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 N, from country F
as Claimant / Counter-Respondent
against the club,
Club L, from country C
as Respondent / Counter-Claimant
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 22 June 2011, Player N, form country F (hereinafter: player or Claimant /
Counter-Respondent), and Club L, from country C (hereinafter: club or Respondent /
Counter-Claimant), signed an employment contract (hereinafter: contract) valid as
from the date of the issuance of the ITC until 31 May 2013.
2.
On 23 June 2011, the parties signed an agreement “in addition to” the contract
(hereinafter: agreement) also valid for the seasons 2011/2012 and 2012/2013,
according to which the Claimant / Counter-Respondent was to receive additional
payments from the Respondent / Counter-Claimant in exchange for his services as a
football player.
3.
According to the contract, the Claimant / Counter-Respondent was entitled to
receive from the Respondent / Counter-Claimant the following net remuneration:
a) EUR 30,000 for the season 2011/2012, to be paid in ten monthly instalments
of EUR 3,000 each “and with a grace period of 90 days”, the first of which
was due on 31 August 2011;
b) EUR 40,000 for the season 2012/2013, to be paid in ten monthly instalments
of EUR 4,000 each “and with a grace period of 90 days”, the first of which
was due on 31 August 2012.
4.
According to the agreement, the Respondent / Counter-Claimant had to pay to the
Claimant / Counter-Respondent the following net amounts:
a) EUR 80,000 as remuneration for the season 2011/2012, to be paid in ten
monthly instalments of EUR 8,000 each “and with a grace period of 90 days”,
the first of which was due on 31 August 2011;
b) EUR 90,000 as remuneration for the season 2012/2013, to be paid in ten
monthly instalments of EUR 9,000 each “and with a grace period of 90 days”,
the first of which was due on 31 August 2012;
c) EUR 30,000 as signing-on fee;
d) EUR 20,000 as signing-on fee for the season 2012/2013, due on 30 June 2012;
e) EUR 6,000 for accommodation;
f) EUR 5,000 for flight tickets.
Finally, the agreement stipulates that the Respondent / Counter-Claimant must
provide the Claimant / Counter-Respondent with a car.
5.
In July and September 2012, the Claimant / Counter-Respondent sent a total of four
letters to the Respondent / Counter-Claimant requesting the payment of
outstanding salaries, expenses for accommodation, the car and flight tickets for the
months of April, May and August 2012 as well as the signing-on fee for the season
2012/2013. In his notification letters, the Claimant / Counter-Respondent also asked
the Respondent / Counter-Claimant to allow him to participate in training with the
Player N, form country F / Club L, from country C
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team and asked for medical care for the injury he apparently had since January
2012.
6.
On 16 January 2013, the Claimant / Counter-Respondent sent another letter to the
Respondent / Counter-Claimant requesting outstanding payments in the amount of
EUR 45,670 corresponding to more than three monthly salaries, expenses for
accommodation, a car and flight tickets. In his letter, the Claimant / CounterRespondent asked the Respondent / Counter-Claimant to pay the outstanding
amounts within eight days.
7.
On 25 January 2013, the Claimant / Counter-Respondent sent another letter to the
Respondent / Counter-Claimant, stating that the Respondent / Counter-Claimant
had failed to comply with its obligations in spite of his reminders and that he
considered the Respondent / Counter-Claimant to be responsible for the breach of
the contract.
8.
On 5 February 2013, the Claimant / Counter-Respondent lodged a claim before FIFA
against the Respondent / Counter-Claimant claiming the total amount of EUR
113,670 as follows:
a) EUR 2,000 as outstanding remuneration for the months of August and
September 2012, based on both the contract and the agreement;
b) EUR 16,000 as outstanding remuneration for the months of October 2012
until January 2013, based on the contract;
c) EUR 36,000 as outstanding remuneration for the months of October 2012
until January 2013, based on the agreement;
d) EUR 2,400 corresponding to his accommodation expenses for the months of
October 2012 until January 2013;
e) EUR 1,630 for the flight tickets for his family to country F and back to country
C;
f) EUR 1,240 for the car expenses corresponding to the months of October to
December 2012;
g) EUR 16,000 as compensation for breach of contract corresponding to the
residual value of the contract as from February until May 2013;
h) EUR 36,000 as compensation for breach of contract corresponding to the
residual value of the agreement as from February until May 2013;
i) EUR 2,400 as compensation corresponding to his accommodation expenses
for the months of February to May 2013.
The Claimant / Counter-Respondent equally claimed interest of 5% p.a. on the
amounts claimed as of 16 January 2013.
