Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 7 September 2011,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Zola Majavu (South Africa), member
Michele Colucci (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
B,
as Claimant
and the club,
N,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 28 July 2008, the player B (hereinafter: the player or the Claimant), and the
club N (hereinafter: the club or the Respondent), signed two complementary
employment contracts (hereinafter: the contracts), each of them containing part
of the entire remuneration agreed by the parties and both valid for the season
2008/2009.
2.
According to art. 2, 3 and 12 of the first contract, the player is entitled to receive
inter alia the following amounts:
- EUR 3,000 net as a sign-on fee;
- EUR 3,000 net on 30 July 2008;
- EUR 17,406 net payable in nine equal and continuous monthly instalments of
EUR 1,934, the first of which is due on 30 August 2008;
- bonus defined in the club’s Internal Regulations;
- two air tickets for the player and his wife.
3.
According to art. 2 and 3 of the second contract, the player is entitled to receive
the amount of EUR 3,600 net, payable in nine equal and continuous monthly
instalments of EUR 400, the first of which is due on 30 August 2008, as well as a
bonus defined in the club’s Internal Regulations.
4.
In addition, the player states that the parties orally agreed that the club should
pay EUR 300 monthly, for accommodation, during nine months of the contract.
5.
Furthermore, art. 5 of both contracts (hereinafter: arbitration clause) provides that
“without alteration to the above and without influencing all the legal and
contract claims, which the football player will have towards the football club, in
case of violation of the present agreement the football player is entitled to turn to
the appropriate components of the Football Association C for and then to the
other courts before proceeding to the civil courts”.
6.
Finally, art. 10 of both contracts stipulates that “All the terms of the present
agreement are essential and violation of any term of the contract by any
concerned party, gives the right to the innocent party to report the agreement
and ask for legal compensation”.
7.
On 13 January 2009, the club N from country C unilaterally terminated the
employment contract with the player by means of a letter sent to the Football
Association C, in which it states that the player had infringed the contract by
missing five training sessions without justification and by training with another
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club from country C, namely club P, without permission. Therefore, the club
reserved the right to lodge a claim against the player in front of the Football
Association C.
8.
On 11 February 2009, the player found new employment with the club from
country C, club L, and signed an employment contract valid as from the date of
signature until 31 April 2009. The player was entitled to receive a monthly salary
in the amount of EUR 2,000, payable in two instalments of EUR 1,000 per month,
the first due on 1 March 2009.
9.
On 17 June 2009, the player lodged a claim in front of FIFA, regarding the club’s
termination of the contract without just cause, and claims the total amount of
EUR 12,270 made up of:
- EUR 4,668 corresponding to his salaries of December 2008 and January 2009,
as per both contracts, plus 5% interests p.a. as from the date each payment
became outstanding;
- EUR 600 corresponding to the rent of December 2008 and January 2009, plus
5% interests p.a. as from the date each payment became outstanding;
- EUR 7,002 as compensation for the unilateral breach of the contract without
just cause, corresponding to the rest value of the contract, as from February
2009 until April 2009, plus 5% interests p.a. as from the date of the
presentation of this claim;
- legal fees.
10.
In addition, the player requests that the club should be banned from registering
any new players, either nationally or internationally, for two registration periods.
11.
According to the player, the club had decided to dismiss him by the end of 2008
and therefore started pressuring him to agree with a premature termination of
the contract. As the player refused the termination, the club offered him one
month of salary as a compensation, which he refused as well. The player was, thus,
prohibited to participate in the trainings, a few days before the unilateral
termination of the contract, and was obliged to return the club’s car he had been
using since the beginning of the contract. At the end of January 2009, he received
a copy of the termination letter, which had been sent to the Football Association
C.
12.
The reasons given by the club to terminate the contract are, according to the
player, false. In his letter to the club, dated 30 January 2008, the player states that
neither had he been voluntarily missing the trainings, nor had he started training
for another club from country C, club P, without permission from club N. The
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player had actually been prohibited to exercise or train in the club facilities.
Moreover, he was duly authorized by the club to make tests with club P. By that
time, the president of club N had already requested help in finding the player a
new club, since it allegedly could not afford paying the player’s salaries anymore.
13.
Since the termination occurred within the protected period and while the transfer
window of most European Football Associations had already been closed, it
reduced the player’s chances of finding another club. Thus, the player saw himself
obliged to sign a contract with another club from country C, club L, for a lower
salary and under the status of amateur player.
