Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 January 2011,
in the following composition:
Geoff Thompson (England), Chairman ad interim
Gerardo Movilla (Spain), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
B,
as Claimant / Counter-Respondent
against the club,
K,
as Respondent / Counter-Claimant
and the club,
L,
as Intervening party
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 2 June 2006, the player, B (hereinafter: the Claimant / Counter-Respondent or
player), and the club, K (hereinafter: the Respondent / Counter-Claimant), signed an
employment contract valid until 31 May 2009, according to which the Claimant /
Counter-Respondent was entitled to receive inter alia the following monies:
a. As from June 2006 to May 2007
i. EUR 115,000 on the day of signature;
ii. EUR 150,000 in ten monthly salaries of EUR 15,000 each (August to May)
at the end of the relevant month;
iii. EUR 110,000 divided over 34 matches (EUR 3,235.29 per match – 75%
thereof only if reserve player) payable after each period of 8 matches as
well as;
iv. EUR 2,500 per match in the Cup T (75% thereof only if reserve player).
b. As from June 2007 to May 2008, a total of EUR 375,000 net:
i. EUR 115,000 on 30 July 2007;
ii. EUR 150,000 in ten monthly salaries of EUR 15,000 each (August to May)
at the end of the relevant month;
iii. EUR 110,000 divided over 34 matches (EUR 3,235.29 per match – 75%
thereof only if reserve player) payable after each period of 8 matches;
iv. EUR 2,500 per match in the Cup T (75% thereof only if reserve player).
c. As from June 2008 to May 2009, a total of EUR 400,000 net:
i. EUR 160,000 on 30 July 2008;
ii. EUR 120,000 in ten monthly salaries of EUR 12,000 each (August to May)
at the end of the relevant month;
iii. EUR 120,000 divided over 34 matches (EUR 3,529.42 per match – 75%
thereof only if reserve player) payable after each period of 8 matches;
iv. EUR 2,500 per match in the Cup T (75% thereof only if reserve player).
2.
According to article III. 10 of the employment contract, the Claimant / CounterRespondent was entitled to unilaterally terminate the employment contract at the
Respondent / Counter-Claimant’s fault in the event of the Respondent / CounterClaimant failing to remit any payment to the Claimant / Counter-Respondent within 60
days as of the relevant due dates. In such event, the Respondent / Counter-Claimant
was obliged to pay to the Claimant / Counter-Respondent “all payments to the 31 May
2009”.
3.
On 9 December 2008, the Claimant / Counter-Respondent lodged a claim against the
Respondent / Counter-Claimant in front of FIFA asking:
a. that the employment contract be established terminated on 23 October 2008
at the Respondent / Counter-Claimant’s fault;
b. that the Respondent / Counter-Claimant be obliged to pay the total amount of
EUR 265,735.33 for outstanding monies and compensation for breach of
contract on the basis of article III. 10 of the employment contract, plus 11,5%
of interest p.a. as of 13 November 2008;
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c. that the Respondent / Counter-Claimant be obliged to reimburse the Claimant
/ Counter-Respondent’s legal expenses.
4.
The amount of EUR 265,735.33 was detailed as follows:
a. EUR 130,000 relating to the outstanding guaranteed payment for the 2008-09
season;
b. EUR 120,000 relating to monthly salaries (August 2008 to May 2009, 10 x EUR
12,000);
c. EUR 7,052.84 relating to match fees (2 x EUR 3,529.42);
d. EUR 2,500 relating to match fees for the Cup of the country T;
e. EUR 6,176.49 match fees following injury (3,529.42 + 2,647.07).
5.
The Claimant / Counter-Respondent explains that, in July 2007, the Respondent /
Counter-Claimant informed him that his remuneration shall be reduced by 20%, which
he did not accept. This refusal was communicated to the Respondent / CounterClaimant in writing.
6.
Furthermore, between July 2007 and December 2007 he did not receive any
remuneration in spite of his default notice dated 28 November 2007. Therefore, by a
letter dated 19 December 2007 addressed to the Respondent / Counter-Claimant, the
Claimant / Counter-Respondent declared the employment contract as terminated at the
Respondent / Counter-Claimant’s fault and asked for the payment of the contractual
remuneration until 31 May 2009.
