Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 December 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 9 February 2013, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent),
signed an employment contract valid as from the date of signature until 8
February 2015 (hereinafter: the contract).
2.
In accordance with the contract, the Claimant was entitled to receive, inter
alia, EUR 3,300 as monthly salary. According to the contract, each monthly
salary was payable “on the first day of each month-to-run”.
3.
Moreover, art. 2 of the contract stipulated the following: “Payment as referred
to point 1 shall be remain executed to [the Claimant] although in certain
amount of time not capable to perform the obligation for the reason of: a.
Injured or illness that caused activity perform by [the Claimant] due to the
obligation toward [the Respondent]…” Moreover, art. 2 of the contract
established that “Monthly salary payments overdue cannot be later than 10
(ten) days”.
4.
The contract further stated in its art. 13 that the Respondent shall be entitled
to terminate the contract unilaterally, paying a compensation to the Claimant
of one month salary “based on performance evaluation…, and/or [the
Claimant]’s performance does not indicate good”.
5.
Furthermore, the contract stipulated in art. 14 that “[The Claimant] can break
contract by the FIFA rules if [the Respondent] doesn’t pay the salaries and also
can break the contract if he pays USD 100,000 as a release fee”.
6.
The Claimant and the Respondent signed a document titled “Letter of contract
Termination” (hereinafter: the termination agreement), which is dated 9 July
2013, and which stipulated the following:
1) “The Contract has been terminated upon signing this letter”;
2) “[The Respondent] has paid out the remaining contract value of EUR
14,200 for the benefit of [the Claimant]; Payment at the latest within 20
working days, since the signing of the Letter of Termination Contract,
directly to the bank account of [the Claimant]”;
Player A, country B / Club C, country D
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3) “Letter of Termination Contract is valid if the bank payment slip
attached to [the Claimant] from [the Respondent]…”;
4) “We declare that we have no more obligations and rights to each
other”.
7.
On 30 April 2015, the Claimant lodged a claim before FIFA against the club for
outstanding remuneration and breach of contract and requested to be
awarded payment of the total amount of EUR 92,400. The amount is
composed as follows:
- EUR 26,400 corresponding to 8 monthly allegedly outstanding salaries of
EUR 3,300 each, from April 2013 until November 2013;
- EUR 46,200 as compensation for breach of contract, corresponding to 14
monthly salary payments from EUR 3,300 each, from December 2013 until
8 February 2015;
- EUR 19,800 corresponding to “specificity of sport”;
- Moreover, the Claimant requested sporting sanctions to be imposed on the
Respondent and the payment of an unspecified amount for costs and legal
fees.
8.
In his claim, the Claimant explained that he suffered an injury on 27 February
2013, the severity of which was only discovered after a second examination.
According to the Claimant, this second examination was done two months
after the alleged injury. In this respect, the Claimant argued the he did not
receive adequate medical treatment from the Respondent, and that in fact, he
had to cover the medical expenses by himself at that point, as the Respondent
was unresponsive to him.
9.
The Claimant sustained that the Respondent failed to pay his remuneration on
time since the beginning of the contractual relationship, and that his
remuneration since the month of April 2013 is still outstanding. Moreover, the
Claimant held that the Respondent informed him that it would only pay his
salaries, once he was fully recovered from his injury.
10.
According to the Claimant, he sent a letter to the club through the Football
Players’ Association of country B (hereinafter: Football Players’ Association of
Player A, country B / Club C, country D
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country B), requesting the payment of an alleged outstanding amount of EUR
10,300 corresponding to the 2012/2013, which did not include the alleged
outstanding salaries for the 2013/2014 season.
11.
Furthermore, the Claimant sustained that the Respondent paid him EUR 14,000
as reimbursement of medical expenses on 4 November 2013, but only after
several requests.
12.
Subsequently, the Claimant explained that on 14 November 2013, by means of
a letter sent to the Respondent on his behalf by Football Players’ Association
of country B, he terminated the contract with the Respondent, as the
Respondent failed to pay the alleged outstanding remuneration owed to him,
and only reimbursed his medical expenses.
13.
The Claimant held that on that very same day, i.e. 14 November 2013, on the
Respondent’s request, the parties signed the termination agreement, by means
of which it was established that “[The Respondent] has paid out the remaining
contract value of EUR 14,200 for the benefit of [the Claimant]; Payment at the
latest within 20 working days, since the signing of the Letter of Termination
Contract, directly to the bank account of [the Claimant]”.
14.
In this respect, the Claimant argued that the club failed to comply with its
obligations in accordance with the termination agreement, as it did not pay
the corresponding EUR 14,200 to him, which, according to the player, was an
essential condition to the validity of the termination agreement. In
consequence, the Claimant argued that the Respondent should be considered
in breach of contract, due to the lack of payment of his salaries and improper
treatment of his injury.
