Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 16 November 2012,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
Player Z, from country C
as Claimant
against the club,
Club R, from country L
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1.
On 8 April 2009, player Z from country C (hereinafter: the Claimant), and the, Club R
from country L (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract) valid as from 1 April 2009 until 30 June 2010 as well as an
annex to the contract with the same duration.
2.
According to the contract in combination with the annex, the Claimant was entitled
to receive for the sporting season 2008/2009:
monthly salary of (currency fo country L) gross 6’779
bonus for official matches of EUR 200 net per match if the player participates in
any official match of the representative men team of the club for at least 45
minutes;
car (Skoda Roomster);
accommodation.
3.
For the sporting season 2009/2010 the Claimant was entitled to receive:
monthly salary to be negotiated until 30 June 2009, but at least EUR 5’000 net;
bonus for official matches of EUR 300 net if the player participates in any
official match of the representative men team of the club;
car (Skoda Roomster);
accommodation.
4.
On 13 September 2009, the Claimant lodged a complaint before FIFA against the
Respondent. In his arguments, the Claimant pointed out that he received an e-mail
from the Respondent, in which the Respondent wished to terminate the
employment relationship as of 15 June 2009 and to pay the Claimant the salary for
June 2009. This termination letter came to him as a surprise, but in his reply to the
Respondent’s e-mail, on 19 June 2009, he stated that he was willing to terminate
the employment contract if he received compensation in the amount of EUR 20’000.
After several phone conversations with the Respondent’s director, the Claimant
received an e-mail, in which the Respondent asserted that it had paid him the salary
for June 2009. Not having received any monies though, the Claimant sent a last
reminder on 24 August 2009, in which he asked the Respondent to pay his
outstanding receivables, without receiving an answer from the latter.
5.
Despite having been invited by FIFA to do so, the Respondent has failed to respond
to the Claimant’s claim.
6.
In particular, the Claimant claimed the payment of the total outstanding
remuneration of EUR 12’000, consisting in the following amounts:
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EUR 8’000 as outstanding salary for June and July 2009 (for June EUR 3’000 and
for July EUR 5’000);
EUR 1’600 as bonus for 8 matches played in April and May 2009;
EUR 900 for the non-delivery of the car from April until June 2009 (EUR 300 per
month);
EUR 1’500 for the non-delivery of the apartment from April until June 2009
(EUR 500 per month).
7.
On 6 May 2010, the Dispute Resolution Chamber (DRC) rendered a decision in the
captioned matter, and decided to partially accept the Claimant’s claim. In this
regard, the Respondent was ordered to pay the total outstanding amount of EUR
9,600 to the Claimant.
8.
On 20 June 2010, the Claimant informed FIFA that the Respondent had failed to
comply with the decision passed by the DRC and did not pay the amount in dispute.
Therefore, he requested that the matter shall be forwarded to the FIFA Disciplinary
Committee.
9.
On 9 September 2010, the Claimant lodged a second complaint before FIFA against
the Respondent claiming the payment of compensation for breach of contract in
the total amount of EUR 104,800, consisting in the following amounts:
EUR 55,000 net for the salaries of August 2009 until June 2010 (11 x EUR 5,000);
EUR 9,000 net bonus for the season 2009/2010 (30 matches in which the player
would have participated for at least 45 minutes; 30 x EUR 300);
EUR 32,000 for taxes and social security contributions over the amount EUR
64,000 (claimed amounts EUR 55,000 + EUR 9,000), i.e. estimated 50% of EUR
64,000;
EUR 3,000 for taxes and social security contributions over the amount EUR 6,000
(for the salaries of April and May 2009, 2 x EUR 3,000), i.e. estimated 50% of
EUR 6,000; or subsidiary to provide the player with written evidence that the
club has duly paid such contributions to the competent authorities;
EUR 4,800 for taxes and social security contributions over the amount EUR 9,600
net (as per decision of the DRC of 6 May 2010), i.e. estimated 50% of EUR 9,600;
EUR 1,000.
10.
Furthermore, the Claimant requests that the Respondent shall provide salary
receipts for the period of April 2009 until June 2010.
11.
In his position, the Claimant explained that besides his claim for compensation, he
claims the above-mentioned amounts for taxes and social security contributions on
the net amounts, because in case the Respondent does not declare them in country
L he could be made responsible for paying them at the tax office in country C on
the gross amounts he would receive.
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12.
Despite having been invited by FIFA to do so, the Respondent did not reply to the
Claimant’s claim of 9 September 2010.
13.
Upon FIFA’s request, the Claimant stated that he did not find new employment until
30 June 2010.
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, it
took note that the second complaint, object of the present dispute, was submitted
to FIFA on 9 September 2010. Consequently, the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter
at hand (cf. art. 21 par. 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 in
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2009) (hereinafter: the Regulations), it is competent to decide on
the present litigation, to the extent that concerns an employment-related dispute
with an international dimension between a player from country C and a club from
country L.
