Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 August 2013,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
B, from country P
as Claimant
against the club,
FC A, from country R
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 20 May 2011, the player B from country P (hereinafter: the Claimant), and the
country R club, FC A (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as from 15 June 2011 until 30 June 2014.
2.
According to art. V of the employment contract, the Respondent undertakes to
pay the Claimant, inter alia, the following net amounts:
- EUR 60,000 as sign-on fee, payable until 24 May 2011;
- EUR 30,000, payable on 1 July 2011, 10 January 2012, 1 July 2012, 10 January
2013, 1 July 2013 and 10 January 2014 (i.e. 6 x EUR 30,000);
- EUR 7,000 as monthly salary, payable 12 times a year, for each season;
- EUR 300 per month as rent expenses.
3.
In addition, art. V of the contract stipulates that, in case the amount of EUR 30,000
is not paid until 10 January 2012, “the contract becomes void, with the wages paid
to date”.
4.
Article VII, par. 3 of the contract stipulates that “The litigation arising from the
execution of the present agreement shall be settled following the procedural
order: a) amiable way; b) by bringing the litigation before the court of jurisdiction
of FRF, LPF, AJF, UEFA, FIFA, TAS as the case may be” and art. VIII par. 1 establishes
that “This agreement shall be filled in according to the stipulations of the
regulations of FRF, LPF and AJF”.
5.
In its art. III, par. 1, lit. a), b), c) and f), the contract also establishes that “the club
undertakes: a) to pay the player under the sporting services agreement; b) to
make available for the player the adequate training and competition equipment
and other materials necessary for the training; c) to provide fields and/or training /
workout rooms, as well as locker rooms and other necessary annexes; f) to provide
the specialty personnel (trainers, physicians, masseurs and other qualified specialty
personnel) necessary for a good training of the football player”.
6.
On 11 January 2012, the Claimant terminated the contract with the Respondent,
in writing, based on the following facts: “By the letters from 13.12.2011,
14.12.2011, 15.12.2011, 16.12.2011, 17.12.2011, 19.12.2011 and 23.12.2011 I
notified the club about the outstanding financial rights which are unpaid to the
undersigned, in the total amount of 45,000 Euros net approximately, as well as the
breach of the contract by the club by refusing my right to train and my expedition
to a juniors team where the minimum conditions for the training are not
provided. Until the present date the club did not pay the outstanding contractual
rights and did not provide any response with respect to my reintegration in the
Player B, from country P / Club FC A, from country R
2/17
senior’s team. The last term given for the payment of the outstanding rights was
04 January 2012. […] The club is trying abusively at this moment to reduce by 25%
the financial rights of the undersigned for the season 2011/2012 so the club’s
intention is clear, as well as the impossibility of an amicable settlement of the
litigation”.
7.
On 12 January 2012, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract without just cause – in particular, of art. III, par.
1, lit. a), b), c) and f) of the contract – and requested, after amending his claim, the
payment of the total amount of EUR 376,414, plus interests of 5% as from 11
January 2012, made up of:
- EUR 18,744 net corresponding to outstanding salaries for October 2011
(partial salary in the amount of EUR 4,744), November and December 2011 (2
x EUR 7,000);
- EUR 30,000 net corresponding to the instalment due on 10 January 2012;
- EUR 327,670 net as compensation, corresponding to his partial salary for
January 2012 (EUR 4,670), his salaries for February until June 2012 (5 x EUR
7,000), EUR 144,000 for the season 2012/2013 and EUR 144,000 due for the
season 2013/2014.
8.
In his arguments, the Claimant states that, on 3 December 2011, he accidentally
scored an own goal, which led to the defeat of the Respondent in a match.
According to the Claimant, after the incident, the Respondent’s sponsor publicly
accused him of intentionally scoring the own goal. As a consequence, and by
means of the Respondent’s letters dated 8 and 9 December 2011, respectively, the
Claimant was assigned by the board of directors to train with the club’s junior
team and was excluded from the main squad – “likely to be put on the transfer
list”.
9.
The Claimant claims having accepted the Respondent’s decision, but for three days
he allegedly had to train alone in a damaged stadium without any equipment.
Taking into account the possible prejudice of training with the junior team to his
career as well as the fact that his contract was not meant for the junior team, the
Claimant, by means of his letters dated 13, 14 and 16 December 2011, requested
to be readmitted to train with the main squad. Through the aforementioned
correspondence, he also reminded the Respondent of its arrears, corresponding to
salaries and rent expenses for October and November 2011.
