Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Ivan Gazidis (England), member
on the claim presented by the player,
G,
as Claimant
against the club,
A,
as Respondent
I.
regarding an employment-related dispute arisen between the parties
Facts of the case
Facts relating to the preliminary issue of competence:
1.
On 23 June 2011, the club, A (hereinafter: club or Respondent), allegedly lodged a
claim against the player, G (hereinafter: player or Claimant), in front of the
country C District Court regarding the termination of the employment contract
and compensation.
2.
On 21 July 2011, the player lodged a claim against the club in front of FIFA
maintaining that the club terminated the employment contract without just cause
and asking to be awarded inter alia compensation for breach of contract.
3.
The club contests FIFA’s competence to deal with the present matter due to lis
pendens and, in this regard, invokes the following:
a. art. 22 lit. b) of the Regulations on the Status and Transfer of Players;
b. the Commentary Regulations for the Status and Transfer of Players;
c. art. 2 of chapter III of the FIFA Manual Players’ Status and Disciplinary
Matters;
d. art. 13 of the employment contract, which reads as follows: “This
Agreement will be governed by the laws of the Republic of country C and
FIFA Regulations or/and FAC [ Football Association C] Regulations” in
accordance with which, according to the Respondent, the parties first and
foremost wished to refer any dispute to country C ordinary courts.
4.
Upon FIFA’s request to present documentation on the current status of the
proceedings in country C, and after initially having responded that the local court
does not issue such documents, the club submitted a document dated 27 October
2011 issued by the country C district court, in which said court “… certified that
the summons with number 2917/2011 between Athletic Union of country C and G
was registered on 23/06/2011 and is still pending before the country C District
Court”.
5.
The Claimant insists that FIFA’s Dispute Resolution Chamber (hereinafter also
referred to as Chamber or DRC) is competent to deal with the present matter and
points out that no documents pertaining to local court proceedings have ever
been served to him. The Claimant asserts that it is evident that the district court of
of country C has not taken any steps whatsoever to advance any proceedings
against him and that the lack of documents from said court indicating any action
taken by the court during the time the case has been before FIFA demonstrates
that lis pendens is no issue in the present dispute.
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6.
The Claimant further points out that the above confirmation of the district court
states nothing more than that a “summons warrant” compiled by the club’s legal
representative is in the possession of the court.
7.
Furthermore, the player emphasizes that the address indicated as that of the
player on the “summons warrant” is an address in country C, however, the club
was well aware that he was already in country P at that time.
8.
The Respondent, for its part, considers that the player was duly informed about
the proceedings in front of the country C district court by means of a fax dated 17
September 2011, which was addressed by the club’s legal representative to the
player’s legal representative informing the latter that the club had initiated legal
proceedings against the player in front of said district court.
9.
The player refutes such position and points out that, in country C, service of legal
documents is done in person by a private process server duly authorized by the
supreme court or, in the case of service abroad, by post in a double-registered
envelope or other means after a court decision has been issued. The player holds
that in any event, the service of documents in country C is recorded in a register
kept by the authorized process servers. The Claimant reiterates that the club was
aware that he was already in country P when it allegedly lodged a claim and,
therefore, he could not have been served personally with such claim.
Furthermore, according to the player, a private law firm sending a fax to another
law firm does not constitute service of documents under country C civil procedure
rules. The player points out that “… the fact that club A has not presented a court
decision on service abroad or even an application for such a decision
demonstrates that the club is not in fact pursuing any claim against Mr. G in
country C …”. Therefore, the Claimant holds that lis pendens does not apply in
the present matter.
10.
In reaction thereto, the Respondent reiterates its previous position and insists,
referring to the documents it presented, that it lodged a claim against the player
at the country C district court on 23 June 2011, i.e. prior to the player having
lodged his claim in front of FIFA. The Respondent adds that the player is “….
aware of the proceedings [at said court], regardless of his incomplete reference
made to a “website of the European Commission” and allegedly illegible
documents, which the club does not consider relevant. Finally, the Respondent
insists that the DRC is not competent to deal with the present matter.
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Facts relating to the substance of the matter:
11.
On 20 August 2010, the Claimant and the Respondent signed an employment
contract valid as from 18 August 2010 until 31 May 2012.
12.
In accordance with art. 3 of the employment contract, during each of the 2010-11
and 2011-12 seasons, the player was to receive the total net amount of EUR
150,000 payable in 10 equal instalments of EUR 15,000 each, as from 1 September
until 1 June.
