Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 January 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Theo van Seggelen (Netherlands), 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
I.
Facts of the case
1.
On 31 July 2014, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract), valid as of 31 July 2014 until 31
May 2017.
2.
Pursuant to art. 3 of the contract, the Claimant was entitled to receive the
following net remuneration:
Season 2014-15: ten equal monthly salaries of EUR 40,000;
Season 2015-16: ten equal monthly salaries of EUR 55,000;
Season 2016-17: ten equal monthly salaries of EUR 60,000.
3.
In continuation, art. 3 states that “U-21 Team competitions and Cup competitions
took place in a game, premium and specialty items do not have any validity”.
4.
Art. 3 further specifies that “[if] payment will be made in instalments then the
amounts payable and dates of payment under this contract shall be clearly
indicated. Otherwise, general provisions of the Code of Obligations and the terms
and conditions of the Regulations on the Status and Transfer of Professional
Football Players shall apply”.
5.
In addition, art. 6 of the contract provides that “[the Respondent] shall be obliged
to fulfill the following obligations : a) [t]o ensure accurate and timely payment
of all salaries (regular, monthly, weekly and performance based) under this
contract”.
6.
On the other hand, art. 7 of the contract stipulates that “[the Claimant] shall be
obliged to fulfil the following obligations: b) [t]o respect the Statutes,
Regulations, including Code of Ethics and Decisions of FIFA, UEFA and Football
Association of country D (…)”.
7.
On 8 May 2015, the Claimant sent a fax to the Respondent requesting the latter
to pay him, by no later than 15 May 2015, the amount of EUR 189,638
corresponding to part of his salary for December 2014, as well as his salaries for
January, February, March and April 2015.
8.
On 20 May 2015, the Claimant sent a second fax to the Respondent,
acknowledging receipt of EUR 20,000 but requesting the latter to pay his
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remaining dues in the amount of EUR 169,638 by no later than 25 May 2015. In
addition, the Claimant asked the Respondent to inform him about “the sporting
and legal situation of [it] towards [him]” and whether it “want[ed] to retain [his]
services”. In this regard, the Claimant specified that “in case of silence [he] will
assume that the [Respondent] is not interested in his services”.
9.
On 26 May 2015, the Claimant sent a third fax to the Respondent, acknowledging
receipt of EUR 40,000 but requesting the latter to pay his remaining dues in the
amount of EUR 129,638. In addition, the Claimant reiterated his previous
questions and gave to the Respondent a deadline until 1 June 2015 to proceed to
the payment of the aforementioned outstanding salaries plus his salary for May
2015 and to inform him about his status, specifying that the absence of reply
would be interpreted as a lack of interest in his services.
10.
On 3 June 2015, the Claimant sent a fax to the Respondent, terminating the
contract.
11.
On 22 June 2015, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting to be awarded with the following
net amounts:
EUR 169,638 as outstanding salaries broken down as follows:
- EUR 9,638, plus 5% interest p.a. as of 1 January 2015, corresponding to
part of his salary for December 2014 ;
- EUR 40,000, plus 5% interest p.a. as of 1 March 2015, corresponding to his
salary for February 2015;
- EUR 40,000, plus 5% interest p.a. as of 1 April 2015, corresponding to his
salary for March 2015;
- EUR 40,000, plus 5% interest p.a. as of 1 May 2015, corresponding to his
salary for April 2015;
- EUR 40,000, plus 5% interest p.a. as of 1 June 2015, corresponding to his
salary for May 2015;
EUR 1,150,000, plus 5% interest as of 4 June 2015, as compensation
corresponding to the residual value of the contract.
12.
In his claim, the Claimant stresses that at the time of termination, more than four
monthly salaries were outstanding, which constitutes a just cause to terminate
the contract. Furthermore, the Claimant outlines that the Respondent was no
longer interested in his services after being relegated at the end of the 2014-15
season, in particular considering his high remuneration.
13.
The Claimant also points out that the Respondent never replied to his several
default notices.
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14.
Finally, the Claimant sustains that according to Swiss jurisprudence and doctrine,
in case of claim for compensation resulting from a premature and unjustified
termination of contract, interests shall start to accrue immediately, i.e. as of the
date of termination, and not as of the date of the claim.
