Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2011,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Jon Newman (USA), member
Thilina Panditaratne (Sri Lanka), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
H,
as Claimant
against the club,
K,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 15 May 2008, the player, H (hereinafter: player or Claimant), and the club, K
(hereinafter: club or Respondent), signed an employment contract (hereinafter:
contract) valid from 1 July 2008 until 30 June 2011.
2.
According to the contract, the player was entitled to receive inter alia the
following monies:
a. September 2008 to June 2009
i. EUR 25,000 due on 30 August 2008;
ii. EUR 125,000 in ten monthly salaries of EUR 12,500 each;
iii. EUR 1,000 per official match taken part in.
b. September 2009 to June 2010
i. EUR 25,000 due on 30 August 2009;
ii. EUR 125,000 in ten monthly salaries of EUR 12,500 each;
iii. EUR 1,000 per official match taken part in.
c. September 2010 to June 2011
i. EUR 30,000 due on 30 August 2010;
ii. EUR 150,000 in ten monthly salaries of EUR 15,000 each;
iii. EUR 1,250 per official match taken part in.
According to art. 4 of the contract, the aforementioned amounts are net and the
monthly salary is to be paid by no later than the 5th of the following month.
3.
On 20 March 2009, the player lodged a claim against the club in front of FIFA
asking:
a. that the contract be declared terminated with just cause in conformity
with article 14 of the Regulations on the Status and Transfer of Players;
b. that the club be obliged to pay the amount of EUR 50,000, including the
outstanding monthly salaries due for the months of September and
October 2008 (2 x EUR 12,500) as well as the amount of EUR 25,000 due on
30 August 2008;
c. that the club be obliged to pay the amount of EUR 25,000 as
compensation for the period from the date of termination of the contract
until the opening of the following transfer period as of which the player
could consider offers from new clubs (salaries of November and December
2008, 2 x 12,500);
d. that the club be obliged to pay compensation to the player for the
difference between his dues under the contract with the club, i.e. EUR
405,000 due between 1 January 2009 and 30 June 2011, and the salaries he
will eventually receive from a future employer.
4.
In this respect, the player submits that he terminated the contract on 5 November
2008 due to the difficult situation in which he found himself because of the
salaries that remained unpaid at that moment in time, i.e. the salaries due for the
months of September and October 2008.
5.
According to the player, he asked orally several times for the due payments to be
made and sent the club a fax in the matter on 14 October 2008 requesting the
payment of the outstanding salary for the month of September (EUR 12,500) as
well as the outstanding amount of EUR 25,000 due on 30 August 2008.
6.
Furthermore, the player maintains that the club told him at the end of the month
of October 2008 that he should not expect to receive any payments and that he
should look for a new club.
7.
Despite having been invited to do so, the club did not provide FIFA with a
position pertaining to the claim lodged by the player.
8.
The player provided FIFA with the contract he signed with the club, M, on 24
November 2008, which was valid from 1 January 2009 until 31 May 2010.
9.
According to the player’s statement, the employment contract he concluded with
the club M was terminated at the end of the 2008/2009 season.
10.
On 31 August 2009, the player signed an employment contract with the club D
valid from 1 September 2009 until 30 June 2010.
11.
The player also provided FIFA with the employment contract he signed with the
club L, on 28 May 2010, and valid from 1 June 2010 until 31 May 2011.
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 20 March 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. art. 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
20 March 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 had
signed, on 15 May 2008, an employment contract valid from 1 July 2008 until 30
June 2011.
5.
The members of the Chamber noted that the Claimant maintains that the club
failed to pay his dues in the total amount of EUR 50,000, which includes the
payment due on 30 August 2008 and the player’s monthly salaries of September
and October 2008. In this respect, the members of the Chamber took note of the
Claimant’s default notice dated 14 October 2008 addressed to the Respondent, as
well as his correspondence dated 5 November 2008, by means of which the
Claimant informed the Respondent of the termination of the contract in writing
and considered having a just cause to do so. Consequently, the Claimant asks to
be awarded the aforementioned amount of outstanding dues as well as the
payment of compensation for breach of the employment contract.
