Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 November 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Johan van Gaalen (South Africa), member
on the matter between the player,
Player G, from country H
as Claimant/Counter-Respondent
and the club,
Club V, from country R
as Respondent/Counter-Claimant
and the club,
Club S, from country S
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 January 2011, Player G, from country H (hereinafter: the Claimant/CounterRespondent), and Club V, from country R (hereinafter: the Respondent/CounterClaimant), concluded an employment contract (hereinafter: the contract) valid as from
the date of signature until 15 June 2012, with an extension option until 15 June 2013.
2.
According to art. 6 and 9 of the contract, the Respondent/Counter-Claimant undertook to
provide the Claimant/Counter-Respodent with the following amounts:
- EUR 14,300 as obligatory monthly remuneration, payable in currency of country
R according to the exchange rate of the pay-day;
- unspecified bonuses;
- unspecified monthly accommodation expenses;
- EUR 600,000 as compensation for the Claimant/Counter-Respondent’s relocation
to Club V, payable as follows, in currency of country R according to the exchange
rate of the pay-day:
a. EUR 60,000 at the latest on 20 April 2011;
b. EUR 60,000 at the latest on 20 July 2011;
c. EUR 60,000 at the latest on 20 October 2011;
d. EUR 60,000 at the latest on 20 January 2012;
e. EUR 60,000 at the latest on 20 April 2012;
f. EUR 60,000 at the latest on 20 July 2012;
g. EUR 60,000 at the latest on 20 October 2012;
h. EUR 60,000 at the latest on 20 January 2013;
i. EUR 60,000 at the latest on 20 April 2013;
j. EUR 60,000 at the latest on 20 July 2013.
3.
Furthermore, art. 10.3 of the contract stipulates that “In case of a dispute arising
between the parties, the player agrees to be subjected to the investigation procedures of
the club. In case the dispute is not solved, a solution will be found in accordance with the
regulations of FIFA, UEFA, Football Union of country R and country R Premier League. If
the case is not solved through the application of the aforementioned regulations or in
case the player does not accept or agree with the decision, he is entitled to refer the
dispute to a court”.
4.
On 14 February 2012, after having sent the Respondent/Counter-Claimant two reminders
on 27 January 2012 and on 9 February 2012, the Claimant/Counter-Respondent
terminated the contract in writing, alleging that the amount of EUR 253,278 was
outstanding and requesting the payment of the total amount of EUR 363,328,
corresponding to said outstanding amounts plus EUR 110,050 as compensation for breach
of contract.
Player G, from country H / Club V, from country R / Club S, from country B
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5.
On 4 April 2012, the Claimant/Counter-Respondent lodged a claim in front of FIFA
against the Respondent/Counter-Claimant, requesting, after amending his claim, the
payment of the total amount of EUR 310,873.11, broken down as follows:
- EUR 200,823.11 plus interest of 5% p.a. as from 15 February 2012, corresponding
to outstanding salaries and bonuses until the date of termination (EUR 451,100,
i.e. amount that allegedly should have been paid until 14 February 2012, minus
EUR 197,822, i.e. amount paid until 14 February 2012, minus EUR 52,454.89, i.e.
amount paid after 14 February 2012);
- EUR 110,050 as compensation for breach of contract, corresponding to the
Claimant/Counter-Respondent’s remuneration from March 2012 until 15 June
2012 (3,5 x EUR 14,300 + EUR 60,000).
6.
According to the Claimant/Counter-Respondent, as from 2011 the Respondent/CounterClaimant started paying him incomplete amounts. He claims that until 14 February 2012,
he should have received from the Respondent/Counter-Claimant the total amount of EUR
451,100, corresponding to 12 monthly salaries for 2011 (12 x EUR 14,300), 2 monthly
salaries for 2012 (2 x EUR 14,300), a “premium” of currency of country R 450,000 / EUR
10,900 and 4 instalments of EUR 60,000 for April, July and October 2011 and January
“2011”. However, he claims to have received only the amount of EUR 197,822. In this
regard, the Claimant/Counter-Respondent provided copies of his bank statements for the
aforementioned period.
7.
Thus, the Claimant/Counter-Respondent sent the Respondent/Counter-Claimant the
reminders of 27 January 2012 and 9 February 2012, informing it that in case the
requested amounts were not paid, the Respondent/Counter-Claimant would be
considered in breach of contract. Such reminders, however, remained unanswered by the
Respondent/Counter-Claimant. Thus, on 14 February 2012, the Claimant/CounterRespondent terminated the contract (cf. point I.4. above).
8.
