Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 January 2011,
in the following composition:
Geoff Thomson (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,
B,
as Claimant
against the club,
S,
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 1 February 2008, the player, B (hereinafter: the Claimant) and the club, S
(hereinafter: the Respondent) concluded an employment contract (hereinafter: the
contract) valid from the date of the signature until 30 June 2010.
2.
The contract, in its clause 3.1.1, established that the Claimant was entitled to receive a
signing on fee amounting to EUR 5,000 as well as a monthly salary in the amount of
EUR 1,500, payable until the 20th day of the following month. Furthermore, the monthly
salary would be increased in EUR 500 after the execution of 60% of the spring matches
of the season 2007/2008. Additionally, the contract stipulated a payment of bonuses
depending on the accomplishment of objectives established by the Administrative
Board of the Respondent (cf. clause 3.1.2). Finally, the contract established that the
Respondent had the obligation to provide the Claimant with accommodation during
the contract period as well as to pay for the flight tickets to visit his family in his
country, during summer and winter vacations (cf. clause 4.1).
3.
On 26 April 2010, the Claimant lodged a claim against the Respondent in front of FIFA
alleging that the Respondent unilaterally breached the contract without just cause and
therefore claiming the following:
a) 19 monthly salaries in the amount of EUR 1,500 each, amounting to EUR 28,500;
b) Possible bonuses that he could have earned in the amount of EUR 10,000;
c) Compensation for the breach of contract without just cause in the amount of EUR
100,000;
d) Reimbursement of the procedural costs.
4.
According to the Claimant, the contract was fulfilled until November 2008. Afterwards,
in December 2008 he received a one-way ticket to his country, X, and the Respondent
promised to send him a return ticket before the end of his holiday. The Claimant
affirmed that he did not receive the return ticket from the Respondent.
5.
In this regard, the Claimant alleged having contacted the Respondent several times,
without having any answer or solution to his situation. The Claimant submitted
correspondence addressed to the Respondent, which apparently remained unanswered.
In particular, the Claimant sent a correspondence dated 9 September 2009 to the
Respondent, by means of which he contacted the Respondent’s President, emphasizing
he was waiting for the return ticket for a long period of time and asked for a solution.
6.
Furthermore, the Claimant held that the Respondent failed to pay his monthly salary
corresponding to December 2008 and continued to fail to meet its financial obligations
until the end of the contract period, i.e. 30 June 2010.
2/8
7.
In spite of having been invited by FIFA to do so, the Respondent did not respond to the
claim and did not make any statements in the course of the investigation.
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 23 April 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: 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 and a
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 2010, 2009
and 2008), and considering that the present claim was lodged on 23 April 2010 and that
the employment contract at the centre of the dispute was concluded on 1 February
2008, the 2008 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 this respect, the
Chamber acknowledged that the Claimant and the Respondent signed an employment
contract setting out a period of validity as from 1 February 2008 until 30 June 2010, in
accordance with which the Claimant was to receive inter alia a monthly payment of EUR
1,500.
5.
The Chamber then reviewed the claim of the Claimant who held that the Respondent is
to be held liable for the breach of the contract, by having failed to provide him with the
return ticket from X to Y at the end of his holidays as well as failing to pay his monthly
salaries.
3/8
6.
The members of the Chamber took note that the Claimant tried to contact the
Respondent to receive his flight ticket in order to join the team and, in particular, that
the Claimant sent a default notice dated 9 September 2009 addressed to the
Respondent (cf. point I.5), which apparently remained unanswered.
7.
In this respect, the members of the Chamber noted that the Claimant held to be entitled
to the stipulated salaries as outstanding remuneration in the amount of EUR 28,500,
which represents his monthly salaries of EUR 1,500 each, as from December 2008 until
June 2010. Moreover, the Chamber noted that the Claimant requested to receive the
bonuses that he allegedly could have earned in the amount of EUR 10,000 as well as the
compensation in the amount of EUR 100,000 for the breach of contract caused by the
Respondent without just cause.
8.
Subsequently, the members of the DRC took note that the Respondent, for its part,
failed to present its response to the claim, in spite of having been invited to do so, never
denying or questioning the facts presented by the Claimant. Consequently, the
members of the DRC deemed it appropriate to emphasize that the Respondent
renounced its right to present its defence and, thus, accepted the allegations of the
Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
10.
In continuation, the Chamber stated that it first had to analyse whether or not the
Respondent had breached the contract without just cause, and to determine whether or
not one of the parties to the contract is accountable for outstanding salaries and/or
compensation.
11.
