Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 October 2014,
in the following composition:
Geoff Thompson (England), Chairman
Damir Vrbanovic (Croatia), member
Todd Durbin (USA), member
Joaquim Evangelista (Portugal), member
John Bramhall (England), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1.
On 5 July 2012, the player from country B, Player A (hereinafter: the Claimant) and the
club from country D, Club C (hereinafter: The Respondent) signed an employment
contract valid as from the date of the signature until the 4 July 2015, i.e. 3 years.
2.
According to art. 7.7 of the Contract “The Parties declare that they accept the exclusive
jurisdiction of Football Federation from country D” and, according to art. 7.6, “The
Parties undertake to settle by negotiations and agreements any disputes and
disagreements, that may arise in the process of the present Contract obligations
fulfillment. If they fail to come to agreement between the Footballer and the Club, the
final decision is taken by the Club Board and may be appealed against according to the
norms of Football Federation from country D Regulations”.
3.
Also on 5 July 2012, the parties also signed three appendixes to the contract, which
entitled the Claimant to receive inter alia the amounts of:
a. “18’100” as monthly salary payable from 5 July 2012 until 4 July 2015 (Clause 3
of Annex 2)
b. USD 500 as monthly accommodation allowance (Clause 4 of Annex 2);
c. USD 19’000 net as monthly salary payable as from 5 July 2012 until 4 July 2015
(Clause 3.1 of Annex 3).
4.
On 16 May 2013, the Claimant terminated the contract with the Respondent in writing
and with immediate effect, after having received no reaction from the Respondent to
his default notice of 8 May 2013, by means of which he requested the payment, until 15
May 2013, of his outstanding remuneration from January to April 2013, in the total
amount of USD 76’000.
5.
On the same date, the Claimant lodged a claim against the Respondent before FIFA for
breach of contract, requesting the payment of the total amount of USD 682’000 with
interest of 5% p.a., broken down as follow:
a. USD 86’954.84 as outstanding salaries corresponding to salaries from January to
April 2013 (4 x USD 19,000 = USD 76,000) and his pro rata salary from 1 to 16
May 2013 ((USD 2,225 + USD 19,000) : 31 days x 16 days = USD 10’954.84) as per
annex 3, plus 5% interest p.a. as from each due date;
b. USD 595’845.16 as compensation for breach of contract: USD 10’270.16
remaining salary for May 2013 (USD 2’225 + USD 19,000 – USD 10’954.84), USD
530’625 remaining salaries from 1 June 2013 to 4 July 2015 (25 x (USD 2’225 +
USD 19’000)), USD 12’500 for the remaining accommodation allowances from 1
Player A, from country B/ Club C, from country D
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June 2013 to 4 July 2015 (25 x USD 500) and USD 42’450 for “sporting and
moral damages” plus 5% interest p.a. as from 17 May 2013;
c. Sporting sanctions on the Respondent.
6.
According to the Claimant, he received regularly his salary as per annex 2 and 3 until 1
January 2013. As from this date, without a valid reason, the Respondent stopped to pay
him his extra salary as established in annex 3 (cf. point I.3.c above). Therefore, after the
unanswered reminder of 8 May 2013, the Claimant terminated the contract on 16 May
2013 (cf. point I. 4 above).
7.
In its reply, the Respondent rejected the competence of FIFA to deal with the present
matter based on art. 7.6 and 7.7 of the contract (cf. point I. 2 above). In this respect, the
Respondent claims that the only judicial body competent to deal with a dispute arising
from the contract signed between the parties is the national dispute resolution
committee of the Football Federation of country D (hereinafter: the Football Federation
from country D NDRC). The Respondent holds that the latter fulfills all the requirements
of independence, equal representation, fairness and objectiveness in consideration of
disputes of the art. 22. b of the FIFA Regulations on the Status and Transfer of Players.
8.