13.
According to art. 6 of the employment contract, the club has the right to pay the
player’s emoluments with a grace period of 90 days.
14.
On 21 August 2010, the parties signed a “supplementary agreement” valid as
from 19 August 2010 until 31 May 2012, in accordance with which (cf. art. 3)
during each of the 2010-11 and 2011-12 seasons, the player was to receive the
total net amount of EUR 125,000 payable in 10 equal instalments of EUR 12,500
each, as from 1 September until 1 June.
15.
In accordance with the “supplementary agreement” the player was further
entitled to receive inter alia a housing benefit of EUR 1,500 per month (x 12) for
each period as from 1 September and bonuses amounting to EUR 500 net for each
point gained in the country C championship with the player’s participation.
16.
According to art. 7 of the “supplementary agreement”, the club has the right to
pay the player’s emoluments with a grace period of 90 days.
17.
Art. 4 of both contracts stipulates that “The Employer shall be obliged to deduct
and pay on behalf of the Employee his income Tax Obligation and Social
Insurance Contributions.”
18.
Art. 5 (a) of both contracts stipulates that “The Employee undertakes towards the
Employer as follows: That he will be subject to the Control of the Executive
Committee of the Employer and of Trainers working for the Club.”
19.
Art. 10 of both contracts reads as follows: “The Employee shall at all times be
subject to any regulations issued from time to time by the Employer and relating
to the nature of his duties, his obligations in the performance of his duties and his
obligations towards the Employer and generally relating to his services”.
20.
Art. 11 (a) and (b) of both contracts stipulates that “The Employer shall have the
right to terminate the present agreement without prior written notice to the
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Employee or payment in lieu or notice for cases under d. and c. [and] for cases
under a. and b. only after a notice is sent to the Employee: (a) Commit any serious
persistent breach or non-observance of any of tile provision herein contained. (b)
Be guilty of any grave misconduct of willful neglect in the discharge of his duties
hereunder and/or fails to or refuses to follow the directions of his coach/trainer
and/or the directions of the team’s Board of Directors regarding team rules
pursuant to the internal regulations of the team”.
21.
By letter dated 20 April 2011, the Respondent terminated the employment
contract and the “supplementary agreement” with immediate effect. Said letter
refers to the Claimant being sanctioned with a fine of EUR 3,000 for having
refused to sign certain papers for “UEFA” purposes and for having demonstrated
an unprofessional behaviour towards the coach. Furthermore, in accordance with
the letter of termination, the Respondent considered that the Claimant acted in
breach of art. 5(a), art. 10, and art. 11(a) and (b) of both contracts.
22.
On 2 May 2011, the Claimant notified the Respondent of his disagreement with
the contract termination by the Respondent pointing out that the Respondent’s
action constitutes an unlawful termination of the employment contract.
23.
On 21 July 2011, the Claimant lodged a claim against the club in front of FIFA
maintaining that the Respondent terminated the employment contract without
just cause. Therefore, the Claimant asks to be awarded payment of outstanding
remuneration and compensation for breach of contract as follows:
a. EUR 45,000 for three monthly salaries of EUR 15,000 each (payable on 1
April, 1 May and 1 June 2011) under the employment contract;
b. EUR 62,500 for five monthly salaries of EUR 12,500 each (payable on 1
February, 1 March, 1 April, 1 May, and 1 June 2011) under the
“supplementary agreement”;
c. EUR 150,000 for the sporting season 2011-12 under the employment
contract;
d. EUR 125,000 for the sporting season 2011-12 under the “supplementary
agreement”;
e. EUR 19,500 (13 months x EUR 1,500) for housing benefits under the
“supplementary agreement”;
f. EUR 8,500 for outstanding match bonuses during the 2010-11 season (17
points x EUR 500 - the player presented a copy of a report from internet
showing 17 matches under his name;
g. EUR 8,500 estimated loss relating to match bonuses for the 2011-12
season;
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h. EUR 87,000 as compensation for the unlawful termination of the
employment contract during the protected period;
i. 5% interest on each of the outstanding amounts as of the date on which
they had fallen due.
24.
In addition, the Claimant asks that sporting sanctions be imposed on the
Respondent.
25.
The Claimant submits that the reasons put forward by the Respondent in its letter
of termination do not constitute a just cause to terminate an employment
contract.
26.
