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 23 January 2015, 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 the
date of signature until 31 May 2018.
2.
Pursuant to art. 3 of the contract, the Claimant was entitled to receive the
following net remuneration:
Season 2014-15: four monthly salaries of EUR 50,000 payable from 25 February
2015 until 25 May 2015;
Season 2015-16: ten monthly salaries of EUR 60,000 payable from 25 August
2015 until 25 May 2016;
Season 2016-17: ten monthly salaries of EUR 60,000 payable from 25 August
2016 until 25 may 2017;
Season 2017-18: ten monthly salaries of EUR 60,000 payable from 25 August
2017 until 25 May 2018.
3.
In continuation, art. 3 states that “[the Claimant] is entitled to receive match
bonuses in accordance with the sports club regulations (for U-21 Team
competitions and Cup competitions, premium and special bonuses do not have
any validity)”.
4.
Art. 3.9 of the contract further specifies that “[i]n case of getting out of the
highest league of country D, [the Claimant] wanted to stay in the second division.
The contract will be reduced on 300.000€ per sezon”.
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 5 May 2015, the Claimant sent a fax to the Respondent requesting the latter
to pay him, by no later than 12 May 2015, the amount of EUR 150,000
corresponding to his salaries for February, March and April 2015.
8.
On 7 May 2015, the Claimant sent a second fax to the Respondent,
acknowledging receipt of EUR 15,000 but requesting the latter to pay his
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remaining dues in the amount of EUR 135,000 by no later than 12 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”.
9.
On 15 May 2015, the Claimant sent a third fax to the Respondent, acknowledging
receipt of EUR 20,000 but requesting the latter to pay the remaining balance of
EUR 115,000 by no later than 22 May 2015. In addition, the Claimant reiterated
his previous questions and further specified that “in case of silence [he] will
assume that the [Respondent] is not interested in his services”.
10.
On 27 May 2015, the Claimant sent a fourth fax to the Respondent,
acknowledging receipt of EUR 25,000 but requesting the latter to pay his
remaining dues in the amount of EUR 90,000. In addition, the Claimant reiterated
his previous questions and gave to the Respondent a deadline until 29 May 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.
11.
On 2 June 2015, the Claimant sent a fax to the Respondent, terminating the
contract.
12.
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 140,000 as outstanding salaries broken down as follows:
- EUR 40,000, plus 5% interest p.a. as of 26 March 2015, corresponding to
part of his salary for March 2015 ;
- EUR 50,000, plus 5% interest p.a. as of 26 April 2015, corresponding to his
salary for April 2015;
- EUR 50,000, plus 5% interest p.a. as of 26 May 2015, corresponding to his
salary for May 2015.
EUR 1,800,000, plus 5% interest as of 3 June 2015, as compensation
corresponding to the residual value of the contract.
13.
In his claim, the Claimant asserts having just cause to terminate the contract, in
particular considering that the Respondent was already in arrears for a
considerable amount, i.e. almost three monthly salaries, and for a significant
period of time.
14.
The Claimant also points out that the Respondent never replied to his several
default notices.
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15.
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.
16.
In its reply to the claim, the Respondent first asserts having paid the Claimant an
amount EUR 60,000 and that therefore, an amount of EUR 140,000 is outstanding.
Nevertheless, in a second submission, the Respondent maintains that EUR 60,000
as well as 8,500, which corresponds to EUR 3,000 according to the Respondent,
have been paid to the Claimant for the 2014-15 season. In view of this fact, the
Respondent holds that an amount of EUR 137,000, 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 bank receipts:
- Receipt dated 3 February 2015 in the amount of 3,500 as “wage payment”;
- Receipt dated 1 April 2015 in the amount of 5,000 as “bonus payment”;
- Receipt dated 28 April 2015 in the amount of EUR 15,000 as “wage payment”;
- Receipt dated 14 May 2015 in the amount of EUR 40,000 as “wage payment”;
- Receipt dated 21 May 2015 in the amount of EUR 25,000 as “wage payment”.
17.
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
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.
18.
In addition, the Respondent emphasises that 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. In this respect, the Respondent highlights that the
Claimant only gave it a deadline of two days in his correspondence dated 27 May
2015, which cannot be considered as “a reasonable time”. Consequently, the
Respondent alleges that it cannot be considered as having overdue payables in
accordance with the aforementioned article.
19.
The Respondent further 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 its relegation and the
content of art. 3.9 of the contract, as well as the Claimant’s new contract should
be taken into account.
Player A, country B / Club C, country D
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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 several 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 140,000,
should be taken into consideration whereas the second one, i.e. the
acknowledgement of a debt of EUR 137,000, 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 made in accordance with art. 3 of the contract and the sports
regulations of the Respondent. The Claimant then underlines that said
conclusion is confirmed by the date of such payments. Indeed, the Claimant
points out the payments made in the currency of country D were made on 3
February 2015 and 1 April 2015 whereas the contract expressly states that the
salaries were due on the 25th of the month, the first one being due on 25th
February 2015. In this regard, the Claimant alleges that the payments in the
currency of country D are related to the games played on 30 January 2015
against Club E and on 1 March 2015 against Club F.
24.
