Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 7 December 2011,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
A,
as Claimant
against the club,
X FC,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 1 June 2010, the player, A (hereinafter: the player or the Claimant), and the X
FC (hereinafter: the club or the Respondent), signed an employment contract
(hereinafter: the contract), valid as from 1 August 2010 until 30 April 2011.
2.
According to art. 2 and 6 of the contract, the club undertakes to provide the player
with the following:
- a salary of EUR 7,200, payable in nine equal monthly instalments of EUR
800 each, as of 30 August 2010 and on the last day of each subsequent
month;
- the rent of a house for nine months. According to the documentation on
file, the rent agreement is valid for 12 months as of 20 April 2010, and the
rent expenses correspond to EUR 500 per month.
3.
Regarding the payment of the rent of a house for the player, art. 6 of the contract
stipulates that “the other three months must be paid by the employee”.
4.
On 10 May 2011, the player lodged a claim in front of FIFA against the club for
breach of contract without just cause, claiming the total amount of EUR 9,850, plus
interests, made up of:
- EUR 800, for the salary of October 2010;
- EUR 4,800 as a compensation for the premature termination of the
contract, corresponding to 6 months of salaries;
- EUR 4,250, corresponding to rental costs for 8 and a half months.
5.
In his arguments, the player explained that, on 25 October 2010, the club orally
terminated the employment contract, without just cause.
6.
After the closure of investigations, the X FC informed FIFA that it had lately
experienced personnel changes and, therefore, the player’s claim remained
unanswered. The club would try to find an amicable settlement with the player, but
did not submit its final position as to the substance of the player’s claim.
7.
On 29 August 2011, the player informed our services that, despite the club’s
correspondence, no amicable solution had been found.
8.
Finally, he stated that he did not sign a new employment contract between 25
October 2010 and 30 April 2011.
II. Considerations of the DRC judge
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1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 10 May 2011. Consequently, the 2008 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 hand (cf. art. 21
par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that, in accordance with art. 24 par. 1 and 2 in conjunction with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, edition 2010
(hereinafter: the Regulations), he is competent to decide on the present litigation,
which concerns an employment-related dispute with an international dimension
between a player and an club.
3.
Furthermore, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that, in
accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2010) and
considering that the present matter was submitted to FIFA on 10 May 2011, the
2010 edition of said Regulations is applicable to the present matter as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing so, he
started to acknowledge the facts of the case as well as the documents contained in
the file.
5.
In this respect, the DRC judge noted that the Claimant claims that the Respondent
has failed to pay his salary for October 2010, in the amount of EUR 800, as well as
rent expenses for the entire duration of the contract, in the amount of EUR 4,250,
taking into account a period of eight and a half months. The Claimant further
claims that the Respondent orally terminated the contract without just cause on 25
October 2010 and, therefore, should pay him compensation for breach of contract
in the amount of EUR 4,800.
6.
Subsequently, the DRC judge took note of the fact that the Respondent, in its
response, mentioned personnel changes as the reason for its delay in submitting its
position to the player’s claim. Equally, the Respondent proposed the amicable
settlement of the dispute, which, however, could not be reached.
7.
Having established the aforementioned, the DRC judge deemed that the underlying
issue in this dispute, considering the claim of the Claimant, was to determine
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whether the employment contract had been unilaterally terminated with or
without just cause by the club, and which party was responsible for the early
termination of the contractual relationship in question. The DRC judge also
underlined that, subsequently, if it were found that the employment contract was
terminated by the Respondent without just cause, it would be necessary to
determine the financial and/or sporting consequences for the party that caused the
unjust breach of the relevant employment contract.
8.
Subsequently, the DRC judge went on to analyze the arguments and the
documentation presented by the Claimant. In this respect, the DRC judge
acknowledged that it was undisputed between the parties that they had signed an
employment contract on 1 June 2010, in accordance with which the player was
entitled to receive, inter alia, remuneration in the amount of EUR 7,200, payable in
nine equal installments of EUR 800, as of 30 August 2010 and subsequently on the
last day of each month, as well as rent expenses for nine months, amounting to EUR
500, as per the rent agreement on file.
