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
Todd Durbin (USA), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
K,
as Claimant
against the club,
E,
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 8 July 2011, the player, K (hereinafter: Claimant), and the club, E
(hereinafter: Respondent), signed an employment contract (hereinafter:
contract) valid as from the date of its signature until 31 May 2014.
2.
In accordance with the contract, the Claimant was, inter alia, entitled to
receive the following net amounts:
For the 2011/2012 season, the total amount of EUR 1,250,000 payable as
follows:
-
EUR 450,000 payable as “advance annual payment” at the date of the
signing of the contract;
EUR 800,000 payable in 10 equal installments of EUR 80,000, the first one
falling due on 30 August 2011.
For the 2012/2013 season, the total amount of EUR 1,000,000 payable as
follows:
-
EUR 200,000 payable as “advance annual payment” on 1 August 2012;
EUR 800,000 payable in 10 equal installments of EUR 80,000.
For the 2013/2014 season, the total amount of EUR 1,000,000 payable as
follows:
- EUR 200,000 payable as “advance annual payment” on 1 August 2013;
- EUR 800,000 payable in 10 equal installments of EUR 80,000.
3.
Furthermore, art. VI i) of the contract states that “in the event of nonpayment of salaries and/or advance annual payments and/or any other
monetary or beneficiary obligation of the CLUB to the PLAYER exceeds the
total amount of 3 (three) month salary amounts (i.e. total 240.000 Euros), the
Player shall have the exclusive right to unilaterally terminate the contract with
just cause, within 15 days following the receipt of notification to be made by
the PLAYER to the CLUB through public notary, without the need of any court
verdict prior to this termination. In that case the CLUB shall immediately pay
the PLAYER all the monetary obligations, advance annual payments and/or
salaries pending at the date of termination and until 31 st of May 2014 as the
compensation of causing PLAYER’s termination with just cause”.
2/10
4.
On 17 January 2012, the Claimant lodged a claim against the Respondent in
front of FIFA, indicating that the Respondent had paid him the amount of
EUR 450,000 on the occasion of the signing of the contract, but had thereafter
failed to pay him his salaries due on 30 August 2011, 30 September 2011 and
30 October 2011, totaling the amount of EUR 240,000. The Claimant added
that, as a result, he had sent, on 24 November 2011 and in line with the
provision stipulated under art VI i) of the contract, a notification to the
Respondent via public notary in which he requested the Respondent to pay
the outstanding salary in the amount of EUR 240,000 within 15 days. The
Claimant asserted that, since no payment was made, he had, via a letter sent
to the Respondent on 16 December 2011, unilaterally terminated the contract
with just cause. The Claimant added that the monies due to him at the time of
the termination represented four monthly salaries, totaling the amount of
EUR 320,000.
5.
In this respect, the Claimant explained that he unilaterally terminated his
contract with just cause due to his loss of confidence in the Respondent’s
future performance of the contract arising wholly from the Respondent’s
substantial breach of its obligation to pay the Claimant his salaries. The
Claimant further stressed that the Respondent was duly notified of its default.
6.
On account of the above, the Claimant is seeking payment of the amount of
EUR 2,800,000 calculated as follows:
EUR 800,000 related to the basic wage for the season 2011/2012;
EUR 1,000,000 related to the basic wage for the season 2012/2013;
EUR 1,000,000 related to the basic wage for the season 2013/2014.
7.
In addition, the Claimant requests interest over the amounts due, reserves his
right to seek payment of any bonuses due under the contract, claims legal
costs in an amount to be determined at the discretion of the Dispute
Resolution Chamber and is of the opinion that FIFA should consider whether
additional sporting and/or disciplinary sanctions are proportionate.
8.
In spite of having been invited by FIFA to do so, the Respondent did not
present its reply to the Claimant´s claim.
9.
In reply to FIFA´s request, the Claimant indicated that on 30 January 2012, he
had signed an employment contract with the club, P, valid as from 1 January
2012 until 31 December 2013.
