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
arisen between the parties
I.
Facts of the case
1.
On 13 January 2014, Player A from country B (hereinafter: the Claimant) and
Club C from country D (hereinafter: the Respondent) signed an employment
contract (hereinafter: the contract), valid as from the date of signature until 31
May 2015, i.e. “for a year and half”.
2.
According to art. 5 of the contract, the Respondent undertakes to pay the
Claimant, inter alia, “a total payment for a year and half 120.000 USD net”.
3.
Furthermore, art. 4.1 of the contract stipulates that “This contract may be
terminated in the following cases stated below: a. if club does not pay the salary
intended in Article. 5.1 of the contract during 3 months. (…) c. if there are other
justifiable reasons intended in the Article on the status and transfer of the
football players of FIFA. And Regulations on status and transfer of the football
players of the Football Federation of country D.”.
4.
According to art. 4.2 of the contract “This contract may be terminated by the
rest of the club in the following cases stated below: a. if football player does not
observe the disciplinary rules; b. if there are cases intended in the Article on the
status and transfer of the football players of FIFA and Regulations on status and
transfer of the football players of Football Federation of country D; c. in the case
of negative situations the football club has authority to break contract
unilaterally and stop the payment for player”.
5.
Art. 4.3 further stipulates that “This contract may one-sidedly be terminated by
Club and all expanses have to be paid until termination day”.
6.
On 24 June 2014, after having sent the Respondent a reminder dated 16 June
2014 requesting the payment of his salary for the months of April and May 2014,
by no later than 23 June 2014, the Claimant terminated the employment
Player A, country B / Club C, country D
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contract in writing, alleging that the Respondent failed to reply or pay the due
amounts within the mentioned deadline.
7.
On 31 July 2014, the Claimant lodged a claim against the Respondent before
FIFA for breach of contract, requesting, the payment of the total net amount of
USD 105,000, plus interest of 5% p.a., broken down as follow:
a.
USD 15,000 as outstanding salaries corresponding to his salaries for the
months of April and May 2014, with 5% interest p.a. as from due dates (1
May 2014 on the amount of USD 7,500 and 1 June 2014 on the other
amount of USD 7,500);
b.
USD 90,000 as compensation for breach of contract corresponding to the
residual value of the contract, from 1 June to 31 May 2015, plus 5 %
interest p.a. as from 25 June 2014.
8.
In his claim, the Claimant explains that, on 17 May 2014, after the last round of
the 2013/2014 season, the Respondent was relegated to a lower division and as
from this moment, the Respondent ceased to pay him and appeared not to be
interested in his services anymore.
9.
In this context, the Claimant pointed out that he always complied with his
obligations and that the Respondent never gave him any justification to retain
his salary. For this reason, the Claimant sent a final notice to the Respondent on
16 June 2014, giving it a seven days deadline to proceed with the payment of
the outstanding amount. In the absence of any reaction or payment from the
Respondent, the Claimant deemed that he had no other choice but to terminate
the contract with the Respondent on 24 June 2014 (cf. point I.6. above).
10.
In its reply to the Claimant’s claim, the Respondent holds having fulfilled all its
contractual obligations. According to the Respondent, the Claimant left country
D at the end of the month of May 2014, and refused to come back. For this
reason, he did not receive his salaries for the months of April and May 2014. In
Player A, country B / Club C, country D
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addition, the Respondent states to have tried to contact the Claimant and solve
the situation, by buying him a return ticket to country D, but without success.
11.
According to TMS, the Claimant found new employment with the club from
country B, Club E, from 28 June 2014 until 30 November 2014, for which he was
entitled to a monthly salary of 1,000.
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 31 July 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. article 21 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 (editions 2012, 2014 and 2015) the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country B
and an 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
(editions 2012, 2014 and 2015), and considering that the present claim was lodged
on 31 July 2014, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
Player A, country B / Club C, country D
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4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, it
started to acknowledge the facts of the case as well as the documents contained
in the file.
5.
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.
6.
In this respect, the members of the Chamber acknowledged that the parties were
bound by an employment contract, which was signed on 13 January 2014 and
valid as from the date of signature until 31 May 2015.
7.
In continuation, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that he had terminated the
employment contract with just cause on 24 June 2014, after previously having put
the club in default on 16 June 2014, since the Respondent allegedly failed to pay
him his salaries for the months of April and May 2014 (cf. point I.6. above).
Consequently, the Claimant asks to be awarded his outstanding dues as well as
the payment of compensation for breach of the employment contract.
8.
The Respondent, for its part, submitted that the Claimant had been absent as
from the end of the month of May 2014 without its authorisation even after
having been requested to resume his duties. In addition, the Respondent asserted
that it had tried to contact the Claimant and even provided him a flight ticket to
come back to the club but the latter refused to do so.
9.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant and the
allegations of the Respondent, was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the
Claimant.
Player A, country B / Club C, country D
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10.
At this point already, and in relation to the documentation provided by the
parties, the Chamber deemed it appropriate to refer the parties to the content of
art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a
right on the basis on an alleged fact shall carry the burden of proof”. In this
particular case, the Chamber pointed out that the Claimant had not presented
any documentary evidence corroborating his assertion that the Respondent was
not interested into his services anymore. In fact, the Chamber noted that the
Respondent did present evidence that it indeed provided the player with a return
flight ticket to country D and that it contacted the player, requesting his return.
11.
Subsequently, the Chamber noted that it remained undisputed by the Respondent
that, on the date of termination, i.e. 24 June 2014, the Claimant’s salary for the
months of April and May 2014 remained unpaid, in spite of the Claimant’s
reminder previously sent to the Respondent on 16 June 2014 (cf. point I.6. above).
12.
Turning its attention to the arguments of the Respondent for the non-payment of
the Claimant’s salary, the DRC noted that the Respondent acknowledges the nonpayment but does not present any valid reason or evidence for not paying the
Claimant’s salary for two consecutive months, i.e. April and May 2014.
13.
Moreover, the members of the Chamber highlighted that art. 4.1. of the
employment contract (cf. point I.3. above) stipulates that the contract may be
terminated in the case that the Respondent does not pay the Claimant’s salary for
three months. This was not only freely agreed between the Claimant and the
Respondent in their contract but it is also in line with the Chamber’s longstanding
jurisprudence.
14.
On account of the above, the DRC decided that the Respondent did not have a
just cause to unilaterally terminate the employment relationship between the
Claimant and the Respondent, on 24 June 2014.
Player A, country B / Club C, country D
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15.
On account of the aforementioned considerations, the Chamber decided that in
accordance with the general legal principle of pacta sunt servanda, since the
Claimant rendered his services until and including the month of May 2014, 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 USD 15,000.
16.
In addition, taking into account the Claimant’s request, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. as of the day following the day
on which each of the payments included in the global amount of USD 15,000 fell
due in accordance with the pertinent employment contract.
17.
The DRC concluded its deliberations in the present matter by establishing that any
further claim of the Claimant is 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, outstanding remuneration in the amount of
USD 15,000 plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 1 May 2014 on the amount of USD 7,500;
b. 5% p.a. as of 1 June 2014 on the amount of USD 7,500.
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.
Player A, country B / Club C, country D
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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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