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,
A, country A,
represented by Mr xxxxxx
as Claimant / Counter-Respondent
against the club,
B, country C
as Respondent / Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
The player from country A, A (hereinafter: the Claimant/Counter-Respondent), and
the club from country C, B (hereinafter: the Respondent/Counter-Claimant),
concluded an undated employment contract (hereinafter: the contract) valid as from
29 February 2012 until 29 December 2012.
2.
According to art. 7.2. of the contract, the Respondent/Counter-Claimant undertakes
to provide the Claimant/Counter-Respondent with, inter alia, “a total salary of USD
270,000 (after tax)”. Art. 7.2. further stipulates that “the salaries shall be paid from
Feb 29, 2012 to Dec 29, 2012 at US$ 30,000 per month (US30,000 x 9 months. Party B
[the Claimant/Counter-Respondent] shall get the salary in accordance with playing
time proportion if the rate of appearance cannot reach 80% of whole game)”.
3.
According to art. 7.7. “The salary distribution date is 10 Day of each month, and the
work first and pay later system is adopted”.
4.
In addition, according to art. 2.2. of the contract, “ if Party B’ ability does not meet
the needs of training and match of Party A [the Respondent/Counter-Claimant], Party
A has right to reassign Party B to different positions between the Senior Team and
the Reserves Team of the club”.
5.
Moreover, art. 2.3. of the contract further stipulates that “ If Party B cannot play
normally for serious old injury that he got in other teams or recurrence of serious
injury caused by reasonable collision in the game, Party A has right to terminate the
contract or reassign Party B to the Reserves Team. Party B will not get the same salary
and bonus as in the Senior Team. He will enjoy the welfare treatment in accordance
with the relevant article 5, 6, 7 of club rules and regulations”.
6.
According to art. 10.3. “The contract may be cancelled by Party B by notifying Party
A: (...) If Party A is behind in payment of salary and bonuses to Party B for over three
months”.
7.
Art. 12. Further reads, “Either party shall undertake the compensation or remedy to
the other party according to losses and responsibilities caused by the party’s breach
of the contract and therefore causing economic losses to the other party”.
8.
On 1 October 2012, the Claimant/Counter-Respondent sent a notice to the
Respondent/Counter-Claimant by means of which he reminded it of its arrears,
consisting of 3 monthly salaries (July, August and September 2012) corresponding to
a total amount of USD 90,000, and informed it that, in case he would not be paid
within seven days, he would refer the matter to FIFA.
9.
On 8 October 2012, the Claimant/Counter-Respondent terminated the employment
contract in writing, alleging that the Respondent/Counter-Claimant had not replied
Player A, country A / Club B, country C
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to his previous reminder (cf. point I.8.) and underlining that no amount was paid in
connection with the outstanding salaries for the months of July, August and
September 2012. The Claimant/Counter-Respondent further explained that based on
art. 12 of the contract (cf. point I.7. above) the Respondent/Counter-Claimant owes
compensation to the Claimant/Counter-Respondent. For this reason, the
Claimant/Counter-Respondent gave a 14 days deadline for the Respondent/CounterClaimant to pay the total amount of USD 180,000 (USD 90,000 corresponding to the
outstanding salaries and USD 90,000 as compensation), before starting a procedure
in front of FIFA.
10.
On 19 June 2013, the Claimant/Counter-Respondent lodged a claim in front of FIFA
requesting the payment of the amount of USD 180,000, broken down as follows:
i. USD 90,000 as outstanding remuneration corresponding to the
Claimant/Counter-Respondent’s salary for the months of July, August and
September 2012;
ii. USD 90,000 as compensation corresponding to the residual value of the
contract, i.e., 3 monthly salaries (October to December 2012).
11.
In this respect, the Claimant/Counter-Respondent states that he always fulfilled all his
obligations, but without any explanation, the Respondent/Counter-Claimant stopped
paying him and did not select him for matches. However he could still train with the
Respondent/Counter-Claimant, but after having not received any reply to his
reminder, he deemed that he had no other choice but to terminate the contract and
leave the Respondent/Counter-Claimant “in the month of October 2012”.
12.
In its response to the Claimant/Counter-Respondent’s claim, the Respondent/CounterClaimant stated that as from the beginning of the labour relationship with the
Claimant/Counter-Respondent, the latter did not train with commitment,
demonstrated a lack of discipline and had a bad influence on the other players (cf.
point I.13 below).
