Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 April 2012,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Brendan Schwab (Australia), member
Damir Vrbanovic (Croatia), member
Todd Durbin (USA), member
on the claim presented by the player
A,
as Claimant
against the club
M,
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
On 10 January 2009, the country B player, A (hereinafter: the Claimant), and the
country U club, M (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract) valid from 10 January 2009 until 10 January
2012.
2.
The parties also concluded a “supplement agreement on sanctions and extra
payments” (hereinafter: the agreement), with the same validity.
3.
According to clause 2.1 of the agreement, the remuneration of the Claimant for
his services was as follows:
-
USD 400,000 for the season 2009;
USD 420,000 for the season 2010;
USD 440,000 for the season 2011.
4.
On 28 October 2009, the Claimant lodged a claim against the Respondent in front
of the Dispute Resolution Chamber (DRC) requesting the payment of his salaries
from September 2009 until January 2012, i.e. the total amount of USD 992,000.
5.
In particular, the Claimant explained that on 20 June 2009, the Respondent had
informed him about its interest to transfer him. Equally, the Claimant had
allegedly also been informed that he was no longer allowed to train with the
team. Instead, he would receive an individual training schedule. The player made
clear that he did not agree to this change.
6.
However, in a private discussion, the Sport Director of the Respondent had
allegedly proposed to decrease the Claimant's salary due to the financial crisis. The
Claimant had also refused this proposal. Subsequently, the Respondent provided
the Claimant with a training schedule, which included three sessions a day, from
nine until seven o'clock. The Claimant allegedly followed said training schedule
during four months, i.e. from 20 June 2009 until 24 October 2009, without being
able to train with the team. As a consequence, the administration of the country B
national team, which became aware of the Claimant's situation, decided not to
call him up until the situation with the Respondent was resolved.
7.
In addition, on 19 October 2009, the country U Premier League informed the
Claimant that he had not been registered with the Respondent and that
therefore, he was not allowed to take part in any game of the club.
8.
With regard to the payment of his salaries, the Claimant stated that the
Respondent delayed each payment as from June 2009. However, the last salary
received by the Claimant was August 2009.
9.
Finally, on 23 October 2009, the Claimant sent a letter to the Respondent,
declaring the termination of the contract due to the breach committed by the
Respondent.
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10.
On 30 June 2010, the Claimant provided a letter signed by “a group of coaches
who worked in the FC “Club D” and saw all the outrageous violations of the
contract [….]”. In said letter, the coaches reinforced the Claimant's statements and
explained that the Respondent had rejected their proposal to let the Claimant
train with the youth team, instead of the individual training, since it allegedly was
the Respondent's intention to “get rid of the player in the shortest terms”. The
coaches also stated that the Respondent “unlawfully fire people, suspend from
work, and pushed on them, physically as well (in case with [the player])”.
11.
With regard to his contractual situation after the termination of his labour
relationship with the Respondent, the Claimant provided FIFA with a copy of his
employment contract dated 22 January 2010 concluded with the country R club,
Club Y, valid from 22 January 2010 until 31 December 2011.
12.
In exchange of providing his services, the Claimant was entitled to receive a
monthly salary of 500,000.
13.
Despite having been invited to do so, the Respondent did not provide any
comments.
*****
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this
respect, it took note that the present matter was submitted to FIFA on 28 October
2009. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; 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 Dispute Resolution 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 2010), it 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 Regulations on the Status and Transfer of Players
(edition 2010), and considering that the present claim was lodged on 28 October
2009, 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.
4.
The competence of the Dispute Resolution Chamber and the applicable
regulations having been established, the members of the Chamber entered into
the substance of the matter. They started by acknowledging that, on 10 January
2009, the parties had signed an employment contract valid from 10 January 2009
until 10 January 2012.
5.
