Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 January 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Zola Percival Majavu (South Africa), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 21 January 2011, the player from country B, Player A (hereinafter: the player
or the Claimant), and the club from country D, Club C (hereinafter: the club or the
Respondent), signed an employment contract valid as from 21 January 2011 until
31 May 2013.
2.
In accordance with the above-mentioned contract, the Claimant was, inter alia,
entitled to receive the following amounts:
-For the 2010/2011 season: the amount of EUR 250,000 paid as followed:
EUR 50,000 as a signing-on fee payable on 10 February 2011;
EUR 120,000, payable in 4 equal installments of EUR 30,000
between 5 March 2011 and 5 June 2011;
EUR 80,000 for 16 matches i.e. EUR 5,000 per match.
-For the 2011/2012 season: the amount of EUR 500,000 paid as followed:
EUR 150,000 as a lump sum payable on 31 August 2011;
EUR 200,000, payable in 10 equal installments of EUR 20,000
between 5 September 2011 and 5 June 2012;
EUR 150,000 for 34 matches i.e. EUR 4,441 per match.
-For the 2012/2013 season: the amount of EUR 550,000.
3.
On 27 December 2011, the player lodged a claim against the club in front of FIFA
indicating that he had terminated the contract with just cause on 25 November
2011. As a result, the player requested the payment of EUR 201,250 as
outstanding remuneration and EUR 804,686 as compensation for breach of
contract.
4.
On 8 February 2012, the player signed a contract with the club from country B,
Club E, valid between 8 February 2012 and 30 June 2012, in accordance with
which he earned the total amount of EUR 22,760.
5.
After two exchanges of correspondence between the player and club, the player,
on 4 September 2012, requested the withdrawal of the claim and asked for the
“remission” of the proceedings: “This withdrawal of the claim lodged in the case
ref. no X is justified by the fact that the Parties have reached agreement on
repayment of debt and have concluded the new professional contract recently.
The Club is now obliged to repay all the debts from the previous contract.”
6.
Therefore, on 5 September 2012, the FIFA administration informed the parties of
the closure of the file.
Player A, from country B / Club C, from country D
Page 2 of 12
7.
On 23 August 2012, the player and club concluded a new employment contract
valid as from 23 August 2012 until 31 May 2014, in accordance with which the
player was entitled, in the 2012/2013 season, to the amount of EUR 400,000, as
follows:
EUR 50,000 payable upon signing the contract;
EUR 25,000 payable until 30 September 2012;
EUR 25,000 payable until 31 October 2012;
EUR 125,000 payable in 10 equal installments of EUR 12,500 in each month
between 5 September 2012 and 5 June 2013;
EUR 125,000 for 34 matches (EUR 3,676 per match (100% if in the starting lineup, 75% if he enters as a sub and 50% if he is “in the first 18”).
EUR 50,000 as bonus should the club promote to the first league.
8.
Art. 2 of the contract stipulates that should the club not promote to the first
league, the amounts for the 2013/2014 season shall be “at least identical” to the
2012/2013 season.
9.
Furthermore, art. 6 of the contract stipulates that: ”if the Parties will not extend
the term of this contract for the 2014/2015 season or will not sign the new
professional player contract for the 2014/2015 season, the CLUB shall pay the
PLAYER the compensation in the amount of EUR 100,000. The compensation shall
be paid until 30.06.2014.”
10.
On 25 September 2013, the player contacted FIFA submitting an “application for
establishing Player’s Status”, outlining that he had terminated the contract with
the club with just cause on 19 August 2013, since the club had not paid him the
outstanding amount of EUR 311,500 despite having sent two reminders.
11.
In this respect, the player submitted the following three letters:
i)
ii)
iii)
12.
the termination letter dated 19 August 2013;
a letter dated 2 August 2013 in which the player asked for the amount of
EUR 110,250, awaiting a reply for 14 days;
a letter dated 5 August 2013 in which the player requested payment of
the amount of EUR 311,500 within 14 days, i.e. EUR 110,250 for the
2012/2013 season and EUR 201,250 for the 2010/2011 and 2011/2012
season on the basis of the contract dated 21 January 2011.
The player emphasized that, on 27 December 2011, he already initiated
proceedings in front of the DRC, but that his claim was withdrawn “without
renouncing Applicant’s claims, as the parties reached an agreement on repayment
of debt and on 23rd August 2012 they concluded a new professional player
contract.”
Player A, from country B / Club C, from country D
Page 3 of 12
13.