As per the Claimant/Counter-Respondent, only on 16 February 2012, the
Respondent/Counter-Claimant contacted him in writing, claiming inter alia that “So far
Player G did not give the documents confirming expenses for the relocation to Club V, on
the basis of which the club could produce compensation. Thus, the club reserves the right
not to pay the costs associated with the moving to Club V to Player G, before they are
documented and the actual product”. In spite of the foregoing, the Claimant/CounterRespondent claims having received from the Respondent/Counter-Claimant on 16
February 2012, on 1 March 2012 and on 18 June 2012, i.e. after the termination, the
amounts of currency of country R 473,837, currency of country R 400,000 and currency of
country R 1,276,817.19, totalling currency of country R 2,150,654.19 or EUR 52,454.89.
9.
In addition, the Claimant/Counter-Respondent claims that on 5 March 2012, the
Respondent/Counter-Claimant admitted in writing to owe him the amount of currency of
country R 1,751,544.29. However, the Respondent/Counter-Claimant insisted that the
payment of compensation for his relocation can only be made after he had provided the
Player G, from country H / Club V, from country R / Club S, from country B
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necessary documentation. Furthermore, the Respondent/Counter-Claimant informed him
that, in order not to hinder the Claimant/Counter-Respondent’s career, it would “make
the necessary arrangements for the provision of an international transfer certificate to
Player G, in connection with that we would like to offer to conclude an agreement to
terminate the employment contract of player, according to which to transfer the
question of compensation costs moving to work in Club V for considerations to the
jurisdictional authorities of the country R Football Union”.
10.
The Claimant/Counter-Respondent claims to have been surprised by a letter of the
Respondent/Counter-Claimant, dated 19 March 2012, warning him that he had been
absent from work “without a reasonable excuse”, requesting his immediate return and
advising that, in case of continued absence, he would be terminating the contract
unilaterally. On 20 March 2012, the Claimant/Counter-Respondent responded to such
letter in writing, explaining that he had terminated the contract with just cause on 14
February 2012 and requesting, once again, the payment of the total amount of EUR
342,014.94 until 31 March 2012. On 18 April 2012, the Respondent/Counter-Claimant in
writing notified the Claimant/Counter-Respondent that it had terminated the contract
with him on 30 March 2012, on the basis of his unauthorized absence.
11.
Finally, the Claimant/Counter-Respondent points out that the contract does not stipulate
that he should submit any proof of his costs in order to be able to receive the instalments
of EUR 60,000, which are part of his wage. Thus, the aforementioned instalments should
be paid to him in full.
12.
In its reply to the claim, the Respondent/Counter-Claimant maintains that the instalments
of EUR 60,000 do not form part of the Claimant/Counter-Respondent’s salary, but are in
fact the reimbursement of the expenses of his relocation to Club V. As per the
Respondent/Counter-Claimant, according to country R law, such amounts can only be
paid in case the Claimant/Counter-Respondent presents consistent evidence of such
expenses. The fact that this is not explicitly stipulated in the contact does not invalidate
the application of the country R law. The Respondent/Counter-Claimant claims to have
explained the foregoing situation to the Claimant/Counter-Respondent by means of its
correspondence dated 1 February 2012, 14 February 2012 and 5 March 2012.
13.
In addition, the Respondent/Counter-Claimant confirms to owe the Claimant/CounterRespondent remuneration in the amount of currency of country R 655,492.89 –
corresponding to approximately EUR 16,773 – and currency of country R 230,718 –
approximately EUR 5,903 – as accommodation costs. In this regard, the
Respondent/Counter-Claimant provided a statement of the XY Bank, dated 27 June 2012,
confirming the payment of the total amount of currency of country R 8,129,554.5 to the
Claimant/Counter-Respondent between 17 March 2011 and 10 February 2012, as well as
currency of country R 473,837.10 on 16 February 2012, currency of country R 400,091.13
on 1 March 2012 and currency of country R 1,276,817.19 on 18 June 2012, i.e. grand total
of currency of country R 10,280,299.
Player G, from country H / Club V, from country R / Club S, from country B
4/18
14.
Furthermore, the Respondent/Counter-Claimant considers that the termination of the
contract by the Claimant/Counter-Respondent on 14 February 2012 was without just
cause, considering that the Respondent/Counter-Claimant showed its interest in solving
the Claimant/Counter-Respondent’s complaint and was also constantly paying him
various amounts, as evidenced by the XY bank statement (cf. point I.13. above).
Therefore, in view of the Claimant/Counter-Respondent’s prolonged absence at the club,
the Respondent/Counter-Claimant dismissed him as from 30 March 2012 for “committing
a single gross violation of labour duties”. In this regard, the Respondent/CounterClaimant provided several statements issued by the club itself, related to the
Claimant/Counter-Respondent’s alleged absence between 29 February 2012 and 23 March
2012.
15.
