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 J, from country B
as Claimant
against the club
Club S, from country R
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
On 27 June 2008, Player J, from country B (hereinafter: the Claimant), and Club S, from
country R (hereinafter: the Respondent), signed an employment contract (hereinafter:
the contract), valid from 27 June 2008 until 30 June 2011, by means of which the
Claimant was entitled to receive from the Respondent, inter alia, the amount of EUR
1,200,000 net as follows:
- “For the first competition year” EUR 100,000 “at the signature” and EUR 300,000 in
ten monthly instalments of EUR 30,000 each, the first one to be paid in August 2008
and the last one in May 2009;
- “For the second competition year” EUR 400,000 in ten monthly instalments of
EUR 40,000 each, the first one to be paid in August 2009 and the last one in May
2010;
- “For the third competition year” EUR 400,000 in ten monthly instalments of
EUR 40,000 each, the first one to be paid in August 2010 and the last one in May
2011.
2.
On 31 December 2008, the Claimant lodged a claim against the Respondent,
requesting from the latter the payment of EUR 1,070,000 as compensation plus 5%
interest p.a. until the date of effective payment, as well as “the costs of this dispute”.
In this respect, the Claimant argued that he had only received from the Respondent
the payment of EUR 100,000 as sign-on fee and EUR 30,000 corresponding to his salary
of August 2008. As to the facts of the case, the Claimant explained that he had sent
two letters to the Respondent requesting the payment of his outstanding salaries
(i.e. September, October and November 2008), but that he had never received any
response from the latter. Finally, the Claimant stated that by means of a document
dated 17 December 2008, he had informed the Respondent that due to the nonpayment of his salaries, he would terminate the contract “with just cause with all legal
consequences and immediate effects”.
3.
Later on, the Claimant informed FIFA that on 14 May 2009, the Respondent had paid
the amount of EUR 120,000 corresponding to the salaries of September, October,
November and December 2008. Consequently, the Claimant reduced the claimed
amount to EUR 950,000.
4.
In its response, the Respondent rejected the Claimant's claim, arguing that the latter
had “stopped participating to the reunions of the Club S team since 12.01.2009”.
Furthermore, the Respondent stated that it “did not intend at any moment to
terminate the contract concluded with the player” and that it was of the opinion that
the Claimant was not entitled to receive “compensations of any kind”.
5.
With regard to the delayed payments, the Respondent explained that this resulted
from the financial crisis. In order to show its good faith, the Respondent stated having
agreed on the issuance of the International Transfer Certificate (ITC), although the
Player J, from country B / Club S, from country R
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Claimant had allegedly not paid various bills. In consequence, the Claimant would owe
compensation to the Respondent.
6.
In his second submission, the Claimant mainly reiterated the content of his claim. In
addition, he rejected the Respondent's allegations due to the lack of evidence and the
fact that he had terminated the contract with just cause and was therefore no longer
obliged to offer his services.
7.
With regard to his labour situation as from the termination of the contract until
30 June 2011, the Claimant stated that he had been unemployed until 1 June 2009 and
in June 2011. On 1 June 2009, he had signed an employment contract with Club S,
from country R valid until May 2011. Said contract provided for an amount of
USD 350,000 per year. In the first year the Claimant shall receive USD 50,000 as
advance payment and ten monthly instalments of USD 30,000 each between August
2009 and May 2010. Between August 2010 and May 2011, the Claimant was entitled to
receive ten monthly instalments of USD 35,000 each.
8.
Despite having been invited to do so, the Respondent did not submit any further
comments.
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 31 December 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. 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 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 a country R 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
Player J, from country B / Club S, from country R
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2009), and considering that the present claim was lodged on 31 December 2008, the
2008 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
5.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter by acknowledging that, on
27 June 2008, the parties had signed an employment contract valid from 27 June 2008
until 30 June 2011, in accordance with which the Claimant was entitled to receive the
amount of EUR 400,000 per year, each to be paid in ten equal instalments, also
including a sign-on fee.