7.
Thereafter, the Respondent / Counter-Claimant promptly paid the outstanding
remuneration and the employment relationship was continued.
8.
In his claim, the Claimant / Counter-Respondent points out that, since 30 July 2008, the
Respondent / Counter-Claimant had only made one partial payment of EUR 30,000
relating to the EUR 160,000 instalment, in spite of his alleged default notice.
9.
Therefore, by means of a letter addressed to the Respondent / Counter-Claimant on 22
October 2008, referring to the fact that the Respondent / Counter-Claimant had not
paid him since July 2008, the Claimant / Counter-Respondent declared the employment
contract as terminated at the Respondent / Counter-Claimant’s fault on the basis of
article III. 10 of the employment contract and asked for the payment of the contractual
remuneration until 31 May 2009.
10.
The Respondent / Counter-Claimant, for its part, fully rejects the Claimant / CounterRespondent’s claim.
11.
The Respondent / Counter-Claimant submits that at the end of the 2006-07 season, it
was relegated to a lower division and lost its main income from broadcasting, which is
why it asked the Claimant / Counter-Respondent to accept a 20% cut in his salary for
the second season.
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12.
The Respondent / Counter-Claimant asserts that during the first and second season it
did pay all the Claimant / Counter-Respondent’s receivables, but due to financial
difficulties it was in delay most of the time. Even down payments were paid in
instalments. The Respondent / Counter-Claimant further holds that it made payments
to the Claimant / Counter-Respondent almost each month at least once so that the
Claimant / Counter-Respondent would not suffer financially.
13.
Only once did the Claimant / Counter-Respondent serve a notice of default of payment
to the Respondent / Counter-Claimant and a subsequent notice of termination, in
November and December 2007 respectively. However, the employment contract was
continued after the amounts outstanding at that time were paid.
14.
The Respondent / Counter-Claimant points out that, on 22 October 2008, the Claimant /
Counter-Respondent, without prior warning, terminated the employment contract
unilaterally and left the club without authorisation.
15.
The Respondent / Counter-Claimant submits that the Claimant / Counter-Respondent
had to serve a default notice before terminating the contract in accordance with the
Regulations of the Football Federation T and the well-established jurisprudence of the
Dispute Resolution Chamber and the Court of Arbitration for Sport. The Claimant /
Counter-Respondent failed to do so and therefore was the party in breach of contract.
16.
The Respondent / Counter-Claimant admits that, on the day the contract was
terminated, there were payments outstanding in the amount of EUR 161,058.84 (i.e.
160,000 as advance payment due on 30 July 2008; EUR 24,000 as salaries for August and
September 2008; EUR 7,058.84 as match appearance fees; deduction of EUR 30,000 paid
on 18 September 2008), but considers that the Claimant-Counter-Respondent had to be
confident that he would be paid like in the past.
17.
The Respondent / Counter-Claimant acknowledges that the Claimant / CounterRespondent was fielded in two league games during the 2008/09 season, but does not
mention the cup match for which the Claimant / Counter-Respondent requires payment
of the match appearance fee.
18.
The Respondent / Counter-Claimant lodged a counterclaim against the Claimant /
Counter-Respondent asking for compensation for breach of contract by the Claimant /
Counter-Respondent, who left the club without authorisation. The requested amount
of EUR 320,000 relates to non-amortised costs (EUR 500,000 paid to the Claimant /
Counter-Respondent’s former club and EUR 100,000 paid to his agent) for the transfer
of the Claimant / Counter-Respondent.
19.
In his replica, the Claimant / Counter-Respondent declares that the fact that he only
received EUR 30,000 on 18 September 2008 although he was due EUR 161,000 at that
date and the fact that the payments were consistently delayed, were serious reasons to
lose confidence and to terminate the contract on 22 October 2008. He equally argues
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that the Football Federation T regulations are subsidiary to the FIFA regulations and
insists he terminated the employment contract in accordance with its terms.
20.
