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 A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 30 July 2010, the player from country B, Player A (hereinafter: the Claimant), and
the club from country D, Club C (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract), valid as from the date of signature until 31 June
2012.
2.
According to art. 3 of the contract, the Respondent undertakes to pay the Claimant,
inter alia, the following amounts:
- Season 2010-2011 total of USD 250,000, payable as follow:
- USD 150,000 due immediately upon signing of the contract;
- USD 60,000 as total salary, payable in monthly instalments of USD 6,000 over
ten months beginning on 1 August 2010;
- USD 40,000 due in April 2011 “when 70% of the held matches completed
during the contract period”.
- Season 2011-2012, total amount of USD 150,000, payable as follow:
- USD 50,000 due in August 2011; (note: date not specified);
- USD 60,000 as total salary, payable in monthly instalments of USD 6,000 over
ten months beginning on 1 August 2011 (USD 6,000 x 10 months = USD
60,000);
- USD 40,000 due in April 2012 “when 70% of the held matches completed
during the contract period”.
- a furnished apartment;
- 4 roundtrip economy air tickets for the Claimant and his family.
3.
From 30 August 2011 to 15 December 2011, the Claimant was on loan with the club
from country F, Club E.
4.
On 13 March 2012, the Claimant terminated the contract with the Respondent in
writing, after having warned it of its alleged failure to renew his work permit and to
pay his salaries from 1 December 2010 to 1 May 2011 and from January to February
2012.
Player A, country B / Club C, country D
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5.
On 6 November 2012, the Claimant lodged a claim before FIFA against the
Respondent for breach of contract and requested the payment of the total amount of
USD 166,000, plus interest of 5% p.a., made up of:
- USD 100,000 corresponding to the outstanding portion of the USD 150,000 due
immediately upon signing of the contract;
- USD 36,000 corresponding to outstanding monthly salaries for the period
December 2010 through May 2011 (USD 6,000 x 6 months);
- USD 12,000 corresponding to outstanding monthly salaries for the period January
through February 2012 (USD 6,000 x 2 months);
- USD 18,000 as compensation, corresponding to the residual value of the contract;
- Legal fees;
- Sporting sanctions.
6.
In his arguments, the Claimant states that the Respondent paid him only USD 50,000
of the USD 150,000 it owed him upon signing the contract. Though the Respondent
apparently paid the Claimant his monthly salaries from August through November
2010, the Claimant asserts that the Respondent failed to pay his monthly salaries from
December 2010 through May 2011 despite his several verbal complaints. In addition,
the Claimant states that his permit from country D of residence expired on 9 June
2011, and the Respondent allegedly did not renew it.
7.
After the end of his loan with Club E on 15 December 2011, the Claimant apparently
re-joined the Respondent during its training camp held in country G during January
and February 2011. The Claimant confirms that the Respondent informed him during
the training camp that “it was not counting on him” and thus he could search for a
new club. The Claimant provided a letter dated 13 March 2012 stating that the
Claimant did not meet the head coach’s requirements and that the club was open to
any negotiations for the Claimant’s transfer to a new club.
8.
The Claimant asserts that, on 3 February 2012, he began searching for a new club
because the training camp had ended and he was unable to return to country D with
the other players because of the fact that his visa has expired on 9 June 2011.
Player A, country B / Club C, country D
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9.
The Claimant further claims that, on 10 February 2012, apparently the same day on
which the winter transfer window closed, the Respondent issued a letter concerning
the financial conditions it demanded for the transfer of the Claimant to a third club.
The Claimant argues that it was “absurd” for the Respondent to issue its letter on the
last day of the transfer window while also failing to renew the Claimant’s visa for him
to re-join the team in country D. In addition, the Claimant argues that the Respondent
never requested the ITC required to register the Claimant in country D following his
loan period with the club from country F. Furthermore, the Claimant allegedly made
several verbal requests to the Respondent’s officials asking them to send a new visa
and permit, but the Respondent apparently failed to do so.
10.
On 8 March 2012, the Claimant sent a fax to the Respondent requesting the permit to
enter country D and the immediate payment of his outstanding salaries.
11.
On 12 March 2012, not having received a reply from the Respondent, the Claimant
sent a second and final fax to the Respondent requesting that it fulfil its obligations
towards the Claimant within 24 hours of receiving the fax. He also mentioned in its
fax that, should the Respondent fail to provide the Claimant with his outstanding
salaries, his residence and work permits, he would terminate the contract with just
cause and immediate effect.
12.
On 13 March 2012, the Respondent replied by stating that it had already fulfilled all
of its obligations towards the Claimant, including having paid all salaries due to the
Claimant. The Respondent further states that, because the Claimant was unable to
find a new club during the winter transfer window, he remained a player of Club C
and thus “he has to be with the team at the moment” but “unfortunately, he has not
still arrived”.
13.