The Claimant confirms that until the end of 2010 his salaries under both contracts
as well as the housing benefit have been paid.
27.
The Claimant explains that, in March 2011, after the Respondent had ceased to
pay his remuneration in accordance with the “supplementary agreement” falling
due as of 1 February 2011, the Respondent tried to persuade him to sign a waiver
stating that he has no claims for unpaid salaries, which he refused to do.
28.
Subsequently, as from the date on which his remuneration for March 2011 under
both contracts was due, the Respondent ceased all payments to the Claimant.
29.
The Claimant alleges that subsequent to his letter dated 2 May 2011, the
Respondent made him an oral offer to terminate the contracts as from 30 June
2011 and to pay the remainder of his salaries for the 2010-11 season, which offer
he refused in writing on 6 May 2011, while emphasizing in his letter that he was
committed to continue to offer his services to the Respondent.
30.
According to the Claimant, the Respondent then cut off all communication with
him.
31.
The Claimant submits that on 22 June and 4 July 2011 he contacted the
Respondent to inquire about the new season’s schedule indicating his wish to
continue performing his contractual obligations and warning the Respondent that
if it would not reply, he would consider the employment contract to have been
terminated by the Respondent without just cause. The Claimant adds that he did
not receive any reply from the Respondent.
32.
After having been invited to present its comments as to the substance of the
matter in spite of its position as regards competence, the Respondent made the
following statements subsidiarily.
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33.
The Respondent submits that the player failed to follow the instructions of club
officials by not appearing in the offices although having been asked to do so and
by answering in an unprofessional and inappropriate way to the coach and club
staff.
34.
The Respondent denies that it asked the player to sign a waiver and submitted a
copy of the document which was presented to the player, referred to as “Football
Association C – UEFA club licensing and financial fair play regulations – financial
criteria 2011-2012”, which document was necessary for the club’s participation in
UEFA competitions and therefore of utmost importance to the club. According to
the document, the player had the option “not to confirm that the club has paid
all his obligations”.
35.
The Respondent points out that the Claimant’s assumption that the salaries were
payable on the 1st day of each following month is incorrect, as according to art. 6
of the employment contract the club has the right to make payments with a 90
days’ grace period. Therefore, the Claimant’s allegations as regards late salary
payments are incorrect.
36.
The Respondent further emphasizes that all payments have been made to the
Claimant within said 90 days’ period of time. In addition, the Respondent
highlights that the Claimant’s assertion that the Respondent ceased paying his
monthly salary of EUR 12,500 as of 1 February 2011 is incorrect and it presented
some payment receipts signed by the Claimant or on his behalf by an alleged
representative totalling EUR 70,000, which were paid as follows: EUR 12,500 on 21
January 2011, EUR 15,000 on 10 February 2011, EUR 12,500 on 11 March 2011 and
EUR 30,000 on 31 March 2011.
37.
The Respondent deems that the Claimant’s claim for housing costs as of May 2011
must be rejected as he allegedly left the club in April 2011.
38.
Furthermore, the Respondent holds that the claim for outstanding bonus
payments also must be rejected as the website printout may not be accepted as
evidence. In this respect, the Respondent refers to decisions passed by the Court
of Arbitration for Sport (CAS). In addition, according to the Respondent, the
player’s claim for bonuses for the 2011/2012 season is hypothetical and shall be
rejected.
39.
The Respondent further submits that all contractual amounts are gross and not
net in the light of clause 4 of both contracts.
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40.
The Respondent also points out that the Claimant signed an employment contract
with a country P club X as of July 2011 and the new remuneration shall be
deducted from any possible compensation.
41.
The Respondent further deems that the “penalty” of EUR 3,000 was imposed on
the Claimant by the Respondent as a disciplinary measure and does therefore not
fall within the competence of the DRC.
42.
After having received the Respondent’s response as to the substance, the
Claimant presented further unsolicited comments regarding the competence issue
and the substance of the matter.
43.
The Claimant insists that his salary was payable net in accordance with art. 3 of
both contracts.
44.
Furthermore, the Claimant holds that the Respondent never presented any
evidence of his alleged unprofessionalism.
45.
