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 8 January 2014, the club from country D, Club C (hereinafter: the
Respondent), and the player from country B, Player A (hereinafter: the
Claimant), concluded a first employment contract (hereinafter: the first
contract), valid as of 1 January 2014 until 30 November 2014.
2.
On 1 February 2015, the Claimant and the Respondent signed a second
employment contract (hereinafter: the second contract) valid as from the date
of signature until 30 November 2015.
3.
In accordance with the first contract, the Claimant was, inter alia, entitled to
receive the following remuneration and benefits:
a. For the 2014 season: a total of USD 30,000 payable in eleven monthly
instalments of USD 2,727 each;
b. “Two plane round trip tickets on relation city E – city F”.
4.
In accordance with the second contract, the Claimant was, inter alia, entitled to
receive the following remuneration and benefits:
a. For the 2015 season: a total of USD 50,000 payable in ten monthly
instalments of USD 5,000, in accordance with clause 5.1 and 5.2.
5.
On the last page of the second contract, the Claimant added, in handwriting,
the following statements:
“1. I’m free to go to any club not on loan but outright when the Cup G ends in
May ’15.
2. My salary must be paid at end of every month and must not delay more than
3 months. I have the right to know the amount of bonus before a game.
3. My house rent must be paid according to the contract USD 300 12 months.
4. I want my release letter to be given out as soon as I ask for it.”
6.
Also on 1 February 2015, the Respondent sent a letter to the former club of the
Claimant (hereinafter: Club H) in which the Respondent agreed to purchase the
Claimant from Club H for USD 30,000.
7.
On 11 February 2015, the Respondent released a letter of clearance stating that
“[the Respondent] has no financial claims to [the Claimant] and permits to play
for any other club. His future club may request permission from country B’s
Football Association to register him”.
Player A, country B / Club C, country D
2/10
8.
On 1 July 2015, the Claimant sent a notice of default to the Respondent
requesting the unpaid salaries and rent for the months of February, March,
April and May 2015 in the total amount of USD 21,200.
9.
On 8 July 2015, the Respondent replied to the notice of default and stated that
Club H refused to sell the Claimant, so the Respondent was not entitled to
register the Claimant for the season 2015, stressing that the second contract had
not been registered in TMS or in the Football Federation of country D, being
“only a draft contract”.
10. On 20 July 2015, the Claimant terminated the second contract by means of a
registered letter sent to the Respondent.
11. On 28 July 2015, the Claimant lodged a claim in front of FIFA against the
Respondent requesting the total amount of USD 56,100, as follows:
a. USD 27,100 pertaining to the outstanding salaries for the months as of
February until June 2015 and the rents for the months as of November 2014
until June 2015 plus 5% as of 20 June 2015 as per the second contract;
b. USD 26, 500 as compensation for breach of contract pertaining to the residual
value of the second contract from July until November 2015 and the
remaining rents for the same period plus 5% interest as of 20 June 2015;
c. USD 2,500 for two return flight tickets for 2014 season plus 5% interest “as
per date of the panel’s decision”;
d. Costs of the procedure.
12. Alternatively, “in the event the panel decides that [the Respondent] breached
the contract without just cause on or around 11 February”, the Claimant
requested the amount of USD 53,600 plus 5% interest as 20 June 2015, as
compensation for breach of contract.
13. In his claim, the Claimant argued that, on 2 February 2015, Club H sent a letter
to the Football Federation of country D releasing the Claimant and allowing his
registration in said Federation.
14. The Claimant further stated that, on 3 February 2015, he travelled to country I
in order to assist to the Respondent’s training camp. However, the Claimant
points out that he was banned from training and told to return to city E after
refusing to accept a lower salary from the Respondent. In this regard, the
Claimant provided a copy of his passport with an exit stamp from country I on
10 February 2015. The Claimant held that he was available in city E for training
until 23 March 2015, date in which he returned to country B. After going back
to his country and under these circumstances mentioned above, the Claimant
deemed to have had no other choice but to terminate the contract with the
Respondent on 20 July 2015.
Player A, country B / Club C, country D
3/10
15. In its reply to the claim, the Respondent insisted on the fact that the Claimant
was never transferred by his former club because at the expiry of the first
contract, the Claimant’s ITC went back to country B and, when the Respondent
wanted to “buy” the Claimant from Club H for the season 2015, the latter
refused “to sell his transfer” to the Respondent. Consequently, according to the
Respondent, the second contract was never registered neither in FIFA’s TMS nor
in the Football Federation of country D.
