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 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 20 July 2011, the Player of Country B, Player A (hereinafter: the Claimant), and
the Club of Country D, Club C (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as of 21 July 2011 until 30 June 2013.
2.
Article 3.1.1 of the contract specifies, inter alia, that the Respondent is to provide
the Claimant with a monthly salary of 9,745 net, payable at the latest on the 30th of
the following month.
3.
Pursuant to article 4.2.3 of the contract, in the event of an accident or a disease
within his footballing activity, the Claimant shall benefit from medical assistance of
doctors chosen by the Respondent only.
4.
Article 8.1 of the contract foresees that in case of a temporary incapacity for work,
the Claimant shall notify the Respondent within the next three days by means of a
medical certificate or any other documentation from a doctor in order to be
entitled to receive compensation based on his temporary incapacity for work. In the
event the Respondent did not inform the relevant competent body, the Claimant
would be entitled to receive his monthly salary during the whole time.
5.
Article 10.2 of the contract stipulates that in the event the Claimant participates in
75% of the matches of the championship in the 2011-2012 season, the Respondent
agrees to increase the Claimant’s monthly salary so that he would be entitled to
EUR 6,000 as from 1 July 2012.
6.
As per article 10.8 of the contract, the Respondent is to cover the rent of the
player’s apartment.
7.
On 1 October 2013, the Claimant lodged a claim before FIFA against the
Respondent, requesting the payment of:
EUR 44,660.33 corresponding to outstanding salaries broken down as follows:
- EUR 567.17 as balance of salary from 20 July 2011 until 31 July 2011;
- EUR 2,895.30 as balance of salary from 1 August 2011 until 31 January 2012;
- EUR 2,188.50 as balance of salary from 1 February 2012 until 30 June 2012;
- EUR 3,009.36 as balance of salary from 1 July 2012 until 31 December 2012;
- EUR 36,000 as salaries from January 2013 until June 2013.
EUR 10,000 as damages;
EUR 5,000 as legal costs.
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8.
Prior thereto, on 10 June 2013, the Claimant sent a default notice to the
Respondent, requesting the payment of EUR 44,660.33 as outstanding salaries
within 8 days.
9.
On 20 June 2013, the Claimant terminated the contract in writing since the
Respondent had not paid the relevant outstanding amounts.
10.
In relation to the 2011-2012 season, the Claimant holds that he was entitled to
9,745 net as monthly salary. Yet, the Respondent apparently only paid him a
monthly salary ranged between 8,800 and 8,900 for the relevant period. As concerns
the 2012-2013 season, the Claimant sustains that as per article 10.2 of the contract,
he was entitled to EUR 6,000 net as monthly salary. However, the Respondent
partially paid his salary between July 2012 and December 2012 and no longer paid
as from January 2013 until the end of the contract.
11.
In this respect, the Claimant provided payment slips evidencing the following
payments by the Respondent:
2,348.84 as pro-rata salary for the period as from 20 July 2011 until 31 July
2011;
52,808 as salaries for the period as from August 2011 until January 2012;
44,445 as salaries for the period as from February 2012 until June 2012;
64,510 as salaries for the period as from July 2012 until December 2012.
12.
Therefore, the Claimant deems that the Respondent owes him the amount of EUR
44,660.33 as outstanding salaries.
13.
In its statement of defence, the Respondent rejects the claim of the Claimant and
considers having paid the Claimant in compliance with the contract. In particular,
the Respondent states that the contract sets forth a monthly salary amounting to
EUR 4,500 net for the first season. As regards the 2012-2013 season, the Respondent
alleges that the amount of EUR 6,000 was agreed as a gross monthly salary. In this
respect, the Respondent refers to the payment slips submitted by the Claimant (cf.
point 11 above) which, according to the Respondent, substantiate its allegations
insofar as they establish that “the club [Respondent] has paid particular
remunerations in the agreed amounts – first year net remuneration of EUR 4,500
and for the second year EUR 6,000 monthly”.
14.
