Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 December 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Piat (France), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 July 2013, the player from country B, Player A (hereinafter: Claimant or
player) and the club from country D, Club C (now known as Club C; hereinafter:
Respondent or club) signed an employment contract valid during 18 months as
from 1 July 2013 until 31 December 2014.
2.
In accordance with the employment contract, the player was entitled to receive a
signing-on fee of 90,000 as well as a monthly salary of 90,000.
3.
In addition, the club undertook to pay one air ticket to return to the country B
after the end of the season.
4.
Early November 2013, allegedly after the end of the season, the player returned
to the country B.
5.
In January 2014, the player moved to the club from country D, Club E, with which
club he signed an employment contract, on 23 January 2014, valid as from the
date of signature until 31 July 2014 or the end of the 2014 league, in accordance
with which the player was entitled to receive a monthly salary of 30,000.
6.
As from 1 July 2014 (until 30 June 2015), the player has been bound to the club
from country Y, Club X against payment of EUR 150 per month.
7.
By letter dated 31 March 2014, the player terminated the employment contract
with the club invoking just cause due to the latter’s alleged failure to remit the
signing-on fee as well as his salary as from September 2013 onwards.
8.
On 12 March 2014, with a subsequent amendment on 8 April 2014, the player
lodged a claim against the club in front of FIFA maintaining that the club is to be
held liable for breach of contract and payment of outstanding remuneration as
well as compensation.
9.
The player asked to be awarded the total amount of 1,490,225 or USD 45,850.15,
plus interest, and he presented the following breakdown of his financial claim:
a. 90,000 signing-on fee
b. 30,000 remainder of the salary for September 2013
c. 540,000 6 months’ salary (October 2013 - March 2014)
d. 810,000 compensation (salaries as from April 2014 until December 2014)
e. 20,225 air ticket
10.
The player explains that in spite of his payment notices to the club, the club failed
to remit his remuneration as of September 2013 as well as the signing-on fee.
Player A, from country B / Club C, from country D
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11.
The player further points out that the club authorised his transfer to Club E on 23
January 2014, so that he could continue his career during alleged financial
difficulties. However, according to the player, the club did not issue any “letter of
release” nor did it terminate the employment contract, which therefore, so the
player, continued to be valid.
12.
In reply to the claim, the club asserts that, on 30 September 2013, it announced
the dissolving of the team in the light of the transfer of former Club C’s rights to
Club C, in December 2013. A copy of the relevant document was presented,
according to which the club announced a re-organisation including a change of
players. This document was allegedly posted at the camp and football field.
Consequently, the club considers that all employment contracts had been
terminated with effect as from 30 September 2013.
13.
The club further refers to the transfer document signed by the player on 24
January 2014 on the occasion of his move to Club E.
14.
Therefore, the club partially rejects the claim of the player. Indeed, considering
that the contract was terminated on 30 September 2013, the club acknowledges
that it still owes the amount of 140,225 to the player, i.e. 90,000 signing-on fee,
30,000 as the remainder of the September 2013 salary, and 20,225 related to the
air ticket.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 12 March
2014. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2012; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2
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 combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2014) the Dispute Resolution Chamber is competent to deal with the matter at stake,
Player A, from country B / Club C, from country D
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which concerns an employment-related dispute with an international dimension
between an player from country B and a club from country D.
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 (edition 2014),
and considering that the present claim was lodged on 12 March 2014, the 2012
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.
The DRC noted that the Claimant and the Respondent signed an employment
contract on 1 July 2013, which was to run during 18 months as from 1 July 2013
until 31 December 2014.
6.
The members of the Chamber took note that the Claimant maintains that the
Respondent acted in breach of contract without just cause and that therefore, the
Respondent is to be held liable for the early termination of the employment
contract and payment of, inter alia, compensation in addition to allegedly
outstanding remuneration.
7.
The Chamber further took into account that the Respondent, for its part, rejected
the claim and held that the employment contract must be considered terminated
with just cause on 30 September 2013 on the basis of the imminent dissolving of
the club.
8.
Considering the diverging position of the parties with regard to the early
termination of the pertinent employment contract, the members of the Chamber
highlighted that the central issue in this dispute was to determine which party is
to be held liable for such early termination, whether the termination was with or
without just cause as well as to decide on the consequences thereof.
Subsequently, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
9.
Player A, from country B / Club C, from country D
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accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
10.
According to the Claimant, in spite of the Respondent seriously having failed to
comply with its contractual obligations towards him, the employment contract
continued to remain in force until his notice of termination of 31 March 2014
addressed to the Respondent.
