Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 July 2012,
in the following composition:
Geoff Thompson (England), Chairman
Alejandro Marón (Argentina), member
Johan van Gaalen (South Africa), member
on the claim presented by the player,
S,
as Claimant
against the club,
P,
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 28 July 2011, the player, S from country M (hereinafter: the Claimant), and
the country R club, Football Club P (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract) valid as from the date of its
signature until 30 June 2014.
2.
In accordance with the contract, the Claimant was entitled to receive the
following net amounts on the 15th day “of the following month for the
previous month”:
-
-
-
From 28 July 2011 until 30 June 2012: EUR 4,200 per month, “in case the
player during the official matches develops into player of the club’s first
senior team”;
From 1 July 2012 until 30 June 2013: EUR 5,000 per month, “in case the
player during the official matches develops into player of the club’s first
senior team”;
From 1 July 2013 until 30 June 2014: EUR 5,000 per month, “in case the
player during the official matches develops into player of the club’s first
senior team”.
3.
Equally, the contract stipulated that the Claimant was entitled to receive the
amount of EUR 300 per month for rent.
4.
On 15 December 2011, the Claimant lodged a claim against the Respondent in
front of FIFA, indicating that the Respondent had not respected its contractual
obligations towards him, although he had fully complied with his obligations
as a football player.
5.
In this respect, the Claimant asserted that he had only received his salary for
the month of July 2011 and that, thereafter, the Respondent had stopped
paying him. Therefore, he had sent a letter to the Respondent on 21
November 2011 requesting the payment of EUR 13,500 until 28 November
2011, an amount corresponding to the rent and salaries payable in September,
October and November 2011. Since no payment had been received until 28
November 2011, the Claimant had sent another letter to the Respondent on 29
November 2011 informing it of his financial situation and stating that “(…) I’m
forced and I decided to leave country R today and to submit the above
mentioned case to the responsible bodies of FIFA (…)”. In this regard, the
Claimant affirmed having left country R on 29 November 2011.
6.
In continuation, the Claimant outlined that he was a starter in seven matches
of the Respondent’s first senior team, however, after his last game the coach
and “club members” pressured the Claimant to accept the termination of his
contract without any compensation allegedly threatening him that should he
not accept the termination, he would encounter “bigger problems”. The
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Claimant further indicated that the Respondent started mobbing him by
making him go to practice with the youth teams of the Respondent and added
that he did not have a working permit from the responsible organisations in
country R as the Respondent did not obtain such permit for him.
7.
On account of all the above, the Claimant referred to art. 13 of the FIFA
Regulations on the Status and Transfer of Players and requested that the
Respondent is ordered to pay to him the amount of EUR 14,100 as outstanding
remuneration, consisting of three monthly salaries of EUR 4,200 each and five
payments regarding rent in the amount of EUR 300, as well as the amount of
EUR 153,600 as compensation.
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 he had concluded an
employment contract with the club, X (from country M), valid as from 19
January 2012 until 19 January 2013, where he is, under the respective
employment contract, entitled to receive a monthly salary of EUR 300.
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 15 December 2011. 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. 1 and par. 2 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 and 2 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, the Chamber 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 28 July 2011 as well as that the claim was
lodged on 15 December 2011, the 2010 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the
documentation contained in the file.
5.
First of all, the members of the Chamber acknowledged that, on 28 July 2011,
the Claimant and the Respondent had concluded an employment contract
valid as from 28 July 2011 until 30 June 2014. As to the financial terms of said
employment contract, the Chamber took note that it had been agreed upon
between the parties that the Respondent would remunerate the Claimant with
a monthly salary of EUR 4,200 as from 28 July 2011 until 30 June 2012 and with
a monthly salary of EUR 5,000 as from 1 July 2012 until 30 June 2014.
Furthermore, the Chamber duly noted that the Respondent would remunerate
the Claimant with the amount of EUR 300 a month for the payment of the
Claimant’s rent.
6.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the amount of EUR 14,100
corresponding to his outstanding remuneration as well as the amount of EUR
153,600 as compensation, asserting that the Respondent had not fulfilled its
contractual obligations towards him. More specifically, the Claimant indicated
that the Respondent had neither paid him his salaries for the months of
August, September and October 2011, nor the amounts payable as rent for the
months of July, August, September, October and November 2011.
7.