On 7 October 2013, the player submitted the financial part of his claim requesting
payment of the following amounts:
- EUR 201,250 as outstanding remuneration regarding the contract dated 21
January 2011;
- EUR 231,926 as compensation for breach of contract regarding the contract
dated 21 January 2011;
- EUR 110,250 as outstanding remuneration regarding the contract dated 23
August 2012;
- EUR 450,000 as compensation for breach of contract regarding the contract
dated 23 August 2013.
- EUR 16,319.44 as compensation for the “violation of the player’s personality
rights”.
14.
In his claim, the player explained the situation leading up to the termination of
the contract dated 21 January 2011 and indicated that the parties reached an oral
agreement on the repayment of debt by the club. Thereafter, on 23 August 2012,
the parties concluded a new contract. However, the player indicated that despite
the oral agreement on the repayment of debt, the club never fulfilled its
obligations arising from such agreement and never paid the outstanding
remuneration.
15.
On 25 October 2013, after having been requested by FIFA to provide a breakdown
of the amounts claimed, the player amended his claims for outstanding
remuneration as follows:
EUR 245,431.30:
as outstanding remuneration regarding the contract dated 21 January 2011. The
player explained that he had received the amount of EUR 224,000 only while he
was entitled to EUR 469,431.30, in accordance with the following breakdown:
- EUR 50,000 as the signing on fee payable on 10 February 2011;
- EUR 120,000 between 5 March 2011 and 5 June 2011;
- EUR 46,250 for appearance fees for games played between 30 January 2011
and 18 April 2011;
- EUR 150,000 as the lump sum payment due on 31 August 2011.
- EUR 83,333, as the proportion of the salaries for the months of July to 25
November 2011;
- EUR 19,848 for appearance fees for games played between 24 September
2011 and 20 November 2011.
EUR 142,100.30
as outstanding remuneration regarding the contract dated 23 August 2012. The
player explained that he had received the amount of EUR 231,474, while he was
entitled to EUR 373,574.30, in accordance with the following breakdown:
- EUR 100,000 as a signing fee;
Player A, from country B / Club C, from country D
Page 4 of 12
- EUR 125,000 payable between 5 September 2012 and 5 June 2013;
- EUR 127,741 for appearances fees for games played between 27 August 2012
and 26 May 2013. The player indicated that between 27 August 2012 and 26
May 2013, including play-offs, he had played in 31 matches in the first 11 (31 x
EUR 3,676), in 5 matches as a substitute (5 x EUR 2,757) and in 1 match he was
“in the first 18” (1 x EUR 1,838).
- EUR 20,833.30 as the proportional part of the salary for July until 19 August
2013.
16.
Finally, the player requested 5% interest on the outstanding remuneration.
17.
In spite of having requested – and been granted - a deadline to reply to the claim
of the player, the club did not provide its position.
18.
On 11 September 2013, the player signed a new contract with the club from
country B, Club F, valid as from 11 September 2013 until 30 June 2014 in
accordance with which the player was entitled to the gross some of
-
12,383 in the period between 11 and 30 September 2013;
167,175 in the period between 1 October 2013 and 30 June 2014.
19.
The player indicated however that on 25 September 2013, due to the uncertainty
whether the player could be registered with Club F, the parties amended the
contract agreeing that the contract would be binding upon them provided that
the player is entitled to play for said club. In this respect, the parties agreed that
between 1 January 2014 and 30 June 2014 the player is entitled to 111,450
payable in 6 monthly salaries of 18,575. According to the player, he was
eventually only registered with the club from country B on 12 February 2014 and
states that thus, until 12 February 2014, he did not receive any remuneration,
reason for which he deemed that only the amount of 111,450 should be
deducted, resulting in an amount of compensation for breach of contract of EUR
423,209.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 25 September 2013. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 of
the 2012 and 2014 edition of the Procedural Rules).
Player A, from country B / Club C, from country D
Page 5 of 12
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 lit. b) of the Regulations on the Status and Transfer of
Players, 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 edition of the Regulations on the
Status and Transfer of Players 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 2012 and 2014) and
considering that the present claim was lodged in front of FIFA on 25 September
2013, the 2012 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
4.
The applicable regulations having been established, and entering into the
substance of the matter, the Chamber started by acknowledging the abovementioned facts as well as the documentation contained in the file. 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.
5.
As a preliminary point, the Chamber recalled that the Claimant had signed two
employment contracts with the club; the first one on 21 January 2011 and the
second one on 23 August 2012. In this respect, the Chamber noted that on 27
December 2011 the Claimant had already lodged a claim in front of FIFA in
relation to the contract dated 21 January 2011 requesting outstanding
remuneration as well as compensation for breach of contract, alleging that he
had terminated said contract with just cause on 25 November 2011.