Thus, the Respondent/Counter-Claimant lodges a counterclaim against the
Claimant/Counter-Respondent, requesting, after an amendment, the payment of
compensation for breach of contract in the amount of EUR 110,050, compensation for
the specificity of sport in the amount of 6 monthly salaries, as well as procedural costs
and legal fees.
16.
Finally, the Respondent/Counter-Claimant informed that on 20 June 2012, it lodged a
complaint against the Claimant/Counter-Respondent before the National Dispute
Resolution Chamber (hereinafter: NDRC) of the country R Football Union, requesting the
reimbursement of the amount of currency of country R 4,030,901, based on the fact that
the Claimant/Counter-Respondent failed to provide the Respondent/Counter-Claimant
with evidence of his relocation expenses, in spite of having been requested to do so.
Thus, as per the Respondent/Counter-Claimant, the amount of currency of country R
4,030,901 was used by the Claimant/Counter-Respondent to “obtain profit not connected
employment responsibilities performance that contradicts article 164 of the Labour code
of country R” and “law enforcement authorities could interpret it as abuse of right
resulted in unjustified profit obtention and apply the relevant sanction to the club”.
17.
The Respondent/Counter-Claimant also provided a copy of the decision reached by the
NDRC of the country R Football Union on 25 July 2012, according to which the
Respondent/Counter-Claimant’s claim was accepted and the Claimant/CounterRespondent was held liable to reimburse the “compensation for movement in the
amount of currency of country R 4,030,901 […]”. The Respondent/Counter-Claimant
claims that, in spite of having been summoned on 10 and on 25 July 2012 to take part in
the hearing before the NDRC of the country R Football Union, the Claimant/CounterRespondent did not respond to the claim and was not present at the hearing. In this
regard, the Chamber was provided with the following documentation:
Respondent/Counter-Claimant‘s letter dated 24 July 2012, informing the
Claimant/Counter-Respondent of the hearing on 25 July 2012, at 10:30 a.m., and
Respondent/Counter-Claimant‘s letter dated 10 July 2012, informing him of a hearing on
i.e. 11 July 2012 at 11:00.
Player G, from country H / Club V, from country R / Club S, from country B
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18.
In his reply, the Claimant/Counter-Respondent rejects the decision of the NDRC of the
country R Football Union and claims not to have participated in these proceedings. In this
regard, he claims that, on 11 July 2012, he received a letter from the
Respondent/Counter-Claimant dated 10 July 2012, notifying him to be present at a
hearing of the country R Football Union’s NDRC to take place on the same day in country
R. He also confirms having received the Respondent/Counter-Claimant‘s letter of 24 July
2012. At the time, he was living in country H.
19.
Furthermore, the Claimant/Counter-Respondent claims that he was never informed of the
content of the Respondent/Counter-Claimant‘s claim in front of the country R Football
Union and that the decision of 25 July 2012 did not respect the due process of law, as he
was never granted the right to be heard. Therefore, such proceedings should be null and
void.
20.
In addition, the Claimant/Counter-Respondent states that he “will never accept the
competence of the country R Football Union’s Dispute Resolution Chamber in this case”,
as such body is not in accordance with art. 22 lit. b) of the FIFA Regulations on the Status
and Transfer of Players.
21.
The Claimant/Counter-Respondent further pointed out that the claim of the
Respondent/Counter-Claimant in front of the country R Football Union was lodged on 20
July 2012, while his claim in front of the FIFA DRC was lodged on 4 April 2012.
22.
The Claimant/Counter-Respondent also maintains that the termination of the contract by
the Respondent/Counter-Claimant on 18 April 2012, with effect as from 30 March 2012,
cannot be considered since it occurred more than 2 months after he had terminated the
contract, after having warned the Respondent/Counter-Claimant‘s letter of its situation
of breach.
23.
In its final comments to the Claimant/Counter-Respondent’s claim, the
Respondent/Counter-Claimant contested the competence of FIFA based on art. 10.3 of
the contract (cf. point I.3. above), claiming that the NDRC of the country R Football Union
has exclusive jurisdiction over the present case.
24.
In this regard, the Respondent/Counter-Claimant provided, inter alia, a partial copy of
the “Regulations of the country R Football Union for the Resolution of Disputes” (March
2012 edition; hereinafter: the Regulations of the country R Football Union). The
Regulations of the country R Football Union stipulate, inter alia, the following:
a) with regard to the jurisdiction of the NDRC of the country R Football Union
(hereinafter: the Chamber):
According to art. 13 of the Regulations of the country R Football Union, the
Chamber is competent to “consider and resolve the following disputes:
(…) registration of the football players (…)
Player G, from country H / Club V, from country R / Club S, from country B
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(…) between the football club and the football player.