In this respect, the Respondent provided FIFA with an extract of the Statutes of the
Football Federation from country D and of the Disciplinary Code of the Football
Federation from country D, as well as a complete version of the Regulations of the
Football Federation from country D NDRC (edition 2012), which establish the following:
a. with regard to the jurisdiction of the Dispute Resolution Chamber:
According to art. 53, par. 2 of the Football Federation from country D
Disciplinary Code and Article 1 of the Football Federation from country D DRC
Regulations, the Football Federation from country D NDRC shall have an
exclusive competence to consider disputes between clubs and football players
and coaches related to the employment and contractual disputes arising out of
the labour relations as well as disputes between clubs.
b. with regard to the composition:
According to art. 3 par. 1 of the Football Federation from country D NDRC
Regulations, the Football Federation from country D NDRC is composed of a
chairman and deputy chairman elected from a list and at least five persons
proposed by the Executive Committee of the Football Federation from country
D with the consent of the representatives of the clubs/leagues and footballers,
three to ten representatives of the footballers, appointed by the Presidium of
the Trade Union from country D “Football of country D” and the Association of
Professional Footballers of country D, and three to ten representatives of the
Player A, from country B/ Club C, from country D
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clubs/leagues appointed on the proposal of the General Meeting of members
of the Premier League, the Association of Football Clubs of country D and the
Central Council of the Professional Football League of country D from among
the candidates proposed by the clubs.
c. with regard to the possibility of an appeal:
Concerning the possibility of an appeal against a decision taken by the Football
Federation from country D NDRC, art. 53. par. 3 of Football Federation from
country D Disciplinary Rules stipulates that the decisions of the Football
Federation from country D NDRC may be appealed before CAS.
9.
As to the substance of the case, the Respondent claims that the Claimant is not entitled
to the claimed amount and terminated the contract without just cause. Indeed, the
Respondent states that the Claimant has left the Respondent’s facilities on 14 May 2013
i.e. without previous warning, two days before the notification’s delivery. Furthermore
the Respondent holds that the Claimant violated his contractual obligations several
times and did not follow the Respondent’s doctor instructions for his post-injury
rehabilitation period. In this regard, the Respondent provided a medical opinion and a
“doctor’s note” dated 8 May 2013 and 15 May 2013 respectively, according to which the
Claimant suffers from an Achilles tendon injury and needs about two weeks for
rehabilitation and recovery without participating in active training sessions.
10.
In his replica, the Claimant, first of all, holds that the Respondent’s position cannot be
considered due to the fact that it arrived with a delay of four days. Additionally, the
Claimant insists that FIFA is competent to deal with the present matter and denies the
competence of the Football Federation from country D NDRC which does not meet the
minimum procedural standards required by Art. 22 lit b of the RSTP. Moreover, the
Claimant states it is impossible that he could give his agreement to submit any
contractual dispute with the respondent to the Football Federation from country D
NDRC for the reason that the creation of the latter was two months after the date of
the signature of the contract, i.e. on 3 September 2012. Finally the Claimant holds that
clauses 7.6 and 7.7 of the contract are null and void or, at least, cannot be considered
for the reason that they are unclearly drafted and that he was forced to sign the
contract since it is a mandatory Football Federation from country D standard form to
participate in the Football Federation from country D competition.
11.
As to the substance, the Claimant maintains its position and additionally states that he
left the country D on 15 May 2013 and, therefore, respected the time limit of his final
warning sent to the Respondent, dated 8 May 2013. Finally, the Claimant holds that all
the conditions to terminate the contract with just cause are fulfilled: the importance of
Player A, from country B/ Club C, from country D
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the outstanding amounts, the absence of the justification from the Respondent to
retain monies and the fact that the Claimant gave the Respondent a notice prior to
termination.
12.
In its final position, the Respondent reaffirms its arguments and holds that the Football
Federation from country D NDRC is the only competent body to consider the case.
13.
Finally, the Claimant informed FIFA that he was unemployed from 16 May to 24 June
2013 and subsequently signed an employment contract with the club from country E,
club F, valid from 24 June 2013 until 30 June 2016, according to which he was entitled
to receive a monthly salary of USD 25’000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the 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 16 May 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).
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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the DRC
shall adjudicate on employment-related disputes between a club and a player that have
an international dimension.
3.
As a consequence, the DRC would, in principle, be competent to decide on the present
litigation which involves a player from country B and a club from country D regarding
an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the competence
of FIFA’s deciding bodies on the basis of art. 7.6 and art. 7.7 of the contract, alleging
that the only competent body to deal with any dispute deriving from the relevant
employment contract is the Football Federation from country D NDRC.
5.
On the other hand, the Chamber noted that the Claimant insisted on the competence
of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.
6.
Taking into account all the above, the Chamber emphasised that in accordance with art.