13.
The Respondent/Counter-Claimant further explains that the Claimant/CounterRespondent arrived in the club (2nd division) after contracting an injury while playing
for a club standing in the country C Super League. Because of this fact, the
Claimant/Counter-Respondent behaved with an alleged lack of humility and in the
meantime, he was still handicapped by his injury and could never return to his
former level. Therefore, the Respondent/Counter-Claimant underlined that it has the
right to relegate the Claimant/Counter-Respondent to the reserve team in
accordance with art. 2.2. of the contract (cf. point I.4. above) and refer to art. 7 par. 2
(cf. point I.2. above) which stipulates that the Claimant/Counter-Respondent “(…)
shall get the salary in accordance with playing time proportion if the rate of
appearance cannot reach 80% of whole game”, which is the case of the
Claimant/Counter-Respondent.
Therefore,
on
1
August
2012,
the
Respondent/Counter-Claimant decided that “According to the performance of A,
Rules and regulations of B and the Employment Contract for Players of country C
Player A, country A / Club B, country C
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Football Association C-League Football club, our club now transferred to the
reserves, he can train and play the match there, after he enter the reserves, he will
not enjoy the salary in the first team. Our club will give him USD 1,000 as salary”.
14.
Finally the Respondent/Counter-Claimant holds that the Claimant/CounterRespondent’s “unprofessional behaviour deeply violated the rules and regulations
and the Employment Contract, it made a very huge irretrievable loss of reputation
and economy”, therefore, on 8 July 2013, the Respondent/Counter-Claimant lodged a
counterclaim against the Claimant/Counter-Respondent, requesting the amount of
USD 150,000, “to compensate for the loss of reputation and economy”.
15.
In his comments on the Respondent/Counter-Claimant’s counterclaim, the
Claimant/Counter-Respondent underlines that the counterclaim must be rejected and
contests all the allegations presented by the Respondent/Counter-Claimant. The
Claimant/Counter-Respondent further underlines that no evidence has been provided
in support of the alleged facts and, on the contrary, states that he fully respected all
his obligations and performed to his very best.
16.
In its final comments, the Respondent/Counter-Claimant maintains his previous
position and asserts that the Claimant/Counter-Respondent by its continuous
violation of its internal rules as well as of the contract, he ruined its reputation and
provoked the relegation of the Respondent/Counter-Claimant to the Football
Association Division Two.
17.
Finally, the Claimant/Counter-Respondent informed FIFA that he
unemployed until the original end of the contract, i.e. 29 December 2012.
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, the members of the Chamber took note that the present matter was
submitted to FIFA on 19 June 2013. Consequently, the 2012 edition of the Rules
governing the procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at
hand (cf. art. 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 in combination with art.
22 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 employment-related dispute with an international
dimension between an player from country A and a club from country C.
remained
Player A, country A / Club B, country C
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3.
Furthermore, the DRC analysed which edition of the 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 19 June
2013, 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.
First of all, the members of the Chamber acknowledged that it was undisputed by
the parties that they had concluded an employment contract valid as from 29
February 2012 until 29 December 2012 (cf. point I.1.above).
6.
The members of the Chamber acknowledged that the Claimant/Counter-Respondent
lodged a claim in front of FIFA on 19 June 2013 against the Respondent/CounterClaimant seeking payment of the total amount of USD 180,000 corresponding to
outstanding remuneration and compensation, as detailed in point I.10. above.
7.
In continuation, the members of the Chamber took into account that, on 8 October
2012, the Claimant/Counter-Respondent notified the Respondent/Counter-Claimant
of the termination of the contract on the basis of outstanding remuneration.
8.
The DRC noted that, on the one hand, the Claimant/Counter-Respondent claims that
the Respondent/Counter-Claimant has breached the contractual relationship without
just cause, by failing to pay him his salaries for the months of July, August and
September 2012 (cf. point. I.8. above). The Chamber further observed that, by means
of his correspondence of 1 October 2012, the Claimant/Counter-Respondent
reminded the Respondent/Counter-Claimant of its situation of breach of contract. As
the Respondent/Counter-Claimant did not react to such reminder, the
Claimant/Counter-Respondent terminated the contract on 8 October 2012 and
requested, by means of his claim before FIFA, the amounts detailed in point I.10.
above.