With respect to payments he did receive from the Respondent, the Claimant
points out that he has been unclear in his representation of the facts. As regards
the receipts presented by the Respondent, the Claimant submits that they are
related to arrears from the year 2010 and to his salary for January and February
2011. He explains that the receipt dated 21 January 2011 represents the payment
for November 2010 under the supplementary agreement; the receipt dated 10
February 2011 represents the payment for December 2010 under the employment
contract; the receipt dated 11 March 2011 represents the payment for December
2010 under the supplementary agreement; the receipt dated 31 March 2011
represents the payments for January and February 2011 under the employment
contract.
46.
In its final position, the Respondent mainly further commented on the
competence issue and made some remarks as to the substance.
47.
In particular, the Respondent reiterated its previous position and pointed out that
the Claimant’s final submission does not change the established facts or the legal
situation of the present matter. It considers that the Claimant’s claims must be
rejected as they are without substance, the calculation is flawed and/or
contradictory, e.g. he claims housing benefits for the full season 2011-12 whereas
he admits having left country C in May 2011.
48.
On 27 September 2011, the Claimant signed an employment contract with the
country P club, X, which was terminated by mutual agreement on 2 November
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2011. On 27 September 2011, the Claimant and said country P club X also signed
an agreement in accordance with which a) the effects of the employment contract
were suspended until the registration of the player and b) the remuneration
payable under this contract would accrue from the date of the player’s
registration.
49.
On 21 November 2011, the Dispute Resolution Chamber passed a prima facie
decision regarding the registration of the player with his new club outside of the
registration period.
50.
On 25 November 2011, the player and club X signed a new employment contract
valid as from the date of signature until 30 June 2013, in accordance with which
the player was to receive inter alia a net monthly salary of 28,500 during the
2011-12 season (until 30 June 2012).
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 case at hand. 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). The present matter was
submitted to FIFA on 21 July 2011, 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.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1
of the Procedural Rules states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2010). In accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b) of the aforementioned Regulations, the Dispute
Resolution Chamber would, in principle, be competent to deal with the matter at
stake, which concerns an employment-related dispute with an international
dimension between a country P player and a country C club.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies invoking lis pendens on the basis that the
Respondent had lodged a claim against the Claimant in front of the country C
district court in country C on 23 June 2011, i.e. prior to the Claimant having
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lodged his claim in front of FIFA. In this regard, the Respondent referred to art. 22
lit. b) of the Regulations on the Status and Transfer of Players, the Commentary
Regulations for the Status and Transfer of Players, art. 2 of chapter III of the FIFA
Manual Players’ Status and Disciplinary Matters, and art. 13 of the employment
contract, which reads as follows: “This Agreement will be governed by the laws of
the Republic of country C and FIFA Regulations or/and F.A.C. [Football Association
C] Regulations” in accordance with which, according to the Respondent, the
parties first and foremost wished to refer any dispute to country C ordinary
courts.
4.
The Claimant, for his part, rejected such position and insisted that the Chamber
has competence to deal with the present matter emphasizing that he was not
notified of any legal proceedings allegedly lodged against him by the Respondent
in front the ordinary court in country C.
5.
Prior to proceeding to a closer examination of the statements made by and the
documentation presented by the parties in support of their position relating to
the competence issue, the Chamber deemed it essential to make some preliminary
remarks.
6.
Indeed, the members of the Chamber wished to highlight that if a club or a player
decides to participate in organised football, they accept certain particularities,
including the circumstance that disputes should, in principle, be dealt with by
means of arbitration. In this respect, FIFA puts a lot of effort in providing for a
structured and elaborate dispute resolution system, which has proven to be
efficient and working well. Recourse to arbitration is considered a basic principle
despite the exception contained in art. 22 of the Regulations, which allows players
and clubs to seek redress before a civil court.
7.
It is in the light of this context that any reference of an employment-related
dispute by a player or a club to ordinary courts should be considered.
8.
Having said this, in continuation, the Chamber thoroughly examined all of the
documentation at its disposal as well as the statements made by the parties
involved in the present dispute with regard to the competence issue and came to
the unanimous conclusion that the Dispute Resolution Chamber is competent to
deal with the matter at stake on the basis of the following considerations.
9.
First of all, the members of the Chamber deemed that the Respondent has failed
to provide substantial evidence demonstrating that it actually had lodged a
genuine claim in front of the country C court. That is, the documents presented by
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the Respondent that are referred to as “summons warrant” and “endorsement
claim” hardly allow to identify the substance of the Respondent’s petition.
10.
Furthermore, the Respondent has not contested the Claimant’s claim that, to this
day, the country C court has actually not started any proceedings, exchange of
correspondence or hearing. In this respect, the Chamber noted that the
Respondent has not presented any evidence to the contrary.