9.
In this regard, the Claimant / Counter-Respondent explained that he had received all
the payments for the season 2011/2012, however, with repeated delays.
Player N, form country F / Club L, from country C
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10.
As regards the season 2012/2013, the Claimant / Counter-Respondent stated that,
for the months of August and September 2012, the Respondent / Counter-Claimant
had only paid him a monthly remuneration of EUR 12,000, instead of EUR 13,000 on
the basis of both the contract and the agreement. The Claimant / CounterRespondent added that the Respondent / Counter-Claimant had failed to pay his full
remuneration for the months of October 2012 until January 2013 in the total
amount of EUR 52,000 according to the contract and the agreement.
11.
On 10 May 2013, the Respondent / Counter-Claimant replied to the Claimant /
Counter-Respondent’s claim and lodged a counter-claim against the Claimant /
Counter-Respondent.
12.
The Respondent / Counter-Claimant claims the payment of the following amounts:
a) EUR 8,000 corresponding to the costs of a car accident caused by the
Claimant / Counter-Respondent;
b) EUR 28,500 as the amount that the Respondent / Counter-Claimant will have
to pay to the Inland Revenue Department of country C with respect to the
income of the Claimant / Counter-Respondent for the season 2011/2012;
Furthermore, the Respondent / Counter-Claimant requests FIFA to award any other
remedy that it deems appropriate.
13.
The Respondent / Counter-Claimant rejected all the Claimant / CounterRespondent’s allegations and deemed the termination of the contract by the
Claimant / Counter-Respondent on 25 January 2013 to be illegal. The Respondent /
Counter-Claimant argued that the contract and the agreement granted it a grace
period of 90 days for the payment of each salary. Consequently, according to the
Respondent / Counter-Claimant, on 25 January 2013, it owed the Claimant /
Counter-Respondent’s remuneration for the months of October, November and
December 2012, however, there was a grace period of 90 days for each month. In
this respect, the Respondent / Counter-Claimant added that it paid the Claimant /
Counter-Respondent all outstanding amounts until September 2012. Moreover, the
Respondent / Counter-Claimant presented a payment receipt dated 28 September
2012 signed by the Claimant / Counter-Respondent indicating “full settlement of
any amount due until 30/9/2012. Salary of August and September, air tickets, rents,
car etc”.
14.
Furthermore, the Respondent / Counter-Claimant alleged that its own doctor had
not established any injury of the Claimant / Counter-Respondent and the latter had
refused to train with the team. Due to the Claimant / Counter-Respondent’s
behaviour as of March 2012, the Respondent / Counter-Claimant did apparently not
“subscribe the Player at the list of the Club’s Player” for the period as from August
until December 2012 and hoped to be able to subscribe him again as from January
2013 for the rest of the season. The Respondent / Counter-Claimant added that it
had imposed a fine of EUR 10,000 on the Claimant / Counter-Respondent.
Player N, form country F / Club L, from country C
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15.
The Respondent / Counter-Claimant further alleged that on 21 August 2012, the
Claimant / Counter-Respondent had a car accident due to his careless driving. The
damage to the car which apparently belonged to the Respondent / CounterClaimant amounted to EUR 8,000. Finally, the Respondent / Counter-Claimant held
that in November 2012, the Claimant / Counter-Respondent had travelled with his
family from country C to country F.
16.
In his reply to the counter-claim, the Claimant / Counter-Respondent stated that the
grace period of 90 days cannot be accepted. The Claimant / Counter-Respondent
referred to art. 14 of the Regulations and held that three or more monthly
outstanding salaries allow a player to terminate a contract. As regards his health,
the fine in the amount of EUR 10,000 and the car accident, the Claimant / CounterRespondent held that these requests must be rejected since they are not the subject
of the existing dispute. Finally, the Claimant / Counter-Respondent stated that
according to the contract and the agreement, it was the Respondent / CounterClaimant’s obligation to pay the taxes.
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 5 February
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. art. 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 in
combination 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 F player and a country C 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 5 February
2013, 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,
Player N, form country F / Club L, from country C
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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 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 DRC acknowledged that the parties signed an employment
contract as well as an agreement, valid for the seasons 2011/2012 and 2012/2013.
