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 L, from country N
as Claimant/Counter-Respondent
against the club,
Club D, from country S
as Respondent/Counter-Claimant
and the club,
Club A, from country T
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 July 2009, the country N player, Player L (hereinafter: player or
Claimant/Counter-Respondent) and the country S club, Club D (hereinafter: club or
Respondent/Counter-Claimant), signed an employment contract valid as from the
date of signature of the contract until 30 June 2013 (hereinafter: contract).
2.
According to the contract, the player was entitled to receive, during four seasons, a
monthly salary of EUR 1,000 per season.
3.
The contract contains the following clause (c.f. art. 5 of the contract): ``the player
shall pay the amount of EUR 6,000,000 to the club if he unilaterally terminates the
contract without just cause’’. The contract does not include any stipulation as regards
the sum payable by the club to the player in case of unilateral termination of the
contract without just cause by the club.
4.
On 24 August 2012, the player formally notified the club of the unilateral
termination of the contract. In his termination notice, the player claimed that the
club failed to comply with the payment terms under the contract and stated that his
salaries, as from May 2012 until August 2012, were still outstanding.
5.
On 27 August 2012, the player lodged a claim, for breach of contract and
compensation for breach of contract, before FIFA against the club requesting that
the club be ordered to pay the total amount of EUR 14,000 as follows:
-
Monthly salary as from May 2012 to August 2012
(EUR 1,000 x 4 instalments)
Salaries corresponding to the 2012/13 season
EUR 4,000
EUR 10,000
6.
The player also requested to be awarded payment of interest on the above amount
of EUR 4,000 ``calculated as per the date of payment’’ as well as procedural costs.
7.
In its response, the club claimed that, in keeping with the club’s common practice,
the player was requested, on numerous occasions, to visit the club’s offices so as to
receive his monthly salaries, which had always been paid to the player in the same
manner; however, he failed to do so.
8.
According to the club, the player was still registered at the country S Ministry of
Employment and Social Security as its employee and claims to have paid all the social
security contributions of the player. Furthermore, the club sent the player another
correspondence, dated 27 August 2012, reiterating that he was requested to join the
team and that the salaries provided for in the contract were at his disposal at the
club’s offices.
Player L, from country N / Club D, from country S / Club A, from country T
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9.
Moreover, the club maintained that it received an offer from Club A (hereinafter:
Club A) to acquire the services of the player.
10.
On account of the above, the club rejected the player’s arguments and lodged a
counterclaim against him for the payment of compensation for breach of contract
without just cause.
11.
Therefore, the club requested that the player’s claim of ``EUR 10,000’’ related to
salaries for the 2012/13 season be rejected and requested FIFA to establish a
pertinent amount of compensation in favour of the club in accordance with art. 5 of
the contract.
12.
In his reply to the counterclaim, the player stated that the compensation amount
provided for in art. 5 of the contract is not proportional to the player’s monthly
salary and he sustained that the provision should be deemed invalid. Moreover, the
player pointed out that the club failed to submit any proof of payment. Therefore,
the player maintained his previous argumentation and petition.
13.
The player signed an employment contract with the club, Club A, valid as of 3
September 2012 until 31 May 2014, in accordance with which he was entitled to
receive until the end of the 2012/13 season, inter alia, a monthly salary of USD 9,000
in ten equal instalments, payable on the 29th of each month, as well as two
instalments of USD 30,000 each, to be paid on 5 September 2012 and 20 September
2012 respectively, and minimum wages.
14.
On 29 September 2012, the Single Judge of the Players’ Status Committee authorised
the country T Football Federation to provisionally register the player with Club A.
15.
Furthermore, the player signed an employment contract with the club, Club M
(country T), on the occasion of the apparent loan of the player, valid as of 31 January
2013 until 31 May 2016, in accordance with which he was entitled to receive, inter
alia, for the 2012/2013 season, an advance payment in the amount of EUR 25,000 on
or before 31 January 2013 and four equal monthly instalments of EUR 25,000,
payable on the 30th of each month.
