Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 June 2011,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Takuya Yamazaki (Japan), member
Mario Gallavoti (Italy), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
W,
as Claimant
against the club,
D,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 30 December 2008, the player W from the country B (hereinafter: player or
Claimant) and the club D from country T (hereinafter: club or Respondent) signed
an employment contract valid as from 5 January 2009 until 31 May 2011.
2.
In accordance with this employment contract, the player was to receive inter alia
the following remuneration:
a. As from 5 January 2009 until 31 May 2009:
i. USD 25,000 “cash”;
ii. 5 monthly instalments of USD 16,000 each, falling due on 31 January
2009, 28 February 2009, 31 March 2009, 30 April 2009, and 31 May
2009.
b. As from 1 June 2009 until 31 May 2010:
i. USD 50,000 “cash”;
ii. 10 monthly instalments of USD 16,000 each, falling due as from 31
August 2009 until and including 31 May 2010.
c. As from 1 June 2010 until 31 May 2011:
i. USD 50,000 “cash”
ii. 10 monthly instalments of USD 16,000 each, falling due as from 31
August 2010 until and including 31 May 2011.
3.
On 8 September 2009, the player lodged a claim against the club in front of FIFA
maintaining that he had terminated the employment contract with just cause on 7
August 2009 and that the club is liable to pay compensation for breach of contract.
The player asks to be awarded payment of the following monies:
a. USD 32,000 relating to the monthly instalments that fell due on 30 April
2009 and 31 May 2009;
b. USD 50,000 that fell due in the beginning of the 2009-10 season;
c. USD 3,733 for seven days in August 2009;
d. USD 366,267 as compensation for breach of contract corresponding to the
remaining value of the employment contract;
e. Interest of 5% p.a. as of the due date of the relevant instalments.
4.
In addition, the player asks that the club be sanctioned for breach of contract
during the protected period.
5.
The player explains that, on 25 June 2009, he returned to the country T after his
holidays, in order to resume his duties at the club. As from 13 until 27 July 2009, the
team travelled to country A for a training camp and as he was not allowed to take
part in it, he remained in the country T taking part in the activities of the club’s
youth team. After the team’s return from country A, he was informed by the club
that he could not participate any longer in any training or other activities of the
club.
6.
The player adds that the club had not remitted his salaries for April and May 2009
and he had not received the amount of USD 50,000 that fell due at the beginning of
the 2009-10 season. Therefore, on 28 July 2009, he put the club in default of
payment of these monies.
7.
According to the player, after having received his default notice, the club informed
him during a meeting on 29 July 2009 that it would no longer provide him with
accommodation and a car, in spite of such obligations being included in the
employment contract. Consequently, the same day, he sent another default notice
to the club asking the latter inter alia to give its position in connection with his
contractual situation within 48 hours.
8.
On 30 July 2009, the player sent two letters to the club pointing out that he was
impeded by the club to join the training sessions that day and reiterating his
request to pay the outstanding remuneration and to comment on his contractual
situation with the club.
9.
By correspondence dated 31 July 2009, the club informed the player that he had not
participated in the training in country A between 14 July 2009 and 27 July 2009
without the club’s authorisation and that he had not participated in the club’s
training since 27 July 2009, pointing out that it would start proceedings in front of
FIFA.
10.
Such allegations were contested by the player in writing on 31 July 2009 and after
having sent a reminder correspondence on 5 August 2009, the player informed the
club in writing, on 7 August 2009, that due to the breach of contract by the club he
terminated the relevant employment contract.
11.
The player points out that, on 7 August 2009, he was forced to leave the club’s
accommodation and the club had already issued a flight ticket back to the country B
for that day.
12.
Back in the country B, on 11 August 2009, the player received a letter from the club
dated 6 August 2009, in which the club informed him that it had unilaterally
terminated the employment contract due to the player’s absence from the training
camp in country A and from further training as of 27 July 2009 without the club’s
approval.
13.