6.
What is more, the Chamber pointed out that after two exchanges of
correspondence during the procedure X, which dealt with the contract dated 21
January 2011, the Claimant had eventually withdrawn its claim explicitly stating
that “This withdrawal of the claim lodged in the case ref. no X is justified by the
fact that the Parties have reached agreement on repayment of debt and have
concluded the new professional contract recently. The Club is now obliged to
repay all the debts from the previous contract.” As a consequence, said
proceedings were terminated.
7.
In this context, the members of the Chamber duly noted that the Claimant alleged
in his claim dated 25 September 2013 that the parties had reached an oral
agreement on the repayment of debt by the club, reason for which the second
employment contract was signed on 23 August 2012. Despite such oral
agreement, the Respondent allegedly never fulfilled its obligations arising from
such agreement and never paid the outstanding remuneration.
Player A, from country B / Club C, from country D
Page 6 of 12
8.
In this respect, the Chamber referred to the basic principle of the burden of proof,
as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective burden of
proof. In this sense, the Chamber underlined that there had been no evidence
provided by the Claimant that an oral agreement had been reached between the
parties and that such agreement was the reason for the conclusion of the second
employment contract.
9.
As a result, considering that i) the initial claim of the Claimant dated 27 December
2011 had already been sent to the Respondent, ii) that two exchanges of
correspondence had been held in the procedure X, iii) that the Claimant had
explicitly confirmed that the claim dated 27 December 2011 could be considered
withdrawn, and iv) that no evidence regarding an oral agreement had been
presented, the Chamber decided that it could no longer adjudicate on any
requests regarding the employment contract dated 21 January 2011.
10.
As a consequence, the Chamber ruled that it could only enter into deliberations
regarding the contract signed between the parties on 23 August 2012.
11.
The Chamber recalled that according to the contract dated 23 August 2012, the
parties established, among other details, that the Claimant was entitled to the
amount of EUR 400,000 in the 2012/2013 season, payable as follows:
-
EUR 50,000 payable upon signing the contract;
EUR 25,000 payable until 30 September 2012;
EUR 25,000 payable until 31 October 2012:
EUR 125,000 payable in 10 equal installments of EUR 12,500 in each
month between 5 September 2012 and 5 June 2013.
EUR 125,000 for 34 matches (EUR 3,676 per match (100% if in the starting
line-up, 75% if he enters as a sub and 50% if he is “in the first 18”).
EUR 50,000 as bonus should the club promote to the first league.
12.
Also, the Chamber observed that for the 2013/2014 season, the contract stipulated
that should the club not promote to the first league, the remuneration shall be
“at least identical” to the 2012/2013 season.
13.
Having recalled the financial terms of the employment contract, the members of
the Chamber noted that, following two default letters dated 2 August 2013 and 5
August 2013, the Claimant sent another letter to the Respondent on 19 August
2013 by means of which he informed the Respondent of his decision to terminate
the contract. In this respect, the Chamber acknowledged that the Claimant
asserted that he had terminated the mentioned contract with just cause on 19
August 2013, since the club had not paid him the outstanding amount of EUR
311,500 despite those two reminders.
Player A, from country B / Club C, from country D
Page 7 of 12
14.
Furthermore, the Chamber observed that the Respondent failed to present its
response to the claim of the Claimant, despite having been invited to do so. In this
way, the Chamber deemed that the Respondent renounced its right of defence
and, thus, accepted the allegations of the Claimant.
15.
As a consequence of the preceding consideration, the Chamber established that in
accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon
the basis of the documents on file.
16.
In this regard, the Chamber stressed that until the date of termination of the
contract, i.e. 19 August 2013, the Claimant was entitled to the amount of EUR
350,000, consisting of:
EUR 50,000 as the signing–on fee;
EUR 25,000 as the payment due on 30 September 2012;
EUR 25,000 as the payment due on 31 October 2012;
EUR 125,000 concerning the monthly payments between 5 September 2012
and 5 June 2013;
EUR 125,000 as match bonuses.
17.
As to the match bonuses, the Chamber clarified that contrary to the indications
put forward by the Claimant, the Chamber determined that the match bonuses
were limited in the contract to an amount of EUR 125,000. Equally, the Chamber
wished to point out that in accordance with the contract, no salary payments
were due for the months of July and August 2013 (cf. par I./15 above).
18.
