Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 May 2011,
in the following composition:
Geoff Thompson (England), Chairman ad interim
Joaquim Evangelista (Portugal), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
B,
as Claimant
against the club,
O,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 11 July 2008, the club, O (hereinafter: the Respondent), and the player, B (hereinafter:
the Claimant), concluded an employment contract (hereinafter: the contract) valid from the
date of signature until 30 June 2010.
2.
In clause 4.1 of the contract, it was stipulated that the monthly salary of the Claimant was
set to the amount of EUR 800, paid out to the Claimant by the Respondent the latest at the
end of each month, twelve months per year. Apart from this salary, the Respondent was
obligated to pay out to the Claimant a Christmas bonus (the amount thereof being equal to
the monthly salary of the Claimant) and an Easter bonus (the amount thereof being half of
the monthly salary of the Claimant), as well as holiday benefit (the amount thereof being
half of the monthly salary of the Claimant).
3.
Furthermore, if the Claimant participated in 50% of the official games for every season, he
should have received EUR 20,000 for every season. The amounts should have been paid one
month after the end of the (national) League (cf. clause 4.2 of the contract).
4.
As other benefits were provided the use of a house as well as of a car (cf. clause 4.3 of the
contract).
5.
In accordance with clause 4.4 of the contract, the Claimant was entitled to receive the total
amount of EUR 77,600 in 14 instalments, as follows:
a) 1st until 6th instalment amounting to EUR 5,000, payable on 30 October,
30 November and 31 December 2008, as well as on 31 January, 28 February and
31 March 2009;
b) 7th instalment amounting to EUR 8,800, payable on 30 April 2009;
c) 8th until 13th instalment amounting to EUR 5,000, payable on 30 October,
30 November and 31 December 2009, as well as on 31 January, 28 February and
31 March 2010; and finally the
d) 14th instalment amounting to EUR 8,800, payable on 30 April 2010.
6.
According to clause 4.7 of the contract, the amounts stated above (clauses 4.1, 4.2, 4.3 and
4.4 of the contract) were to be paid in full and complete to the bank account of the
Claimant, in conjunction with the provisions of Article 14, par. 3.d) of Appendix A.
7.
In accordance with clause 4.12 of the contract, the Claimant was entitled to a paid leave of
absence of four weeks for each twelve months period, of which at least two weeks had to
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be taken consecutively. Additionally, the Claimant was also entitled to one day’s rest each
week.
8.
Moreover, clause 4.11 of the contract stipulates that “in the event of termination of the
contract due to fault of the Club, without prejudice to the specific and minimum provisions
of par. 2 of Article 17 of the Regulations, it is hereby stipulated that the compensation due
to the Player amounts to:
a) During the protected period: as stated in the above paragraph €
b) Outside the protected period: same as the above €“
9.
On the same day, the Respondent and the Claimant also concluded a private agreement,
according to which, except the monies stated in the aforementioned contract, the
Respondent would yield to the Claimant the amounts below:
a) For the season 2008/09, the amount of EUR 90,000 as below:
I. Four instalments of EUR 20,000 due on 10 August and 10 November 2008,
as well as on 10 January and 10 March 2009;
II. One instalment of EUR 10,000 due on 10 May 2009.
b) For the season 2009/10, the amount of EUR 100,000 in five instalments of
EUR 20,000 each, due on 10 September and 10 November 2009, as well as on
10 January, 10 March and 10 May 2010.
10.
On 5 November 2009, the Claimant lodged a claim against the Respondent, asking:
a) All the aforementioned amounts that he had allegedly worked for:
I. From the private agreement, the amount of EUR 20,000 (September 2009);
II. From the contract:
1. two salaries of September and October 2009, this is EUR 1,600;
2. contract instalment of October 2009, this is EUR 5,000.
b) a compensation in accordance with art. 17 par. 1 of the FIFA Regulations on the
Status and Transfer of Players: Taking into consideration the fact that the
termination took place during the protected period and that the terms of clause
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4.11 of the contract regarding the compensation in case of termination due to the
fault of the Respondent referred to the provisions of art. 17 par. 2 of the
Regulations of the Football Federation H, the Claimant consequently requested the
double amount of remaining salaries and instalments, this is EUR 243,600, as set
out below:
I. from the private agreement, four instalments of EUR 20,000 each, this is
EUR 80,000;
II. from the contract:
1. eight salaries from November 2009 until June 2010, this is EUR 6,400;
2. a Christmas bonus amounting to EUR 800;
3. an Easter bonus amounting to EUR 400;
4. a Vacation bonus amounting to EUR 400;
5. Contract instalments of 30 November and 31 December 2009, as well
as 31 January, 28 February, 31 March and 30 April 2010, this is
EUR 33,800.
