamber pointed out that, on the one hand, the Claimant
claims that his remuneration for the months of September 2010 to January 2011
remains outstanding and provides a copy of a reminder sent by Club S to the
Respondent on 29 November 2010, by means of which the payment of such amounts,
inter alia, was requested. On the other hand, the Chamber noted that the Respondent
failed to provide any consistent evidence of the payment of the relevant salaries. In
fact, the receipts provided by the Respondent are in accordance with the allegations of
the Claimant.
16. Consequently, the Chamber 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 USD 65,000, consisting of USD 5000 as partial salary for September 2010 and
four monthly salaries of USD 15,000 each corresponding to the salaries of October 2010
to January 2011.
Player G, from country B / Club K, from country T
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17. In continuation, the Chamber focused its attention on the Claimant’s request for
allegedly outstanding bonuses. In this context, the Chamber deemed that the Claimant
bore the burden of proof regarding its claim concerning the bonuses per win and the
expenses for the rental car. Indeed, on one hand, the Claimant states that it was
verbally agreed between the parties that, for each match won by the club, the player
would receive the amount of USD 1,300. On the other hand, the Respondent holds that
no specific amount was defined in the contract and that he already paid all due bonuses
to the player. After a careful study of the documents that were presented by the
parties, the Chamber concluded that in absence of any monetary value in the contract
relating to a victory bonus as well as any other evidence provided in this regard, the
Chamber had to reject the Claimant’s claim amounting to USD 5,200 in bonuses per win.
18. Turning its attention to the request of the Claimant to be awarded the amount of USD
9,202.54 for his car rental expenses, and bearing in mind the principle of burden of
proof, the DRC noted that the Respondent holds that during the period which the
Claimant was registered with him, a car has been rented for the Claimant’s use. In this
respect, the DRC noted that the Respondent provided the DRC with a car rental contract
on behalf of the club whereas the Claimant failed to provide FIFA with any type of
receipt proving that the amount requested indeed corresponds to a real cost borne by
the Claimant. On account of the aforesaid, in view of the lack of consistent evidence
supporting the Claimant’s request, the Chamber decided to reject this part of the
Claimant’s claim.
19. Thus, taking into consideration the Claimant’s claim as well as the reasons previously
exposed, the DRC concluded that, in accordance with the general legal principle of
pacta sunt servanda, the Respondent must fulfil its obligations as per the employment
contract concluded with the Claimant and, consequently, is to be held liable to pay the
outstanding remuneration due to the latter in the total amount of USD 65,000.
20. The Chamber further established that an interest rate of 5 % p.a. would apply over the
aforementioned amount, in the following manner:
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5% p.a. as of 11 September 2010 over the amount of USD 5,000;
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5% p.a. as of 11 October 2010 over the amount of USD 15,000;
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5% p.a. as of 11 November 2010 over the amount of USD 15,000;
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5% p.a. as of 11 December 2010 over the amount of USD 15,000;
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5% p.a. as of 11 January 2011 over the amount of USD 15,000.
Player G, from country B / Club K, from country T
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21. In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake.
22. In this context, the Chamber outlined 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.
23. In application of the relevant provision, the Chamber held that it 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 Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
24. Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant
in accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early
termination occurred. In this respect, the Chamber pointed out that at the time of the
termination of the employment contract on 10 January 2011, the contract would run
until 31 May 2011, for four other months. Consequently, taking into account the
financial terms of the contract, the Chamber concluded that the remaining value of the
contract as from its early termination by the Respondent until the regular expiry of the
contract amounts to USD 60,000 (4 salaries of USD 15,000 each) and that such amount
shall serve as the basis for the final determination of the amount of compensation for
breach of contract.
25. In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute the Claimant resumed his
employment contract with his former club in accordance with which he was entitled to
a monthly salary of currency of country B 8,500 (equivalent to USD 4,175) until he was
transferred to another club in August 2011. Consequently, in accordance with the
constant practice of the Dispute Resolution Chamber and the general obligation of the
Claimant to mitigate his damages, such remuneration under the new employment
contract shall be taken into account in the calculation of the amount of compensation
for breach of contract.
Player G, from country B / Club K, from country T
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26. In view of all of the above, the Chamber decided that the Respondent must pay the
amount of USD 43,300 to the Claimant as compensation for breach of contract without
just cause, which is considered by the Chamber to be a reasonable and justified amount
as compensation. Furthermore, the member of the Chamber established that an interest
rate of 5% p.a. would apply over the aforementioned amount, as from 6 May 2011, as
per the Claimant’s claim.
27. In conclusion, the DRC decided that the Respondent is liable to pay to the Claimant the
amount of USD 65,000, plus 5% interests as from each due date corresponding to the
Claimant’s outstanding remuneration at the time of the unilateral termination of the
contract without just cause by the Respondent, as well as the amount of USD 43,300,
plus 5% interests as from the date of claim, corresponding to compensation for breach
of contract without just cause.
28. The DRC Chamber further decided that the Claimant’s claim for legal costs is rejected, in
accordance with ar. 18 par. 4 of the Procedural Rules and the respective longstanding
jurisprudence of the Dispute Resolution Chamber.
29. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player G, is partially accepted.
2. The Respondent, Club K, is ordered to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of USD
65,000, plus 5% interest p.a. until the date of effective payment, as follows:
-
5% p.a. as of 11 September 2010 over the amount of USD 5,000;
-
5% p.a. as of 11 October 2010 over the amount of USD 15,000;
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5% p.a. as of 11 November 2010 over the amount of USD 15,000;
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5% p.a. as of 11 December 2010 over the amount of USD 15,000;
-
5% p.a. as of 11 January 2011 over the amount of USD 15,000.
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 USD
43,300, plus interest of 5% p.a. as of 4 October 2013 until the date of effective
payment.
Player G, from country B / Club K, from country T
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4. If the aforementioned sums plus interest are not paid within the above-mentioned time
limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
5. Any further claims lodged by the Claimant are 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 Dispute
Resolution Chamber 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 Dispute Resolution Chamber
__________________________
Markus Kattner
Deputy Secretary General
Encl. CAS Directives
Player G, from country B / Club K, from country T
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