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 28 August 2008, the Player of Country B, Player A (hereinafter: the Claimant) and
the Club of Country D, Club C (hereinafter: the Respondent), and Company E
(hereinafter: the Company), signed a document titled “Employment contract of the
athlete Player A” (hereinafter: the contract) valid from the date of signature until 28
August 2009 or “at the end of the sports season 2008/2009, whichever of the two
occurs later”.
2.
The contract established that “the company acting as an owner of Club hereby agrees
to make payments under this contract”.
3.
According to article 2.1 of the contract, the Company shall pay the Claimant a basic
salary of EUR 6,500,000 plus EUR 1,000,000 regarding “the transferring
compensation of the athlete”, payable in instalments as follows:
- EUR 3,500,000 “free taxes”, due on the signing date;
- EUR 2,000,000 “free taxes”, due on 25 September 2008;
- EUR 2,000,000 “free taxes”, due on 25 October 2008.
4.
Article 3.1.2 of the contract established benefits as follows:
a) 12 flight tickets in an executive class per season: Country D – Country B –
Country D;
b) 1 equipped and furnished house to be selected by the Claimant;
c) Hotel with all included until the Claimant finds a residence;
d) 2 cars;
e) 1 chauffer;
f) School for Language F for his 5 children;
g) Teacher for Language G for the Claimant and his family;
h) Health insurance.
5.
Article 4 of the contract established a possibility to extend the contract for one or two
seasons, in which case the Claimant would be entitled to a remuneration of EUR
6,000,000. In case the parties want to extend the contract, “the Parties shall agree in
writing by no later than 30 April 2009”.
6.
On the same date, i.e. 28 August 2008, the Claimant and the Respondent signed a
document titled “THE CONTRACT on performance of professional duties by nonamateur-Football player of Club C”, valid until 28 August 2009, by means of which inter
alia “the Club undertakes to follow the condition of payment of the Football Player
according to the present contract”.
7.
Article 4.1 of the aforementioned contract established that “for performance of the
duties stipulated by the present contract, the wages, according to the list of staff of
Club are monthly paid to the Football Player”.
Player A, Country B / Club C, Country D
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8.
On 17 November 2008, the Claimant, the Respondent and the Company signed a
document titled “Term of Employment Contract Extension” (hereinafter: the new
contract), by means of which the parties extended “the stated period of validity of
related contract” until 31 December 2011, according to article 4 of the contract dated
28 August 2008, establishing the remuneration for the seasons 2010 and 2011 as
follows:
Season 2010
- The Respondent will pay the Claimant the amount of EUR 6,000,000 divided in two
equal instalments on 25 August 2009 and 25 September 2009;
Season 2011
- The Respondent will pay the Claimant the amount of EUR 6,000,000 divided in two
equal instalments on 25 August 2010 and 25 September 2010.
The new contract further established that the abovementioned remuneration revokes
the remuneration established in article 4 of the contract dated 28 August 2008 for the
same period.
9.
Article 3 of the new contract established that “to be continue being valid for the
contractual however extending period, all the rest clauses of the Employment contract
firmed between [Respondent] and [Claimant] in 28 August 2008 and that they had not
damaged no modification with the present instrument from Extension”.
10.
On 1 April 2009, the Claimant, the Respondent and the Company signed a document
named “Service Contract” (hereinafter: the service contract) valid until 31 December
2011, by means of which the Claimant was hired as “Consultant to advise the club on
the assembly’s football team, the Technical Commission, modernizing the
management of soccer, identification of talents, acting, even when prompted, the
recruitment of players, comment on financial terms for the loan and pay athlete in
search quality technical and professional athletes to be engaged in training and
creation of conditions for training and preparation for the athletes to think in terms of
training to be established, and represent the club in all countries and clubs to football
that is requested to be present in that capacity”.
11.
According to the service contract, the Claimant was entitled to “26% the importance
equal amount from his salary established in the contract of employment signed on 28
August 2008 and the term of option signed on 17 November 2008, this amounts to be
paid on the same dates of those contracts”.
12.
Article 5.1 of the service contract established that “The Club may use the image of the
[Claimant] for the disclosure of his, with, and therefore warn you in advance of at least
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fifteen days where the event to be held depends on the physical presence of the
[Claimant]”.
13.
Finally, the service contract determined that “the company signing this Agreement as a
responsible club solidarity with the obligations assumed by it with the player in this
instrument”.
14.
On 26 July 2010, the Claimant send a default notice to the Respondent and the
Company, requesting the payment of the outstanding amount of EUR 6,000,000
regarding the payments due on 25 August 2009 and 25 September 2009, establishing
a deadline of 10 days.
15.
On 9 August 2010, the Claimant terminated the employment relationship in writing
alleging just cause.
16.
On 19 August 2010, the Claimant lodged a claim before FIFA against the Respondent
for breach of contract, claiming the following:
- EUR 8,269,013 as outstanding remuneration;
- EUR 7,650,000 as compensation corresponding to the residual value of the
contract and the service contract;
- sporting sanctions to be imposed on the Respondent.
17.