11.
Even though the Claimant had allegedly been offering his services, the Respondent failed to
pay him the following amounts:
a) EUR 20,000 on 10 September 2009, according to the private agreement;
b) EUR 5,000 on 30 October 2009, according to the contract;
c) EUR 800 on 30 September 2009 for the salary of September 2009;
d) EUR 800 on 30 October 2009 for the salary of October 2009.
12.
In this context, the Claimant explained that on 19 October 2009, he had sent an extrajudicial
notice to the Respondent, requesting to be paid within the next three days, or else he
would exercise all his legal rights, terminating the contract and lodging a claim before FIFA.
13.
Consequently, when the payments of 30 October 2009 (salary and contract instalment)
became due as well, the player stated to have no other option but to terminate the contract
for just cause on 3 November 2009.
14.
Until the date on which the Claimant lodged the claim, there had been no response and no
payment from the Respondent.
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15.
On 3 February 2010, the club, N, and the Claimant concluded an employment contract valid
for the period during 1 February until 30 May 2010.
16.
On 9 March 2010, the Single Judge of the Player´s Status Committee decided that “the
Football Federation R(FFR) is authorised to provisionally register the [Claimant] with its
affiliated club, N, with immediate effect”.
17.
In exchange of providing his services, the N club would pay the Claimant the settled fee for
the services in the second period of championship 2009/10, this is EUR 40,000, payable as
follows:
a) EUR 10,000 payable in advance in maximum three days from the International
Certificate of Transfer arrival;
b) EUR 22,000 payable in four monthly instalments of EUR 5,500 each;
c) EUR 8,000 if the team keeps an unretrogradable place in the (national) first League
in the second period of the 2009/10 championship.
18.
Despite having been invited twice to provide its position to the statements of the Claimant,
the Respondent never answered.
*****
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the
Chamber) 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 5 November 2009.
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Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 b) of the
Regulations on the Status and Transfer of Players (edition 2010), the Dispute Resolution
Chamber is competent to decide on the matter at stake, which concerns an employmentrelated 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 referred, on the one hand, to art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2009 and 2010), and, on
the other hand, to the fact that the present claim was lodged in front of FIFA on 5
November 2009, but that the relevant employment contract at the basis of the dispute was
signed on 11 July 2009. The DRC concluded that 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 Chamber and the applicable regulations having been established,
the Chamber entered into the substance of the matter. The members of the Chamber
started by acknowledging that the parties to the dispute had signed an employment
contract, which was valid from 11 July 2008 until 30 June 2010, as well as a valid private
agreement on 11 July 2008.
5.
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 twice. 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 on 3
November 2009. Therefore, the Dispute Resolution Chamber went on to deliberate whether
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the facts of the case constitute a just cause for the Claimant to prematurely terminate his
employment relationship.
8.
In this respect, the members of the Chamber noted that according to the Claimant, the
Respondent had failed to pay him two monthly salaries and two instalments in the total
amount of EUR 26,600. In particular, according to the Claimant, the salaries of September
and October 2009 totalling EUR 1,600, the instalment of October 2009, based on the
contract, amounting to EUR 5,000, as well as the instalment of September 2009, based on
the private agreement, amounting to EUR 20,000 were outstanding.
9.
Moreover, as it appears from the Claimant´s statement, the Respondent did not react to his
default notice dated 19 October 2009, reason for which the Claimant, by letter dated 3
November 2009, informed the Respondent of the termination of the contractual
relationship.
10.
