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 J, from country B
as Claimant
against the club
Club E, from country S
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 18 August 2006, Player J, from country B (hereinafter: the Claimant), and the Club E,
from country S (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract), valid until 30 June 2010.
2.
According to the conditions stipulated under clause 4 of the contract, the Claimant was
entitled inter alia to the following remuneration:
- Clause 4.2.1.1 established a total remuneration of EUR 450,000 for each season as
well as a sign on fee in the amount of EUR 300,000, which was to be paid in three
instalments as follows: EUR 50,000 at the sign of contract, EUR 50,000 on
10 September 2006 and EUR 200,000 on 10 October 2006;
- According to clause 4.2.1.2 the Claimant was entitled to four round trip flight tickets
to country B, for each season.
3.
Finally, clause 5.1 of the contract established inter alia that, in case the Respondent
terminates the contract without just cause or the Claimant terminates it with just cause,
the Claimant is entitled to the remaining remuneration in accordance with the contract.
4.
During the years 2008 and 2009, the Claimant was loaned to Club F, from country B,
and afterwards to Club B, from country B
5.
On 29 December 2009, after the end of both loan periods, the Respondent authorised
the Claimant to extend his vacation until 31 January 2010.
6.
On 3 June 2010, the Respondent notified the Claimant that since he did not join the
team after the loan, it considered the contract terminated as of 16 April 2010.
7.
On 24 June 2010, the Claimant lodged a claim in front of FIFA, for the alleged breach of
contract by the Respondent, requesting the amount of EUR 225,000 as follows:
- EUR 187,500 as outstanding salaries from January to May 2010, each month in the
amount of EUR 37,500;
- EUR 37,500 as compensation for the residual value of the contract, .i.e. the month of
June 2010.
8.
According to the Claimant, after having been on loan from 2008 until December 2009,
he was again at the Respondent’s disposal. Subsequently, the Claimant alleged that
after the Respondent authorised him to extend his holidays until 31 January 2010, it
failed to pay his salary as of January 2010 as well as to provide him with the return
flight ticket to country S and to register him at the country S league for the season
2009/2010. In continuation, the Claimant declared having received, on 16 March 2010, a
document from the Respondent, already signed by its executives, concerning the
mutual termination of the contract. The Claimant emphasized having strictly rejected to
sign said document.
9.
Further, the Claimant affirmed that in view of his refusal, the Respondent invited him
through a correspondence dated 1 April 2010, to present himself at the club’s premises
on 4 April 2010 in order to start individual morning and afternoon trainings which
would have lasted until 30 June 2010. The Claimant alleged having replied to the
Respondent on the same day, asking for the issuance of the flight ticket and the
payment of the outstanding salaries for the months of January, February and March
2010 within 48 hours, in order to comply with the request of the Respondent and start
Player J, from country B / Club E, from country S
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with the trainings as determined by it. Moreover, the Claimant stated having sent three
further notifications to the Respondent, concerning the same issues, on 12 and 14 April
2010 as well as 18 May 2010, which allegedly remained unanswered by the Respondent.
10.
The Claimant also enclosed a correspondence from the Respondent dated 12 April 2010,
by means of which the Respondent invited him to a new appointment on 16 April 2010.
In accordance with the aforementioned correspondence, the Respondent emphasized
that the Claimant already had an extension of holidays until 20 March 2010, which he
allegedly required, and that since that day he was absent from the team without any
valid justification. Moreover, in said correspondence the Respondent referred to the
non-appearance of the Claimant to the first invitation on 4 April 2010 and that a
reiterated non-appearance of him could conduct to a termination of the contract by the
Respondent with just cause (cf. point I.6).
11.
Finally, the Claimant asserted that despite his efforts, on 3 June 2010 he received a
notification from the Respondent, by means of which it informed him about the
termination of the contract as of 16 April 2010.
12.
The Respondent remitted its position to the claim lodged by the Claimant, declaring
that it had the right to terminate the contract, due to the non-appearance of the
Claimant to the appointments which were given to him through the Respondent’s
correspondences dated 1 and 12 April 2010, the copies of which the Claimant enclosed
to his claim. In this respect, the Respondent emphasized that according to the
Claimant’s claim, the latter himself recognised not having joined the club after the loan.