According to the Claimant, the Respondent and the Claimant concluded an
employment contract on 28 August 2008, which established the possibility of extending
the contractual period, as well as an annex (cf. point I.6). Subsequently, the
Respondent and the Claimant signed a new contract establishing a new contractual
period until 31 December 2011, determining the remuneration for the seasons 2010
and 2011.
18.
In this respect, the Claimant held that the Respondent fulfilled its financial obligations
until 25 September 2008, but failed to pay the instalments that became due on 25
August
2009
and
25
September
2009
in
the
amount
of
EUR 3,000,000 each.
19.
The Claimant also stated having held several meetings with the Respondent to try to
solve the problem, without success. As a consequence, the Claimant contacted the
Respondent on 26 July 2010, requesting the payment of the outstanding remuneration,
establishing a deadline of 10 days. Subsequently, since no payment was received, the
Claimant terminated the contract on 9 August 2010.
20.
The Claimant also held that, although the service contract established that it was
related to image rights and consultancy, it was actually intended to complement the
Player A, Country B / Club C, Country D
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remuneration established in the employment contract. According to the Claimant, he
was entitled to receive:
- EUR 1,267,497 from 1 April 2009 until 31 December 2009;
- EUR 780,000 due on 25 August 2009 (26% of EUR 3,000,000);
- EUR 780,000 due on 25 September 2009 (26% of EUR 3,000,000);
- EUR 780,000 due on 25 August 2010 (26% of EUR 3,000,000);
- EUR 780,000 due on 25 September 2010 (26% of EUR 3,000,000).
21.
In this respect, although he was allegedly entitled to the amount of EUR 2,767,497
regarding the service contract for the season 2009, he held having received only EUR
920,257 on 1 April 2009, and thus, the amount of EUR 1,847,240 remained
outstanding.
22.
Furthermore, the Claimant stated that he was entitled to receive until the date of the
termination, i.e. 9 August 2010, the amount of EUR 361,772.94 according to clause
3.1.2 of the contract.
23.
Therefore, according to the Claimant, on the date of the claim, the aggregate amount
of “EUR 8,269,013.16” (EUR 6,000,000 + EUR 361,722.94 + EUR 1,847,240) was
outstanding.
24.
Finally, the Claimant held having also contacted the Company to receive the
aforementioned amounts, since the Company also signed the relevant contracts.
25.
Although having been invited to do so, the Respondent did not answer to the claim
even though informed that in the absence of a reply, a decision would be taken on the
basis of the documentation and information on file.
26.
The Claimant informed FIFA that he remained unemployed between 9 August 2010
and 27 January 2011, date on which he signed an employment contract with the Club
of Country B, Club H, valid from 27 January 2011 until 31 December 2011. The
employment contract established a monthly salary of 70,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 19 August 2010.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. article 21 of the 2008, 2012 and 2014 editions of
the Procedural Rules).
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
2.
Player A, Country B / Club C, Country D
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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.
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 2014,
2012, 2010 and 2009), and considering that the present claim was lodged on 19
August 2010, the 2009 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
emphasised that in the following considerations it will refer only to the facts, arguments
and documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
In continuation, the members of the Chamber noted that the Claimant lodged a claim
against the Respondent for breach of contract requesting outstanding remuneration
and compensation for breach of contract.
6.
In this respect, the Chamber first of all considered that the Respondent, for its part,
failed to present its response to the claim of the Claimant, in spite of having been
invited to do so. Consequently, the Chamber deemed that the Respondent had
renounced to its right of defence and, thus, had accepted the allegations of the
Claimant.
7.
As a consequence of the aforementioned consideration, the members of the Chamber
concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision
shall be taken upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
8.
Having established that, the members of the DRC acknowledged that the Claimant
and the Respondent had concluded several contracts. Consequently, the DRC
considered that it was necessary to first analyse the different contracts and determine
which contracts are to be considered at the basis of the present dispute.
9.
The Chamber recalled that the Claimant and the Respondent had concluded four
different contracts:
(i) The contract dated 28 August 2008 concluded between the Claimant, the
Respondent and the Company. In particular, the Chamber took note that the
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Company was acting as the owner of the Respondent and was responsible to
make the payments under this contract to the Claimant (cf. point I.2);
(ii) “THE CONTRACT on performance of professional duties by non-amateurFootball player of Club C” also dated 28 August 2008, concluded between the
Claimant and the Respondent. In particular, the Chamber took note that it only
established the Claimant’s obligations, without foreseeing any remuneration;
(iii) The new contract dated 17 November 2008 concluded between the Claimant,
the Respondent and the Company, by means of which the parties agreed on
the extension of the contract dated 28 August 2008. In particular, the Chamber
took note that the new contract established the obligation of the Respondent
to pay the Claimant the amount of EUR 6,000,000 per season;
(iv) The service contract dated 1 April 2009 also concluded between the Claimant,
the Respondent and the Company.
10.
In consideration of the above, the Chamber highlighted that the contract dated 28
August 2008 was extended and replaced by the new contract on 17 November 2008.
As a consequence, the new contract dated 17 November 2008 shall be considered as
relevant for the present dispute, this also being the contract on which the Claimant
bases his claim in the present matter.
