Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 13 December 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player K, from country H
as Claimant
against the club,
Club L, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 19 June 2012, Club L, from country C (hereinafter: the Respondent), and
Player K, from country H (hereinafter: the Claimant), concluded an
employment contract (hereinafter: the contract) valid as from 1 July 2012 until
31 May 2013.
2.
In accordance with the contract, the Claimant was entitled to the total amount
of EUR 15,000, payable in 10 installments of EUR 1,500, the first payment
falling due on 30 August 2012.
3.
Art. 15 of the contract stipulates that “Both parties to the present agreement
recognize, accept and agree that any dispute that might arise between the
parties according to the present agreement will be resolved only by the
relevant adjudicatory bodies and or dispute resolution bodies of FIFA.”
4.
On the same day, the Claimant and Respondent signed an “image rights
agreement”, valid for the same period of time as the employment contract, in
accordance with which the Respondent would pay the Claimant the total
amount of EUR 65,000 in 10 installments of EUR 6,500, the first payment
falling due on 30 August 2012.
5.
Equally, the image rights agreement established that the Claimant was
entitled to various bonuses, a car, accommodation and 4 flight tickets.
6.
Art. 6 of the image rights agreement stipulates that “Both parties to the
present agreement recognize, accept and agree that any dispute that might
arise between the parties according to the present agreement will be resolved
only by the relevant adjudicatory bodies and or dispute resolution bodies of
FIFA.”
7.
Also on 19 June 2012, the parties signed a supplementary agreement for the
2012/2013 season, which referred to the employment contract and the image
rights agreement, and indicated that if the Respondent wanted to extend the
contract to the 2013/2014 season, it would pay the Claimant a “monthly salary
of EUR 9,000 in total.”
8.
On 4 July 2013, the Claimant lodged a claim in front of FIFA against the
Respondent indicating that he was entitled to the total amount of EUR 80,000
in the 2012/2013 season, however, he had only received the amount of EUR
27,500. Therefore, the Claimant requested payment of the amount of EUR
52,500 plus interest, “linkage differentials” and legal expenses.
9.
The Claimant explained that, on 9 May 2013, he could no longer survive and
therefore he approached the Respondent asking the latter to mutually
terminate the employment contract. As a result, “the parties signed a contract
Player K, from country H / Club L, from country C
Page 2 of 9
termination on 9 May 2013” by means of which the Respondent recognized
that all amounts owed to the Claimant would be “discussed and resolved by
the end of the present football season.”
10.
In reply to the claim, the Respondent first contested the competence of FIFA to
deal with the present matter alleging that the Dispute Resolution Committee
(DRC) of the country C Football Association is the only competent judicial
body.
11.
Equally, the Respondent held that FIFA has no competence in relation to
image right agreements.
12.
As to the substance, the Respondent rejected the claim asserting that the
Claimant was entitled to EUR 15,000 under the employment contract and EUR
9,000 under the supplementary agreement, i.e. the total amount of EUR
24,000 only. Hence, the Respondent alleged that it paid the Claimant in full.
13.
On 21 October 2013, the Claimant reverted to FIFA stating that art. 6 of the
image rights contract stipulated that FIFA is the competent body to adjudicate
on any dispute in relation to said agreement. Also, the Claimant contested that
he was paid in full.
14.
Although having asked the Respondent for its final comments, it did not
provide any final comments.
15.
Upon request, the Claimant informed FIFA that he had not entered into any
new employment contract between 9 May 2013 and 1 July 2013.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with
the case at hand. In this respect, the DRC judge took note that the present
matter was submitted to FIFA on 4 July 2013. Consequently, the DRC judge
concluded that the 2012 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 of the
Procedural Rules).
2.
With regard to the competence of the DRC judge, art. 3 par. 1 and par. 2 of
the Procedural Rules state that the DRC judge shall examine his jurisdiction in
the light of art. 22 to 24 of the Regulations on the Status and Transfer of
Players (edition 2012). In accordance with art. 24 par. 1 and par. 2 lit. i. in
combination with art. 22 lit. b) of the aforementioned Regulations, the DRC
judge would, in principle, be competent to deal with the matter at stake,
which concerns an employment-related dispute with an international
dimension between a country H player and a country C club.
Player K, from country H / Club L, from country C
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3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies asserting that the parties to the contract
had agreed to submit any dispute to the DRC of the country C Football
Federation.
4.
