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
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Todd Durbin (USA), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
Player J, from country S
as Claimant
against the club,
Club M, from country T
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 16 July 2009, Player J, from country S (hereinafter: player or Claimant) and the
Club M, from country T (hereinafter: club or Respondent), signed an employment
contract valid as from the date of signature until 31 May 2012 (hereinafter: contract).
2.
Additionally to the contract, on 24 November 2010, the player and the club signed an
``Amendment Contract’’, valid for the 2010/11 and 2011/12 seasons (hereinafter:
amendment).
3.
Moreover, on 24 November 2010, the player and the club signed a ``Professional
Football Player Contract’’ valid as from 1 June 2012 until 31 May 2013 (hereinafter:
second contract).
4.
According to the amendment, the player was entitled to receive, inter alia, for the
2011-2012 season the amount of EUR 100,000 as ``Transfer advance payment’’,
payable on or before 30 August 2011, twelve monthly equal instalments of EUR
10,000 each, payable between 5 August 2011 and 5 July 2012 as well as per match
payments with a potential maximum entitlement of EUR 150,000 for the 2011-2012
season (EUR 4,411 per match, equivalent to 100% of the per match payment, x 34
matches).
5.
Moreover, the amendment stipulated that the player would receive 100% of the per
match payment if he played in the squad of first eleven, that he would receive 75%
of the per match payment if he was nominated in the squad of eighteen and
participated during the game, and 50% of the per match payment, for matches in
which he was nominated in the squad of eighteen but did not participate in the
game. The player was not entitled to any per match payment if he was not
nominated in the squad.
6.
According to the second contract, the player was entitled to receive from the club,
inter alia, for the 2012/13 season, a maximum remuneration of EUR 370,000 as
follows: ``Transfer Advance Payment’’ in the amount of EUR 100,000, payable on or
before 30 August 2012, twelve monthly equal instalments of EUR 10,000 each,
payable between 5 August 2012 and 5 July 2013 as well as per match payments, with
a maximum potential entitlement of EUR 150,000 depending on the starting lineup
and the player’s participation during the match (cf. point I./5. above).
7.
On 22 March 2012, the player put the club in default of payment of the total amount
of EUR 110,000. The player, having received no reply to the default notice, on 9 April
2012, sent to the club a second request for payment of the outstanding sums, i.e.
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EUR 134,170, which also remained unanswered. Consequently, on 24 April 2012, the
player terminated the employment contract in writing.
8.
On 8 May 2012, the player lodged a claim against the club in front of FIFA for breach
of contract requesting that the club be ordered to pay the total amount of EUR
534,170, which was detailed as follows:
EUR 134,170 relating to outstanding salaries for the 2011/12 season
a)
b)
c)
d)
``Transfer advance payment’’ (cf. amendment)
EUR 100,000
Monthly salaries as from August 2011 to April 2012
EUR 90,000
Per match credits corresponding to 27 league games
EUR 109,170
(21 matches in the first eleven, 3 matches in which player participated during
the game and 3 matches in which player was nominated in the squad of 18
but did not participate during the game)
Amount paid by the club
(as from October 2011 until March 2012)
- EUR 165,000
EUR 400,000 as compensation for breach of contract:
a)
b)
Monthly salaries from May 2012 to July 2012
(EUR 10,000 x 3 months)
``Transfer payment’’ for the 2012/13 season
EUR 30,000
EUR 370,000
9.
Furthermore, the player requested to be awarded 5% legal interests p.a. on the
amount of EUR 134,170 accrued as from the date on which the claim was lodged.
10.
According to the player, from the very beginning of the season the club failed to
comply with its financial obligations; the player sustained that the club only paid EUR
165,000, as from 3 October 2011 until 26 March 2012, out of the total amount due of
EUR 299,170 corresponding to his salaries, the ``transfer advance payment’’ and
match bonuses.
11.
In reply to the player’s claim, the club held that the amount due to the player did not
correspond to the sum that he claimed, since ``based on the Professional Player
Contract signed on 16 July 2009 and other amendment contracts’’ he was paid by the
club the amount of EUR 754,178.
12.
On account of the above, the club maintained that the sum owed to the player
amounts to EUR 65,976.
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13.
Moreover, the club alleged that despite its financial difficulties, it tried to fulfill the
liabilities arising from the contract and that it acted in good faith. The club also
requested the Dispute Resolution Chamber to take into consideration that the club
was relegated and lost its highest income source, i.e. TV rights. The club alleged that,
during meetings held with the team at the beginning of the 2011/12 season due to
the club’s cash flow issues, the player verbally agreed to new milestone payments.
Moreover, on 17 April 2012, the player apparently requested the club to grant him
``a leave’’, which was authorised by the club that very same day. The club further
sustained that, despite having obtained the mentioned permit, a week later the
player terminated the contract. According to the club, the player left due to the
relegation of the club and acted in bad faith.
14.