11.
Regarding the service contract, the DRC took note that it clearly established the object
of that agreement (cf. point I.10-12), establishing the obligations of the Claimant as a
“consultant” to the club. Nevertheless, the Chamber took into account the argument of
the Claimant that the service contract was intended to complement the remuneration
established in the employment contract.
12.
In this respect, the DRC recalled that according to the legal principle of the burden of
proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on
the basis of an alleged fact shall carry the burden of proof.
13.
In this regard, the members of the DRC considered that the Claimant had to
demonstrate that the amounts established in the service contract were not related to
image rights and consultancy services as described in the relevant contract. However,
the DRC considered that the Respondent did not submit any evidence in this regard
and failed to discharge his burden of proof.
14.
Considering all the above, in line with its well-established jurisprudence, the Chamber
highlighted that the relevant service contract is not strictly employment-related within
the framework of a player and club relationship and therefore, does not fall under the
competence of the DRC. Therefore, the amounts claimed based on the service
contract cannot be considered.
Player A, Country B / Club C, Country D
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15.
Consequently, the DRC concluded that the contract dated 17 November 2008 is the
contract to be considered by the Chamber in the present dispute, when examining the
financial part of the claim.
16.
In this respect, the Chamber recalled that the parties had signed the new contract on
17 November 2008 extending the validity of the employment relationship until 31
December 2011. In particular, the DRC acknowledged that the new contract
established that the Claimant was entitled to receive the amount of EUR 6,000,000 for
each season, 2010 and 2011, to be paid in two instalments of EUR 3,000,000 each
payable on 25 August and 25 September 2009, for the season 2010, and on 25
August and 25 September 2010, for the season 2011.
17.
In continuation, the Chamber took note that the Claimant terminated the contract in
writing on 9 August 2010, after having put the Respondent in default on 26 July 2010.
18.
Considering the new contract and the claim of the Claimant, the DRC considered that
on the date of the termination, i.e. 9 August 2010, the aggregate amount of EUR
6,000,000, corresponding to the two instalments of EUR 3,000,000 each due,
respectively on 25 August and 25 September 2009, was outstanding.
19.
On account of the aforementioned, the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant the instalments that became
due on 25 August and 25 September 2009 in the total amount of EUR 6,000,000.
Consequently, the Chamber concurred that the Respondent had seriously neglected
its financial contractual obligations towards the Claimant over a substantial amount of
time, despite the Claimant having put the Respondent in default.
20.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause to
unilaterally terminate the contract on 9 August 2010 and that the Respondent is to be
held liable for the early termination of the contract with just cause by the Claimant.
21.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant
the amounts which were outstanding under the contract at the moment of the
termination, i.e. EUR 6,000,000, as established in point II.18 above.
Furthermore, the DRC took into account the request for outstanding remuneration in
the amount of EUR 361,772.94 based on article 3.1.2 of the contract (cf. point I.4),
which was also valid for the new contract and highlighted that the relevant article did
not specify any amounts for the different benefits listed. In this respect, the DRC
recalled the principle of the burden of proof (cf. art. 12 par. 3 of the Procedural Rules)
and pointed out that the Claimant had not provided any evidence in this regard and
thus, all amounts based on article 3.1.2 of the contract are rejected.
22.
Player A, Country B / Club C, Country D
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23.
In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant, the
Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the
Respondent is liable to pay compensation to the Claimant.
24.
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.
25.
In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained 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 any of the contracts.
26.
Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account the remuneration due to
the Claimant in accordance with the contract dated 17 November 2008 as well as the
time remaining on the same contract, along with the professional situation of the
Claimant after the early termination occurred. In this respect, the Chamber pointed out
that at the time of the termination of the employment contract on 9 August 2010, the
contract would still run until 31 December 2011. Consequently, taking into account the
financial terms of the contract, the Chamber concluded that the remaining value of the
contract as from its early termination by the Claimant until the regular expiry of the
contract amounts to EUR 6,000,000 and that such amount shall serve as the basis for
the final determination of the amount of compensation for breach of contract.
27.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute the Claimant had found new
employment with the Club of Country B, Club H, valid as from 27 January 2011 until 31
December 2011 in accordance with which he would be remunerated with the total
amount of 770,000, corresponding to EUR 336,000. Consequently, in accordance with
the constant practice of the Dispute Resolution Chamber and the general obligation of
the Claimant to mitigate his damages, such remuneration under the new employment
contract shall be taken into account in the calculation of the amount of compensation
for breach of contract.
28.
In view of all of the above, the Chamber decided that the Respondent must pay the
amount of EUR 5,664,000 to the Claimant as compensation for breach of contract,
Player A, Country B / Club C, Country D
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which is considered by the Chamber to be a reasonable and justified amount as
compensation.
29.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by 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, has to pay to the Claimant outstanding remuneration in the
amount of EUR 6,000,000, 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 5,664,000, within 30 days as from the date of notification of this
decision.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated time
limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time
limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the
CAS directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS, a copy of which we
enclose hereto. Within another 10 days following the expiry of the time limit for filing the
Player A, Country B / Club C, Country D
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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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