Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 May 2012,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
D,
as Claimant
against the club,
A,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 July 2010, the country U player D (hereinafter: player or Claimant) and the
country C club, A (hereinafter: club or Respondent) signed an employment contract
valid as from the date of its signature until 31 May 2011.
2.
In accordance with the employment contract the player was entitled to receive,
inter alia, the total net amount of EUR 20,000 in ten monthly equal installments of
EUR 2,000, as from 31 August 2010 until 31 May 2011.
3.
According to par. 6 of the employment contract the “Player declares that upon
signing of the present agreement, he receives and accepts the Internal Regulations
of the Club and acknowledges that he is fully bound by them”.
4.
Moreover, par. 14 of the contract states that “The Club and the Player hereby agree
that in case the Club plays for any reason during the validity of the Player´s
employment with club A, in the SECOND or Lower Division of the country C League,
the Club has the right to terminate the Player´s contract and the Player shall be free
to be registered to in any Club of his own choice. The Club and/or the Player, in
that event, accepts that such termination is for just cause and shall not be entitled
to any compensation”.
5.
Subsequently, par. 15 of the contract stipulates that “Breach of any of the clauses
of this contract, shall give the right to the innocent party to claim damages from
the other”.
6.
Furthermore, and also on 1 July 2010, the Claimant and the Respondent signed an
agreement, valid as from the date of its signature until 31 May 2011 (hereinafter:
agreement).
7.
In accordance with the agreement, the club had to pay to the player “in addition to
the said contract”, the total net amount of EUR 35,000 in ten monthly installments
of EUR 2,500, as from 31 August 2010 until 31 May 2011, with EUR 5,000 being paid
to the player upon the signing of the contract and a further EUR 5,000 upon the
arrival of the International Transfer Certificate at the Football Association C.
8.
On 4 April 2011, the Claimant formally notified the Respondent of his intentions to
terminate the contract if the Respondent continued to neglect its contractual
obligations. He granted them ten days in order to receive the amount of EUR
36,500.
9.
On 15 April 2011 and as a result of the aforementioned notice remaining
unanswered, the Claimant informed the Respondent of his decision to unilaterally
terminate the contract and to seek redress in front of FIFA.
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10.
On 26 April 2011, the Claimant lodged a claim against the Respondent in front of
FIFA claiming that on 15 April 2011, he was left with no other option but to
unilaterally terminate the employment contract with just cause.
11.
The Claimant submits that ever since having signed the contract he had always
trained and played fulfilling his duties, but the Respondent had persistently failed
to comply with its financial obligations.
12.
In this respect, the Claimant alleges to have only received the total amount of EUR
18,500 as follows: EUR 5,000 in August 2010, EUR 4,500 in September 2010, EUR
2,000 in November 2010, EUR 4,000 in December 2010, and EUR 3,000 in February
2011.
13.
On the basis of the above-mentioned facts, the Claimant requests the payment of
the following amounts, plus 5% interest p.a. to be applied as from the relevant due
dates:
Outstanding salary:
EUR 36,500 (i.e. the total contractual value as from 31 August 2010 until 31 May
2011 of EUR 55,000 minus the EUR 18,500 received)
Compensation:
EUR 4,000 as compensation for the breach of contract committed by the
Respondent.
14.
In reply to the claim, the Respondent rejects the claim and asserts that it has no
further obligations towards him. The Respondent alleges to have paid the Claimant
EUR 29,000 and submits that the Claimant does not mention in his claim the
amount of EUR 10,500 he allegedly received from the Respondent.
15.
Furthermore, the Respondent refers to par. 6 of the contract and submits that
according to the Respondent’s Internal Regulations, “all the players were obliged
to pay 3 monthly salaries in case the Club is graded to the second division”. In this
respect, the Respondent was apparently “graded” in March 2011 and due to the
fact that the Claimant had apparently acknowledged and accepted the
Respondent´s Internal Regulations, the Respondent alleges that the Claimant is
therefore not entitled to claim the salaries for March, April and May 2011.
16.
In addition, the Respondent further holds that the Claimant never returned the car
which was provided to him, allegedly valued at EUR 4,000, and maintains that
according to par. 14 of the contract, and as a result of the Respondent being
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“graded” to the second division, the Claimant is not allowed to claim any
compensation.
17.
Finally, the Respondent alleges that the Claimant, without its permission, signed a
new contract with another team in country C.
18.
Subsequently, and for all the above reasons, the Respondent requests that the
Claimant´s claim be dismissed.
19.
In reaction to the Respondent´s position, the Claimant first and foremost
commented on the Respondent’s allegations regarding the payment of EUR 29,000.