16.
Having been invited by FIFA to submit its position on this matter, the intervening
party, Club A, merely presented several documents without any further comments or
position. The documentation provided to FIFA consists, inter alia, of a copy of the
employment contract signed between the player and Club A. Moreover, Club A
submitted a ``mutual termination and release agreement’’, signed by the player and
Club A on 31 January 2013, by means of which the parties agreed to terminate their
employment relation.
Player L, from country N / Club D, from country S / Club A, 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 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 27 August
2012. 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. 2 and par. 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 and par. 2 in
conjunction 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 N 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 par. 2 of the Regulations on the Status and Transfer of Players (editions
2012 and 2010), and considering that the present claim was lodged on 27 August
2012, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. The members of the Chamber
started by acknowledging the facts of the case as well as the documents contained in
the file.
5.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid as from 1 July 2009 until 30 June 2013, in accordance with which the
Claimant/Counter-Respondent was entitled, during four seasons, to a monthly salary
of EUR 1,000. According to the Claimant/Counter-Respondent the club is to be held
liable for breach of contract and payment of compensation for having failed to
comply with its obligations regarding the payment of his receivables, whereas the
Respondent/Counter-Claimant, for its part, rejects the arguments of the player and
claims compensation for breach of contract without just cause by the player on the
basis of art. 5 of the contract.
6.
In continuation, the Chamber focused its attention on the question as to when the
termination of the contract had taken place and which party had proceeded with
such termination. In this respect, the Chamber noted that it was undisputed that the
Claimant/Counter-Respondent formally terminated the contract on 24 August 2012.
Following the above, the DRC pointed out that the central issue in the present matter
Player L, from country N / Club D, from country S / Club A, from country T
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would be, thus, to determine if the Claimant/Counter-Respondent had had just cause
or not to terminate the contract.
7.
In this respect, the Chamber wished to emphasize that, according to the
Claimant/Counter-Respondent, upon the termination of the contract on 24 August
2012, four monthly salaries, i.e. as of May until August 2012, in the total amount of
EUR 4,000 were yet to be paid.
8.
The Chamber acknowledged that the Respondent/Counter-Claimant, for its part,
implies that the Claimant/Counter-Respondent’s remuneration in the amount of EUR
4,000 has remained unsettled.
9.
In this respect, the Chamber took due note that the Respondent/Counter-Claimant
asserts that the Claimant/Counter-Respondent was requested, on numerous
occasions, to visit the club’s offices so as to receive his monthly salaries, in line with its
alleged common practice, and that the Claimant/Counter-Respondent allegedly had
failed to do so.
10.
In this context, the DRC deemed it essential to point out that, according to the legal
principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules,
any party claiming a right on the basis of an alleged fact shall carry the burden of
proof.
11.
In view of the above, the DRC concluded that the Respondent/Counter-Claimant shall
carry the burden of proof in connection with its allegations as regards the payment
method
of
the
Claimant/Counter-Respondent’s
remuneration
and
the
Claimant/Counter-Respondent’s alleged failure to follow such procedure. The
members of the Chamber observed that the Respondent/Counter-Claimant omitted
to present any documentary evidence in this respect.
12.
In conclusion, the members of the Chamber established that there is no evidence on
file demonstrating that the Respondent/Counter-Claimant actually paid the player’s
remuneration as of May 2012.
13.
Taking into account the above-mentioned considerations as well as the
documentation presented by the parties, the Chamber established that at least three
monthly salaries, as from May to July 2012 had fallen due and remained outstanding
at the time of the termination of the contract by the Claimant/Counter-Respondent
on 24 August 2012.
14.
On account of the above, the Chamber decided to reject the arguments of the
Respondent/Counter-Claimant and that the Claimant/Counter-Respondent had just
cause to unilaterally terminate the contract on 24 August 2012. Consequently, the
Chamber ruled that the Respondent/Counter-Claimant is to be held liable for the
early termination of the contract with just cause by the player.
