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 M, 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.
On 8 May 2008, Player M, from country A (hereinafter: the Claimant), and Club C, from
country R (hereinafter: the Respondent, signed an employment contract (hereinafter:
the
contract),
valid
from
1
July
2008
until
30 June 2011.
2.
According to the contract, the Claimant was entitled to receive the following
remuneration:
-
USD 120,000 for the season 2008/2009, payable in equal monthly instalments of
USD 10,000;
-
USD 180,000 for the season 2009/2010, payable in equal monthly instalments of
USD 15,000;
-
USD 240,000 for the season 2010/2011, payable in equal monthly instalments of
USD 20,000;
-
USD 50,000 as sign-on fee, due until 1 August 2008.
Art. 3 of the contract established that the payments “shall be made on the 15th of each
month, for the preceding month”.
3.
The Claimant was also entitled to “benefit from an airplane ticket for the route country
R-country A-country R for each competition season”, according to art. 4 b) of the
contract.
4.
On 11 February 2010, the Claimant lodged a claim with FIFA against the Respondent for
breach of contract without just cause and requested the payment of USD 395,000 made
up of:
-
USD 5,000 corresponding to salary for June 2009;
-
USD 45,000 corresponding to three monthly salaries (September, October and
November 2009);
-
USD 345,000 corresponding to the remaining value of the contract, from
December 2009 to June 2011;
The Claimant further requested currency of country A 1,801 corresponding to surgeryrelated medical expenses and EUR 1,981.80 corresponding to flight ticket as well as
interest on all the amounts claimed and legal fees.
5.
In addition, the Claimant requested that the Respondent be banned from registering
any new players, either nationally or internationally, for the next two registration
periods.
Player M, from country A / Club C, from country R
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6.
In this respect, the Claimant stated that, in 2005, he had signed an employment contract
with the Respondent valid from 1 March 2006 until 30 June 2010.
7.
According to the Claimant, he only signed a new employment contract on 8 May 2008
(cf. point I.1) after the Respondent threatened to send him to the second team for the
rest of the employment contract in force at that time if he refused to do so.
8.
Moreover, in May 2009, the Claimant allegedly had surgery in connection with an injury
incurred during the course of the contract. The Claimant held that the surgery-related
expenses cost him currency of country A 1,801, submitting copy of the relevant receipts.
The Claimant allegedly asked the Respondent on multiple occasions to reimburse him
the surgery-related expenses, but the Respondent apparently refused to do so.
9.
The Claimant further held that the Respondent paid only half of his remuneration for
June 2009 as well as failed to pay the salaries for September, October and November
2009. In addition, the Claimant had to pay for his own flight ticket to country A, in
accordance with the instructions of the Respondent, while the Respondent failed to
reimburse him the relevant amount.
10.
The Claimant alleged having put the Respondent in default in writing on 16 December
2009 and the Respondent allegedly refused the pay the relevant amounts.
11.
As a consequence, the Claimant terminated the contract in writing on 21 December
2009.
12.
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.
13.
Even though invited to do so, the Claimant failed to inform FIFA of any new
employment contract signed by him during the validity of the contract.
Player M, 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
11 February 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 11 February 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, on 8 May 2018, the
Claimant and the Respondent had concluded an employment contract valid as from 1
July 2008 until 30 June 2011.
6.
The Chamber further observed that the Claimant lodged a claim in front of FIFA against
the Respondent for breach of contract, requesting the payment of outstanding
remuneration as well as compensation and reimbursement of costs with flight tickets
and surgery expenses.
Player M, from country A / Club C, from country R
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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 50,000 amount composed of USD 5,000 related to part of the monthly salary for
June 2009 as well as USD 45,000 representing the monthly salaries of September to
November 2009, in the amount of USD 15,000 each.
10.
The DRC took note that, according to the contract, the Claimant was entitled to a
monthly salary of USD 10,000 for the season 2008/2009 and USD 15,000 for the season
2009/2010.
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 brought
forward by the Claimant, the DRC took note that on the date of termination, i.e. 21
December 2009, more than three salaries were outstanding.
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.
14.
On account of the above, the Chamber established that the Claimant had terminated
the employment 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.
Player M, from country A / Club C, from country R
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15.
Having established that the Respondent is to be held liable for the early termination of
the employment 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 employment 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 i.e. the amount of USD 50,000, consisting of three monthly
salaries of USD 15,000 each, corresponding to the months of September, October and
November 2009, as well as the amount of USD 5,000, corresponding to the unpaid
portion of the salary of June 2009.
17.
In addition, the Chamber considered the Claimant’s request for reimbursement of
EUR 1,981.80 corresponding to a roundtrip airplane ticket from country R to country A.
18.
In this respect, the Chamber first acknowledged that the contract provided that the
Claimant would benefit from a roundtrip airplane ticket from country R to country A
each season. In addition, the Chamber took note that the Claimant provided evidence
of the amount paid for the flight ticket. However, the DRC took note that the
documentary evidence provided by Claimant was in the amount of USD 1,982 and thus,
the currency was not in euros. As a consequence, the DRC decided that the Respondent
must pay the amount of USD 1,982 to the Claimant corresponding to the cost of the
Claimant’s roundtrip airplane ticket from country R to country A.
19.
In this regard, the DRC 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 on the
basis of an alleged fact shall carry the respective burden of proof. As a consequence, the
DRC decided that the Respondent must pay the amount of USD 1,982 to the Claimant
corresponding to the cost of the Claimant’s roundtrip airplane ticket from country R to
country A.
20.
In continuation, the DRC analysed the Claimant’s request for currency of country A
1,801 corresponding to surgery-related expenses. In this regard, the Chamber
highlighted that the contract does not provide for surgery-related expenses and thus,
the Claimant’s request for surgery-related expenses had no contractual basis and had to
be rejected.
21.
As a consequence, the DRC decided that the Respondent is liable to pay the total
amount of USD 51,982 to the Claimant, consisting of the amount of USD 50,000
Player M, from country A / Club C, from country R
6/9
corresponding to the Claimant’s outstanding remuneration at the time of the unilateral
termination of the contract by the Claimant and the amount of USD 1,982
corresponding to compensation for the Claimant’s roundtrip airplane ticket from
country R to country A.
22.
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 at the rate of 5% p.a. as of the date of the claim.
23.
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
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.
24.
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.
25.
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.
26.
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.
27.
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
Player M, from country A / Club C, from country R
7/9
June 2011, and concluded that the Claimant would have received in total EUR 345,000
as remuneration had the contract been executed until its expiry date. Consequently, the
Chamber concluded that the amount of EUR 345,000 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at
hand.
28.
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.
29.
In this respect, the DRC took note that the Claimant, even though requested, failed to
provide information regarding his contractual situation following the termination of
the contract and during the relevant period until 30 June 2011.
30.
In this context, and in particular, considering the general obligation of the player to
mitigate his damages, the Chamber considered it had to assume that the Claimant
earned more than USD 345,000 for the relevant period and thus, is not entitled to
receive any compensation.
31.
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 M, 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 51,982,
plus interest at 5% p.a. as of 11 February 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.
4.
Any further request filed by the Claimant is rejected.
Player M, from country A / Club C, from country R
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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 M, from country A / Club C, from country R
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