11.
The members of the Chamber took note that the Respondent, for its part, holds
the view that the employment contract was terminated on 30 September 2013,
date on which all players were informed by the Respondent of the imminent
dissolving of the team. In this connection, it was noted that the Respondent
ceased all payments due to the Claimant subsequent to this date.
12.
On account of the above, the Chamber pointed out that the Respondent’s reason
for the termination of the employment contract on 30 September 2013 with
immediate effect was, thus, the dissolving and reorganisation of the team due to
the apparent transfer of the club’s rights to Club C in December 2013.
13.
In this respect, the members of the Chamber concurred that a dissolving and
reorganisation of the Respondent’s team due to the transfer of the club’s rights to
another club cannot be considered a just cause for the termination of the
employment contract it signed with the Claimant on 1 July 2013.
14.
With respect to the Respondent’s additional argument that the Claimant had
joined another team in January 2014, the Chamber stressed that due to the
Respondent’s unjustified termination of the employment contract on 30
September 2013 the Claimant was free to sign on with another club following
that date.
15.
On account of the above, the Chamber decided that the Respondent unilaterally
terminated the employment contract on 30 September 2013 without just cause.
16.
In continuation, prior to establishing the consequences of the breach of contract
without just cause by the Respondent in accordance with art. 17 par. 1 of the
Regulations, the Chamber held that it had to address the issue of unpaid
remuneration at the moment the contract was terminated by the Respondent.
17.
Indeed, in his statement of claim, the Claimant alleges that the total amount of
140,225 had remained unpaid by the Respondent. In this regard, the DRC took
into account that the Respondent confirmed that it had not paid the signing-on
fee to the Claimant and that only part of the latter’s salary for September 2013
Player A, from country B / Club C, from country D
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had been remitted. Consequently, the Respondent acknowledged that it owes the
total amount of 140,225 to the Claimant.
18.
Therefore, in virtue of the principle pacta sunt servanda, the Chamber decided
that the Respondent is liable to pay the amount of 140,225 to the Claimant as
outstanding remuneration for the period of up to 30 September 2013.
19.
Having established the above, the Chamber turned its attention to the question
of the consequences of the unilateral termination of the contract by the
Respondent without just cause on 30 September 2013.
20.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant is entitled to receive compensation from the Respondent for
the termination of the contract without just cause in addition to the
aforementioned outstanding remuneration of 140,225.
21.
In this regard, 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.
22.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the contract at the basis of the present dispute 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 contract at the basis of the matter at stake.
23.
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. In this regard, the
Dispute Resolution Chamber emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a
Player A, from country B / Club C, from country D
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case-by-case basis taking into account all specific circumstances of the respective
matter.
24.
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 contracts
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 existing contract and the new contract, if any, in the calculation
of the amount of compensation.
25.
On the basis of the contract signed by and between the Claimant and the
Respondent, which was to run for 15 months more, i.e. until 31 December 2014,
after the breach of contract occurred, the Chamber concluded that the amount of
1,350,000 (15 months x 90,000) serves as the basis for the final determination of
the amount of compensation for breach of contract.
26.
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 breach of contract in connection with the player’s general
obligation to mitigate his damages.
27.
In this regard, the Chamber noted that the Claimant signed an employment
contract with the club from country D, Club E, valid as from 23 January 2014 until
31 July 2014 or the end of the 2014 league, in accordance with which the player
was entitled to receive a monthly salary of 30,000. Subsequently, as from 1 July
2014 (until 30 June 2015), the player has been bound to the club from country Y,
Club X against payment of EUR 150 per month. Consequently, the Chamber
considered that the Claimant’s income under the new employment contracts for
the period between 1 October 2013 and 31 December 2014 amounted to 190,000
approximately.
28.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay the amount of 1,160,000 to
the Claimant as compensation for breach of contract in the case at hand.
Player A, from country B / Club C, from country D
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29.
The Chamber concluded its deliberations in the present matter by rejecting any
further request filed by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C (formerly known as Club C), has to pay to the Claimant
outstanding remuneration in the amount of 140,225 within 30 days as from the
date of notification of this decision.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of 1,160,000 within 30 days as from the date of notification of this
decision.
4.
In the event that the amounts due to the Claimant are not paid by the
Respondent within the stated time limits, interest at the rate of 5% p.a. will fall
due as of expiry of the aforementioned time limits and the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
5.
Any further request filed 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.
*****
Player A, from country B / Club C, from country D
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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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player A, from country B / Club C, from country D
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