Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2012,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
I,
as Claimant
against the club,
D,
as Respondent
I.
regarding an employment-related dispute arisen between the parties
Facts of the case
1.
On 27 January 2009, the country player, I (hereinafter: player or Claimant) and the
country T club, D (hereinafter: club or Respondent) signed an employment
contract valid as from 27 January 2009 until 31 May 2012.
2.
In accordance with the employment contract, the player was to receive inter alia
the amount of EUR 300,000 per full season, as from the 2009-10 season, as
follows:
a.
EUR 37,500 on 31 July;
b.
EUR 37,500 on 30 September;
c.
EUR 22,500 on a monthly basis as from 31 August until 31 May.
3.
On 21 December 2009 and 11 January 2010, the player put the club in default of
payment of his salaries as of 1 October 2009 setting a time limit until 18 January
2010, after which date he would consider the employment contract as having
been terminated at the club’s fault in case of non-compliance.
4.
On 25 January 2010, said default notice having remained unanswered, the player
lodged a claim against the club in front of FIFA for breach of contract asking to be
awarded payment of the total amount of EUR 967,500, which was detailed as
follows:
a.
EUR 90,000 in payment of outstanding salaries as from October 2009 until
January 2010;
b.
EUR 37,500 relating to one of two outstanding payments for the 2009-10
season;
c.
EUR 690,000 in payment of his salaries until the date of expiry of the
employment contract in connection with the breach of contract by the club
(EUR 90,000 for the 2009-10 season, EUR 300,000 for the 2010-11 season, and
EUR 300,000 for the 2011-12 season);
d.
EUR 150,000 in payment of the two signing-on fees of EUR 75,000 per season
(2010-11 season and 2011-12 season);
e.
default interest on the total amount of EUR 967,500;
f.
EUR 200,000 in payment of moral damages;
g.
EUR 45,000 in payment of legal expenses.
5.
The player explains that, as of October 2009, the club had ceased the payment of
his salary. Furthermore, he submits that the club had excluded him from training
with the rest of the team and he was sanctioned with fines corresponding to the
salaries that the club still owed him without any legal basis.
6.
Therefore, the player deems that the club is to be held liable for breach of
contract and that he terminated the employment contract with just cause.
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7.
The club, for its part, asks that the player’s claim be rejected in full.
8.
The club points out that it met its obligations and made the following payments
to the player’s bank account:
a.
EUR 37,500 on 4 August 2009;
b.
EUR 22,500 on 18 September 2009;
c.
EUR 30,000 on 16 November 2009;
d.
EUR 15,000 on 16 December 2009.
9.
The club affirms that until 31 December 2009 it had paid the total amount of EUR
105,000 to the player and that the outstanding remuneration amounts to EUR
82,500, which the club detailed as follows: EUR 15,000 for September 2009 plus
EUR 67,500 for October until December 2009.
10.
The club further asserts that the amount of EUR 49,597 is to be deducted from the
aforementioned EUR 82,500 in connection with fines that were imposed by the
club on the player, as a result of which the club deems that its debt towards the
player amounts to EUR 32,903. In this respect, the club asks that these fines be
accepted.
11.
The club dismisses the player’s claim for breach of contract and compensation for
breach, as it considers that the employment contract was terminated at the
player’s fault.
12.
In this respect, the club points out that on several occasions the player had been
absent without the club’s permission or without excuse. That is, according to the
club, the player returned late from his national team duties in October 2009, he
was absent from the club’s training camp between 26 December 2009 and 3
January 2010, and he was absent from training after 3 January 2010.
13.
In this regard, the club presented a copy of the following documents:
a.
The club’s penalty regulations;
b.
The club’s board decision of 16 October 2009 imposing a fine of 30,000 (EUR
13,782 according to the club) on the player due to his alleged late return
and its notification by notary to the player as well as to the Football
Federation T;
c.
A room list of the training camp hotel, a public notary report dated 29
December 2009, a club staff declaration relating to the alleged absence of
the player between 26 December 2009 and 3 January 2010;
d.
Public notary reports dated 5, 6, and 7 January 2010 relating to the player’s
absence on those days;
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e.
The club’s board decision of 18 January 2010 imposing a fine of 75,000 (EUR
35,815 according to the club) on the player due to his repeated absence. This
decision also indicates that the club’s board decided to unilaterally terminate
the employment contract due to his repeated absence. The club also
presented a copy of its correspondence to the player and to the Football
Federation T notifying said fine.
14.
In his replica, the player points out that he was sanctioned by the club due to
delay in taking up training with the club, which does not justify the termination
of the employment contract. In this regard, the player points out that the club
imposed a fine of 75,000 upon him relating to his absence as from 26 December
2009 until 4 January 2010, when the player was supposed to participate in the
preparation for the second half of the season. As regards his absence, the player
asserts that he was with his family in country G at that time while a military coup
had taken place, which made it difficult for him to leave the country. He holds
that such circumstances, which he allegedly informed the club of by phone, could
not be held against him.