9.
In continuation, the DRC judge acknowledged that the Claimant states not having
received his salary for October 2010 or any rent expenses for the entire duration of
the contract, in the total amount of EUR 5,050, and that on the 25 October 2010,
the Respondent unilaterally terminated the employment relation without just
cause.
10. Furthermore, the DRC judge noted that, despite having been invited by FIFA to file
its position regarding the present matter, the Respondent never provided any
position as to the substance of the player’s claim. In particular, the DRC judge took
note of the fact that the Respondent did not refute the existence of arrears towards
the Claimant nor did it deny having orally and unilaterally terminated the
employment contract with him on 25 October 2010.
11. In addition, the DRC judge recalled the wording of art. 9 par. 3 of the Procedural
Rules, according to which if no statement or reply is received from a party before
the established time limit expires, a decision shall be taken upon the basis of the
documents already on file.
12. Bearing in mind the above-mentioned legal principle and the wording of art. 9 par.
3 of the Procedural Rules, the DRC judge concurred that, as a consequence of its
silence with regard to the substance of the Claimant’s claim, the Respondent tacitly
accepted all the player’s allegations. Consequently and in the absence of any contrary
allegations made by the Respondent, the employment contract is to be considered as
unilaterally terminated by the Respondent without just cause in October 2010.
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13. Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the DRC judge focused
his attention on the consequences of such breach of contract. Taking into
consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the
Claimant is entitled to receive from the Respondent an amount of compensation for
breach of contract in addition to any outstanding payments on the basis of the
relevant employment contract until the date on which the contract was terminated.
14. As a result and in line with the legal principle of pacta sunt servanda, the DRC judge
concluded that the Claimant was entitled to receive from the Respondent the
outstanding amounts corresponding to the salary for October 2010, in the amount
of EUR 800, and the rent expenses until the date of termination, i.e. until 25
October 2010.
15. In this respect, the DRC judge took note of the fact that, according to art. 2 and 6 of
the contract, the Respondent would bear the rent expenses of the player for nine
months and that the remaining three months would be paid by the Claimant.
Furthermore, the DRC judge noted that a rental agreement, for a monthly lease of
EUR 500 and valid for 12 months, was signed on 20 April 2010 between the landlord
and the player, for X FC. Finally, the DRC judge observed that the Claimant requests
the payment of eight and a half months of rent expenses, in the amount of EUR
4,250.
16. In view of the above, the DRC judge established that the eight and a half months
mentioned by the player correspond to half of August 2010 – being the first month
of the contract – and that the remaining eight months correspond to September
2010 until April 2010, i.e. until the end of the contract. According to the DRC judge,
two and a half months of rent were outstanding by the time of the termination on
25 October 2010, i.e. half of August and the complete months of September and
October 2010. Therefore, the DRC judge concluded that the amount of EUR 1,250,
corresponding to rent expenses, was outstanding and due to the Claimant by the
Respondent, by the time of termination of the contract.
17. In view of the above, the DRC judge decided that the Respondent is liable to pay to the
Claimant the total amount of EUR 2,050, corresponding to his salary for October 2010,
amounting to EUR 800, and rent expenses for the half of August and the entire months
of September and October 2010, amounting to EUR 1,250.
18. With regard to the claimed interests, the DRC judge noted, on the one hand, that no
payment dates were stipulated in the rental agreement. However, according to common
practice, rent payments are to be made in advance and at the latest on the last day of
the month previous to which the relevant amount is due for. On the other hand, the DRC
judge observed that the employment agreement clearly stipulates that the salaries shall
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be paid on the last day of each month. Consequently, the Chamber decided that the
Respondent had to pay over the aforementioned outstanding amounts default interest at
a rate of 5% as follows:
- 5% p.a. as of 31 July 2010 over the amount of EUR 250;
- 5% p.a. as of 31 August 2010 over the amount of EUR 500;
- 5% p.a. as of 30 September 2010 over the amount of EUR 500;
- 5% p.a. as of 31 October 2010 over the amount of EUR 800.