11.
Moreover, the Respondent has not refuted the Claimant’s representation as
regards the country C procedure and formalities to be followed with respect to
the notification of summons. In this regard, the Chamber also took into account
that the Respondent has failed to provide any evidence that the Claimant was
duly informed of any pending proceedings in front of the country C court in
accordance with the notification procedure outlined by the Claimant. In this
context, it is important to note that the Respondent was informed in writing by
the Claimant, on 22 June 2011, that he had returned to country P providing the
Respondent with his contact details.
12.
Finally, and in reply to the Respondent’s argument that through art. 13 of the
employment contract (cf. point I./3.d. above) the parties wished to refer any
dispute to country C ordinary courts, the Chamber was eager to emphasise that
this clause, which is drafted in very broad terms, only refers to which would be
the applicable laws governing their employment relationship, and not specifically
to jurisdiction. Such a clause of choice of law, which, moreover, not only refers to
“the laws of the Republic of country C” but also to “FIFA Regulations or/and F.A
C. [Football Association C] Regulations”, cannot be viewed as an expression of the
parties’ intention to submit any disputes between them to country C civil courts or
any other type of country C deciding body. All the more, the Chamber noted that
according to general legal principles, a clause of choice of law does not concern
procedural aspects and in particular matters pertaining to jurisdiction.
Consequently, the Chamber was of the opinion that art. 13 of the employment
contract cannot be considered and construed as a valid clause of competence.
13.
On account of the above, the Chamber rejected the Respondent’s objection and
declared itself competent to decide on the matter at hand between a player and a
club in accordance with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players.
14.
Subsequently, 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,
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on the other hand, to the fact that the present claim was lodged on 21 July 2011
and that the relevant employment contract was signed on 20 August 2010. The
Dispute Resolution Chamber concluded that the 2010 version of the Regulations
on the Status and Transfer of Players (hereinafter: the Regulations) is applicable
to the matter at hand as to the substance.
15.
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 recalled that the Claimant and the Respondent signed an
employment contract on 20 August 2010 valid as from 18 August 2010 until 31
May 2012 and, on 21 August 2010, a “supplementary agreement”, in accordance
with which the player was entitled to receive inter alia a total monthly
remuneration of EUR 27,500 net during 10 months for each season as from 1
September until 1 June. In addition, a clause granting the Respondent a 90 days’
grace period to pay the Claimant’s emoluments was included in both contracts.
16.
The Chamber further acknowledged that according to a contractual clause
inserted in both contracts (cf. art. 11 (a) and (b)) “The Employer shall have the
right to terminate the present agreement without prior written notice to the
Employee or payment in lieu or notice for cases under d. and c. [and] for cases
under a. and b. only after a notice is sent to the Employee: (a) Commit any serious
persistent breach or non-observance of any of tile provision herein contained. (b)
Be guilty of any grave misconduct of willful neglect in the discharge of his duties
hereunder and/or fails to or refuses to follow the directions of his coach/trainer
and/or the directions of the team’s Board of Directors regarding team rules
pursuant to the internal regulations of the team”.
17.
The members of the Chamber subsequently reviewed the claim of the Claimant,
who maintained that, on 20 April 2011, the Respondent unilaterally terminated
the employment contract and the “supplementary agreement” without just
cause. In this respect, the Claimant emphasised that the reasons put forward by
the Respondent in its letter of termination do not constitute a just cause to
terminate an employment contract. In this regard, the Chamber took into account
that, by means of a letter dated 2 May 2011, the Claimant had objected to the
early termination of the employment contract by the Respondent.
18.
Furthermore, the Claimant maintained that the Respondent had failed to pay his
remuneration falling due as from 1 February 2011 on the basis of the
“supplementary agreement” and that, in March 2011, the Respondent tried to
persuade him to sign a waiver stating that he has no claims for unpaid salaries,
which he refused to do. In addition, according to the Claimant, the Respondent
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ceased to pay his salary due in accordance with the employment contract as of 1
April 2011.
19.
In continuation, the Chamber noted that according to the pertinent letter of
termination dated 20 April 2011, the Respondent terminated the employment
contract and the “supplementary agreement” with immediate effect on the basis
that it considered that the Claimant had acted in breach of art. 5 (a), art. 10, and
art. 11 (a) and (b) of both contracts. Moreover, said letter of termination refers to
a fine of EUR 3,000 being imposed on the Claimant for having refused to sign
certain papers and for having demonstrated an unprofessional behaviour towards
the coach.