According to the employment contract signed with his new country S club, Club H,
on 26 August 2012 and valid as of 27 August 2012 until 30 November 2012, the
player was entitled to receive, inter alia, a monthly salary of currency of country S
50,000 as well as a monthly allowance of currency of country S 750 for food ``after
practice each month at the club’’. Furthermore, on 7 January 2013 the player signed
an agreement with the country T club, Club B, valid as from 7 January 2013 until 31
May 2014, according to which the player was entitled to receive, inter alia, an
advance payment in the total amount of EUR 28,000 as well as four equal instalments
of EUR 18,000 each, payable at the end of January, March, April and May 2013
respectively.
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 8 May 2012.
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 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 country S player and a country T club.
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
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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 8 May 2012, the
2010 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. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence, which it considered pertinent for
the assessment of the matter at hand.
5.
First, the DRC recalled that the parties had signed an employment contract valid as
from 16 July 2009 until 31 May 2012, with a subsequent amendment on 24 November
2010. According to the amendment, the Claimant was entitled to receive, inter alia,
for the 2011/12 season a transfer advance payment in the amount of EUR 100,000,
payable on or before 30 August 2011, twelve monthly equal instalments of EUR
10,000 each, payable between 5 August 2011 and 5 July 2012, as well as per match
payments representing a maximum potential entitlement of EUR 150,000.
6.
The members of the Chamber further observed that the parties had signed a second
employment contract, valid as from 1 June 2012 until 31 May 2013, in accordance
with which the Claimant was also entitled to receive, inter alia, for the 2012/13
season, a maximum remuneration of EUR 370,000 with the same break down as
included the amendment.
7.
In continuation, the Chamber acknowledged that it was undisputed by the parties
that, on 24 April 2012, and after having put the Respondent in default of payment of
his monthly salaries, a transfer advance payment as well as 27 per match payments on
two occasions, the Claimant notified the Respondent of the termination of the
contract on the basis of outstanding remuneration.
8.
Furthermore, the Chamber duly noted that, on account of the above, the
Claimant is seeking payment by the Respondent of the amount of EUR 134,170
corresponding to i) allegedly outstanding remuneration totalling EUR 299,170,
claimed on the basis of the amendment, related to salaries as from August 2011
until April 2012, a transfer advance payment in the sum of EUR 100,000 as well as
EUR 109,170 relating to match bonuses and ii) deductions made on the basis of the
payments remitted by the Respondent to the Claimant as from October 2011
until March 2012 in the total amount of EUR 165,000. In this respect, by deducting
the total amount he acknowledges having received from the Respondent from the
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total amount that he considers to be entitled to receive, the DRC concluded that the
Claimant had not presented any precise breakdown of the specific contractual
financial obligations included in the claimed amount of EUR 134,170.
9.
Equally, the DRC noted that the Claimant deems that he had just cause to
terminate the employment contract on 24 April 2012 in the light of the
aforementioned allegedly outstanding remuneration. Consequently, the
Claimant requests that the Respondent is ordered to pay compensation for
breach of contract in the amount of EUR 400,000.
10.
The members of the Chamber took into account that the Respondent, for its part,
deems that the Claimant left due to the club’s relegation and that he acted in bad
faith.
11.
On account of the above, 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 contractual relation on 24 April 2012. The Chamber also underlined
that, subsequently, if it were found that the employment contract was terminated by
the Claimant with just cause, it would be necessary to determine the consequences
thereof.
12.
In this respect, the Chamber wished to emphasize that, according to the Claimant, at
the time of the termination of the contract on 24 April 2012, the total amount of
EUR 134,170 was yet to be paid by the Respondent. As stated above, the Claimant
failed to provide a breakdown of the specific contractual financial obligations
included in said amount and therefore, it is not clear which (monthly) remuneration
is included in this amount of EUR 134,170. As regards the Claimant’s claim related to
match bonuses, while referring to art. 12 par. 3 of the Procedural Rules, the members
of the Chamber took into account that the Claimant failed to provide evidence of the
matches he allegedly played.
13.
The DRC then turned its attention to the arguments of the Respondent and
acknowledged that according to the latter, EUR 754,178 were paid to the Claimant
on the basis of all the contracts signed between the parties.
14.
Furthermore, the Chamber duly noted that the Respondent admitted that salaries
and match bonuses in the total amount of EUR 65,976, the details of which were not
specified by the Respondent, had not been paid to the Claimant.
15.
In continuation, the DRC stressed that according to the legal principle of the burden
of proof contained in the aforementioned art. 12 par. 3 of the Procedural Rules, any
party claiming a right on the basis of an alleged fact carries the burden of proof.
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16.
In view of the above, the DRC stressed that the Claimant carries the burden of proof
to demonstrate that he was entitled to receive the additional sum of EUR 68,194, i.e.