The Respondent also did not accept the Claimant’s arguments that he could not travel
back to country S because he did not receive a flight ticket from the Respondent,
considering the current situation of professional football as well as the incomes that the
Claimant had already received. Therefore, since the Claimant did not show any will or
effort to be reincorporated to the team, the Respondent considered the contract as
terminated, hence exempt to execute further payments to the Claimant. In this regard,
the Respondent also referred to the alleged applicable country S legislation, according
to which the Claimant has to obey the instructions given by the Respondent, in order to
fulfil with the provisions established in the contract, such as for instance, assist and
intervene at trainings or official games.
13.
Moreover the Respondent stated “to consider that in January 2010 (during the allowed
time-limits to require the licenses for the second period of inscriptions at mid-season
2009/2010) a tacit dismissal occurred due to the lack of appeal of the player, his lack of
occupation and the absence of remuneration, the deduction is that the employment
contract was not in force during the time period to which the player is attributing the
accrual of the amounts he claims.”
14.
The Claimant submitted his comments rejecting the Respondent’s allegation with
respect to the fact that he would have been able to assume the costs of the flight ticket,
arguing that it’s not a matter of financial capacity but a matter of contractual duty as
established in the contract signed between the parties. Furthermore, the Claimant held
that the Respondent failed to pay his salaries since January 2010, emphasizing that the
Respondent has not denied said fact in his position. Moreover, the Claimant affirmed,
having made all efforts to show his true intentions to continue and fulfil the contract,
contrary to the Respondent that never justified the non-fulfilment of salaries and
issuance of flight tickets. Additionally, the Claimant declared that the Spanish law to
which the Respondent referred to cannot be considered since, in accordance with art.
22 of the Regulations on the Status and Transfer of Players, the present dispute involves
Player J, from country B / Club E, from country S
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a club and a player with international dimension. Thus, according to the Claimant, FIFA
is competent to hear the present matter, applying the aforementioned Regulations and
in particular, its article 17. Finally the Claimant additionally required 5% interest per
year on the claimed amount, since June 2010.
15.
The Respondent remitted its final comments and insisted that the Claimant’s argument
that he did not receive the flight tickets from the club does not exempt him to travel to
the Respondent on his own costs in order to join the team. Additionally, the
Respondent enclosed a disciplinary file dated 3 April 2007 as well as several newspaper
publications, which allegedly evidenced that the Claimant already left the team without
justifications in the past and, most notably, was absent without consent from the
Respondent from 5 March 2007 until 14 March 2007. Said disciplinary file condemned
the Claimant to a penalty in the amount of EUR 9,383.06. Furthermore, the Respondent
held that the Claimant apparently repeated the same behaviour afterwards, which has
been reported in the news as well. On account of the above-stated, the Respondent
stated that a player with such records cannot use the argument of not having a flight
ticket to justify his absence.
16.
In conclusion, the Respondent affirmed that, if there would be any debts from the
Respondent towards the Claimant, it would be only the monthly salaries for the months
of January, February and March 2010, each one in the amount of EUR 2,143, due to the
fact that the contract has been terminated as of April 2010 because the Claimant didn’t
show up after the reiterated summons made by the club.
17.
Finally, the Claimant informed not having entered into any new employment
relationship between the dates 16 April 2010 and 30 June 2010. In his support he
enclosed an internal document of the country B Football Association, which stated that
the Claimant concluded an employment contract with Club M only on 1 May 2011.
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 24 June 2010, thus after
1 July 2008. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
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
country B player and a country S 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 24 June
Player J, from country B / Club E, from country S
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2010, the 2009 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.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, the
Chamber started to acknowledge the facts of the case as well as the documents
contained in the file.
5.
First of all, the Chamber acknowledged that it was undisputed by the parties that, on
18 August 2006, the Claimant and the Respondent concluded an employment contract
valid until 30 June 2010, as well as that on 29 December 2009, the Respondent
authorized the Claimant to extend his holidays until 31 January 2010, after having been
on loan during the years 2008 and 2009.
6.