10.
Furthermore, with his correspondence of 17, 19 and 23 of December 2011, the
Claimant additionally requested the payment of his contractual rights for
December 2011 and informed the Respondent that he would terminate the
employment contract with just cause, in case the relevant amounts were not paid.
Player B, from country P / Club FC A, from country R
3/17
11.
The Claimant alleges never having received any response from the Respondent
regarding the above-mentioned requests, except for a notification of the
ratification by the Disciplinary Commission of the country R Professional Football
League of a fine of 25% to his contractual rights for the 2011/2012 season,
imposed on him by the club on 8 December 2011 and allegedly notified on 10
January 2012. Allegedly, during the course of the aforementioned procedure, the
Claimant only received documentation in country R language and was, without his
knowledge, represented by the AFAN, the Association of Amateur and
Professional Player’s in country R. Such fact was communicated to the Respondent
by means of the Claimant’s letter dated 15 December 2011, in which he requested,
inter alia, that the documents related to the disciplinary procedure should be
forwarded to him directly.
12.
Therefore, the Claimant stressed that, on 11 January 2012, he terminated the
contract with the Respondent with just cause.
13.
In its reply, the Respondent disputed the jurisdiction of the FIFA Dispute
Resolution Chamber (hereinafter: DRC), referring to the employment contract.
14.
The Respondent provided FIFA with a copy of the “Regulation on the Status and
Transfer of Football Players” (edition 2011; hereinafter: the FF Regulations) and of
the country R Football Federation Statute (edition 2011; hereinafter: the FF
Statute), which establish the following:
a. with regard to the existing deciding bodies:
Art. 26.1 lit. a) of the country R FF Regulations indicates that the first instance
deciding bodies are the NDRC of the country R FF, the DRC of the country R
Professional Football League and the Commission for the Players’ Status of the
County Football Association (CFA).
b. with regard to the jurisdiction of the deciding bodies:
According to art. 26.2 lit. a) of the country R FF Regulations, the NDRC of the
country R FF is competent to decide on disputes concerning “the conclusion,
interpretation and execution of contracts concluded between clubs and players,
and maintaining contractual stability”.
As per art. 26.8 of the country R FF Regulations, the DRC of the country R PFL is
“exclusively” competent to solve disputes involving “Clubs participating in the
1st League National Championship, officials, players and their coaches (…)
according to the country R FF and the country R PFL annual convention”.
c. with regard to the composition of the deciding bodies:
Art. 26.5 of the country R FF Regulations provides that the NDRC of the country
R FF is composed of a chairman and a vice-chairman “elected by consensus by
the players and clubs’ representatives from a list containing the names of at
Player B, from country P / Club FC A, from country R
4/17
least five people, drawn by the Executive Committee of the country R FF”, three
players’ representatives nominated by the Association of Amateur and NonAmateur Footballers, and three clubs’ representatives nominated by the
Executive Committee of the country R FF.
Art. 26.8 in fine of the country R FF Regulations stipulates that the DRC of the
country R PFL – and its appeal body – is composed of five members, among
which one president and one vice-president, their names and functions being
approved by the Executive Committee of the Professional Football League for a
one-year mandate.
d. with regard to the possibility of an appeal:
Art. 26.1 lit. b) of the country R FF Regulations establishes that the decisions of
the NDRC of the country R FF may be appealed before the “Appeal Committee
of the country R FF” and that the decisions of the DRC of the country R PFL may
be appealed before the “Appeal Commission of the country R PFL”. Art. 26.1 lit.
c) of the country R FF Regulations provides that the decisions of the
aforementioned appeal bodies may be appealed to the Court of Arbitration for
Sport (CAS).
15.
As to the substance of the case, the Respondent rejects the Claimant’s accusations
and guarantees the quality of its infrastructure, equipment and personnel.
16.
Furthermore, the Respondent states that as per its internal regulations, if a player
fails to meet the club’s expectations, he can either be transferred to the junior
team and participate in matches, or stay in the main team, but not participate in
matches. According to the Respondent, the first option presented more
advantages for both the Claimant and the Respondent, and therefore it was the
one implemented by the club.
17.
