Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 February 2012,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Philippe Diallo (France), member
on the claim presented by the player
T,
as Claimant
against the club
A,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 1 July 2009, the country M player, T (hereinafter: the Claimant), and the
country U club, A (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract) valid from 15 July 2009 until 31 May 2010.
2.
The article 3 of the contract established, inter alia, that the Claimant would be
entitled to the remuneration in the amount of EUR 1,250,000, where the sum of
EUR 600,000 was to be paid in advance and the remaining EUR 650,000 divided in
ten equal monthly instalments of EUR 65,000 each.
3.
According to the above-mentioned article, the Claimant was also entitled to six
flight tickets, countries M-U-M “due to the player and his wife and child”, a car
and a furnished apartment.
4.
On 22 March 2010, the Claimant lodged a claim against the Respondent before
FIFA, requesting the total amount of EUR 1,167,440, plus 5% interest p.a. as from
19 January 2010, composed as follows:
- EUR 260,000 as outstanding salaries regarding the months of October,
November and December 2009 as well as January 2010;
- EUR 260,000 as compensation equivalent to four monthly salaries due
until the end of the season 2009/2010, corresponding to the months of
February, March, April and May 2010;
- EUR 14,025 equivalent to five flight tickets as compensation (EUR 2,805
each);
- EUR 633,415 as supplementary compensation for the termination of the
contract without just cause, equivalent to six-month salary as established
in article 337c of the Swiss Code of Obligations;
- Legal costs;
- Sporting sanctions.
5.
In this respect, the Claimant stated having received the first instalment of
EUR 600,000 upon the signature of the contract and only one return flight ticket
to countries M-U amounting to 14,815 which was allegedly equivalent to EUR
2,805. The Claimant submitted a copy of a flight ticket receipt dated 9 July 2009 in
the amount of 14,815.
6.
Furthermore, the Claimant stated that although he fulfilled his contractual
obligations, the Respondent stopped paying his salaries as from October 2009
without any explanation.
7.
In this regard, the Claimant held that, on 7 January 2010, a letter was sent to the
Respondent, by means of which it was given a deadline until 12 January 2010 to
pay the outstanding salaries due until January 2010, letter which remained
unanswered. Instead, according to the Claimant, on 18 January 2010, the
Respondent submitted a proposal of termination of the contract by mutual
agreement, offering three monthly salaries as final settlement, which was refused
by the Claimant.
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8.
Moreover, the Claimant held that on 19 January 2010 the Respondent sent him a
document named “Amicably Contract Termination”, by means of which the latter
stated that “Further to our letter to you, with the Reference Number of
99/NAR/22, dated 18/01/2010 G, therein we have stated the settlement amount
through our meeting with you in the mid of last December 2009, in the presence
of your manager Mr. S, as you have been then informed that your contract has
been amicably terminated. Accordingly, the club shall pay you three months
salary, as a final settlement… and whereas you did not implement the due
performance expected from your side, in serving the team and you have refused
to receive the abovementioned letter, from the Secretary of our First Team, so the
administration has decided to suspend you from participation in the trainings,
with effect from 20/01/2010 G, and you are requested to hand over the car and
evacuate the flat during one week of the same”.
9.
In this respect, the Claimant alleged that, despite the contents of the abovementioned document, he continued to train and to provide his services to the
Respondent.
10.
Additionally, the Claimant affirmed having reminded the Respondent about the
unpaid salaries through a letter dated 2 February 2010, giving the Respondent a
deadline until 8 February 2010 to pay the outstanding remuneration.
11.
Subsequently, the Claimant alleged having sent another letter to the Respondent,
on 11 February 2010, by means of which he took note of the termination of the
contract by the Respondent through the document dated 19 January 2010 (cf.
point I.8) and stated that “should the 19 January 2010 letter in question be
interpreted otherwise than as a unilateral termination of the employment
contract, player T hereby terminates the employment contract for just cause,
based on the breaches of contract committed by Club A.”
12.
In these circumstances, the Claimant held having returned the accommodation
and the car provided by the Respondent, receiving from the Respondent a
document labelled “Acknowledgement of receipt and discharge” dated 21
February 2010. According to the Claimant, he then bought his own flight ticket to
go back to his country.
13.
In this context, the Claimant explained that he would be entitled to receive the
outstanding remuneration until the date of the termination of the contract,
corresponding to the monthly salaries for the months of October, November and
December 2009 as well as January 2010 and the remaining salaries due until the
end of the contract, corresponding to the monthly salaries for the months of
February, March, April and May 2010.