On 17 August 2009, the player wrote to the club rejecting the club’s allegations
reminding it that he was repeatedly impeded by the club to attend training and
that it was late in the payment of his monthly salaries.
14.
In light of the above, the player submits that the club clearly acted in breach of the
employment contract and that he was entitled to lawfully terminate the
employment contract on 7 August 2009.
15.
The player considers it irrelevant whether it was the player or the club who first
terminated the employment contract. However, he points out that his notice of
termination had produced immediate effects on 7 August 2009, whereas the club’s
notice of termination had been received by him via DHL on 11 August 2009 only.
16.
He further points out that the club never replied to his default notices and wonders
why the club never notified him to fulfil his contractual duties. In addition, he was
sent back home by the club on 7 August 2009 without any prior discussion or
communication with him.
17.
In reply to the claim, the club submits that it terminated the relevant employment
contract on 6 August 2009 due to the player’s absence without approval from the
training camp between 14 and 27 July 2009 and from training at the club’s facilities
as of 27 July 2009.
18.
The club points out that it notified the player of such unauthorised absences on 31
July 2009.
19.
The club acknowledges that it owes USD 32,000 to the player relating to the April
and May 2009 salaries. However, it rejects the claim of the player relating to the
remaining contractual value, including the USD 50,000 payment for the 2009-10
season, as the contract had been terminated.
20.
On 31 August 2009, the player signed an employment contract with club C (country
B) valid as from 31 August 2009 until 10 December 2010. On 13 January 2010, the
player signed an employment contract with the club A (country B) valid as from 13
January 2010 until 30 May 2010. On 26 May 2010, the player signed an employment
contract with the club N (country B) valid as from 26 May 2010 until 30 November
2010.
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 8 September
2009. 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 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 (editions
2009 and 2010), and considering that the present claim was lodged on 8 September
2009, the 2008 edition of the said regulations (hereinafter: 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. In this respect,
the Chamber acknowledged that the Claimant and the Respondent signed an
employment contract, on 30 December 2008, valid as from 5 January 2009 until 31
May 2011.
5.
The Chamber then reviewed the claim of the Claimant, who maintains that he
terminated the employment contract on 7 August 2009 with just cause at the
Respondent’s fault. Therefore, he asks that the Respondent be ordered to pay
compensation for breach of contract in the amount of USD 366,267 - apart from the
total remuneration of USD 85,733 that had remained outstanding until the date of
termination of the employment contract - as well as interest at the rate of 5% p.a.
6.
The members of the Chamber noted that the Respondent, for its part, rejects the
claim of the Claimant and alleges that it terminated the employment contract on 6
August 2009 due to the alleged absence of the Claimant without the club’s approval
as from 14 July 2009.
7.
In order to be able to establish, first and foremost, as to whether, as claimed by the
Claimant, he had terminated the employment contract with just cause, the Chamber
proceeded with a more detailed analysis of the circumstances surrounding the
present matter, the parties’ arguments as well the documentation on file, bearing in
mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof.
8.
In this sense, the members of the Chamber noted that the Claimant asserted that he
returned to the Respondent after his holidays, i.e. on 25 June 2009, and that this
statement had not been contested by the Respondent, who, thus, has to be
considered to have accepted such allegation.
9.
In continuation, the Chamber took into account that according to the Claimant, the
Respondent had failed to remit his salaries for April and May 2009, totalling USD
32,000, as well as the USD 50,000 instalment that allegedly fell due at the beginning
of the 2009-10 season. Consequently, the Claimant put the club in default of
payment of these monies in writing on several occasions as of 28 July 2009. In this
respect, the members of the Chamber noted that, in the context of its reply to the
claim lodged by the Claimant, the Respondent acknowledged that the April and
May 2009 salaries had remained unpaid, whereas it denied that the USD 50,000
instalment was payable to the Claimant on account of the fact that the employment
contract had been terminated. In this context, the Chamber deemed that, whereas
the employment contract does not indicate any specific due date for payment of the
amount of USD 50,000 for the 2009-10 season, this instalment was considered
payable by the Respondent to the Claimant between 1 June 2009 and 31 July 2009,
in the light of the fact that said instalment was part of the Claimant’s remuneration
for the 2009-10 season and that the first out of the ten monthly salary payments fell
due as from 31 August 2009 only.