15.
In its reply to the claim, the Respondent first asserts having paid the Claimant an
amount EUR 230,362 and that therefore, an amount of EUR 169,638 is
outstanding. Nevertheless, in a second submission, the Respondent maintains
that EUR 270,000.05 as well as 97,500, equivalent to EUR 32,000 according to the
latter, have been paid to the Claimant for the 2014-15 season. In view of this fact,
the Respondent holds that an amount of EUR 98,000, corresponding to less than
three monthly salaries, is outstanding and that consequently, the Claimant did
not have just cause to terminate the contract. In support of its assertions, the
Respondent submitted the following translated bank receipts:
- Receipt dated 29 August 2014 in the amount of EUR 40,000 as “August wage
payment”;
- Receipt dated 25 September 2014 in the amount of 25,000 as “bonus
payment”;
- Receipt dated 1 October 2014 in the amount of EUR 40,000 as “wage
payment”;
- Receipt dated 22 October 2014 in the amount of 5,000 as “bonus payment”;
- Receipt dated 4 November 2014 in the amount of 2,500 as “bonus payment”;
- Receipt dated 26 November 2014 in the amount of EUR 40,000 as “wage
payment”;
- Receipt dated 23 December 2014 in the amount of 10,000 as “bonus payment”;
- Receipt dated 30 December 2014 in the amount of 25,000 as “bonus payment”;
- Receipt dated 9 January 2015 in the amount of EUR 40,000 as “October wage
payment”;
- Receipt dated 29 January 2015 in the amount of 5,000 as “bonus payment”;
- Receipt dated 3 February 2015 in the amount of 5,000 as “wage payment”;
- Receipt dated 5 February 2015 in the amount of EUR 361.73 as “wage
payment”;
- Receipt dated 5 February 2015 in the amount of EUR 39,638.27 as “wage
payment”;
- Receipt dated 1 April 2015 in the amount of 20,000 as “bonus payment”;
- Receipt dated 28 April 2015 in the amount of EUR 10,000 as “wage payment”;
- Receipt dated 14 May 2015 in the amount of EUR 20,000 as “wage payment”;
- Receipt dated 21 May 2015 in the amount of EUR 40,000 as “wage payment”.
16.
In continuation, the Respondent insists that the Claimant failed to comply with
art. 7 of the contract, and in particular with the Regulations of the Football
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Association of country D, which require that the default notice has to be made
”by notary” and that the Football Association of country D should be informed
of it “by notary” as well. In view of the above, the Respondent considers that the
contract is still in force and that any termination made in violation of the Football
Association of country D’s Regulations would be deemed as a termination
without just cause.
17.
In addition, the Respondent emphasises that the Claimant only gave it a deadline
of seven days in order to comply with its obligations while according to art. “22bis
par. 3” of the FIFA Regulations on the Status and Transfer of Players, the deadline
given must be of at least ten days. Consequently, the Respondent alleges that it
cannot be considered as having overdue payables in accordance with the
aforementioned article.
18.
The Respondent further outlines that it was relegated to second division and thus
can no longer afford the Claimant’s salary. In this respect, the Respondent stresses
that said salary was agreed taking into consideration the Respondent’s
participation in the highest league of country D and the income resulting
therefrom.
19.
Finally, the Respondent argues that the Claimant is not entitled to claim
compensation since he did not suffer any damage. Nevertheless, and should FIFA
award compensation, the Respondent considers that the reduction of its income
due to the relegation as well as the Claimant’s new contract should be taken into
account.
20.
In his replica, the Claimant first asserts that the Respondent did not submit any
documentation in support of its assertion that he did not terminate the contract
in accordance with the Football Association of country D’s Regulations and that
in any case, such Regulations are not applicable to the matter at hand. For the
sake of completeness, the Claimant outlines that the provisions referred to by the
Respondent are enshrined in the Guidelines for the application of the Football
Association of country D’s Regulations, which are not a binding source of law.
21.
Furthermore, the Claimant highlights that his claim is based on art. 17 of the FIFA
Regulations on the Status and Transfer of Players and that therefore, art. 12bis of
the aforesaid Regulations is not applicable. Notwithstanding the above, the
Claimant emphasises that he gave to the Respondent a deadline to comply with
its obligations on three occasions and thus, de facto, gave it more than ten days.
