Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 December 2012,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player
Player C, from country B
as Claimant
against the club
Club H, from country I
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
On 22 August 2008, Club H, from country I (hereinafter: the Respondent), and the Player
C, from country B (hereinafter: the Claimant), signed a document entitled “Offer
proposition for player C” (hereinafter: the agreement), valid for the “season 2008/2009
(1 year)”, by means of which the Respondent had proposed to the Claimant, inter alia,
“for implementing his obligations stipulated by the present contract during its validity
period (2008/2009)” the amount of USD 160,000 payable as follows: USD 30,000 “at the
moment of signing of this agreement” and USD 130,000 as “monthly salary or in 2,3
installments one year contract”.
2.
On 11 February 2009, the Claimant lodged a claim against the Respondent due to
breach of contract by the latter, requesting the amount of USD 32,500 as outstanding
salaries for the months of September, October and November 2008, as well as
USD 127,500 as compensation corresponding to the residual value of the contract.
Furthermore, the Claimant asked for 5% interest p.a. “on the amounts claimed, as from
the date of signature of the employment contract”. Finally, the Claimant asked for
disciplinary sanctions to be imposed on the Respondent.
3.
As to the facts of the case, the Claimant explained that, after having terminated his
previous employment contract and having signed the agreement with the Respondent,
he had travelled to country I on 2 September 2008 and participated in some trainings.
Later on, the Claimant went back to country B in order to organise his move and where
he, according to the Respondent's instruction, should wait “for a new contact about the
tickets and date of the travel”. However, despite his various enquiries attested by a
letter dated 6 November 2008, the Respondent had allegedly never contacted him again
and that he had consequently decided to terminate his employment relationship with
the Respondent by means of a letter dated 19 December 2008. In this correspondence,
the Claimant explained that he was entitled to terminate the agreement since he had
never received “any amount in connection with mentioned salaries or flight tickets,
neither any reaction from the Club”.
4.
With regard to the agreement, the Claimant underlined that the parties had freely
entered into said contract being aware of the obligations, which was attested by their
signature.
5.
Asked about his labour situation as from 19 December 2008 until the end of the
contract, the Claimant stated that he had firstly been employed by Club T, from country
B, from 19 December 2008 until 1 January 2009, earning a monthly salary of currency of
country B 3,000, and subsequently by Club S, from country T, from 2 January 2009 until
15
June
2009
and
from
24
June
2009
until
30 June 2010, receiving the same salary. In this respect, the Claimant provided FIFA with
a copy of the relevant employment contracts.
6.
In spite of having been asked to do so, the Respondent never responded to the claim
lodged against it.
Player C, from country B / Club H, from country I
2/7
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 11 February 2009.
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 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 2008) 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
country B player and an country I club.
3.
In particular, and in accordance with art. 24 par. 2 of the Regulations on the Status and
Transfer of Players (edition 2008), the members of the DRC confirmed that they may
adjudicate in the presence of three members.
4.
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 2010 and
2009), and considering that the present claim was lodged on 11 February 2009, the
2008 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, it
first of all noted 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. In this way, so the DRC,
the Respondent renounced its right to defence and, thus, accepted the allegations of
the Claimant.
6.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it 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.
7.
Subsequently, the DRC acknowledged that the parties signed an agreement, on
22 August 2008, designated “Offer proposition for Player C”.
8.
In fact, according to the agreement, the parties established, among other details, that
the employment would last for the “season 2008/2009 (1 year)” and that the Claimant
would be entitled to receive the total amount of USD 160,000 to be paid in
Player C, from country B / Club H, from country I
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instalments. The Claimant maintained that, in fact, an employment contract was
entered into and that, as such, the Respondent is to be held liable for its early
termination by having failed to execute the terms of the employment contract,
including the failure to pay the Claimant’s remuneration.
9.
