Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
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 I, from Country L,
as Claimant
against the club,
Club FC V, from Country W
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 9 June 2009, the player I from Country L (hereinafter: player I or Claimant) and
the club FC V from Country W (hereinafter: club or Respondent) signed an
employment contract valid as from 1 July 2009 until 1 July 2012.
2.
Furthermore, an annexe to the employment contract was signed between the
parties, bearing no date of signature, stipulating the same duration as the
contract and in accordance with which the player was to receive inter alia the
following monies and fringe benefits:
a. USD 15,000 as salary;
b. USD 200,000 for the 2009-10 season payable in July;
c. USD 250,000 for the 2010-11 season payable in July;
d. USD 300,000 for the 2011-12 season payable in July;
e. Apartment, food, car;
f. 3 air tickets per season Country W-Country L.
3.
Art. 3.5.5. of the employment contract inter alia stipulates that the club is entitled
to unilaterally decrease any payments due to the player or to terminate the
contract if the player does not fulfil or fulfils the provisions of the contract in an
improper or incomplete way.
4.
Furthermore, art. 4.4 of the employment contract stipulates, inter alia, that “If the
player fails to arrive to the club in time or leaves the club without permission, the
matter of his salary payment should be settled in accordance with the current
legislature of Country W, and any contract provisions referring to payments
should be suspended for the period of his absence.”
5.
In addition, according to art. 7.3 of the employment contract, the player is subject
to financial sanctions and no payments are to be executed, in the event that the
player arrives late at or leaves the club without authorisation or evades his duties
in any other way.
6.
On 18 January 2011, the player, via his legal representative, put the club in
default of payment of the amount of USD 250,000 that fell due in July 2010 as
well as of his salary relating to October 2010 until January 2011 totalling USD
60,000. In said letter, the player considered such failure to pay his dues to be a
breach of contract and informed the club that in accordance with art. 5 of the
annexe to the contract, he was at the club’s disposal to find an amicable solution.
7.
On 10 June 2011, the player, via his legal representative, once again notified the
club of its failure to pay his salaries, which he considered to be a breach of
contract by the club leading to the termination of the employment contract.
8.
On 27 June 2011, the player lodged a claim against the club in front of FIFA
maintaining that he terminated the employment contract with just cause due to
the club’s failure to remit his remuneration.
9.
The player explained that only in March 2011 did the club pay his salaries for
October 2010 until January 2011, whereas he had continued rendering his services
to the club, in the light of the fact that he could not have found another club
during the course of the season.
10.
The player submitted that, since March 2011, the club had ceased the payment of
his remuneration and still owes him his salaries relating to March, April, May and
June 2011 as well as the USD 250,000 instalment that fell due in July 2010 in
accordance with the annexe to the employment contract.
11.
Therefore, the player requested that the employment contract be considered
terminated with just cause and asked to be awarded payment of the total amount
of USD 859,600, which was detailed as follows:
a. USD 250,000 (July 2010 instalment);
b. USD 60,000 (Salaries as from March until June 2011);
c. USD 300,000 (July 2011 instalment);
d. USD 180,000 (Salaries for the 2011-12 season – 12 x USD 15,000)
e. USD 6,000 (air tickets for 2010-11 season – 3 x USD 2,000);
f. USD 19,200* (apartment, food, car as from January until June 2011)
g. USD 6,000 (air tickets for 2011-12 season – 3 x USD 2,000)
h. USD 38,400 (apartment, food, car for the 2011-12 season: 12 x USD 3,200)
* The player estimated the monies related to the apartment, food, and a car at
USD 3,200 per month.
12.
In reply to the claim, the club pointed out that the player repeatedly violated the
terms of the employment contract by missing various training camps (in summer
2009, January 2010, June 2010), as a result of which the club decided, on 5 July
2010, to reject the payment of the lump sum for the 2010-11 season. In addition,
according to the club, the player was warned that if such conduct would persist,
his monthly salary would be reduced.
13
The club asserted that the player then missed the fourth training camp in January
2011, as he had not returned from vacation. In addition, after the end of the
2010-11 season he allegedly went on vacation and had not yet returned in spite of
the club’s attempts to communicate with him.
14.
In support of its position, the club presented a copy of its various correspondence
addressed to the “PFL of Country W” or the “Premier League of Country W” in
order to inform these organisations about the player’s alleged absence from
training camps and the club’s decision to stop payment of his salary for the period
of his absence. In addition, the club presented a copy of various “acts of absence”
signed by staff members of the club, which refer to days of absence in the
following months: June 2009, January 2010, June 2010, January 2011, June 2011.
15.
In its letter dated 22 June 2011 addressed to the “Premier League of Country W”
the club pointed out that the player had not yet returned from vacation and that
he had not received his remuneration “for the last season” because of his
absence. In said letter, the club furthermore pointed out that the player would
receive “all the earnings” in the club’s offices upon his return.
16.