In this respect, the members of the Chamber took note of the contents of the contract,
which particularly under clause 4 stipulated a remuneration in favour of the player of
EUR 450,000 as well as four round trip flight tickets to country B, for each season.
7.
At this point the members of the Chamber reviewed the claim of the Claimant, who
asserted that the Respondent is to be held liable for the breach of the contract without
just cause, since it failed to provide him with the return flight ticket to join the team
after having been on loan, to pay his salary as of January 2010 as well as to register him
at the country S league for the season 2009/2010. In this regard, the Chamber noted
that the Claimant alleged to be entitled to receive from the Respondent the aggregate
amount of EUR 225,000, consisting of EUR 187,500, corresponding to outstanding
salaries from January to May 2010, each monthly salary amounting to EUR 37,500, as
well as compensation in the amount of EUR 37,500 for the remaining period of the
contract, i.e. the month of June 2010.
8.
On the other hand, the member of the DRC took note that the Respondent rejected the
claim, affirming that actually the Claimant breached the contract by not returning to
the club after the loan periods.
9.
At this point, the DRC stated that, considering the opposite positions of both parties, it
had to analyse when the contract was terminated, by which party and with or without
just cause.
10.
In this context, the DRC proceeded to analyse the arguments of both parties. First, the
DRC noticed that the Claimant held having received, on 16 March 2010, a document
from the Respondent, concerning the mutual termination of the contract, which he held
having strictly rejected to sign.
11.
Subsequently, the members of the Chambers noted the statement of the Claimant that,
in view of his refusal the Respondent invited him on 1 April 2010, to show up on 4 April
2010, in order to start individual morning and afternoon trainings until 30 June 2010.
Further, the Chamber took note that the Claimant affirmed having replied on the same
day, i.e. 1 April 2010, asking the Respondent to issue the flight ticket as well as to pay
the outstanding salaries for the months of January, February and March 2010 within
48 hours, and that afterwards he would comply with the indications of the Respondent.
Equally, the DRC noticed that the Claimant asserted having reiterated his request on
12 and 14 April 2010 as well as on 18 May 2010, which allegedly remained unanswered
by the Respondent.
Player J, from country B / Club E, from country S
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12.
Additionally, the members of the DRC remarked that the Claimant remitted also a copy
of a correspondence from the Respondent, dated 12 April 2010, by means of which the
Respondent invited the Claimant to a new appointment on 16 April 2010, emphasizing
that the Claimant already had an extension of holidays until 20 March 2010, allegedly
required by him, and that since that day he was absent without justification.
13.
The Chamber then took note that the Claimant affirmed that despite his efforts he
received a notification from the Respondent on 3 June 2010, by means of which the
Respondent informed him that the contract was terminated with just cause on 16 April
2010.
14.
Subsequently, the DRC acknowledged the position presented by the Respondent, by
means of which it held having had the right to terminate the contract, since the
Claimant did not present himself to the club’s premises, despite the invitations dated
1 and 12 April 2010. In this respect, the members of the Chamber noticed that the
Respondent affirmed not accepting the Claimant’s arguments that he could not travel
to country S because the Respondent did not provide him with the flight tickets,
considering the level of professional football as well as the incomes that the Claimant
already received. The Chamber remarked that according to the Respondent, the
Claimant did not show any will or effort to be reincorporated to the team, therefore it
considered the contract as terminated and stopped making further payments to the
Claimant.
15.
Moreover, the members of the DRC noticed that the Respondent allegedly declared that
in January 2010, during the allowed period to require the licence for the second half of
the season 2009/2010, a “tacit dismissal” occurred due to the lack of appeal of the
Claimant. In other words, the DRC took note that the Respondent held that in January
2010 the contract was no longer in force and therefore, the Claimant allegedly has no
right to claim any amount related to that period.
16.
Consequently, the Chamber remarked that the Claimant submitted his comments
rejecting the Respondent’s arguments regarding the fact that it would have been
possible for him to assume the costs of the flight tickets, emphasizing that it’s not
related to a matter of financial capacity but a matter of contractual duties. Moreover,
the members of the Chamber noted that the Claimant alleged that in its position, the
Respondent had not denied having failed to pay his salary as of January 2010 as well as
that in the contrary, he made all efforts to show true intentions to continue and fulfil
with the contractual conditions.
