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
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C (Club D), country E
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 16 January 2013, the player from country B, Player A (hereinafter: the Claimant
or player), and the club from country E, Club C (Club D) (hereinafter: the
Respondent or club), signed an employment contract and its annex, valid as from
16 January 2013 until the “end season 2013 of Premier League of country E”. The
aforementioned contract was signed on paper on which the header mentions
“Club C” and on which the footer mentioned “Club D”.
2.
Article 1 of the contract stipulates “‘Club’ agreed employ and ‘Footballer’ agreed
to work in position footballer for Club D from date January 16th 2013 to end of
season 2013 of Premier League of country E”.
3.
The annex to the contract provides that the Claimant shall receive the following
amounts and amenities:
a. 210,000 per month as salary, payable at the end of each month;
b. 500 per day as a training fee;
c. 600,000 as “signing fee”, as follows:
i. 300,000 on 25 January 2013;
ii. 300,000 on 15 February 2013;
d. “provide accommodation to ‘footballer’ (under budget 4,000 excluded
expenses and fee)”;
e. “provide 1 seat of air ticket for ‘footballer’ when season competition
finished”.
4.
On 5 June 2013, the Claimant formally put the Respondent in default of the
amount of 2,500,000, or EUR 60,000.
5.
On 19 December 2013, the Claimant notified the Football Association of country E
(hereinafter: Football Association of country E) of the termination of the contract
by the Respondent “Club D (now Club C)” on an unspecified date without giving a
reason, stating that he is owed 2,490,000 plus expenses and accommodation and
asked for the Football Association of country E’s help in resolving the matter.
6.
On 11 March 2014, the Claimant lodged a claim in front of FIFA against “Club C
(Club D)” asking that he be paid a total of 2,512,909 (or EUR 57,607) plus EUR
15,000 plus 5% interest p.a. from 5 June 2013 (i.e. the date of the default notice,
cf. point I.3 above), as follows:
a. 10,000 (or EUR 225) as outstanding remuneration from 16 January 2013
until 28 February 2013 (cf. point I.9 below);
Player A, country B / Club C (Club D), country E
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b. 1,700,322 (or EUR 38,204) as pertaining to monthly salaries from 1 March
to 3 November 2013;
c. 125,500 (or EUR 2,820) as training fees from 1 March to 3 November 2013
(cf. point I.3.b above);
d. 600,000 (or EUR 13,484) as the signing fee;
e. 32,387 (or EUR 728) as housing allowance (cf. point I.3.d above);
f. 44,700 (or EUR 1,000) as flight ticket;
g. Moral damages in the amount of EUR 10,000 and legal expenses in the
amount of EUR 5,000.
7.
The Claimant asserts that in 2011 the Respondent competed under the nomination
“Club D”, and changed its nomination to “Club C” in order to compete in the
Premier League of country E for 2012. The Claimant signed in January 2013 when
the club was called “Club C”. The Claimant explains that at the beginning of
March 2013, seemingly as a result of internal problems, the Respondent changed
its name back to “Club D” on the eve of the Premier League of country E 2013,
and that following the change of nomination the Respondent did not uptake the
contracts signed with Club C.
8.
The Claimant claims that in the beginning of March 2013 the Respondent stopped
executing all the player’s contracts, including that of the Claimant.
9.
The Claimant asserts that the Respondent paid him 333,700 between 16 January
and 28 February 2013. The sum of 10,000 remains due for this period, and the
Claimant claims that he has received no other remuneration since.
10.
On 2 July 2014, i.e. after the deadline for a response had expired on 16 April 2014,
“Club D” replied to the claim stating that Club D had been granted permission to
participate in the Premier League of country E 2013 and that according to a
decision of the Football Association of country E, Club C was not allowed to
participate in the competition. The Respondent further states that it submitted a
“list of football players who would be participating in the 2013 Premier League of
country E” and that the Claimant’s name did not appear on said list.
11.
The Respondent states that Club C illegally altered the company’s capital and as a
result both civil and criminal legal actions were initiated against Club C. In this
regard, the Respondent claims that if Club C signed a contract with the Claimant,
it had been carried out without the consent of Club D and the person who signed
the contract was not authorised to do so. In addition, the Respondent states that
Club D had no knowledge of the execution of, nor was it a party to, the contract
signed with Club C. Therefore, the contract was not legally binding to Club D.
Player A, country B / Club C (Club D), country E
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12.
The Respondent further states that if the Claimant wishes to claim compensation
for the prejudice suffered as a result of the non-execution of the contract with
Club C, under the provisions of law of country E, the Claimant would have to take
legal action against the people who had signed it.
13.
The Football Association of country E informed FIFA that with regard to the
2012/2013 and 2013/2014 seasons, Club C was originally named Club D. It asserts
that the case “among the partners of the club has been still in court”. It adds that
the Football Association of country E is awaiting the court’s decision and does not
know how long it will last and will keep FIFA informed of any information it
receives.
14.