Taking into account the above, the DRC judge emphasised that in accordance
with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and
Transfer of Players he is competent to deal with a matter such as the one at
hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players
and clubs, has been established at national level within the framework of the
Association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the DRC judge referred to FIFA Circular no. 1010 dated 20
December 2005. In this regard, the DRC judge further referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
5.
In relation to the above, the DRC judge deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another
organ than the DRC or the DRC judge can settle an employment-related
dispute between a club and a player of an international dimension, is that the
jurisdiction of the relevant arbitration tribunal derives from a clear reference
in the employment contract.
6.
Therefore, while analysing whether he was competent to hear the present
matter, the DRC judge considered that he should, first and foremost, analyse
whether the employment contract at the basis of the present dispute actually
contained an arbitration clause.
7.
In this framework, the DRC judge analysed the content of the employment
agreement submitted by the Claimant and duly noted that said agreement did
not contain an arbitration clause in favour of a decision-making body of the
country C Football Federation. Furthermore, the contract and the additional
agreement concluded between the parties stated in its art. 15 and 6 that the
“dispute resolution bodies” of FIFA are competent to resolve any dispute
deriving from such agreement.
8.
As a result, taking into consideration that the employment contract at the
basis of the present dispute contained an arbitration clause in favour of FIFA,
the DRC judge concluded that the Respondent’s objection to the competence
of FIFA to hear the present dispute had to be rejected. Therefore, the DRC
judge is competent, on the basis of art. 22 b) of the Regulations on the Status
and Transfer of Players, to consider the present matter as to the substance.
Player K, from country H / Club L, from country C
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9.
In continuation, the DRC judge analysed which regulations should be
applicable as to the substance of the matter. In this respect, the DRC judge
confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players (edition 2012), and considering that the
claim was lodged in front of FIFA on 4 July 2013, the 2012 edition of the
aforementioned regulations is applicable to the matter at hand as to the
substance.
10.
Furthermore, the DRC judge acknowledged that he had to verify, for formal
reasons, whether he was competent to decide on the claimed payments in
connection with the document titled “image rights agreement”. In fact, it
remains that this part of the claim could possibly not be considered due to the
DRC judge lacking competence to deal with disputes related to image rights.
11.
While analysing whether he was competent to hear this part of the claim, the
DRC judge wished to highlight that said agreement contained elements which
led to believe that it was not in fact an image rights agreement but rather a
separate agreement to the employment contract, i.e. directly linked to the
services of the Claimant as a player.
12.
In this context, the DRC judge referred to the jurisprudence of the Chamber,
which has established that, as a general rule, if there are separate agreements,
the Chamber tends to consider the agreement on image rights as such and
does not have the competence to deal with it. However, such conclusion might
be different if specific elements of the separate agreement suggest that it was
in fact meant to be part of the actual employment relationship. In the case at
hand, the DRC judge concluded that such elements appear to exist. In
particular, the agreement contains inter alia provisions regarding bonuses
directly related to the achievement of sporting objectives, which are typical for
employment contracts and not for image rights agreements. Also, the image
rights agreement contains provisions regarding accommodation, flight tickets
and the use of a car, which again, are typical for employment contracts.
Consequently, the DRC judge decided not to consider the image rights
agreement as such, but determined that said agreement was in fact an
additional agreement to the employment contract instead.
13.
In view of all the above, the DRC judge established that the image rights
agreement is to be considered, meaning that he is in a position to take into
consideration the relevant agreement when assessing the Claimant’s claim.
14.
In continuation, the DRC judge acknowledged that, thus, the parties to the
dispute had signed an employment contract as well as an additional
agreement, both dated 19 June 2012, in accordance with which the Claimant
was entitled to receive, inter alia, the total amount of EUR 80,000 as
remuneration for the period as from 1 July 2012 until 31 May 2013.
Player K, from country H / Club L, from country C
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15.
Turning to the claim of the Claimant, the DRC judge observed that the
Claimant lodged a claim in front of FIFA against the Respondent seeking
payment of the total amount of EUR 52,500 plus interest, asserting that the
Respondent had not complied in full with its contractual obligations towards
him. Equally, the Claimant requested “linkage differentials” and legal
expenses.
16.
Likewise, the DRC judge observed that the Respondent held that the Claimant
was entitled to EUR 15,000 under the employment contract and EUR 9,000
under the supplementary agreement, i.e. the total amount of EUR 24,000 only,
and that it had, therefore, paid the Claimant in full.
17.