Subsequently, the DRC 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 Chamber, 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 members of the Chamber took into consideration that
the Claimant stated having terminated his contractual relationship with the
Respondent by a letter dated 23 October 2009. Therefore, the Dispute Resolution
Chamber went on to deliberate whether the facts of the case constitute a just
cause for the Claimant to prematurely terminate his employment relationship.
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8.
In this respect, the Chamber paid due consideration to the fact that, in accordance
with an official statement from the country U Premier League dated 19 October
2009, the Claimant had not been registered with the Respondent.
9.
In continuation, the DRC acknowledged that according to the Claimant, the last
paid salary was August 2009. As a consequence, the Dispute Resolution Chamber
concluded that the salary for September 2009 had not been paid.
10.
Furthermore, the members of the Chamber took due note that the Respondent
had apparently excluded the Claimant from any ordinary activity of the club.
11.
In view of all of the above considerations, the DRC came to the conclusion that, in
the present matter, it can be established that the Respondent violated the terms
of the employment contract by not registering the Claimant, by banning him from
the team's activities and by not paying him the salary for September 2009.
12.
In this regard, the Chamber concluded that the Respondent's behaviour
constitutes a clear breach of contract, which, in accordance with its wellestablished jurisprudence, has reached such level that the Claimant suffering the
breach was entitled to unilaterally terminate his contractual relationship.
13.
In the light of the above, the Chamber reached the conclusion that the Claimant
terminated the employment contract with just cause.
14.
Therefore, the DRC decided that the Respondent, in accordance with the general
legal principle of “pacta sunt servanda”, has to pay to the Claimant the
outstanding remuneration in the total amount of USD 33,333 corresponding to
the monthly salary for September 2009.
15.
In continuation, the Dispute Resolution Chamber established that the Respondent,
in accordance with art. 17 par. 1 of the Regulations, is also liable to pay
compensation for damages suffered by the Claimant as a consequence of the early
termination of the contract due to the breach of contract committed by the
Respondent.
16.
Subsequently, the DRC focussed its attention on the calculation of the amount of
compensation in the case at hand. In doing so, 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, as well as the time remaining
on the existing contract up to a maximum of five years.
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17.
In application of the relevant provision, the DRC held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party in the event of breach of contract. In this
respect, the DRC established that no such compensation clause was included in the
employment contract.
18.
As a consequence, the DRC 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. 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, as well as
the Chamber's specific knowledge of the world of football and its experience
gained throughout the years.
19.
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.
20.
On this basis, and in order to evaluate the compensation to be paid by the
Respondent, the Chamber took into account the remuneration due to the
Claimant in accordance with the employment contract, the time remaining on the
same contract, as well as the professional situation of the Claimant after the early
termination occurred until 10 January 2012.
21.
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 959,999
relating to the player's financial entitlements. On the other hand, the
unconditional payments of the new employment contract concluded between the
Claimant and the country R club, Club Y, for a period from 22 January 2010 until
31 December 2011, appears to amount to 11,500,000.
22.
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 959,999, being the reflection of the remuneration due to the
player under the previous contract. Furthermore, taking into account the
Claimant's remuneration of 11,500,000 with the new club, Club Y, the Chamber
considered that the difference of USD 575,000 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.
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23.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the matter at hand, the Chamber decided that the Respondent
must pay the amount of USD 575,000 to the Claimant as compensation for breach
of contract.
24.
In conclusion, the Dispute Resolution Chamber decided to partially accept the
claim of the player by obliging the Respondent to pay the outstanding
remuneration in the amount of USD 33,333, as well as USD 575,000 as
compensation for breach of contract.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, Club M, has to pay to the Claimant, A, within 30 days as from
the date of notification of this decision, the amount of USD 608,333.
3.
If the aforementioned sum is not paid within the above-mentioned deadline, an
interest rate of 5% per annum will apply as of expiry of the fixed time limit until
the date of effective payment, and the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for its consideration and a formal
decision.
4.
Any further requests filed by the Claimant, A, are rejected.
5.
The Claimant, A, is directed to inform the Respondent, Club M, 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. 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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