Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
X,
as Claimant
against the club,
Z FC,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 16 July 2007, the country S player, X (hereinafter: player or Claimant), and the
country C club, Z FC (hereinafter: club or Respondent), signed an employment
contract (hereinafter: first contract) valid from the date of signature until 30 May
2008.
2.
According to the first contract, the Claimant was entitled to receive inter alia the
following remuneration:
a. EUR 5,000 upon signature of the contract;
b. EUR 39,000 payable in twelve monthly instalments due on the 1 st day of
the following month;
c. Other benefits, including, amongst others, payment of the player’s rent
(up to EUR 400 monthly) and two economy flight tickets.
3.
The Claimant presented a document dated 2 May 2008 referred to as ‘’contract of
employment’’ (hereinafter: second document) relating to the 2008/2009 season,
as from 1 June 2008 to 30 May 2009, which does not bear any signature. The
total remuneration, according to this document, was EUR 47,000.
4.
In this respect, during the procedure relating to the provisional registration of
the player with the country S club, Y, the Respondent remitted a copy of the
employment contract signed by the club and the player on 2 May 2008, valid as
from 1 June 2008 until 30 May 2009. Said contract provides for a total
remuneration of EUR 26,000, payable in twelve monthly instalments, plus
benefits of supplying a car, paying the rent up to EUR 150 per month and one
flight ticket.
5.
On 27 July 2008, the Claimant notified the Respondent of the unilateral
termination of the employment contract, because the club had allegedly failed to
comply with its contractual obligations.
6.
On that same day, the Claimant lodged a claim against the club in front of FIFA
asking to be awarded payment by the club of:
a. four outstanding monthly salaries of EUR 3,250 each;
b. the reimbursement of two return economy flight tickets of EUR 400 each;
c. compensation for breach of the employment contract in the amount of
EUR 47,000 corresponding to the total remuneration allegedly due under
the second document.
7.
The Claimant insisted that he did not receive a signed copy of the second
document.
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8.
He further stated that the last four salaries as well as the two return flight tickets
due under the first contract remained unpaid, likewise for all payments due
under the second document.
9.
Despite having been invited to do so, the Respondent did not provide FIFA with
its position pertaining to the claim lodged by the player.
10.
On 16 July 2008, the player signed an employment contract with the country S
club, Y, valid from the date of signature until 30 June 2012. In accordance with
said contract, the player is, inter alia, entitled to a gross monthly salary of EUR
2,000.
11.
On 7 October 2008, the Single Judge of the Players’ Status Committee authorised
the Football Association of S (FAS) to provisionally register the player with its
affiliated club, Y, following the refusal of the Football Association C (FAC) to
issue the International Transfer Certificate (ITC) for the player. In this respect, the
player alleges that only as from this point in time did his new club accept to pay
him any remuneration.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 27 July 2008. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: 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 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2010) 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 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
(editions 2009 and 2010), and considering that the present claim was lodged on
27 July 2008, the 2008 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
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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 acknowledged that the Claimant and the Respondent had
signed, on 16 July 2007, an employment contract valid from the date of signature
until 30 May 2008. In addition thereto, the Chamber observed that the Claimant
presented a further document dated 2 May 2008 allegedly valid as from 1 June
2008 until 30 May 2009, indicating a remuneration of EUR 47,000 for the
2008/2009 season.
5.
In continuation, the members of the Chamber noted that the Claimant maintains
that, at the time of the termination of the contract, i.e. 27 July 2008, the club had
failed to pay his monthly salary as from the month of February 2008 as well as
EUR 800 for the costs of his flight tickets. In this respect, the members of the
Chamber took note of the Claimant’s correspondence dated 27 July 2008, by
means of which the Claimant informed the Respondent of the termination of the
employment contract in writing and considered having a just cause to do so.
Consequently, the Claimant asks to be awarded the payment of all outstanding
dues as well as the payment of compensation for breach of the employment
contract in the amount of EUR 47,000 based on the second document.
6.
The Respondent, for its part, failed to present its response to the claim of the
player, in spite of having been invited to do so. In this way, the Chamber
considered that the Respondent renounced its right to defence and, thus,
accepted the allegations of the Claimant.
7.
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.
8.
