Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 16 November 2012,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player O, from country N
as Claimant
against the club,
Club F, from country S
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 25 January 2010, Player O, from country N (hereinafter: Claimant), and Club
F, from country S (hereinafter: Respondent), signed an employment contract
(hereinafter: the contract) valid from the date of signature until 30 June 2011.
2.
According to the contract, the Claimant was entitled to receive, inter alia:
-
EUR 3,000 as a monthly salary for the period between 25 January 2010
until 30 June 2010,
-
EUR 3,500 as a monthly salary for the period between 1 July 2010 until 30
June 2011.
3.
On 7 January 2011, the Claimant lodged a claim against the Respondent in
front of FIFA indicating that, upon being transferred to the Respondent, the
president of the Respondent had arranged a “6 months visa with a 90 days
condition”. Subsequently, the visa was extended until June 2010 in order for
the Claimant to finish the season which ended on 14 May 2010. Thereafter, the
Claimant left for holidays and when trying to return to country S for his first
training on 13 June 2010, the Respondent’s president informed the Claimant
there was an issue with the visa, but assured the Claimant it would be sorted
out on 10 June 2010.
4.
Thereafter, the Claimant gives the following account of events:
- On 13 June 2010 the Respondent’s president informed the Claimant by
phone that it was the Claimant’s problem if he would not report back
for pre-season on 20 June 2010 as well as that his contract would be
terminated if he did not return.
- Following this and since his visa would be running out on 27 July 2010,
the Claimant tried to travel back to country S, but, upon arrival in
country S, he was refused entry by the immigration office due to the
“90 days condition”.
- In continuation, the Claimant obtained a visa for the country C, went
there on 28 July 2010 and travelled from the country C to country S by
train.
- On 21 August 2010, the Claimant was selected for a match of the
Respondent.
- On 23 August 2010, the Respondent informed the Claimant that he
had to travel to the country U in order to obtain a visa from the
Player O, from country N / Club F, from country S
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country S embassy. The Claimant states he booked a flight and arrived
in country U on 24 August 2010 where he was told by the country S
embassy that “he would not be given another visiting visa because the
club were informed they had to get a work permit for him when they
issued the first visa”.
- During September and October 2010, the Claimant made several other
attempts to ensure a working permit, all of which however failed.
- On 15 November 2010, the Respondent informed the advisor of the
Claimant that his contract would be terminated as from 31 December
2010 and that the owner of the Respondent wanted the Claimant to
return the amount of EUR 15,000.
- On 22 December 2010, after having not received his salary for a few
months, the Claimant informed the Respondent that he terminated
the contract with just cause.
5.
On account of the above, the Claimant is of the opinion that the Respondent
breached the contract and owes him the total amount of EUR 40,148.40,
calculated as follows:
- EUR 15,648.40 as outstanding remuneration, consisting of EUR
5,148.40 for the “deduction of wages” of June and July 2010 and EUR
10,500 for the unpaid wages of September, October and November
2010; and
- EUR 24,500 as compensation for breach of contract.
6.
In its reply to the claim lodged against it, the Respondent merely indicated
that the Claimant put an end to his contract with the club on 1 January 2011
and that the Claimant did not get a visa to enter country S and could therefore
not attend the training sessions or matches. The Respondent explained it had
informed “the Claimant’s agency” about the situation and therefore the
Claimant was allowed to transfer to a club in country V in May 2011.
7.
Upon FIFA’s request, the Claimant indicated that he had signed a new contract
with Club D, from country V, valid as from 12 May 2011 until the end of the
“2011 National First Prize Football Tournament Season” with a monthly salary
of USD 4,000.
Player O, from country N / Club F, from country S
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II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he
was competent to deal with the matter at stake. In this respect, the DRC judge
took note that the present matter was submitted to FIFA on 7 January 2011.
Consequently, the DRC judge concluded that 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 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 lit. i. in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2010) the DRC judge is competent to deal with the matter
at stake, which concerns an employment–related dispute with an international
dimension between a country N player and a country S club.
3.
Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations (edition 2010) and considering that the present claim was
lodged in front of FIFA on 7 January 2011, the 2010 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 DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well
as the documentation contained in the file.
5.
First of all, the DRC judge acknowledged that, on 25 January 2010, the
Claimant and the Respondent had concluded an employment contract valid as
from the date of signature until 30 June 2011, in accordance with which the
Respondent would pay the Claimant a monthly salary of EUR 3,000 for the
period between 25 January 2010 and 30 June 2010 and a monthly salary of
EUR 3,500 for the period between 1 July 2010 and 30 June 2011.
6.
The DRC judge further observed that the Claimant lodged a claim in front of
FIFA against the Respondent indicating that the latter had not provided him
with the necessary visa and that, after not having received his monthly salaries
for three months, he had terminated his contract with the Respondent in
December 2010 invoking just cause.
Player O, from country N / Club F, from country S
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7.