10.
The members of the Chamber then turned their attention to the parties’ position
with respect to the Claimant’s non-participation in the club’s activities after his
return from country B to the club in June 2009. From the parties’ respective
positions, it can be concluded that the Claimant had not been present at said
training camp in country A and, subsequently, at the club’s training and other
activities. It was duly noted that according to the Claimant, the Respondent did not
allow him to take part in the training camp in country A as from 13 until 27 July
2009 and that after the team’s return from such training camp, the Respondent
informed him that he could no longer participate in training or any other club
activities. The Chamber took particular note of the fact that, on 30 July 2009, the
Claimant sent two letters to the Respondent pointing out, inter alia, that the club
hindered him to join training sessions. The Respondent has not denied having
received such letters from the Claimant, a copy of which was presented by the
Claimant along with his statement of claim. The Chamber duly noted that by letter
dated 31 July 2009, the Respondent pointed out to the Claimant that he had been
absent from said training camp in country A and from training sessions since 27 July
2009 without the club’s authorisation.
11.
In this respect, the members of the Chamber highlighted that from the
documentation on file it can be noted that the Respondent’s letter of 31 July 2009
was, in fact, the Respondent’s first written default notice to the Claimant, which
was, moreover, sent by the Respondent only after having been put in default by the
Claimant. On account of this circumstance, the members of the Chamber were not
convinced of the argumentation of the Respondent, who did not present any other
documentation relating to its statement that the Claimant had been absent from
the training camp in the country A and, subsequently, from the club’s activities as
from 27 July 2009 without its approval.
12.
For these reasons, the Chamber decided to accept the arguments of the Claimant
and concluded that the Claimant had not been absent from the club’s activities after
his return from country B in June 2009 without the Respondent’s authorisation.
13.
In this context, the members of the Chamber recalled that the Respondent affirms
having terminated the employment contract on 6 August 2009 on the basis of the
aforementioned allegedly unauthorised absence of the Claimant from the club’s
activities.
14.
In continuation, even if the Claimant would have been absent from the club’s
activities without the latter’s authorisation, as alleged by the Respondent, the
Chamber deemed it essential to highlight that due to the fact that the Claimant’s
salary for April and May 2009, as well as the instalment of USD 50,000, had
remained outstanding (cf. point II./9. above), the Claimant would, in fact, have had a
valid reason not to render his services to the Respondent in the pertinent period of
time, i.e. as from mid-July 2009.
15.
On account of the above, the Chamber concluded that the Respondent was actually
already in breach of contract, when it alleges having terminated the employment
contract by means of its correspondence dated 6 August 2009. In this respect, the
Chamber recalled that according to the Claimant he only received the Respondent’s
letter of termination by DHL on 11 August 2009. The Chamber noted in this context
that the Respondent had not commented on such statement and/or presented any
documentation demonstrating another date of receipt of such letter of termination.
16.
Having said this, in the light of the above, in particular, on account of the fact that
the Claimant’s remuneration as of April 2009 had remained outstanding, the
Chamber decided to reject the Respondent’s arguments and to accept the
Claimant’s claim that he terminated the employment contract with just cause on 7
August 2009.
17.
Consequently, the Chamber established that the Respondent is to be held liable for
the early termination of the employment contract with just cause by the Claimant
on 7 August 2009.
18.
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. Taking into consideration
art. 17 par. 1 of the Regulations, the Chamber 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.
19.
The Chamber then reverted to the Claimant’s financial claim, which includes
outstanding remuneration totalling USD 85,733 including the amount of USD
32,000 relating to the Claimant’s salary for April and May 2009, the instalment of
USD 50,000 for the 2009-10 season, as well as the amount of USD 3,733 as salary for
seven days in August 2009.