In its duplica, the Respondent / Counter-Claimant repeats that the Claimant / CounterRespondent was in breach of the employment contract for not giving prior notice
before terminating the contract.
21.
The Respondent / Counter-Claimant also clarifies that it did not attempt to unilaterally
reduce the Claimant / Counter-Respondent’s remuneration for the 2007-08 season, but
that this was only an offer made to the Claimant / Counter-Respondent.
22.
In January 2009, the Claimant / Counter-Respondent signed an employment contract
with the club L valid until 30 June 2012, a copy of which has been made available by
the Claimant / Counter-Respondent upon FIFA’s request.
23.
The club L, states that the claim lodged by the Respondent / Counter-Claimant should
be entirely rejected and sees no reason for being jointly liable for any compensation
due to the Respondent / Counter-Claimant.
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 9 December 2008.
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. article 21 par. 2 and 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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2010) 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
player and a 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 2 of the Regulations on the Status and Transfer of Players (editions 2009 and
2010), and considering that the present claim was lodged on 9 December 2008, the
2008 edition of the said regulations (hereinafter: 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 acknowledged that the Claimant / Counter-Respondent and the Respondent /
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Counter-Claimant signed an employment contract on 2 June 2006, valid until 31 May
2009.
5.
The Claimant / Counter-Respondent, on the one hand, maintains that the Respondent /
Counter-Claimant was to be held liable for the early termination of the employment
contract by failing to remit his remuneration as of July 2008. In this respect, the
Chamber recalled that, on 22 October 2008, the Claimant / Counter-Respondent had
notified the Respondent / Counter-Claimant of the termination of the employment
contract at the Respondent / Counter-Claimant’s fault invoking article III. 10 of the
employment contract. The Respondent / Counter-Claimant, on the other hand, admits
that it was in delay with certain payments due to financial difficulties, but holds that it
made payments to the Claimant almost each month at least once so that the Claimant
would not suffer financially. The Respondent / Counter-Claimant further considers that
the Claimant / Counter-Respondent should have put the Respondent / CounterClaimant in default in writing prior to proceeding with the termination of the relevant
employment contract. By failing to do so, according to the Respondent / CounterClaimant, it was in fact the Claimant / Counter-Respondent who acted in breach of
contract. Therefore, the Respondent / Counter-Claimant lodged a counterclaim against
the Claimant / Counter-Respondent asking for compensation of the non-amortised costs
incurred for the transfer of the player.
6.
In this context, the Chamber firstly focussed its attention on the said article III. 10 of the
employment contract, on the basis of which the Claimant / Counter-Respondent had
terminated the relevant employment contract, according to which the Claimant /
Counter-Respondent was entitled to unilaterally terminate the employment contract at
the Respondent / Counter-Claimant’s fault in the event of the Respondent / CounterClaimant failing to remit any payment to the Claimant / Counter-Respondent within 60
days as of the relevant due dates. Furthermore, in such event, the Respondent /
Counter-Claimant was obliged to pay the Claimant / Counter-Respondent “all payments
to the 31 May 2009”.
7.
In this regard, the Chamber took into account that the Claimant / Counter-Respondent
maintains that since 30 July 2008, apart from the partial payment of EUR 30,000
relating to the EUR 160,000 instalment that fell due on 30 July 2008, he had received
no further payments from the Respondent / Counter-Claimant. In this respect, it was
noted that in accordance with the employment contract, the player’s salaries were to
be remitted by the Respondent / Counter-Claimant to the Claimant / CounterRespondent from August to May at the end of the relevant month and that the
aforementioned instalment of EUR 160,000 fell due on 30 July 2008.
8.
The Chamber then reverted to the Respondent / Counter-Claimant’s statement that it
had made payments to the Claimant / Counter-Respondent almost each month at least
once so that the Claimant / Counter-Respondent would not suffer financially. The
members of the Chamber highlighted that such statement had not been corroborated
by the Respondent / Counter-Claimant with any documentary evidence in accordance
with art. 12 par. 3 of the Procedural Rules, which stipulates that any party deriving a
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right from an alleged fact shall carry the burden of proof. In fact, the Respondent /
Counter-Claimant had failed to submit any documentation demonstrating that it had
fulfilled its contractual obligations with respect to the EUR 160,000 instalment that fell
due on 30 July 2008 and the Claimant / Counter-Respondent’s salary as of August 2008
as well as the various contractual bonuses claimed by the player.