20.
The Chamber went on examining the answer of the Respondent as to the
substance of the claim. In this regard, the Chamber observed that the Respondent
held that the Claimant failed to follow the instructions of club officials and
behaved in an unprofessional and inappropriate way towards the coach and the
club’s staff. In this respect, the Respondent denied the Claimant’s allegation that
it asked the Claimant to sign a waiver and pointed out that the document that
was presented to the Claimant was necessary for the Respondent’s participation in
UEFA competitions and contained the option for the Claimant “not to confirm
that the club has paid all his obligations”.
21.
In this respect as well as with regard to the contractual clauses referred to by the
Respondent in its letter of termination of 20 April 2011, the members of the
Chamber deemed it appropriate to recall the general principle of burden of proof
stipulated in art. 12 par. 3 of the Procedural Rules, according to which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof,
and pointed out that the Respondent did not submit any documentary evidence
in support of its allegations, i.e. in support of the allegation that the Claimant
would have acted in breach of art. 5 (a), art. 10, and art. 11 (a) and (b) of both
contracts and, in particular, that the Claimant had shown an unprofessional and
inappropriate conduct towards the Respondent. The Chamber was eager to
underline that the Respondent failed to present proof of any previous warnings
addressed to or disciplinary proceedings against the Claimant. What is more, in its
defense, the Respondent has not even claimed to have previously warned the
Claimant or opened disciplinary proceedings against him. In this context, the
members of the Chamber highlighted that even the fine of EUR 3,000 was
imposed upon the Claimant by the Respondent in the letter of termination only.
22.
Regardless of the preceding consideration and referring to the allegations of the
Respondent with respect to the conduct of the Claimant, which were not proven
as stated above, the members of the Chamber were eager to emphasise that only
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a breach or misconduct which is of a certain severity would justify 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.
23.
In view of the above, the Chamber was of the unanimous opinion that the
Respondent did not have a valid reason to prematurely terminate the
employment contract with the Claimant on 20 April 2011. Consequently, the
Chamber decided that the Respondent had terminated the employment contract
without just cause.
24.
In this context, on a side note, the members of the Chamber wished to highlight
that from the above, and in particular taking into account the Respondent’s
position pertaining to the Claimant’s alleged breach of certain contractual clauses,
it could be concluded that the Respondent had not respected the procedure
outlined in art. 11 of both contracts. Indeed, in accordance with said art. 11, in the
event of a breach on the basis of letters (a) and (b) of art. 11, which was invoked
by the Respondent in its letter of termination, the Respondent would have had
the obligation to send a prior notice to the Claimant, which the Respondent had
failed to do as established above.
25.
Prior to establishing the consequences of the breach of contract without just
cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the
Chamber held that it had to address the issue of any unpaid remuneration at the
moment the contracts were terminated by the Respondent.
26.
Indeed, according to the Claimant, the Respondent had failed to pay his
remuneration falling due as from 1 February 2011 on the basis of the
“supplementary agreement”. In addition, according to the Claimant, the
Respondent had ceased to pay his salary due in accordance with the employment
contract as of 1 April 2011.
27.
In continuation, the Chamber took into account that the Respondent, for its part,
maintained that the Claimant’s allegations relating to a delay in the payment of
his remuneration are incorrect, in the light of the 90 days’ grace period granted to
the Respondent in accordance with both the employment contract and the
“supplementary agreement”.
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28.
In addition, the Respondent held that, contrary to the Claimant’s assertions, it did
make payments to the Claimant after 1 February 2011 and, to this end, the
Respondent submitted receipts signed by the Claimant or by an alleged
representative of the Claimant. After a careful examination of these receipts, the
members of the Chamber concluded that the receipts presented by the
Respondent refer to “salary” without any further indication as regards the
relevant month.
29.
The Chamber further took into account that the Claimant, on the other hand,
does not contest having received the amounts indicated on said receipts,
however, he submitted that these payments were related to arrears from the year
2010 and to his salary for January and February 2011. In this regard, the Claimant
explained in detail to which contractual obligation each payment/receipt was
related: the receipt dated 21 January 2011 represented the payment for
November 2010 under the “supplementary agreement”; the receipt dated 10
February 2011 represented the payment for December 2010 under the
employment contract; the receipt dated 11 March 2011 represented the payment
for December 2010 under the “supplementary agreement”; the receipt dated 31
March 2011 represented the payments for January and February 2011 under the
employment contract.
