Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 18 December 2012,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player
Player A, from country S
as Claimant
against the club
Club V, from country H
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1. On 1 July 2010, Player A, from country S (hereinafter: the Claimant) and Club V,
from country H (hereinafter: the Respondent) concluded an employment contract
and an additional agreement, supplementing the financial terms provided for in the
employment contract, (hereinafter: the contract) both valid as of 1 July 2010 until 30
June 2012.
2. According to the contract and the agreement, the Claimant was entitled to receive
for his services a monthly salary made up of the following amounts: currency of
country H 73,500 and EUR 2,500.
3. On 28 November 2011, the Claimant lodged before FIFA a petition against the
Respondent for breach of contract. In particular, the Claimant asserted that in March
2011 the Respondent had stopped paying to him the agreed monthly salary. In
addition, according to the Claimant, since the beginning of July 2011, the
Respondent had failed to provide the Claimant with appropriate training conditions
and medical care. Therefore, on 11 September 2011, the Claimant sent a letter to the
Respondent by means of which he unilaterally terminated the contract due to the
latter’s breach.
4. The Claimant reported that, following the letter of 11 September 2011, the
Respondent requested him, by letter dated 5 October 2011, to send a financial
statement setting out the exact amounts due. Further, the Claimant stated that, in
response to the Respondent’s letter, on 17 October 2011, he made, via fax, a
proposal to settle the matter amicably. However, the Claimant asserted that the
Respondent never replied to his letter.
5. In view of the foregoing, the Claimant requested that the Respondent would be
ordered to pay the following amounts: i) Currency of country H 220,500 as
outstanding salaries for the months of June, July and August 2011; ii) EUR 15,500 as
outstanding salaries for a proportion of March 2011 and the full salaries for the
months of April, May, June, July and August 2011; iii) Currency of country H 735,000
as compensation for the monthly salaries for the remaining term of the contract, that
is from September 2011 until June 2012; and iv) EUR 25,000 as compensation for the
monthly salaries for the remaining term of the agreement, that is from September
2011 until June 2012. Further, the Claimant requested 5% interest p.a. on the
following overall sums: EUR 40,500 as of March 2011; and currency of country H
955’500 as of June 2011. In addition, the player requested that disciplinary sanctions
against the Respondent would be considered.
6. In spite of having been asked to do so, the Respondent never responded to the claim
lodged against it, although it was informed by FIFA that, in absence of a reply, a
decision would be taken on the basis of the information and evidence at disposal.
7. Inquired about the Claimant’s labour situation during the period between 11
September 2011 and 30 June 2012, the Claimant reported that, following the
termination of the contract with the Respondent, he had not concluded a contract
with a new club before 30 June 2012.
Player A, from country S / Club V, from country H
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II. Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC
judge) analysed whether he was competent to deal with the case at hand. In
this respect, he firstly took note that the present matter was submitted to FIFA
on 28 November 2011. Therefore, the DRC judge concluded that 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 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 and in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), the DRC judge is competent to decide on the present
litigation, concerning an employment-related dispute of an international
dimension between a country S player and a country H club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on
the Status and Transfer of Players (edition 2012), the DRC judge confirmed that
he may adjudicate in the present dispute, which value does not exceed currency
of country C 100,000.
4.
In continuation, 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 (editions 2010 and 2012) and also considering that the
present claim was lodged in front of FIFA on 28 November 2011, the 2010
edition of the Regulations on the Status and Transfer of Players (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. He started
by acknowledging that the parties to the dispute had signed an employment
contract as well as an additional agreement both valid as from 1 July 2010 until
30 June 2012.
6.
Equally, the DRC judge observed that the parties had agreed an overall
remuneration for the term of the contract and agreement amounting to
Player A, from country S / Club V, from country H
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currency of country H 1,764,000 and EUR 60,000, respectively. Further, the DRC
judge noted that the remuneration was to be paid in equal monthly instalments
of currency of country H 73,500 and EUR 2,500 each.
7.
In continuation, the DRC judge noted that the Claimant lodged a claim against
the Respondent requesting the payment of the following outstanding amounts:
currency of country H 220,500 for the salaries of June, July and August 2011;
and EUR 15,500 for a proportion of the March 2011 salary and the full salary for
the months of April, May, June, July and August 2011. Furthermore, the DRC
judge took note of the Claimant’s request for compensation for the remaining
term of the contract and the agreement, ie from September 2011 until June
2012, amounting to currency of country H 735,000 and EUR 25,000.
8.
In addition, the DRC judge observed that the Claimant requested 5% interest
p.a. as of March 2011 on the sum claimed in euros, ie EUR 40,500, and 5%
interest p.a. as of June 2011 on the amount claimed in currency of country H,
that is currency of country H 955,500.
9.
Finally, the DRC judged noted that the Respondent, for its part, failed to
present its response to the petition of the Claimant, in spite of having been
invited to do so. In this way, the DRC judge concluded that the Respondent
renounced to its right to defence and, thus, accepted the allegations of the
Claimant.
10. As a consequence of the aforementioned consideration, the DRC judge
established 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.
11. With due consideration to the above, the DRC judge went on to assess whether
the contract had been breached and, in the affirmative, which party is to be
held liable for breach of contract.
