Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
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 E, from country B,
as Claimant
against the club,
Club F, from country S,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 2 February 2009, player E from country B (hereinafter: player or Claimant) and
the club F from country S (hereinafter: club or Respondent), signed an employment
contract valid as from the date of signature of the contract until 31 May 2012
(hereinafter: contract).
2.
In accordance with the contract, the player was entitled to receive, inter alia, a
monthly wage equivalent to the minimum net wage, total per game payments of
EUR 80,000 for the 2009-2010 season (EUR 2,352 per match, equivalent to 100% of
the per match payment, to be paid at the end of the following month after four
games) and a total guaranteed amount of EUR 120,000 for the 2009-2010 season to
be paid as follows:
- EUR 30,000 on 31 August 2009 and EUR 30,000 on 30 September 2009;
- Ten equal instalments of EUR 6,000 as from August 2009 until May 2010 (all due
the last day of the month).
3.
Moreover, the contract stipulated that the player would receive 100% of the per
match payment if he played in the squad of first eleven and that he would receive
75% of the per match payment if he joined during the game.
4.
On 3 May 2010, the player formally notified the club of the unilateral termination of
the contract. In his termination notice the player claimed that the club failed to
comply with the payment terms under the contract and stated that his salaries as
well as 28 per match payments from the 2009-2010 season were still outstanding.
5.
On 4 May 2010, the player lodged a claim against the club in front of FIFA
maintaining that, at the time of the termination of the contract, i.e. 3 May 2010, the
club had failed to pay the following amounts (totalling EUR 80,092):
- EUR 12,000 for his salaries (EUR 6,000 on 31 March 2010 and on 30 April 2010,
respectively)
- EUR 64,092 relating to per match credits (28 matches in the 2009-2010 season):
a)
b)
the
EUR 58,800 corresponding to 25 matches in the first eleven; 25 x EUR 2,352;
EUR 5,292 corresponding to 3 matches in which player participated during
game; 3 x EUR 1,764 (=75% of the per match payment).
- EUR 4,000 for his minimum wage according to Labour Law of country S
Player E from Country B / Club F from country S
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6.
Therefore, the player requested the Dispute Resolution Chamber to order the club to
pay the total amount of EUR 86,092, plus 5% interest.
7.
On 14 June 2010, the club lodged a claim against the player maintaining that he
unilaterally terminated the contract, due to the fact that the team possibly would be
relegated, as it was communicated three weeks before the end of the 2009-2010
season.
8.
Moreover, according to the club, EUR 102,000 were paid against the player’s EUR
120,000 credit, which left an outstanding amount of EUR 18,000, plus EUR 64,092
owed to him as per match payments.
9.
Furthermore, the club alleged that fines had been imposed on the player, prior to
the notification of termination by the latter, for undisciplined behavior, in the total
amount of EUR 98,684, which, according to the club is to be deducted from the
amount of EUR 82,092 owed to the player.
10.
In this sense, the club alleged that the player owed the club ``a home lost match fine
bonus’’ for the total amount of (currency of country S) 15,000 since ``home lost match
fine bonus’’ applied to football players in the same way as the won matches’ bonus
11.
The club further submitted that on 5, 6 and 7 May 2010 the player did not attend the
team training programs without giving any excuse or asking for vacation. A further
fine for the total amount of (currency of country S) 90,000 was imposed upon the
player for not joining training more than once as per the club’s 2009-2010
``punishment regulations’’. Another fine of (currency of country S) 75,000 was
imposed on the player for not being present, without permission, in the match
played on 10 May 2010.
12.
In light of the above, the club requested that the player be ordered to pay to the
club EUR 16,592.
13.
In his reply, taking into account the club’s petition, the player alleged that as of the
date of the unilateral termination of the contract, i.e. 3 May 2010, there was no
longer a legal relationship between the parties, thus he could not validly have been
imposed fines for the total amount EUR 98,684. Moreover, he argued that the fine
amounting to (currency of country S) 15,000 imposed on him for sportive reasons was
not valid.
14.
Therefore, the player requested that the club’s claim be rejected and maintained his
request to be awarded EUR 86,092 plus 5 % interest.
Player E from Country B / Club F from country S
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15.
In its reply to the player’s claim, the club referred to the aforementioned fines and
therefore asked that the player’s claim be rejected, as it allegedly did not owe any
contractual remuneration to the player.
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 4 May 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 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 and par. 2 in
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), 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 player from country B and a club from country S.
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 2012
and 2010), and considering that the present claim was lodged on 4 May 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. The members of
the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. In this respect, the Chamber recalled that the
parties had signed an employment contract valid as from 2 February 2009 until 31
May 2012, in accordance with which the Claimant was entitled to receive, inter alia, a
total guaranteed amount of EUR 120,000 for the 2009/2010 season (partly consisting
of ten monthly instalments of EUR 6,000), plus a monthly legal minimum wage, the
amount of which was not specified in the employment contract, as well as a
maximum of EUR 80,000 per game payments, EUR 2,352 per game if he played in the
squad of first eleven and EUR 1,764 if he joined during the game.
Player E from Country B / Club F from country S
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5.