14.
The Claimant held being also entitled to the amount of EUR 14,025 as
compensation, regarding the remaining five flight tickets from M-U-M (EUR 2,805
each) he had not received from the Respondent.
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15.
Finally, with regards to the supplementary compensation claimed, the Claimant
explained that the total remuneration established in the contract would
correspond to at least EUR 1,266,830, being EUR 1,250,000 as salaries and
EUR 16,830 as six flight tickets (6 x 2,805). Therefore, the remuneration equivalent
to six months would correspond to EUR 633,415.
16.
After the closure of the investigation, the Respondent contacted FIFA alleging to
be willing to solve the matter amicably. In this context, the Respondent
recognized having failed to pay the salaries on time and justified the delay
making reference to the economic crisis. The Respondent further informed that
apparently there were outstanding traffic fines that needed to be paid by the
Claimant in a total amount of 11,860, but it did not submit any documents in this
regard.
17.
The Claimant insisted on his previous arguments and denied having ever received
any offer to settle the present dispute between the parties.
18.
Even though the Respondent was invited to submit its final position, the
Respondent did not submit any further comments or evidence.
19.
Finally, the Claimant informed FIFA that he has not engaged into any new
employment contract as from the termination of the present contract until the
end of its contractual period.
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 present matter. In
this respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2008; hereinafter: Procedural Rules) and took note that the
present matter was submitted to FIFA on 22 March 2010, thus after 1 July 2008.
Consequently, the Chamber concluded that the 2008 edition of the Procedural
Rules is applicable to the matter at hand.
2.
Subsequently, the members of the DRC 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 lit. b) of the Regulations on the Status and Transfer of Players (edition
2010), the Dispute Resolution Chamber shall adjudicate on employment-related
disputes between a club and a player of an international dimension. As a
consequence, the Dispute Resolution Chamber confirmed to be competent to deal
with the matter at stake, which concerns an employment-related dispute between
a player and a club.
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3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 27 January 2012 by means of which
the parties were informed of the composition of the Chamber, the member David
Mayebi and the member Essa M. Saleh Al Housani refrained from participating in
the deliberations in the case at hand, due to the fact that the member
Essa M. Saleh Al Housani has the same nationality as the Respondent and that, in
order to comply with the prerequisite of equal representation of club and player
representatives, also the member David Mayebi refrained from participating and
thus the Dispute Resolution Chamber adjudicated the case in presence of three
members in accordance with art. 24 par. 2 of the Regulations.
4.
Furthermore, the members of 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, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2010) and, on the other hand, to the fact that the present claim was
lodged on 22 March 2010. In view of the aforementioned, the Dispute Resolution
Chamber concluded that the 2009 edition of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
the members of the DRC started to acknowledge the facts of the case as well as
the documents contained in the file.
6.
In this respect, the Dispute Resolution Chamber started by acknowledging that it
was undisputed by the parties that, on 1 July 2009, the Claimant and the
Respondent concluded an employment contract valid from 15 July 2009 until 31
May 2010.
7.
Subsequently, the Chamber acknowledged that the Claimant lodged a claim
against the Respondent for the breach of the contract, requesting the payment of
the outstanding remuneration in a total amount of EUR 260,000, corresponding to
the monthly salaries in the amount of EUR 65,000 each for the months of October
2009 until January 2010.
8.
In continuation, the DRC took note that the Claimant requested the remaining
salaries established in the contract as compensation amounting to EUR 260,000,
i.e. salaries regarding February 2010 until May 2010.
9.
In addition, the members of the DRC took note that the Claimant further
requested the amount of EUR 14,025, corresponding to five flight tickets M-U-M
that he would be still entitled to receive.
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10.
Finally, the DRC noted that the Claimant claimed an additional amount of
EUR 633,415 as supplementary compensation for the early termination of the
employment contract without just cause, equivalent to six-month salary as
established in article 337c of the Swiss Code of Obligations as well as legal costs
and sporting sanctions.
11.
In continuation, the DRC took note that the Respondent recognized to have
outstanding salaries towards the Claimant and, therefore, expressed the apparent
wish to settle the matter amicably. Moreover, it took note that the Respondent
alleged that the Claimant had to pay traffic fines regarding the car provided by
the Respondent.
12.
The DRC further considered that the Claimant insisted on his claim, stating that he
did not receive any offer from the Respondent to settle the present dispute.
13.
Finally, the Chamber took note that although the Respondent was invited by FIFA
to present its final position, it failed to do so.