(…) head coach, coaches (…)
(…) for payment if the compensation for education and training of the football
player (…)”
b) with regard to the composition:
Art. 7 of the Regulations of the country R Football Union establishes that the
Chamber consists of twelve members (Chairman, Deputy of the Chairman, five
representatives of professional football players and five representatives of the
professional football clubs). The composition of the Chamber is approved by the
Executive Committee, whereas the representative of the professional football
players are elected by the trade unions and of the representatives of the
professional football club three are elected from the country R football Premier
League, one of the Football National League and one of the second division and
other disciplines.
Moreover, according to art. 8.9 of the Regulations of the country R Football Union
the “Chamber may make a decision in the case of presence at the session Chamber
of the majority of all appointed members of the Chamber, including the Chairman
or his deputy.”
c) with regard to the possibility of an appeal:
Concerning the possibility of an appeal against a decision taken by the Chamber,
art. 53 stipulates that “1. The decision of the Chamber may be appealed only to the
Committee within 7 calendar days from the receipt of the decision. 2. The
Committee’s decision can be appealed only in the Sports Court of Arbitration
(Tribunal Arbitral du Sport) in Lausanne (Switzerland) within 21 calendar days from
the receipt of the decision.”
25.
As to the substance, the Respondent/Counter-Claimant‘s letter refers the parties to the
exact wording of art. 6 and 9 of the contract (cf. point I.2. above), as follows: art. 6 “The
Footballer has a monthly salary excluding compensatory, incentive and social payments in
the amount of 14,300 euro per month, in roubles at the exchange rate of the country R
Federation Central Bank on the date of payment” and art. 9 “The employer shall
reimburse transfer expenses connected with move to Club V for work in the amount of
600,000 euros at the rate of the central Bank of country R at the date of charging
(quarterly from 20.04.2011 to 20.07.2013”.
26.
In view of the foregoing, the Respondent/Counter-Claimant maintains its previous
argumentation and insists on the fact that the amount foreseen in art. 9 of the contract
is not part of the Claimant/Counter-Respondent’s remuneration and is only payable upon
the presentation of proof of expenses, which the Respondent/Counter-Claimant allegedly
tried to explain to the Claimant/Counter-Respondent on several occasions. The
Respondent/Counter-Claimant admits that in January 2012, as it received the
Claimant/Counter-Respondent’s reminders, the outstanding remuneration towards him
amounted to EUR 80,000 at the most, but he was not entitled to claim the amounts
stipulated in art. 9 of the contract.
Player G, from country H / Club V, from country R / Club S, from country B
7/18
27.
The Respondent/Counter-Claimant further claims that it, in good faith, paid the
Claimant/Counter-Respondent almost EUR 100,000 in advance, as per art. 9 of the
contract. But, in view of the Claimant/Counter-Respondent’s claim for the entire EUR
600,000, the Respondent/Counter-Claimant was obliged to lodge the claim in front of the
NDRC of the country R Football Union, for the reimbursement of undue payments, which
was accepted.
28.
In addition, the Respondent/Counter-Claimant rejects the Claimant/Counter-Respondent’s
allegations according to which he was not aware of the claim lodged in front of the
country R Football Union. In this regard, it provides a copy of a letter dated 30 July 2012
received from the Claimant/Counter-Respondent’s legal representative, in which he
recognizes having received the invitations dated 10 and 24 of July 2012, but rejected to
attend the meetings, because the notifications occurred via the Respondent/CounterClaimant and the country R Football Union never addressed any communication to him.
Furthermore, the Respondent/Counter-Claimant claims that according to art. 10.3 of the
contract, the NDRC of the country R Football Union was competent to pass the decision
of the 25 July 2012.
29.
In his final comments on the Respondent/Counter-Claimant’s counterclaim, the
Claimant/Counter-Respondent maintains his previous argumentation and states that “the
player decided not to travel to country R for a ‘meeting’, only alleged by the club, not
confirmed the Football Union of country R nor the ‘RAF Dispute Resolution Chamber’,
knowing nothing about the issues on this ‘meeting’, receiving the invitation only one day
before the meeting, not disposing of a visa to enter country R and first and foremost
insisting on the fact that the case is already litispendent in front of the DRC”. In addition,
he states that the NDRC of the country R Football Union has not even notified to him the
decision of 25 July 2012. Finally, the Claimant/Counter-Respondent claims that the
contract signed between the parties does not contain a clear arbitration clause and the
NDRC of the country R Football Union does not respect the principle of equal
representation or provides for the possibility of an appeal.
30.
In its comments, the intervening party, Club S (hereinafter: the Intervening Party), claims
that is should not be involved in the present dispute. From all documentation forwarded
to it, Club S deems that the Respondent/Counter-Claimant was in clear breach of contract
and not the Claimant/Counter-Respondent. Finally, it states that it only signed a contract
with the Claimant/Counter-Respondent nearly 6 months after the termination of the
contract by the Claimant/Counter-Respondent.