9.
In this context, the members of the Chamber deemed it fit to point out that article III.
10 of the employment contract clearly includes the condition of 60 days of delay of any
(emphasis added) payment owed by the Respondent / Counter-Claimant to the
Claimant / Counter-Respondent to be fulfilled in order for the Claimant / CounterRespondent to be entitled to terminate the employment contract. From the above
considerations (points II./7. and II./8. above), it can be concluded that such condition
was met when the Claimant / Counter-respondent notified the Respondent / CounterClaimant of the termination of the relevant employment contract on 22 October 2008.
10.
The Chamber then turned to the Respondent / Counter-Claimant’s position that the
Claimant / Counter-Respondent had to serve a default notice before terminating the
contract. In this respect, first and foremost, the members of the Chamber pointed out
that the relevant article III. 10 of the employment contract does not include any such
obligation on the part of the player in order for the said article to be validly applied.
Furthermore, for the sake of good order, the Chamber pointed out that the
circumstance as to whether or not a player put a club in default of its obligations prior
to proceeding with the termination of an employment contract does not constitute the
sole criterion that may be taken into account by the Chamber when establishing which
party is to be held liable for breach of contract and that such circumstance may be
taken into account on a case-by-case basis.
11.
In continuation, reverting to the Respondent / Counter-Claimant’s position that the
Claimant / Counter-Respondent had left the Respondent / Counter-Claimant without its
permission, on account of the aforementioned considerations (cf. points II./8. and II./9.
above), the Chamber deemed it fit to point out that the Claimant / CounterRespondent had valid reasons to leave the Respondent / Counter-Claimant.
Furthermore, the Chamber emphasised once more that on the basis of article III. 10 of
the employment contract the Claimant / Counter-Respondent was entitled to terminate
the employment contract on 22 October 2008, the conditions contained in the relevant
article having been fulfilled.
12.
For all these reasons, the Chamber decided to reject the counterclaim lodged by the
Respondent / Counter-Claimant and to accept the Claimant / Counter-Respondent’s
argumentation according to which the Respondent had acted in breach of the
employment contract without just cause by failing to remit the Claimant / CounterRespondent’s remuneration as of July 2008.
13.
Having established that the Respondent / Counter-Claimant is to be held liable for the
early termination of the employment contract without just cause, the Chamber
focussed its attention on the consequences of such breach of contract. Taking into
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consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant
/ Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant an
amount of money as compensation for breach of contract in addition to any
outstanding payments on the basis of the relevant contract.
14.
First of all, the Chamber reverted to the Claimant / Counter-Respondent’s financial
claim, which includes outstanding remuneration of EUR 250,000 as from July 2008, i.e.
EUR 130,000 pertaining to the EUR 160,000 instalment that fell due on 30 July 2008 and
EUR 36,000 relating to monthly salaries as of August 2008 until October 2008. The
members of the Chamber recalled that the Respondent / Counter-Claimant failed to
demonstrate that it had in fact paid the Claimant / Counter-Respondent’s remuneration
as from July 2008 onwards. In addition, the Claimant / Counter-Respondent asks to be
awarded payment of various match bonuses in accordance with the employment
contract, i.e. the amount of EUR 7,058.84 for 2 out of 34 matches in accordance with
the relevant contractual provision, EUR 2,500 for one appearance in a match relating to
the Cup T and EUR 6,176.49 for matches missed through injury. In this regard, although
the Claimant / Counter-Respondent failed to remit evidence of his participation in the
relevant matches, the Chamber recalled that the Respondent / Counter-Claimant had
acknowledged that the Claimant / Counter-Respondent was fielded in 2 league
matches, but did not mention the Cup T match for which the Claimant / CounterRespondent required payment of the match appearance fee.