3/10
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 took note that the present matter was
submitted to FIFA on 17 January 2012. 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. 1 and par. 2 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 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 (edition 2010), and considering that the contract at the basis of the
dispute was signed on 8 July 2011, while the present claim was lodged on 17
January 2012, the 2010 edition of the aforementioned 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, on 8 July 2011, the
Claimant and the Respondent had concluded an employment contract valid as
from 8 July 2011 until 31 May 2014.
5.
In this regard, the members of the Chamber duly considered the financial
terms of the employment contract at the basis of this dispute. In this respect,
the Chamber took note that it had been agreed upon between the parties that
the Claimant was to receive an “advance annual payment” of EUR 450,000 at
the signing of the contract and two “advance annual payments” of EUR
200,000 each on 1 August 2012 and 1 August 2013. Furthermore, the Chamber
acknowledged that, for the duration of three seasons, the Claimant was to
receive a total yearly salary of EUR 800,000 payable in 10 equal instalments of
EUR 80,000.
4/10
6.
The Dispute Resolution Chamber further acknowledged that, on 17 January
2012, the Claimant lodged a claim in front of FIFA against the Respondent,
stressing that he had unilaterally terminated the employment contract with
just cause on 16 December 2011, due to the fact that the Respondent had not
paid him his salaries for the months of August, September, October and
November 2011. In this respect, the Chamber duly noted that the Claimant was
seeking payment of the amount of EUR 2,800,000 plus interest as well as
compensation for the legal costs incurred.
7.
In this regard, the members of the Chamber noted that the Claimant, on 24
November 2011, had sent a notification to the Respondent via public notary in
which he requested the Respondent to pay the outstanding salaries in the
amount of EUR 240,000 within 15 days. Following this, and since no payment
was made, the Claimant sent a letter to the Respondent on 16 December 2011
terminating the contract with just cause. The Chamber took due note of the
supporting documentation presented by the Claimant in this regard.
8.
Furthermore, the Chamber acknowledged that the Respondent failed to
present its response to the claim of the Claimant, despite having been invited
to do so. In this way, so the Chamber deemed, the Respondent renounced its
right to defence and, thus, accepted the allegations of the Claimant.
9.
Moreover, and as a consequence of the aforementioned consideration, the
Chamber established 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.
10.
In this regard, the Chamber took note, once again, of the statements of the
Claimant who had indicated that he had only received the amount of EUR
450,000 corresponding to the first “advance annual payment”, but that the
salaries due in August, September, October and November 2011 had remained
unpaid. The Chamber recalled that the Claimant had sent a notification via
public notary to the Respondent on 24 November 2011 demanding the
payment of the outstanding monies due to him within a given deadline.
11.
Taken into consideration all the previous considerations, and in absence of any
defence of the Respondent, the Chamber established that the monthly salaries
of August, September, October and November 2011 had not been paid by the
Respondent to the Claimant.
12.
The Chamber then reviewed the claim of the Claimant, who maintained that
he had unilaterally terminated the employment contract with just cause, since
5/10
the Respondent had failed to pay his monthly remuneration during four
months, even after having been put in default through a notarial notification.
On account of the preceding consideration, the Chamber stated that it was
obvious that the Respondent had seriously neglected its contractual
obligations towards the Claimant by failing to pay the Claimant four
consecutive monthly salaries. Therefore, the Chamber considered that the
Respondent was found to be in breach of the contract and that, in line with
the Chamber’s long-standing and well-established jurisprudence, the breach
was of such seriousness that the Claimant had a just cause to unilaterally
terminate the contractual relationship with the Respondent on 16 December
2011.
13.
What is more, reverting to art. VI lit. i) of the employment contract, the
Chamber established that in the light of the preceding considerations, the
Respondent had obviously been in delay for over three months of salary
payments. Furthermore, the Chamber established that the Claimant had duly
put the club in default of its contractual obligations in writing, on 24
November 2011, setting a 15 days’ time limit to remedy such default. Hence,
the conditions set out in art. VI lit. i) of the employment contract have been
fulfilled, as a result of which such article finds application in the matter at
stake.
14.
On account of the above, the Chamber established that the Claimant had
terminated the employment contract with just cause on 16 December 2011 and
that the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
15.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the employment contract
with just cause by the Claimant.