22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players it
Player A, from country B/ Club C, from country D
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is competent to deal with a matter such as the one at hand, unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs, has been established at national level within
the framework of the association and/or a collective bargaining agreement. With
regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010
dated 20 December 2005. Equally, the members of the Chamber referred to the
principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
7.
In relation to the above, the Chamber also deemed it vital to outline that one of the
basic conditions that needs to be met in order to establish that another organ than the
DRC is competent to settle an employment-related dispute between a club and a player
of an international dimension, is that the jurisdiction of the relevant national
arbitration tribunal or national court derives from a clear reference in the employment
contract.
8.
Therefore, while analysing whether it was competent to hear the present matter, the
DRC considered that it should, first and foremost, analyse whether the employment
contract at the basis of the present dispute contained a clear jurisdiction clause.
9.
In this respect, the Chamber recalled that art. 7.6 of the contract stipulates that: “The
Parties undertake to settle by negotiations and agreements any disputes and
disagreements, that may arise in the process of the present Contract obligations
fulfilment. If they fail to come to agreement between the Footballer and the Club, the
final decision is taken by the Club Board and may be appealed against according to the
norms of Football Federation from country D Regulations.”
10.
Equally, the Chamber recalled that art. 7.7 of the contract stipulates that: “The parties
declare that they accept the exclusive jurisdiction of Football Federation from country
D.”
11.
Having examined the relevant provisions, the Chamber came to the unanimous
conclusion that the aforementioned two provisions do not constitute a clear jurisdiction
clause in favour of one specific court or arbitration tribunal in country D, since they only
refer to the “norms” and “jurisdiction” of the Football Federation from country D.
12.
Furthermore, the Chamber wished to emphasise that the Regulations of the Football
Federation from country D provided by the Respondent came into force in September
2012 only, whereas the contract at the centre of the present dispute was already signed
on 5 July 2012. Therefore, the Chamber concluded that, on 5 July 2012, the parties to
the contract could simply not have agreed to submit their potential disputes to the
arbitration body of the Football Federation from country D which only started its
activity in September 2012.
Player A, from country B/ Club C, from country D
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13.
On account of all the above, the Chamber established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected and
that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, to consider the present matter as to the substance.
14.
In continuation, 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 referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2012) and, on the other hand,
to the fact that the present claim was lodged on 16 May 2013. Therefore, the Dispute
Resolution Chamber concluded that the 2012 edition of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
15.
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.
16.
First of all, the members of the Chamber acknowledged that, on 5 July 2012, the
Claimant and the Respondent had concluded an employment contract valid as from 5
July 2012 until 4 July 2015, as well as three appendixes to it, in accordance with which
the player was entitled to the amounts detailed in point I. 3. above.
17.
The Chamber further observed that the Claimant unilaterally terminated the contract in
writing on 16 May 2013 invoking just cause, and that on the same date, he lodged a
claim in front of FIFA against the Respondent seeking payment of the total amount of
USD 682,000 with interest of 5% p.a., as detailed in point I. 5. above.
18.
The DRC noted that, on the one hand, the Claimant holds that, in spite of his reminder
dated 8 May 2013, the Respondent failed to pay his remuneration for the period from
January to April 2013 in the amount of USD 76,000. Therefore, the player claimed that
he had terminated the contract with just cause on 16 May 2013.
19.
The Chamber further noted that, on the other hand, the Respondent does not contest
the existence of outstanding salaries towards the Claimant, but deems that the
Claimant terminated the contract without just cause, therefore, he is not entitled to the
claimed amount. Furthermore, the Chamber observed that the Respondent states that
the Claimant left the club on 14 May 2013 before the delivery of his default notice. In
addition, the DRC noted that the Respondent underlined the allegedly bad behaviour
Player A, from country B/ Club C, from country D
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of the Claimant and the fact that the latter did not follow the Respondent’s doctor
instructions for his rehabilitation after an injury.
20.
Having duly considered the submissions of both parties, the Chamber highlighted that
the central issue in the matter at stake would be, thus, to determine as to whether the
Claimant had just cause to terminate the contract on 16 May 2013.
21.
