Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 November 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Theodore Giannikos (Greece), member
Mohamed Al-Saikhan (Saudi Arabia), member
on the claim presented by the player,
Player V, from country P
as Claimant
against the club,
Club T, from country I
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 29 May 2012, Player V, from country P (hereinafter: player or Claimant), and
the Club T, from country I (hereinafter: club or Respondent), concluded an
employment contract (hereinafter: contract) valid for the two seasons 2012/2013
and 2013/2014, “and will terminate after the Premier league of country I”.
2.
Clause 7.2 of the contract provides for a monthly salary of USD 24,000, to be paid
ten times per season and on the 15th day of each month starting on 15 August
2012 and 15 August 2013, respectively. Furthermore, according to clause 7.1 of
the contract, the Claimant is entitled to receive an “advance payment” in the
amount of USD 200,000, payable as follows:
a) USD 100,000 upon signature of the contract;
b) USD 50,000 on 10 July 2012;
c) USD 50,000 “in the half season 2012-2013”.
3.
Clause 7.3 of the contract stipulates that “if the club does not pay the salary and
bonuses of players for more three consecutive months, the player may ask his
agent to oblige the club to pay the agreed payments by sending the case to
relative organizations like FIFA”.
4.
On 2 November 2012, the Claimant sent a letter to the Respondent requesting
the payment of outstanding remuneration.
5.
On 9 November 2012, the Claimant sent a letter to the Respondent terminating
the contract.
6.
On 13 December 2012, the Claimant lodged a claim before FIFA requesting the
total amount of USD 580,000 plus interest of 5% p.a. on the claimed amount as
of the due dates of the payments, calculated as follows:
a) USD 122,000 as outstanding payments composed of:
i.
USD 72,000 corresponding to his remuneration for the months of
August, September and October 2012;
ii.
USD 50,000 corresponding to the second instalment of the advance
payment;
b) USD 458,000 corresponding to the residual value of the contract, i.e. USD
408,000 as remaining monthly remuneration and USD 50,000 as the third
instalment of the advance payment.
In addition, the Claimant claims that the Respondent must contribute to his legal
costs.
7.
In his claim, the Claimant explained that the Respondent had failed to pay the
instalment of USD 50,000, which was due on 10 July 2012, as well as the
remuneration for the months of August, September and October 2012 in the
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amount of USD 72,000. Based on clause 7.3 of the contract (cf. point I./3. above)
and the jurisprudence of the Dispute Resolution Chamber, the Claimant
concluded having had a just cause to terminate the contract, since three monthly
salaries were outstanding.
8.
In its reply to the claim, the Respondent stated that the Claimant was only
conditionally employed because of his knee problems and that the Claimant had
given a “written commitment for cancellation” in case he would not be able to
play in accordance with the decision of the club. In this respect, the Respondent
presented a translated annex to the contract apparently signed by the parties,
which states the following “I, Player V […] undertake that I have no physical
problem, but the medical board of federation reported that I have problem with
my knees and don’t confirm my physical health and I accept that my contract can
be cancelled if I cannot attract the satisfaction of my coach up to half-season”.
The Respondent further held that the Claimant had been absent from 18 practice
sessions and three official matches and that he had left the club on 18 July 2012
without informing the club. Therefore, the disciplinary committee of the club
decided to deduct 75% of his monthly salary due to his absence from the training
sessions and 45% of the total amount of his contract for the absence from
matches. According to the Respondent, the case was also reported to the country
I Football Federation on 6 January 2013 and the contract was cancelled by the
disciplinary committee of the country I Football Federation. Consequently, the
Respondent stated that the Claimant should be punished and shall refund the
amounts received from the Respondent due to his absences, the non-fulfilment
of his medical commitments and leaving the club without further notice. Finally,
the Respondent indicated its willingness to negotiate with the Claimant.
9.
After FIFA asked the Respondent if it intends to lodge a counterclaim against the
Claimant and, if so, to provide a detailed breakdown of the amounts claimed, the
Respondent repeated its previous statements and added that “the club
announces its complaint and claims for legal claims of the club resulting from the
absence of this player and non-fulfillment of his obligations”.
10.