9.
Subsequently, the DRC noted that, on the other hand, the Respondent/CounterClaimant claims that the Claimant/Counter-Respondent terminated the contract
without just cause, since it deems to have no debts toward the Claimant/CounterRespondent. The Chamber equally noted that the Respondent/Counter-Claimant
explained that the Claimant/Counter-Respondent was relegated to the second team
due to his lack of discipline. Therefore, in accordance with art. 2.2., 2.3. and 7.2. of
the contract (cf. point I.2., I.4. and I.5. above), the Respondent/Counter-Claimant
Player A, country A / Club B, country C
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decided to reduce the Claimant/Counter-Respondent’s salary to USD 1,000. In
addition, the members of the Chamber took note that on 8 July 2013, the
Respondent/Counter-Claimant lodged a counterclaim against the Claimant/CounterRespondent requesting the amount of USD 150,000 to compensate the financial and
reputation loss due to the Claimant/Counter-Respondent’s unprofessional behaviour.
10.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant/Counter-Respondent and
the allegations of the Respondent/Counter-Claimant, was to determine whether the
employment contract had been unilaterally terminated with or without just cause by
the Claimant/Counter-Respondent on 8 October 2012.
11.
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”.
12.
In this respect, the Chamber wished to emphasize that, according to the
Claimant/Counter-Respondent, at the time of the termination of the contract on 8
October 2012, the total amount of USD 90,000 was yet to be paid by the
Respondent/Counter-Claimant, corresponding to three monthly salaries (July, August
and September 2012).
13.
In view of the above, the DRC deemed that, in the present case, the
Respondent/Counter-Claimant carried the burden of proof of proving the payment of
the Claimant/Counter-Respondent’s remuneration or to have had any valid reasons
not to pay him in accordance with the contract.
14.
Before entering the analysis of the documents and of the argumentation presented
by the Respondent/Counter-Claimant, the Chamber briefly referred to art. 7.7 of the
contract, according to which the monthly salaries were payable on the 10th day of the
following month. Consequently, the DRC established that only the Claimant/CounterRespondent’s salaries for July and August 2012 had already fallen due on the date of
termination, i.e. 8 October 2012.
15.
In this context, the members of the Chamber observed that the Respondent/CounterClaimant could not provide any evidence of payment in connection with the
Claimant/Counter-Respondent’s allegedly outstanding salaries for July and August
2012.
16.
In fact, the Chamber, turning its attention to the arguments of the
Respondent/Counter-Claimant for the non-payment of the Claimant/CounterRespondent’s salary, noted that the Respondent/Counter-Claimant argues that the
Claimant/Counter-Respondent behaved unprofessionally, never performed well and
had a very bad influence on its image. Therefore, on 1 August 2012 the
Respondent/Counter-Claimant decided to relegate the Claimant/Counter-Respondent
Player A, country A / Club B, country C
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to the reserve team and to reduce his salary to USD 1,000, in accordance with the
contract and the its internal rules.
17.
The members of the Chamber noted that according to art.2.3 of the contract “If
Party B can not play normally for serious old injury that he got in other teams or
recurrence of serious injury caused by reasonable collision in the game, Party A has
right to terminate the contract or reassign Party B to the Reserves Team. Party B will
not get the same salary and bonus as in the Senior Team. He will enjoy the welfare
treatment in accordance with the relevant article 5, 6, 7 of club rules and
regulations”.
18.
After carefully checking the content of the aforementioned clause and the
documentary evidence provided in the case at hand, the Chamber first concluded
that the application of art. 2.3. of the contract could not be accepted as it is the
DRC’s well-established jurisprudence that an injury or health condition of a player
can be no valid reason to cease the payment of a player’s remuneration and even less
so to terminate an employment contract. The members of the Chamber further
underlined that a club wishing to employ a player has to exercise due diligence and
carry out all relevant medical examination prior to entering into an employment
contract with a player.
19.
Irrespective of the foregoing, the DRC noted that the Respondent/Counter-Claimant
equally failed to provide any evidence of the Claimant/Counter-Respondent’s alleged
misbehaviour or that he had been previously warned in this regard.