31.
Upon request, the Claimant/Counter-Respondent informed FIFA that only on 7 August
2012 he signed a new contract with the Intervening Party, valid as from the date of
signature until 31 May 2013, according to which he was entitled to a monthly salary of
currency of country B 3,000.
Player G, from country H / Club V, from country R / Club S, from country B
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, the
Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (editions 2008, 2012 and
2014; hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 4
April 2012. Consequently, the Chamber concluded that the 2008 edition of the
Procedural Rules is applicable to the matter at hand.
2.
With regard to the competence of the DRC, art. 3 par. 1 of the Procedural Rules states
that the Chamber shall examine its jurisdiction in the light of art. 22 to 24 of the
Regulations on the Status and Transfer of Players (editions 2010, 2012 and 2014;
hereinafter: the Regulations). In accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the aforementioned Regulations, the Dispute Resolution Chamber would, in
principle, be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a country H
player, a country R club and a country B club.
3.
However, the Chamber acknowledged that the Respondent/Counter-Claimant contested
the competence of FIFA’s deciding bodies, stating that an independent arbitration
tribunal in line with art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
in fine, exists within the Football Union of country R. In addition, the Respondent
referred to art. 10.3 of the contract, which stipulates that “In case of a dispute arising
between the parties, the player agrees to be subjected to the investigation procedures of
the club. In case the dispute is not solved, a solution will be found in accordance with the
regulations of FIFA, UEFA, the country R Football Union and country R Premier League. If
the case is not solved through the application of the aforementioned regulations or in
case the player does not accept or agree with the decision, he is entitled to refer the
dispute to a court”. On the basis thereof, and since the stated article of the contract
stipulates that the applicable regulations within the the country R Football Union are to
be applied in case of a dispute between the parties, the Respondent/Counter-Claimant
argues that the relevant bodies of the the country R Football Union are competent to
adjudicate the present dispute.
4.
In this regard, the Chamber noted that the Claimant/Counter-Respondent rejected such
position and insisted that FIFA has jurisdiction to deal with the present matter, pointing
out the absence of a clear arbitration clause in the contract and, furthermore, that the
NDRC of the the country R Football Union does not respect the principle of equal
representation between clubs and players, neither provides for the possibility of an
appeal.
Player G, from country H / Club V, from country R / Club S, from country B
9/18
5.
Taking into account all the above, the Chamber emphasised that in accordance with art.
22 lit. b) of the Regulations on the Status and Transfer of Players it is competent to deal
with a matter such as the one at hand, unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal representation of
players and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the standards to be
imposed on an independent arbitration tribunal guaranteeing fair proceedings, the
Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the
members of the Chamber referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on
1 January 2008.
6.
In relation to the above, the Chamber also deemed it vital to outline that, in accordance
with its well-established jurisprudence and as confirmed by the Court of Arbitration for
Sport (CAS), one of the basic conditions that needs to be met in order to establish that
another organ than the DRC is competent to settle an employment-related dispute
between a club and a player of an international dimension, is that the jurisdiction of the
relevant national arbitration tribunal derives from a clear reference in the employment
contract.
7.
In this respect and while analysing whether it was competent to hear the present matter,
first and foremost, the Chamber deemed it of utmost importance to highlight that art.
10.3 of the contract does not consist in a choice of jurisdiction, but rather a choice of
applicable law. The members of the Chamber therefore concluded that the contract does
not contain any arbitration or jurisdiction clause. Hence, art. 10.3 of the contract clearly
does not refer to a national dispute resolution chamber in the sense of art. 22 lit. b) of
the aforementioned Regulations.
8.
In view of all the above, the Chamber established that the Respondent/CounterClaimant’s objection to the competence of FIFA to deal with the present matter has to be
rejected and that the DRC would be competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as to
the substance.
9.
After having established the foregoing, the Chamber also took note of the fact that, on
20 June 2012, a claim was lodged by the Respondent/Counter-Claimant against the
Claimant/Counter-Respondent in front of the NDRC of the the country R Football Union
for the reimbursement of the amount of currency of country R 4,030,901, allegedly
corresponding to the amount unduly paid to the Claimant/Counter-Respondent by the
Respondent/Counter-Claimant as relocation expenses. The Chamber further noted that,
on 25 July 2012, a decision was reached by the NDRC of the the country R Football Union
in said matter, by means of which the Claimant/Counter-Respondent was held liable to
reimburse the “compensation for movement in the amount of currency of country R
4,030,901 […]”.
Player G, from country H / Club V, from country R / Club S, from country B
10/18
10.
In view of the foregoing, the Chamber deemed it necessary to analyse, before entering
the substance of the case, whether the present claim and counterclaim lodged by the
Claimant/Counter-Respondent and the Respondent/Counter-Claimant, respectively, in
front of FIFA would have been affected by res judicata.