Therefore, and considering that the Claimant indicated that he had only received
the amount of EUR 231,474 from the Respondent during the 2012/2013 season,
the Chamber concluded that the outstanding sum on 19 August 2013 amounted
to EUR 118,526 (EUR 350,000 – EUR 231,474).
19.
Having taken into account all the previous considerations, the Chamber decided
that it could be established that the Respondent had seriously neglected its
contractual obligations towards the Claimant in a continuous and constant
manner, i.e. the Respondent had failed to remunerate the Claimant for a
substantial period of time and for a significant amount of money, without
providing any reasons. Therefore, the Chamber considered that the Respondent
was found to be in breach of the employment contract and that the breach was
of such seriousness that, in line with the Chamber’s long-standing and wellestablished jurisprudence, the Claimant had a just cause to unilaterally terminate
the contractual relationship with the Respondent on 19 August 2013, having
previously put the Respondent in default of payment of outstanding amounts.
Player A, from country B / Club C, from country D
Page 8 of 12
20.
On account of the above, the Chamber established that the Claimant had
terminated the employment contract with just cause on 19 August 2013 and that,
consequently, the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
21.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract with just
cause by the Claimant.
22.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract in accordance with the general
legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that
the Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination i.e. the amount of EUR 118,526.
23.
In continuation, the Chamber decided that, taking into consideration 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.
24.
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.
25.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a 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.
26.
Subsequently and prior to assessing the relevant criteria in determining the
amount of compensation due to the Claimant by the Respondent, the Chamber
recalled that the Claimant is claiming the amount of EUR 450,000 as
compensation, corresponding to the remaining value of the employment contract,
i.e. the “identical” value of EUR 350,000 for the 2012/2013 season (EUR 400,000 –
the promotion bonus of EUR 50,000) plus the amount of EUR 100,000 in
accordance with art. 6 of the employment contract.
Player A, from country B / Club C, from country D
Page 9 of 12
27.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by the Respondent, the members of the Chamber took into account
the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In this
respect, the Chamber referred to its jurisprudence, according to which claims
related to an estimated loss of bonuses relating to a future season are
hypothetical and, therefore, cannot be taken into account in order to assess the
loss of financial benefit suffered by the Claimant. Consequently, the Chamber
decided not to take into account the amount of EUR 125,000 related to match
bonuses. Consequently, the Chamber concluded that the remaining value of the
contract as from its early termination by the Claimant until the regular expiry of
the contract amounts to EUR 325,000 and that such amount shall serve as the
basis for the final determination of the amount of compensation for breach of
contract.
28.
In continuation, the Chamber remarked that the Claimant had found new
employment with a club from country B, where he was entitled to 12,383 in the
period between 11 and 30 September 2013, and the amount of 167,175 in the
period between 1 October 2013 and 30 June 2014, corresponding to
approximately EUR 38,000. The Chamber further decided that the Claimant’s
statements in relation to his registration with the club from country B could not
justify a decrease of the amount of mitigation, as he himself had agreed to the
amendment of his entitlements under the contract with the club from country B.
29.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the Claimant to mitigate his damages, the
Claimant’s full new remuneration shall be taken into account in the calculation of
the amount of compensation for breach of contract.
30.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of EUR 287,000 to the Claimant, which is considered by the Chamber
to be reasonable and justified amount as compensation for breach of contract.
31.
As a consequence, the DRC decided that the Respondent is liable to pay the total
amount of EUR 405,526 to the Claimant, consisting of the amount of EUR 118,526
corresponding to the Claimant’s outstanding remuneration at the time of the
unilateral termination of the contract and the amount of EUR 287,000
corresponding to compensation for breach of contract.
32.
Finally, with regard to the Claimant's request for interest on the outstanding
remuneration, the Chamber decided that the Claimant is entitled to receive
interest at the rate of 5% p.a. on the amount of EUR 118,526 as from 7 October
2013, i.e. the date on which the Claimant submitted the financial part of his claim
to FIFA.
Player A, from country B / Club C, from country D
Page 10 of 12
33.
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, insofar as it is
admissible.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of the present decision, outstanding remuneration in the
amount of EUR 118,526 plus 5% interest p.a. on said amount as from 7 October
2013 until the date of effective payment.
3.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. is 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.
4.
The Respondent has to pay to the Claimant compensation for breach of contract
in the amount of EUR 287,000 within 30 days as from the date of notification of
this decision.
5.
In the event that the amount due to the Claimant in accordance with the abovementioned number 4. is not paid by the Respondent within the stated time limit,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned
time limit and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
Player A, from country B / Club C, from country D
Page 11 of 12
7.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
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
Player A, from country B / Club C, from country D
Page 12 of 12