12. In doing so, the DRC judge took into account that, according to the Claimant,
the Respondent failed to partially meet its financial obligations under the
contract as from March 2011 and had even stopped paying the player salaries
altogether as of June 2011. In addition, the DRC judge noted that, according to
the Claimant’s petition, since the beginning of July 2011, the Respondent failed
to provide the Claimant with appropriate training conditions and medical care.
The DRC judge also observed that the notice of termination was sent by the
Claimant six months after the Respondent started neglecting its financial
obligations under the contract and three months after the Respondent stopped
paying salaries at all to the Claimant.
Player A, from country S / Club V, from country H
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13. On account of the above circumstances, in particular, taking into account that
the Respondent had seriously neglected its contractual obligations towards the
Claimant in a continuous and constant manner, the DRC judge decided that the
Claimant had just cause to terminate the employment contract on 11 September
2011 and that the Respondent is to be held liable for the early termination of
the employment contact with just cause by the Claimant.
14. 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 DRC
judge focussed on the consequences of such termination. 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 contract.
15. First of all, the DRC judge acknowledged that, as stated above, in accordance
with the employment contract presented by the Claimant, the Respondent was
obliged to pay to the Claimant the total amount of EUR 2,500 and currency of
country H 73,500 on a monthly basis during the term of the contract.
16. Subsequently, the DRC judge reverted to the Claimant’s financial claim, which
includes outstanding remuneration of currency of country H 220,500 for the
salaries of June, July and August 2011; and EUR 15,500 for a proportion of the
March 2011 salary and the full salary for the months of April, May, June, July
and August 2011. However,
17. Taking into account the documentation presented by the Claimant in support of
his petition, the DRC judge concluded that the Claimant had substantiated his
claim pertaining to outstanding salaries with sufficient documentary evidence.
However, at the same time, the DRC judge outlined that the partial outstanding
salary for the month of March 2011 as well as the full salaries for the months of
April to August 2011 only amounted to the sum of EUR 13,000 and thus not to
the sum of EUR 15,500.
18. On account of the aforementioned considerations, the DRC judge established
that the Respondent failed to remit the Claimant’s monthly salaries in the total
amount of EUR 13,000 and currency of country H 220,500.
19. Consequently, the DRC judge decided that the Respondent, in accordance with
the general legal principle of pacta sunt servanda, is liable to pay to the
Claimant outstanding salaries in the total amount of EUR 13,000 and currency of
country H 220,500.
Player A, from country S / Club V, from country H
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20. In addition, taking into account the Claimant’s request as well as the constant
practice of the DRC, the DRC judge decided that the Respondent must pay to
the Claimant interest of 5% p.a. on each of the outstanding monthly salaries as
of the day following the day on which such salaries had fallen due.
21.
In continuation, the DRC judge turned his attention to the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
so, the DRC judge firstly recalled 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.
22.
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. In this regard, the DRC judge established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
23.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
until 30 June 2012, taking into account that the player’s remuneration until
August 2011 is included in the calculation of the outstanding remuneration (cf.
no. II./19. above). Consequently, the DRC judge concluded that the amounts of
currency of country H 735,000 and EUR 25,000 (i.e. salaries as from September
2011 until June 2012) serve as the basis for the final determination of the
amount of compensation for breach of contract.
24.
In continuation, the DRC judge verified as to whether the Claimant had signed
an employment contract with another club during the relevant period of time,
by means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
Player A, from country S / Club V, from country H
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25.
The DRC judge noted however that the Claimant indicated that he had not
signed any other employment contract with a new club in the period between
September 2011 and 30 June 2012.
26.
Consequently, on account of all of the above-mentioned considerations and
taking into consideration the specificities of the case at hand, the DRC judge
decided that the Respondent must pay the amount of currency of country H
735,000 and EUR 25,000 to the Claimant as compensation for breach of
contract.
27.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount set as
compensation as of 18 December 2012 until the date of effective payment.
28.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber (DRC) judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club V, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
currency of country H 220,500 and EUR 13,000, plus 5% interest p.a. until the date
of effective payment as follows:
a.
b.
c.
d.
e.
f.
g.
h.
a.
3.
5% p.a. as of 1 July 2011 on the amount of currency of country H
73,500;
5% p.a. as of 1 August 2011 on the amount of currency of country H
73,500;
5% p.a. as of 1 September 2011 on the amount of currency of
country H 73,500;
5% p.a. as of 1 April 2011 on the amount of EUR 500;
5% p.a. as of 1 May 2011 on the amount of EUR 2,500;
5% p.a. as of 1 June 2011 on the amount of EUR 2,500;
5% p.a. as of 1 July 2011 on the amount of EUR 2,500;
5% p.a. as of 1 August 2011 on the amount of EUR 2,500;
5% p.a. as of 1 September 2011 on the amount of EUR 2,500;
The Respondent, Club V, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, compensation for breach of contract
Player A, from country S / Club V, from country H
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amounting to currency of country H 735,000 and EUR 25,000, plus 5% interest p.a.
on said amounts as of 18 December 2012 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned number 2 and 3 are not paid by the Respondent within the stated time
limit, 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 DRC
judge 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 DRC judge:
Jérôme Valcke
Player A, from country S / Club V, from country H
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Secretary General
Encl.
CAS directives
Player A, from country S / Club V, from country H
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