22.
In continuation, the Claimant points out that the Respondent’s first
acknowledgement of debt, i.e. the acknowledgement of a debt of EUR 169,638,
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should be taken into consideration whereas the second one, i.e. the
acknowledgement of a debt of EUR 98,000, should be disregarded in virtue of
the principle venire contra factum proprium.
23.
The Claimant further alleges that the payments made in the currency of country
D are not related to salaries but constitute payments of performance-related
bonuses as per the sports regulations of the Respondent. In this regard, the
Claimant sustains that his right to receive match bonuses must be deduced from
the interpretation a contrario of art. 3 of the contract which provides that no
bonuses will be paid for games played with the U-21 team. The Claimant then
underlines that the country D’s version of the payment of 5,000 made on 3
February 2015 refers to a bonus payment and not to a wage payment as the
translated version mistakenly seems to indicate. In this regard, the Claimant also
outlines that in the contract, the parties agreed on a salary payable in EUR and
not in the currency of country D.
24.
In view of the above, the Claimant holds that until the date of termination, the
Respondent has failed to pay him an amount of EUR 130,000, i.e. more than three
monthly salaries, broken down as follows:
- EUR 10,000 corresponding to the balance of his salary for February 2015;
- EUR 120,000 corresponding to his salaries for March, April and May 2015.
25.
On account of the aforementioned, the Claimant amended his claim related to
his outstanding dues, requesting an amount of EUR 130,000.
26.
Moreover, the Claimant stresses that the Respondent’s relegation does not
constitute a valid reason for reducing the compensation and that in any case, the
Respondent did not submit evidence corroborating this fact.
27.
Finally, the Claimant refers to art. 337b of the Swiss Code of Obligations and
concludes that the FIFA Dispute Resolution Chamber cannot adjust the
compensation payable due to the fact that the breach is clear and occurred during
the protected period.
28.
In its duplica, the Respondent asserts that it had a discretionary power to make
the payments in EUR or in the currency of country D. In this respect, the
Respondent points out that it would make no sense, for a club already in arrears,
to proceed to payments which are not stipulated in the contract. Consequently,
the Respondent argues that the payments made in constitute salary payments.
29.
Finally, the Respondent reiterates its assertions as to the calculation of the
compensation payable in case the Dispute Resolution Chamber would hold it
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liable for breach of contract. In support of its assertion, the Respondent presented
a document confirming its relegation to the country D’s second division at the
end of the 2014-15 season.
30.
On 27 August “2014” [sic], the Claimant and the club from country D, Club E,
concluded an employment contract valid as of 26 August 2015 until 31 May 2016
and according to which the Claimant is entitled to a total remuneration of EUR
300,000.
II.
Considerations of the Dispute Resolution Chamber
1.
In a first instance, the Dispute Resolution Chamber (hereinafter referred to as the
DRC or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 22 June 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art.
21 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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015), 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
(edition 2015), and considering that the present claim was lodged in front of FIFA
on 22 June 2015, the 2015 edition of said Regulations (hereinafter: Regulations)
is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. In doing so, it
started by acknowledging the abovementioned facts of the case 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.
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5.
In this respect, the DRC acknowledged that, on 31 July 2014, the parties signed
an employment contract, valid as from 31 July 2014 until 31 May 2017.
Furthermore, the Chamber also took note that on 3 June 2015, the Claimant
terminated in writing the contractual relationship with the Respondent after
having put the latter in default on three occasions.
6.
As a first remark and regarding the Respondent’s argument as to the alleged
invalidity of the default notices, the DRC deemed it interesting to point out that
in reaction to said default notices, the Respondent proceeded to partial
payments, recognising de facto the validity of said notices.
7.
Moreover, the Chamber took note of the Claimant’s affirmation according to
which he had just cause to terminate the contract. In particular, the members of
the Chamber noted that the Claimant asserts that the Respondent failed to pay
him an amount of EUR 130,000 corresponding to part of his salary for February
2015 as well his salaries for March, April and May 2015.
8.
