Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 6 November 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Theo van Seggelen (Netherlands), member Carlos González Puche (Colombia), member Theodore Giannikos (Greece), member Mohamed Al-Saikhan (Saudi Arabia), 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. On 30 July 2010, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), valid as from the date of signature until 31 June According to art. 3 of the contract, the Respondent undertakes to pay the Claimant, inter alia, the following amounts: - Season total of USD 250,000, payable as follow: - USD 150,000 due immediately upon signing of the contract; - USD 60,000 as total salary, payable in monthly instalments of USD 6,000 over ten months beginning on 1 August 2010; - USD 40,000 due in April 2011 when 70% of the held matches completed during the contract period. - Season , total amount of USD 150,000, payable as follow: - USD 50,000 due in August 2011; (note: date not specified); - USD 60,000 as total salary, payable in monthly instalments of USD 6,000 over ten months beginning on 1 August 2011 (USD 6,000 x 10 months = USD 60,000); - USD 40,000 due in April 2012 when 70% of the held matches completed during the contract period. - a furnished apartment; - 4 roundtrip economy air tickets for the Claimant and his family. 3. From 30 August 2011 to 15 December 2011, the Claimant was on loan with the club from country F, Club E. 4. On 13 March 2012, the Claimant terminated the contract with the Respondent in writing, after having warned it of its alleged failure to renew his work permit and to pay his salaries from 1 December 2010 to 1 May 2011 and from January to February Player A, country B / Club C, country D 2/12

3 5. On 6 November 2012, the Claimant lodged a claim before FIFA against the Respondent for breach of contract and requested the payment of the total amount of USD 166,000, plus interest of 5% p.a., made up of: - USD 100,000 corresponding to the outstanding portion of the USD 150,000 due immediately upon signing of the contract; - USD 36,000 corresponding to outstanding monthly salaries for the period December 2010 through May 2011 (USD 6,000 x 6 months); - USD 12,000 corresponding to outstanding monthly salaries for the period January through February 2012 (USD 6,000 x 2 months); - USD 18,000 as compensation, corresponding to the residual value of the contract; - Legal fees; - Sporting sanctions. 6. In his arguments, the Claimant states that the Respondent paid him only USD 50,000 of the USD 150,000 it owed him upon signing the contract. Though the Respondent apparently paid the Claimant his monthly salaries from August through November 2010, the Claimant asserts that the Respondent failed to pay his monthly salaries from December 2010 through May 2011 despite his several verbal complaints. In addition, the Claimant states that his permit from country D of residence expired on 9 June 2011, and the Respondent allegedly did not renew it. 7. After the end of his loan with Club E on 15 December 2011, the Claimant apparently re-joined the Respondent during its training camp held in country G during January and February The Claimant confirms that the Respondent informed him during the training camp that it was not counting on him and thus he could search for a new club. The Claimant provided a letter dated 13 March 2012 stating that the Claimant did not meet the head coach s requirements and that the club was open to any negotiations for the Claimant s transfer to a new club. 8. The Claimant asserts that, on 3 February 2012, he began searching for a new club because the training camp had ended and he was unable to return to country D with the other players because of the fact that his visa has expired on 9 June Player A, country B / Club C, country D 3/12

4 9. The Claimant further claims that, on 10 February 2012, apparently the same day on which the winter transfer window closed, the Respondent issued a letter concerning the financial conditions it demanded for the transfer of the Claimant to a third club. The Claimant argues that it was absurd for the Respondent to issue its letter on the last day of the transfer window while also failing to renew the Claimant s visa for him to re-join the team in country D. In addition, the Claimant argues that the Respondent never requested the ITC required to register the Claimant in country D following his loan period with the club from country F. Furthermore, the Claimant allegedly made several verbal requests to the Respondent s officials asking them to send a new visa and permit, but the Respondent apparently failed to do so. 10. On 8 March 2012, the Claimant sent a fax to the Respondent requesting the permit to enter country D and the immediate payment of his outstanding salaries. 11. On 12 March 2012, not having received a reply from the Respondent, the Claimant sent a second and final fax to the Respondent requesting that it fulfil its obligations towards the Claimant within 24 hours of receiving the fax. He also mentioned in its fax that, should the Respondent fail to provide the Claimant with his outstanding salaries, his residence and work permits, he would terminate the contract with just cause and immediate effect. 12. On 13 March 2012, the Respondent replied by stating that it had already fulfilled all of its obligations towards the Claimant, including having paid all salaries due to the Claimant. The Respondent further states that, because the Claimant was unable to find a new club during the winter transfer window, he remained a player of Club C and thus he has to be with the team at the moment but unfortunately, he has not still arrived. 13. On 13 March 2012, after receiving the Respondent s reply, the Claimant sent a letter to the Respondent in which he rejected the contents of the Respondent s correspondence as being false and of the utter bad faith and unilaterally terminated the contract with immediate effect. Player A, country B / Club C, country D 4/12