14.
In addition, the player provided copies of two letters dated 30 January 2008 and 6
February 2009, in which he reminded the club of its arrears and explained that the
termination was without just cause. The letters, however, remained unanswered
by the club.
15.
In its reply, the club disputed the jurisdiction of the FIFA Dispute Resolution
Chamber (hereinafter: DRC), citing the arbitration clause in point 5 above.
16.
According to the Regulations for the Registration and Transfer of Football Players
of the Football Association C (hereinafter: the Regulations from C), its Dispute
Resolution Committee (hereinafter: NDRC) is composed of five members, namely
the Chairman, the Vice-Chairman, one member appointed by the Executive
Committee of the Association and two members appointed by the C Football
Players’ Association (art. 22.1.1 and 22.2.3).
17.
The decisions are taken by simple majority (art. 22.8.1), subsequent to a summary
and written procedure (art. 22.13.1 and art. 22.13.3). Clubs affiliated to the
Association C, football players and other interested persons are entitled to lodge a
claim before the NDRC (art. 22.13.5). Any decision of the NDRC may be appealed
to the Disciplinary Authority of the Football Association C, which shall reach a
final decision (art. 22.10). Claims may also be lodged before a civil court and its
decisions shall prevail over the ones issued – even if previously – by the NDRC (art.
22.12).
18.
Article 22.13.8 of the Regulations of C stipulates that, in case a decision regarding
the termination of an employment contract has been issued against a club, the
latter shall be entitled to its revision by the NDRC itself, if it finds out that the
player has signed a new contract during the period for which he should receive
compensation.
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19.
With regard to the substance of the dispute, the club rejects all the player’s
allegations. According to the club, the termination of the employment contract
was legal and valid, since it was sent to the player, who denied receiving and
signing it on 18 January 2009, and thus was sent to the Football Association C. The
player stopped training with the club and started training with club P without the
club’s consent. Also, the club considers that it does not owe the player any
outstanding salaries or any kind of compensation for loss of income, since after
the termination he signed a new contract with another club.
20.
In his replica, the player rejects the club’s allegations and explains that the club
already owed more than one month of salary by the time the contract was
terminated, through a letter sent only to the Football Association C and in G
language, a language the player does not understand. Thus, the club was already
in breach since the end of December 2008 and would not be legitimate to
terminate the contract.
21.
The player refers to art. 22, lit. b) of the Regulations on the Status and Transfer of
Players and states that the NDRC of C, mentioned in the arbitration clause of the
contract, does not fulfill the requirements set forth by FIFA to be considered as an
independent arbitration tribunal.
22.
In addition, the player provided a declaration of another player, Mr R, who was
also playing for club P when the player started training with them. In his
declaration, Mr R states that the club must have known that the player had been
training with club P, since the football of country C is relatively small and most of
the club directors know and interact with each other. Mr R further states that the
player was brought to P by a well-known agent in the country of C, named Mr S,
because club N could no longer afford to pay his salaries and therefore was willing
to transfer the player to another club. Since the clubs did not find an agreement,
the player returned to club N after a week.
23.
The club’s decision to terminate the contract, in his opinion, was disproportional
to the alleged contractual offense; furthermore, the termination, which should be
applied as ultima ratio, was the first and only measure taken by the club. In this
respect, the player refers to the jurisdiction of CAS, namely to decision CAS
2008/X/XXXX (I FC vs. L., 23 February 2009). The player notes that the club did not
take any measures against club P, which would be expected in case the latter had
indeed illegally engaged the player.
24.
In its last position, the club maintains its previous position and deems the
termination valid, in the light of art. 10 of the contracts (cf. I pt. 6).
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25.
Finally, the club explains that the fact that it did not file a complaint against club P
does not mean that the player had the right to miss the trainings with the club
and start training with another club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the 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 17 June 2009.
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. 2 and par. 3
of the Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules as well
as art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status
and Transfer of Players (editions 2008, 2009 and 2010; hereinafter: the
Regulations). According to art. 22 lit. b) of said Regulations, “Without prejudice to
the right of any player or club to seek redress before a civil court for employmentrelated disputes, FIFA is competent to hear: employment-related disputes between
a club and a player of an international dimension, 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.”
3.
The Chamber acknowledged that the Respondent contested the competence of
FIFA to deal with the present matter on the basis of art. 5 of both contracts signed
between the parties.
4.