On the other hand, the Chamber noticed that the Respondent asserts having paid
to the Claimant an amount of 97,500, equivalent to EUR 32,000 according to the
Respondent, and therefore concludes that the Claimant had no just cause to
terminate the contract since less than three monthly salaries were outstanding.
9.
At this stage, after referring to the content of art. 12 par.3 of the Procedural
Rules, the DRC proceeded to the analysis of the documentation provided by the
Respondent in support of its assertion. In this respect, the Chamber observed that
all the receipts referring to payments made in expressly mention that they are
made as “bonus payment”. In particular, the Chamber was eager to emphasise
that the mention “wage payment” made on the receipt dated 3 February 2015
results from a mistake in the translation since, as outlined by the Claimant, the
original version of said receipt unambiguously indicates that the payment was
made as a “prim”. In view of the above, the Chamber had to conclude that said
payments correspond to bonuses that the Respondent freely committed to pay to
the Claimant outside the contract and could therefore not be used as a means to
set off the salary debts it has towards the latter.
10.
For the sake of completeness, the Chamber deemed it useful to stress on the
Respondent’s reluctance to spontaneously pay the due salaries, recalling that the
partial payments made on 14 and 21 May 2015 respectively, were made under
pressure and after having been put in default by the Claimant.
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11.
On account of the aforementioned, the Chamber established that the
Respondent, without any valid reason, failed to remit to the Claimant, until 3
June 2015, part of his salary for February 2015 as well his salaries for March, April
and May 2015. 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 3 June 2015 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.
12.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the Chamber focused its attention on
the consequences of such termination. 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.
13.
First, reverting to the Claimant’s claim for outstanding remuneration, the DRC
made reference to its previous considerations and recalled that at the time of the
termination, i.e. on 3 June 2015, part of the Claimant’s salary for February 2015
as well his salaries for March, April and May 2015, were outstanding.
14.
Consequently, in accordance with the principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay the Claimant the amount
of EUR 130,000 as outstanding remuneration.
15.
In addition, taking into consideration the Claimant’s claim, the Chamber decided
that the Respondent had to pay default interest at a rate of 5% as follows:
a. 5% p.a. as of 1 March 2015 on the amount of EUR 10,000;
b. 5% p.a. as of 1 April 2015 on the amount of EUR 40,000;
c. 5% p.a. as of 1 May 2015 on the amount of EUR 40,000;
d. 5% p.a. as of 1 June 2015 on the amount of EUR 40,000.
16.
In continuation, the Chamber focused its attention on 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
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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.
17.
In application of the relevant provision, the Chamber held that it first 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.
18.
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.
19.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
until 31 May 2017, taking into account that the Claimant’s remuneration until
May 2015 is included in the calculation of the outstanding remuneration.
Consequently, the Chamber concluded that the amount of EUR 1,150,000, i.e.
remuneration as from June 2015 until 31 May 2017, serves as the basis for the
determination of the amount of compensation for breach of contract.
20.
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.
21.
The Chamber noted that according to the Claimant’s declarations and the
documentation submitted, the Claimant concluded a new employment contract
valid until 31 May 2016, according to which he is entitled to receive a total
remuneration of EUR 300,000.
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22.
In view of all of the above, and taking into consideration the respective duration
of the original and of the new contract, the DRC decided that the Respondent
must pay the amount of EUR 850,000 to the Claimant, which is considered by the
DRC to be a reasonable and justified amount as compensation for breach of
contract.
23.
In addition, taking into account the Claimant’s request as well as its longstanding
and well-established jurisprudence, 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. 22 June 2015, until the date of
effective payment.
24.
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
130,000 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
5% p.a. as of 1 March 2015 on the amount of EUR 10,000;
5% p.a. as of 1 April 2015 on the amount of EUR 40,000;
5% p.a. as of 1 May 2015 on the amount of EUR 40,000;
5% p.a. as of 1 June 2015 on the amount of EUR 40,000.
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 amounting to EUR
850,000 plus 5% interest p.a. on said amount as from 22 June 2015 until the date of
effective payment.
4.
In the event that the amounts plus interest due to the Claimant in accordance with
the above-mentioned points 2. and 3. are not paid by the Respondent within the
stated time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
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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 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:
Marco Villiger
Deputy Secretary General
Encl.
CAS directives
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