5 14. In its response to the Claimant s claim, the Respondent argues that it fulfilled all of its contractual obligations towards the Claimant until the contract expired. The Respondent further states that it was open to the Claimant joining another team and that it gave him until the close of the winter transfer window to do so. Nevertheless, the Respondent argues that the Claimant failed to return to country D and instead continued training on the base of Club E where he played on basis of loan, without any permission of Club C. 15. The Respondent also provides with its response a document dated 26 November 2012 issued by Bank Standard to FIFA, upon the request of the Respondent. In the document, the bank lists seven transfers that were made to the Claimant s salary card from 5 April 2012 through 12 July 2012, amounting to country D currency 8, Finally, the Respondent reiterates that it provided the necessary conditions for the free loan of the Claimant to Club E and that it would be unfair of the Claimant to demand the payment of the outstanding part of the contract while he was receiving salary from the club from country F. Lastly, the Respondent states that the Claimant continued to receive salaries on his bank card until the end of the 2011/2012 season. 17. The Claimant informed FIFA that he did not sign any new contract before 31 June 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 6 November Consequently, the 2008 edition of the Rules governing the procedures of the Players Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural Rules). Player A, country B / Club C, country D 5/12

6 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in combination with art. 22 b) of the Regulations on the Status and Transfer of Players (edition 2010, 2012 and 2014; hereinafter: the Regulations), 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 an 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 (edition 2010, 2012 and 2014), and considering that the present claim was lodged on 6 November 2012, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. Subsequently, the DRC duly noted that with regard to the fact that the employment contract at the basis of the dispute was concluded on 30 July 2010, and that the Claimant had lodged his claim on 6 November 2012, he should examine if the present claim, or any part of it, could be possibly time-barred. 5. In this respect, the members of the Chamber referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case. 6. Bearing in mind the foregoing, the DRC referred to the claim of the Claimant, according to which the latter requested inter alia the payment of USD 100,000, a portion of an instalment of USD 150,000 which was due upon the signature of the employment contract, i.e. on 30 July As a consequence, recalling that the present claim was submitted to FIFA on 6 November 2012, the DRC concluded that the time limit of two years had elapsed for Player A, country B / Club C, country D 6/12

7 claiming the portion of the instalment of USD 100,000. Therefore, such specific request of the Claimant was time-barred and, consequently, inadmissible. The Chamber concluded its reasoning by stating that the Claimant s other requests were made within the 2 years time limit and, therefore will be further analysed as to their substance. 8. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 9. First of all, the members of the Chamber acknowledged that it was undisputed by the parties that, on 30 July 2010, they had concluded an employment contract valid as from the date of signature until 31 June 2012, in accordance with which the Claimant was to receive the amounts detailed in point I.2. above. Furthermore, the Chamber also noted that it was an undisputed fact that, during the period of 30 August 2011 to 15 December 2011, the Claimant had been on loan with a club from country F (cf. point I.3. above). 10. The DRC further observed that the Claimant lodged a claim in front of FIFA on 6 November 2012 against the Respondent for breach of contract without just cause indicating that the latter had not provided him with the necessary permits to enter the country after his loan and had failed to pay him several contractual monies. In particular, the members of the Chamber noted that, after not having received the entire amount of the first instalment (cf. point. I. 6. above) as well as his salaries from December 2010 to May 2011, he terminated his contract with the Respondent on 13 March In this respect, the members of the Chamber took note of the Claimant s default notices dated 8 and 12 March 2012 addressed to the Respondent, copies of which can be found on file, and by means of which the Claimant reminded the Player A, country B / Club C, country D 7/12