In addition, the Respondent encloses a copy of its own decision, dated 8 December
2011, by means of which it sanctioned the player “with 25% penalty on financial
rights for competitive season 2011/2012”, based on his “behaviour and low
efficiency and inadequate performance of the obligations incumbent civil
convention”. The Respondent adds that such decision, however, had not yet been
ratified by the country R FF, since the Claimant had allegedly been delaying such
procedure. The Respondent further claims that mandatory tax deductions had to
be made from the Claimant’s salaries.
18.
Furthermore, the Respondent states having paid the Claimant all of his salaries
due until 10 January 2012. In this regard, it encloses a list including payments
made between 23 May 2011 and 19 October 2011, in the total amount of EUR
119,745. The documents submitted by the Respondent in this respect are a list of
Player B, from country P / Club FC A, from country R
5/17
payments not signed by the player and bank statements submitted in country R
language only.
19.
Finally, the Respondent suggests that the DRC either considers the contract
terminated de jure by the club’s failure to pay the Claimant the instalment of 10
January 2012, as per the mechanism of automatic termination agreed by the
parties in art. V of the contract (cf. point I.3. above) or that the Claimant
terminated the contract without just cause, based on the fact that the Respondent
failed to pay one instalment only, i.e. that of January 2012.
20.
In his replica, the Claimant insists on FIFA’s jurisdiction over the present case,
based on art. 22 lit. a) of the FIFA Regulations and also on art. VII par. 3 of the
contract (cf. point I.4. above), which authorizes the parties to bring the case to
FIFA. In addition, the Claimant states that neither the NDRC of the country R
Football Federation nor the DRC of the RPFL can be considered as independent
tribunals, since the procedures are conducted in country R language only, the
documents are not forwarded to the parties, there exists no published version of
the country R FF Regulations in English and no equal representation in the panel.
21.
As to the substance of the case, the Claimant states that the termination of the
contract was not only based on the Respondent’s failure to pay him the instalment
of 10 January 2012, as the club alleges, but also on the fact that he was excluded
from the main team for scoring an own goal and neither received his salaries as
from October 2011 nor an answer to his notifications.
22.
The Claimant also rejects the allegations of the Respondent regarding the
deduction of taxes from his salaries, since the contract stipulated in its art. V that
such amounts are net. In addition, the Claimant claims that the club provided no
proof of payment of such taxes on his behalf.
23.
The Claimant equally rejects the Respondent’s decision to sanction him with a fine
corresponding to 25% of his financial rights as per the contract, as being an
“abusive decision”. In addition, the Claimant claims that such disciplinary
procedure was conducted in country R language only, a language he does not
understand, and that the Disciplinary Committee of the country R PFL does not
ensure equal representation of clubs and players.
24.
Finally, the Claimant states never having received any correspondence from the
club to AFAN, within the scope of the aforementioned disciplinary procedure
against him, in particular since he never provided such entity with a power of
attorney and did not authorize them to represent him in such procedure.
Player B, from country P / Club FC A, from country R
6/17
25.
In its final position, the Respondent claims that art. VII par. 3 combined with art.
VIII par. 1 of the contract (cf. point I.4. above) stipulate that the country R Football
Federation should be competent to deal with disputes arising from the contract
and that such interpretation is also in line with art. 22 lit. b) of the FIFA
Regulations. The Respondent further states that the national deciding bodies do
guarantee equal representation of players and clubs and, even if the procedures
are conducted in language of country R, the parties can always request an
interpreter.
26.
As to the substance of the case, the Respondent insists on the fact that all
payments have been made, except for the instalment due on 10 January 2012. In
addition, the Respondent claims that according to the country R Law, taxes are to
be retained by the tax payer, i.e. the club, even if this was not explicitly mentioned
in the contract.
27.
Finally, the Respondent claims that the disciplinary sanction imposed on the
Claimant is the result of fair proceedings and the decision has already become
valid and binding, since the Claimant did not appeal such decision. The
Respondent insists on the fact that the Claimant was duly represented by the
AFAN and that such fact can be verified by FIFA with the AFAN.
28.
On 30 May 2012, the Claimant signed a new employment contract with the
country P club, E, valid as from 1 July 2012 until 30 June 2013, according to which
he is entitled to a global salary of EUR 35,500, payable in 12 equal monthly
instalments of EUR 2,958.33.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this
respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules). The present matter was submitted to FIFA on
12 January 2012. Therefore, the Chamber concluded that the edition 2008 of the
Procedural Rules was 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 and 2 in
combination with art. 22 b) of the Regulations on the Status and Transfer of
Players (editions 2010 and 2012; hereinafter: the Regulations), the Dispute
Player B, from country P / Club FC A, from country R
7/17
Resolution Chamber shall adjudicate on employment-related disputes between a
club and a player, with an international dimension.