In this regard, the Chamber took into account that the Claimant argued that the
above-mentioned deciding body of the Football Association C did not guarantee
independence, for which reason he did not recognise their jurisdiction to deal
with the matter at hand and he was entitled to refer the matter to FIFA.
5.
Taking into account the above, the Chamber referred to art. 22 lit. b) of the
aforementioned Regulations, according to which it is competent to deal with a
matter such as the one at hand involving a player and a club from country C,
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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 FIFA Circular no. 1010 dated 20 December 2005 and the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations (hereinafter: the FIFA NDRC Regulations), which came into force on 1
January 2008.
6.
In this respect, the DRC turned its attention to the principle of equal
representation of players and clubs and underlined that this principle was one of
the very fundamental elements to be fulfilled, in order for a national dispute
resolution chamber to be recognized as such. Indeed, this prerequisite is
mentioned in the Regulations, in the Circular no. 1010 as well as in art. 3 par. 1 of
the FIFA NDRC Regulations, which illustrates the aforementioned principle as
follows: “The NDRC shall be composed of the following members, who shall serve
a four-year renewable mandate: a) a chairman and a deputy chairman chosen by
consensus by the player and club representatives(…); b) between three and ten
player representatives who are elected or appointed either on proposal of the
player’s associations affiliated to FIFPro, or, where such associations exist, on the
basis of a selection process agreed by FIFA and FIFPro; c) between three and ten
club representatives(…)”. In this respect, the FIFA Circular no. 1010 states the
following: “The parties must have equal influence over the appointment of
arbitrators. This means for example that every party shall have the right to
appoint an arbitrator and the two appointed arbitrators appoint the chairman of
the arbitrational tribunal (…). Where arbitrators are to be selected from a
predetermined list, every interest group that is represented must be able to
exercise equal influence over the compilation of the arbitrators list”.
7.
Subsequently, the Chamber acknowledged receipt of the Regulations for the
Registration and Transfer of Football Players of the Football Association C
(hereinafter: the Regulations of C), provided by the latter, and began to analyse
its content. In this context, the Chamber noted that, according to art. 22.1.1 and
22.2.3 of the aforementioned Regulations of C, the Dispute Resolution Committee
(hereinafter: NDRC) of the Football Association C, is composed of 5 members, as
follows : a Chairman, a Vice-Chairman, one member appointed by the Executive
Committee of the Association and two members appointed by the C Football
Players’ Association.
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8.
In view of the aforementioned and taking into account the pre-requisites for the
recognition of the jurisdiction of a Dispute Resolution Chamber at a national level
stipulated in art. 22 lit. b) of the FIFA Regulations, the FIFA Circular no. 1010 and
the FIFA NDRC Regulations, the DRC considered that, in light of the
documentation provided by the Football Association C, the relevant national
deciding body does not appear to be composed of an equal number of players’
and clubs’ representatives, since the representation of the clubs, if any, is not
evident.
9.
Therefore, the Chamber concurred that the Respondent was unable to prove that
the NDRC of country C had met the minimum procedural standards for
independent arbitration tribunals as laid down in art. 22 lit. b) of the abovementioned Regulations, in FIFA Circular no. 1010 as well as in the FIFA NDRC
Regulations.
10.
In view of the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter has to be rejected and
that the Dispute Resolution Chamber 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.
11.
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 (edition 2010) and considering that the claim in front of FIFA was
lodged on 17 June 2009, the 2008 edition of said Regulations is applicable to the
present matter as to the substance.
12.
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.
13.
In this respect, the members of the DRC acknowledged that it was undisputed by
the parties that, on 28 July 2008, they signed two complementary employment
contracts, in accordance with which the player was entitled to receive, inter alia, a
monthly remuneration of EUR 2,334 in total, i.e. EUR 1,934 as per the first contract
and EUR 400 as per the second contract.
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14.
In continuation, the Chamber took note that it is undisputed by the parties
involved that the employment relationship had been terminated by the
Respondent on 13 January 2009.
15.
The DRC noted that the Claimant claims that the Respondent has breached the
contractual relationship without just cause, by terminating the contract without
his consent, during the protected period, by means of a letter sent to the Football
Association C only and based on the Claimant’s alleged abandon of the
Respondent in order to start training with club P. According to the Claimant,
however, he had been duly authorized by the Respondent to make tests with the
aforementioned club and seek new employment with it, since the Respondent was
in arrears of his salaries.