8 Respondent of its salary arrears towards him, and subsequently requested the permits to enter country D. 11. Thereafter, the members of the Chamber took note of the reply of the Respondent, who alleged having fulfilled all of its contractual obligations towards the Claimant and that the latter never returned to the club following his loan period. 12. Having taken into consideration the foregoing and bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber was eager to point out that the Respondent had failed to present any relevant documentation in support of its position. In particular, the members of the Chamber observed that the Respondent was not able to provide the DRC with any clear, precise and convincing evidence in support of the alleged payment of the salaries claimed by the Claimant as outstanding. 13. Furthermore, the DRC noted that the Respondent did not provide any proof of having requested the return the return of the Claimant s ITC after the end of his loan with Club E. This is confirmed by the information contained in the Transfer Matching System (TMS). 14. In this context, the DRC referred to its well-established jurisprudence and emphasised that, as a general rule, it is the club s duty and responsibility to act accordingly in order to obtain, if necessary, a work permit or a visa for its players prior to the signing of an employment contract or during its period of validity, in order for players to be able to legally enter a particular country and be in a position to render their services to the club. 15. On account of the above, the Chamber established that the Respondent had failed to carry out the necessary arrangements in order for the player to re-enter the country after the end of his loan with Club E, and had equally failed to pay the Claimant his monthly salaries from December 2010 to May 2011 and his salaries for January and February In view of the foregoing, the Chamber concurred that the Claimant Player A, country B / Club C, country D 8/12

9 had a just cause to unilaterally terminate the employment contract on 13 March 2012 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 16. Bearing in mind the previous considerations, the DRC went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 17. Firstly, the Chamber concurred that the Respondent must fulfill its obligations as per the employment contract in accordance with the general legal principle of pacta sunt servanda. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the early termination of the employment contract by the Claimant, i.e. the amount of USD 48, Secondly, and considering the Claimant s claim for interest, the Chamber determined that the Respondent must pay 5% interest p.a. on the amount of USD 48,000 as of the date on which the claim was lodged, i.e. 6 November 2012, until the date of effective payment. 19. In continuation, the DRC decided that, taking into consideration the Claimant s respective claim and art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 20. In this context, the Chamber outlined that, in accordance with said provision, 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. Player A, country B / Club C, country D 9/12

10 21. 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. 22. The Chamber then took due note of the employment situation of the Claimant after the termination of the contract at the basis of the case at stake. Bearing in mind art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such remuneration under a new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract. In this regard, the members of the Chamber noted that the Claimant had not signed any new employment contract within the period of time between the termination of the contract and its original date of expiry and, thus, had not been able to mitigate damages. In this context, the Chamber found it reasonable that the Claimant had not been able to find new employment within the relevant period of 3 months only. 23. In view of the above, the Chamber concluded that, for the period as from 13 March 2012 to 30 May 2012, during which the Claimant remained unemployed, the residual value of the contract signed with the Respondent was USD 18, Therefore the DRC decided that the Respondent must pay the amount of USD 18,000 to the Claimant, which is considered by the DRC to be a reasonable and justified amount as compensation for breach of contract. 25. In addition, taking into account the Claimant s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 6 November 2012, until the date of effective payment. Player A, country B / Club C, country D 10/12

11 26. For all the above considerations, the DRC decided to partially accept the Claimant s claim insofar as it is admissible, and held that the Respondent is liable to pay the total amount of USD 66,000 to the Claimant, consisting of the amount of USD 48,000 plus interest of 5% p.a. as from 6 November 2012 until the date of effective payment, corresponding to the Claimant s outstanding remuneration at the time of the unilateral termination of the contract with just cause by the Claimant and the amount of USD 18,000 plus interest of 5% p.a. as from 6 November 2012 until the date of effective payment, corresponding to the compensation for the breach of contract. 27. The DRC concluded its deliberations in the present matter by establishing that any further claim of the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted, insofar as it is admissible. 2. The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD plus interest of 5% p.a. as from 6 November 2012 until the date of effective payment. 3. 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 USD plus interest of 5% p.a. as from 6 November 2012 until the date of effective payment. 4. In the event that the amounts due to the Claimant plus interest are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claims lodged by the Claimant are rejected. Player A, country B / Club C, country D 11/12

12 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. ***** 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: Jérôme Valcke Secretary General Encl: CAS directives Player A, country B / Club C, country D 12/12