The club also presented a copy of its correspondence dated 24 June 2011
addressed to the player, in which it put the player in default of his obligations in
the light of his absence and reminding him of the cut of the July 2010 instalment
given his systematic violation of the terms of the employment contract. In said
letter, the club further set a time limit of 7 days in which the player should return
to the club and fulfil the terms of the employment contract.
17.
The club pointed out that it started disciplinary proceedings against the player on
15 July 2011, as a result of which, on 29 July 2011, the Disciplinary Committee of
the league of country W suspended the player for a period of 6 months
apparently based on his continued absence as of June 2011.
18.
On 1 December 2011, the club informed FIFA that it had sent a letter and a ticket
reservation to the player in order to try to have him return to the club.
19.
In his replica, the player pointed out that the club has not contested the
outstanding remuneration and expenses.
20.
As regards the alleged late returns to the club, the player asserted that these
were related to the club having omitted to take care of his air ticket or visa and to
extra days off granted to the player for his wedding. He added that his absence
on 21 June 2011 was related to the fact that his remuneration had remained
unpaid during many months.
21.
In spite of having been invited to do so, the club did not present any final
comments.
22.
At FIFA’s request to inform about his employment situation as of summer 2011,
the player indicated that he had not found other employment until July 2012.
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 June 2011. 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 from Country L and a club from
Country W.
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
(edition 2010), and considering that the present claim was lodged on 27 June
2011, the 2010 edition of 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 started by acknowledging the above-mentioned facts as well as the
arguments and the documentation submitted by the parties.
5.
The Chamber acknowledged that the Claimant and the Respondent signed an
employment contract on 9 June 2009 valid as from 1 July 2009 until 1 July 2012 as
well as an annexe to such contract valid during the same period of time. The
Claimant, on the one hand, maintains that he terminated the employment
contract with just cause on 10 June 2011 as a result of his remuneration having
remained unpaid by the Respondent since March 2011. The Respondent, on the
other hand, rejects such claim and submits that the Claimant had acted in
violation of his contractual obligations due to his alleged repeated absence from
training camps and failure to resume his duties at the club after his vacation in
June 2011.
6.
The Chamber highlighted that the underlying issue in this dispute, considering the
conflicting position of the parties, was to determine whether the employment
contract had been terminated by the Claimant on 10 June 2011 with or without
just cause. The Chamber also underlined that, subsequently, it would be necessary
to determine the financial and/or sporting consequences for the party that is to be
held liable for the early termination of the pertinent employment contract.
7.
Indeed, from the aforementioned facts, it can be noted that the Claimant
terminated the employment contract in writing on 10 June 2011, as, according to
the Claimant, the Respondent had failed to remit his remuneration as of the
month of March 2011 as well as the lump sum of USD 250,000 that had fallen due
in July 2010.
8.
On a side note, considering that the Claimant’s corresponding allegation had not
been refuted by the Respondent, the members of the Chamber noted that the
Respondent had already once been in default of payment of the Claimant’s
remuneration in the beginning of 2011.
9.
More importantly, the Chamber took into account that the Respondent had not
contested the Claimant’s allegation that his remuneration as of March 2011 had
remained outstanding, i.e. since three months at least, as well as the
aforementioned lump sum at the time when the Claimant proceeded with the
termination of the employment contract.
10.
However, the members of the Chamber noted that, in its defence, the Respondent
alleged that the Claimant systematically acted in breach of his contractual
obligations due to repeated absence from training camps and failure to resume
duty at the club following his vacation in June 2011.
11.
In continuation, after careful study of the documents that were presented by the
Respondent in this respect, the Chamber concluded that the documentation on
file demonstrates that the Respondent had put the Claimant in default of his
obligations on 24 June 2011, i.e. after the Claimant had terminated the
employment contract. In this regard, the Chamber deemed it fit to point out that
the Respondent’s apparent notification in late June 2011 of the Claimant’s alleged
misconduct to the “PFL of Country W” and the “Premier League of Country W”
cannot be considered as a communication of contractual default to the player. In
addition, the Chamber wished to emphasise that the decision passed by the
Disciplinary Committee of the football league of country W on 29 July 2011, by
means of which the Claimant was suspended for a period of six months, was
based on disciplinary proceedings initiated by the Respondent on 15 July 2011, i.e.
after the termination of the employment contract by the Claimant.
12.
Furthermore, for the sake of completeness, the Chamber remarked that the
Claimant’s explanation with respect to his late return to the club during the
execution of the employment relationship, i.e. the club had omitted to take care
of his air ticket or visa and had granted extra days off for his wedding, has not
been refuted by the Respondent. In this context, again, the Chamber stressed that
there is no documentation on file demonstrating that the Claimant had been
personally put in default by the Respondent of any alleged unjustified absence at
any time prior to 24 June 2011.
13.