Moreover, the Respondent holds that as from early March 2013, the Claimant did
not participate whatsoever in the team’s activities due to an injury suffered in
February 2013. In this regard, and referring to art. 8 of the contract, the Respondent
underlines that the Claimant did not provide the Respondent with a medical
certificate, despite the Respondent’s request. Also, the Respondent states that
during the relevant period of time, the Claimant travelled to Country B for medical
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consultations with specialists without authorisation from the Respondent and even
more, did not ask for the services of doctors chosen by the Respondent as stipulated
in art. 4.2.3 of the contract. Therefore, the Respondent deems that the Claimant
breached his contractual obligations and is neither entitled to his salary for March
2013, nor entitled to compensation as set forth in art. 8.1 of the contract for the
relevant month.
15.
Furthermore, the Respondent points to a medical certificate for the period as from 2
April 2013 until 3 May 2013 issued by a hospital in Country D following the surgery
of the Claimant in early April 2013. In this regard, the Respondent provided a
medical certificate and invoice dated 9 April 2013 addressed to the player relating
to “laparoscopic supplies for bilateral hernia” in the amount of 2,400. In particular,
the Respondent alleges having filed the said medical certificate to the Social
Security Institute of Country D in order for the Claimant to receive compensation.
Therefore, the Respondent considers that it does not owe any amount to the player
for April 2013.
16.
Subsequently, according to the Respondent, the Claimant was granted a leave in
May 2013 and should have returned on 10 June 2013. However, the Respondent
alleges having received by fax from the Claimant a notice according to which the
latter was not able to travel within the next 8 days. In this respect, the Respondent
submitted a medical certificate dated 8 June 2013 from the Claimant’s doctor in
Country B.
17.
In this context, and taking into account the letter from the Claimant dated 20 June
2013 putting an end to the contract (cf. point 9 above), the Respondent holds that
the Claimant is not entitled to any amounts for June 2013.
18.
In addition, the Respondent states that the Claimant “violated the rules of the
game” and therefore there were several fines allegedly imposed on the Claimant in
the total amount of 2,875. In this regard, the Respondent listed the following fines
imposed on the Claimant: 250 on 22 June 2012 + 50 on 27 October 2011 + 100 on 19
January 2012 + 75 on 4 April 2012 + 600 on 8 May 2012 + 100 on 21 January 2013.
19.
The Respondent also refers to the rent of the Claimant’s apartment amounting to
409.50 per month and allegedly covered by the Respondent. In this respect, the
Respondent submitted receipts of payment amounting to 8,967. In this regard, the
Respondent holds that pursuant to a decision from the Board of Directors of the
Respondent dated 15 May 2009, provided by the Respondent, the Respondent may
cover the rent expenses up to 300 only.
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20.
In view of the foregoing, the Respondent requested the total amount of 4,467 from
the Claimant as well as the legal costs for the relevant proceedings to be set off
with any outstanding amounts recognised by FIFA to the Claimant.
21.
In his replica, the Claimant contested the Respondent’s position pertaining to the
net and gross salary. The Claimant explained that during the first year, the
Respondent paid him a monthly amount of EUR 4,500 instead of EUR 4,982 as
agreed in the contract and that, when he became aware of such thing, in August
2011, he agreed with the Respondent that the latter would regularise the
difference at the end of each season, which it did not do.
22.
Regarding his temporary incapacity for work, the Claimant acknowledges having
suffered an injury in mid-February 2013 but denies having left to Country B without
the Respondent’s authorisation. In this regard, the Claimant underlines that should
this had been the case, he would have received a written notice from the
Respondent warning him about his conduct, which the latter did not send,
according to the Claimant.
23.
In addition, the Claimant recognises that he was prevented from any team’s activity
as from 7 March 2013 until 2 April 2013 following his surgery (cf. point 15 above),
but that he remained at the Respondent in March 2013 and even attempted to
resume training gradually.
24.
Moreover, the Claimant adds that on 11 April 2013, he resumed training with the
personal trainer of the Respondent and on 18 April 2013 with the team. The
Claimant further states that he was even listed on the match sheet on 28 April 2013.