In this respect, the Claimant maintains his initial position, asserting that he only
received the amount of EUR 18,500 from the Respondent, EUR 15,500 between the
months of August and December 2010 and EUR 3,000 in February 2011. The
Claimant does not wish to question the authenticity of the payment receipt
provided by the Respondent, however, he does not consider it to be an attesting
piece of evidence. The payment receipt presented by the Respondent is for the
amount of EUR 10,500, therefore, it would not prove the alleged payment of EUR
29,000. In this respect, the Claimant refers to art. 12 par. 3 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber, according to which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof, thus, it is up to the Respondent to substantiate
and provide documentary evidence with regard to the alleged payment of EUR
29,000.
20.
With respect to the Respondent´s internal regulations and the alleged obligation of
every player to pay the club three salaries in case of suffering relegation, the
Claimant refers to the burden of proof and claims that it was up to the Respondent
to provide any sort of evidence regarding the existence of such a norm.
Furthermore, the Claimant asserts that a professional footballer’s contract carries
an obligation of means and not of results, meaning that the imposition of a fine on
a player for suffering relegation can only be seen as an alteration of the essence of
any employment contract.
21.
Moreover, the Claimant categorically refutes the Respondent´s allegations that he
had failed to return the car. According to the Claimant, he deposited the keys and
the car in the Respondent´s workshop at the same time he terminated the
employment contract.
22.
Furthermore, the Claimant asserts that his claim for compensation for breach of
contract by the Respondent is based on the contractual clause that states “Breach
of any of the clauses of this contract, shall give the right to the innocent party to
claim damages from the other”.
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23.
Finally, the Claimant considers the Respondent´s statement regarding him signing
on with another club without its permission as completely irrelevant. The Claimant
explains that due to the Respondent’s breach of contract without just cause, he was
left with no other option but to unilaterally terminate the employment contract
and therefore, once notifying the Respondent of the contractual termination, he
was free to sign on with another club. Subsequently, on 1 June 2011, the Claimant
signed an employment contract with the country C club, O.
24.
In spite of having been granted the chance to submit its final position in this
matter, no further comments have been submitted by the Respondent.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was submitted to
FIFA on 26 April 2011, thus after 1 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. article 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that, in accordance with art. 24 par. 1 and 2 in conjunction with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, he is competent
to decide on the present litigation, which concerns an employment-related dispute
with an international dimension between a player and a club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he 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 present claim was lodged on 26 April 2011, the 2010
edition of the said Regulations (hereinafter: Regulations) is applicable to the
present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge acknowledged that it was undisputed by the parties
that they signed an employment contract as well as an agreement, both dated 1
July 2010, in accordance with which the player was entitled to receive, inter alia,
the total amount of EUR 55,000 for the period of time between 31 August 2010
and 31 May 2011.
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5.
The DRC judge further noted that the Claimant lodged a claim against the
Respondent maintaining that he had terminated the employment contract with just
cause on 15 April 2011, after previously having put the club in default, since the
Respondent allegedly failed to pay the Claimant’s salaries. In this respect, the
Claimant submits to have only received EUR 18,500 from the Respondent at the
time he terminated the employment contract. Consequently, the Claimant asks to
be awarded payment of outstanding remuneration amounting to EUR 36,500 as
well as 5% interest p.a. as from the relevant due dates and compensation for
breach of contract in the amount of EUR 4,000.
6.
Furthermore, the DRC judge acknowledged that, the Respondent, for its part,
alleges that it has fulfilled all of its contractual obligations towards the Claimant
and, consequently, rejects the claim.
7.
In this context, the DRC judge referred to 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. Therefore, the DRC judge examined the Respondent’s
allegations in light of the aforesaid article and turned his attention to the
documentation on file as well as the argumentation of the Respondent.
8.
In this respect, the DRC judge noted that the Respondent provided one payment
receipt amounting to EUR 10,500 in support of its position that it had fulfilled all of
its obligations towards the Claimant. The DRC judge took into account that the
Claimant did not deny having received such payment, but agreed with the Claimant
that such receipt did not prove that the Respondent had, in fact, fulfilled all of its
financial obligations towards the Claimant. The DRC judge recalled that the
Claimant confirmed having received in total the amount of EUR 18,500 at the time
when he terminated the employment contract. Therefore, the DRC judge concluded
that the Respondent had not provided evidence that it had fully complied with its
contractual obligations towards the Claimant in accordance with art. 12 par. 3 of
the Procedural Rules.
9.
In continuation, the DRC judged noted that, in its defence, the Respondent also
invokes art. 6 of the employment contract in combination with the internal
regulations of the club as well as art. 14 of the employment contract.