17.
Furthermore, the members of the DRC took note that the Respondent insisted that the
argument of the Claimant that it could not join the club because he did not receive the
flight tickets is not acceptable.
18.
In conclusion, the members of the DRC remarked that the Respondent held that if at all
it would have any debt towards the Claimant, it would concern only the monthly
salaries regarding the months of January, February and March 2010, each one in the
amount of EUR 2,143, since the contract was terminated as of 1 April 2010, due to the
non-appearance of the Claimant after the reiterated summons.
19.
Having stated the aforementioned, the Chamber wished to highlight that on
29 December 2009, the Respondent authorized the Claimant to extend his holidays
until 31 January 2010 (cf. point II.5.). Equally, the DRC focussed its attention to the
contents of the Respondent’s letter dated 12 April 2010, a copy of which was
Player J, from country B / Club E, from country S
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provided by the Claimant, by means of which the Respondent mentioned an
extension of holidays, allegedly requested by the player, until 20 March 2010
(cf. point II.11.). On account of the afore-mentioned facts, the members of the DRC
stated that the contract was considered as valid at least until 20 March 2010.
20.
In this regard, the members of the Chamber considered as well that on 3 June 2010
the Respondent sent a written notification to the Claimant, informing him that the
contract was terminated as of 16 April 2010. Accordingly, the DRC took into account
that by means of said notification the Respondent accepted that the contract was in
force until 16 April 2010 and that only as of that day it was considered as
terminated by it.
21.
In continuation, the members of the DRC proceeded to analyse whether or not the
Respondent terminated the contract with just cause.
22.
In this respect, the Chamber analysed that according to the Respondent it held to have
had just cause to terminate the contract, since the Claimant did not show up after the
reiterated summons made by it. Equally, the members of the DRC took into
consideration that according to the Respondent, the Claimant’s justification of not
having the flight tickets to travel back would not be reason enough to not join the
team on his costs and efforts, considering the level of professional football and the
incomes that the Claimant received as well as that the Claimant already evidenced such
a behaviour in the past.
23.
Considering the above-mentioned point, the DRC, reviewing once again the contents of
the contract, emphasized that the parties had established that the Respondent would
provide the Claimant with four round trip flight tickets to country B per season. In this
regard, the DRC held that, although the Claimant could have travelled on his own costs,
it was anyway the responsibility of the Respondent, as agreed in the contract, to
provide the Claimant with said flight tickets, in order that the Claimant could have
travelled back.
24.
Consequently, the members of the Chamber stated that the Respondent failed, without
any valid reason, to provide the Claimant with the round trip flight ticket, as agreed on
the contract.
25.
Furthermore, the Chamber contemplated that the Respondent recognized not
having paid several salaries to the Claimant, owing him the monthly salaries for the
months of January, February and March 2010.
26.
On account of all the above and considering that the contract was in force at least
until 16 April 2010, the members of the DRC concluded that the Respondent failed
to pay to the Claimant three monthly salaries corresponding to the months of
January, February and March 2010, each one in the amount of EUR 37,500.
27.
In view of the above, the Chamber considered that, in the present case, it is clear that
the Respondent violated the terms of the contract by disrespecting its obligations
established therein and thus not giving the Claimant the possibility to join the team as
well as not paying the salaries established in the contract. As a consequence and for the
above-detailed reasons, the members of the DRC reached the conclusion that the
Respondent terminated the contract without just cause.
Player J, from country B / Club E, from country S
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28.
Having established that the Respondent terminated the contract without just cause, the
Chamber focussed its attention on the consequences of such breach.
29.
In accordance with art. 17 par. 1 of the Regulations, the Chamber decided that the
Respondent is liable to pay compensation for the breach of contract in addition to any
outstanding payments regarding the contract.
30.
First of all, the members of the Chamber concurred that the Respondent must fulfil 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 the Claimant the remuneration that was outstanding at
the time of the termination, i.e. 16 April 2010.
31.