In continuation, the members of the Chamber took into account that, on 3 May 2010,
the Claimant notified the Respondent of the termination of the contract on the basis
of outstanding remuneration. The Respondent, for its part, submits that the Claimant
terminated the contract on 3 May 2010 without just cause.
6.
The DRC highlighted that the central issue in the matter at stake would be, thus, to
determine as to whether the Claimant had just cause to terminate the contract on 3
May 2010.
7.
In this respect, the Chamber wished to emphasize that, according to the Claimant, at
the time of the termination of the contract on 3 May 2010, the total amount of EUR
80,092 was yet to be paid by the Respondent. The DRC also took due note of the
Claimant’s allegation that, upon the termination of the contract, the Respondent had
failed to pay the monthly salary corresponding to May 2010, which was due at the
end of the month.
8.
The DRC then turned its attention to the arguments of the Respondent and
acknowledged that according to the latter, EUR 102,000 were paid against the
Claimant’s EUR 120,000 credit for the full 2009-2010 season. In this context, the DRC
noted that the Respondent had submitted documentary evidence demonstrating
that, in fact, as from 18 September 2009 until 19 March 2010, it had paid
remuneration to the Claimant in the amount of EUR 102,000.
9.
Furthermore, the Chamber duly noted that the Respondent admitted that salaries
and match bonuses, in the total amount of EUR 82,092, had not been paid to the
Claimant. However, the Respondent deemed that fines totalling EUR 98,684, which
were imposed on the Claimant by the Respondent for alleged undisciplined behavior,
are to be deducted from the amount of EUR 82,092. Consequently, the Respondent
submitted that it was owed the amount of EUR 16,592 by the Claimant.
10.
Moreover, the members of the Chamber acknowledged that the Claimant rejected
that the fines were to be deducted from his receivables, pointing out that said fines
were imposed upon him after the termination of the contract and that the fine
amounting to (currency of country S) 15,000 imposed on him for sportive reasons was
not valid.
11.
In this context, the Chamber concurred that the fines imposed on the Claimant by the
Respondent shall be disregarded, since a) a fine based on bad sporting performances
cannot be considered valid, b) a fine for the absence of a player after the player
terminated the contract cannot be justified, and c) the total amount of the fines
imposed on the Claimant by the Respondent represents more than half of the
Player E from Country B / Club F from country S
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12.
player’s yearly remuneration and, consequently, must be considered
disproportionate.
Furthermore, and irrespective of the foregoing consideration, the Chamber wished to
point out that the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a means to set off outstanding financial
obligations towards players. Consequently, the Chamber decided to reject the
Respondent’s argument in this connection.
13.
In continuation, 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.
14.
In view of the above, the DRC concluded that the Claimant shall carry the burden of
proof in connection with his allegations as regards the sum of EUR 4,000 claimed as
minimum wages in accordance with Labour Lawof country S, which amount has not
been acknowledged by the Respondent as outstanding. The members of the
Chamber observed that the Claimant failed to present any documentary evidence in
this respect. As a consequence, the DRC decided to reject the Claimant’s respective
claim pertaining to said amount of EUR 4,000.
15.
Furthermore, as a consequence of the aforementioned considerations and taking into
account the documentation presented by the parties to the dispute, the Chamber
established that two monthly salaries, corresponding to March and April 2010 as well
as a considerable part of the match bonus payments, i.e. the amount of EUR 64,092,
had fallen due and remained outstanding at the time of the termination of the
contract by the Claimant. Consequently, the Chamber concurred that the Respondent
had seriously neglected its financial contractual obligations towards the Claimant.
16.
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 3 May 2010 and that the Respondent is to
be held liable for the early termination of the contract with just cause by the player.
17.
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 64,092 corresponding to match bonuses as well as the salaries
relating to March and April 2010, i.e. EUR 12,000.
18.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
Player E from Country B / Club F from country S
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19.
outstanding amount of EUR 76,092 as of 4 May 2010 until the date of effective
payment.
In continuation, having established that the Respondent is to be held liable for the
termination of the 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.
20.
In this respect, taking into account the petition of the Claimant, the Dispute
Resolution Chamber decided to award EUR 6,000 (salary for May 2010) to the
Claimant as compensation for breach of contract.
21.
Consequently, the Chamber decided that the Respondent must pay the amount of
EUR 6,000 to the Claimant as compensation for breach of contract.
22.
Furthermore, taking into account the Claimant’s petition and the constant practice of
the Dispute Resolution Chamber, the members of the Chamber decided to award the
Claimant interest at the rate of 5% p.a. on the amount of compensation, as from 18
December 2012 until the date of effective payment.
23.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player E, is partially accepted.
2.
The Respondent, club F, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, outstanding remuneration in the amount of EUR
76,092 plus interest at 5% p.a. as of 4 May 2010 until the date of effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 6,000 plus interest at 5% p.a. as from 18 December 2012 until the date of
effective payment.
4.
In the event that the above-mentioned amounts due to the Claimant are not paid by
the Respondent within the stated time limits, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and decision.
Player E from Country B / Club F from country S
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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 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 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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player E from Country B / Club F from country S
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