10.
In view of the foregoing, the DRC judge recalled the wording of art. 6 and art. 14
of the employment contract. While, according to the Respondent, art. 6 in
combination with the internal club regulations, establishes that all players are
obliged to pay the club the amount corresponding to three monthly salaries, in case
the club is relegated to the second division, art. 14 stipulates that, in this situation,
the club shall also be entitled to terminate the employment contract with the
player, with just cause and without paying him any type of compensation.
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11.
At this stage, whilst referring once more to art. 12 par. 3 of the Procedural Rules,
the DRC judge deemed it fit to point out that the Respondent failed to present a
copy of the relevant internal regulations of the club, in order for the DRC judge to
verify the accuracy of the Respondent’s position with respect to the implication of
art. 6 of the employment contract.
12.
Nonetheless, in this regard, the DRC judge deemed it appropriate to analyse such
clauses in greater detail.
13.
In this respect, the DRC judge came to the conclusion that both art. 6, in
combination with the alleged internal regulations of the club, and art. 14 would be
unilaterally applicable in the event of an unsuccessful sporting performance of the
club. The DRC judge established that these clauses being to the benefit of the club
only, and, thus, having a unilateral character, in addition to the failure of the
Respondent to present documentation corroborating its allegations relating to the
implications of art. 6 of the employment contract, if at all valid, such clauses cannot
be taken into consideration and that the Respondent’s arguments in this
connection must be rejected.
14.
In view of all of the above, the DRC judge concluded that the Claimant had just
cause to terminate the employment contract in the light of the considerable
amount of monthly remuneration having remained unpaid for the services he
rendered and that, thus, the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant on 15
April 2011.
15.
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 DRC
judge focussed his attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the
Claimant is entitled to receive an amount of money from the Respondent as
compensation for the termination of the contract with just cause in addition to any
outstanding payments on the basis of the relevant employment contract.
16.
The DRC judge then reverted to the Claimant’s claim, which includes outstanding
remuneration totalling EUR 36,500. The DRC judge recalled that the Respondent
failed to demonstrate that it had in fact paid the Claimant’s outstanding
remuneration until 15 April 2011 or that it had valid reasons not to pay the said
remuneration to the Claimant for the services he rendered.
17.
Consequently, taking into account the documentation remitted by the Claimant to
substantiate his claim, i.e. the relevant employment contract, and the fact that the
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employment relation between the parties was terminated on 15 April 2011, the
DRC judge decided that the Respondent is liable to pay to the Claimant the amount
of EUR 29,750 in connection with the remuneration due to the Claimant in
accordance with the employment contract until 15 April 2011.
18.
In continuation, the DRC judge focussed his attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent in the case at
stake. In doing so, the DRC judge 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.
19.
In application of the relevant provision, the DRC judge held that he 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 in the event of breach of contract. In this regard, the DRC judge
established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
20.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
until 31 May 2011, taking into account that the player’s remuneration until 15 April
2011 is included in the calculation of the outstanding remuneration (cf. no. II./17.
above). Consequently, the DRC judge concluded that the amount of EUR 6,750
corresponding to the player’s monthly salaries falling due as from the date of
termination, i.e. 15 April 2011, until the end of the contract, i.e. 31 May 2011,
serves as the basis for the final determination of the amount of compensation for
breach of contract.
21.
In this respect and bearing in mind that the Claimant had entered into a new
employment contract on 1 June 2011 only, the DRC judge decided that the entire
remaining value of the contract, corresponding to the player’s remuneration as
from the termination of the employment contract until 31 May 2011, amounting to
EUR 6,750, was to be considered justified as compensation for breach of contract.
22.
For all the above reasons, the DRC judge decided to partially accept the Claimant’s
claim and that the Respondent must pay to the Claimant the amount of EUR 29,750
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as outstanding remuneration and EUR 6,750 as compensation, plus interest of 5%
p.a. as follows:
5% p.a. as of 15 April 2011 over the amount of EUR 29,750;
5% p.a. as of 10 May 2012 over the amount of EUR 6,750.
23.
The DRC judge concluded the deliberations in the present matter by establishing
that any further claims of the Claimant are rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, D, is partially accepted.
2.
The Respondent, Club 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 29,750 plus 5% interest p.a. as of 15 April 2011 until the date of effective
payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract amounting to
EUR 6,750 plus 5% interest p.a. as of 10 May 2012 until the date of effective
payment.
4.
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.
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 remittance is to be made and to notify the DRC judge
of every payment received.
*****
Note relating to the motivated decision (legal remedy):
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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 DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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