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
Ivan Gazidis (England), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player T, from country C
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 26 June 2012, Club K, from country T (hereinafter: the club or the
Respondent), and Player H, from country C (hereinafter: the player or the
Claimant), concluded an employment contract (hereinafter: the contract) valid
as from 1 July 2012 until 31 May 2014.
2.
According to the contract, the player was to be remunerated in the 2012/2013
season with the total amount of EUR 500,000, payable as follows:
- EUR 200,000
- EUR 30,000
- EUR 30,000
- EUR 30,000
- EUR 35,000
- EUR 35,000
- EUR 35,000
- EUR 35,000
- EUR 35,000
- EUR 35,000
as an advance payment;
payable on 30 September 2012;
payable on 30 October 2012;
payable on 30 November 2012;
payable on 30 December 2012;
payable on 30 January 2013;
payable on “30” February 2013;
payable on 30 March 2013;
payable on 30 April 2013;
payable on 30 May 2013.
3.
In the 2013/2014 season, the player was entitled to the total amount of EUR
500,000, EUR 200,000 of which payable as an advance payment on 1 August
2013 and the remaining amount of EUR 300,000 payable in 10 equal
installments of EUR 30,000 between 30 August 2013 and 30 May 2014.
4.
Art. VI lit. b) of the contract stipulated that: “In case of non-payment of “two
consecutive salaries” or “the second season’s advance payment” in full or in
part, the PLAYER should notify the club in writing. If the CLUB should not pay
the notified amount in 30 (thirty) days starting from the due date of the
second unpaid salary or the due date of the second season’s advance payment,
then the PLAYER shall have the right to unilaterally terminate the CONTRACT
with just cause.”
5.
Art. VI lit. c) of the contract stipulated that: “In case of termination by the
PLAYER due to the delay in payment by the CLUB, the PLAYER shall be entitled
to receive as an indemnity due to the breach by the CLUB of its payment
obligations, all the amounts established in this CONTRACT including the
payments due before and after the termination date, with this situation being
treated, as regards its consequences, as the same as that of the unilateral
termination without just cause on the part of the CLUB. Being employed of the
PLAYER by a new club between the termination date and the actual duration
shall affect the amount of the compensation indicated in this clause and in this
context the club has his rights to claim the reduction, amortization and / or
diminishing of this amount before the judicial bodies. (…).”
Player H, from country C / Club K, from country T
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6.
On 17 June 2013, the Claimant lodged a claim in front of FIFA against the
Respondent, explaining that the Respondent had paid him the advance
payment of EUR 200,000 for the 2012/2013 season as well as his salary due on
30 September 2012. However, since October 2012, the Respondent had failed
to pay him any of his salaries and, as a result, on 16 January 2013, he notified
the club of his decision to unilaterally terminate the employment contract.
7.
On account of all the above, the Claimant requests to be awarded with the
following amounts:
- EUR 95,000 as outstanding remuneration corresponding to the salaries of
October, November and December 2012 plus 5% interest as from the due
dates;
- EUR 476,000 as compensation for breach of contract plus 5% interest as from
17 January 2013.
8.
The Claimant asserted that he was already entitled to terminate the contract
thirty days after the due date of the second unpaid salary in the event that
two consecutive monthly salaries were unpaid, thus, thirty days after 30
November 2012. In this respect, and in relation to art. VI lit. b) of the contract,
the player held that the lack of notification cannot affect the justification of
the termination, because the notification was not stipulated as a mandatory
obligation (“should notify”), “but as a guidance he may follow- or not”. In any
case, the non-payment of three consecutive salaries is a violation of the
contract serious enough to justify the unilateral termination.
9.
Finally, the Claimant indicated that, on 1 February 2013, he had concluded an
employment contract with Club G, from country T, valid as from 1 February
2013 until 31 May 2013, entitling him to a total remuneration of EUR 199,000.
As from 1 June 2013, the Claimant remained unemployed.
10.
Although having been invited to provide its position to the claim lodged against
it, the Respondent did not reply.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 17 June 2013. Consequently, the 2012 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 of the Procedural Rules).
Player H, from country C / Club K, from country T
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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 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 C player and a country T club.
3.
Furthermore, the Chamber 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, the Chamber confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2012), and considering that the claim was lodged on 17 June 2013, the 2012
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, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the
documentation contained in the file.
5.
First of all, the members of the Chamber acknowledged that, on 26 June 2012,
the Claimant and the Respondent had concluded an employment contract
valid as from 1 July 2012 until 31 May 2014. As to the financial terms of said
employment contract, the Chamber took note that it had been agreed upon
between the parties that the Respondent would remunerate the Claimant with
a monthly salary of EUR 30,000 as from 30 September 2012 until 30 November
2012 and with a monthly salary of EUR 35,000 as from 30 December 2012 until
30 May 2013. Furthermore, the Chamber duly noted that the Respondent
would remunerate the Claimant with the total amount of EUR 500,000 for the
2013/2014 season.