6.
The club, for its part, failed to present its response to the claim of the player, in
spite of having been invited to do so. In this way, so the Chamber, the
Respondent renounced its right to defence and, thus, accepted the allegations of
the Claimant.
7.
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.
8.
As stated above, in accordance with the employment contract, the Respondent
was obliged to pay to the Claimant, at the time the contract was terminated by
the player, i.e. on 5 November 2008, the amount of EUR 25,000 due on 30 August
2008 as well as a monthly salary of EUR 12,500 for the months of September and
October 2008.
9.
Taking into account the documentation presented by the Claimant in support of
his petition, the Chamber concluded that the Claimant had substantiated his
claim pertaining to outstanding salaries with sufficient documentary evidence.
10.
On account of the aforementioned, in particular in view of the considerations
under points II./6. and II./7. above, the Chamber established that the Respondent,
K, failed to remit the payment due to the player on 30 August 2008 as well as his
monthly salaries of September and October 2008, amounting to a total of EUR
50,000.
11.
In continuation and on account of the foregoing, the Chamber established that
the Respondent was in breach of contract by failing to remit the Claimant a
single amount, without any valid reason, from the beginning of the contract until
5 November 2008, date on which the Claimant terminated the contract.
Consequently, the Chamber decided that the Claimant had just cause to
unilaterally terminate the employment contract on 5 November 2008.
12.
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. In this
regard, the members of the Chamber determined that the Respondent was not
only to pay the outstanding remuneration to the Claimant, but also to pay
compensation for breach of contract in conformity with art. 17 par. 1 of the
Regulations.
13.
Taking into account the considerations above, in particular point II./10. the
Chamber decided that the Respondent is liable to pay to the Claimant the
amount of EUR 50,000 corresponding to the outstanding amount due on 30
August 2008, plus the monthly salaries of September and October 2008.
14.
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.
15.
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. 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.
16.
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.
17.
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 any new contract in the calculation of the amount of
compensation.
18.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
until 30 June 2011, taking into account that the player’s remuneration due until 5
November 2008 is included in the calculation of the outstanding remuneration
(cf. no. II./13. above). Consequently, the Chamber concluded that the amount of
EUR 430,000 (i.e. monthly salaries of EUR 12,500 each from November 2008 until
June 2009 for the 2008/2009 season; EUR 25,000 due on 30 August 2009 plus 10
monthly salaries of EUR 12,500 for the 2009/2010 season; and EUR 30,000 due on
30 August 2010 plus ten monthly salaries of EUR 15,000 for the 2010/2011 season)
serves as the basis for the final determination of the amount of compensation for
breach of contract.
19.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time,
which would have enabled him to reduce his loss of income. According to the
constant practice of the Dispute Resolution Chamber, such remuneration under a
new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
20.
The Chamber noted that the Claimant had concluded an employment contract
with the club, M, according to which he would be entitled to a salary of EUR
48,000 from January to May 2009. As for the 2009/2010 season, according to the
employment contract the Claimant concluded with the club D, the Claimant was
entitled to a total remuneration of EUR 52,000. Finally, the Chamber noted that
the Claimant had signed on with the club L 1907 during the 2010/2011 season
and was entitled to a total salary of EUR 44,800 during said period, in accordance
with the relevant employment contract.
21.
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 285,200 to the Claimant as compensation for breach of contract.
22.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on
the present dispute by deciding that the Respondent has to pay the total amount
of EUR 335,200 to the Claimant, consisting of EUR 50,000 concerning outstanding
remuneration and of EUR 285,200 as compensation for breach of contract.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, H, is accepted.
2.
The Respondent, K, has to pay to the Claimant, H, the amount of EUR 335,200
within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline,
interest at the rate of 5% per year will apply as of expiry of the fixed time limit
and the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
The Claimant, H, is directed to inform the Respondent, K, 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:
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