Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 January 2017,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Wouter Lambrecht (Belgium), 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 December 2013, 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 1
January 2014 until 31 December 2017.
2. According to art. IV., par. 8 of the contract, the Claimant was entitled to a
monthly salary of 2,150,000 to be paid “until the 10th day of the month
following the current month”.
3. Pursuant to art. VI, par. 14 of the contract, “[the Claimant] is entitled to cancel
the present contract with termination with cause in case [the Respondent] does
not fulfil its obligation defined in [art.] IV. Termination with cause may be
exercised by the [the Claimant] only after he demanded contractual performance
from [the Respondent] in writing, with a time limit of at least 30 days and the
deadline passed without effect”.
4. According to art. VII, par. 25 of the contract, “as regards issues no regulated by
the present contract, the relevant provisions of Act XXII of 1992 on the Labour
Code, Act I of 2004 on Sports, stipulations of the statutes of the Football
Federation of country D and that of international football associations
(FIFA,UEFA) shall prevail”.
5. Also on 31 December 2013, the parties entered into an “Individual Bonus
Agreement” (hereinafter: the bonus agreement) pursuant to which the
Respondent committed to pay the Claimant, inter alia:
- EUR 10,000 by 20 January 2014, EUR 10,000 by 20 January 2015, EUR 10,000 by
20 January 2016 and EUR 10,000 by 20 January 2017;
- 150,000 per month as rent allowance;
- all the payments under the bonus agreement were to be made “until the 20th
day of the month following the current month”.
6. On 15 December 2015, the Claimant wrote a letter to the Respondent
(hereinafter: the default notice), stating that “the [Respondent] did not comply
with contractual obligations towards the Claimant as of the beginning of 2015”
and - pursuant to par. 14 of the contract - put the Respondent in default of
payment of the following amounts, granting thirty days in order to remedy the
default:
i) 8,845,000 as outstanding salaries from April to August 2015;
ii) 300,000 as rent allowances from July to August 2015;
iii) EUR 10,000 plus interest as of 21 January 2015, “as the annual bonus”;
Player A, country B / Club C, country D
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iv) EUR 50,000 plus interest as of 1 December 2012, as reimbursement of the cost
of medical treatments occurred in 2012;
v) EUR 3,900 plus interest as of 25 May 2015, as reimbursement of the cost of
treatments occurred in 2015 “so far”.
7. On 31 December 2015, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting the following:
a) 15,295,000 plus 5% interest for unpaid salaries for the period between April
and December 2015;
b) 900,000 plus 5% interest for unpaid rent allowance for the period between
July and December 2015;
c) EUR 10,000 plus 5% interest as of 21 January 2015, for the annual bonus
“according to the paragraph 13 of the Individual Bonus Agreement”;
d) 53,750,000 and EUR 20,000, plus 5% interest as of the date of the decision,
for compensation for breach of contract, broken down as follows:
- 53,750,000 corresponding to twenty-five monthly salaries for the period
between December 2015 and December 2017;
- EUR 20,000 corresponding to two annual bonuses for the year 2016 and
the year 2017, in the amount of EUR 10,000 each.
8. In his claim, the Claimant explained that he suffered an injury on 18 April 2015
during the warming up of a match with the Respondent and, on the same day,
was taken to the clinic by the Respondent’s doctor in order to undergo some
exams. The Claimant reported that the result of such exams was that “he was
diagnosed with popliteal artery entrapment syndrome” and he had therefore to
undergo surgery with subsequent medical treatments for rehabilitation. In
particular, the Claimant emphasised that the surgery was performed “under the
supervision of the Respondent’s medical doctor”, that the following treatments
were followed “as prescribed by the Respondent’s medical doctor” and that the
Respondent allowed him to go to country B for the medical treatments and the
rehabilitation.
9. According to the Claimant, the Respondent did not reply to his default notice
and refused “to pay any contractual obligation towards the [Claimant] as of
April 2015”.