In this respect, the Claimant provided documentation from Internet indicating the
substitutes for the relevant game. Therefore, the Claimant deems that by filing the
medical certificate issued by the hospital in Country D pertaining to the Claimant’s
incapacity for work for the period as from 2 April 2013 until 3 May 2013 to the
Social Security Institute of Country D in order to obtain compensation, the
Respondent intended to defraud the relevant competent body and thus has proven
its bad faith.
25.
On account of the above, the Claimant deems being entitled to his salary for March
and April 2013 as per art. 8.1 of the contract.
26.
As to the salary for June 2013, the Claimant deems having duly notified the
Respondent of his absence by sending by fax the medical certificate which
constitutes an official document from a doctor of Country B. The Claimant also
sustains that the termination notice sent on 20 June 2013 is based on the nonpayment of his salary for five months, including the salary for June 2013.
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27.
In addition, the Claimant acknowledges having been sanctioned during matches but
does not agree upon the fines imposed by the Respondent in this regard being
deducted from his monthly salary. Likewise, the Claimant denies having been aware
or having signed a document related to the rent limit of 300 per month and refers
to art. 10.8 of the contract in order to reject the request of the Respondent to set
off the amount of 4,467 with his unpaid salaries.
28.
In its duplica, the Respondent solely reiterated its previous position. In particular,
the Respondent denies having agreed upon the payment of the balance of net and
gross salary as alleged by the Claimant (cf. point 21 above) and underlines the lack
of evidence from the Claimant. Moreover, regarding the medical certificate issued
by the doctor of Country B on 8 June 2013 (cf. point 16 above), the Respondent
holds that the Claimant should have submitted a certificate in compliance with the
law of Country D in order to receive compensation for his temporary incapacity for
work and thus, asserts that no amount is due to the Claimant for this time period.
29.
With regard to the fines imposed on the Claimant, the Respondent alleges that they
were decided by the Football Union of Country D and that the Respondent paid
them on behalf of the Claimant.
30.
Finally, with regard to the rent expenses, the Respondent sustains that the Claimant
had been informed by the Respondent that the rent cap amounted to 300. Thus, the
Respondent maintains its request to set off the debt of the Claimant in this regard.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 1 October 2013.
Consequently, the 2012 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at stake (cf. art. 21 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 Player of Country B and a Club of Country D.
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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 in front of FIFA
on 1 October 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 DRC and the applicable regulations having been established,
the Chamber entered the substance of the present matter. In doing so, it started by
acknowledging the abovementioned facts of the matter 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.
5.
In this respect, the Chamber acknowledged that the Claimant and the Respondent
entered into a contractual relationship, which was set to run as from 21 July 2011
until 30 June 2013.
6.
The members of the Chamber also stressed that as per article 3.1.1 of the contract,
the Claimant is entitled to a monthly salary of 9,745 net for the season 2011-2012
and, pursuant to art. 10.2 of said contract, to a monthly salary of EUR 6,000 as from
July 2012.
7.
In continuation, the Chamber also took note that it is uncontested by both parties
that the Claimant terminated in writing the contractual relationship on 20 June
2013 after having put the club in default on 10 June 2013.
8.
In this regard, the Chamber took due note that the Claimant, on the one hand,
insisted on the fact that, for the 2011-2012 season, he was entitled to 9,745 net as
monthly salary but only received from the Respondent a monthly salary ranged
between 8,800 and 8,900 for the relevant period. In continuation, the Claimant
underlined that the Respondent partially paid his monthly salary of EUR 6,000 from
July 2012 until December 2012, and no longer paid as from January 2013. On this
basis, the Claimant considers that he had a just cause to terminate the contract.
9.