15.
Despite having been invited to do so, the Respondent did not present its
position to the claim, although it was informed that, in absence of a reply, the
Dispute Resolution Chamber would take a decision on the basis of the
information and evidence at disposal.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, the DRC took note that the present matter was
Player A, country B / Club C, country D
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submitted to FIFA on 30 April 2015. Consequently, the Chamber concluded
that the 2015 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 2015
editions of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (edition 2015) the DRC
would, in principle, be competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension
between a player from country B and an club from country D.
3.
The competence of the Chamber having been established, the Chamber
analysed which edition of the Regulations on the Status and Transfer of
Players 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 2015), and considering that the
present matter was submitted to FIFA on 30 April 2015, the 2015 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
Having established the foregoing, and entering into the substance of the
matter, the Chamber continued by acknowledging the above-mentioned facts
as well as the documentation contained in the file in relation to the substance
of the matter. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
evidence which it considered for the assessment of the matter at hand.
5.
In this respect, the DRC acknowledged that following the conclusion of an
employment contract on 9 February 2013, the Claimant terminated the
contract with the Respondent by means of a letter sent to the Respondent by
Football Players’ Association of country B on his behalf, on 14 November 2013,
as allegedly, the Respondent failed to pay outstanding remuneration owed to
him.
6.
However, it was highlighted by the Chamber that the Claimant and the
Respondent had concluded a termination agreement, by means of which they
agreed that the Respondent would pay to the Claimant the amount of EUR
14,200 payable “at the latest within 20 working days”.
7.
Moreover, the Chamber took note that although the termination agreement is
dated 9 July 2013, the Claimant stated that the termination agreement was
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concluded on the same date as the termination of the contract, i.e. 14
November 2013.
8.
Subsequently, the DRC noted that the Claimant contacted FIFA on 30 April
2015 indicating that the Respondent had not fulfilled its obligations as
established in the termination agreement, since it had not paid the amount
established therein of EUR 14,200.
9.
The Chamber duly noted that the Claimant argued that, in his opinion, since
the payment of the amount established in the termination agreement was an
essential condition to its validity, the lack of payment of the amount and
therefore, non-compliance with the terms of the termination agreement,
entitled him to revert to the employment contract, and in consequence, the
Claimant requested to be paid outstanding remuneration in the amount of
EUR 26,400 corresponding to eight monthly salaries of EUR 3,300 each, plus
compensation for breach of contract in the amount of EUR 46,200, and
payment of an amount of EUR 19,800 corresponding to “specificity of sport”.
Moreover, the Claimant requested sporting sanctions to be imposed on the
Respondent and the payment of an unspecified amount for costs and legal
fees.
10.
Furthermore, the DRC noted that the Respondent had been given the
opportunity to reply to the claim submitted by the Claimant, but that the
Respondent had failed to present its response in this respect. In this way, so
the Chamber deemed, the Respondent renounced to its right of defence and,
thus, accepted the allegations of the Claimant.
11.
As a consequence of the preceding consideration, the DRC established that in
accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision
upon the basis of the documents on file.
12.
On account of the aforementioned considerations, the members of the
Chamber established that the Respondent had failed to pay to the Claimant
the amount as agreed upon in the termination agreement, totalling EUR
14,200.
13.
In light of the Claimant’s argument in which he explained that the lack of
payment of the established amount in the termination agreement, would
entitle him to revert to the employment contract, and therefore, he would be
entitled to claim outstanding remuneration and compensation in connection
with the terms of the contract, the DRC stressed that the termination
agreement contains no reference or clause that established that in case of nonpayment of the amount agreed therein, the Claimant has the right to revert to
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the contract, and claim outstanding remuneration and compensation in
accordance with the terms of the contract. In consequence, the members of
the DRC unanimously agreed to reject the Claimant’s argument in this respect.
14.
Consequently, the DRC concluded that, in accordance with the general legal
principle of “pacta sunt servanda”, the Respondent is liable to pay the
Claimant the amount of EUR 14,200, as established and agreed between the
parties in the termination agreement.
15.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for “specificity of sport” in the amount of EUR 19,800. In this
regard, the Chamber deemed it appropriate to point out that the request for
said compensation presented by the Claimant had no legal or regulatory basis
and pointed out that no corroborating evidence had been submitted.
16.
Moreover, as regards the claimed costs, the Chamber referred to art. 18 par. 4
of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant’s request relating
to costs and legal fees.
17.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by rejecting any further claim of 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, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 14,200.
3.
In the event that the aforementioned sum is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned time limit and the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
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5.
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
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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