15.
He points out that the club had not given any explanation or reason for the nonpayment of his salary as of October 2009 and reiterates that the club should be
instructed to compensate him for the damage that he suffered.
16.
In its duplica, the club reiterates that the player did not fulfil his contractual
obligations and considers that he had the intention to terminate the employment
contract and “have unjust enrichment”. In this respect, the club highlights that
the player asks to be paid for periods of time in which he was absent and that he
had signed on with another country T club in the meantime.
17.
The club asserts that the player had no permission to be absent nor did he ask or
inform the club about it.
18.
The club insists that its debt towards the player only amounts to EUR 32,903
taking into consideration the payments already made and the fines imposed.
19.
On 1 September 2010, the player signed an employment contract with a country T
club, K valid until 31 May 2011, but which was allegedly terminated by mutual
consent in January 2011, in accordance with which the player was entitled to
receive from club K the total amount of EUR 200,000 until 31 May 2011.
20.
The player asserts to have remained unemployed as from January 2011.
II.
Considerations of the Dispute Resolution Chamber
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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 25 January 2010. 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 2010 and 2009), and considering that the present claim was lodged on
25 January 2010, the 2009 edition of 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, on 27 January 2009, the Claimant and the
Respondent signed an employment contract valid as from the date of signature
until 31 May 2012.
5.
The Claimant, on the one hand, maintains that the Respondent was to be held
liable for the early termination of the employment contract by failing to remit his
remuneration as of 1 October 2009. In this respect, the Chamber recalled that, on
21 December 2009 and on 11 January 2010, the Claimant put the Respondent in
default of payment of his salary as of 1 October 2009, setting a time limit expiring
on 18 January 2010, after which date he would consider the employment contract
as having been terminated at the Respondent’s fault, in the event that the default
would not be remedied until said time limit.
6.
The members of the Chamber further noted that, according to the Claimant, the
Respondent failed to remedy the breach in spite of his default notices. Therefore,
the Claimant holds that the club is to be held liable for breach of contract and
that he terminated the employment contract with just cause on 18 January 2010.
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7.
The Chamber duly noted that the Respondent, on the other hand, admits that the
amount of EUR 15,000 relating to the Claimant’s salary for September 2009 as well
as the amount of EUR 67,500 in connection with the Claimant’s salary as from
October to December 2009 had remained unpaid. The Chamber further noted in
this regard that, according to the Respondent, the sum of EUR 49,597 related to
fines that had been imposed on the player should be deducted, as a result of
which the Respondent maintains that its debt towards the Claimant only amounts
to EUR 32,903. In addition, the Respondent submits that the employment contract
was, in fact, terminated at the Claimant’s fault due to the latter’s unauthorised
absence from the club. In this regard, the Chamber recalled that, on 18 January
2010, the Respondent decided to unilaterally terminate the pertinent employment
contract.
8.
In continuation, the Chamber proceeded to analyse the circumstances surrounding
the uncontested early termination of the employment contract on 18 January
2010 in greater detail and firstly focussed its attention on the Respondent’s
argument relating to the Claimant’s absence and the fines that were imposed
upon the latter in this connection.
9.
Whereas the Claimant does not appear to contest that he was sanctioned by the
Respondent for having returned late to resume his training at the club, the
Claimant holds that such circumstance would not justify the termination of the
employment contract. In this regard, the Chamber noted that the Respondent’s
decision to impose the second fine of 75,000 on the Claimant was issued on 18
January 2010, i.e. the day on which the time limit set by the Claimant in his
default notice expired. Furthermore, according to its decision of 18 January 2010,
the Respondent had decided to unilaterally terminate the employment contract.
10.
In this context, the Chamber was eager to emphasise that only a breach or
misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, a contract may be terminated prematurely
only when there are objective criteria which do not reasonably permit to expect a
continuation of the employment relationship between the parties. Hence, if there
are more lenient measures which can be taken in order for an employer to assure
the employee’s fulfilment of his contractual duties, such measures must be taken
before terminating an employment contract. A premature termination of an
employment contract can always only be an ultima ratio.
11.
In continuation, the Chamber took into account that the Respondent
acknowledged that it had been in delay of the payment of the Claimant’s
remuneration as from September 2009 until December 2009 in the amount of EUR
82,500, equalling approximately 3,5 months of outstanding remuneration. The
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Chamber then reverted to the Respondent’s line of defence, according to which
its debt towards the Claimant was to be set off with the fines that had been
imposed on the Claimant.
12.
The Chamber firstly wished to underline that, whereas the first fine in the
amount of 30,000 (EUR 13,782) does not seem to be contested by the Claimant
and is not considered to be disproportionate, the Chamber agreed that the
second fine amounting to 75,000 (EUR 35,815), i.e. equalling almost 2 monthly
salaries, cannot be considered proportionate and shall be disregarded. In this
regard, the Chamber also emphasised that at least with respect to the second fine
the Claimant does not appear to have had the possibility to defend his case.