The Chamber further took note of the argumentation of the Respondent, which
considered that the payments made from July 2011 to December 2012 were in net,
for the reason that the parties had contractually agreed upon a gross salary. The
Respondent further sustained that in March 2013, the Claimant travelled to Country
B without the Respondent’s authorisation and therefore, is not entitled to any
amount for the month in question. The Respondent also asserted that the Claimant
should have received compensation for April 2013 from the Social Security Institute
of Country D and therefore, no amount should be claimed from the Respondent for
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the month in question. The Respondent further stated that the Claimant is not
entitled to any amount for June 2013 insofar as the Claimant put an end to the
contract before the end of the relevant month. Finally, the Respondent stressed that
it paid several fines to the Football Union of Country D on behalf of the Claimant as
well as the extra rent expenses of the Claimant. Therefore, the Respondent deemed
that the said amounts paid on behalf of the player shall be set-off with any
outstanding amounts due to the Claimant.
10.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim lodged by the Claimant, was to
determine whether the employment contract had been unilaterally terminated with
or without just cause by the Claimant, and which party was responsible for the early
termination of the contractual relationship in question. The DRC also underlined
that, subsequently, if it were found that the employment contract was breached by
one of the parties without just cause, it would be necessary to determine the
consequences for the party that caused the unjust breach of the relevant
employment contract.
11.
In view of the above, the Chamber subsequently went on to deliberate as to
whether the outstanding amounts can be considered as a just cause for the
Claimant to have prematurely terminated the employment relationship.
12.
At this point and for the sake of good order, the DRC deemed it appropriate to
remind the parties of the basic principle of the 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
bore the burden of proof regarding the payment of the Claimant’s remuneration.
13.
In this regard, the Chamber duly noted that the Respondent did not dispute that,
on 10 June 2013, the Claimant had notified the Respondent of its default of
payment for several months. The DRC also noted that the Claimant had presented
documentary evidence establishing the termination of the contract by means of a
correspondence dated 20 June 2013.
14.
Moreover, the Chamber drew its attention to the Respondent’s arguments
submitted in order to substantiate the partial payments made by the Respondent
for the previous years, i.e. 2011 and 2012. The Chamber referred to art. 3.1.1 of the
contract which explicitly stipulates that the remuneration is net for the first season,
which the Chamber assumed that it was as such for the remaining seasons, in the
absence of any documentation in the contrary. Bearing in mind the foregoing, as
well as the basic principle of the burden of proof, the DRC deemed that the
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remuneration to be paid to the Claimant was net. Therefore, the DRC decided that
the Respondent’s argument in this respect should not be taken into account.
15.
In continuation, the DRC observed that it was undisputed by the Respondent that,
at the time of the termination, the Claimant’s salary for January 2013, February
2013 and May 2013 remained unpaid.
16.
As regards the Respondent’s allegation regarding the non-payment of the
Claimant’s salary for March and April 2013, the Chamber was eager to recall one
more time the content of art. 12 par. 3 of the Procedural Rules. In this respect, the
DRC was eager to note that the Respondent had failed to present any valid reasons
or any documentary evidence in support of its position. In particular, the members
of the Chamber observed that the Respondent was not able to corroborate that it
did file the relevant medical certificate to the Social Security Institute of Country D
in order for the Claimant to receive compensation for the month of April 2013, as
set forth in art. 8.1 of the contract, or that the Claimant did not provide his services
for the month of March 2013.
17.
In view of all the above, it is established that at the time the Claimant terminated
the contract, at least three monthly salaries were uncontestably outstanding.
Consequently, the Chamber was of the opinion that the Respondent had seriously
neglected its contractual obligations towards the Claimant in a continuous and
constant manner. Therefore, the DRC considered that the Respondent was found to
be in breach of the contract and that the breach was of such seriousness that, in line
with the Chamber’s long-standing and well-established jurisprudence, the Claimant
had a just cause to unilaterally terminate the contractual relationship with the
Respondent on 20 June 2013, having previously put the Respondent in default of
payment of the outstanding amounts.
18.
On account of the above, the Chamber established that the Claimant had
terminated the contract with just cause on 20 June 2013 and that, consequently, the
Respondent is to be held liable for the early termination of the employment contact
with just cause by the Claimant.
19.