Moreover, the Claimant outlines that art. 3.9 of the contract is contrary to art.
341 par. 1 of the Swiss Code of Obligations which provides that an employee may
not waive any claim resulting from mandatory provisions of law during the course
of an employment relationship, and for one month after its termination and
should, therefore, be disregarded. Notwithstanding the above, the Claimant
argues that the Respondent did not submit evidence that the cumulative
conditions established in said article were fulfilled, i.e. the Respondent’s
relegation and the Claimant’s wish to stay in the second division.
25.
Finally, the Claimant refers to art. 337b of the Swiss Code of Obligations and
concludes that the FIFA Dispute Resolution Chamber cannot adjust the
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compensation payable due to the fact that the breach is clear and occurred during
the protected period.
26.
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 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 the currency of country D
constitute salary payments.
27.
Finally, the Respondent reiterates its assertions as to the calculation of the
compensation payable in case the Dispute Resolution Chamber would hold it
liable for breach of contract. In support of its assertion, the Respondent presented
a document confirming its relegation to country D’s second division at the end of
the 2014-15 season.
28.
On 24 July 2015, the Claimant and the club from country G, Club H, concluded an
employment contract valid as of the date of signature until 30 June 2016 and
according to which the Claimant is entitled to receive a total remuneration of
USD 425,000.
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
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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.
5.
In this respect, the DRC acknowledged that, on 23 January 2015, the parties
signed an employment contract, valid as from the date of signature until 31 May
2018. Furthermore, the Chamber also took note that on 2 June 2015, the Claimant
terminated in writing the contractual relationship with the Respondent after
having put the latter in default on four 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 140,000 corresponding to part of his salary for March 2015
as well his salaries for April and May 2015.
8.
On the other hand, the Chamber noticed that the Respondent asserts having paid
to the Claimant an amount of 8,500, equivalent to EUR 3,000 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
the receipt referring to a payment made in the currency of country D on 1 April
2015 expressly mentions that it is made as “bonus payment”. Moreover, as far as
the payment made in the currency of country D on 3 February 2015 is concerned,
the Chamber recalled that in accordance with art. 3 of the contract, the first salary
was due on 25 February 2015. This, combined with the fact that said payment was
made a few days after a game played and drawn by the Respondent and with the
fact that the salary payments were agreed by the parties to be made in EUR, led
the Chamber to infer that, in spite of the wording of the receipt, the payment
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was made as a bonus payment. 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 in addition to the salary 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 important to emphasise
that the sole salary payments made by the Respondent were made under pressure
and after having been put in default by the Claimant.
11.
On account of the aforementioned, the Chamber established that the
Respondent, without any valid reason, failed to remit to the Claimant, until 2
June 2015, part of his salary for March 2015 as well his salaries for 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 2 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 2 June 2015, part of the Claimant’s salary for March 2015 as
well his salaries for 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 140,000 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 26 March 2015 on the amount of EUR 40,000;
b. 5% p.a. as of 26 April 2015 on the amount of EUR 50,000;
c. 5% p.a. as of 26 May 2015 on the amount of EUR 50,000.
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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
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.
20.
In order to do so, the DRC focused its attention on art. 3.9 of the contract. In this
regard, the members of the Chamber emphasised that the condition set for the
Claimant’s salary to be reduced, i.e. the Respondent’s relegation to country D’s
second division, is totally independent from the will of any of the parties.
Consequently, and considering its lack of potestative nature, the Chamber held
that the aforementioned stipulation had to be deemed valid as agreed by the
parties. On account of the above and considering that the Respondent was
relegated at the end of the 2014-15 season, the Dispute Resolution Chamber
concluded that an annual remuneration of EUR 300,000 would serve as the basis
for the determination of the amount of compensation for breach of contract.
21.
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.
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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.
22.
The Chamber noted that according to the Claimant’s declarations and the
documentation submitted, the Claimant had concluded a new employment
contract valid until 30 June 2016. However, and regarding the matter at hand,
the Chamber deemed it fit to point out that after the breach of the contract
occurred and the termination of the latter contract on 30 June 2016, the Claimant
will have had several transfer periods in order to find a new club and thus to
mitigate his loss to some extent. Accordingly, the Chamber decided to take into
consideration the seasons 2015-16 and 2016-17 only in order to establish the
residual value of the contract.
23.
Consequently, and considering that, on the one hand, for the seasons 2015-16
and 2016-17, the Claimant would have been entitled to receive EUR 600,000 in
accordance with the contract signed with the Respondent and that, on the other
hand, for the aforementioned period, he secured a remuneration of USD 425,000,
corresponding to EUR 390,000, the DRC decided that the Respondent must pay
the amount of EUR 210,000 to the Claimant, which is considered by the DRC to
be a reasonable and justified amount as compensation for breach of contract.
24.
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.
25.
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
140,000 plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 26 March 2015 on the amount of EUR 40,000;
b. 5% p.a. as of 26 April 2015 on the amount of EUR 50,000;
c. 5% p.a. as of 26 May 2015 on the amount of EUR 50,000.
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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
210,000 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.
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:
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Marco Villiger
Deputy Secretary General
Encl.
CAS directives
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