15.
Consequently, taking into account the documentation remitted by the Claimant /
Counter-Respondent to substantiate his claim and the fact that the employment
contract was considered terminated as of 22 October 2008, the Chamber decided that
the Respondent / Counter-Claimant is liable to pay to the Claimant / CounterRespondent the amount of EUR 173,058 relating to payments due to the Claimant /
Counter-Respondent as from July 2008 up to and including October 2008 in accordance
with the employment contract.
16.
In addition, taking into consideration the Claimant / Counter-Respondent’s claim and
the Chamber’s constant jurisprudence in this respect, the Chamber decided to award
the Claimant / Counter-Respondent interest at the rate of 5% p.a. as of 13 November
2008 over the total above-mentioned amount relating to the outstanding
remuneration.
17.
In continuation, the Chamber focussed 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.
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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.
Article III. 10 of the employment contract (cf. no. I./2. above) clearly sets forth that in
the event of the Respondent / Counter-Claimant failing to remit any payment to the
Claimant / Counter-Respondent within 60 days as of the relevant due dates, the
Claimant / Counter-Respondent was entitled to terminate the employment contract
and the Respondent / Counter-Claimant was obliged to pay to the Claimant / CounterRespondent “all payments to the 31 May 2009”, i.e. the date of expiry of the relevant
employment contract. In this regard, the Chamber concluded that the aforementioned
article provides for the consequences in the event of the termination of the
employment contract without just cause and shall thus be taken into consideration
when establishing the amount of compensation payable by the Respondent / CounterClaimant to the Claimant / Counter-Respondent in the light of the breach of the
employment contract.
20.
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 31 May
2009, taking into account that the player’s salary until October 2008 and the
contractual instalment of EUR 160,000 are included in the calculation of the
outstanding remuneration (cf. no. II./15. above). Consequently, the Chamber concluded
that the amount of EUR 84,000 (i.e. salary as from November 2008 until May 2009)
serves as the basis for the final determination of the amount of compensation for
breach of contract.
21.
Indeed, in January 2009, the Claimant / Counter-Respondent found employment with
the club, L. In accordance with the pertinent employment contract which has been
made available by the Claimant / Counter-Respondent, valid until 30 June 2012, the
Claimant was entitled to receive, until 31 May 2009, the total remuneration in country
P amounting to the equivalent of EUR 26,343 and therewith enabled to reduce his loss
of income. Consequently, according to the constant practice of the Dispute Resolution
Chamber, such remuneration under the new employment contract shall be taken into
account in the calculation of the amount of compensation for breach of contract.
22.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent / CounterClaimant must pay the amount of EUR 57,657 to the Claimant / Counter-Respondent as
compensation for breach of contract.
23.
Finally, the Dispute Resolution Chamber held that the Claimant / Counter-Respondent’s
claim for legal costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence.
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24.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant / Counter-Respondent are
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, B, is partially accepted.
2.
The Respondent / Counter-Claimant, K, has to pay to the Claimant / CounterRespondent, B, within 30 days as from the date of notification of this decision,
outstanding remuneration amounting to EUR 173,058 plus interest at the rate of 5%
p.a. due as of 13 November 2008 until the date of effective payment.
3.
The Respondent / Counter-Claimant, K, has to pay to the Claimant / CounterRespondent, B, compensation for breach of contract amounting to EUR 57,657 within
30 days as from the date of notification of this decision. In the event that this amount
of compensation is not paid within the stated time limit, interest at the rate of 5% p.a.
will fall due as of expiry of the 30 day time limit until the date effective payment.
4.
In the event that the amounts due to the Claimant / Counter-Respondent, B, in
accordance with the above-mentioned numbers 2. and 3. are not paid by the
Respondent / Counter-Claimant, K, within the stated time limits, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
5.
Any further request filed by the Claimant / Counter-Respondent, B, is rejected.
6.
The counterclaim of the Respondent / Counter-Claimant, K, is rejected.
7.
The Claimant / Counter-Repondent, B, is directed to inform the Respondent / CounterClaimant, K, 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. 63 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:
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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
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