3.
Having said that, the DRC stated that it would, in principle, be the competent
body to decide on the present litigation involving a country P player and a country
R club regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that any dispute arisen between the parties should be submitted to the
deciding bodies of the country R Football Federation and of the country R
Professional Football League.
5.
The Chamber equally noted that the Claimant rejected such position and insisted
on the fact that FIFA had jurisdiction to deal with the present matter, firstly
because art. VII par. 3 of the contract explicitly mentions that he can bring his case
to FIFA and, secondly since the deciding bodies of the country R Football
Federation and the country R Professional Football League do not respect the
principle of equal representation of players and clubs and cannot provide for fair
proceedings.
6.
Taking into account the above, the Chamber emphasised that, in accordance with
art. 22 lit. b) of the 2010 FIFA Regulations, it is competent to deal with a matter
such as the one at hand, unless an independent arbitration tribunal, guaranteeing
fair proceedings and respecting the principle of equal representation of players
and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing fair
proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20
December 2005. In this regard, the members of the Chamber further referred to
the principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations, which came into force on 1 January 2008.
7.
While analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber considered that it should, first and foremost, analyse whether
the employment contract at the basis of the present dispute actually contained a
jurisdiction clause.
8.
Having said this, the members of the Chamber turned their attention to art. VII
par. 3 of the contract, which stipulates that “The litigation arising from the
execution of the present agreement shall be settled following the procedural
order: a) amiable way; b) by bringing the litigation before the court of jurisdiction
of FRF, LPF, AJF, UEFA, FIFA, TAS as the case may be”.
Player B, from country P / Club FC A, from country R
8/17
9.
In view of the aforementioned clause, the members of the DRC were of the
opinion that art. VII par. 3 of the employment contract does not make clear
reference to one specific national dispute resolution chamber in the sense of art.
22 lit. b) of the aforementioned Regulations and even provides for the possibility
of lodging a contractual dispute in front of FIFA. Therefore, the members of the
Chamber deem that said clause can by no means be considered as a clear
arbitration clause in favour either of the national deciding bodies, i.e. of the
country R Football Federation or the country R PFL, and, therefore, cannot be
applicable. In this regard, the Chamber pointed out that this lack of clarity is also
reflected in the Respondent’s argumentation since it refers to the alleged
competence of the deciding bodies of both the country R Football Federation and
Professional Football League, without further precision.
10.
Having established that the first criteria for the recognition of the competence of
a national decision-making body is not fulfilled in the present matter, the
Chamber deemed unnecessary to examine any further points which would need to
be assessed before concluding to the competence of a national deciding body.
11.
In view of the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter had to be rejected and
that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, to consider the present matter as to the substance.
12.
Subsequently, the members of the Chamber analysed which edition of the
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 (editions 2010 and 2012) and considering that the claim in front of
FIFA was lodged on 12 January 2012, the 2010 edition of said Regulations is
applicable to the present matter as to the substance.
13.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, it
started to acknowledge the facts of the case as well as the documents contained
in the file.
14.
In this respect, the members of the DRC acknowledged that it was undisputed by
the parties that, on 20 May 2011, they signed an employment contract, in
accordance with which the player was entitled to receive, inter alia, EUR 60,000 as
sign-on fee, payable until 24 May 2011; EUR 30,000, payable on 1 July 2011, 10
January 2012, 1 July 2012, 10 January 2013, 1 July 2013 and 10 January 2014 (i.e. 6
x EUR 30,000); EUR 7,000 as monthly salary, payable 12 times per year, for each
season; and EUR 300 per month as rent expenses.
Player B, from country P / Club FC A, from country R
9/17
15.