20.
Taking into account the documentation remitted by the Claimant to substantiate his
claim, i.e. the relevant employment contract, the fact that the employment relation
between the parties is considered terminated as of 7 August 2009 and the
consideration under point II./9. above, the Chamber decided that the Respondent is
liable to pay to the Claimant the amount of USD 85,733 in connection with the
remuneration due to the Claimant in accordance with the employment contract
until 7 August 2009.
21.
Furthermore, taking into consideration the Claimant’s claim, the Chamber decided
to award the Claimant interest at the rate of 5% p.a. as of the day following the
day on which each of the outstanding payments had fallen due.
22.
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.
23.
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.
The Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
24.
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.
25.
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 the new contract in the calculation of the amount of
compensation.
26.
In accordance with the employment contract signed by the Claimant and the
Respondent, which was to run for two more seasons after the breach of contract
occurred, the Claimant was to receive remuneration amounting to USD 366,267
bearing in mind that the instalment of USD 50,000 for the 2009-10 season and seven
days of the August 2009 salary were included in the calculation of the outstanding
remuneration (cf. points II./19. and II./20. above). Consequently, the Chamber
concluded that the amount of USD 366,267 serves as the basis for the final
determination of the amount of compensation for breach of contract.
27.
The Chamber then took due note of the employment situation of the Claimant after
the termination of the employment contract with the Respondent and of the
relevant new employment contracts that he had entered into. It was duly noted
that, on 31 August 2009, the Claimant signed an employment contract with the
club, C, valid as from 31 August 2009 until 10 December 2010 in accordance with
which he was to receive a salary of 2,000, i.e. approximately USD 1,052. On 13
January 2010, the Claimant signed an employment contract with the club A valid as
from 13 January 2010 until 30 May 2010, in accordance with which he was to receive
a salary of 3,000, i.e. approximately USD 1,578. On 26 May 2010, the Claimant
signed an employment contract with the club N valid as from 26 May 2010 until 30
November 2010 in accordance with which he was to receive a salary of 5,000, i.e.
approximately USD 2,630. Hence, the Chamber concluded that on the basis of the
aforementioned new employment contracts the Claimant has received income
amounting to approximately USD 27,878 as from September 2009 until November
2010.
28.
The members of the Chamber took into account that for the period of time
between December 2010 and May 2011 no information was available pertaining to
the employment situation of the Claimant. However, the Chamber highlighted that
during this period of time at least one registration period had been open, during
which time the Claimant obviously had the possibility to further mitigate his
damages.
29.
Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance
with the constant practice of the Dispute Resolution Chamber as well as the general
obligation of the player to mitigate his damages, such remuneration under the new
employment contract(s) shall be taken into account in the calculation of the amount
of compensation for breach of contract.
30.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay not the entire residual value of
the employment contract, but the amount of USD 300,000, which was to be
considered reasonable and proportionate as compensation for breach of contract in
the case at hand.
31.
The Chamber concluded its deliberations in the present matter by rejecting any
further request(s) filed by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, W, is partially accepted.
2.
The Respondent, D, has to pay to the Claimant within 30 days as from the date of
notification of this decision outstanding remuneration of USD 85,733 plus interest
at 5% p.a. until the date of effective payment as follows:
5% p.a. as of 1 May 2009 on the amount of USD 16,000;
5% p.a. as of 1 June 2009 on the amount of USD 16,000;
5% p.a. as of 1 July 2009 on the amount of USD 50,000;
5% p.a. as of 1 September 2009 on the amount of USD 3,733.
3.
The Respondent, D, has to pay to the Claimant compensation for breach of contract
in the amount of USD 300,000 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
above-mentioned time limit until the date of effective payment.
4.
In the event that the amounts due to the Claimant are not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further request filed 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.
*****
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:
Jérôme Valcke
Secretary General
Encl: CAS directives