10. On 5 January 2016, the Claimant received a letter from the Respondent, dated
17 December 2015, by which the latter replied to the Claimant’s default notice,
stating, inter alia, that:
- the Claimant was unable to work and, according to the law of country D, until
the date of return to work he was not entitled to his salary but only to a
“sickness benefit”, which is “a state responsibility” only;
Player A, country B / Club C, country D
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- no agreement had been reached between the Respondent and Claimant
regarding the payment of the costs for the Claimant’s medical treatments and
that the Respondent was not obliged to pay such costs;
- the Respondent was “ready to negotiate with [the Claimant] and its aim is to
settle the dispute in an amicable way”.
11. On 23 January 2016, the Claimant sent a letter to the Respondent whereby, inter
alia, he replied to the Respondent’s letter dated 17 December 2015 pointing out
that, notwithstanding his default notice, the Respondent did not pay the
requested amounts and, therefore, he was terminating the contract.
12. In its reply to the claim, the Respondent firstly underlined that it was undisputed
that the Claimant “was not able to perform his duties due to his illness” as of 19
April 2015 and considered that country D’s law was applicable to the contract.
According to the Respondent, pursuant to country D’s law, “it can be established
with certainty that until the [Claimant] is deemed incapable for work he is
entitled to sickness benefit only but not to wage”.
13. In continuation, the Respondent argued that the payment of such “sickness
benefit” was a “state responsibility” and alleged that the player received it.
Consequently, the Respondent held that it was not its obligation to pay the
“sickness benefit” and considered that, in accordance with country D’s law, it did
not pay the salaries to the Claimant as of 19 April 2015. In this regard, the
Respondent explained that the Claimant chose to register under the “Act E”
which provides for a daily “sickness benefit” of 1,750 for every 1,000,000 earned
by the Claimant as monthly gross amount. Thus, as it allegedly acted lawfully,
the Respondent denied any breach of contract and argued that “in the absence
of breach of contract, the [Respondent] shall not be subject to pay compensation
for the [Claimant]”.
14. Furthermore, the Respondent acknowledged that the Claimant was entitled to
the amounts claimed for rent allowance (900,000) and bonus (EUR 10,000). In
particular, the Respondent pointed out that “the [Claimant] always received the
amounts due to him, in accordance with the individual bonus agreement – as
requested by him – in cash from the [Respondent’s] treasury”. Nonetheless, the
Respondent alleged that the Claimant failed to withdraw the aforementioned
amounts from the Respondent “for some reason which is incomprehensible to
the [Respondent]”.
15. Finally, the Respondent considered that the Claimant waited until 23 January
2016 for terminating the contract, just to claim the bonus of EUR 10,000 “which
was due to him until 20 January 2016, in accordance with the individual bonus
Player A, country B / Club C, country D
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agreement”. In the Respondent’s opinion, the Claimant was not entitled to claim
for such bonus because of his “misuse of exercise of rights”.
16. In his replica, the Claimant rejected Respondent’s arguments and insisted on the
fact that the Respondent did not fulfil its contractual obligations. In particular,
the Claimant considered that country D’s law was not applicable and, in any
case, its interpretation by the Respondent was false and misleading. In this
context, the Claimant stressed that, in case the allegations of the Respondent
were true, he would only be entitled to the 0,01% of his salary.
17. In addition, the Claimant stressed that the Respondent disregarded the fact that
he “got injured while preparing for the official match according to the
[Respondent’s] instruction” and that, at the moment the claim was lodged, the
Respondent was in default of nine monthly salaries.
18. Despite having been invited by FIFA to do so, the Respondent did not submit its
final comments.
19. Upon request of FIFA, the Claimant informed that he did not sign a new
employment contract with any other club as from December 2015 until 5
December 2016.
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 31 December 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: 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 and 2. in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016), 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. In continuation, 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
Player A, country B / Club C, country D
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(edition 2016), and considering that the present claim was lodged on 31
December 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 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.
5. First, the Chamber noted that the parties entered into an employment contract
valid as from 1 January 2014 until 31 December 2017, which entitled the
Claimant to a monthly salary of 2,150,000. In addition, the Chamber noted that,
according to the bonus agreement concluded by the parties, the Respondent
committed to pay the claimant a bonus of EUR 10,000 on the 20th January of
each contractual year and 150,000 each month as rent allowance.