The DRC noted that according to the contract, the Claimant / Counter-Respondent
was entitled to receive, inter alia, remuneration in the amount of EUR 40,000, to be
paid in ten monthly instalments of EUR 4,000 each “and with a grace period of 90
days”, the first of which was due on 31 August 2012. The Chamber also took note
that according to the agreement, the Respondent / Counter-Claimant had to pay to
the Claimant / Counter-Respondent, inter alia, the amount of EUR 90,000 as
remuneration for the season 2012/2013, to be paid in ten monthly instalments of
EUR 9,000 each “and with a grace period of 90 days”, the first of which was due on
31 August 2012, the amount of EUR 6,000 for accommodation and the amount of
EUR 5,000 for flight tickets.
6.
The Chamber further observed that the Claimant / Counter-Respondent had lodged
a claim before FIFA against the Respondent / Counter-Claimant seeking payment in
the total amount of EUR 113,670 corresponding to outstanding remuneration for
the months of August 2012 until January 2013, outstanding accommodation
expenses, a flight ticket and car expenses as well as compensation for breach of
contract.
7.
In this respect, the Chamber paid due consideration to the fact that by means of his
correspondence dated 25 January 2013, the Claimant / Counter-Respondent had
terminated the contractual relationship, based on the Respondent / CounterClaimant’s alleged failure to pay more than three monthly salaries and his expenses
for accommodation, a car and flight tickets. In addition, the DRC noted that the
Claimant / Counter-Respondent was of the opinion that the grace period of 90 days
which is stipulated in both the contract and the agreement should not be taken into
account when calculating the due dates of the salary payments. Moreover, the DRC
took note of the Claimant / Counter-Respondent’s allegation to have had just cause
to terminate the contract and the agreement with the Respondent / CounterClaimant and that thus, the latter is to be held liable for the payment of
compensation for breach of contract.
8.
Subsequently, the Chamber noted that, on the other hand, the Respondent /
Counter-Claimant claims that the Claimant / Counter-Respondent did not have just
cause to terminate the contract on 25 January 2013 because both the contract and
the agreement granted the Respondent / Counter-Claimant a grace period of 90
days for the payment of each salary. In addition, the DRC took note of the
Player N, form country F / Club L, from country C
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Respondent / Counter-Claimant’s allegation that on 25 January 2013, it only owed
the Claimant / Counter-Respondent’s remuneration for the months of October,
November and December 2012, however, because of the grace period, none of
these monthly salaries were due at that time.
9.
Moreover, the Chamber noted that the Respondent / Counter-Claimant alleged that
the Claimant / Counter-Respondent left the country in November 2012, assertion
that was not disputed or contested by the Claimant / Counter-Respondent.
10.
Having established the aforementioned, the Chamber concluded that the
underlying issue in this dispute, considering the claim and the counter-claim of the
parties, was to determine whether the employment contract had been unilaterally
terminated with or without just cause by the Claimant / Counter-Respondent, and
which party was responsible for the early termination of the contractual
relationship in question.
11.
In this regard, the Chamber reiterated that according to the Claimant / CounterRespondent, the full salaries for October, November and December 2012 and part of
the salaries for August and September 2012 as well as expenses for accommodation,
a car and flight tickets were outstanding, when he terminated the contractual
relationship with the Respondent / Counter-Claimant on 25 January 2013.
12.
Furthermore, the DRC observed that the Respondent / Counter-Claimant contested
the allegations presented by the Claimant / Counter-Respondent, by explaining that
it had paid the Claimant / Counter-Respondent all outstanding amounts until
September 2012 and claiming that the salaries for October, November and
December 2012 were not due at the time of the Claimant / Counter-Respondent’s
unilateral termination of the contractual relationship, in light of the 90 days grace
period established in both the contract and the agreement.
13.
In view of the above, the Chamber firstly established that as regards the salaries for
August and September 2012, the Respondent / Counter-Claimant and, what is more,
the Claimant / Counter-Respondent as well, presented a payment receipt dated 28
September 2012 signed by the Claimant / Counter-Respondent indicating “full
settlement of any amount due until 30/9/2012. Salary of August and September, air
tickets, rents, car etc”. Hence, the Chamber concluded that the salaries for the
months of August and September 2012 had been fully paid to the Claimant /
Counter-Respondent by the Respondent / Counter-Claimant.
14.
In continuation, the Chamber went on to analyse whether the salaries for October,
November and December 2012 were due at the time the Claimant / CounterRespondent left the Respondent / Counter-Claimant, i.e. in November 2012. In this
respect, the DRC recalled that according to the contract and the agreement, the
Player N, form country F / Club L, from country C
Page 7 of 10
monthly instalments are due on the 31st of each month “with a grace period of 90
days”.
15.
Subsequently, the Chamber observed that said wording was included in the contract
and the agreement as a result of mutual consent of the parties and, therefore its
legal consequences were accepted by the Claimant / Counter-Respondent.
