Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), Member
Ivan Gazidis (England), Member
on the claim presented by the player,
Player R, from country A
as Claimant
against the club,
Club C, from country R
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
The Player R, from country A (hereinafter: the Claimant), and Club C, from country R
(hereinafter: the Respondent), signed an employment contract valid from 1 July 2006
until 30 June 2010.
2.
According to the initial contract, the Claimant was entitled to receive the following
remuneration:
USD 72,000 for the season 2006/07;
USD 96,000 for the season 2007/08;
USD 120,000 for the season 2008/09;
USD 144,000 for the season 2009/10.
3.
On 10 August 2009, the parties signed a second employment contract (hereinafter: the
contract) valid from 1 July 2009 until 30 June 2011.
4.
According to the contract, the Claimant was entitled to receive the following
remuneration:
USD 180,000, of which USD 25,000 is “payable in August 2009, and the remaining
USD 155,000, is payable in equal monthly instalments” for the season 2009/10;
USD 220,000, payable in equal monthly instalments for the season 2010/11.
5.
According to art. 3 of the contract, the payments “shall be made on the 15th of each
month, for the preceding month”.
6.
Art. 4.1.b) of the contract determined that the Claimant was entitled to benefit from an
airplane ticket for the route country R – country A – country R for each competition
season.
7.
On 19 January 2010, the Claimant lodged a complaint against the Respondent in front of
FIFA requesting the amounts of USD 374,166.70 and EUR 1,855.69, plus interest on both
amounts, made up of:
USD 38,750.01 corresponding to the outstanding remuneration from September
to November 2009, in accordance with the contract;
USD 310,416.69 corresponding to the remaining value of the contract, being USD
90,416.69 for December 2009 to June 2010 and USD 220,000 for the season
2010/11;
USD 25,000 corresponding to the amount due in August 2009 under the contract;
EUR 1,855.69 corresponding to the flight ticket.
The Claimant further requested interest on all the amounts claimed and legal fees.
Player R, from country A / Club C, from country R
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8.
In addition, the Claimant requests that the Respondent be banned from registering any
new players, either nationally or internationally, for the next two registration periods.
9.
In his arguments, the Claimant claims that he only signed the contract after having been
threatened and intimidated by the Respondent to do so. The Claimant states that he
planned to leave the Respondent after the completion of the first employment contract.
The Respondent nevertheless allegedly insisted that the Claimant sign the successor
contract, threatening to drop him from the pre-season camp and force him to train with
the reserve/youth team if he did not. Thus, the Claimant obliged.
10. Notwithstanding the successor contract, the Claimant allegedly had repeatedly requested
that the Respondent pay his outstanding salaries from September to November 2009. The
Claimant claims that the Respondent continued to promise him payment, but has not
paid him since August 2009. In addition, the Claimant claims that the Respondent never
reimbursed him for his flight to country A, which the Respondent was obligated to do
under the successor contract. In this respect, the Claimant provided a copy of the flight
receipts.
11. The Claimant further explains that, on 16 December 2009, he sent a letter to the
Respondent putting the Respondent in default and requesting the payment of the
outstanding remuneration. The Respondent reacted on 18 December 2009, stating inter
alia that the Claimant has “stipulated rights but also [he has] obligations, specially
regarding [his] financial rights”.
12. In continuation, the Claimant, on 21 December 2009, notified the Respondent that he
considered their contracts “terminated effective immediately” and that he would be
submitting a complaint to FIFA.
13. Despite being invited by FIFA to do so, the Respondent has not submitted its position
regarding the substance of the claim lodged by the Claimant.
14. The Claimant informed FIFA that, on 5 March 2010, he signed an employment contract
with a new club, Club M, from country A, valid from 1 May 2010 until
31 March 2012. According to Art. 4.1 (a) of the employment contract with Club M, as well
as Art. 1.1 of its corresponding annex, the Claimant was entitled to receive the following
remuneration from Club M:
Currency of country A 150,000 as annual salary for the season 2010/11, paid on a
monthly basis;
Currency of country A 2,885 as “Gross weekly salary” for the season 2010/11;
Currency of country A 150,000 as annual salary for the season 2011/12, paid on a
monthly basis;
Currency of country A 2,885 as “Gross weekly salary” for the season 2011
Player R, from country A / Club C, from country R
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: DRC or Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, the Chamber
took
note
that
the
present
matter
was
submitted
to
FIFA
on
19 January 2010. Consequently, 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. 1 and par. 2 of the
Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 and 2 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 an country A player and a country R club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2012, 2010 and 2009), and considering that the claim was lodged on 19 January 2010,
the 2009 edition of the aforementioned 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 the above-mentioned facts as well as the arguments
and 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.
First of all, the members of the Chamber acknowledged that the Claimant and the
Respondent had concluded an employment contract valid as from 1 July 2006 until
30 June 2010 and, subsequently, on 10 August 2009, signed a new employment contract
valid from 1 July 2009 until 30 June 2011.
Player R, from country A / Club C, from country R
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6.
The Chamber further observed that the Claimant lodged a claim in front of FIFA against
the Respondent for breach of the contract, requesting the payment of outstanding
remuneration as well as compensation and reimbursement of costs with flight tickets.
7.
In this respect, the Chamber observed that the Respondent failed to present its response
regarding the substance of the claim of the Claimant, despite having been invited to do
so. In this way, so the Chamber deemed, the Respondent renounced to its right of
defence and, thus, accepted the allegations of the Claimant.
8.
As a consequence of the preceding consideration, the Chamber established that in
accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the
basis of the documentation already on file; in other words, upon the statements and
documents presented by the Claimant.