14.
In addition, the members of the Chamber recalled the wording of art. 9 par. 3 of
the Procedural Rules, according to which if no statement or reply is received from
a party before the established time limit expired, a decision shall be taken upon
the basis of the documents already on file.
15.
Having established the aforementioned, the DRC deemed that the underlying
issue in this dispute, considering the claim of the Claimant, was to determine
whether the employment contract had been unilaterally terminated with or
without just cause, and which party was responsible for the early termination of
the contractual relationship in question.
16.
At this point, the members of the Chamber proceeded to establish the date of the
termination of the contract. In this regard, the Chamber acknowledged that it
remained undisputed by the Respondent that, on 11 February 2010, the Claimant
sent a correspondence to the Respondent, by means of which he took note of the
alleged amicable termination of the contract by the Respondent through the
document dated 19 January 2010 (cf. point I.7) and stated that “should the 19
January 2010 letter in question be interpreted otherwise than as a unilateral
termination of the employment contract, T hereby terminates the employment
contract for just cause, based on the breaches of contract committed by Club A.”
17.
In addition, the DRC made reference to the document sent by the Respondent to
the Claimant, on 19 January 2010, named “Amicably Contract Termination”, and
considered that this date cannot be considered as the date of termination of the
contract, since there is no evidence that the parties reached an amicable mutual
termination.
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18.
Conversely, the DRC considered that the Claimant effectively terminated the
contract in writing, on 11 February 2010, after having put the Respondent in
default for outstanding salaries on various occasions, i.e. on 7 January 2010 and
2 February 2010.
19.
In continuation, once established the date of the termination of the contract, the
DRC analyzed whether the termination of the contract was with or without just
cause. In this respect and considering all of the above, the members of the DRC
considered that the Claimant substantiated his claim with enough evidence. On
the other hand, the DRC considered that the Respondent first accepted having
outstanding remuneration in favour of the Claimant and later, once invited to
provide FIFA with its final comments, failed to do so. Therefore, the DRC
considered that the Respondent accepted the allegations of the Claimant.
20.
In this context, the DRC considered that it was undisputed by the Respondent that
it had failed to pay several monthly salaries to the Claimant as from October 2009,
even though reminded by the Claimant regarding the outstanding remuneration,
breaching its contractual obligations.
21.
In view of all the above, the Chamber considered that, in the present case, it is
established that the Respondent seriously violated the terms of the relevant
employment contract by clearly disrespecting its financial obligations for a
relatively long period of time, i.e. from October 2009 until 11 February 2010.
22.
In this regard, the Chamber decided that the Respondent was found to be in
breach of contract, and, in particular, that this breach of contract has reached such
a level that the Claimant, who suffered the breach, was entitled to terminate the
contract unilaterally.
23.
Based on the foregoing, the Chamber concluded that, in line with its wellestablished jurisprudence, by failing to pay the Claimant his monthly salaries for
more than four months, the Respondent breached the contract without just cause
and the Claimant had therefore a just cause to unilaterally terminate the
contractual relationship on 11 February 2010.
24.
Considering all the facts and arguments previously mentioned, the Chamber
reached the conclusion that the Claimant terminated the relevant employment
contract with just cause.
25.
In continuation, the Chamber recalled that the employment contract at the basis
of the present dispute was terminated by the Claimant in reaction to the behavior
of the Respondent that failed to fulfill its contractual obligations for a relevant
period of time. The Claimant undisputedly rendered his services to the Respondent
until 11 February 2010, while the latter failed to pay his salaries as from October
2009.
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26.
Thus, the Dispute Resolution Chamber held that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent must fulfill its obligations
as per the employment contract concluded with the Claimant and, consequently,
pay the outstanding remuneration, which is due to the latter.
27.
At this point, the DRC recalled the argument of the Respondent that the Claimant
allegedly had to pay traffic fines regarding the car provided by the Respondent. In
this respect, the DRC remarked that the Respondent did not submit any
documents in this regard. In this context, the members of the DRC made reference
to art. 12 par. 3 of the Procedural Rules, which stipulates that any party claiming a
right from an alleged fact shall carry the burden of proof, and considered that the
Respondent failed to demonstrate that there were any traffic fines to be paid by
the Claimant.
28.
As a consequence, the Chamber decided that the Respondent is liable to cancel all
outstanding amounts under the relevant employment contract until the date on
which the employment contract was terminated, i.e. until 11 February 2010 (cf.
point I.11 and II.18).
29.