6. Furthermore, the DRC acknowledged that the Claimant put the Respondent in
default of his outstanding remuneration on 15 December 2015 and, after having
lodged his claim in front of FIFA, on 23 January 2016 he informed the
Respondent of the termination of the contract.
7. In this context, the DRC noted that the Claimant alleged that the Respondent
breached the contract as it failed to pay him the outstanding salaries for the
months as of April until December 2015, for the total amount 15,295,000, as well
as the agreed bonus of EUR 10,000 on 20 January 2015 and the rent allowance
from July to December 2015, in the amount of 900,000.
8. Furthermore, the Chamber took note that the Claimant explained that he
suffered an injury during the warming up of a match with the Respondent on 18
April 2015, after which he followed a rehabilitation program agreed with the
Respondent. Moreover, the Claimant stated that the Respondent did not pay
him any remuneration since the date of the injury.
9. The DRC also took note that conversely the Respondent acknowledged that the
Claimant got injured and it however argued that, as the Claimant became
unable to perform his duties as of 19 April 2015, he was entitled only to a
“sickness benefit” payable by the State of country D, in accordance with country
D’s law. Moreover, the Chamber noted that the Respondent acknowledged that
the Claimant was entitled to the requested bonus and to the rent allowance.
Player A, country B / Club C, country D
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10. In this context, the Chamber first wished to point out that, in accordance with
the well-established jurisprudence of this Chamber, an injury or health condition
of a player cannot be considered a valid reason to cease the payment of a
player’s remuneration. In this regard, the Chamber highlighted that it is the
club’s responsibility to secure the continuation of payment of remuneration in
such cases, possibly by means of adequate insurance. Furthermore, the Chamber
took into account that it was undisputed that the Respondent had ceased the
payment of the player’s remuneration as early as 19 April 2015.
11. In casu, the DRC pointed out that the Respondent should have properly insured
the player for any injury and/or incapacity in order to cover any such risks. In this
regard, the members of the Chamber, referring to the principle of the burden of
proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, stressed that
the documentary evidence submitted by the Respondent was not convincing in
this respect. In particular, the members of the Chamber underlined that the
Respondent did not prove at the Chamber’s satisfaction that the Claimant was
entitled let alone that he actually received any kind of “sickness benefit”.
12. On account of the aforementioned considerations, the members of the Chamber
concurred that the Respondent failed to pay the Claimant’s salary as of 19 April
2015 until December 2015 without any valid reason and, therefore, it was in
breach of its contractual obligations towards the Claimant for a significant
period of time.
13. In view of the above, the Chamber decided that the Claimant had just cause to
unilaterally terminate the employment contract and considered that such
termination occurred when the Claimant lodged his claim in front of FIFA, i.e. 31
December 2015, as on this date the Claimant requested, inter alia, compensation
for breach of contract.
14. As a consequence thereof, the members of the Chamber concurred that the
Respondent is to be held liable for the early termination of the employment
contact with just cause by the Claimant.
15. In continuation, having established that the Respondent is to be held liable for
the early termination of the employment contract with just cause by the
Claimant, the Chamber focused its attention on the consequences of such
termination. In this regard, first of all, in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the Respondent is
liable to pay to the Claimant the amounts which were outstanding under the
contract at the moment of the termination, i.e.:
a) 15,295,000, corresponding to the Claimant’s salary as from April until
November 2015;
Player A, country B / Club C, country D
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b) EUR 10,000, corresponding to the bonus due on 20 January 2015;
c) 900,000 corresponding to the rent allowance as from April until December
2015.