6.
In line with the above, the Chamber took into consideration that according to the
Claimant, the Respondent had failed to pay his remuneration in the total amount of
EUR 90,000 relating to his salaries for September, October and November 2008.
7.
In this respect, the members of the Chamber took note of the Claimant's default
notices dated 24 November and 5 December 2008 addressed to the Respondent, by
means of which the Claimant asked the latter for the payment of his outstanding
salaries.
8.
Furthermore, the DRC took due note that the Claimant subsequently terminated the
employment contract on 17 December 2008 due to the Respondent's breach of
contract since the latter had failed to pay to the Claimant the requested outstanding
salaries.
9.
However, on 14 May 2009, the Respondent apparently paid the amount of
EUR 120,000 corresponding to the salaries of September, October, November and
December 2008 to the Claimant.
10.
Consequently, the Claimant requested the amount of EUR 950,000 in addition to
interest of 5% p.a. until the date of effective payment.
11.
Therefore, the Dispute Resolution Chamber went on to deliberate whether the facts of
the case constitute a just cause for the Claimant to prematurely terminate his
employment relationship.
12.
In this respect, the DRC recapitulated that at the time the Claimant had terminated the
contract, i.e. on 17 December 2008, three monthly salaries were outstanding.
13.
On the other hand, the members of the Chamber took note of the Respondent's
position according to which the delay of payment resulted from the financial crisis.
14.
At this point, the Chamber deemed it necessary to point out that the financial crisis
does not constitute a valid reason to withhold the player's salary for months.
Player J, from country B / Club S, from country R
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15.
In this regard, the Chamber concluded that the Respondent's behaviour constitutes a
clear breach of contract, which, in accordance with its well-established jurisprudence,
has reached such level that the Claimant suffering the breach was entitled to
unilaterally terminate his contractual relationship, this is, the Claimant terminated the
employment contract with just cause. Consequently, he was no longer obliged to
participate in the club's trainings.
16.
Having established that the Respondent is to be held liable for the early termination of
the employment contract, 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.
17.
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.
18.
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.
19.
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 EUR 980,000 as salaries had
the contract been executed until its expiry date.
20.
At this point, the DRC recalled that in the meantime, the Respondent had also paid the
salary of December 2008. Consequently, the amount of EUR 950,000 serves as the basis
for the final determination of the amount of compensation for breach of contract.
21.
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
Player J, from country B / Club S, from country R
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breach of contract in connection with the player’s general obligation to mitigate his
damages.
22.
The Chamber noted that the Claimant had signed an employment contract on 1 June
2009 with the Club G, from country T, valid until May 2011 enabling him to earn an
income of USD 350,000 per year during said period of time.
23.
In sum, the Chamber concluded that the amount of compensation for breach of
contract to be paid by the Respondent to the Claimant is firstly composed of the
amount of EUR 950,000, being the reflection of the remuneration due to the player
under the previous contract. Furthermore, taking into account the Claimant's total
remuneration of USD 700,000 with the new club, Club G, and the fact that the
Respondent paid the complete amount of outstanding remuneration plus the salary of
December 2008 to the Claimant at a later date, the Chamber considered that the
amount of EUR 400,000 is to be considered an appropriate and justified amount of
compensation to be awarded to the Claimant.
24.
Furthermore, the Chamber decided that the Claimant’s claim for the “costs of this
dispute” is rejected in accordance with art. 18 par. 4 of the Procedural Rules which
stipulates that no procedural compensation shall be awarded in proceedings of the
DRC.
25.
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 EUR 400,000 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 the effective payment.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player J, is partially accepted.
2.
The Respondent, Club S, has to pay to the Claimant, Player J, within 30 days as from
the date of notification of this decision, the amount of EUR 400,000, 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 J, are rejected.
Player J, from country B / Club S, from country R
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5.
The Claimant, Player J, is directed to inform the Respondent, Club S, 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 J, from country B / Club S, from country R
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