30.
Subsequently, the members of the Chamber noted that the Respondent, for its
part, has not contested the Claimant’s analysis of the aforementioned receipts.
31.
Based on the foregoing, the Chamber concluded that, whereas the Respondent
appears to have remitted the Claimant’s salary within the contractual 90 days’
grace period, the Respondent failed to prove that it had indeed paid the
Claimant’s salaries falling due on 1 April 2011, i.e. EUR 15,000 net, on the basis of
the employment contract and as from 1 February 2011 until 1 April 2011, i.e.
totalling EUR 37,500 net, in accordance with the “supplementary agreement”
when it unilaterally terminated the contracts on 20 April 2011.
32.
In addition, the Chamber established that the Respondent failed to submit any
evidence that it had paid the amount of EUR 8,500 to the Claimant relating to
bonuses for matches played during the 2010-11 season, when it unilaterally
terminated the contracts on 20 April 2011. In this regard, the Chamber noted that
the Respondent rejected the Claimant’s claim relating to bonuses in the amount
of EUR 8,500 for matches played on the basis that the document presented by the
Claimant in support of his petition, i.e. a website printout, could not be accepted
as evidence. However, the members of the Chamber duly noted that the
Respondent has, in fact, not contested that the Claimant actually participated in
those matches nor that he is entitled to such bonuses. Instead, the Respondent
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merely relied on its statement that the document presented by the Claimant was
not acceptable as evidence. In the light of these circumstances, the Chamber could
not agree with the Respondent’s viewpoint that the Claimant’s claim pertaining
to EUR 8,500 as bonus for matches played should be rejected.
33.
As regards the Claimant’s claim relating to the estimated loss of EUR 8,500 for
bonuses for the 2011-12 season, the members of the Chamber stressed that the
payment and the amount of such bonuses are linked to matches to be played in
the future, i.e. after the termination of the relevant contracts, and, therefore, are
fully hypothetical. Consequently, the Chamber accepted the Respondent’s
argument in this respect and decided to reject such claim.
34.
Furthermore, the Chamber highlighted that it could not take into consideration
the fine of EUR 3,000, since it was imposed upon the Claimant by means of the
pertinent letter of termination only and no evidence of any disciplinary
proceedings against the Claimant was presented by the Respondent in this
connection.
35.
The Chamber went on to examine the parties’ conflicting position with respect to
the fact as to whether the Claimant’s financial entitlements under both the
employment contract and the “supplementary agreement” are net or gross
amounts. The Respondent held that the amounts were to be considered gross
amounts on the basis of art. 4 of both contracts, which reads as follows: “The
Employer shall be obliged to deduct and pay on behalf of the Employee his
income Tax Obligation and Social Insurance Contributions.” However, the
members of the Chamber stressed that the contractual clauses of both contracts
dealing with the Claimant’s monthly salary, i.e. art. 3 of both contracts, as well as
the contractual clause relating to the bonus payment contained in art. 6 j) of the
“supplementary agreement” unequivocally indicate that the relevant amounts are
net. What is more, the amounts indicated on the receipts presented by the
Respondent (cf. numbers II./28 and II./29. above) clearly correspond to the net
amounts contained in the contracts. For these reasons, the Chamber rejected the
Respondent’s argument and established that the amounts claimed to be
outstanding by the Claimant were payable net.
36.
On account of all of the above, the Chamber established that on the moment that
the Respondent unilaterally terminated the employment contract, i.e. on 20 April
2011, the Claimant’s salary that fell due as from 1 February 2011 until 1 April 2011
under the “supplementary agreement”, totalling EUR 37,500 net, as well as the
salary that fell due on 1 April 2011 in accordance with the employment contract,
i.e. EUR 15,000 net, and the amount of EUR 8,500 net as bonuses had not yet
been paid to the Claimant for his services rendered.
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37.
Hence, the Dispute Resolution Chamber held that, bearing in mind the
contractual 90 days’ grace period, the total amount of EUR 61,000 net for services
rendered had fallen due on 20 April 2011, i.e. at the moment the Respondent
unilaterally terminated the employment contract and the “supplementary
agreement”. Consequently, the Chamber decided that, in virtue of the principle
pacta sunt servanda, the Respondent is liable to pay the amount of EUR 61,000
net to the Claimant for services rendered prior to the termination of the pertinent
contracts.