First and foremost, the members of the DRC took note that the Respondent did not
comply with its contractual obligation to pay for the return ticket to the Claimant so he
could join the team after his vacation. The members of the DRC took note that the
Respondent only gave a one-way ticket to the country X to the Claimant, already
demonstrating that it was not interested in continuing with the contract (cf. point I.4.).
Furthermore, the club did not pay the Claimant’s salary corresponding to the month of
December 2008 and never sent him the ticket for his return. Also, even though the
Claimant tried to contact the Respondent, he never received any answer.
12.
Consequently, the Chamber established that the Respondent was obviously no longer
interested in the Claimant’s services by failing to remit him the return flight ticket as
well as to pay his monthly salaries without any valid reason, which conduct constitutes a
clear breach of contract.
4/8
13.
On account of the above circumstances and facts, the Chamber decided that the
Respondent breached the contract without just cause and, thus, is liable to pay all
outstanding amounts under the relevant employment contract until the date on which
the employment contract was considered terminated.
14.
In this respect, the Chamber established that, until the date of the breach of the
contract, the Respondent failed to pay one monthly salary, in the amount of EUR 1,500,
corresponding to the instalment of December 2008. Consequently, the Chamber
decided that the Respondent is liable to pay to the Claimant the relevant outstanding
amount of EUR 1,500.
15.
Having established that the Respondent is to be held liable for the breach of the
contract without just cause, the Chamber focussed its attention on the consequences of
such breach. Therefore, in accordance with art. 17 par. 1 of the Regulations, the
Chamber decided that the Respondent is also liable to pay compensation for the
damages suffered by the Claimant as a consequence of said breach.
16.
In continuation, the Chamber focussed its attention on the calculation of the amount of
compensation for breach of contract in the case at stake, taking into account the
documentation remitted by the Claimant to substantiate his claim. 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.
17.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment 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 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.
18.
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 Dispute Resolution Chamber, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation
to mitigate his damages.
5/8
19.
In this respect, the Chamber noted that, according to the Claimants declaration, he did
not enter into another employment contract during the remaining period of the
contract of the matter at stake.
20.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
amount payable to the player under the terms of the employment contract as from
January 2009 until 30 June 2010. Consequently, on account of all of the abovementioned considerations and the specificities of the case at hand, the Chamber
decided that the Respondent must pay the amount of EUR 27,000 to the Claimant as
compensation for breach of contract, corresponding to the remaining value of the
contract, i.e. as from January 2009 until June 2010.
21.
In conclusion, the Chamber decided to partially accept the claim of the Claimant and, in
consequence, that the Respondent is liable to pay the total amount of EUR 28,500 to
the Claimant, consisting of EUR 1,500 relating to outstanding salaries until December
2008, as well as EUR 27,000 as compensation for breach of contract (cf. points II.14 and
II.20).
22.
Subsequently, the members of the DRC analysed the request of the Claimant for
compensation for breach of contract in the amount of EUR 100,000. In this regard, the
Chamber deem it appropriate to point out that the request for compensation presented
by the Claimant had no legal basis or evidence that demonstrated the damage suffered
or its quantity. In this context, the Chamber referred to the legal principle of the
burden of proof, which is a basic principle in every legal system, according to which a
party deriving a right from an asserted fact has the obligation to prove the relevant fact
(cf. art. 12 par. 3 of the Procedural Rules). Consequently, the DRC came to the
conclusion that the remaining value of the contract was already granted as
compensation for the breach of the contract and, for that reason, the Claimant could
not claim any further compensation. On account of the aforementioned, the DRC
decided that the request shall be rejected.
23.
Moreover, the Chamber analysed the request of the Claimant to be awarded with
possible bonuses that he could have earned in the amount of EUR 10,000. The Chamber
noted, however, that the pertinent employment contract does not specify any bonus
amounts, which are only an expectation. Furthermore, the Claimant was back to
country X and did not participate in the matches played by the Respondent. On account
of the above, the Chamber decided that the Claimant’s claim for payment of possible
bonuses could not be accepted.
24.
Also, the Dispute Resolution Chamber held that the Claimant’s claim for reimbursement
of procedural costs shall be rejected in accordance with art. 18 par. 4 of the Procedural
Rules as well as with the Chamber’s respective longstanding jurisprudence.
6/8
25.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant, B, the amount of EUR 28,500 within 30
days as from the date of notification of this decision.
3.
In the event of non-payment of the aforementioned amount, within the established
deadline, interest at the rate of 5% per year will apply as of expiring of the fixed time
limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
4.
Any further claims lodged by the Claimant, B, are rejected.
5.
The Claimant is directed to inform the Respondent, S, 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.
*******
7/8
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:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
8/8