In his replica, the Claimant alleged that the decision of the disciplinary committee
of the club is dated 11 December 2012 and that by that time, the Claimant had
already terminated the contract. Further, the Claimant contested having signed
the annex to the contract. The Claimant also contested having left the club on 18
July 2012 and argued that he had participated in eight matches between 6
August and 25 October 2012. In addition, the Claimant denied having had knee
problems and argued that he had signed a new employment contract with the
Club G, from country G, and played 14 matches by the end of the 2012/2013
season.
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11.
In its duplica, the Respondent mainly reiterated its previous allegations. The
Respondent specified the matches from which the player had allegedly been
absent, i.e. on 28 November, 3 December and 20 December 2012. The
Respondent also specified the fines imposed on the Claimant, i.e. USD 180,000 for
the player’s absence from training sessions and USD 153,000 for his absence from
three matches. The Respondent further held that it had paid USD 185,480 to the
Claimant for his salaries for the 2012/2013 season.
12.
On 11 December 2012, the Claimant and the Club G, from country P, signed an
employment contract valid as from 1 January 2013 until the end of the season
2014/2015, according to which the Claimant is entitled to receive the amount of
EUR 27,120 for the season 2012/2013 and the amount of EUR 54,240 for the
season 2013/2014.
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 13 December 2012. 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
of the 2012 and 2014 editions 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 and par. 2
in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014), 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 P player and an county I 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 2012 and 2014), and considering that the present claim was lodged on
13 December 2012, the 2012 edition of said regulations (hereinafter: 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 started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
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refer only to the facts, arguments and documentary evidence, which it considered
pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid for the seasons 2012/2013 and 2013/2014, in accordance with which
the Claimant was entitled to receive a monthly salary of USD 24,000 and an
“advance payment” in the amount of USD 200,000, payable in three instalments.
6.
In continuation, the members of the Chamber took into account that on 9
November 2012, the Claimant notified the Respondent of the termination of the
contract on the basis of outstanding remuneration after having previously put
the Respondent in default in writing. Furthermore, the DRC observed that the
Claimant had lodged a claim before FIFA against the Respondent seeking
payment in the total amount of USD 580,000 corresponding to outstanding
remuneration for the months of August, September and October 2012 and to the
second instalment of the advance payment, as well as compensation for breach of
contract. Finally, the Chamber took note of the Claimant’s request that the
Respondent shall bear his legal costs.
7.
Equally, the Chamber noted that according to the Respondent, the Claimant was
only conditionally employed due to his knee problems and that according to an
annex to the contract apparently signed by the parties, he would accept the
cancellation of his contract if he did not satisfy the coach due to a physical
problem. In addition, the DRC took note of the Respondent’s allegation that the
Claimant had been absent from 18 practice sessions and three official matches
and that he had left the club on 18 July 2012 without informing it. Moreover, the
Chamber noted that the Respondent stated that it had reduced the Claimant’s
remuneration due to his alleged absences from training and the matches,
referring to a decision apparently taken on 11 December 2012 by the disciplinary
committee of the club.
8.
In view of the foregoing, the DRC highlighted that the central issue in the matter
at stake would be, thus, to determine as to whether the Claimant had just cause
to terminate the contract on 9 November 2012.
9.
In this respect, the Chamber wished to emphasize that, according to the
Claimant, at the time of the termination of the contract on 9 November 2012, the
total amount of USD 122,000 corresponding to three monthly salaries as well as
the second instalment of an advance payment was yet to be paid by the
Respondent.
10.
The DRC then turned its attention to the arguments of the Respondent and
acknowledged that according to the latter, the Claimant had been absent from
the matches played on 28 November, 3 December and 20 December 2012 and
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that the Respondent had imposed fines in the total amount of USD 333,000 on
the Claimant due to his absences from training sessions and the three
aforementioned matches.
11.
Moreover, the members of the Chamber acknowledged that the Claimant stated
that the decision of the club’s disciplinary committee was taken after the
termination of the contract and that he had never signed an annex to the
contract. Equally, the Chamber observed that the Claimant contested having left
the club on 18 July 2012 and presented a list confirming his participation in eight
matches between 6 August and 25 October 2012.
12.