16.
In addition, the Chamber recalled that the inclusion of such stipulations in a
contract, regarding the payment date of remuneration, is not prohibited by the
FIFA Regulations.
17.
Consequently, the DRC determined that the grace period for the payment of
salaries established in the contract and the agreement, as a valid provision
established by the free will of the parties, is applicable to the matter at hand and,
therefore, the salaries of October, November and December 2012 were payable on
29 January 2013 and at the end of February and March, respectively.
18.
On account of the above-mentioned considerations, the Chamber concluded that
the salaries of October, November and December 2012 were indeed not yet
outstanding by the time of termination and cannot be considered as a valid cause to
justify the unilateral termination of the contract by the Claimant / CounterRespondent on 25 January 2013.
19.
Having established the above, the DRC focussed its attention on the consequences
resulting from the early termination of the employment contract by the Claimant /
Counter-Respondent. Taking into consideration art. 17 par. 1 of the Regulations, the
Dispute Resolution Chamber decided that the Claimant / Counter-Respondent is not
entitled to receive from the Respondent / Counter-Claimant any compensation for
breach of contract.
20.
The members of the Chamber then reverted to the Claimant’s financial claim for
outstanding salaries as well as for accommodation, a flight ticket and car expenses.
In this regard, the Chamber pointed out that the Respondent / Counter-Claimant, in
its defence, did not dispute that the salaries had not been paid as of October 2012.
Furthermore, the DRC recalled that it was undisputed that the Claimant / CounterRespondent had left country in November 2012.
21.
In view of all the above and in accordance with the general legal principle of pacta
sunt servanda, the DRC held that the Respondent / Counter-Claimant must fulfil its
contractual obligations towards the Claimant / Counter-Respondent for the period
as from October until November 2012 and, therefore, the Respondent / CounterClaimant is to be held liable to pay the Claimant / Counter-Respondent the amount
of EUR 26,000 corresponding to the monthly salaries, as well as the amount of EUR
520 corresponding to the monthly accommodation. In the absence of any monetary
Player N, form country F / Club L, from country C
Page 8 of 10
value in the contractual condition relating to a car and of any documentary
evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules), the Chamber
had to reject the Claimant / Counter-Respondent’s claim amounting to EUR 1,240
relating to said fringe benefits.
22.
In continuation and with regard to the Claimant / Counter-Respondent's request for
interest, the DRC decided that the Claimant / Counter-Respondent is entitled to
receive interest at the rate of 5% p.a. on the amount of EUR 26,520 until the date
of effective payment as follows:
a. 5% p.a. as of 16 January 2013 on the amount of EUR 520;
b. 5% p.a. as of 1 February 2013 on the amount of EUR 13,000;
c. 5% p.a. as of 1 March 2013 on the amount of EUR 13,000.
23.
The DRC concluded its deliberations in the present matter by rejecting any further
claim of the Claimant / Counter-Respondent.
24.
In continuation, the DRC recalled that on 10 May 2013, the Respondent / CounterClaimant had lodged a counter-claim against the Claimant / Counter-Respondent, by
means of which it claimed the amount of EUR 8,000 corresponding to the costs of a
car accident caused by the Claimant / Counter-Respondent and EUR 28,500 as the
amount that the Respondent / Counter-Claimant will have to pay to the Inland
Revenue Department of country C with respect to the income of the Claimant /
Counter-Respondent for the season 2011/2012.
25.
In this respect, the Chamber held that the Respondent / Counter-Claimant’s counterclaim regarding an alleged car accident is not employment-related. Hence, the
Chamber decided to reject the counter-claim in this regard. As regards the second
request in the Respondent / Counter-Claimant’s counter-claim, the Chamber
established that the Dispute Resolution Chamber is not competent to deal with tax
issues.
26.
Consequently, the DRC rejected the counter-claim of the Respondent / CounterClaimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Player N, is partially accepted.
2.
The counter-claim of the Respondent / Counter-Claimant, Club L, is rejected.
3.
The Respondent / Counter-Claimant, has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, the
amount of EUR 26,520 plus 5% interest p.a. until the date of effective payment as
follows:
Player N, form country F / Club L, from country C
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a) 5% p.a. as of 16 January 2013 on the amount of EUR 520;
b) 5% p.a. as of 1 February 2013 on the amount of EUR 13,000;
c) 5% p.a. as of 1 March 2013 on the amount of EUR 13,000.
4.
In the event that the aforementioned amount plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant 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. 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
Player N, form country F / Club L, from country C
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