Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 31 July 2013, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Ivan Gazidis (England), member on the claim presented by the player, Player A, country B as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties

2 I. Facts of the case 1. The player from country B, Player A (hereinafter: player or Claimant), and the club from country D, Club C (hereinafter: club or Respondent), entered into an employment contract valid until 30 June The parties also signed a private agreement whereby additional financial conditions were agreed to. 3. Moreover, the parties signed a second private agreement in which it was mutually agreed that in case of a permit transfer of Player X to another club, or any other releasing of his contract (till 30/08/2011) the club is obliged to up grate the private agreement more in 1 installment at 30/05/ According to the contract, the club agreed to pay/provide to the player, inter alia, the following: EUR 826 as salary, payable at the latest at the end of each month, 12 months per year; EUR 826 as Christmas bonus; EUR 413 as Easter bonus and EUR 413 as holiday bonus; EUR 77,500 payable according to the following schedule: EUR 7,500 on 30 September 2011; EUR 7,500 on 30 January 2012; EUR 12,500 on 30 April 2012; EUR 7,500 on 30 July 2012; EUR 12,000 on 30 September 2012; EUR 13,000 on 30 January 2013; and EUR 17,500 on 30 April Pension contributions and social security expenses, as foreseen by the law, promptly and fully paid. 5. According to the agreement, in addition to the amounts provided for in the contract, the player would receive, inter alia,: Season 2011/2012 EUR 22,500 as follows: EUR 7,500, until 30 September 2011; EUR 7,500 until 30 January 2012; and EUR 7,500, until 30 April

3 Season 2012/2013 EUR 45,000 as follows: EUR 7,500, until 30 July 2012; EUR 12,000 until 30 September 2012; EUR 13,000 until 30 January 2013; EUR 12,500 until 30 April EUR 15,000 as signing-on fee. 6. By letter dated 9 March 2012, the player terminated the contract, invoking just cause. 7. On 9 March 2012, the player filed a claim before FIFA against the club and (i) requested the DRC to declare that he had terminated the contract and the private agreement with just cause; (ii) claimed for the payment of an aggregate amount of EUR 188,522 as follows: Outstanding remuneration EUR 4,956 as salaries from October 2011 until February 2012, plus the Christmas bonus. EUR 4,500 as pension contributions due between June 2011 and February 2012; EUR 15,000 as per the amounts due under the contract (EUR 7,500 due on 30 September 2011 and EUR 7,500 due in January 2012); EUR 35,000 as per the amounts due under the private agreement (EUR 7,500 until 30 September 2011; EUR 7,500 until 30 January 2012 and EUR 20,000 because of the transfer of the goalkeeper Player X ). Compensation EUR 129,066, as the residual value of the contract and the private agreement. The player also requests for the reimbursement of proceedings and attorney s fees. 8. According to the player, to the date of the claim, he had only received from the club, the corresponding signing-on fee and three monthly salaries. 9. By letter dated 5 March 2012 addressed to the club, the player requested the payment of EUR 59,456 which were allegedly outstanding, however, to no avail. 3

4 10. In spite of having been invited to do so, the club has not presented any reply to the player s claim. 11. On 8 August 2012, the player informed FIFA that he had signed a contract with the club from country B, Club M, valid as from 15 July 2012 until 30 May 2014, according to which he was entitled, inter alia, to a monthly salary of EUR 1,200, plus a signing-on fee of EUR 5,000 for each of the two seasons. ***** II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 9 March 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 par. 3 of the 2008 and 2012 editions 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 par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), 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 from country B and a club from country D. 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 2012 and 2010), and considering that the present claim was lodged on 9 March 2012, the 2010 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. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. In this respect, the Chamber recalled that the parties had signed an employment contract as well as a private agreement, both valid as from 1 August 2011 until 30 June

5 5. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the employment contract with just cause on 9 March 2012, after previously having put the club in default, since the Respondent allegedly failed to pay the Claimant s remuneration. In this respect, the Claimant submits to have only received the corresponding signing-on fee and three monthly salaries from the Respondent at the time he terminated the employment contract. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. 6. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. Consequently, the Chamber deemed that the Respondent had renounced to its right of defence and, thus, had accepted the allegations of the Claimant. 7. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant. 8. In accordance with the employment contract and the private agreement, the Respondent, in addition to the sign-on fee and the first three salaries, was obliged to pay to the Claimant at the time the contract was terminated by the player, i.e. on 9 March 2012, the amount of EUR 15,000 due on 30 September 2011, the amount of EUR 15,000 due on 30 January 2012, and the amount of EUR 4,956 as salary for the months of October 2011 until February 2012 plus the corresponding Christmas bonus. 9. On account of the aforementioned, in particular in view of the considerations under point II./7. and II./8. above, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant, until 9 March 2012, date on which the Claimant terminated the contract, the total amount of EUR 34,956. Consequently, and considering that the Respondent had repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 9 March 2012 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 5

6 10. In continuation, 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 focused its attention on the consequences of such termination. In this regard, the members of the Chamber determined that the Respondent was not only to pay the amount of EUR 34,956 as outstanding remuneration to the Claimant, but also to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations. 11. Having stated the above, the Chamber turned to 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. 12. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained 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. 13. 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. 14. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 30 June 2013, taking into account that the player s remuneration until March 2012 is included in the calculation of the outstanding remuneration (cf. no. II./9. above). Consequently, the Chamber concluded that the amount of EUR 129,066 (i.e. remuneration as from March

7 until June 2013) serves as the basis for the determination of the amount of compensation for breach of contract. 15. 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. 16. Indeed, on 15 July 2012, the Claimant found employment with the club from country B, Club M. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid until 30 May 2014, the Claimant was entitled to receive a monthly salary of EUR 1,200 as well as a signing-on fee of EUR 5,000. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and Club M for the period as from July 2012 until and including June 2013 amounted to EUR 19, 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 109,666 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 18. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant s claim and that the Respondent must pay to the Claimant the amount of EUR 34,956 as outstanding remuneration and EUR 109,666 as compensation for breach of contract. 19. 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. 20. In continuation, the Chamber focused its attention on the further consequences of the breach of contract in question and, in this respect, addressed the question of sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates inter alia that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on a club found to be in breach of contract during the protected period. 21. Subsequently, the members of the Chamber referred to item 7 of the Definitions section of the Regulations, which stipulates, inter alia, that the protected period 7

8 shall last for 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 28 th 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 28 th birthday of the professional. In this respect, the Chamber took note that the breach of the employment contract by the Respondent had occurred in the beginning of March Therefore, the Chamber concluded that such breach of contract by the Respondent had occurred within the protected period. 22. As a result, by virtue of art. 17 par. 4 of the Regulations and also considering that the Respondent had on a previous occasion been found in breach of an employment contract without just cause by the Chamber, the Chamber decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. 23. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 34, The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 109, In the event that the aforementioned amounts are not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further request filed by the Claimant is rejected 8

9 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. 7. The Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. ***** 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 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Encl. CAS directives 9