Acórdão do FIFA, processo 1112507_2011-01-26

Data

26/01/2011

Fonte

inside.fifa.com

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

as Claimant
against the club

FC U,
as Respondent

regarding an employment-related dispute
arisen between the parties

Facts of the case

On 20 August 2008, the player, A (hereinafter: the Claimant), and the FC U
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid from 20 August 2008 until 30 June 2011.

In accordance with the clause IV of the contract, the player is entitled to a total
remuneration in the amount of EUR 25,000 net for the season 2008/2009 to be
paid as follows:
-

EUR 5,000 net, payable on 1 October 2008;

EUR 15,000 net, payable in 10 equal monthly instalments of EUR 1,500
each;

EUR 5,000 net, payable on a pro rata basis if the Claimant plays more than
50% of the 34 official matches of the 2008/2009 championship.

Furthermore, the same clause determines that the club must pay for a flight ticket
“from country R to country B in the period between the end of the championship
and the beginning of another”, as well as benefits, bonuses and other amounts
agreed upon by the parties to be attached to the contract.
Finally, in case the team wins and reaches “League I-a”, the contractual value will
be doubled for the season 2009/2010 (clause IV, lit. d) of the contract).
3.

For the season 2009/2010, the clause V of the contract sets forth the total
remuneration of EUR 25,000 net to be paid as follows:
-

EUR 18,000 net, payable in 12 monthly instalments of EUR 1,500 each;

EUR 7,000 net, payable on a pro rata basis if the Claimant plays more than
60% of the 34 official matches of the 2009/2010 championship.

For the season 2010/2011, the clause VI of the contract sets forth the total
remuneration of EUR 25,000 net to be paid as follows:
-

EUR 18,000 net, payable in 12 monthly instalments of EUR 1,500 each;

EUR 7,000 net, payable on a pro rata basis if the Claimant plays more than
60% of the 34 official matches of the 2009/2010 (sic) championship.

The payments previously mentioned, accordingly to the contract, become due on
the 20th day of the subsequent month.
In addition to the above mentioned amounts, the player is entitled to receive the
amount of EUR 400 per month, for the rent.

By means of a correspondence dated 21 November 2008, the Claimant put the
Respondent in default, informing the latter that he had not received the monthly
salaries for over 4 months and requested the payment of “any and all” his
“outstanding salaries” within a deadline of five days.

On 2 December 2008, the Claimant sent a “final notification” to the Respondent,
via fax, setting forth a final deadline of 48 hours for the fulfilment of its
contractual obligations.

By means of a correspondence dated 22 December 2008, the Claimant terminated
the contract, since the Respondent had allegedly not complied with its contractual
obligations.

On 22 January 2009, the Claimant lodged a claim before FIFA against the
Respondent for an alleged breach of contract committed by the Respondent,
requesting the following amounts:
-

EUR 6,000, corresponding to the outstanding salaries for the months of
September, October, November and December 2008, of EUR 1,500 each;

EUR 5,000, corresponding to the bonus that became due on 1 October
2008;

EUR 64,000, as compensation, allegedly corresponding to the amounts the
Claimant would have been entitled to receive until the expiry of the
contract;

interest of 5% p.a. over the total amount, as from the date of payment of
each instalment.

The Claimant also requested the imposition of sporting sanctions on the
Respondent, affirming that the breach of contract committed by the Respondent
occurred during the protected period.
10.

In this respect, the Claimant explained that he had rendered his services for the
Respondent until November 2008 even though he neither received any of the
monthly salaries, nor the payment of the bonus in the amount of EUR 5,000 due
on 1 October 2008. Therefore, after having put the Respondent in default on 21
November and 2 December 2008, the Claimant decided to terminate the contract
on 22 December 2008 due to the alleged breach of contract committed by the
Respondent.

11.

Despite having been invited by FIFA to do so, the Respondent failed to respond to
the Claimant’s claim.

12.

Upon request of FIFA, the Claimant stated that he had concluded an employment
contract with the Club X, for the period between 1 January 2009 and 30 August
2009. According to the player, this contract provided for a monthly salary of 2,500.
In that context, the player maintained that he does not have a copy of the
employment contract.

13.

In the same context, the Claimant informed FIFA that he had concluded an
employment contract for the period between 30 September 2009 and 31
December 2009 with the Club Y, providing for a monthly salary of USD 1,500, but
again did not submit a copy of it.

14.

Moreover, still in the same context, the Claimant stated having also concluded an
employment contract, which he remitted to FIFA, with the Club Z, valid from 8
February 2010 until 31 May 2010, for a total remuneration of 56,000.

15.

Finally, on 19 October 2010, upon request of FIFA, the Claimant stated that he did
not enter into any new labour relationship since June 2010.

II.