The DRC noted that, on the one hand, the Claimant claims having been excluded
from the main team and subsequently from the collective training after having
accidentally scored and own goal during a match. The Claimant further claims that
the Respondent failed to pay his remuneration for the months of October,
November and December 2011, in the total amount of EUR 18,744 as well as the
instalment of EUR 30,000 due on 10 January 2012. In spite of his reminders dated
13, 14, 15, 16, 17, 19 and 23 December 2011 addressed to the Respondent in this
regard, the Claimant claims that the only reaction received from the club was the
notification of its decision of 8 December 2011, imposing on him a fine amounting
to 25% of his earnings for the season 2011/2012. The Claimant claims never having
taken part in these procedures or having authorized the country R Players’ Union
(AFAN) to act on his behalf. Therefore, he deems the fine and the procedure
leading to it to be abusive.
16.
Based on the aforementioned, the Claimant deems that the Respondent breached
the contract without just cause. Thus, he terminated the employment contract on
11 January 2012 in writing based on the existence of outstanding financial rights
in the amount of EUR 45,000, on his exclusion from the main team and on the
imposition of a fine corresponding to 25% of his earnings for the season
2011/2012.
17.
On 12 January 2012 the Claimant lodged a claim against the Respondent in front
of FIFA, requesting the payment of the total amount of EUR 376,414 plus interest
of 5% as from 11 January 2012, made up of EUR 18,744 in outstanding salaries for
October to December 2011, EUR 30,000 net corresponding to the instalment due
on 10 January 2012 and EUR 327,670 net as compensation for breach of contract.
18.
Subsequently, the DRC noted that, on the other hand, the Respondent rejects the
Claimant’s allegations and asserts that, as the player failed to meet its
expectations, it had the possibility of either maintaining him in the main squad
and prohibit him to play matches or transferring him the junior team with the
possibility of playing matches, which the club deemed more advantageous for
both parties. In addition, the Respondent claims having paid all the Claimant’s
salaries until the termination of the contract, except for the instalment of EUR
30,000 due on 10 January 2012. The Respondent further claims that some missing
partial payments are due to the mandatory deduction of taxes by the club in
country R, even if such deductions are not mentioned in the contract. Moreover,
the Respondent states that the fine imposed on the player on 8 December 2011,
which has in the meantime become final and binding, was the result of a legal
procedure, in which the Claimant was duly represented by the AFAN.
19.
In view of the aforementioned, the Respondent refers to art. V of the contract (cf.
point I.3. above) and claims that, in accordance with such article, the contract
Player B, from country P / Club FC A, from country R
10/17
should be considered as automatically terminated on 10 January 2012, since the
amount of EUR 30,000 due on that date was not paid by the club. In case the DRC
does not accept the aforementioned solution, the Respondent claims that the
Chamber should decide that the Claimant terminated the contract without just
cause.
20.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant and the allegations of
the Respondent, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the Claimant, and which
party was responsible for the early termination of the contractual relationship in
question. The DRC also underlined that, subsequently, if it were found that the
employment contract had been breached by one of the parties without just cause,
it would be necessary to determine the consequences for the party that caused the
unjust breach of the relevant employment contract.
21.
In view of the above, the Chamber noted that the Claimant claims that the
Respondent failed to pay part of his salary for October 2011 and his salaries for
November and December 2011, in the total amount of EUR 18,744, as well as the
instalment of EUR 30,000 due on 10 January 2012. In this respect, the Chamber
noted that the Claimant provided copies of his reminders dated 13, 14 15, 16, 17,
19 and 23 December 2011 addressed to the Respondent, referring, inter alia, to
the unpaid remuneration for the aforementioned months.
22.
Subsequently, the Chamber took into account that the Respondent, in turn,
maintains having paid to the Claimant all his salaries due until 10 January 2012,
except for the instalment of EUR 30,000 due on said date. In addition, the
members of the Chamber noted that the Respondent asserts that all alleged
outstanding payments towards the player are the result, on the one hand, of a
mandatory tax deduction to be performed by the club, and on the other hand, of
the imposition of a fine on the Claimant. The Chamber equally acknowledged the
Respondent’s argument related to the existence of a fine imposed on the player
amounting to 25% of his earnings for the season 2011/2012, for his “behaviour
and low efficiency and inadequate performed of the obligations”.
23.
At this point and for the sake of good order, the Chamber recalled the basic
principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules,
according to which a party claiming a right from an alleged fact shall carry the
respective burden of proof.
24.
