Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 December 2013,
in the following composition:
Geoff Thompson (England), Chairman
Todd Durbin (USA), member
Theodore Giannikos (Greece), member
Eirik Monsen (Norway), member
Johan van Gaalen (South Africa), member
on the claim presented by the club,
Club H, from country C
as Claimant/Counter-Respondent
against the player,
Player L, from country C
and the club,
Club W, from country B
as Respondents/Counter-Claimants
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 July 2009, Player L, from country C (hereinafter: the player or also referred
to as the Respondent/Counter-Claimant player), and Club H, from country C
(hereinafter: the country C club or also referred to as the Claimant/CounterRespondent), signed an employment contract valid as from 8 August 2009 until
30 June 2013 (hereinafter: the contract).
2.
In accordance with art. 4.1. of the contract, the player is entitled to receive, inter
alia, a monthly gross basic salary as follows:
a. Currency of country H 23,000 (equivalent to EUR 3,167) for the season
2009/2010;
b. Currency of country H 23,000 for the season 2010/2011;
c. Currency of country H 23,000 for the season 2011/2012;
d. Currency of country H 30,000 (equivalent to EUR 4,130) for the season
2012/2013.
3.
Furthermore, according to art. 4.4. of the contract, for the services rendered
under the agreement, “the Player shall invoice the Club for each month, and the
Club shall pay the said invoices within 15 days from the date of delivering of the
invoice by the Player”.
4.
According to art. 14.4 of the contract, “in case of a dispute, it shall be presented
for solution to the country C Football Federation Arbitral Tribunal”.
5.
By a letter dated 28 May 2012, the player unilaterally terminated the contract
stating that the country C club did not fulfil its contractual obligations.
6.
On 31 May 2012, the player signed an employment contract with Club W, form
country B (hereinafter: the country B club or also referred to as the
Respondent/Counter-Claimant club), valid for the period from 1 July 2012 until
30 June 2015.
7.
On 10 August 2012, following the rejection of the country C Football Federation
to deliver the International Transfer Certificate (ITC) for the player, the Single
Judge of the Players’ Status Committee decided to authorise the country B
Football Association to provisionally register the player for the country B club.
Country C Club’s claim:
8.
On 12 September 2012, the country C club filed a claim with FIFA against the
player and the country B club for unilateral termination of the employment
contract by the player without just cause and inducement thereto respectively. In
particular, the country C club requested from both the player and the country B
Club H, from country C / Player L, form country C, and Club W, from country B
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club the payment of the amount of EUR 800,000 (as compensation) plus interests
accrued as from 31 May 2012.
9.
According to the country C club, the compensation is made up of the player’s
market value as of the moment when the contract between both Respondents
was signed. In this regard, the country C club makes reference of the case, CAS
2008/A/71519-1520. In addition, the country C club requests that the
Respondents “are to reimburse the Claimant within 15 (fifteen) days the costs of
this arbitration procedure”.
10.
The country C club stated that the player claimed on 15 May 2012 outstanding
payments in the amount of currency of country C 84,870 (salaries for the months
of February 2012, March 2012 and April 2012), however, according to the
financial account of the player on the contract termination date, i.e. 28 May
2012, the debt of the country C club amounted only to currency of country H
47,000, and therefore the player did not have valid reasons to terminate the said
agreement.
11.
The country C club added that if the player considered that any of his rights from
the employment contract have been violated, then he had to institute a
procedure before the national football organization which results from
art. 12.1.b) of the Regulations of the Status of Players of the country C Football
Federation. According to this article, a player may enter a new contract if the
contract binding him with a club is cancelled or terminated by decision of a
competent body of the country C Football Federation. Therefore, the club
maintained that at the moment when the country B club commenced with the
negotiation and signing of an employment contract with the player, the
abovementioned contract was not officially terminated.
Reply and counter-claim of the player and the country B club:
12.
On 19 December 2012, the player and the country B club replied to the claim and
lodged a counterclaim.
The player asked the FIFA DRC to:
declare and adjudge that the country C club has not respected the
contract;
declare and adjudge that the contract was validly terminated by the
player with just cause;
declare and adjudge that no disciplinary or financial sanctions whatsoever
shall be taken against him;
to condemn the country C club to pay to him currency of country C
56,652.04 “under a backlog of salary” and subject to an interest rate of 5
% per annum;
sentence the country C club to bear the full costs of the proceedings.
Club H, from country C / Player L, form country C, and Club W, from country B
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The country B club asked the FIFA DRC to:
declare and adjudge that the country C club has not respected the
contract;
declare and adjudge that the contract was validly terminated by the
player with just cause;
declare and adjudge that no disciplinary or financial sanctions whatsoever
shall be taken against Club W;
sentence the country C club to transfer to Club W the sum of EUR 20,000,
as a compensation for the costs the club incurred in view of obtaining the
ITC for the player;
sentence the country C club to transfer to Club W the sum of EUR 25,000
for the costs the club incurred for its defence before the FIFA Dispute
Resolution Chamber;
sentence the country C club to bear the full costs of the proceedings.