Considerations of the Dispute Resolution Chamber

First of all, the Dispute Resolution Chamber (DRC) analysed whether it was
competent to deal with the present matter. In this respect, the Chamber referred
to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules). The present matter was submitted to FIFA on 22 January 2009,
thus after 1 July 2008. Consequently, the Chamber concluded that the 2008
edition of the Procedural Rules is applicable to the matter at hand.

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 shall adjudicate on
4

employment-related disputes between a club and a player of an international
dimension. As a consequence, the Dispute Resolution Chamber confirmed to be
competent to deal with the matter at stake, which concerns an employmentrelated dispute between a player and a club.
3.

Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (editions 2010 and
2009) and, on the other hand, to the fact that the present claim was lodged on 22
January 2009 and that the relevant employment contract was signed on 20 August
2008. In view of the aforementioned, the Dispute Resolution Chamber concluded
that the previous version of the regulations, the Regulations on the Status and
Transfer of Players (edition 2008; hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.

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 members of the Chamber firstly observed that the Respondent never took
position on the claim lodged against it by the Claimant, despite having been asked
to do so by FIFA. Therefore, the Chamber underlined that, in this way, the
Respondent renounced to its right to defence and, thus, accepted the allegations
of the Claimant.

As a consequence, the members of the Chamber referred to art. 9 par. 3 of the
Procedural Rules and pointed out that in the present matter a decision shall be
taken upon the basis of the documentation on file, in other words upon the
documents and allegations provided by the Claimant.

In this respect, the Dispute Resolution Chamber started by acknowledging that the
parties to the dispute concluded an employment contract (hereinafter: the
contract), valid from 20 August 2008 until 30 June 2011. Equally, the Dispute
Resolution Chamber noted that the contract established, for the season 2008/2009,
a total remuneration of EUR 25,000 net, composed of an amount of EUR 5,000 due
on 1 October 2008, the amount of EUR 15,000 due in 10 equal monthly
instalments of EUR 1,500 each, as well as an amount of EUR 5,000, which would be
payable on a pro rata basis if the Claimant would play more than 50% of the 34
official matches of the 2008/2009 championship.

Subsequently, the Chamber acknowledged that the Claimant requested on 22
January 2009 the payment of outstanding remuneration in a total amount of EUR
11,000. In this context, the Claimant alleged having rendered his services until
November 2008, receiving neither any of the monthly salaries of EUR 1,500 each,
nor the payment of EUR 5,000 due on 1 October 2008, even after having put the
Respondent in default and requested the payment of the outstanding amounts on
two occasions in writing.

Thus, the Dispute Resolution Chamber held that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent must fulfill its obligations
as per the employment contract concluded with the Claimant and, consequently,
pay the outstanding remuneration, which is due to the latter.

As to the amount of the outstanding remuneration due to the Claimant, the
members of the Dispute Resolution Chamber determined that since the Claimant
offered his services until 22 December 2008, the Claimant was to receive the
uncontested amount of EUR 11,000, composed of outstanding salaries for the
months of September until December 2008, as well as a bonus for October 2008.

10.

Based on the foregoing, the Chamber concluded that, in line with its wellestablished jurisprudence, by failing to pay the player inter alia five consecutive
monthly salaries, the Respondent breached the contract without just cause and
the Claimant had therefore a just cause to unilaterally terminate the contractual
relationship on 22 December 2008. On account of the above, the members of the
Chamber also held that the Respondent was not only to pay the outstanding
remuneration to the Claimant, but also had to pay compensation for breach of
contract in conformity with art. 17 par. 1 of the Regulations.

11.

In continuation, the members of the Chamber referred to item 7 of the
“Definitions” section of the Regulations, which stipulates, inter alia, that the
protected period shall last “for three entire seasons or three years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded prior to the 28th birthday of the professional, or two entire seasons or
two years, whichever comes first, following the entry into force of a contract,
where such contract is concluded after the 28th birthday of the professional.”. In
this respect, the Chamber took note that the Claimant terminated the contract
with just cause due to the breach of contract committed by the Respondent on 22
December 2008, i.e. four months after signature of the contract only. Therefore,
the Chamber concluded that the breach had in any case occurred within the
protected period.

12.

Having stated the above, the Chamber turned its attention to the question of the
consequences of such breach of contract committed by the Respondent during the
protected period.

13.

In continuation, the Chamber focused 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, 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.
14.

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. The Chamber established that no such compensation clause
was included in the employment contract at the basis of the matter at stake.

15.

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 the said provision provides for a nonexhaustive 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.

16.

On this basis, the members of the Chamber recalled once more that the early
termination of the employment contract occurred shortly after the entry into
force of such employment contract. The Chamber deemed that it should
consider this fact in determining the amount of compensation to be paid by
the Respondent.

17.

Equally, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber, in line with art. 17 par. 1 of the
Regulations, took inter alia into account the remuneration due to the Claimant
in accordance with the contracts and the time remaining on the same
contracts, as well as the professional situation of the Claimant after the early
termination occurred. Furthermore, the Chamber acknowledged that the
Claimant had entered his services in favour of the Respondent for
approximately three months - from 20 August until November 2009 - and that
the relevant employment contract still had approximately two years and seven
months until its expiry at the moment of its termination.