16. Moreover, the Respondent alleged that the handwritten additions were
unilaterally included by the Claimant into the draft of the second contract “to
which [the Respondent] could not accepted”. Additionally, the Respondent
highlighted the contents of the letter of clearance dated 11 February 2015 and
stated that it issued such letter upon the Claimant’s request, after which he
went on trials to country I and country J.
17. With regard to Club H’s letter of consent to the transfer of the Claimant, the
Respondent alleged that said letter was not received by the Respondent itself or
the Football Federation of country D. Furthermore, the Respondent stated that
said document may have been forged.
18. In his replica, the Claimant first stressed that the second contract’s handwritten
additions were valid due to the fact that “they are in writing and signed by
both Parties”. Nevertheless, the Claimant also stated that the potential
invalidation of such additions should only affect the rents mentioned in point
4.b above. Finally, the Claimant reiterated the arguments contained in his
statement of claim.
19. In its duplica, the Respondent repeated the arguments stated in its first
response and provided the original documents attached in its response to the
claim. In addition, the Respondent provided a document dated 11 February
2015 and signed by the Respondent and Mr. K as the alleged representative of
the Claimant, which stated the following: “[the Respondent] did not accept the
proposed conditions of the [the Claimant] and considered the proposed
conditions unacceptable, and have expressed their desire not to renew or
resigning Employment contract, about what has been brought to the attention
of [the Claimant] and his representative Mr. K”.
20. According to the information contained in TMS, the Claimant had a valid
contract with Club H until January 2017, according to which he received a
monthly remuneration of 300.
Player A, country B / Club C, country D
4/10
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 submitted
to FIFA on 28 July 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 edition 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 a 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 28 July 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 Chamber acknowledged that, on 1 February 2015, the
Claimant and the Respondent signed a second employment contract, in
accordance with which the parties agreed inter alia upon the Claimant receiving
the amount of USD 50,000 as total salary.
6.
The Claimant maintained that, in fact, an employment contract was entered
into and that, as such, the Respondent is to be held liable for its early
termination by having failed to execute the terms of the second employment
contract, including the failure to pay the Claimant’s remuneration and to
request the relevant ITC.
Player A, country B / Club C, country D
5/10
7.
In this respect, the members of the Chamber took note of the Claimant’s default
notice dated 1 July 2015 addressed to the Respondent by means of which the
Claimant informed the Respondent of its non-execution of the second contract.
The DRC also noted that the relevant default notice was answered by the
Respondent denying the existence of the second contract.
8.
From the outset, the members of the Chamber highlighted that there does not
seem to be any disagreement between the parties as to the fact that the terms
of the second contract were not performed, including the payment of the
remuneration established therein, since the Respondent did not contest such
allegation made by the Claimant. The fundamental disagreement between the
Claimant and the Respondent – and the central issue to the present dispute – is
whether the second contract signed between the parties can be considered as a
valid and binding employment relation between the parties.
9.
The Chamber noted that, according to the Respondent, as opposed to the
Claimant, no legally binding employment contract had come into effect
between the Claimant and the Respondent for season 2015 and, in
consequence, the second contract was never registered neither in FIFA’s TMS
nor in the Football Federation of country D, since the former club of the
Claimant, Club H, did not agree on the transfer of the Claimant. Furthermore,
the Chamber noted that the Respondent denied having received the letter of
Club H dated 2 February 2015, allowing the Claimant’s registration within the
Football Federation of country D.
10. In this respect and bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, the Chamber was eager to point out that the
Respondent had failed to present any documentation in support of its position.
In particular, the members of the Chamber observed that the Respondent was
not able to corroborate that the Claimant’s former club, Club H, refused to
transfer the Claimant, as the Respondent alleged it did. As a consequence, the
Chamber concluded that the Respondent had not presented any evidence
proving the existence of any communication from Club H expressing its denial
to transfer the Claimant for the season 2015.
11. Moreover, the DRC considered relevant to recall its jurisprudence in accordance
with which the validity of an employment contract cannot be made conditional
upon the execution of (administrative) formalities, such as, but not limited to,
the registration procedure in connection with the international transfer of a
player, which are of the sole responsibility of a club and on which a player has
no influence. In this regard, the DRC pointed out that it is the responsibility of
the engaging club to ensure that the player is properly registered with his new
club in order to be able to provide it with his services. Since the club is
supposedly interested in acquiring the rights of the player and in benefiting
Player A, country B / Club C, country D
6/10
from his services, it is also expected from it that it acts accordingly in view of
obtaining the player’s ITC and his subsequent registration.