As to the amount of the outstanding remuneration due to the Claimant, the
members of the Dispute Resolution Chamber determined that since the Claimant
offered his services until 11 February 2010, date when he terminated the contract,
the Chamber decided that the Claimant was to receive the amount of EUR
285,535, corresponding to the outstanding remuneration for the period between
the month of October 2009 until 11 February 2010, i.e. four monthly salaries
regarding the months of October 2009 until January 2010 and eleven days salary
regarding the month of February 2010.
30.
In addition, taking into consideration the Claimant’s claim and the Chamber’s
constant jurisprudence in this respect, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. on each of the outstanding monthly
salaries either as from 19 January 2010, as requested by the Claimant, or as from
the day the relevant payment fell due until the date of effective payment.
31.
In continuation and having established that the Respondent is to be held liable for
the early termination of the employment contract with just cause by the Claimant,
the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to any outstanding salaries on the
basis of the relevant employment contract.
32.
In this respect, 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, 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
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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.
33.
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. The Chamber established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
34.
As a consequence, the members of the Chamber determined 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.
35.
The DRC took into account, inter alia, in line with art. 17 par. 1 of the Regulations,
the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract and the professional
situation of the Claimant after the early termination occurred.
36.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the remaining value of the contract after the date of the termination until the
expiry date of the contract, i.e. 12 February 2010 until 31 May 2010. Consequently,
the Chamber concluded that the amount to be considered as the basis for
calculation of the compensation for breach of contract is EUR 234,465,
corresponding to seventeen days salary regarding the month of February 2010 and
three monthly salaries regarding the months of March 2010 until May 2010. In this
regard, the DRC noted that the Claimant remained unemployed after the
termination of the contract until the expiry date of the contract, i.e. during the
period between 12 February 2010 and 31 May 2010.
37.
Moreover, the DRC took into account that the Claimant had not signed any
employment contract with another club since the termination of the contract until
31 May 2010.
38.
Furthermore, the DRC considered the request of the Claimant for five flight tickets
from M-U-M in the total amount of EUR 14,025 as compensation for breach of
contract. In this respect, the DRC noted that the contract did not establish the
amount of each flight ticket. On the other hand, the DRC acknowledged that the
Claimant submitted a receipt of a flight ticket M-U-M amounting to 14,815 dated
9 July 2009. In addition, the members of the DRC acknowledged that it remained
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undisputed by the Respondent that the Claimant paid for his flight ticket to be
able to return to his country after the termination of the contract.
39.
The DRC then decided that, taking into consideration the above and the fact that
the contract was not executed until its end, the Claimant was entitled to receive
the amount of EUR 2,805 regarding one flight ticket that he had to pay himself to
return to his country after the termination of the contract.
40.
Consequently, on the account of all the above mentioned considerations and the
specificities of the case at hand, the Chamber decided that the amount of
EUR 237,270, corresponding to the remaining value of the contract of EUR 234,465
plus the amount of EUR 2,805 regarding the flight ticket, was to be considered
reasonable and justified as compensation for the breach of contract.
41.
Subsequently, the members of the Chamber proceeded to analyze the claim for
supplementary compensation for the breach of the contract, based in article 337c
of the Swiss Code of Obligations, in the amount of EUR 633,415 that would be
equivalent to six-month salary. In this regard, the DRC recalled that it had already
granted a compensation for the breach of the contract and considered the
amount as already sufficient and reasonable. On account of the aforementioned,
the DRC decided that the request for supplementary compensation shall be
rejected.
42.
In addition, in regard to the claimed legal 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
legal expenses.
43.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
***
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, T, is partially accepted.
2.
The Respondent, Club A, has to pay to the Claimant, T, within 30 days as from
the date of notification of this decision, outstanding salaries in the amount of EUR
285,535 plus interest at 5% p.a. until the date of effective payment as follows:
- 5% interest p.a. over the amount of EUR 195,000 as from 19 January 2010;
- 5% interest p.a. over the amount of EUR 65,000 as from 1 February 2010;
- 5% interest p.a. over the amount of EUR 25,535 as from 1 March 2010.
4.
The Respondent, Club A, has to pay to the Claimant, T, compensation for breach
of contract in the amount of EUR 237,270, within 30 days as from the date of
notification of this decision. In the event that this amount is not paid within the
stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
above-mentioned time limit until the date of effective payment.
5.
In the event that the above-mentioned amounts are not paid within the stated
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
6.
The Claimant, T, is directed to inform the Respondent, Club A, 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):
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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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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