13.
In this context, and irrespective of the foregoing consideration, the Chamber
wished to point out that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a means to set off outstanding
financial obligations towards players. Consequently, the Chamber decided to
reject the Respondent’s argument in this connection.
14.
Accordingly, on account of the above, the Chamber established that, by the end
of December 2009, the Respondent had failed to pay the Claimant’s
remuneration in accordance with its contractual obligations in the total amount
of EUR 82,500, which represents more than 3,5 months of the Claimant’s
remuneration. For the sake of completeness, the Chamber noted that even if the
first fine was to be set off against its debt towards the Claimant, the Respondent
would still have been in delay of payment of at least three monthly salaries.
15.
In continuation, reverting to the Respondent’s position that the Claimant was
absent without its permission as from 26 December 2009, on account of the
foregoing consideration, the Chamber deemed it fit to point out that the
Respondent was clearly already in breach of the employment contract at the time
the Claimant was absent from the club.
16.
Reverting to the Respondent’s decision of 18 January 2010 (cf. point I./13.e.
above) and taking into account the above considerations, the Chamber concurred
that the Respondent, for its part, had no just cause to unilaterally terminate the
employment contract on 18 January 2010.
17.
Furthermore, on account of all of the above, the Chamber decided that the
Claimant had just cause to terminate the employment contract on 18 January
2010 and that the Respondent is to be held liable for the early termination of the
employment contract with just cause by the Claimant.
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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.
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”. As stated above, the remuneration that
was outstanding at the time of the termination, i.e. 18 January 2010, amounts to
EUR 82,500, i.e. EUR 15,000 relating to the Claimant’s salary for September 2009
as well as the amount of EUR 67,500 in connection with the Claimant’s salary as
from October to December 2009. However, on account of the consideration under
point II./12. above, the Chamber agreed that the amount of EUR 13,782 related to
the first fine that was imposed by the Respondent on the Claimant on 16 October
2009 shall be taken into consideration.
20.
Consequently, the Chamber decided that the Respondent is liable to pay to the
Claimant outstanding remuneration in the amount of EUR 68,718.
21.
In continuation, the Chamber focussed its 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 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.
22.
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
which the parties had beforehand agreed upon an amount of compensation
payable 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.
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23.
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 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.
24.
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.
25.
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 31 May 2012, taking into account that the player’s remuneration until
December 2009 is included in the calculation of the outstanding remuneration (cf.
no. II./19. above). Consequently, the Chamber concluded that the amount of EUR
712,500 (i.e. the Claimant’s remuneration as from January 2010 until May 2012)
serves as the basis for the final determination of the amount of compensation for
breach of contract.
26.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, 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.
27.
Indeed, on 1 September 2010, the Claimant signed an employment contract with
the country T club, K, valid until 31 May 2011, which was allegedly terminated by
mutual consent in January 2011. According to the Claimant, he had remained
unemployed since then. In accordance with the pertinent employment contract,
the Claimant was entitled to receive from club K the total amount of EUR 200,000
until 31 May 2011 and therewith enabled to reduce his loss of income.
Notwithstanding the fact that, in accordance with art. 12 par. 3 of the Procedural
Rules, the Claimant omitted to present evidence corroborating his statement that
this employment contract was terminated by mutual consent as early as in January
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2011, the members of the Chamber deemed it important to point out that by
voluntarily agreeing to the early termination of his new employment contract
with club K in January 2011, the Claimant had actually freely renounced to receive
the income relating to the period of time between January 2011 and May 2011.
Consequently, the Chamber concurred that the full amount EUR 200,000 under
the new employment contract shall be taken into consideration in the calculation
of the amount of compensation for breach of contract in the case at hand.
28.
Furthermore, in the context of the Claimant’s obligation to mitigate damages, the
Chamber highlighted that at least one full registration period had been open
after, according to the Claimant, his employment contract with club K had ended
by mutual consent, allowing him to find other employment as from January 2012
at the latest and thus mitigate his damages. Consequently, the members of the
Chamber agreed that the amount of EUR 112,500, which represents the income
which the Claimant would have earned with the Respondent as from January
2012 until May 2012, shall be taken into account in the calculation of the amount
of compensation for breach of contract payable by the Respondent to the
Claimant in the present matter.
29.
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 400,000 to the Claimant as compensation for breach of contract.
30.
Furthermore, as regards the Claimant’s claim pertaining to moral damages, which
was not at all specified by the Claimant, the Chamber agreed that such claim is to
be rejected due to a lack of legal basis.
31.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
32.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, I, is partially accepted.
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2.
The Respondent, club D, has to pay to the Claimant outstanding remuneration in
the amount of EUR 68,718 within 30 days as from the date of notification of this
decision.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of EUR 400,000 within 30 days as from the date of notification of this
decision.
4.
In the event that the amounts due to the Claimant are not paid by the
Respondent within the stated time limits, 5% interest 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 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 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. 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
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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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