In this regard, the Chamber recalled that in order for an employment contract to be
considered as valid and binding, apart from the signature of both, the employer and
the employee, it should contain the essentialia negotii of an employment contract,
such as the parties to the contract and their role, the duration of the employment
relationship, the remuneration and the signature of both parties. After a careful study
of the “Offer proposition for Player C” presented by the Claimant, the Chamber
concluded that all such essential elements are included in the pertinent document, in
particular, the fact that the contract establishes that the Claimant is entitled to receive
remuneration in exchange for his services to the club as a player.
10.
On account of the above, the members of the Chamber concluded that by having
signed the agreement, a valid and legally binding employment contract had been
entered into by and between the Claimant and the Respondent on 22 August 2008.
11.
Having established that a valid and legally binding employment contract had been in
force between the parties, the Chamber went on to analyse as to whether such
contract had been breached and, in the affirmative, which party is to be held liable for
breach of contract.
12.
To this end, the Chamber was eager to emphasize that, given that the Respondent
failed to present its response to the claim of the Claimant and, thus, accepted the
allegations of the Claimant, in particular, did not contest that it had not performed
any of its obligations under the employment contract, the conclusion that a valid and
legally binding employment contract had been entered into unavoidably leads to the
decision that such contract was breached by the Respondent.
13.
In this respect, the members of the Chamber took also note of the Claimant's default
notice dated 6 November 2008 addressed to the Respondent, by means of which the
Claimant asked the latter for a written position in connection with the execution of
the agreement dated 22 August 2008.
14.
On account of the above circumstances, the Chamber established that the Respondent
had obviously no longer been interested in the Claimant’s services by not contacting
the Claimant. The Chamber concluded that such conduct clearly constitutes a breach of
contract and, accordingly, decided that the Respondent has produced the premature
termination without just cause of the employment contract entered into between the
parties.
Player C, from country B / Club H, from country I
4/7
15.
Having established that the Respondent is to be held liable for the early termination of
the employment contract without just cause, the Chamber focused its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant is entitled to receive from the
Respondent an amount of money as compensation for breach of contract.
16.
In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of
the Chamber 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.
17.
In application of the relevant provision, the Chamber held that it 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 Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
18.
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 and
concluded that the Claimant would have received in total USD 160,000 as salaries had
the contract been executed until its expiry date.
19.
In continuation, the Chamber 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.
20.
The Chamber noted that the Claimant had signed an employment contract with the
Club T, from country B, for a period from 19 December 2008 until
1 January 2009, as well as with the Club S, from country B, for the period from 2
January 2009 until 15 June 2009 and from 24 June 2009 until 30 June 2010, enabling
him to earn a total income of approximately USD 10,000 during said period of time.
Player C, from country B / Club H, from country I
5/7
21.
The Chamber also considered important to point out that, although the employment
contract was fully valid and enforceable, the execution of the contract had never
started.
22.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
the amount of USD 75,000 to the Claimant as compensation for breach of contract as
well as 5% interest per annum on said amount as from 18 December 2012 until the
date of effective payment.
23.
In this context, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, addressed the question of sporting sanctions
against the club in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates that, in addition to the obligation to pay compensation, sporting
sanctions shall be imposed on any club found to be in breach of contract during the
protected period.
24.
In this regard, the DRC considered important to point out that, although the
employment contract was fully valid and enforceable, the execution of the contract
had never started, and therefore, unanimously decided not to impose any sporting
sanctions on the Respondent.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player C, is partially accepted.
2.
The Respondent, Club H, has to pay to the Claimant, Player C, within 30 days as from
the date of notification of this decision, the amount of USD 75,000, as well as 5%
interest per annum on said amount as from 18 December 2012 until the date of the
effective payment.
3.
If the aforementioned sum is not paid within the stated time limit, the present matter
shall be submitted, upon request, to FIFA´s Disciplinary Committee for its consideration
and a formal decision.
4.
Any further requests filed by the Claimant, Player C, are rejected.
Player C, from country B / Club H, from country I
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5.
The Claimant, Player C, is directed to inform the Respondent, Club H, immediately and
directly of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player C, from country B / Club H, from country I
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