Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2013,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Takuya Yamazaki (Japan), member
Essa M. Saleh Al-Housani (UAE), member
Theodoros Giannikos (Greece), member
on the claim presented by the player
D, from country A,
as Claimant
against the club
Club X, from country U
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 August 2008, the country U club, club X (hereinafter: the Respondent), and the
country A player, D (hereinafter: the Claimant), concluded an employment contract
(hereinafter: the contract) valid from 1 August 2008 until 30 June 2011.
2.
According to the annexe of the contract, the Claimant was entitled to receive a monthly
salary of USD 45,000.
3.
On 1 July 2009, the Claimant was apparently loaned to the country U club, club Y
(hereinafter: club Y), until 30 June 2010.
4.
On 16 September 2010, the Claimant lodged a claim against the Respondent before FIFA,
requesting the amount of USD 540,000 corresponding to twelve monthly salaries of
USD 45,000 each, for the period between July 2010 and June 2011.
5.
In this regard, the Claimant explained that on 1 July 2010, after the expiry of the loan
agreement with club Y, he returned to the Respondent, with which he still had a valid
contract until 30 June 2011. However, the Respondent allegedly forbid him to attend the
trainings explaining that his services were no longer required.
6.
Furthermore, the Claimant held that the Respondent informed him by means of a letter
dated 16 August 2010, that, in case he signs a contract with another football club before
the transfer window closes on 31 August 2010, part of his salary would be paid by the
Respondent.
7.
Finally, the Claimant held having informed the Respondent by means of a letter dated
3 September 2010, that he would immediately terminate his contract and asked the
Respondent to fulfil all its financial obligations in the amount of USD 540,000.
8.
On 17 January 2011, the Claimant signed a new employment contract with the country A
club, club Z, valid until 31 May 2011. According to this contract, the Claimant was entitled
to receive a monthly remuneration of EUR 7,000.
9.
Despite having been invited to do so, the Respondent did not provide its comments.
*****
Player D, from country A / Club X, from country U
2
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 16 September 2010. Consequently,
the edition 2008 of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to
the matter at hand (cf. art. 21 par. 2 and 3 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 lit. b
of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a country player
and a club.
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 (edition 2012), and
considering that the present claim was lodged on 16 September 2010, the edition 2009 of
the 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. The members of the Chamber
started by acknowledging that the parties had signed an employment contract valid from
1 August 2008 until 30 June 2011.
5.
Subsequently, the Dispute Resolution Chamber noted that the Respondent, for its part,
failed to present its response to the claim of the Claimant, in spite of having been invited
to do so. In this way, so the DRC, the Respondent renounced its right to defence and, thus,
accepted the allegations of the Claimant.
6.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documents already on file; in other words, upon the
statements and documents presented by the Claimant.
7.
In line with the above, the Dispute Resolution Chamber took into consideration that
according to the Claimant, after his return from the loan on 1 July 2010, the Respondent
had told him that his services were no longer required and had not allowed him to train
with the team. Therefore, the Dispute Resolution Chamber went on to deliberate whether
the Respondent’s behaviour constitutes a breach of contract.
8.
In this respect, the DRC observed that by forbidding the Claimant to train with the team,
the Respondent in fact prevented him from executing his essential obligation based on the
employment contract without justification.
Player D, from country A / Club X, from country U
3
9.
In view of the above, the Chamber had no alternative than to conclude that the
Respondent had prematurely terminated the pertinent employment contract without just
cause.
10.
Having established that the Respondent is to be held liable for the early termination of the
contractual relationship, the Chamber focussed 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 player under the
existing contract and the new contract, as well as the time remaining on the existing
contract up to a maximum of five years. The Dispute Resolution Chamber recalled that the
list of objective criteria is not exhaustive and that the broad scope of criteria indicated
tends to ensure that a just and fair amount of compensation is awarded to the prejudiced
party.
11.
In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the relevant employment contract between the Claimant and the
Respondent contains a provision by which the parties had beforehand agreed upon an
amount of compensation for breach of contract. In this respect, the DRC observed that the
employment contract at hand does not contain such a clause which could be applied.
12.
As a consequence, the members of the Chamber determined that the prejudice suffered by
the Claimant in the present matter had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. In this regard, the Dispute
Resolution Chamber emphasized beforehand that each request for compensation for
contractual breach has to be assessed by the Chamber on a case-by-case basis taking into
account all specific circumstances of the respective matter, as well as the Chamber’s specific
knowledge of the world of football and its experience gained throughout the years.
13.
In the calculation of the amount of compensation due by the Respondent, the Chamber
then turned its 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 essential. The members of the Chamber deemed it important 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 the calculation of the amount
of compensation.
14.
On this basis, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant in
accordance with the contract, as well as the time remaining on the same contract and the
professional situation of the Claimant after the early termination occurred until 30 June
2011. In fact, the Claimant appears to have remained unemployed until 16 January 2011.
15.
According to the documents submitted by the Claimant, it appears that the remaining
value of the contract can be calculated in the amount of USD 540,000 relating to the
player’s financial entitlements. On the other hand, the payments of the new employment
Player D, from country A / Club X, from country U
4
contract concluded between the Claimant and the country Al club, club Z, for a period
from 17 January until 31 May 2011, appears to amount to EUR 28,000.
16.
In sum, the Chamber concluded that the amount of compensation for breach of contract
to be paid by the Respondent to the Claimant is firstly composed of the amount of
USD 540,000 being the reflection of the remuneration due to the player under the
previous contract. Furthermore, taking into account the Claimant’s remuneration of
EUR 28,000 with the new club, club Z, the Chamber considered that the difference of USD
502,532 is to be considered an appropriate and justified amount of compensation to be
awarded to the Claimant. In this respect, the members of the Chamber finally deemed it
imperative to emphasise that the sanctioning nature of the provisions contained in art. 17
of the Regulations cannot be disregarded.
17.
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 claim of the
player by obliging the Respondent to pay the amount of USD 502,532 to the Claimant as
compensation for breach of contract.
*****
Player D, from country A / Club X, from country U
5
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, D, is partially accepted.
2.
The Respondent, Club X, has to pay to the Claimant, D, the amount of USD 502,532,
within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an interest
rate of 5% per year will apply as of expiry of the fixed time limit and the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for its consideration
and a formal decision.
4.
Any further claims lodged by the Claimant, D, are rejected.
5.
The Claimant, D, is directed to inform the Respondent, Club X, 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
Deputy Secretary General
Encl.
CAS directives
Player D, from country A / Club X, from country U
6