On 13 March 2012, after receiving the Respondent’s reply, the Claimant sent a letter
to the Respondent in which he rejected the contents of the Respondent’s
correspondence as being “false and of the utter bad faith” and unilaterally
terminated the contract with immediate effect.
Player A, country B / Club C, country D
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14.
In its response to the Claimant’s claim, the Respondent argues that it fulfilled all of its
contractual obligations towards the Claimant until the contract expired. The
Respondent further states that it was open to the Claimant joining another team and
that it gave him until the close of the winter transfer window to do so. Nevertheless,
the Respondent argues that the Claimant failed to return to country D and instead
“continued training on the base of Club E where he played on basis of loan, without
any permission of Club C”.
15.
The Respondent also provides with its response a document dated 26 November 2012
issued by Bank Standard to FIFA, upon the request of the Respondent. In the
document, the bank lists seven transfers that were made to the Claimant’s “salary
card” from 5 April 2012 through 12 July 2012, amounting to country D currency
8,160.92.
16.
Finally, the Respondent reiterates that it provided the necessary conditions for the
free loan of the Claimant to Club E and that it would be unfair of the Claimant to
demand the “payment of the outstanding part of the contract” while he was
receiving salary from the club from country F. Lastly, the Respondent states that the
Claimant continued to receive salaries on his bank card until the end of the 2011/2012
season.
17.
The Claimant informed FIFA that he did not sign any new contract before 31 June
2012.
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 6 November
2012. Consequently, the 2008 edition of the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of
the Procedural Rules).
Player A, country B / Club C, country D
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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
b) of the Regulations on the Status and Transfer of Players (edition 2010, 2012 and
2014; hereinafter: the Regulations), the Dispute Resolution Chamber is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and an club from country D.
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 (edition 2010,
2012 and 2014), and considering that the present claim was lodged on 6 November
2012, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
Subsequently, the DRC duly noted that with regard to the fact that the employment
contract at the basis of the dispute was concluded on 30 July 2010, and that the
Claimant had lodged his claim on 6 November 2012, he should examine if the present
claim, or any part of it, could be possibly time-barred.
5.
In this respect, the members of the Chamber referred to art. 25 par. 5 of the
Regulations, which, in completion to the general procedural terms outlined in the
Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall not
hear any dispute if more than two years have elapsed since the event giving rise to
the dispute arose and that the application of this time limit shall be examined ex
officio in each individual case.
6.
Bearing in mind the foregoing, the DRC referred to the claim of the Claimant,
according to which the latter requested inter alia the payment of USD 100,000, a
portion of an instalment of USD 150,000 which was due upon the signature of the
employment contract, i.e. on 30 July 2010.
7.
As a consequence, recalling that the present claim was submitted to FIFA on 6
November 2012, the DRC concluded that the time limit of two years had elapsed for
Player A, country B / Club C, country D
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claiming the portion of the instalment of USD 100,000. Therefore, such specific
request of the Claimant was time-barred and, consequently, inadmissible. The
Chamber concluded its reasoning by stating that the Claimant’s other requests were
made within the 2 years time limit and, therefore will be further analysed as to their
substance.
8.
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 refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
9.
First of all, the members of the Chamber acknowledged that it was undisputed by the
parties that, on 30 July 2010, they had concluded an employment contract valid as
from the date of signature until 31 June 2012, in accordance with which the Claimant
was to receive the amounts detailed in point I.2. above. Furthermore, the Chamber
also noted that it was an undisputed fact that, during the period of 30 August 2011 to
15 December 2011, the Claimant had been on loan with a club from country F (cf.
point I.3. above).
10.
The DRC further observed that the Claimant lodged a claim in front of FIFA on 6
November 2012 against the Respondent for breach of contract without just cause
indicating that the latter had not provided him with the necessary permits to enter
the country after his loan and had failed to pay him several contractual monies. In
particular, the members of the Chamber noted that, after not having received the
entire amount of the first instalment (cf. point. I. 6. above) as well as his salaries from
December 2010 to May 2011, he terminated his contract with the Respondent on 13
March 2012. In this respect, the members of the Chamber took note of the Claimant’s
default notices dated 8 and 12 March 2012 addressed to the Respondent, copies of
which can be found on file, and by means of which the Claimant reminded the
Player A, country B / Club C, country D
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Respondent of its salary arrears towards him, and subsequently requested the permits
to enter country D.
11.
Thereafter, the members of the Chamber took note of the reply of the Respondent,
who alleged having fulfilled all of its contractual obligations towards the Claimant
and that the latter never returned to the club following his loan period.
12.
Having taken into consideration the foregoing and bearing in mind art. 12 par. 3 of
the Procedural Rules, in accordance with which any party claiming a right on the basis
of an alleged fact shall carry the burden of proof, the Chamber was eager to point out
that the Respondent had failed to present any relevant documentation in support of
its position. In particular, the members of the Chamber observed that the Respondent
was not able to provide the DRC with any clear, precise and convincing evidence in
support of the alleged payment of the salaries claimed by the Claimant as
outstanding.