13.
The Respondents pointed out that the invoices of the player, which were due to
be paid on 29 February 2012, 31 March 2012 and 30 April 2012, remained
unpaid. Therefore, with a letter dated 15 May 2012 the player put the club in
default of the payments relating to his remuneration in the amount of currency
of country U 84,870 (Currency of country U 28,290 due on 29 February 2012,
currency of country U 28,290 due on 31 March 2012, currency of country U 28,290
due on 30 April 2012) plus the statutory default interest of currency of country U
1,542.04, totalling the amount of currency of country U 86,412.04, and gave a
deadline to make the payment until 21 May 2012.
14.
The Respondents maintained that after they had sent the aforementioned letter,
currency of country U 28,800 were paid. However, the amount of currency of
country U 57,612 was still outstanding. Therefore the player decided to
unilaterally terminate the employment contract by a letter dated 28 May 2012. In
this regard, they added that the termination letter seemed to be an incentive for
the country C club to speed up the payments to the player, since they did the
following payments:
- Currency of country U 10,500 on 28 May 2012;
- Currency of country U 18,250 and currency of country H 500 on 4 June 2012.
15.
In this context, the Respondents held that several press articles indicated that the
country C club had financial problems.
16.
As regards to the compensation claimed by the country C club, the Respondents
stated that the player had validly terminated the contract with just cause and
thus, also in accordance with art. 17 of the FIFA Regulations, the Claimant cannot
demand from them the payment of any indemnity whatsoever.
Club H, from country C / Player L, form country C, and Club W, from country B
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Reply of the country C club on the player’s and country B club’s counterclaim:
17.
On 5 February 2013, the country C club explained in its reply to the counterclaim
that on 14 January 2013 a Settlement Agreement was reached at the Arbitration
Court of the country C Football Federation. In particular, the country C club was
obliged to pay an amount of currency of country U 47,000 to the player and
therefore the claims made by the player are completely unfounded.
18.
The Settlement Agreement reached on 14 January 2013 at the Arbitration Court
of the country C Football Federation and signed by the attorneys of the parties,
Case number: A-138/12 states:
“I. The Respondents, Club H, shall pay to the Applicant, Player L, currency
of country C 47,000 by 31 January latest.
II. The Respondents, Club H, shall pay the attorney representation costs
amounting currency of country U 3,750 by 31 January 2013 latest.
III. Player L declares that upon receipt of the funds stated in the Points I
and II above he shall be fully settled for all his claims from the club under
the Professional Playing Contract of 1 July 2009 made with the
Respondents.
The Parties are jointly stating that they are acquainted with the fact that
Club H initiated a procedure against Club W and Player L before the FIFA
Chamber for Solving of Disputes, claiming payment of damages caused to
the club by the unilateral termination of the contract by the player
without founded reasons, and that this Settlement Agreement shall not
effect treating the said dispute before FIFA, since this Settlement
Agreement solves only the unpaid and sued salaries (monthly payments)
in the arbitration procedure A-138/12, until the player, Player L, trained
and played in Club H.”
19.
The country C club stated that the player did not have justified reason to
terminate the contract and that on the contract termination date the club was
fulfilling its obligations towards the player and had the intention to fulfil them
in future. As on the contract termination date the amount due to the player was
amounting to less than two monthly salaries, i.e. currency of country H 47,000,
the facts of the case show that the country C club obviously had the intention of
fulfilling the remaining financial obligations within the appropriate period of
time.
20.
The country C club held that it is evident that the player was aware of the club’s
financial difficulties, which additionally indicates that the player did not have
just cause to terminate the employment contract. In addition, the country C club
Club H, from country C / Player L, form country C, and Club W, from country B
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states that the player had never previously informed it about his intention to
terminate the contract if they did not fulfil its financial obligations within an
appropriate period of time.
21.
The country C club sustained that the player and the country B club consciously
disregarded art. 13 of the contract, which stipulates that the country C club has
the “exclusive right to contracting the player’s transfer to another club”, and
maintained that the claim made by the player is completely unfounded.
Replica of player on his counterclaim:
22.
The player referred to his initial memorandum and added that it would seem
that the country C club was never genuinely and truly interested in maintaining
his services, but rather exclusively aimed to invoke the Settlement Agreement in
relation to its unjustified claim for EUR 800,000.
23.
The player maintained that since, at present, the country C club still has not
entirely respected its financial obligations towards him, he does not wish to
renounce to his initial claim. He would only agree to renounce to his claim if the
country C club provide sufficient evidence that the requested sum had been paid.