Equally, the members of the Chamber noted that, following a notice letter
dated 21 November 2011, in which the Claimant requested the Respondent to
pay him the amount of EUR 13,500 until 28 November 2011, and since
allegedly no payment was made by the Respondent, the Claimant sent another
letter to the Respondent on 29 November 2011 by means of which he
informed the Respondent that he was forced to leave country R due to his
financial situation.
8.
Furthermore, the Chamber observed 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 to its right of
defence and, thus, accepted the allegations of the Claimant.
9.
As a consequence of the preceding 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 on file.
10.
Having taken into consideration the previous considerations, the Chamber
decided that it could be established that the Respondent had seriously
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neglected its contractual obligations towards the Claimant in a continuous and
constant manner, i.e. the Respondent had failed to remunerate the Claimant
for a substantial period of time. Therefore, the Chamber considered that the
Respondent was found to be in breach of the employment contract and that
the breach was of such seriousness that, in line with the Chamber’s longstanding and well-established jurisprudence, the Claimant had a just cause to
unilaterally terminate the contractual relationship with the Respondent on 29
November 2011, having previously put the Respondent in default of payment
of the outstanding amounts.
11.
On account of the above, the Chamber established that the Claimant had
terminated the employment contract with just cause on 29 November 2011
and that, consequently, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
12.
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.
13.
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 i.e. the amount of EUR
14,100, consisting of three monthly salaries of EUR 4,200 each, corresponding
to the months of August, September, October 2011, as well as five payments
regarding the rent of EUR 300 each, corresponding to the months of July,
August, September, October and November 2011.
14.
In continuation, 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.
15.
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.
16.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
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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. In this regard, the Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
17.
Subsequently and prior to assessing the relevant criteria in determining the
amount of compensation due to the Claimant by the Respondent, the
Chamber first of all recalled that the Claimant is claiming the amount of EUR
153,600 as compensation, corresponding to the remaining value of the
employment contract, i.e. eight monthly salaries amounting to EUR 4,200 each
and twenty-four monthly salaries amounting to EUR 5,000 each.
18.
Having recalled the aforementioned, 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 employment contract as well as the time remaining on the same contract,
along with the professional situation of the Claimant after the early
termination occurred. In this respect, the Chamber took into account that the
total salary of the Claimant under the employment contract concluded
between the Claimant and the Respondent amounted to EUR 170,400, payable
in thirty-six monthly installments as from July 2011 until 30 June 2014; the first
twelve salary payments amounting to EUR 4,200 each and the last twenty-four
salary payments to EUR 5,000 each. Furthermore, the Chamber pointed out
that at the time of the termination of the employment contract, the contract
would run for another thirty-two months. Consequently, the Chamber
concluded that the remaining value of the contract as from its early
termination by the Claimant until the regular expiry of the contract amounts
to EUR 153,600 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
19.
In continuation, the Chamber remarked that the Claimant had found new
employment with a club from country M, Club X, as from 19 January 2012 until
19 January 2013. In accordance with the employment contract signed between
the Claimant and Club X, the Claimant was entitled to a monthly salary of EUR
300. Consequently, in accordance with the constant practice of the Dispute
Resolution Chamber and the general obligation of the Claimant to mitigate his
damages, such remuneration under the new employment contract shall be
taken into account in the calculation of the amount of compensation for
breach of contract.
20.
What is more, the Chamber pointed out that for the period of time as from 20
January 2013 until 30 June 2014, the player had not yet concluded any
employment contract. The Chamber considered that this period of time shall
also be taken into consideration when calculating the amount of
compensation for breach of contract, since the Claimant will have the
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opportunity to conclude a new employment contract during said period of
time in order to mitigate his damages.
21.
In view of all of the above, the Chamber decided that the Respondent must
pay the amount of EUR 100,000 to the Claimant, which is considered by the
Chamber to be reasonable and justified amount as compensation for breach of
contract.
22.
As a consequence, the DRC decided that the Respondent is liable to pay the
total amount of EUR 114,100 to the Claimant, consisting of the amount of EUR
14,100 corresponding to the Claimant’s outstanding remuneration at the time
of the unilateral termination of the contract by the Claimant and the amount
of EUR 100,000 corresponding to compensation for breach of contract.
23.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, S, is partially accepted.
2.
The Respondent, Football Club P, 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 14,100.
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 100,000.
4.
In the event that the aforementioned sums are not paid by the Respondent
within the stated time limits, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned time limits and 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.
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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. 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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