3.
However, the Chamber noted that the Claimant has already lodged a claim in the
present matter on 13 September 2009 involving the same parties, which was
decided by the Dispute Resolution Chamber on 6 May 2010. In this respect, the
members of the Chamber had to first establish if the Dispute Resolution Chamber
has competence to deal with the claim at stake by virtue of the legal principle of res
iudicata. The Chamber wished to emphasise that the application of such legal
principle must be analysed ex officio by the deciding body.
4.
Accordingly, the Chamber deemed it appropriate to recall that on the basis of the
principle of res iudicata, a decision-making body is not in a position to deal with a
claim in the event that a deciding body has already dealt with the exact same
matter and already passed a final and binding decision relating to such matter.
Indeed, the parties to the dispute as well as the deciding authority are bound by the
final and binding decision previously passed.
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5.
In continuation, the Chamber stated that the decision of the DRC of 6 May 2010 was
final and binding, which is one of the criteria in order to establish as to whether the
principle of res iudicata is applicable.
6.
Furthermore, the Chamber underlined that the principle of res iudicata is applicable
if cumulatively and necessarily the parties to the disputes and the object of the
matter in dispute are identical.
7.
In this respect, the Chamber recalled that the criterion of the identity of the parties
is given if the parties to the disputes are the same. Having said this, the Chamber
noted that both the Claimant and the Respondent were the parties in the
proceedings in front of the Dispute Resolution Chamber in the first claim of 13
September 2009 as well as in the dispute at stake.
8.
The Chamber then turned its attention to the criterion of the object of the matter
in dispute.
9.
In this respect, the members of the Chamber started by acknowledging that the
identity of the subject matter is given if the requests filed by the Claimant in the
two claims are identical.
10.
In this context and from the information and documentation on file, the Chamber
could verify, on the one hand, that the Claimant initiated legal proceedings in front
of the DRC on 13 September 2009 against the Respondent in order to obtain
outstanding monies regarding at least the months of April to July 2009 owed to him
by the Respondent and requested to be allowed to resume duty with the
Respondent.
11.
The DRC rendered a decision on 6 May 2010, according to which it partially
accepted the Claimant’s claim and ordered the Respondent to pay the total
outstanding amount of EUR 9,600 to the Claimant, being the salaries of June and
July 2009 (EUR 8,000) as well as match bonuses for the period of April and May 2009
(EUR 1,600).
12.
From the contents of the aforementioned decision, the DRC noted, in particular,
that the deciding body had only ruled that the Respondent had to pay outstanding
monies in view of the request of the Claimant at that time.
13.
On the other hand, the Claimant initiated legal proceedings in front of the DRC on
9 September 2010 in order to establish that Respondent had breached the
employment contract without just cause, as it had failed to comply with its
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contractual obligations towards him and consequently to be awarded compensation
for such breach.
14.
From the contents of the aforementioned claim, the DRC noted, in particular, that
the DRC was to decide as to whether there was a potential breach of contract by
the Respondent, a question which the DRC did not address in its decision of 6 May
2010 in view of the Claimant’s first claim.
15.
In view of the aforementioned, the Dispute Resolution Chamber held that both
legal actions were based on the same employment contract and involved the same
parties, however, both actions were to be considered separate, since the first claim
aimed at establishing the Respondent’s liability to fulfill part of its financial
obligations towards the Claimant during the time in which the Claimant had still
been under contract with the Respondent, whereas the second claim aims at
establishing the Respondent’s potential liability for the premature and unilateral
termination employment contract without just cause and the consequences thereof.
16.
On account of the above, the Chamber unanimously determined that the object of
the matter in both disputes is not identical and that, therefore, the claim is not
affected by the principle of res iudicata.
17.
Therefore, the Chamber came to the firm conclusion that it was competent to
decide on the present claim.
18.
In continuation, the Chamber analysed which edition of the Regulations should be
applicable as to the substance of the matter concerning the contractual dispute
between the parties. In this respect, he confirmed that, in accordance with art. 26
par. 1 and par. 2 of the Regulations (editions 2009 and 2010) and considering that
the present matter was submitted to FIFA on 9 September 2010, the 2009 edition of
said Regulations is applicable to the present matter as to the substance.
19.
The competence of the Dispute Resolution Chamber and the applicable regulations
having been established, the DRC entered into the substance of the matter. In doing
so, it started to acknowledge the facts of the case as well as the documents
contained in the file.
14.
In this regard, it is established that the parties signed an employment contract valid
as from 1 April 2009 until 30 June 2010 as well as an annex to the contract with the
same duration. Furthermore, the Claimant alleges that on 15 June 2009, the
Respondent informed him that it wished to terminate the employment relationship,
which the Claimant contested. On 24 August 2009, the Claimant sent one final
reminder to the Respondent in order for the latter to comply with its contractual
obligations, to no avail.