13.
Furthermore, the DRC noted that the Respondent did not provide any proof of having
requested the return the return of the Claimant’s ITC after the end of his loan with
Club E. This is confirmed by the information contained in the Transfer Matching
System (TMS).
14.
In this context, the DRC referred to its well-established jurisprudence and emphasised
that, as a general rule, it is the club´s duty and responsibility to act accordingly in
order to obtain, if necessary, a work permit or a visa for its players prior to the signing
of an employment contract or during its period of validity, in order for players to be
able to legally enter a particular country and be in a position to render their services
to the club.
15.
On account of the above, the Chamber established that the Respondent had failed to
carry out the necessary arrangements in order for the player to re-enter the country
after the end of his loan with Club E, and had equally failed to pay the Claimant his
monthly salaries from December 2010 to May 2011 and his salaries for January and
February 2012. In view of the foregoing, the Chamber concurred that the Claimant
Player A, country B / Club C, country D
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had a just cause to unilaterally terminate the employment contract on 13 March 2012
and that, consequently, the Respondent is to be held liable for the early termination
of the employment contact with just cause by the Claimant.
16.
Bearing in mind the previous considerations, the DRC went on to deal with the
consequences of the early termination of the employment contract with just cause by
the Claimant.
17.
Firstly, the Chamber concurred that the Respondent must fulfill its obligations as per
the employment contract in accordance with the general legal principle of “pacta sunt
servanda”. Consequently, the Chamber decided that the Respondent is liable to pay to
the Claimant the remuneration that was outstanding at the time of the early
termination of the employment contract by the Claimant, i.e. the amount of USD
48,000.
18.
Secondly, and considering the Claimant’s claim for interest, the Chamber determined
that the Respondent must pay 5% interest p.a. on the amount of USD 48,000 as of the
date on which the claim was lodged, i.e. 6 November 2012, until the date of effective
payment.
19.
In continuation, the DRC decided that, taking into consideration the Claimant’s
respective claim and art. 17 par. 1 of the Regulations, the Claimant is entitled to
receive from the Respondent compensation for breach of contract in addition to any
outstanding salaries on the basis of the relevant employment contract.
20.
In this context, the Chamber outlined that, in accordance with said provision, 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.
Player A, country B / Club C, country D
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21.
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.
22.
The Chamber then took due note of the employment situation of the Claimant after
the termination of the contract at the basis of the case at stake. Bearing in mind art.
17 par. 1 of the Regulations and in accordance with the constant practice of the
Dispute Resolution Chamber as well as the general obligation of the player to
mitigate his damages, such remuneration under a new employment contract(s) shall
be taken into account in the calculation of the amount of compensation for breach of
contract. In this regard, the members of the Chamber noted that the Claimant had not
signed any new employment contract within the period of time between the
termination of the contract and its original date of expiry and, thus, had not been
able to mitigate damages. In this context, the Chamber found it reasonable that the
Claimant had not been able to find new employment within the relevant period of 3
months only.
23.
In view of the above, the Chamber concluded that, for the period as from 13 March
2012 to 30 May 2012, during which the Claimant remained unemployed, the residual
value of the contract signed with the Respondent was USD 18,000.
24.
Therefore the DRC decided that the Respondent must pay the amount of USD 18,000
to the Claimant, which is considered by the DRC to be a reasonable and justified
amount as compensation for breach of contract.
25.
In addition, taking into account the Claimant’s request, 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. 6 November 2012,
until the date of effective payment.
Player A, country B / Club C, country D
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26.
For all the above considerations, the DRC decided to partially accept the Claimant’s
claim insofar as it is admissible, and held that the Respondent is liable to pay the total
amount of USD 66,000 to the Claimant, consisting of the amount of USD 48,000 plus
interest of 5% p.a. as from 6 November 2012 until the date of effective payment,
corresponding to the Claimant’s outstanding remuneration at the time of the
unilateral termination of the contract with just cause by the Claimant and the amount
of USD 18,000 plus interest of 5% p.a. as from 6 November 2012 until the date of
effective payment, corresponding to the compensation for the breach of contract.
27.
The DRC concluded its deliberations in the present matter by establishing that any
further claim of the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted, insofar as it is admissible.
2.
The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of USD
48’000 plus interest of 5% p.a. as from 6 November 2012 until the date of effective
payment.
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 18’000 plus interest of 5% p.a. as from 6 November 2012 until the date of
effective payment.
4.
In the event that the amounts due to the Claimant plus interest are not paid by the
Respondent within the stated time limit, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claims lodged by the Claimant are rejected.
Player A, country B / Club C, country D
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6.
The Claimant is directed to inform the Respondent, immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit for
filing the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full
address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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