Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 7 December 2011,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
N,
as Claimant
against the club,
Y,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 18 March 2010, the Kenyan player, N (hereinafter: player or Claimant), and the
club, Y (hereinafter: club or Respondent), signed an employment contract valid as
from the date of its signature until the end of the 2011 season as determined by the
Tanzania Football Federation (hereinafter: contract).
2.
According to the Tanzania Football Federation (TFF), the 2010-2011 season started
on 21 July 2010 and ended on 2 April 2011.
3.
In accordance with art. 2 of the contract, “the club shall have the option to elect not
to recruit the Player for the despite the execution of this Agreement, provided Y
shall communicate such decision to the Player on or before the 15 July 2010 or at
least 7 days before the date that shall be set by the TFF as the date for Premier
League clubs to submit the drop list Players which Y does not intend to register for
the new season 2010/2011”.
4.
In accordance with the contract, the player was entitled to receive inter alia the
following remuneration:
- A net monthly salary of Tanzanian Shilling (TZS) 1,300,000;
- A signing-on bonus of TZS 10,000,000 to be paid as follows:
i) TZS 1,000,000 upon the signing of the contract;
ii) TZS 9,000,000 in four equal monthly installments commencing on 15
July 2010 and with the final installment payable on 15 October 2010.
5.
On 28 December 2010, the player lodged a claim against the club in front of FIFA
claiming that, on 17 July 2010, the club terminated the contract without just cause
and that it should be held liable for the payment of compensation.
6.
The player explains that even though the contract was signed on 18 March 2010, the
Tanzanian footballing season allegedly began in July 2010 and was to end on 30
June 2011. However, on 17 July 2010, the player was allegedly informed by the
club´s management team, that he was no longer needed.
7.
On the basis of the above-mentioned facts, the player requests the payment of the
following amounts:
- TZS 15,600,000 corresponding to twelve months´ salary as from July 2010 to
June 2011;
- TZS 10,000,000 corresponding to the signing-on bonus.
8.
In spite of having been invited by FIFA to do so on two occasions, the club has not
presented any reply to the player´s claim.
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9.
Finally, in reply to FIFA´s request, the player has indicated that as from 14 November
2010 until 31 December 2012, he has signed a professional contract with S Football
Club, with a monthly salary of Kenyan Shilling (KES) 50,000.
II.
Considerations of the DRC judge
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 28 December 2010, thus after 1 July 2008. 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.
art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2010) he is competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a Kenyan
player and a Tanzanian club.
3.
Furthermore, the DRC judge analysed which 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 2 of the Regulations on the Status and Transfer of Players (edition
2010), and considering that the present claim was lodged on 28 December 2010, the
2010 edition of the said regulations (hereinafter: Regulations) is applicable to the
matter at hand 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 this respect,
the DRC judge acknowledged that the Claimant and the Respondent signed an
employment contract on 18 March 2010 valid as from the date of its signature until
the end of the 2011 season, as determined by the Tanzania Football Federation.
According to the Tanzania Football Federation, the 2010-2011 season started on 21
July 2010 and ended on 2 April 2011.
5.
The DRC judge took note that according to the relevant employment contract, the
Claimant was entitled to receive a net monthly salary of Tanzanian Shilling (TZS)
1,300,000 and a signing-on bonus of TZS 10,000,000, TZS 1,000,0000 to be paid upon
the signing of the contract, and TZS 9,000,000 to be paid in four equal monthly
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installments commencing on 15 July 2010 and with the final installment payable on
15 October 2010.
6.
In continuation, the DRC judge observed that the Claimant alleged that the
Respondent, on 17 July 2010, had unilaterally terminated the contract without just
cause. The Claimant further held that even though the contract was signed on 18
March 2010, the Tanzanian footballing season allegedly began in July 2010 and was
to end on 30 June 2011.
7.
The Claimant, upon being informed by the club´s management team on 17 July 2010
that his services where no longer required, maintains not to have received any
monetary payments as per the employment contract signed by the parties. The DRC
judge noted that, in view of all of the above, the Claimant requested to be awarded
payment of TZS 15,600,000 corresponding to twelve months´ salary as from July 2010
to June 2011 and TZS 10,000,000 corresponding to the signing-on bonus.
8.
The Respondent, for its part, failed to present its response to the claim of the player,
in spite of having been invited to do so. In this way, the DRC judge deemed that the
Respondent renounced its right to defence and, thus, accepted the allegations of the
Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
stressed that in accordance with art. 9 par 3 of the Procedural Rules he shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
10.
Consequently, the DRC judge concluded that it is uncontested that the Respondent
unilaterally terminated the employment contract.
11.
In continuation, the DRC judge went on to deliberate whether on the basis of the
facts of the present case the Respondent had just cause to prematurely terminate the
employment contract.
12.