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20.
The Chamber thus noted that the Claimant claims that the Respondent is to be held
liable for breach of contract without just cause and to pay him compensation in the
amount of EUR 104,800, made up of the following amounts:
EUR 55,000 net for the salaries of August 2009 until June 2010 (11 x EUR 5,000);
EUR 9,000 net bonus for the season 2009/2010 (30 matches in which the player
would have participated for at least 45 minutes; 30 x EUR 300);
EUR 32,000 for taxes and social security contributions over the amount EUR
64,000 (claimed amounts EUR 55,000 + EUR 9,000), i.e. estimated 50% of EUR
64,000;
EUR 3,000 for taxes and social security contributions over the amount EUR 6,000
(for the salaries of April and May 2009, 2 x EUR 3,000), i.e. estimated 50% of
EUR 6,000; or subsidiary to provide the player with written evidence that the
club has duly paid such contributions to the competent authorities;
EUR 4,800 for taxes and social security contributions over the amount EUR 9,600
net (as per decision of the DRC of 6 May 2010), i.e. estimated 50% of EUR 9,600;
EUR 1,000.
21.
Subsequently, the Dispute Resolution Chamber noted that the Respondent, for its
part, failed to present its response to the claim of the Claimant, in spite of having
been invited to do so on several occasions. In this way, so the Chamber deemed, the
Respondent renounced its right to defence and, thus, accepted the allegations of
the Claimant.
22.
Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take
a decision upon the basis of the documentation already on file; in other words,
upon the statements and documents presented by the Claimant.
23.
In view of the above, the Chamber went on to analyse as to whether the
employment contract signed between the parties had been breached and, in the
affirmative, which party is to be held liable for breach of contract.
24.
In doing so, the Chamber took into account that, according to the Claimant, his
salaries as from August 2009 had remained unpaid and that the Respondent has not
contested such allegation.
25.
On account of the above circumstances, the Chamber established that the
Respondent had obviously no longer been interested in the Claimant’s services by
failing to remit his salaries without any valid reason during a considerable amount
of time (11 months), i.e. as from April 2009 until June 2010, which conduct
constitutes, in line with the long-lasting jurisprudence of the Chamber, a clear
breach of contract. Accordingly, the Chamber concurred that the Respondent
breached the employment contract without just cause.
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26.
Having established that the Respondent is to be held liable for the breach of the
employment contract without just cause, the Chamber focussed its attention on the
consequences of such breach. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant is entitled to receive from the
Respondent an amount of money as compensation for breach of contract in
addition to any outstanding payments on the basis of the relevant contract.
27.
In continuation, the members of the Chamber recapitulated that, in accordance
with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the
basis of the dispute, with due consideration for the law of the country concerned,
the specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
28.
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.
In this regard, the Chamber established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
29.
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 2010. Consequently, the Chamber concluded that the amount of EUR 55,000
(i.e. salary as from August 2009 until June 2010) serves as the basis for the final
determination of the amount of compensation for breach of contract.
30.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been able to reduce his loss of income. According to
the constant practice of the Dispute Resolution Chamber, 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 the Claimant had not signed any other employment
contract until 30 June 2010.
32.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
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pay the amount of EUR 55,000 to the Claimant as compensation for breach of
contract.
33.
Moreover, the Chamber analysed the request of the Claimant to be awarded with
possible bonuses that he could have achieved amounting to EUR 9,000. The DRC
considered that since the Claimant did not render his services for the Respondent as
of August 2009, the Claimant could not have participated in the matches played by
the Respondent. Therefore, the members of the Chamber decided to reject the
claim for bonuses.
34.
Finally, and with regard to the claim of the Claimant concerning the payment of
taxes over the amount due to him as per the contract, the DRC recalled the general
principle of burden of proof stipulated in the art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall
carry the burden of proof. As a consequence, the Chamber noted that the Claimant
did not submit any documentary evidence in respect of the aforementioned
allegations and therefore, his request in this regard had to be rejected.
35.
On account of all the above, the Chamber decided to partially accept the Claimant’s
claim and that the Respondent must pay him an amount of EUR 55,000 as
compensation for breach of contract without just cause.
36.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player Z, is admissible.
2.
3.
The claim of the Claimant, Player Z, is partially accepted.
The Respondent, Club R, is ordered to pay to the Claimant, Player Z, within 30
days as from the date of notification of this decision, compensation for breach of
contract in the amount of EUR 55,000.
4.
If the aforementioned sum is not paid within the above-mentioned time limit,
interest at the rate of 5% per year will fall due as of expiry of the time limit until
the date of effective payment and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for its consideration and a formal
decision.
5.
Any further claims lodged by the Claimant, Player Z, are rejected.
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6.
The Claimant, player Z, is directed to inform the Respondent, Club R, 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
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