The Football Association of country E forwarded a “clarification letter” dated 25
October 2014 from the Premier League of country E which states “we are pleased
to inform that Club C or Club D is affiliated to Football Association of country E on
January 2011 and February 2012. Also the Player A never has been register in
Premier League of country E in any season”. From the documentation submitted it
can be noted that the 2011 season started on 12 February 2011 and the
Respondent was called Club D, the 2012 season started on 17 March 2012 and the
Respondent was called Club C, and that the 2013 season started on 2 March 2013
and the Respondent was called Club D.
15.
From the information contained on the Transfer Matching System (TMS), it
appears the Claimant signed an employment contract on 18 June 2014 with the
club from country G, Club H, valid from 1 July 2014 until the end of the 2015/2016
season, and he was to make a monthly 1,200,000 for the duration of employment.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter: Chamber or DRC) analysed
whether it was competent to deal with the case at hand. In this respect, the
Chamber took note that the present matter was submitted to FIFA on 11 March
2014. Consequently, the 2012 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 2012
edition of the Procedural Rules).
2.
Subsequently the DRC referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (edition 2015) the
Chamber is competent to decide on the present litigation, which concerns an
Player A, country B / Club C (Club D), country E
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employment-related dispute with an international dimension between a player
from country B and a club from country E.
3.
In continuation, the DRC analysed which edition of the FIFA Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the DRC referred, on the one hand, to art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2015), and
considering that the present claim was lodged on 11 March 2014, the 2012 edition
of said regulations (hereinafter: the 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 the aforementioned facts as well as the
arguments and documentation submitted by the parties. The Chamber, however,
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.
In this respect, the DRC acknowledged that the Claimant had signed an
employment contract with Club C / Club D on 16 January 2013, in accordance with
which it was entitled to a monthly salary of 210,000 as well as a 600,000 signing
fee payable on 25 January 2013 and 15 February 2013 in two equal instalments.
6.
In continuation, the Chamber acknowledged that the Claimant had lodged a claim
in front of FIFA against the Respondent seeking the payment of a total of
2,512,909 corresponding to outstanding remuneration as well as the residual value
of the employment contract. More specifically, the Claimant indicated that the
Respondent had terminated the employment contract without just cause when
the Respondent changed its denomination before the beginning of the national
championship in March 2013 and did not continue to execute the employment
contract.
7.
Subsequently, the members of the Chamber observed that the reply of “Club D”
was received after the deadline granted for reply, but still before the closure of
the investigation of the matter at hand. In this respect, the Chamber noted that
“Club D” claimed that as the denomination of the club had changed from “Club
C” to “Club D”, the employment contract signed with the Claimant did not
produce any binding effect to the club.
8.
In continuation, and before establishing whether the clubs Club C and Club D
were one and the same or different entities, the DRC deemed it appropriate to
establish whether any valid reason had been given by any of the clubs for the
termination of the contract with the Claimant. In this respect, the Chamber was
Player A, country B / Club C (Club D), country E
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eager to emphasise that only a breach or misconduct which is of a certain severity
justifies the termination of a contract without prior warning. In other words, only
when there are objective criteria which do not reasonably permit to expect a
continuation of the employment relationship between the parties, a contract may
be terminated prematurely. Hence, if there are more lenient measures which can
be taken in order for an employer to assure the employee’s fulfilment of his
contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can
always only be an ultima ratio.
9.
In view of the above, the Chamber first noted that the termination of the contract
by the club(s) had not at all been disputed. Furthermore, the DRC noted that
argument or documentation had been provided by either “Club C” or “Club D”
with regard to any breach of contract on the part of the Claimant, which would
justify the unilateral termination of his contract. Consequently, the Chamber
concluded that contract concluded with the Claimant was terminated without just
cause by the club on 1 March 2013, i.e. date on which the contract had clearly
stopped being executed.
10.
Having established the clear unjustified termination on the part of the club and
before determining the consequences thereof, the members of the Chamber then
sought to establish whether “Club C” and “Club D” were the same club or two
different entities as claimed by “Club D” in its reply to the claim. In this respect,
the Chamber recalled the basic principle of the burden of proof, as stipulated in
art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right
on the basis of an alleged fact shall carry the respective burden of proof in
relation to any payments or that any non-payment of amounts due was somehow
justified. Bearing in mind that the Respondent asserted that “Club C” and “Club
D” were not the same club, the members of the Chamber acknowledged that
evidence on file suggests that the aforementioned denominations relate to the
same club. In this regard, the DRC noted that the contract provided by the
Claimant was written on a document which named the contractual parties as
being “Club C” and “Player A”. The document, however, has the logo and name
of “Club C” as its header, and the name “Club D” as well as its address (cf. point
I.1 above).
11.
In addition, referring to art. 6 par. 3 of Annex 3 of the Regulations, the Chamber
took into consideration that according to the information contained in the
Transfer Matching System, a document entitled “Termination Contract” contains
the signature of both the Claimant and a representative of the Respondent. In
addition, the members of the Chamber took note that the header of the
document contains the logo and the name of “Club C” and also contains the
footer entitled “Club D” with its address. The DRC however noted that the
content of the letter includes the Respondent as being named “Club C Club D”.