6.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the amount of EUR 95,000
corresponding to his outstanding remuneration as well as the amount of EUR
476,000 as compensation for breach of contract, asserting that the Respondent
had not fulfilled its contractual obligations towards him. More specifically, the
Claimant indicated that the Respondent had not paid him his salaries for the
months of October, November and December 2012, reason for which, on 16
January 2013, he terminated the contract unilaterally.
7.
Furthermore, the Chamber 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 Chamber deemed, the Respondent renounced its right of
defence and, thus, accepted the allegations of the Claimant.
Player H, from country C / Club K, from country T
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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 documents on file.
9.
Having taken into consideration the previous considerations, 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 longstanding and well-established jurisprudence, the Claimant had a just cause to
unilaterally terminate the contractual relationship with the Respondent on 16
January 2013. For the sake of good order, the Chamber referred to the
Claimant’s argumentation in relation to art. VI lit. b) of the contract and noted
that the Claimant asserted that the lack of notification cannot affect the
justification of the termination, because the notification was not stipulated as
a mandatory obligation “but as a guidance he may follow- or not”. In this
respect, once more emphasizing that the Respondent had not contested this
particular argument, the Chamber decided to accept the line of argumentation
of the Claimant.
10.
On account of the above, the Chamber established that the Claimant had
terminated the employment contract with just cause on 16 January 2013 and
that, consequently, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
11.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the employment contract
with just cause by the Claimant.
12.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per 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 EUR
95,000, consisting of the three monthly salaries of October, November and
December 2012. Furthermore and considering the Claimant’s claim for interest,
the Respondent must pay 5% interest on the amount of EUR 95,000 as from
the day after the respective due dates of the salaries, i.e. as from 31 October
2012, 1 December 2012 and 31 December 2012 until the date of effective
payment.
13.
In continuation, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Player H, from country C / Club K, from country T
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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 Chamber 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 this regard, the Chamber reasoned that the employment contract did
contain a clause regarding compensation to be awarded to the player in case
of breach of contract, however such clause cannot be considered by this
Chamber, in line with its well-established jurisprudence, due to its lack of
reciprocity, i.e. it does not provide for compensation in case of breach of
contract by the player.
16.
On account of the above, the Chamber established that it had to assess the
compensation due to the Claimant in accordance with the other criteria under
art. 17 of the Regulations. In this respect, the Chamber pointed out that, at the
time of the termination of the contractual relationship on 16 January 2013, the
contract would run for another 17 months, in which the player would be
entitled to 5 instalments of EUR 35,000 for the period as from January 2013
until May 2013 as well as to the amount of EUR 500,000 for the complete
2013/2014 season. Consequently, the Chamber concluded that the remaining
value of the contract as from its early termination by the Claimant until the
regular expiry of the contract amounted to EUR 675,000 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 Chamber remarked that following the early termination
of the contract at the basis of the present dispute the Claimant had found new
employment with Club G, from country T, valid as from 1 February 2013 until
31 May 2013, in accordance with which he would be remunerated with a total
amount of EUR 199,000. 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.
18.
In view of all of the above, the Chamber decided that the Respondent must
pay the amount of EUR 476,000 to the Claimant, which is considered by the
Player H, from country C / Club K, from country T
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Chamber to be reasonable and justified amount as compensation for breach of
contract.
19.
As a consequence, the DRC concluded that the Respondent is liable to pay the
total amount of EUR 571,000 to the Claimant, consisting of the amount of EUR
95,000 corresponding to the Claimant’s outstanding remuneration at the time
of the unilateral termination of the contract by the Claimant and the amount
of EUR 476,000 corresponding to compensation for breach of contract.
20.
In relation to the Claimants’ request for interest, the Chamber decided that the
Respondent had to pay 5% interest on the amount of EUR 95,000 as from the
respective due dates and on the amount of EUR 476,000 as from 31 October
2013.
21.
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 H, is partially accepted.
2.
The Respondent, Club K, 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 95,000 plus 5% interest until the date of effective payment as
follows:
a. 5% p.a. as of 31 October 2012 on the amount of EUR 30,000;
b. 5% p.a. as of 1 December 2012 on the amount of EUR 30,000;
c. 5% p.a. as of 31 December 2012 on the amount of EUR 35,000.
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 EUR 476,000 plus 5% interest p.a. on said amount as from 31
October 2013 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
the FIFA Disciplinary Committee for consideration and a formal decision.
Player H, from country C / Club K, from country T
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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 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player H, from country C / Club K, from country T
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