The DRC judge duly noted that, on account of the above, the Claimant is
seeking payment of the amount of EUR 15,648.40, corresponding to i)
outstanding salaries for the months of September, October and November
2010 and ii) deductions made from the salaries of June and July. Equally, the
DRC judge noted that the Claimant is requesting compensation for breach of
the employment contract in the amount of EUR 24,500.
8.
What is more, the DRC judge observed that the Respondent replied that it was
the Claimant who had put an end to the contract on 1 January 2011 and that
the Claimant did not get a visa to enter country S, the country where the
Respondent is based.
9.
In this respect, the DRC judge outlined that as soon as an employment contract
is signed between a club and a player, rights and responsibilities ensue on both
sides without being subject to any particular condition. In this respect, the DRC
judge referred to the well-established jurisprudence of the DRC and
emphasised that, as a general rule, it is the club´s duty and responsibility to act
accordingly in order to obtain, if necessary, a work permit or a visa for its
players prior to the signing of an employment contract or during its period of
validity, in order for players to be able to legally enter a particular country and
be in a position to render their services to the club.
10.
In continuation, the DRC judge referred to art. 18 par. 4 of the Regulations,
which stipulates, inter alia, that the validity of a contract may not be subject to
the grant of a work permit.
11.
Finally, the DRC judge noted that the Respondent did not contest that the
monthly salaries of September, October and November 2010 were still
outstanding nor did it contest or attempt to justify why it had deducted the
amount of EUR 5,148.40 from the Claimant’s salaries of June and July 2010.
12.
Hence, the DRC judge came to the conclusion that the Respondent had failed
to arrange the necessary arrangements in order for the player to enter the
country as of June 2010 and had equally failed to pay the Claimant his monthly
salaries as of September 2010 until November 2010. Therefore, the DRC judge
concluded that the Claimant had a just cause to unilaterally terminate the
contractual relationship with the Respondent in December 2010.
13.
On account of the above, the DRC judge established that the Claimant had
terminated the employment contract with just cause on 22 December 2010 and
that, consequently, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
Player O, from country N / Club F, from country S
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14.
Bearing in mind the previous considerations, the DRC judge went on to deal
with the consequences of the early termination of the employment contract
with just cause by the Claimant.
15.
First of all, the DRC judge noted the Claimant’s request regarding the
outstanding salaries at the time of the unilateral termination of the contract
and observed that the Respondent had not contested or given any
explanations or justifications for the non-payment of the relevant salaries and
the deduction of the amount of EUR 5,148.40 from the salaries of June and
July 2010.
16.
In view of the above, the DRC judge stressed that the Respondent must fulfill
its obligations as per employment contract in accordance with the general
legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided
that the Respondent is liable to pay to the Claimant the remuneration that
was outstanding at the time of the early termination of the employment
contract by the Claimant, i.e. the amount of EUR 15,648.40.
17.
In continuation, the DRC judge decided that, taking into consideration the
Claimant’s respective claim and art. 17 par. 1 of the Regulations, the Claimant
is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
18.
In this context, the DRC judge outlined that, in accordance with said provision,
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.
19.
In application of the relevant provision, the DRC judge held that he first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
compensation payable by the contractual parties in the event of breach of
contract. In this regard, the DRC judge established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
Player O, from country N / Club F, from country S
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20.
Subsequently, the DRC judge noted that the remaining value of the
employment contract as from the date of the termination until the original
expiry of the employment contract amounted to EUR 24,500, i.e. seven
monthly salaries amounting to EUR 3,500 each. Consequently, the DRC judge
concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract
amounted to EUR 24,500 and that such amount shall serve as the basis for the
final determination of the amount of compensation for breach of contract.
21.
In continuation, the DRC judge remarked that the Claimant had concluded a
new employment contract with Club D, from country V, which ran from 12
May 2011 until the end of the “2011 National First Prize Football Tournament
Season”, in accordance with which the Claimant would receive a monthly
salary of USD 4,000.
22.
Consequently, and bearing in mind the provision of art. 17 par. 1 of the
Regulations and in accordance with the constant practice of the Dispute
Resolution Chamber as well as the general obligation of the player to mitigate
his damages, such remuneration under the new employment contract shall be
taken into account for the calculation of the amount of compensation for
breach of contract.
23.
In view of all of the above, the DRC judge decided that the Respondent must
pay the amount of EUR 18,194 to the Claimant, which is considered by the DRC
judge to be a reasonable and justified amount as compensation for breach of
contract.
24.
For all the above considerations, the DRC judge decided to partially accept the
Claimant’s claim and held that the Respondent is liable to pay the total
amount of EUR 33,842.40 to the Claimant, consisting of the amount of EUR
15,648.40 corresponding to the Claimant’s outstanding remuneration at the
time of the unilateral termination of the contract with just cause by the
Claimant and the amount of EUR 18,194 corresponding to the compensation
for the unilateral breach of contract.
25.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claim of the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player O, is partially accepted.
2.
The Respondent, Club F, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 15,648.40.
Player O, from country N / Club F, from country S
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3.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract
amounting to EUR 18,194.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent within
the stated time limits, interest at the rate of 5% 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 claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
DRC judge of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player O, from country N / Club F, from country S
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