Player A, country B / Club C (Club D), country E
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12.
In continuation, the Chamber took due note of the information provided by the
Football Association of country E which states that “during the 2012/2013 and
2013/2014 season Club C was originally named Club D” as well as the information
contained in the letter dated 25 October 2014 which states “we are pleased to
inform that Club C or Club D is affiliated to Football Association of country E on
January 2011 and February 2012” (cf. point I.14 above). Finally, the DRC noted
that the club that replied to the claim of the Claimant is named “Club D” (cf. point
I.10 above), which appears to be a combination between “Club D” and “Club C”.
13.
From all of the above, the members of the Chamber concurred that “Club C” and
“Club D” must be considered as one and the same club and that the Respondent
had not sufficiently substantiated its defence, as it did not present any conclusive
evidence which could corroborate that “Club C” and “Club D” were not the same
club, nor that the non-payment of salaries and the sign-on bonus was somehow
justified.
14.
Consequently, the Chamber opined that the Claimant could, in good faith, have
reasonably believed that both Club C and Club D are the same club and therefore
expect that Club C (Club D) duly complies with the terms of the contract concluded
between them.
15.
In view of all of the above, and in particular taking into account that the members
of the Chamber established that the Respondent, Club C (Club D), had terminated
the employment contract with the Claimant without just cause, the Chamber
decided that in accordance with the legal principle of pacta sunt servanda, the
Respondent must fulfil its contractual obligations towards the Claimant and is to
be held liable to pay the Claimant outstanding remuneration of 600,000
pertaining to the sign-on fee as well as 10,000 due for the period between 16
January and 28 February 2013, for a total of 610,000.
16.
In continuation and with regard to the Claimant’s request for interest, the Dispute
Resolution Chamber decided that the Claimant is entitled to receive interest at a
rate of 5% p.a. on the amount of 610,000 as from 5 June 2013 until the date of
effective payment.
17.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract without just cause, the Chamber decided that in
accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay
compensation to the Claimant. The Chamber therefore 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 first recapitulated that 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
Player A, country B / Club C (Club D), country E
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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.
18.
In application of the relevant provision, the Chamber held that it first had to
clarify 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. The
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
19.
As a consequence, the members of the Chamber established 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.
20.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be primordial. The
Chamber was eager 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 in calculation of the amount of compensation.
21.
In accordance with the employment contract signed by the Claimant and the
Respondent which was to run until the end of the 2012/13 season – according to
TMS, the 2012/13 season in country E ended on 3 November 2013 – the Claimant
was to receive remuneration amounting to 1,680,000 between March 2013 and 3
November 2013. In addition, the Claimant was entitled to a total of 32,000 as
housing allowance for the same period. Consequently, the Chamber deemed that
the amount of 1,712,000 serves as the basis for the final determination of the
amount of compensation awarded for breach of contract.
22.
The Chamber took due note of the employment situation of the Claimant after
the termination of the employment contract with the Respondent. It was noted
that the player did not sign an employment contract until 18 June 2014, i.e. after
the period of duration of the employment contract linking the Claimant to the
Respondent. Therefore, the Claimant’s new employment situation is not to be
taken into account in the calculation of the compensation due to the Claimant by
the Respondent.
Player A, country B / Club C (Club D), country E
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23.
Consequently, on account of all of the aforementioned considerations and the
specificities of the claim at hand, the Chamber decided that the Respondent had
to pay compensation to the Claimant valued on the basis of the entire residual
value of the employment contract, i.e. 1,712,000.
24.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 11 March 2014
until the date of effective payment.
25.
Equally, with regard to the Claimant’s claim pertaining to flight tickets, on the
basis of the information provided by FIFA Travel and referring to the relevant
terms of the employment contract, the Chamber decided that the Respondent
must pay the Claimant the amount of USD 950 for one flight ticket between
country E and country B, plus interest of 5% p.a. as of the date on which the claim
was lodged, i.e. 11 March 2014 until the date of effective payment.
26.
Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s longstanding jurisprudence in this regard.
27.
Finally, the DRC concluded its deliberations in the present matter by establishing
that any further claim lodged by 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 (Club D), has to pay to the Claimant, within 30 days
from the date of notification of this decision, outstanding remuneration in the
amount of 610,000 plus 5% interest p.a. as from 5 June 2013 until the date of
effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days from the date of
notification of this decision, compensation for breach of contract in the amount of
1,712,000 plus 5% interest p.a. as from 11 March 2014 until the date of effective
payment.
4.
The Respondent has to pay to the Claimant, within 30 days from the date of
notification of this decision, USD 950 as flight tickets plus 5% interest p.a. from 11
March 2014 until the date of effective payment.
5.
In the event that the amounts due to the Claimant in accordance with the
aforementioned numbers 2., 3. and 4. are not paid by the Respondent within the
Player A, country B / Club C (Club D), country E
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stated time limits, 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 is rejected.
7.
The Claimant is directed to inform the Respondent 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 B / Club C (Club D), country E
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