In continuation, the members of the Chamber noted that the aforementioned
alleged infringements by the Claimant of his contractual duties were a reason for
the Respondent to decide on 5 July 2010 not to pay to the Claimant the lump sum
of USD 250,000 that fell due in July 2010 in accordance with the annexe to the
employment contract.
14.
In this context, although the following contractual terms were not explicitly
referred to by the Respondent in its reply to the claim, the Chamber recalled that
according to the employment contract, the club was inter alia entitled to
unilaterally decrease any payments due to the player if the latter does not fulfil or
fulfils the contractual terms in an improper or incomplete way (cf. art. 3.5.5. of
the employment contract). Furthermore, the employment contract stipulates that
in the event of the player arriving late at the club or leaving the club without
permission, his salary payment was to be settled in accordance with law of
Country W and suspended for the period of absence (cf. art. 4.4 of the
employment contract).
15.
Regardless of the question as to whether such measures as set out in the
aforementioned contractual terms would have been applicable to the situation in
the present matter, the Chamber agreed that a decrease in any payments to the
player by the club could not have been validly applied on the basis of the
aforementioned art. 3.5.5 due to the unilateral and arbitrary character of such
clause. Furthermore, art. 4.4 of the employment contract merely refers to a
suspension (emphasis added) of the player’s receivables for a period of absence
and, thus, on this basis the Respondent would not have been in the position to
basically cancel payments due to the Claimant in accordance with the
employment contract and its annexe.
16.
In continuation, on account of the above, the Chamber concluded that the
Respondent had no valid reasons not to pay the Claimant’s receivables as of
March 2011 and the lump sum of USD 250,000 that fell due in July 2010.
17.
Consequently, in the light of the foregoing considerations, the Chamber decided
that the Claimant had just cause to terminate the employment contract on 10
June 2011 and that the Respondent is to be held liable for the early termination
of the employment contract with just cause by the Claimant.
18.
Having established the above, the Chamber focussed its attention on the
consequences resulting from the early termination of the employment contract
with just cause by the Claimant. 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 employment
contract and its annexe.
19.
The Chamber then reverted to the Claimant’s financial claim, which includes inter
alia outstanding salaries as from March 2011 and the lump sum of USD 250,000
that fell due in July 2010, and recalled that the Respondent had not contested
that this remuneration had remained outstanding, while the Chamber established
that the Respondent had had no valid reason not to pay these monies to the
Claimant. Consequently, taking into account that the contract was considered
terminated as of 10 June 2011, at which time the Claimant’s salary for June 2011
had not yet fallen due, in accordance with the principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the
amount of USD 295,000 relating to the payments due to the Claimant in
accordance with the employment contract and its annexe for services rendered as
from March 2011 up to and including May 2011, totalling USD 45,000, as well as
the lump sum of USD 250,000 that fell due in July 2010. Equally, as regards the
Claimant’s claim pertaining to air tickets and on the basis of the information
provided by FIFA Travel and referring to the relevant terms of the annexe to the
employment contract, the Chamber decided that the Respondent must pay to the
Claimant the amount of USD 4,200 for three air tickets Country W-Country L for
the 2010-11 season. In the absence of any monetary value in the contractual
condition relating to an apartment, food, and a car and of any documentary
evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules), the
Chamber had to reject the Claimant’s claim amounting to USD 19,200 relating to
said fringe benefits.
20.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent 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 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.
21.
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
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party 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.
22.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
23.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
new contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of
art. 17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and a new contract in the calculation of the amount of
compensation.
24.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
until 1 July 2012, taking into account that the player’s remuneration until May
2011 is included in the calculation of the outstanding remuneration (cf. no. II./19.
above). Consequently, the Chamber concluded that the amount of USD 495,000
(i.e. the Claimant’s remuneration during the time remaining under the relevant
employment contract and its annexe as from 1 June 2011 until 1 July 2012) serves
as the basis for the final determination of the amount of compensation for breach
of contract.
25.
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 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.
26.
The members of the Chamber noted that the Claimant had not found any new
employment after the termination of the employment relationship with the
Respondent. In this context, the Chamber wished to emphasise that the six
months’ suspension of the Claimant by the Disciplinary Committee of country W
league (cf. point II./11. above) undoubtedly has impeded the Claimant from
finding another employer and, therefore, from mitigating his damages.
27.
On account of all of the above, the Chamber decided that the Respondent, FC V,
is liable to pay to the Claimant the amount of USD 299,200 as outstanding
remuneration and the amount of USD 495,000 as compensation for breach of
contract.
28.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player I, is partially accepted.
2.
The Respondent, FC V, has to pay to the Claimant outstanding remuneration in the
amount USD 299,200 within 30 days as from the date of notification of this
decision.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount USD 495,000 within 30 days as from the date of notification of this
decision.
4.
In the event that the amounts due to the Claimant are not paid by the
Respondent within the stated time limits, 5% interest p.a. will fall due as of expiry
of the aforementioned time limits and 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 is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives). The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.: CAS directives