9.
In line with the above, the Chamber took into consideration that according to the
Claimant, the Respondent had failed to pay his remuneration in the total amount of
USD 38,750 corresponding to three months during the season 2009/2010 as well as the
payment of USD 25,000 due in August 2009.
10.
The DRC took note that, according to the contract, the Claimant was entitled to the
amount of USD 180,000 for the season 2009/10, of which USD 25,000 is “payable in
August 2009, and the remaining USD 155,000, is payable in equal monthly instalments”
as well as USD 220,000 for the season 2010/11.
11.
Moreover, the members of the DRC acknowledged that the Claimant had terminated
the contract in writing, on 21 December 2009, after having put the Respondent in
default.
12.
Considering the financial conditions of the contract as well as the arguments and
documentation brought forward by the Claimant, the DRC took note that on the date
of termination, i.e. 21 December 2009, three salaries were outstanding as well as the
instalment due in August 2009.
13.
Having taken into consideration all of the above, the Chamber decided that it could be
established that the Respondent had seriously neglected its contractual obligations
towards the Claimant in a continuous and constant manner, i.e. the Respondent had
failed to remunerate the Claimant for a substantial period of time. Therefore, the
Chamber considered that the Respondent was found to be in breach of the employment
contract and that the breach was of such seriousness that, in line with the Chamber’s
long-standing and well-established jurisprudence, the Claimant had a just cause to
unilaterally terminate the contractual relationship with the Respondent on
21 December 2009, having previously put the Respondent in default of payment of the
outstanding amounts.
Player R, from country A / Club C, from country R
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14.
On account of the above, the Chamber established that the Claimant had terminated
the contract with just cause on 21 December 2009 and that, consequently, the
Respondent is to be held liable for the early termination of the employment contact
with just cause by the Claimant.
15.
Having established that the Respondent is to be held liable for the early termination of
the contract with just cause by the Claimant, the Chamber focussed its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant is entitled to receive an amount of
money from the Respondent as compensation for the termination of the contract with
just cause in addition to any outstanding payments on the basis of the relevant
employment contract.
16.
First of all, the members of the Chamber concurred that the Respondent must fulfil its
obligations as per the contract in accordance with the general legal principle of “pacta
sunt servanda”. 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 in the total amount of USD 63,750, composed of three monthly salaries of
the months of September, October and November 2009, as well as the instalment due in
August 2009.
17.
In addition, the Chamber considered the Claimant’s request for reimbursement of flight
tickets in the amount of EUR 1,855. In this respect, the Chamber first acknowledged
that the contract provided that the Claimant would benefit from a roundtrip airplane
ticket from Bucharest to Brisbane each season. In addition, the Chamber took note that
the Claimant provided evidence of the amount paid for the flight tickets. As a
consequence, the DRC decided that the Respondent must pay the amount of EUR 1,855
to the Claimant as reimbursement for flight tickets.
18.
As a consequence, the DRC decided that the Respondent is liable to pay the total
amount of USD 63,750 to the Claimant corresponding to the outstanding remuneration
and the amount of EUR 1,855 for flight tickets.
19.
In addition, taking into consideration the Claimant’s claim for interest and in
accordance with its well-established jurisprudence, the Chamber decided to award the
Claimant interest on the aforementioned amounts at the rate of 5% p.a. as of the date
of the claim.
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 recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
Player R, from country A / Club C, from country R
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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.
21.
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.
22.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
23.
The members of the Chamber then turned their attention to the remuneration and
other benefits due to the Claimant under the existing contract and/or the new contract,
which criterion was considered by the Chamber to be essential. The members of the
Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the
Regulations allows the Chamber to take into account both the existing contract and the
new contract in the calculation of the amount of compensation.
24.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as from its
date of termination with just cause by the Claimant, i.e. 21 December 2009, until
30 June 2011, and concluded that the Claimant would have received in total USD
310,416 as remuneration had the contract been executed until its expiry date.
Consequently, the Chamber concluded that the amount of USD 310,416 serves as the
basis for the final determination of the amount of compensation for breach of contract
in the case at hand.
25.
In continuation, the Chamber verified as to 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.
Player R, from country A / Club C, from country R
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26.
Indeed, 5 March 2010, the Claimant found employment with Club M, from country A. In
accordance with the pertinent employment contract, which has been made available by
the Claimant, valid from 1 May 2010 until 31 March 2012, the Claimant was entitled to
receive the amount of currency of country A 150,000 as “Annual Salary” for each season
as well as currency of country A 2,885 as “Gross weekly salary” during each season.
27.
In accordance with the constant practice of the Dispute Resolution Chamber and the
general obligation of the player 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.
28.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Dispute Resolution Chamber decided that, even
though the Respondent is considered liable for the breach of the relevant
employment contract, the Claimant did not suffer any financial loss from the
violation of the contractual obligations by the Respondent considering the the
Claimant’s income with the employment contract concluded with the new club.
Therefore, the Chamber decided that there is no amount that should be awarded to
the Claimant as compensation for breach of contract in the matter at hand.
29.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
30.
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 R, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, outstanding remuneration in the amount of USD 63,750,
as well as the amount of EUR 1,855, plus interest at 5% p.a. on each amount as of 19
January 2010 until the date of effective payment.
3.
In the event that the amount due to the Claimant is not paid by the Respondent within
the stated time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
Player R, from country A / Club C, from country R
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4.
Any further request filed by the Claimant is rejected.
5.
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 R, from country A / Club C, from country R
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