At this stage, the members of the Chamber deemed important to emphasise that
with regard to the aforementioned document dated 2 May 2008 related to the
2008/2009 season, the copy remitted by the Claimant could not be taken into
consideration, as it does not bear the signatures of the parties and could
therefore not be considered as valid and legally binding. As a result, only the
copy of the document in question provided by the Respondent during the
proceedings regarding the provisional registration of the player, duly bearing the
parties’ signatures, could be taken into consideration by the Chamber in its
analysis of the case at hand.
9.
In this context, the Chamber highlighted that in accordance with art. 12 par. 4 of
the Procedural Rules, the DRC may also consider evidence not presented by the
parties during the proceedings in the case at hand.
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10.
On account of the above, the Chamber established that the Respondent had
failed to pay to the Claimant, at the time the contract was terminated by the
player, i.e. on 27 July 2008, the amount of EUR 13,000 for the salaries of February
to May 2008 as well as the costs for two economy flight tickets, in accordance
with the employment contract for the 2007/2008 season. With regard to the
request for the reimbursement of two economy flight tickets, which the player is
entitled to receive in accordance with the first contract, the investigation carried
out by FIFA revealed that the amount of EUR 800 requested by the Claimant is
not excessive. Equally, in accordance with the remuneration provided for in the
contract concluded for the 2008/2009 season (cf. point I./4. above), the Claimant
was to receive, until 27 July 2008, the total amount of EUR 4,334 as salary for the
months of June and July 2008.
11.
On account of the aforementioned and in line with the legal principle of ‘’pacta
sunt servanda’’, the Chamber decided that the Respondent is liable to pay to the
Claimant the outstanding remuneration as of February 2008 until the termination
of the employment contract on 27 July 2008, totalling EUR 18,134 (i.e. EUR 17,334
for the salaries of February 2008 to July 2008, plus EUR 800 as costs for two
economy flight tickets).
12.
In continuation and on account of the foregoing, the Chamber established that
the Respondent was in breach of contract by failing to remit the Claimant his
remuneration, without any valid reason, as from the month of February 2008.
Consequently, the Chamber decided that the Claimant had just cause to
unilaterally terminate the employment contract on 27 July 2008.
13.
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 focussed its attention on the consequences of such termination. In this
regard, the members of the Chamber determined that the Respondent was not
only to pay the outstanding remuneration to the Claimant, but also to pay
compensation for breach of contract in conformity with art. 17 par. 1 of the
Regulations.
14.
In continuation, 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 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.
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15.
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. In this regard, the Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
16.
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 the 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.
17.
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 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 any new contract in the calculation of the amount of
compensation.
18.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player until 30 May 2009 under the terms of the
employment contracts entered into by the parties to the present dispute, taking
into account that the player’s remuneration due until 27 July 2008 is included in
the calculation of the outstanding remuneration (cf. no. II./11. above).
Consequently, the Chamber concluded that the amount of EUR 21,670 (i.e.
monthly salaries of EUR 2,167 each as from August 2008 to May 2009) serves as
the basis for the final determination of the amount of compensation for breach
of contract.
19.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time,
which would have enabled him to reduce his loss of income. According to the
constant practice of the Dispute Resolution Chamber, such remuneration under a
new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
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20.
The Chamber noted that the Claimant had concluded an employment contract
with the country S club, Y, on 16 July 2008 according to which he would be
entitled to a monthly salary of EUR 2,000. Furthermore, the Chamber took into
account that the Claimant only received an income under the new employment
contract after his provisional registration with his new club in October 2008.
21.
On account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the Respondent must pay the
amount of EUR 5,670 to the Claimant as compensation for breach of contract,
which was considered reasonable and appropriate in the case at hand.
22.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on
the present dispute by deciding that the Respondent has to pay the total amount
of EUR 23,804 to the Claimant, consisting of EUR 18,134 concerning outstanding
remuneration and of EUR 5,670 as compensation for breach of contract.
23.
Finally, the Chamber decided to reject any further request filed by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The Respondent, Z FC, has to pay to the Claimant, X, the amount of EUR 23,804
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 consideration and a formal decision.
4.
Any further request filed by the Claimant, X, is rejected.
5.
The Claimant, X, is directed to inform the Respondent, Z FC, 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. 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:
Markus Kattner
Deputy Secretary General
Encl. CAS Directives
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