The Chamber than considered that it remained undisputed that the Respondent
stopped paying any salaries since January 2010. However, the DRC pointed out that
the Respondent did not provide any explanation regarding the alleged monthly
salary amounting to EUR 2,143, which in fact is not in accordance with the
remuneration stipulated in the contract. The Chamber recalled that according to the
contract, the parties agreed upon a total remuneration of EUR 450,000 for each
season, without specifying neither an exact amount as monthly salary nor any
payment condition. However, the members of the DRC stated that EUR 450,000
distributed over 12 months during one year would be equivalent to EUR 37,500 per
month, as claimed by the Claimant.
32.
As a consequence the DRC decided that Respondent has to pay the amount of
EUR 112,500 to the Claimant, as outstanding remuneration, corresponding to the
monthly salaries of January, February and March 2010, in the amount of
EUR 37,500 each.
33.
Concerning the interests claimed by the Claimant, the DRC noted that the contract did
not provide for any specific interest rate in case of late payment. Consequently, the
DRC, in accordance with the constant practice of the Dispute Resolution Chamber,
decided to award to the Claimant default interest at a rate of 5% p.a. over the amount
of EUR 112,500, as of 1 June 2010 as requested until the date of effective payment.
34.
In continuation, the DRC focussed its attention on the calculation of the amount of
compensation for breach of the 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 under the existing contract and/or the new contract.
35.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent contract contained 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 the contract. Upon a careful examination
of the contract, the Chamber took note that according to clause 5.1 of the contract the
parties agreed that in case the Respondent would terminate the contract without just
cause or the Claimant terminates it with just cause, the Claimant would be entitled to
receive the remaining value of the contract (cf. point I.3.).
Player J, from country B / Club E, from country S
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36.
The Chamber duly analysed the contents of said clause and acknowledged that the
aforementioned clause provides for the amount of compensation payable in the event
of the termination of the employment contract with just cause by the Claimant or
without just cause by the Respondent. In this respect, the Chamber acknowledged that
said contractual clause did not include a precise and specific amount of compensation,
however, it clearly provided for a determinable amount of compensation payable by
the Respondent in the event of breach of the contract, which was not considered
disproportionate by the Chamber.
37.
On account of the above, the parties having contractually agreed on the compensation
payable in the event of breach of contract and such compensation not being deemed
disproportionate, the members of the DRC concluded that the provision contained
under clause 5.1 of the contract has to be considered as valid and fully effective, i.e. the
amount of compensation provided for in said clause shall be awarded to the Claimant.
Furthermore, for these reasons, the Chamber concurred that any remuneration under a
new employment contract, if any, would be irrelevant in the case at hand.
38.
In this regard, and according to the documentation provided by the Claimant, the
Chamber established that the remaining value of the relevant contract amounts to
EUR 112,500, related to the Claimant’s financial entitlements under said contract as
from April 2010 until June 2010, each monthly salary in the amount of EUR 37,500.
39.
In conclusion, taking into account all the above-mentioned considerations and the
specificities of the case at hand the Chamber decided to accept the claim of the
Claimant and, as a consequence, that the Respondent is liable to pay to the Claimant
the amount of EUR 112,500, as outstanding remuneration (cf. point II.32), as well as the
amount of EUR 112,500, as compensation for the termination of the contract without
just cause (cf. point II.38.).
*******
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player J, is accepted.
2.
The Respondent, Club E, has to pay to the Claimant, Player J, within 30 days as from
the date of notification of this decision, outstanding remuneration in the amount of
EUR 112,500 as well as 5% interest p.a. on said amount as of 1 June 2010 until the date
of effective payment.
3.
The Respondent, Club E, has to pay to the Claimant, Player J, within 30 days as from
the date of notification of this decision, compensation for breach of contract in the
amount of EUR 112,500 as well as 5% interest p.a. on said amount as of the date of the
decision until the date of effective payment.
4.
If the amounts due in accordance with points 2 and 3 are not paid within the
aforementioned deadline, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for consideration and a formal decision.
Player J, from country B / Club E, from country S
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5.
The Claimant, Player J, is directed to inform the Respondent, Club E, 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
Player J, from country B / Club E, from country S
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