In this respect, the Chamber deemed that the Respondent bore the burden of
proof regarding the fulfilment of all payments mentioned as outstanding by the
Claimant. In the present case, the Chamber noted that the Claimant provided a
Player B, from country P / Club FC A, from country R
11/17
copy of his letters dated 13, 14, 15, 16, 17, 19 and 23 December 2011, reminding
the Respondent inter alia of its arrears towards him. The Chamber also observed
that the Respondent not only acknowledged having failed to pay the player the
amount of EUR 30,000 due on 10 January 2012, but also did not provide the DRC
with any type of substantial evidence regarding the alleged payment of the
Claimant’s salaries for October until December 2011, as the only documentation
provided by the club consists of a list of payments not signed by the player, and of
bank statements submitted in country R language only.
25.
At this point, the Chamber reminded the parties that, in accordance with art. 9
par. 3 lit. e) of the Procedural Rules, all documentation provided in the context of
a dispute in front of FIFA should be presented in the original version and, if
applicable, translated into one of the official FIFA languages (English, French,
Spanish and German). Consequently, documents presented in any other language
cannot be taken into account.
26.
In continuation, the Chamber took note of the Respondent’s arguments,
according to which some of the unpaid amounts requested by the Claimant were
retained by the club in order to comply with its obligation to pay taxes over the
aforementioned amounts. In this respect, bearing in mind the legal principle of
burden of proof and the wording of art. 12 par. 3 of the Procedural Rules, the DRC
considered that the Respondent did not provide substantial documentation of its
alleged obligation to deduct taxes from the amounts payable to the Claimant or
of the actual payment of such amounts to the country R tax authorities. In
addition, the Chamber observed that such deductions were not stipulated in the
contract. Thus, the DRC concluded that the aforementioned argument of the
Respondent could not be sustained.
27.
Subsequently, the Chamber then turned its attention to the Respondent’s
argument, according to which a fine amounting to 25% of his earnings for the
season 2011/2012 had been imposed on the Claimant for his inappropriate
“behaviour and low efficiency and inadequate performed of the obligations”.
28.
The Chamber firstly wished to underline that, in spite of the Respondent’s
objection, the Claimant claims not having been notified of or taken part in the
proceedings before the club, neither did he authorize the AFAN to represent him
in such proceedings. In addition, the Chamber noted that no power of attorney
issued by the Claimant on behalf of the AFAN is to be found on file. Thus, the
members of the DRC considered that the aforementioned procedure does not
appear to have been conducted in accordance with the principle of due process of
law.
Player B, from country P / Club FC A, from country R
12/17
29.
The Chamber further wished to point out that the fine imposed on the Claimant
for alleged wrongdoing in relation to his behaviour and performance, not
supported by substantial evidence in this regard, and amounting to 25% of his
earnings for an entire season must be considered disproportionate and therefore
not applicable.
30.
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 regard.
31.
In continuation, the DRC noted that the Claimant claims having been excluded
from the main squad, after accidentally scoring an own goal. In this respect, the
Chamber also noted that the Claimant provided copies of two letters from the
club dated 8 and 9 December 2011, by means of which he was excluded from the
main squad and assigned to train with the junior team. In addition, the members
of the Chamber noted that the Respondent does not dispute the aforementioned
allegations of the Claimant and claims having taken the most advantageous
measure for both parties, in view of the player’s unsatisfactory performance. The
Respondent, however, did not provide any evidence of the Claimant’s
inappropriate behaviour or his bad performance, neither did it dispute the
Claimant’s allegation that he was subsequently assigned to individual training.
32.
Finally, the Chamber focused its attention on the allegation of the Respondent,
according to which, the contract should be considered as automatically
terminated, in application of art. V of the contract.
33.
In this respect, the DRC recalled the wording of art. V of the aforementioned
contract, which stipulates that in case the amount of EUR 30,000 is not paid until
10 January 2012, “the contract becomes void, with the wages paid to date”.
34.
At this point, the Chamber deemed it appropriate to analyse the question of
whether such clause inserted in an employment contract could be considered
valid. In this regard, the Chamber deemed that the application of the abovementioned rule was arbitrary, since it led to an unacceptable result based on nonobjective criteria, which entitled the Respondent to unilaterally terminate the
contract by not making a due payment, without having to grant the Claimant
with compensation for such unilateral termination. The DRC emphasised that the
application of the aforementioned article led to an unjustified disadvantage to
the Claimant’s financial rights.
Player B, from country P / Club FC A, from country R
13/17
35.