12. Subsequently, the Chamber recalled that the Claimant asserts having travelled
with the Respondent, on 3 February 2015, to country I in order to assist to the
Respondent’s training camp and that, however, the Respondent banned him
from training and informed him he had to return to city E, where he stayed
until 23 March 2015, date in which he returned to country B. The Respondent,
on the other hand, held that it released the Claimant on 11 February 2015 upon
the latter’s request, after which the Claimant had gone on trials to country I and
country J. At this point, the DRC noted that it had remained undisputed by the
Respondent that the Claimant had attended the relevant training camp and had
remained available to the Respondent. What is more, the Chamber stressed that
there was no indication whatsoever that the Respondent had contacted the
Claimant at any moment in order for the latter to join the team.
13. On account of all the above circumstances, in particular, by not requesting the
relevant ITC although this being the responsibility of the Respondent, by
banning the Claimant from training and by failing to remit the Claimant’s
remuneration, the Chamber established that the Respondent had no longer
been interested in the Claimant’s services. Such conduct constitutes, in the
Chamber’s view, a clear breach of contract without just cause. Accordingly, the
Chamber concurred that the Respondent is to be held liable for the early
termination of the employment contact without just cause.
14. Having established that the Respondent is to be held liable for the early
termination of the second employment contract without just cause, the
Chamber focused its attention on the consequences of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the Chamber decided that
the Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract.
15. In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
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.
Player A, country B / Club C, country D
7/10
16. In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract 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 employment contract at the basis of the matter at
stake.
17. Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment
contract until 30 November 2015 and concluded that the Claimant would have
received in total USD 50,000 as remuneration, had the second contract been
executed until its expiry date.
18. In this context, the Chamber was eager to emphasize that the amounts claimed
by the Claimant as rents were disputed by the Respondent. In this respect, the
Respondent asserted that such amounts had been included in the second
contract in handwriting by the Claimant without the consent of the
Respondent. As a consequence, and in the absence of any documentary
evidence provided in this connection by the Claimant to show his entitlement to
these amounts (cf. art. 12 par. 3 of the Procedural Rules), the Chamber had to
reject the Claimant’s claim relating to said fringe benefits.
19. 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.
20. Indeed, the Chamber noted that, according to the information contained in
TMS, the Claimant’s employment contract with Club H, his former club,
remained valid until January 2017, enabling him to earn a monthly salary of
300, which is equivalent to USD 80.
21. In accordance with the constant practice of the Dispute Resolution Chamber and
the general obligation of the player to mitigate his damages, such
remuneration under the new employment contract shall be taken into account
in the calculation of the amount of compensation for breach of contract. What
is more, the Chamber also considered it important to point out that, although
the second employment contract with the Respondent was fully valid and
enforceable, the execution of said contract actually never started, an element
which equally should be taken into consideration in the calculation of the
amount of compensation.
Player A, country B / Club C, country D
8/10
22. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of USD 17,000 to the Claimant, which was to be considered a
reasonable and justified amount of compensation for breach of contract in the
matter at hand.
23. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on said
amount as of 28 July 2015 until the date of effective payment.
24. Subsequently, the DRC analysed the request of the Claimant corresponding to
two return flight tickets as per the first contract i.e. season 2014, in the amount
of USD 2,500. In this regard, the Chamber deemed it appropriate to point out
that the first contract provided for “two plane round trip tickets on relation city
E – city F” in favour the Claimant as a benefit, without specifying any monetary
value. In this context, the members of the Chamber referred to the general legal
principle of the burden of proof, according to which a party deriving a right
from an alleged fact has the obligation to prove the relevant fact (cf. art. 12
par. 3 of the Procedural Rules). In this respect, the members of the Chamber
stressed that the Claimant had not presented any evidence proving that he had
incurred in such expenses during the season 2014, failing to corroborate,
therefore, that there was any outstanding amount for this concept. On account
of the aforementioned, the Chamber decided that the relevant request of the
Claimant shall be rejected.
25. Finally, the DRC decided that the Claimant’s claim pertaining to legal costs is
rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s longstanding respective jurisprudence.
26. 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 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 USD 17,000 plus 5% interest
p.a. as from 28 July 2015 until the date of effective payment.
Player A, country B / Club C, country D
9/10
3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, 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.
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
10/10