In this context, the Chamber stressed that the Respondent did not contest that, at the
time of the termination of the contract, i) the Claimant’s salaries for February to April
2013 had not been paid, and ii) that it had received the Claimant’s default notice letter
dated 8 May 2013. In view of the foregoing, the Chamber established that on 16 May
2013, the following payments were outstanding: i) USD 19,000 for the salary of January
2013, ii) USD 19,000 for the salary of February 2013, iii) USD 19,000 for the salary of
March 2013 iv) USD 19,000 for the salary of April 2013. Furthermore, the Chamber
determined that the Respondent, on 8 May 2013, was put in default by the Claimant for
the aforementioned salaries.
22.
In this respect and bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance
with which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof, the Chamber was eager to point out that the Respondent had failed
to present any relevant documentation in support of its position. In particular, the
members of the Chamber observed that the Respondent was not able to provide the
DRC with clear, precise and convincing evidence in support of the alleged misconduct of
the Claimant neither of the payment of the salaries claimed by the Claimant as
outstanding.
23.
Having taken into consideration the foregoing, the Chamber considered 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, i.e. 4 months. 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 May
2013, having previously put the Respondent in default of the outstanding amounts.
24.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the breach of the employment contract without just cause by the
Respondent.
25.
Firstly, the Chamber concurred that the Respondent must fulfill 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
Player A, from country B/ Club C, from country D
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the Claimant the remuneration that was outstanding at the time of the termination i.e.
the amount of USD 76,000, consisting of the monthly salaries of January to April 2013.
26.
Secondly, and considering the Claimant’s claim for interest, the Chamber determined
that the Respondent must pay 5% interest p.a. on the amount of USD 76,000 as from
the respective due dates.
27.
Furthermore, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding remuneration on the basis of the
relevant employment contract.
28.
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 player 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.
29.
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
which would be applicable in the situation where the player had a just cause to
terminate the contract.
30.
Bearing in mind the foregoing, 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 able 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.
31.
The Chamber noted that, during the period as from 16 May 2013 until 24 June 2013, the
Claimant had remained unemployed. Subsequently, the Chamber noted that on 24 June
2013, the Claimant had signed an employment contract with another club and that,
from that date until July 2015, i.e. the original expire date of the employment contract
concluded with the Respondent, according to his new contract, he was entitled to earn
a total income of approximately USD 600,000.
Player A, from country B/ Club C, from country D
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32.
In view of the above, the Chamber concluded that, for the period as from 16 May 2013
to 24 June 2013, during which the Claimant remained unemployed, the residual value
of the contract signed with the Respondent was USD 27,518.
33.
For the period as from 24 June 2013 until July 2015, the Chamber observed that the
Claimant would have been entitled to receive the total amount of approximately USD
564,350 had he remained employed with the Respondent. This amount is lower than
the one he is actually entitled to receive from the club he subsequently signed an
employment contract with, mentioned in point II. 31. Above. Therefore, the Chamber
concluded, in accordance with its well-established jurisprudence, that for said period of
time, the Claimant was not entitled to receive any compensation, since he was not only
able to mitigate his damages, but also to guarantee an even higher remuneration than
the one he would have earned with the Respondent.
34.
Based on the foregoing, the Chamber concluded that the Claimant is entitled to receive
USD 27,518 as compensation for breach of contract from the Respondent.
35.
In addition, taking into account the Claimant’s request as well as the constant practice
of the DRC in this regard, the Chamber decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the amount of compensation as of the date of the
claim, i.e. 16 May 2013 until the date of effective payment.
36.
As a consequence, the DRC concluded that the Respondent is liable to pay the total
amount of USD 103,518 to the Claimant, consisting of the amount of USD 76,000
corresponding to the Claimant’s outstanding remuneration and the amount of USD
27,518 corresponding to compensation for breach of contract.
37.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
II. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, 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
76’000 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
5% p.a. as of 1 February 2013 on the amount of USD 19’000;
5% p.a. as of 1 March 2013 on the amount of USD 19’000;
5% p.a. as of 1 April 2013 on the amount of USD 19’000;
5% p.a. as of 1 May 2013 on the amount of USD 19’000.
Player A, from country B/ Club C, from country D
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4.
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
27’518 plus 5% interest p.a. as of 16 May 2013 until the date of effective payment.
5.
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.
6.
Any further claims lodged by the Claimant are rejected.
7.
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 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:
Player A, from country B/ Club C, from country D
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Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, from country B/ Club C, from country D
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