Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 November 2013,
in the following composition:
Mr. Geoff Thompson (England), Chairman
Mr. Taku Nomiya (Japan), member
Mr. Mohamed S. Al-Saikhan (Saudi Arabia), member
Mr. Alejandro Marón (Argentina), member
Mr. Theodore Giannikos (Greece), member
Mr. Rinaldo Martorelli (Brazil), member
Mr. Johan van Gaalen (South Africa), member
Mr. Carlos González Puche (Colombia), member
Mr. John Bramhall (England), member
on the claim presented by the player,
Player K, from country P
as Claimant
against the club,
Club I, from country T
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
Club I, from country T (hereinafter: the Respondent or the club), and Player K,
from country P (hereinafter: the Claimant or the player), concluded an
employment contract (hereinafter: the contract) valid as from 1 June 2011 until
31 May 2013.
2.
According to article 6.1 of the contract, in the 2011/2012 season, the player was
to be remunerated with the total amount of EUR 450,000, payable in 10
installments of EUR 35,000 and EUR 100,000 “is to be paid as the attendance fee
based on 34 official league matches only in the respective football season”.
3.
Furthermore, and in the 2012/2013 season, the player was to be remunerated
with the total amount of EUR 475,000 net, payable as follows:
- 10 installments of EUR 35,000 on the 25th of every month as of September
2012 until June 2013; and,
- EUR 125,000 “is to be paid as the attendance fee based on 34 official league
matches only in the respective football season.”
4.
Equally, and as stipulated in article 6.2 of the contract, the player was entitled to
USD 2,000 to cover rent costs.
5.
On 29 March 2013, the player lodged a claim in front of FIFA, explaining that the
Respondent was in constant delay of its payment obligations, reason for which he
sent letters to the club on 7 November 2012, 27 December 2012 and 28 January
2013 asking for the relevant payments. However, no reply was received from the
club and, consequently, the player issued a termination letter on 11 February
2013.
6.
In his claim, the player indicated that, at the time of the termination, the
following payments were outstanding:
- EUR 30,870 “as remuneration for each appearance of the player in the
starting line up of the team during the season 2011/2012”;
- EUR 175,000 for the salaries of September, October, November, December
2012 and January 2013;
- EUR 12,826 as remuneration for 11 days of February 2013; and,
- USD 6,000 for three months of accommodation.
7.
The player further outlined that following the termination of the contract, he
signed a new employment contract with Club G, from country P, valid from 18
March 2013 until 30 June 2013, in accordance with which he would receive his
Player K, from country P / Club I, from country T
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salary in three monthly installments of 5,800 currency of country P each,
amounting to a total of 17,400 currency of country P.
8.
On account of all the above, the player deemed that he had terminated the
contract with just cause and that he should be awarded the following amounts:
-
EUR 30,870 “as remuneration for each appearance”;
EUR 187,826 as outstanding salaries;
USD 6,000 as rent costs;
EUR 34,644 as damages for the period as from 12 February 2013 - 17 March
2013; and,
EUR 82,160 as damages for the period as from 18 March 2013 - 31 May 2013
(EUR 86,324 - EUR 4,164).
9.
In its reply, the club stated that it had fulfilled all its contractual obligations
towards the player and submitted a list of payments apparently made to the
player.
10.
In his replica, the player stated that the list provided by the club did not seem to
be an official bank document. Nevertheless, and above all, the player indicated
that the payments listed by the club did not correspond to any of the payments
claimed by the player, and this rather supported his claim than contested it.
11.
In its duplica, the club presented the same list as provided in its reply, however,
this time it was signed by an employee of the bank. Furthermore, the Respondent
reiterated that the player’s claim was groundless.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the 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 29 March 2013.
Consequently, the 2012 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is 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
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012; hereinafter: the Regulations), the Dispute Resolution
Player K, from country P / Club I, from country T
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Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a country
P player and a country T 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, and considering that the present claim
was lodged on 29 March 2013, the 2012 edition of the Regulations is applicable
to the matter at hand as to the substance.
4.
Once the competence of the Chamber and the applicable regulations were
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. In this respect, the Chamber recalled that
the parties had signed an employment contract valid as from 1 June 2011 until 31
May 2013, in accordance with which the Claimant was entitled to receive, inter
alia, a total amount of EUR 475,000 for the 2012/2013 season (which consisted of
10 installments of EUR 35,000, and EUR 125,000 as an attendance fee based on 34
official league matches during the season) and USD 2,000 per month to cover the
rent costs.
5.