Duplica of the country C club on the player’s counterclaim:
24.
The country C club replied repeating its previous position and without providing
a proof of payment of the amount of currency of country C 47,000 due to the
player according to the Settlement Agreement reached at the Arbitration Court
of the country C Football Federation.
25.
After the investigation phase in the present matter had been concluded, the
country C club submitted an additional statement. Club H once again reiterated
its claim and indicated that the player was transferred from Club W to the
country C club, Club Z, in August 2013. In particular, Club H highlighted that
according to the website “Transfermarkt”, the player was transferred for the
amount of EUR 500,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to
FIFA on 12 September 2012. Consequently, the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Club H, from country C / Player L, form country C, and Club W, from country B
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Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 par. 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
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (hereinafter: Regulations; edition 2012) it is competent to decide on the
present litigation, which concerns an employment-related dispute with an
international dimension, between a country C player, a country B club and a
country C club.
3.
Furthermore, the DRC analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, the Chamber
confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations
(editions 2012 and 2010) and considering that the present matter was submitted
to FIFA on 12 September 2012, the 2010 edition of said Regulations is applicable
to the present matter as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
it started to acknowledge the facts of the case as well as the documents
contained in the file. In this respect, the DRC firstly noted that the
Claimant/Counter-Respondent and the Respondent/Counter-Claimant player
signed an employment contract setting out a period of validity as from 8 August
2009 until 30 June 2013, in accordance with which the Claimant/CounterRespondent would, inter alia, pay the Respondent/Counter-Claimant player a
monthly salary of currency of country C 23,000, for the seasons 2009/2010,
2010/2011, 2011/2012 as well as a monthly salary of currency of country H 30,000,
for the season 2012/2013.
5.
The Chamber further noted that the Claimant/Counter-Respondent maintains
that the Respondent/Counter-Claimant player is to be held liable for the early
termination of the employment contract without just cause as well as that the
Respondent/Counter-Claimant club is to be held jointly liable. The
Claimant/Counter-Respondent based the aforementioned on the fact that,
allegedly, according to the financial account of the Respondent/CounterClaimant player on the contract termination date, i.e. 28 May 2012, the debt
with regard to outstanding salaries was amounting to less than two monthly
salaries, i.e. currency of country U 47,000, and therefore the
Respondent/Counter-Claimant player did not have valid reasons to terminate
said employment contract.
6.
The DRC duly noted that, on account of the above, the Claimant/CounterRespondent is seeking compensation in the amount of EUR 800,000 for breach of
Club H, from country C / Player L, form country C, and Club W, from country B
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contract, plus interests accrued as from 31 May 2012 from the
Respondents/Counter-Claimants. Moreover, the Chamber took into account that
the
Claimant/Counter-Respondent
equally
requests
that
the
Respondents/Counter-Claimants shall bear the costs of the present proceeding.
7.
In continuation, the Chamber noted that, on the other hand, the
Respondents/Counter-Claimants entirely rejected the claim and stressed that the
Claimant/Counter-Respondent is to be held liable for the early termination of the
employment contract by having failed to pay the Respondent/Counter-Claimant
player’s remuneration due on 29 February 2012 (currency of country U 28,290),
31 March 2012 (currency of country U 28,290) and 30 April 2012 (currency of
country U 28,290). In this respect, the Respondent/Counter-Claimant player
explained that with a letter dated 15 May 2012 he put the Claimant/CounterRespondent in default giving a deadline until 21 May 2012 and that after
allegedly not having received entirely the said monies, had terminated his
contract with the Claimant/Counter-Respondent on 28 May 2012 invoking just
cause.
8.
Therefore,
the
Respondent/Counter-Claimant
player
rejected
the
Claimant/Counter-Respondent’s claim and lodged a counterclaim against the
latter in the amount of EUR 56,652.04, “under a backlog of salary” plus 5%
interest per annum. The Respondent/Counter-Claimant also requested the
Claimant/Counter-Respondent to be sentenced to bear the full costs of the
proceedings.
9.
Furthermore, the DRC noted that the Respondent/Counter-Claimant club also
rejected the claim and lodged a counter-claim against the Claimant/CounterRespondent in the amount of EUR 20,000 for compensation of the costs incurred
in view of obtaining the international transfer certificate (ITC) of the
Respondent/Counter-Claimant player and EUR 25,000 for the costs of its defense
in the present procedure.
10.