11.
In this respect, the Chamber first noted that the claim lodged by the
Respondent/Counter-Claimant in front of the the country R Football Union does not refer
to the same requests made by the parties in their respective claim and counterclaim
lodged in front of FIFA. While the Respondent/Counter-Claimant’s claim in front of the
the country R Football Union refers to the reimbursement of relocation expenses
allegedly paid in excess to the Claimant/Counter-Respondent based on local country R
law, the Claimant/Counter-Respondent’s request in front of FIFA refers to the payment of
allegedly outstanding amounts as per the contract, as well as of compensation for the
alleged breach of contract on the part of the Respondent/Counter-Claimant.
Furthermore, the Respondent/Counter-Claimant’s counterclaim lodged in front of FIFA
refers to the payment of compensation for alleged breach of contract on the part of the
Claimant/Counter-Respondent, as well as procedural costs and legal fees.
12.
Based on the aforementioned, the DRC concluded that the present claim is not affected
by res judicata and that the Chamber is competent to analyse the substance of the
dispute.
13.
Subsequently, the Chamber analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, the Chamber referred, on the
one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2010, 2012 and 2014) and, on the other hand, to the fact that the present claim
was lodged on 4 April 2012. The DRC concluded that the 2010 version of the Regulations
is applicable to the matter at hand as to the substance.
14.
The competence of the Chamber and the applicable regulations having been established,
and entering into the substance of the matter, the DRC started by acknowledging the
above-mentioned facts as well as the documentation contained in the file. 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.
15.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 1 January 2011, the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant signed an employment contract valid as from the date of
signature until 15 June 2012, extendable until 15 June 2013, in accordance with which
the Claimant/Counter-Respondent was entitled to receive the amounts stipulated in point
I.2. above.
Player G, from country H / Club V, from country R / Club S, from country B
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16.
Subsequently, the Chamber took note of the argumentation put forward by the
Claimant/Counter-Respondent, according to which the Respondent/Counter-Claimant had
started to pay him incomplete amounts as from 2011 and that in February 2012 the total
of EUR 253,278 had been accumulated as outstanding remuneration and bonuses. Thus,
after sending the Respondent/Counter-Claimant two reminders, on 27 January 2012 and
on 9 February 2012, which allegedly remained unanswered, the Claimant/CounterRespondent unilaterally terminated the contract with the Respondent/Counter-Claimant
in writing on 14 February 2012. The Claimant/Counter-Respondent claims that after the
termination, part of the claimed amount has been paid by the Respondent/CounterClaimant, but EUR 200,823.11 remained outstanding.
17.
As concerns the position submitted by the Respondent/Counter-Claimant in this respect,
the Chamber observed that it claims that the instalments amounting to EUR 60,000
stipulated in art. 9 of the contract (cf. point I.2. above) do not constitute salary and shall
only be paid upon presentation of proof of expenses by the Claimant/CounterRespondent. Thus, the Respondent/Counter-Claimant deems that the Claimant/CounterRespondent terminated the contract without just cause, by leaving the club in February
2012 without authorization. The Respondent/Counter-Claimant claims that, in spite of
having requested his return on 19 March 2012, the Claimant/Counter-Respondent failed
to resume his activities with the club. Consequently, the Respondent/Counter-Claimant
claims to have terminated the contract with the Claimant/Counter-Respondent in writing,
on 18 April 2012, with effect as from 30 March 2012, for a “single gross violation of the
contract”. Based on the foregoing, the Respondent/Counter-Claimant lodged a
counterclaim for breach of contract against the Claimant/Counter-Respondent, as
detailed in point I.15. above.
18.
Having established the aforementioned, the Chamber deemed that the underlying issue
in this dispute, considering the claim of the Claimant/Counter-Respondent, the
counterclaim of the Respondent/Counter-Claimant and the allegations of both parties,
was to determine whether the employment contract had been unilaterally terminated
with or without just cause by one of the parties, and which party was responsible for the
early termination of the contractual relationship in question. The DRC also underlined
that, subsequently, it would be necessary to determine the consequences for the party
that caused the unjust breach of the relevant employment contract.
19.