16. In addition, taking into consideration the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber in this regard, the members
of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on
the above-mentioned amounts as follows:
a) 5% p.a. as of 21 January 2015 on the amount of EUR 10,000;
b) 5% p.a. as of 11 May 2015 on the amount of 245,000;
c) 5% p.a. as of 11 June 2015 on the amount of 2,150,000;
d) 5% p.a. as of 11 July 2015 on the amount of 2,150,000;
e) 5% p.a. as of 11 August 2015 on the amount of 2,150,000;
f) 5% p.a. as of 21 August 2015 on the amount of 150,000;
g) 5% p.a. as of 11 September 2015 on the amount of 2,150,000;
h) 5% p.a. as of 21 September 2015 on the amount of 150,000;
i) 5% p.a. as of 11 October 2015 on the amount of 2,150,000;
j) 5% p.a. as of 21 October 2015 on the amount of 150,000;
k) 5% p.a. as of 11 November 2015 on the amount of 2,150,000;
l) 5% p.a. as of 21 November 2015 on the amount of 150,000;
m) 5% p.a. as of 11 December 2015 on the amount of 2,150,000;
n) 5% p.a. as of 21 December 2015 on the amount of 150,000;
o) 5% p.a. as of 21 January 2016 on the amount of 150,000.
17. In continuation, the Chamber decided that, in accordance with art. 17 par. 1 of
the Regulations, the Respondent is liable to pay compensation for breach of
contract to the Claimant.
18. In view of the above, the Chamber considered that 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.
19. In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent contract and the bonus agreement contain
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 such
Player A, country B / Club C, country D
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compensation clause was neither included in the contract, nor in the bonus
agreement, at the basis of the matter at stake.
20. As a consequence, the members of the Chamber determined that the prejudice
suffered by the Claimant in the present matter had to be assessed in application
of the other parameters set out in art. 17 par. 1 of the Regulations. In this
regard, the DRC emphasised beforehand that each request for compensation for
contractual breach has to be assessed by the Chamber on a case-by-case basis
taking into account all specific circumstances of the respective matter, as well as
the Chamber’s specific knowledge of the world of football and its experience
gained throughout the years.
21. Along these lines, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the contract and of the bonus
agreement until 31 December 2017 and concluded that, had the contract been
executed until its expiry date, the Claimant would have received a total
remuneration of 53,750,000 and EUR 20,000 respectively, comprised of:
- 53,750,000 corresponding to monthly salaries as of December;
- EUR 20,000 corresponding to the bonuses due on 20 January 2016 and 20
January 2017.
22. In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another Respondent during the relevant period of
time, by means of which he would have been enabled to reduce his loss of
income. In this regard, the Chamber noted that, according to the Claimant´s
declaration, he had not been able to sign an employment contract with another
club during the relevant period of time.
23. Consequently, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amounts of 53,750,000 and
EUR 20,000 as compensation for breach of contract to the Claimant, which are to
be considered a reasonable and justified compensation for the breach of
contract in the matter at hand.
24. In addition and with regard to the Claimant's request for interest, the Chamber
decided that the Claimant is entitled to 5% interest p.a. on said amounts as of 19
January 2017 until the date of effective payment, as explicitly requested by the
Claimant.
25. The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
Player A, country B / Club C, country D
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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
amounts of 16,195,000 and EUR 10,000, plus 5% interest p.a. until the date of
effective payment as follows:
a. 5% p.a. as of 21 January 2015 on the amount of EUR 10,000;
b. 5% p.a. as of 11 May 2015 on the amount of 245,000;
c. 5% p.a. as of 11 June 2015 on the amount of 2,150,000;
d. 5% p.a. as of 11 July 2015 on the amount of 2,150,000;
e. 5% p.a. as of 11 August 2015 on the amount of 2,150,000;
f. 5% p.a. as of 21 August 2015 on the amount of 150,000;
g. 5% p.a. as of 11 September 2015 on the amount of 2,150,000;
h. 5% p.a. as of 21 September 2015 on the amount of 150,000;
i.
5% p.a. as of 11 October 2015 on the amount of 2,150,000;
j.
5% p.a. as of 21 October 2015 on the amount of 150,000;
k. 5% p.a. as of 11 November 2015 on the amount of 2,150,000;
l.
5% p.a. as of 21 November 2015 on the amount of 150,000;
m. 5% p.a. as of 11 December 2015 on the amount of 2,150,000;
n. 5% p.a. as of 21 December 2015 on the amount of 150,000;
o. 5% p.a. as of 21 January 2016 on the amount of 150,000.
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 in the
amounts of 53,750,000 and EUR 20,000, plus 5% interest p.a. as from 19
January 2017 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 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 article 58 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
Player A, country B / Club C, country D
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