In view of the above, the Chamber considered that, in the present case, it can be established
that the Respondent violated the terms of the employment contract and of the private
agreement, by failing to remit the salaries without any valid reason during a considerable
period of time.
11.
In this regard, the Chamber concluded that the Respondent´s behaviour constitutes a clear
breach of contract, which, in accordance with its well-established jurisprudence, has reached
such level that the Claimant suffering the breach was entitled to unilaterally terminate his
contractual relationship.
12.
Therefore, the Chamber decided that the Respondent has to pay the outstanding
remuneration in the total amount of EUR 26,600 to the Claimant.
13.
Having established that the Respondent is to be held liable for the early termination of the
contractual relationship, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due consideration
for the law of the country concerned, the specificity of sport and further objective criteria,
including in particular the remuneration and other benefits due to the player under the
existing contract and the new contract, as well as the time remaining on the existing
contract up to a maximum of five years.
The Dispute Resolution Chamber recalled that the list of objective criteria is not exhaustive
and that the broad scope of criteria indicated tends to ensure that a just and fair amount of
compensation is awarded to the prejudiced party.
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14.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the relevant employment contract between the Claimant and the Respondent
contains a provision by which the parties had beforehand agreed upon an amount of
compensation for breach of contract.
15.
In this respect, the DRC took into account the Claimant’s argument, according to which, the
calculation of the compensation should be based on clause 4.11 of the employment
contract. As stated above, the Claimant asked based on said clause the amount of
EUR 243,600 as compensation for breach of contract.
16.
In fact, clause 4.11 refers to the calculation of compensation in case of breach of contract by
the Respondent. However, said clause refers to art. 17 par. 2 of the “Regulations”. The
members of the Chamber deemed it important to highlight that the contract does not
clearly stipulate to which Regulations such clause refers to, i.e. the Regulations of the club,
the FFH, FIFA or even another entity. Consequently, the Dispute Resolution Chamber
unanimously concluded that such clause cannot be applied, i.e. the calculation of the
compensation due to the Claimant cannot be based on clause 4.11 of the contract.
17.
As a consequence, the members of the Chamber determined that the prejudice suffered by
the Claimant in the present matter had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. In this regard, the Dispute Resolution
Chamber emphasized beforehand that each request for compensation for contractual
breach has to be assessed by the Chamber on a case-by-case basis taking into account all
specific circumstances of the respective matter, as well as the Chamber’s specific knowledge
of the world of football and its experience gained throughout the years.
18.
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.
19.
On this basis, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in
accordance with the contract, as well as the time remaining on the same contract and the
professional situation of the Claimant after the early termination occurred until 30 June
2010. In fact, the Claimant appears to have remained unemployed until 31 January 2010.
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20.
According to the documents submitted by the Claimant, it appears that the remaining value
of the contract and the private agreement can be calculated in the amount of EUR 121,800
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 club,
N, for a period from 1 February until 30 May 2011, appears to amount to EUR 32,000.
21.
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 EUR
121,800 being the reflection of the remuneration due to the player under the previous
contract. Furthermore, taking into account the Claimant’s remuneration of EUR 32,000 with
the new club, N, the Chamber considered that the difference of EUR 89,800 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.
22.
Consequently, 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
89,800 to the Claimant as compensation for breach of contract.
23.
In conclusion, the Dispute Resolution Chamber decided to partially accept the claim of the
player by obliging the Respondent to pay the outstanding salaries in the amount of
EUR 26,600, as well as EUR 89,800 as compensation for breach of contract.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The
Respondent,
O,
has
to
pay
to
the
Claimant,
B,
within
30 days as from the date of notification of this decision, the outstanding remuneration in
the amount of EUR 26,600.
3.
The Respondent, O, has to pay to the Claimant, B, the amount of EUR 89,800 as
compensation for breach of contract, within 30 days as from the date of notification of
this decision.
4.
If the aforementioned amounts are not paid within the above-mentioned deadline, interest
at the rate of 5% per year will apply as of expiry of the stipulated time limit and the present
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matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
5.
Any further requests lodged by the Claimant, B, are rejected.
6.
The Claimant, B, is directed to inform the Respondent, O, immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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:
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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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