18.

In this respect, the Dispute Resolution Chamber took note of the fact that the
Claimant had claimed the remaining value of the contract as compensation for the
breach of the said contract amounting to a total of EUR 64,000, allegedly
corresponding to all the amounts he would have been entitled to receive until the
expiry of the contract, i.e. his monthly salaries as well as his bonuses for
participation in matches.

19.

In continuation, the members of the Chamber deem it important to recall that
bonus and other remuneration, which present a variable and uncertain character
from one season to another, shall not be taken into consideration in the
calculation of the compensation.

20.

In casu, the members of the Chamber acknowledged that the amount of EUR
5,000 for the season 2008/2009, the amount of EUR 7,000 for the seasons
2009/2010 and 2010/2011 were due if the player “plays more than 50% of the 34
official matches of the 2008/2009 championship and 60% of the 34 official
matches of the 2009/2010 championship” respectively. Thus, the Chamber could
not undoubtedly establish that the Claimant would have received the said
bonuses, and, if any, in what proportion. Consequently, the Chamber had no
other alternative but to refuse to take into consideration the said bonuses while
assessing the amount of compensation. Therefore, according to the Chamber, the
residual value of the contract amounted to EUR 45,000, which serves as the basis
for the final determination of the amount of compensation for breach of contract.

21.

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 2011. Consequently, the Chamber concluded that the amount of
EUR 45,000 (i.e. 30 monthly instalments for the months from January 2009
until June 2011) corresponds to the monthly salaries the Claimant would have
received until the expiry of the contract.

22.

Likewise, the members of the Chamber noted that, at the time of the decision and
during the contractual period, the Claimant had signed three new employment
contracts with different clubs as follows: from 1 January 2009 until 30 August
2009 with Club X, for a remuneration of 2,500 per month; from 30 September
2009 until 31 December 2009 with Club Y for a remuneration of USD 1,5000 per
month, and from 8 February 2010 until 31 May 2010 with the Club Z for a total
remuneration of 56,000. Consequently, in accordance with the constant practice of
the Dispute Resolution Chamber and the general obligation of the player to
mitigate his damages, such remuneration under the new employment contract
shall be taken into account in the calculation of the amount of compensation for
breach of contract.

23.

Consequently, on the account of all the above mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay not the entire residual value of the contract but the amount of EUR 30,775,
which was considered reasonable and justified as compensation for breach of
contract.

24.

As a consequence, the Dispute Resolution Chamber decided that the Respondent
has to pay the total amount of EUR 41,775 to the Claimant, consisting of EUR
11,000 for outstanding salaries and bonus, along with 5% of interest on each of
the monthly payments, as well as the amount of EUR 30,775 as compensation for
breach of contract.

25.

The Dispute Resolution Chamber concluded its deliberation by establishing that
the present clauses are partially accepted and that any further claims lodged by
the Claimant are rejected.

26.

Finally, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, addressed the question of sporting
sanctions to be imposed on the Respondent in accordance with art. 17 par. 4 of
the Regulations. The cited provision stipulates inter alia that, in addition to the
obligation to pay compensation, sporting sanctions shall be imposed on any club
found to be in breach of contract during the protected period.

27.

In this regard, the Dispute Resolution Chamber recalled that, as established under
point II.11. above, the breach of contract by the Respondent occurred during the
protected period. Consequently, the Chamber decided that, by virtue of art. 17
par. 4 of the Regulations, the Respondent had to be sanctioned with a ban from
registering any new players, either nationally or internationally, for the two next
entire and consecutive registration periods following the notification of the
present decision.

***
III.

Decision of the Dispute Resolution Chamber

The claim of the Claimant, A, is partially accepted.

The Respondent, FC U, has to pay to the Claimant, A, within 30 days as from the
date of notification of this decision, outstanding remuneration amounting to EUR
11,000.

Within the same time limit, the Respondent, FC U, has to pay default interest of
5% p.a. on the following partial amounts until the effective date of payment to
the Claimant, A, as follows:

- on EUR 1,500 as of 20 October 2008;
- on EUR 1,500 as of 20 November 2008;
- on EUR 1,500 as of 20 December 2008;
- on EUR 1,500 as of 20 January 2009;
- on EUR 5,000 as of 2 October 2008;
4.

The Respondent, FC U, has to pay the Claimant, A, compensation for breach of
contract amounting to EUR 30,775 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 days’ time limit until the date of effective payment.

In the event that the amounts due to the Claimant, A, in accordance with the
above-mentioned numbers 2, 3 and 4 are not paid by the Respondent, FC U,
within the stated time limits, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.

Any further requests lodged by the Claimant, A, are rejected.

The Respondent, FC U, shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.

The Claimant, A, is directed to inform the Respondent, FC U, 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:
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

Enclosed: CAS directives