16.
Therefore, the Claimant requests the payment of the total amount of EUR 12,270
made up of EUR 4,668 corresponding to his salaries of December 2008 and January
2009, as per both employment contracts, EUR 600 corresponding to the rent of
December 2008 and January 2009, as per an oral agreement allegedly concluded
between the parties, EUR 7,002 as compensation for the unilateral breach of the
contract without just cause, corresponding to the residual value of the contracts,
and legal fees, plus interests of 5% p.a. over the aforementioned amounts. In
addition, the player requests that the club should be banned from registering any
new players, either nationally or internationally, for two registration periods.
17.
On the other hand, the members of the Chamber noted that the Respondent
argues that, in the light of art. 10 of the contract, the termination of the contract
was with just cause and thus valid, since the player abandoned his activities with
the Respondent and started training with club P without the club’s consent.
Therefore and considering the fact that the Claimant signed a new contract after
the termination of the contract, the Respondent deems that it does not owe the
Claimant any outstanding salaries or compensation.
18.
Having established the aforementioned, the members of the DRC deemed that the
underlying issue in this dispute, considering the claim of the player and the
allegations of the club, was to determine whether the employment contract had
been unilaterally terminated with or without just cause by the club, and which
party was responsible for the early termination of the contractual relationship in
question. The Chamber also underlined that, subsequently, if it were found that
the employment contract was terminated by the Respondent without just cause, it
would be necessary to determine the financial and/or sporting consequences for
the party that caused the unjust breach of the relevant employment contract.
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19.
Consequently, and in order to decide whether the employment contract had to be
considered as unilaterally terminated by the Respondent with or without just
cause, the Chamber, first of all, went on to analyse the contents of art. 10 of the
employment contract, which was invoked by the Respondent in the context of the
termination of the contract.
20.
In this respect, the Chamber noted that art. 10 of the employment contract
stipulates that “All the terms of the present agreement are essential and violation
of any term of the contract by any concerned party, gives the right to the innocent
party to report the agreement and ask for legal compensation”.
21.
At this point, the DRC noted that, as per the aforementioned article, the
termination of the employment contract – a measure which should be reserved for
cases in which the continuation of the employment relation has been made
impossible due to a severe violation of the contractual terms by one of the parties
– could be immediately applicable in case of any breach of contract, without the
need to prove that more lenient measures had been applied, but were unable to
re-establish contractual stability.
22.
In this respect, the DRC observed that, in the case at hand, the termination of the
contract was indeed the first and only measure taken by the Respondent in reply
to the Claimant’s alleged violation of his contractual obligations, consisting of
unauthorized training with club P.
23.
Furthermore, there was no evidence presented by the club that the Respondent
had actually warned the player about the alleged infringement to the contract or
requested his return. In this regard, the Chamber deemed that the termination – a
measure that should be considered as ultima ratio – was indeed disproportional
under the circumstances at hand.
24.
In this context, the Chamber was eager to emphasise that, in any case, only a
breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective
criteria, which do not reasonably permit to expect a continuation of the
employment relationship between the parties, a contract may be terminated
prematurely. 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,
otherwise the termination risks to be considered disproportional and unjustified.
25.
In the light of the above, the members of the Chamber unanimously concluded
that art. 10 of the employment contract does not constitute, by itself, a reason
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that can be validly invoked nor a legal basis to unilaterally terminate the contract
with just cause, should its application not be duly and thoroughly justified, and
should the proportionality of said measure and the inefficiency of less strict ones
to reestablish contractual balance not be duly demonstrated.
26.
In view of the above, the Chamber was of the opinion that, even if the player had
acted as asserted by the Respondent, the latter would not have had just cause to
prematurely terminate the employment contract with the Claimant on that basis,
since there would have been more lenient measures to be taken in order to
sanction the alleged misconduct (e.g., among others, a suspension or a fine).
27.
In continuation, the DRC was eager to emphasize that the club already had
outstanding amounts towards the player by the time of the termination,
corresponding to the player’s monthly salary for December 2008 and part of his
salary for January 2009, until the date of termination.
28.
Furthermore, the DRC noted that the Claimant had put the Respondent in arrear,
by means of two letters sent to the club, on 30 January 2008 and 6 February 2009,
to which the club allegedly never responded. In the aforementioned
correspondence, the player also argues that the Respondent had no just cause to
uphold said payments nor to terminate the contract, since the Respondent himself
had arranged the Claimant’s tests with club P, and the Claimant was therefore not
in breach of contract.