20.
In addition to that, the DRC noted that the Respondent/Counter-Claimant, based on
the Claimant/Counter-Respondent’s alleged misbehaviour, reduced his salary from
USD 30,000 to USD 1,000, which in any case is considered to be a disproportionate
reduction, especially when taking into account the unproven accusations against the
Claimant/Counter-Respondent. In this regard, the Chamber highlighted that that
there was no evidence of the alleged disciplinary violations committed by the
Claimant/Counter-Respondent or of his notification of or participation in such
disciplinary proceedings. In any case, the members of the Chamber deemed
appropriate to refer to the DRC’s longstanding jurisprudence, according to which the
imposition of a fine, or any other available financial sanction in general, shall not be
used by clubs as a means to set off outstanding financial obligations towards players.
Consequently, the Chamber decided to reject the Respondent/Counter-Claimant’s
argument in this connection.
21.
As a consequence of the aforementioned considerations, the Chamber could
establish that two monthly salaries, corresponding to July and August 2012, had
fallen due and remained outstanding at the time of the termination of the contract
by the Claimant/Counter-Respondent and that at that point in time the
Claimant/Counter-Respondent’s salary had also been reduced to one thirtieth of its
value – agreed upon by the parties in the contract – due to the unproved alleged
Player A, country A / Club B, country C
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misbehavior of the Claimant/Counter-Respondent. Consequently, the Chamber
concurred that the Claimant/Counter-Respondent had well founded reasons to no
longer expect the continuation of the employment relationship with the
Respondent/Counter-Claimant.
22.
Consequently, the Chamber concluded that the Claimant/Counter-Respondent had a
valid reason to terminate his contractual relation with the Respondent/CounterClaimant on 8 October 2012 and that it should be considered as a well-founded just
cause.
23.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent/Counter-Claimant is liable to
pay to the Claimant/Counter-Respondent the amount which was outstanding under
the contract at the moment of the termination, i.e. USD 60,000 corresponding to the
salaries relating to July and August 2012.
24.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of
the Regulations, the Claimant/Counter-Respondent is entitled to receive from the
Respondent/Counter-Claimant compensation for breach of contract in addition to
any outstanding remuneration on the basis of the relevant employment contract.
25.
In this context, the Chamber 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
player 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.
26.
In application of the relevant provision, the Chamber 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 Chamber
established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
27.
Having recalled the aforementioned, and in order to evaluate the compensation to
be paid by the Respondent/Counter-Claimant, the members of the Chamber took into
account the remuneration due to the Claimant/Counter-Respondent in accordance
with the employment contract as well as the time remaining on the same contract,
along with the professional situation of the Claimant/Counter-Respondent after the
early termination occurred. In this respect, the Chamber concluded that the
remaining value of the contract as from its early termination by the
Claimant/Counter-Respondent until the regular expiry of the contract amounts to
Player A, country A / Club B, country C
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USD 120,000 (4 months) and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
28.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 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.
29.
The Chamber noted that the Claimant/Counter-Respondent had remained
unemployed during the relevant period of time. Therefore, no deduction shall be
made to the basic amount of compensation calculated in point II. 27. above.
30.
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/Counter-Respondent’s claim and that the Respondent/Counter-Claimant
must pay the amount of USD 120,000 to the Claimant/Counter-Respondent, which
was considered reasonable and proportionate as compensation for breach of contract
in the case at hand.
31.
In conclusion, the DRC decided that the Respondent/Counter-Claimant is liable to pay
to the Claimant/Counter-Respondent outstanding remuneration in the amount of
USD 60,000, as well as the amount of USD 120,000 corresponding to compensation
for breach of contract without just cause.
32.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant/Counter-Respondent is
rejected and that the Respondent/Counter-Claimant’s counterclaim is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, A, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, B, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent
outstanding remuneration in the amount of USD 60,000, within 30 days as from
the date of notification of this decision.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent
compensation for breach of contract in the amount of USD 120,000, within 30 days
as from the date of notification of this decision.
Player A, country A / Club B, country C
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5.
In the event that the amounts due to the Claimant / Counter-Respondent in
accordance with the above-mentioned numbers III.3. and III.4. are not paid by the
Respondent / Counter-Claimant 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.
6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittances
are 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 A / Club B, country C
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