19. In continuation, the DRC judge focused its attention on the calculation of the
amount of compensation due to the Claimant for the unjustified breach of contract
in the case at stake. In doing so, the DRC judge 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 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.
20. In application of the relevant provision, the DRC judge held that he, 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.
The DRC judge established that no such compensation clause was included in the
contract at the basis of the matter at stake.
21. As a consequence, the DRC judge determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge recalled
that said provision provides for a non-exhaustive enumeration of criteria to be
taken into consideration when calculating the amount of compensation payable.
Therefore, other objective criteria may be taken into account at the discretion of
the deciding body.
22. The DRC judge took into account, inter alia, in line with art. 17 par. 1 of the
Regulations, the remuneration due to the Claimant in accordance with the
employment contract as well as the time remaining on the same contract and the
professional situation of the Claimant after the early termination occurred.
23. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract as
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from 25 October 2010 until 30 April 2011. Consequently, the DRC judge concluded
that the amount of EUR 4,800, corresponding to the player’s monthly salaries falling
due as from the date of termination, i.e. 25 October 2010, until the end of the
contract, i.e. 30 April 2011, serves as the basis for the final determination of the
amount of compensation for breach of contract. To this amount, the DRC judge
added remaining rent expenses from November 2010 to April 2011, amounting to
EUR 3,000, also requested by the player as compensation for breach of contract.
24. Furthermore, the DRC judge took into account that the player had not found any
new employment with another club as of 25 October 2010 until 30 April 2011.
25. In this respect, the DRC judge decided that the entire remaining value of the
contract, corresponding to the player’s salaries and rent expenses for November
2010 until April 2011, amounting to EUR 7,800, was to be considered reasonable
and justified as compensation for the termination of the contract without just
cause.
26. On account of the above, the DRC judge decided to accept the Claimant’s claim and
to award him an amount of EUR 2,050 as outstanding remuneration, plus interest
of 5%, as follows:
- 5% p.a. as of 31 July 2010 over the amount of EUR 250;
- 5% p.a. as of 31 August 2010 over the amount of EUR 500;
- 5% p.a. as of 30 September 2010 over the amount of EUR 500;
- 5% p.a. as of 31 October 2010 over the amount of EUR 800.
27. Furthermore, the DRC judge decided to grant the Claimant compensation for
breach of contract in the amount of EUR 7,800.
*****
III. Decision of the DRC judge
1.
The claim of the Claimant, A, is accepted.
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2.
The Respondent, X FC, has to pay to the Claimant, A, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 2,050, plus interest of 5% p.a. until the date of effective payment
as follows:
- 5% p.a. as of 31 July 2010 over the amount of EUR 250;
- 5% p.a. as of 31 August 2010 over the amount of EUR 500;
- 5% p.a. as of 30 September 2010 over the amount of EUR 500;
- 5% p.a. as of 31 October 2010 over the amount of EUR 800.
3.
The Respondent, X FC, has to pay to the Claimant, A, compensation for breach
of contract in the amount of EUR 7,800, within 30 days as from the date of
notification of this decision.
4.
In the event that this amount of compensation is not paid within the stated
time limit, interest at the rate of 5% per year will fall due as of expiry of the
time limit until the date of effective payment.
5.
If the aforementioned amounts are not paid within the above-mentioned time
limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and a formal decision.
6.
The Claimant, A, is directed to inform the Respondent, X FC, immediately and
directly of the account number to which the remittance is to be made and to notify
the DRC judge of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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
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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 DRC judge
Jérôme Valcke
Secretary General
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