29.
In this respect, the DRC observed that the Respondent never disputed the fact that
the player’s salary for December 2008 and his partial salary for January 2009 had
not been paid. In turn, it argued that the aforementioned amounts are however
not due, since the player had allegedly abandoned his activities with the club and
started training with club P without its authorization, reason upon which the
Respondent also based its right to invoke art. 10 of the contract and,
consequently, terminate the employment relation.
30.
In continuation 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.
31.
In this respect, the DRC analyzed whether the argument presented by the
Respondent for upholding the payment of the player’s monthly salaries and for
claiming its right to terminate the contract based on art. 10 of the contract was
indeed substantiated; in other words, if the argument of the player’s
unauthorized training with club P could be sustained.
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32.
In view of the above and bearing in mind the principle of burden of proof, the
members of the Chamber stated that the Respondent was not able to present any
evidence that the player had been warned about his alleged absence to five
training sessions and his unauthorized trainings with country P, nor that he had
been requested to resume his activities with the Respondent. Since no documents
providing that the club warned or reminded the player about the alleged
situation have been brought to the attention of the DRC by the Respondent, the
Chamber considered that the club’s argument regarding the Claimant’s alleged
breach of contract could not be sustained.
33.
Consequently, the Chamber considered that, even though the Respondent carried
the burden of proof as regards the alleged misconduct of the player which was at
the basis of the suspension of the payment of the player’s salaries and, finally, of
the premature termination of the employment contract, it did not support its
arguments with regard to the player’s alleged behaviour with any documents.
34.
Furthermore, the members of the DRC observed that, by means of his letter dated
30 January 2008, the Claimant offered the Respondent the continuation of the
employment relationship, upon the payment of the club’s arrears towards him,
and thus showed his interest in maintaining the contractual relationship with the
Respondent, which is inconsistent with the allegations of the Respondent that the
Claimant abandoned his activities with it.
35.
In view of the above, the DRC concluded that the reasons put forth by the club
not to pay the player’s salaries for the months of December 2008 and January
2009 could not be sustained, since no consistent evidence of the player’s alleged
breach of contract was presented. Thus, the DRC deemed that the Respondent had
no valid reason to uphold the payment of monthly salaries due to the Claimant
and, by failing to do that, was itself in breach of contract and consequently
deprived of the right to terminate the contract with just cause.
36.
On account of the above, the Chamber decided that the reasons invoked by the
Respondent for the unilateral termination of the employment contract, in
particular, the application of art. 10 of the contract, and for the non-payment of
the player’s salaries, in particular the unproven allegations pertaining to the
Claimant’s behaviour, cannot be accepted. Therefore, the Chamber concluded that
the employment contract was unilaterally terminated by the Respondent without
just cause.
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37.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber focused
its attention on the consequences of such breach of contract. 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 employment contract until the date on which the
contract was terminated.
38.
In this respect, the Chamber recalled that, according to the Claimant, the
outstanding amount of EUR 4,668, corresponding to the monthly salaries for
December 2008 and part of January 2009, has remained unpaid by the
Respondent. The Respondent, for its part, based its refusal to acquit the
aforementioned amount on the fact that the player had left the club without just
cause, which was rejected by the DRC in view of the aforementioned
considerations.
39.
As a result and in line with the legal principle of pacta sunt servanda, the Chamber
concluded that the Claimant was entitled to receive from the Respondent the
salary for December 2009 and the partial salary for January 2010. Considering that
the contract was terminated on 13 January 2009, the Claimant would be entitled
to his entire salary for December 2008, i.e. EUR 1,934 as per the first contract and
EUR 400 as per the second contract, as well as half of his salary of January 2009,
i.e. EUR 967 as per the first contract and EUR 200 as per the second contract, in the
total amount of EUR 3,501.
40.
Referring to the alleged obligation of the Respondent to pay the Claimant a
monthly amount of EUR 300 as rent expenses, the DRC found that there was no
contractual basis to it, since the Claimant alleged that this amount was orally
agreed. The members of the DRC once again recalled art. 12 par. 3 of the
Procedural Rules and the principle of burden of proof, and pointed out that no
documentary evidence that the Respondent would be liable to pay the
aforementioned amount was presented by the Claimant. Hence, in the light of art.