Subsequently, the DRC judge focused his attention on art. 2 of the employment
contract, which reads as follows “the club shall have the option to elect not to recruit
the Player for the despite the execution of this Agreement, provided Y FC shall
communicate such decision to the Player on or before the 15 July 2010 or at least 7
days before the date that shall be set by the TFF as the date for Premier League clubs
to submit the drop list Players which Y does not intend to register for the new season
2010/2011”, and deemed essential to analyse whether such clause could be considered
as being valid.
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13.
In this regard, the DRC judge considered that the possibility granted to the
Respondent by this clause to prematurely terminate the contract without having to
invoke any reason for such termination is clearly unilateral and to the benefit of the
Respondent only, as well as abusive. What is more, it leaves an unacceptable
discretion to the Respondent to decide whether it wishes to continue the contractual
relationship. In the light of such abusive and potestative character of the pertinent
contractual clause, the DRC judge deemed that art. 2 of the contract is not valid and
thus cannot be validly invoked nor constitute a legal basis to unilaterally terminate
the employment contract.
14.
On account of the above-mentioned facts, in particular, bearing in mind that the
Respondent failed to present its reply to the claim of the Claimant, the DRC judge
accepted the Claimant´s allegations that the Respondent had unilaterally terminated
the contract without just cause on 17 July 2010.
15.
Having established that the Respondent is to be held liable for the early termination
of the employment contract without just cause, the DRC judge focussed 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 money as compensation for breach of contract in
addition to any outstanding payments on the basis of the relevant employment
contract.
16.
In this context, the DRC judge recalled that the Claimant asks to be awarded payment
of twelve months´ salary as from July 2010 until June 2011 as well as the signing-on
bonus.
17.
First of all, the DRC judge pointed out that even though the Tanzanian footballing
season started in July 2010, the employment contract at the basis of the present
dispute was actually signed on 18 March 2010 and, therefore, the Chamber decided
that in virtue of the principle of pacta sunt servanda the Claimant is entitled to
receive the first part of the signing-on bonus which was due upon the signing of the
contract (cf. point I./4. i).
18.
Consequently, the DRC judge decided that the Respondent is liable to pay to the
Claimant the amount of TZS 1,000,000 relating to the Claimant’s first part of the
signing-on bonus, which was outstanding at the moment when the Respondent
unilaterally terminated the employment contract.
19.
In continuation, the DRC judge focussed his attention on the calculation of the
amount of compensation for 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
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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
employment 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 the 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.
Equally, and in order to evaluate the compensation to be paid by the Respondent, the
DRC judge took into account, in line with art. 17 par. 1 of the Regulations, the
remuneration due to the Claimant in accordance with the contract as well as the time
remaining on the same contract, as well as the professional situation of the Claimant
after the early termination occurred.
23.
In this regard, the DRC judge deemed it essential to highlight that, contrary to the
Claimant´s allegations, the employment contract would have expired on 2 April 2011,
i.e. at the end of the 2011 season as determined by the TFF.
24.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the
monies payable to the player under the terms of the employment contract, taking
into account that the player’s first part of the signing-on bonus is included in the
calculation of the outstanding remuneration (cf. point II./18). Consequently, the DRC
judge concluded that the amount of TZS 20,700,000 (i.e. 9 monthly salaries as from
July 2010 until March 2011 as well as the remaining part of signing-on bonus) serves
as the basis for the final determination of the amount of compensation for breach of
contract.
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25.
Indeed, on 14 November 2010, the Claimant found employment with the club, S. In
accordance with the pertinent employment contract, which has been made available
by the Claimant, valid until 31 December 2012, the Claimant was entitled to receive a
monthly salary of Kenyan Shilling (KES) 50,000 (approx. TZS 908,040). Consequently,
the DRC judge established that the value of the new employment contract concluded
between the Claimant and S FC for the period as from November 2010 until and
including March 2011 appears to amount to TZS 4,540,200.
26.
In accordance with the constant practice of the Dispute Resolution Chamber and the
general obligation of the player 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.
27.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC judge decided that the Respondent must pay
not the entire residual value of the contract but the amount of TZS 16,159,800, which
was to be considered reasonable and justified as compensation for breach of contract
in the case at hand.
28.
In conclusion, the DRC judge decided to partially accept the claim of the Claimant and
that the Respondent is liable to pay the total amount of TZS 17,159,800 to the
Claimant, consisting of TZS 1,000,000 relating to the outstanding part of the signingon bonus and TZS 16,159,800 as compensation for breach of contract.
29.
The DRC judge concluded the deliberations in the present matter by establishing that
any further claim lodged by the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, N, is partially accepted.
2.
The Respondent, Y FC, has to pay the amount of Tanzanian Shilling (TZS) 17,159,800
to the Claimant within 30 days as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant 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 aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
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5.
The Claimant is directed to inform the Respondent 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 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
Encl.: CAS directives
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