In view of the above, the Chamber first deemed necessary to establish the exact date of
termination of the contract, in view of the parties’ diverging statements in this regard. In
this context, the DRC noted that the Claimant/Counter-Respondent provided substantial
documentation that the correspondence dated 14 February 2012 was sent to and
received by the Respondent/Counter-Claimant, communicating the unilateral termination
of the contract and following two precedent reminders sent by the Claimant/CounterRespondent to the Respondent/Counter-Claimant. In this regard, the Chamber
acknowledged that the Claimant/Counter-Respondent provided not only a copy of the
termination letter of 14 February 2012, but also of the positive fax report confirming its
Player G, from country H / Club V, from country R / Club S, from country B
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receipt by the Respondent/Counter-Claimant. In view of the foregoing, the Chamber
deemed that the Respondent/Counter-Claimant’s correspondence of 18 April 2012,
terminating the contract with the Claimant/Counter-Respondent with retroactive effect
as from 30 March 2012, no longer made sense in that point of time where the contract
had already been undoubtedly terminated by the Claimant/Counter-Respondent on 14
February 2012. Thus, the Chamber concluded that the contract was terminated by the
Claimant/Counter-Respondent on 14 February 2012.
20.
Having established the foregoing, the Chamber subsequently went on to deliberate as to
whether the reasons given by the Claimant/Counter-Respondent for the unilateral
termination on 14 February 2012, i.e. the alleged existence of outstanding remuneration
in the total amount of EUR 253,278, could be considered as a just cause for him to
prematurely terminate the employment relationship.
21.
At this point and for the sake of good order, the DRC deemed it appropriate to remind
the parties of the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the
Procedural Rules, according to which a party claiming a right from an alleged fact shall
carry the respective burden of proof. Bearing in mind the aforementioned principle, the
DRC noted that in the present case the Respondent/Counter-Claimant bore the burden of
proof regarding the payment of the Claimant/Counter-Respondent’s remuneration.
22.
In this respect, the DRC took note of the arguments brought up by the
Respondent/Counter-Claimant for the non-payment of the Claimant/CounterRespondent’s remuneration. In this regard, the Chamber noted that the
Respondent/Counter-Claimant deems that the amounts provided for in art. 9 of the
contract (cf. point I.2. above), described as compensation for the player’s relocation to
Club V, were not part of the Claimant/Counter-Respondent’s wages and were only
payable upon presentation of proof by the latter that he indeed incurred such expenses.
In this context, the Respondent/Counter-Claimant further states this pre-requisite for
payment is established in the country R law and that a decision of the NDRC of the FFU,
reached on 25 July 2012, confirmed its position. Finally, the DRC noted that the
Respondent/Counter-Claimant also deems that the correct translation of art. 9 of the
contract – originally drafted in country R – is the one provided by it in its reply to the
claim (cf. point I.25. above).
23.
In view of the Respondent/Counter-Claimant’s argumentation and after analysing the
two different versions of the translations of art. 9 of the contract on file, the DRC was of
the opinion that both of them stipulated a specific amount, i.e. EUR 600,000, payable to
the Claimant/Counter-Respondent in fixed instalments and on fixed dates, not providing
for any condition whatsoever for such payments to be concluded. As such, the Chamber
was of the unanimous opinion that the amounts stipulated in art. 9 of the employment
contract were part of the Claimant/Counter-Respondent’s salaries and that, consequently,
he was entitled to such amounts without further requirements.
Player G, from country H / Club V, from country R / Club S, from country B
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24.
The Chamber was satisfied in its conclusion by the fact that, for a certain period of time,
the Respondent/Counter-Claimant has paid the Claimant/Counter-Respondent the
amounts provided for in art. 9 of the contract – amounting to currency of country R
4,030,901, as per the Respondent/Counter-Claimant – and that the first time the
Claimant/Counter-Respondent was contacted by the Respondent/Counter-Claimant with
regard to the alleged need to provide evidence of effectively incurred relocation costs
was on 16 February 2012 (cf. point I.8. above), i.e. after the Claimant/CounterRespondent’s reminders of 27 January 2012 and 9 February 2012, and after his
termination letter of 14 February 2012.
25.
In continuation, the Chamber observed that the Respondent/Counter-Claimant in fact
acknowledges having outstanding amounts towards the Claimant/Counter-Respondent in
the total amount of currency of country R 886,210.89, corresponding to approximately
EUR 22,676 (cf. point I.13. above) and that the amount of currency of country R
2,150,654.19, corresponding to EUR 52,454.89, was paid to the Claimant/CounterRespondent after the unilateral termination by the latter on 14 February 2012.
26.
At this point, the Chamber deemed it essential to point out that all the events that
occurred after 14 February 2012 and that were brought up by the Respondent/CounterClaimant in its defence – either those described in point II.25. above or the
Claimant/Counter-Respondent’s alleged unauthorized absence as from 14 February 2012
– are irrelevant for the question as to whether the Claimant/Counter-Respondent had
terminated the contract with or without just cause, since on 14 February 2012, he had
already informed the Respondent/Counter-Claimant of his clear decision.
27.