In this context, the Chamber firstly concurred that the fines imposed on the
Claimant by the Respondent shall be disregarded, since a) the Respondent was
not able to proof the Claimant’s absences from training and matches before the
termination of the agreement on 9 November 2012; b) a fine for the absence of a
player after the player terminated the contract cannot be justified, and c) the
total amount of the fines imposed on the Claimant by the Respondent represents
more than half of the player’s yearly remuneration and, consequently, must be
considered disproportionate.
13.
Furthermore, and irrespective of the foregoing consideration, the Chamber
wished to point out that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a means to set off outstanding
financial obligations towards players. Consequently, the Chamber decided to
reject the Respondent’s argument in this connection.
14.
Moreover, as a consequence of the aforementioned considerations and taking
into account the documentation presented by the parties to the dispute, the
Chamber established that the total amount of USD 122,000 relating to three
monthly salaries corresponding to August, September and October 2012 in the
amount of USD 72,000, and the second instalment of the advance payment in the
amount of USD 50,000 had fallen due and remained outstanding at the time of
the termination of the contract by the Claimant. Consequently, the Chamber
concurred that the Respondent had seriously neglected its financial contractual
obligations towards the Claimant.
15.
On account of the above, the Chamber decided that the Claimant had just cause
to unilaterally terminate the contract on 9 November 2012 and that the
Respondent is to be held liable for the early termination of the contract with just
cause by the Claimant.
16.
Having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the
Chamber focussed its attention on the consequences of such termination. Taking
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into consideration art. 17 par. 1 of the Regulations, the Chamber decided that
the Claimant is entitled to receive an amount of money from the Respondent as
compensation for the termination of the contract with just cause in addition to
any outstanding payments on the basis of the relevant employment contract.
17.
As a consequence, on account of the above 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. USD 72,000 corresponding to the
salaries relating to August, September and October 2012, and USD 50,000
corresponding to the second instalment of the advance payment, which was due
on 10 July 2012. Accordingly, the Chamber decided that the Respondent has to
pay to the Claimant outstanding remuneration in the total amount of USD
122,000.
18.
In addition, taking into consideration the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber in this regard, the members
of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on
the outstanding amount of USD 122,000 until the date of effective payment as
follows:
a. 5% p.a. as of 16 August 2012 on the amount of USD 24,000;
b. 5% p.a. as of 16 September 2012 on the amount of USD 24,000;
c. 5% p.a. as of 16 October 2012 on the amount of USD 24,000;
d. 5% p.a. as of 1 January 2013 on the amount of USD 50,000.
19.
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
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.
20.
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. In this regard, the Chamber established that no such compensation
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clause was included in the employment contract at the basis of the matter at
stake.
21.
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.
22.
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.
23.
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. 9 November
2012, until 22 May 2014, and concluded that the Claimant would have received in
total USD 458,000 as remuneration had the contract been executed until its
expiry date. Consequently, the Chamber concluded that the amount of USD
458,000 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
24.
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
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.
25.
The Chamber recalled that, on 11 December 2012, the player signed an
employment contract with the Club G, from country P, valid as from 1 January
2013 until the end of the season 2014/2015, in accordance with which the player
was to receive the amount of EUR 27,120 for the season 2012/2013 and the
amount of EUR 54,240 for the season 2013/2014. Hence, this employment
contract enabled the Claimant to earn an income of EUR 77,487 in the period as
of 9 November 2012 until 22 May 2014.
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26.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to
mitigate his damage, the Chamber decided to partially accept the Claimant’s
claim and that the Respondent must pay the amount of USD 361,000 as
compensation for breach of contract in the case at hand.
27.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount
of compensation as of the date on which the claim was lodged, i.e. 13 December
2012 until the date of effective payment.
28.
In addition, as regards the claimed legal expenses, the Chamber referred to
art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural compensation
shall be awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant’s request relating to
legal expenses.
29.
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 V, is partially accepted.
2.
The Respondent, Club T, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
USD 122,000 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
5% p.a. as of 16 August 2012 on the amount of USD 24,000;
5% p.a. as of 16 September 2012 on the amount of USD 24,000;
5% p.a. as of 16 October 2012 on the amount of USD 24,000;
5% p.a. as of 1 January 2013 on the amount of USD 50,000.
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 in the amount
of USD 361,000 plus 5% interest p.a. as from 13 December 2012 until the date of
effective payment.
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
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time limits, 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
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
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