In continuation, the members of the Chamber took into account that, on 11
February 2013, the Claimant sent a letter to the Respondent by means of which
he terminated his contract on the basis of outstanding remuneration. Conversely,
the Chamber noted that the Respondent alleged that the remuneration claimed
by the Claimant, was in fact paid.
6.
In view of the above, the DRC highlighted that the central issue in the matter at
stake would be to determine whether the alleged outstanding remuneration
claimed by the Claimant, was in fact paid by the Respondent.
7.
In this respect, the Chamber wished to emphasize that, according to the
Claimant, at the time of the termination of the contract on 11 February 2013, the
total amount of EUR 205,870, corresponding to the salaries of September,
October, November, December 2012 and January 2013, as well as the
remuneration for appearances in league matches, and USD 6,000 related to the
rent, were yet to be paid by the Respondent.
8.
In this context, the DRC noted that the Respondent had submitted payment lists
as documentary evidence to support its position that it had already paid the
amounts claimed by the Claimant. After examining the relevant lists, the
members of the Chamber, whilst emphasising that they did not contest the
Player K, from country P / Club I, from country T
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accuracy and validity of such lists, concluded that these lists did not reflect the
payments demanded by the Claimant. Rather, the documentary evidence
submitted by the Respondent referred only to the payments related to the
salaries of the 2011/2012 season as well as to part of the rent costs paid to the
Claimant during the 2012/2013 season, which however stopped in October 2012.
Hence, the lists provided by the Respondent did not specify any payment made
for the salaries of the 2012/2013 season, which is the relevant season for which
the Claimant is claiming outstanding remuneration in the matter at hand.
9.
As a consequence of the aforementioned considerations, and after taking into
account the documentation presented by the parties to the dispute, the Chamber
established that the Respondent had been unable to prove that the salaries
corresponding to September, October, November, December 2012 and January
2013, as well as the “attendance fee” for the 2011/2012 season, were no longer
outstanding. Furthermore, the Respondent had neither been able to prove that
the rent costs of November and December 2012, as well as of January 2013, were
paid. In this regard, the Chamber concurred that the Respondent had thus
seriously neglected its financial obligations towards the Claimant.
10.
On account of the above and taking into consideration the Chamber’s
longstanding jurisprudence in this respect, the DRC decided that the Claimant
had just cause to unilaterally terminate the contract on 11 February 2013 since
the Respondent had neglected its contractual obligations towards the Claimant in
a continuous and constant manner. As a result, the Chamber determined that the
Respondent is to be held liable for the early termination of the contract with just
cause by the Claimant.
11.
As a consequence, and in accordance with the general legal principle of pacta
sunt servanda, the Chamber decided that the Respondent is liable to pay to the
Claimant the amounts which were outstanding under the contract at the moment
of the termination, i.e. EUR 205,870 corresponding to the salaries from
September 2012 to January 2013 and the “attendance fee” of the 2011/2012
season. Furthermore, the DRC found that that the Respondent is also liable of
paying the rent costs of three months of a total value of USD 6,000.
12.
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, 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
Player K, from country P / Club I, from country T
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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.
13.
In application of the relevant provision, the Chamber held that first of all it 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. 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.
14.
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.
15.
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 the new contract in the calculation of the amount of
compensation.
16.
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 as
from its date of termination with just cause by the Claimant, i.e. 11 February
2013, and concluded that the Claimant would have received in total EUR 140,000
as remuneration had the contract been executed until its expiry date.
Consequently, the Chamber concluded that the amount of EUR 140,000 serves as
the basis for the final determination of the amount of compensation for breach
of contract in the case at hand.
17.
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
Player K, from country P / Club I, from country T
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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.
18.
The Chamber recalled that, on 18 March 2013, the Claimant signed an
employment contract with Club G, from country P, valid until 30 June 2013, in
accordance with which he would receive his salary in three monthly installments
of 5,800 currency of country P each (EUR 1,388), amounting to a total of 17,400
currency of country P (EUR 4,164).
19.
Consequently, on account of all of the above-mentioned considerations and the
Claimant’s general obligation to mitigate his damage, the Chamber decided to
partially accept the Claimant’s claim and determined that the Respondent must
pay the amount of EUR 135,836 as compensation for breach of contract in the
case at hand.
20.
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, Player K, is partially accepted.
2.
The Respondent, Club I, from country T, has to pay to the Claimant the amounts
of EUR 205,870 and USD 6,000 as outstanding remuneration, within 30 days as
from the date of notification of this decision.
3.
The Respondent has to pay to the Claimant the amount of EUR 135,836 as
compensation for breach of contract, within 30 days as from the date of
notification of this decision.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned 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.
Player K, from country P / Club I, from country T
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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
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:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player K, from country P / Club I, from country T
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