16.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract in accordance with the
general legal principle of “pacta sunt servanda”. Consequently, the Chamber
decided that the Respondent is liable to pay to the Claimant the remuneration
that was outstanding at the time of the termination in the amount of EUR
320,000, i.e. four monthly salaries amounting to EUR 80,000 each
corresponding to the months of August, September, October and November
2011.
17.
In addition, taking into consideration the Claimant’s claim and the Chamber’s
constant jurisprudence in this respect, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. on each of the outstanding monthly
6/10
salaries as from the day the relevant payment fell due until the date of
effective payment.
18.
In continuation and having established that the Respondent is to be held liable
for the early termination of the employment contract with just cause by the
Claimant, the Chamber decided that, taking into consideration art. 17 par. 1 of
the Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to any outstanding salaries on
the basis of the relevant employment contract.
19.
In this context, the Chamber outlined that, in accordance with said provision,
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.
20.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
compensation payable by the contractual parties in the event of breach of
contract. Upon careful examination of the employment contract concluded
between the Claimant and the Respondent, the members of the Chamber took
note that article VI lit. i) provides that “in the event of non-payment of salaries
and/or advance annual payments and/or any other monetary or beneficiary
obligation of the CLUB to the PLAYER exceeds the total amount of 3 (three)
month salary amounts (i.e. total 240.000 Euros), the Player shall have the
exclusive right to unilaterally terminate the contract with just cause, within 15
days following the receipt of notification to be made by the PLAYER to the
CLUB through public notary, without the need of any court verdict prior to this
termination. In that case the CLUB shall immediately pay the PLAYER all the
monetary obligations, advance annual payments and/or salaries pending at the
date of termination and until 31st of May 2014 as the compensation of causing
PLAYER’s termination with just cause”.
21.
The Chamber duly analysed the contents of said clause and acknowledged that
the aforementioned clause provides for the amount of compensation payable
in the event of the termination of the employment contract with just cause by
the Claimant. In this respect, the Chamber acknowledged that said contractual
7/10
clause did not include a precise and specific amount of compensation,
however, it clearly provided for a determinable amount of compensation
payable by the Respondent in the event of breach of the contract with just
cause by the Claimant, which amount corresponds to the remaining value of
the employment contract, which was not considered disproportionate by the
Chamber.
22.
On account of the above, the parties having contractually agreed on the
compensation payable in the event of breach of contract and such
compensation not being deemed disproportionate, the Dispute Resolution
Chamber concluded that the provision contained under article VI lit. i) of the
pertinent employment contract has to be considered as valid and fully
effective, i.e. the amount of compensation provided for in said article shall be
awarded to the Claimant. Furthermore, for these reasons, the Chamber
concurred that any remuneration under the new employment is irrelevant in
the case at hand.
23.
In this regard, and according to the documentation provided by the Claimant
to FIFA, the Chamber established that the remaining value of the relevant
employment contract amounts to EUR 2,480,000 relating to the Claimant’s
financial entitlements under said contract as from December 2011 until May
2014.
24.
Taking into account all of the above, the Chamber decided that the
Respondent has to pay to the Claimant the total amount of EUR 2,480,000 as
compensation for breach of contract.
25.
In addition, as regards the claimed legal expenses, the Chamber referred to
art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the Chamber decided to reject the
Claimant’s request relating to legal expenses.
26.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
*****
8/10
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, K, is partially accepted.
2.
The Respondent, E, 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
320,000 net, plus 5% interest p.a. until the date of effective payment as
follows:
a. 5% p.a. as of 31 August 2011 on the amount of EUR 80,000;
b. 5% p.a. as of 1 October 2011 on the amount of EUR 80,000;
c. 5% p.a. as of 31 October 2011 on the amount of EUR 80,000;
d. 5% p.a. as of 1 December 2011 on the amount of EUR 80,000.
3.
The Respondent has to pay to the Claimant compensation for breach of
contract amounting to EUR 2,480,000 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 aforementioned 30 days’ time limit until the date of
effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned 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.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
9/10
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
10/10