38.
Furthermore, taking into account the Claimant’s petition and the Chamber’s
longstanding and constant jurisprudence in this regard, the Chamber determined
that the Respondent has to pay 5% interest p.a. in this context bearing in mind
the relevant dates of payment of the contractual remuneration as well as the 90
days’ grace period contained in the contracts.
39.
Having established the above, the Chamber turned its attention to the question
of the consequences of the unilateral termination of the contracts by the
Respondent without just cause on 20 April 2011.
40.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant is entitled to receive compensation from the Respondent for
the termination of the contracts with just cause in addition to the
aforementioned amount of EUR 61,000 net on the basis of the relevant
employment contracts.
41.
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 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.
42.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contracts contain 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 members of the Chamber assured themselves that no such
compensation clause was included in the employment contracts at the basis of the
matter at stake.
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43.
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. In this regard, the
Dispute Resolution Chamber emphasised 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.
44.
In order to estimate the amount of compensation due to the Claimant in the
present case, the members of the Chamber first 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
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.
45.
In accordance with the contracts signed by the Claimant and the Respondent,
which were to run for thirteen months more, i.e. until 31 May 2012, after the
breach of contract occurred, the Claimant was to receive remuneration
amounting to EUR 349,500. Consequently, the Chamber concluded that the
amount of EUR 349,500 serves as the basis for the final determination of the
amount of compensation for breach of contract.
46.
The Chamber then took due note of the employment situation of the Claimant
after the termination of the contracts with the Respondent and of the relevant
new employment contract that he had entered into. It was duly noted that, on 25
November 2011, the player and the club, X, signed a new employment contract,
the previous employment contract between these parties having been terminated
after previously having been suspended, valid as from the date of signature until
30 June 2013, in accordance with which the player was to receive a net monthly
salary of 28,500, i.e. approximately EUR 6,710, during the 2011-12 season until 30
June 2012. Consequently, the members of the Chamber established that the value
of the new employment contract concluded between the Claimant and club X for
the period as from December 2011 until 31 May 2012 appears to amount to EUR
40,260.
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47.
Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance
with the constant practice of the Dispute Resolution Chamber as well as the
general obligation of the player to mitigate his damages, such remuneration
under the new employment contract(s) shall be taken into account in the
calculation of the amount of compensation for breach of contract.
48.
Referring to other objective criteria to be taken into account, what is legitimate
under art. 17 par. 1 of the Regulations, the Chamber was eager to point out that
the player, albeit having formally protested against the termination of the
contracts, appears to have returned to country P immediately after the
termination of the employment relationship with the Respondent. In addition,
the Chamber took into account that during the execution of the contracts,
bearing in mind the contractual 90 days’ grace period though, the Respondent
appears to have fulfilled its financial obligations towards the Claimant. The
members of the Chamber deemed that they had to take these circumstances into
consideration in the calculation of the amount of compensation for breach of
contract.
49.
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’s claim and that the Respondent must pay the amount of EUR 145,000,
which was considered reasonable and proportionate as compensation for breach
of contract in the specific case at hand.
50.
In conclusion, the Dispute Resolution Chamber decided that the Respondent has
to pay EUR 61,000 net to the Claimant relating to the contractual remuneration
due on the basis of services rendered until the unilateral termination of the
relevant contracts as well as EUR 145,000 as compensation for the unjustified
breach of the contracts by the Respondent.
51.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant is rejected.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, G, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, A, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, outstanding remuneration in the amount of EUR
61,000 net, plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 1 July 2011 on the amount of EUR 15,000;
b. 5% p.a. as of 1 May 2011 on the amount of EUR 12,500;
c. 5% p.a. as of 1 June 2011 on the amount of EUR 12,500;
d. 5% p.a. as of 1 July 2011 on the amount of EUR 12,500;
e. 5% p.a. as of 1 August 2011 on the amount of EUR 8,500.
4.
The Respondent has to pay to the Claimant compensation for breach of contract
amounting to EUR 145,000 within 30 days as from the date of notification of this
decision. In the event that this amount of compensation is not paid within the
stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the 30
days’ time limit until the date of effective payment.
5.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent 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.
Any further request filed by the Claimant is rejected.
7.
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.
*****
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Note relating to the motivated decision (legal remedy):
According to art. 63 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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