12 par. 3 of the Procedural Rules the amount of EUR 600, claimed for rent
expenses for December 2008 and January 2009, cannot be granted to the
Claimant.
41.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for the unjustified 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
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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.
42.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. The Chamber established that no such compensation clause was included
in the contract at the basis of the matter at stake.
43.
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.
44.
The Chamber took into account, inter alia, in line with art. 17 par. 1 of the
Regulations, the remuneration due to the Claimant in accordance with the
employment contract as well as the time remaining on the same contract and the
professional situation of the Claimant after the early termination occurred.
45.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contracts
until 30 April 2009, a date which can be inferred by the amount of monthly
instalments due to the player, as per art. 2 of both contracts, i.e. 9 equal monthly
instalments payable as of 30 August 2008. Consequently, the Chamber concluded
that the amount of EUR 8,169, i.e. calculation of salaries falling due as from the
date of termination, 13 January 2009, until the end of the contract, 30 April 2009,
taking into account the monthly remuneration stipulated in both contracts, serves
as the basis for the final determination of the amount of compensation for breach
of contract.
46.
Indeed, on 11 February 2009, the player found employment with the club L. In
accordance with the pertinent employment contract, which has been made
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available by the player, valid until 30 April 2010, the player was entitled to receive
in salaries the total amount of EUR 5,000 for the entire duration of the contract.
47.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the player 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.
48.
Taking into account the aforementioned considerations and the specificities of the
case at hand, the Chamber decided that the Respondent must not pay the entire
residual value of the employment contract, but the amount of EUR 3,169, i.e. EUR
8,169 minus EUR 5,000, which was to be considered reasonable and justified as
compensation for breach of contract.
49.
Furthermore, the Dispute Resolution Chamber held that the Claimant’s claim
pertaining to legal costs is rejected in accordance with art. 15. par. 3 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence.
50.
Lastly, the Chamber turned its attention to the Claimant’s request that the
Respondent should be banned from registering any new players, either nationally
or internationally, for two registration periods.
51.
Consequently, the Chamber went on to establish whether sporting sanctions were
to be imposed on the Respondent based on the latter’s breach of contract. The
Chamber recalled that art. 17 par. 3 of the Regulations provides for the possibility
to impose sporting sanctions for a breach of contract which occurs within the
protected period. In this respect, the Chamber referred to item 7. of the
Definitions section of the Regulations, which defines the protected period as
“three entire seasons or three years, whichever comes first, following the entry
into force of a contract, where such contract is concluded prior to the 28th
birthday of the professional, or two entire seasons or two years, whichever comes
first, following the entry into force of a contract, where such contract is concluded
after the 28th birthday of the professional”.
52.
On account of the foregoing, the Chamber noted that the aforementioned breach
occurred in the course of a contract concluded for a period of nine months, that is,
irrespective of the age of the player, in any case within the protected period.
Likewise, the Chamber underlined that, in principle, art. 17 par. 3 of the
Regulations provides for the imposition of sporting sanctions in case of a breach
of contract within the protected period.
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53.
However, after short deliberations, the Chamber concurred that, considering the
nature of the violations to the contract committed by the Respondent as well as
the amount claimed by the Claimant, the Chamber considered that it would be
disproportionate to impose sporting sanctions against the Respondent.
54.
On account of all the above-mentioned considerations, the Chamber decided to
partially accept the claim of the Claimant and that the Respondent is liable to pay
to the Claimant the amount of EUR 3,501 as outstanding remuneration, plus
interests of 5% p.a. – as of 30 December 2008 over the amount of EUR 2,334 and
as of 14 January 2009 over the amount of EUR 1,167 –, and the amount of EUR
3,169 as compensation for breach of contract, plus interests of 5% as from the
date of notification of the decision.
55.
The Chamber concluded its deliberations in the present matter by establishing
that any further claims of the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, N, has 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 3,501, plus interest of 5% p.a. until the date of effective payment as follows:
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5% p.a. as of 30 December 2008 over the amount of EUR 2,334;
5% p.a. as of 14 January 2009 over the amount of EUR 1,167.
3.
The Respondent, N, 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 3,169, plus interest of 5% p.a. as from the date of notification of
this decision until the date of effective payment.
4.
If the aforementioned sums plus interest are not paid within the above-mentioned
time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for its consideration and a formal decision.
5.
Any further claims lodged by the Claimant, B, are rejected.
6.
The Claimant, B, is directed to inform the Respondent, N 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.
*****
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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
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