In view of the contents of the parties’ claim, respectively counter-claims, the
Chamber firstly noted that it remains undisputed that on 28 May 2012 the
Respondent/Counter-Claimant player terminated the employment contract in
writing after having put the Claimant/Counter-Respondent in default, on 15 May
2012, for the payment of three months’ salary in the amount of currency of
country U 84,870. In this regard and considering the parties’ divergent positions,
the Chamber deemed that the underlying issue in this dispute was to determine
whether the employment contract had been unilaterally terminated by the
Respondent/Counter-Claimant player with or without just cause.
11.
In this respect, the members of the DRC duly noted that the Claimant/CounterRespondent deemed that on the contract termination date, i.e. 28 May 2012, it
Club H, from country C / Player L, form country C, and Club W, from country B
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was in the course of fulfilling its obligations towards the player and that the
amount due to the player was already amounting less than two monthly salaries,
i.e. currency of country U 47,000.
12.
Having said that, the Chamber recalled that according to the legal principle of
the burden of proof, any party claiming a right on the basis of an alleged fact
shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
13.
In view of the above, the DRC concluded that the Claimant/Counter-Respondent
had to prove that it had fulfilled all payments invoked as outstanding by the
Respondent/Counter-Claimant player. In this respect, however, the DRC
acknowledged that the Claimant/Counter-Respondent only provided an extract
of the financial account of the player for the period between 1 January 2012 and
30 June 2012 in its original language and translated in English language. Equally,
the DRC noted that from the original version of the extract of the financial
account, it could not be established who issued the document. Therefore, from a
strictly formal point of view, the document in question could, in principle, not be
considered as appropriate evidence that the Claimant/Counter-Respondent had
fulfilled its financial obligations towards the Counter-Claimant/Respondent
player. What is more, the member deemed that the Claimant/CounterRespondent could easily have submitted more substantial evidence in this regard,
such as payment receipts that were issued in favour of the Respondent/CounterClaimant player during the employment relationship. Therefore, the DRC
considered that the Claimant/Counter-Respondent was not able to corroborate
that it had indeed paid the contractually agreed salaries or that on the contract
termination date only the amount of currency of country U 47’000 was due.
14.
As a consequence of the foregoing, the Chamber established that three monthly
salaries had been due and remained outstanding at the time of the termination
of the contract by the Respondent/Counter-Claimant player. Taking also into
consideration that the relevant payments, if any, were continuously made late,
the Chamber therefore concurred that the employment contract was breached
by the Claimant/Counter-Respondent and that the Respondent/Counter-Claimant
player had just cause to unilaterally terminate the employment contract on
28 May 2012.
15.
On account of the above, the Chamber decided that the Claimant/CounterRespondent’s claim for compensation for breach of contract against the
Respondent/Counter-Claimant player and the Respondent/Counter-Claimant club
must be rejected.
16.
With regard to the counterclaim of the Respondent/Counter-Claimant player for
currency of country U 56,652.01, the DRC acknowledged that a Settlement
Agreement was reached at the Arbitration Court of the country C Football
Club H, from country C / Player L, form country C, and Club W, from country B
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Federation and signed by the representatives of the Claimant/CounterRespondent and the Respondent/Counter-Claimant player respectively on 14
January 2013, i.e. after the claim was lodged with FIFA, by means of which the
aforementioned parties settled the dispute concerning outstanding salaries.
17.
However, the DRC took due note of the fact that the Respondent/CounterClaimant player insisted on his counter-claim after signing the said Settlement
Agreement in order to demand the payment of the amount in question since the
Claimant/Counter-Respondent allegedly had still not entirely respected its
financial obligations. In this regard, the DRC deemed it appropriate to emphasise
that in view of the relevant Settlement Agreement concluded between the
parties concerned before the Arbitration Court of the country C Football
Federation regarding outstanding salaries, the outstanding amount was no
longer claimable in front of the DRC. In this regard, the DRC also highlighted
that FIFA’s competent bodies were not in a position to enforce the execution of
said Settlement Agreement.
18.
Having said that, the DRC emphasised that the Respondent/Counter-Claimant
player had not claimed any compensation for breach of contract but only
outstanding salaries. As a consequence, the members of the DRC decided that
the counter-claim of the Respondent/Counter-Claimant player had to be rejected.
19.
Furthermore, the DRC held that the Claimant/Counter-Respondent’s claim as well
as the Respondent/Counter-Claimant player’s and club’s claim pertaining to legal
costs have to be rejected, in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence.
20.
Finally, the Dispute Resolution Chamber concluded its deliberations in the
present matter by establishing that any further request relating to interest filed
by the Claimant/Counter-Respondent or the Respondent/Counter-Claimant player
is rejected.
*****
Club H, from country C / Player L, form country C, and Club W, from country B
10/11
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club H, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, Player L, is rejected.
3.
The Counterclaim of the Respondent/Counter-Claimant, Club W, is rejected.
*****
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
Club H, from country C / Player L, form country C, and Club W, from country B
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