In this respect, the DRC judge was eager to emphasise that the amount of EUR
9,000 was only stipulated in the supplementary agreement for the 2013/2014
season, which indicated that if the Respondent wanted to extend the contract
to the 2013/2014 season, it would pay the Claimant a “monthly salary of EUR
9,000 in total.” Thus, the amount stipulated in the supplementary agreement
has no connection whatsoever with the amounts claimed by the Claimant in
the present proceedings, which deals with the financial aspects of the
2012/2013 season.
18.
As a consequence, the DRC judge established that there was no legal basis to
establish that the Claimant was entitled to EUR 24,000 only, since the
agreements clearly stated that the Claimant was entitled to a monthly salary of
EUR 1,500 and EUR 6,500, respectively, and, therefore, to a total remuneration
of EUR 80,000 in the 2012/2013 season.
19.
Furthermore, the DRC judge took note of the content of the letter dated 9
May 2013, issued by the Respondent, which stipulates that the contractual
relationship was ”mutually terminated” and that the Claimant’s services were
no longer needed. In this respect, the DRC judge in particular noted that the
letter was only signed by the Respondent.
20.
Having taken into consideration the previous considerations, the DRC judge
decided that it could be established that the Respondent had terminated the
employment contract without just cause by informing the Claimant on 9 May
2013 that all agreements were terminated with immediate effect. The DRC
judge wished to outline that although the relevant letter stipulates that the
contractual relationship was ”mutually terminated”, there was no
documentary evidence on file that the Claimant had indeed consented to the
early termination of the contract.
21.
On account of the above, the DRC judge decided that the Respondent had no
just cause to unilaterally terminate the employment relationship between the
Claimant and the Respondent and, therefore, concluded that the Respondent
had terminated the employment contract without just cause on 9 May 2013
Player K, from country H / Club L, from country C
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and that, consequently, the Respondent is to be held liable for the early
termination of the employment contract.
22.
Bearing in mind the previous considerations, the DRC judge went on to deal
with the consequences of the early termination of the employment contract
without just cause by the Respondent.
23.
First of all, the DRC judge concurred that the Respondent must fulfil its
obligations as per employment contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the DRC judge decided that
the Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination, i.e. the amount of EUR 44,500.
24.
In continuation, the DRC judge decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Respondent compensation for breach of contract in addition to any
outstanding salaries on the basis of the relevant employment contract.
25.
In this context, the DRC judge outlined that, in accordance with said provision,
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.
26.
In application of the relevant provision, the DRC judge held that he first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
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.
27.
Having recalled the aforementioned, and in order to evaluate the
compensation to be paid by the Respondent, the DRC judge took into account
the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In
this respect, the DRC judge took into account that at the time of the
termination of the employment contract, the contract would run for another
month. Consequently, the DRC judge concluded that the remaining value of
the contract as from its early termination until the regular expiry of the
contract amounts to EUR 8,000 and that such amount shall serve as the basis
Player K, from country H / Club L, from country C
Page 7 of 9
for the final determination of the amount of compensation for breach of
contract.
28.
In continuation, the DRC judge remarked that the Claimant had not found
new employment with another club in the period between 9 May 2013 and 1
July 2013.
29.
In view of all of the above, the DRC judge decided that the Respondent must
pay the amount of EUR 8,000 to the Claimant as compensation for breach of
contract.
30.
As a consequence, the DRC judge decided that the Respondent is liable to pay
the total amount of EUR 52,500 to the Claimant, consisting of the amount of
EUR 44,500 corresponding to the Claimant’s outstanding remuneration at the
time of the unilateral termination of the contract and the amount of EUR
8,000 corresponding to compensation for breach of contract.
31.
In continuation and with regard to the Claimant's request for interest, the DRC
judge decided that the Claimant is entitled to receive interest at the rate of
5% p.a. on the amount of EUR 44,500 as from 4 July 2013 and on the amount
of EUR 8,000 as from 13 December 2013.
32.
Furthermore, the DRC judge decided to reject the Claimant’s claim pertaining
to legal costs in accordance with art. 18 par. 4 of the Procedural Rules.
33.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player K, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club L, 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 44,500 plus 5% interest p.a. on said amount as from 4 July
2013 until the date of effective payment.
4.
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 8,000 plus 5% interest p.a. on said amount as from 13
December 2013 until the date of effective payment.
5.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 3. and 4. are not paid by the Respondent within
Player K, from country H / Club L, from country C
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the stated time limits, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
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
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player K, from country H / Club L, from country C
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