In view of all the foregoing, the Chamber concluded that the Claimant/CounterRespondent’s allegations must be upheld and that, on 14 February 2012, a considerable
amount of remuneration, corresponding to EUR 253,278, had remained unpaid by the
Respondent/Counter-Claimant and that the latter’s argumentation to justify the
aforementioned non-payment, after having received two reminders, could not be
upheld. Therefore, the Chamber concluded that the Claimant/Counter-Respondent had a
just cause to terminate the contract on 14 February 2012 and, taking into consideration
art. 17 par. 1 of the Regulations, he is consequently entitled to receive an amount of
money as compensation for the breach of contract on the part of the
Respondent/Counter-Claimant, in addition to any outstanding payments on the basis of
the relevant contract.
28.
Prior to establishing the amount of compensation for breach of contract due to the
Claimant/Counter-Respondent by the Respondent/Counter-Claimant, the DRC proceeded
with the calculation of the outstanding monies payable to the Claimant/CounterRespondent under the terms of the employment contract until the date of termination,
i.e. 14 February 2012.
Player G, from country H / Club V, from country R / Club S, from country B
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29.
In this regard, the DRC noted that, in his calculation of the amount that should have
been paid to him as per the contract until 14 February 2012, the Claimant/CounterRespondent included his salary for the month of February 2012, which was however not
yet outstanding by that time. As no other specific stipulation was made in the contract,
the DRC considered that, according to the common practice, all monthly salaries are
payable by the end of the month.
30.
Thus, taking into consideration the Claimant/Counter-Respondent’s claim as well as the
reasons previously exposed, the DRC concluded that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent/Counter-Claimant must fulfil its
obligations as per the employment contract concluded with the Claimant/CounterRespondent and, consequently, is to be held liable to pay the outstanding remuneration
due to the latter in the total amount of EUR 186,523.11, which corresponds to the
amount of EUR 253,278 minus EUR 52,454.89 paid after the termination, deducting as
well the salary of EUR 14,300 regarding the month of February 2012.
31.
The Chamber further established that an interest rate of 5% p.a. would apply over the
aforementioned amount, as from 15 February 2012, as per the Claimant/CounterRespondent’s claim.
32.
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/Counter-Respondent 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.
33.
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 clause was included in the employment contract
at the basis of the matter at stake.
34.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant/Counter-Respondent under the terms of the employment
contract as from the date of termination until 15 June 2012. The Chamber concluded that
the amount of EUR 124,350, corresponding to the salaries plus the compensation for
relocation due from February until 15 June 2012, serves as the basis for the final
determination of the amount of compensation for breach of contract.
Player G, from country H / Club V, from country R / Club S, from country B
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35.
In continuation, the Chamber verified as to whether the Claimant/Counter-Respondent
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.
36.
In this regard, the Chamber noted that, as informed by the Claimant/CounterRespondent, no new employment contract was signed by the latter between 14 February
2012, i.e. the date of termination, and 15 June 2012, the expiry date of the contract, the
contract with the Intervening party having been concluded only on 12 August 2012.
Therefore, no deductions shall be made to the basic amount of compensation calculated
in point II.34. above.
37.
For all the above reasons, the DRC decided to reject the counterclaim of the
Respondent/Counter-Claimant, to partially accept the claim of the Claimant/CounterRespondent and to hold the Respondent/Counter-Claimant liable to pay the
Claimant/Counter-Respondent the amount of EUR 186,523.11, plus 5% interest p.a. as
from 15 February 2012 until the date of effective payment, as outstanding remuneration,
as well as the amount of EUR 124,350, as compensation for breach of contract.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player G, is admissible.
2.
The counterclaim of the Respondent/Counter-Claimant, Club V, is admissible.
3.
The claim of the Claimant/Counter-Respondent is partially accepted.
4.
The counterclaim of the Respondent/Counter-Claimant is rejected.
5.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/Counter-Respondent,
within 30 days as from the date of notification of this decision, outstanding
remuneration in the amount of EUR 186,523.11 plus 5% interest p.a. as from 15 February
2012 until the date of effective payment.
6.
In the event that the amount due to the Claimant/Counter-Respondent in accordance with
the above-mentioned number 5. plus interest is not paid by the Respondent/CounterClaimant within the stated time limit, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.
Player G, from country H / Club V, from country R / Club S, from country B
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7.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/Counter-Respondent,
within 30 days as from the date of notification of this decision, compensation for breach
of contract in the amount of EUR 124,350.
8.
In the event that the amount due to the Claimant/Counter-Respondent in accordance with
the above-mentioned number 7. is not paid by the Respondent/Counter-Claimant within
the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee for consideration and a formal decision.
9.
Any further claims of the Claimant/Counter-Respondent are rejected.
10. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant
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
Player G, from country H / Club V, from country R / Club S, from country B
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Secretary General
Encl.
CAS directives
Player G, from country H / Club V, from country R / Club S, from country B
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