EUR 134,170 minus EUR 65,976, which amount has not been acknowledged by the
Respondent as outstanding. In this respect, and as already stated above, the Chamber
noted that the Claimant had not presented any supporting documentation in this
regard. As a consequence, the DRC decided to reject the Claimant’s claim pertaining
to said amount of EUR 68,194.
17.
Furthermore, and irrespective of the foregoing consideration, the Chamber
highlighted that, the Respondent carries the burden of proof with regard to the
allegations that the amount of EUR 754,178 was paid to the Claimant on the basis of
all the contracts. The Chamber pointed out that there are no documents on file
indicating that the Claimant received said amount from the Respondent.
Consequently, the DRC decided to reject the Respondent’s argument in this
connection.
18.
Bearing in mind the aforementioned considerations and the documentation on file,
the Chamber established that a considerable part of the Claimant’s remuneration, i.e.
EUR 65,976, which, in fact, represents more than six monthly salaries of the Claimant,
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.
19.
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 contracts on 24 April 2012 and that the Respondent is to
be held liable for the early termination of the contracts with just cause by the player.
20.
Bearing in mind the previous considerations, the Chamber focussed its attention on
the consequences of such termination.
21.
First of all, the DRC stressed that the Respondent must fulfil its obligations as per the
employment contract in accordance with the principle of pacta sunt servanda. As a
consequence, and bearing in mind the above, 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. the amount of EUR 65,976.
22.
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
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outstanding amount of EUR 65,976 as of 8 May 2012 until the date of effective
payment.
23.
In continuation, the DRC 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.
24.
In this context, the DRC 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.
25.
In application of the relevant provision, the DRC held that it 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 established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
26.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
27.
Furthermore, the Dispute Resolution Chamber emphasized that each request for
compensation for contractual breach has to be assessed by the Chamber on a caseby-case basis taking into account all specific circumstances of the respective matter.
28.
In order to estimate the amount of compensation due to the Claimant in the present
case, the members of the Chamber first turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of art.
17 par. 1 of the Regulations allows the Chamber to take into account both the
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existing contract and the new contract in the calculation of the amount of
compensation.
29.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contracts as
from the date of termination of the employment contracts with just cause by the
Claimant, i.e. 24 April 2012, until 31 May 2013. As from April until July 2012, in
accordance with the contract/amendment, the Claimant was entitled to receive EUR
40,000 of remuneration. In accordance with the second contract the Claimant was
entitled to receive the transfer advance payment in the amount of EUR 100,000 and
remuneration as of 5 August 2012 until 5 July 2013 in the amount of EUR 120,000. In
this respect, the members of the Chamber deemed it fit to highlight that no match
payments could be taken into consideration in the calculation of the amount of
compensation, since according to the relevant contractual clause, the player’s
entitlement to such payment was linked to the player’s participation in matches,
which, moreover, were to take place after the termination of the employment
relation, which entitlement was thus hypothetical. Consequently, the Chamber
concluded that the amount of EUR 260,000 serves as the basis for the final
determination of the amount of compensation for breach of contract.
30.
The Chamber then took due note of the employment situation of the Claimant after
the termination of the contracts with the Respondent and of the relevant new
employment contract(s) that he had entered into, by means of which he was able 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.
31.
It was duly noted that, on 26 August 2012, the Claimant and the Club H, from
country S, signed an employment contract, valid as from 27 August 2012 until 30
November 2012, according to which the Claimant was entitled to a monthly salary of
currency of country S 50,000 as well as monthly allowance of currency of country S
750 for food ``after practice each month at the club’’. Furthermore, the Chamber
noted that, on 7 January 2013, the Claimant and the Club B, from country T, signed
an employment contract valid as from 7 January 2013 until 31 May 2014, according
to which the Claimant was entitled to receive, inter alia, an advance payment in the
total amount of EUR 28,000 as well as four instalments of EUR 18,000 each (i.e. EUR
28,000 + 72,000). Consequently, the members of the Chamber established that these
employment contracts enabled the Claimant to earn an income of EUR 118,405
for the period as from 27 August 2012 until 31 May 2013.
Player J, from country S / Club M, from country T
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32.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to
mitigate his damage, the Chamber decided that the Respondent must pay the
amount of EUR 141,595 to the Claimant as compensation for breach of contract
in the case at hand.
33.
In view of all the above, the DRC partially accepted the Claimant’s claim and decided
that the Respondent is liable to pay to the Claimant the amount of EUR 65,976
corresponding to remuneration outstanding at the time of the unilateral termination
of the contract with just cause by the Claimant and the amount of EUR 141,595 as
compensation for breach of contract.
34.
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 J, is partially accepted.
2.
The Respondent, Club M, is ordered to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 65,976, plus interest of
5% p.a. as of 8 May 2012 until the date of effective payment.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of EUR 141,595 within 30 days as from the date of notification of this
decision.
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 its consideration and a formal
decision.
5.
Any further claim lodged by the Claimant is rejected.
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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:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
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