Having established that the Respondent is to be held liable for the early termination
of the contract with just cause by the Claimant, the DRC focussed its attention on
the consequences of such termination. Taking into consideration art. 17 par. 1 of
the Regulations, the DRC decided that the Claimant is entitled to receive an amount
of money from the Respondent as compensation for the termination of the contract
with just cause in addition to any outstanding payments on the basis of the relevant
employment contract.
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20.
First of all, in relation to the Claimant’s financial claim regarding outstanding
remuneration, the DRC decided that the Respondent is liable to pay to the Claimant
the remuneration that was outstanding at the time of the termination, i.e. 20 June
2013.
21.
In this regard, the Chamber recalled the argument of the Respondent according to
which fines totalling 2,875, which were imposed on the Claimant by the Football
Union of Country D for the alleged breach of “the rules of the game” and
apparently paid by the Respondent, are to be deducted from any outstanding
amount due to the Claimant. The members of the Chamber equally acknowledged
that the Claimant rejected that the fines were to be deducted from his receivables.
22.
In this context, and bearing in mind the legal principle of the burden of proof
contained in art. 12 par. 3 of the Procedural Rules, the Chamber concurred that the
fines imposed on the Claimant and allegedly paid by the Respondent shall be
disregarded, since a) the exact reason(s) of origin as well as the decision allegedly
rendered in this respect by the relevant body of the Football Union of Country D
were not submitted by the Respondent; b) the Respondent did not provide any
evidence regarding the alleged payment made by itself in this regard; and c) the
Respondent did not provide any evidence as regards the notification of said fines to
the Claimant.
23.
Furthermore, and irrespective of the foregoing consideration, the Chamber wished
to point out that the imposition of a fine, or any other available financial sanction
in general, shall not be used by clubs as a means to set off outstanding financial
obligations towards players. Consequently, the Chamber decided to reject the
Respondent’s argument in this connection.
24.
In continuation, bearing in mind art. 12 par. 3 of the Procedural Rules, the DRC
deemed that the Respondent shall carry the burden of proof in connection with its
allegations as regards the rent expenses covered by it. The members of the Chamber
observed that the Respondent failed to present any documentary evidence as per
the alleged cap of 300 imposed by the Board of Directors of the Respondent. As a
consequence, and referring to art. 10.8 of the contract which does not stipulate any
amount as per the rent expenses to be covered by the Respondent, the DRC decided
to reject the Respondent’s request pertaining to said rent expenses.
25.
As a consequence, and taking into account the documentation presented by the
parties to the dispute as well as the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which had fallen due and remained outstanding under the contract at the
moment of the termination, i.e. 8,053 corresponding to the balance of salary from
October 2011 until June 2012, as per art. 3.1.1 of the contract, plus EUR 3,009 as
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balance of salary from July 2012 until December 2012, and EUR 30,000 as salary
from January 2013 until May 2013, as per art. 10.2 of the contract.
26.
In this respect, the Chamber decided to reject the Claimant’s claim for balance of
salary for the period of 20 July 2011 until September 2011, which is barred by the
statute of limitations in application of art. 25 par. 5 of the Regulation.
27.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided
that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to
pay compensation to the Claimant.
28.
In this respect, taking into account the petition of the Claimant, the Dispute
Resolution Chamber decided to award EUR 6,000 (salary for June 2013 as per art.
10.2 of the contract) to the Claimant as compensation for breach of contract.
29.
Consequently, the Chamber decided that the Respondent must pay the amount of
EUR 6,000 to the Claimant as compensation for breach of contract.
30.
Moreover, the Chamber rejected any claim for legal expenses and procedural
compensation in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s respective longstanding jurisprudence in this regard.
31.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant outstanding remuneration in the
amounts of 8,053 and EUR 33,009, within 30 days as from the date of notification
of this decision.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of EUR 6,000, within 30 days as from the date of notification of this
decision.
4.
In the event that the aforementioned amount is not paid by the Respondent within
the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
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aforementioned time limit and 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 is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
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