Player L, from country N / Club D, from country S / Club A, from country T
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15.
As a consequence, and in accordance with the legal principle of pacta sunt servanda,
the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the
Claimant/Counter-Respondent all amounts which have remained outstanding under
the contract, i.e. EUR 4,000, corresponding to salaries as from May 2012 until August
2012.
16.
Having established that the Respondent/Counter-Claimant is to be held liable for
the early termination of the employment contract with just cause by the player,
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/Counter-Respondent would, in principle, be entitled to receive
from the Respondent/Counter-Claimant an amount of money as compensation for
breach of contract.
17.
Subsequently, 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/Counter-Respondent 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.
18.
In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract contains 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.
19.
In this context, the Chamber firstly focussed its attention on art. 5 of the contract,
which stipulates that ``the player shall pay the amount of EUR 6,000,000 to the club
if he unilaterally terminates the contract without just cause’’.
20.
In this regard, the Chamber took into account that the Claimant/CounterRespondent had terminated the contract with just cause. Moreover, the Chamber
wished to point out that such clause appears to be unilateral and to the benefit of
the Respondent only. As a consequence, the members of the Chamber concluded
that art. 5 of the employment contract cannot be taken into consideration.
Player L, from country N / Club D, from country S / Club A, from country T
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21.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
until 30 June 2013 and concluded that the Claimant/Counter-Respondent would
have received a total remuneration of EUR 10,000 had the contract been
executed until its expiry date.
22.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 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.
23.
Indeed, the Claimant/Counter-Respondent signed an employment contract with
the country T club, Club A, valid as of 3 September 2012 until May 2014, in
accordance with which he was entitled to receive, as from September 2012 until
the end of January 2013, the total amount of approximately EUR 83,480.
Moreover, the Claimant/Counter-Respondent signed an employment contract
with the country T club, Club M, on the occasion of an apparent loan, valid as of
31 January 2013 until 31 May 2016, in accordance with which the
Claimant/Counter-Respondent was entitled to receive the total remuneration of
EUR 125,000 for the 2012/13 season. Consequently, the Chamber established that
the value of the new employment contracts concluded between the
Claimant/Counter-Respondent and the new clubs for the period as from
September 2012 until 30 June 2013 amounted to approximately EUR 208,000.
24.
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.
25.
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/Counter-Claimant is considered liable for the breach
of the relevant employment contract, the Claimant/Counter-Respondent did not
suffer any financial loss from the violation of the contractual obligations by the
Respondent/Counter-Claimant and, therefore, the Chamber decided that there is
no amount that should be awarded to the Claimant/Counter-Respondent as
compensation for breach of contract in the matter at hand.
Player L, from country N / Club D, from country S / Club A, from country T
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26.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the
Respondent/Counter-Claimant must pay the total amount of EUR 4,000 to the
Claimant/Counter-Respondent.
27.
In addition, taking into consideration the Claimant/Counter-Respondent’s request
as well as the constant practice of the Dispute Resolution Chamber, the Chamber
decided to award interest at the rate of 5% p.a. over the amount of EUR 4,000 as
of 27 August 2012 until the date of effective payment.
28.
Taking into account all of the above, the DRC decided to partially accept the claim of
the Claimant/Counter-Respondent and to entirely reject the Respondent/CounterClaimant’s counterclaim.
29.
Furthermore, the DRC decided that, in accordance with art. 18 par.4 of the
Procedural Rules and the Dispute Resolution Chamber’s respective longstanding
jurisprudence, the Claimant’s claim for procedural costs is rejected.
30.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant/CounterRespondent are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player L, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club D, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent,
within 30 days as from the date of notification of this decision, the amount of EUR
4,000 plus interest at 5% p.a. as of 27 August 2012 until the date of effective
payment.
4.
If the aforementioned sum plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and decision.
5.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
Player L, from country N / Club D, from country S / Club A, from country T
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6.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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 L, from country N / Club D, from country S / Club A, from country T
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