In this regard, the members of the DRC considered that the possibility granted to
the Respondent to prematurely terminate the contract by failing to pay the
instalment due on 10 January 2012 appeared to be of a highly arbitrary nature,
entailing that, de facto, it is left to the complete and utter discretion of the
Respondent whether or not it was willing to continue the contractual relationship.
36.
In view of the foregoing, the Chamber was of the opinion that art. V of the
contract invoked by the Respondent in order to consider the contract as
automatically terminated on 10 January 2012 without the payment of any
compensation for breach was clearly potestative and that, consequently, the
respective argumentation of the Respondent could not be upheld by the DRC.
37.
Therefore, based on the fact that the Claimant has not received his salaries for
October to December 2011 or the instalment due on 10 January 2012, that he had
been excluded from the main squad, that his alleged disciplinary failure could not
be proven by the Respondent and that the fine applied on 8 December 2011 was
clearly disproportionate, the Chamber decided that the Respondent was to be
held responsible for the breach of contract without just cause and that,
consequently, the contract was terminated by the Claimant with just cause on 11
January 2012.
38.
Having established the aforementioned, the Chamber focused its attention on the
consequences of the breach of contract without just cause on the part of the
Respondent. Taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the Claimant is entitled to receive from the Respondent an
amount of money as compensation for breach of contract in addition to any
outstanding payments on the basis of the relevant contract.
39.
Prior to establishing the amount of compensation for breach of contract due to
the Claimant by the Respondent, the DRC proceeded with the calculation of the
outstanding monies payable to the Claimant under the terms of the employment
contract until the date of termination, i.e. on 11 January 2012.
40.
Taking into consideration the Claimant’s claim as well as the reasons previously
exposed, the DRC concluded that, in accordance with the general legal principle of
pacta sunt servanda, the Respondent must fulfill its obligations as per the
employment contract concluded with the Claimant and, consequently, is to be
held liable to pay the outstanding remuneration due to the latter in the total
amount of EUR 48,744, corresponding to EUR 18,744 in salaries for October to
December 2011 and EUR 30,000 as the instalment due on 10 January 2012.
Player B, from country P / Club FC A, from country R
14/17
41.
The Chamber further established that an interest rate of 5% p.a. would apply over
the aforementioned amounts, as from 11 January 2012, as per the Claimant’s
claim.
42.
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.
43.
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.
44.
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 2014. The Chamber concluded that the amount of EUR 330,000
serves as the basis for the final determination of the amount of compensation for
breach of contract.
45.
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 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.
46.
In this regard, the Chamber noted that on 30 May 2012 the Claimant signed a new
employment contract with the country P club, E, valid as from 1 July 2012 until 30
June 2013, according to which he was entitled to a global salary of EUR 35,500.
The Chamber further pointed out that, by the time the decision was taken, no
Player B, from country P / Club FC A, from country R
15/17
information regarding the Claimant’s contractual situation was available for the
season 2013/2014 and, thus, the Chamber would have to estimate this amount.
47.
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 270,000 to the Claimant as compensation for breach of
contract, plus interest of 5% p.a. as of 30 August 2013 until the date of effective
payment.
48.
For all the above reasons, the DRC decided to partially accept the claim of the
Claimant and holds the Respondent liable to pay the Claimant the amount of EUR
48,744 as outstanding remuneration, plus 5% interest p.a. as of 11 January 2012
until the date of effective payment, as well as the amount of EUR 270,000 as
compensation for breach of contract, plus interest of 5% p.a. as of 30 August
2013.
49.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is admissible.
2.
The claim of the Claimant, B, is partially accepted.
3.
The Respondent, FC A, is ordered to pay to the Claimant, B, within 30 days as
from the date of notification of this decision, outstanding remuneration in the
amount of EUR 48,744, plus 5% interest p.a. as of 11 January 2012 until the date
of effective payment.
4.
The Respondent, FC A, has to pay to the Claimant, B, within 30 days as from the
date of notification of this decision, compensation for breach of contract in the
amount of EUR 270,000, plus interest of 5% p.a. as of 30 August 2013 until the
date of effective payment.
5.
If the aforementioned sums plus interest are not paid within the above-mentioned
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its consideration and a formal decision.
Player B, from country P / Club FC A, from country R
16/17
6.
Any further claims lodged by the Claimant, B, are rejected.
7.
The Claimant, B, is directed to inform the Respondent, FC A, 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:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Player B, from country P / Club FC A, from country R
17/17