Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 19 January 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
Wouter Lam brecht (Belgium ), member
on the matter between the club,
Club A, Country B
as First Claimant / Respondent
and the player,
Play er C, Country D
as Second Claimant / Respondent
and the club,
Club F, Country B
as Second Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 4 August 2015, the Player of Country D, Player C (hereinafter: the player or
Second Claimant / Respondent) and the Club of Country B, Club A (hereinafter:
First Claimant / Respondent), signed a contract valid as from an unspecified date
until 31 May 2017 (hereinafter: the contract).
2.
According to the contract, for the 2015/2016 season, the player was entitled to
receive the following amounts:
a signing fee of EUR 50,000, due upon the signature of the contract;
an instalment of EUR 30,000, due on 25 December 2015;
10 monthly payments of EUR 22,000 in the period between September 2015
and June 2016, due on the 30th day of the respective month and in February
2016 on the 28th day of said month.
Furthermore, for the 2016/2017 season, the player was entitled to receive the
following amounts:
a signing fee of EUR 50,000, due on 25 October 2016;
an instalment of EUR 30,000, due on 25 December 2016;
10 monthly payments of EUR 22,000 in the period between September 2015
and June 2016, due on the 30th day of the respective month and in February
2017 on the 28th day of said month.
3.
Article i) of the ‘Special provisions’ of the contract stipulates the following: ‘In
case the contract is terminated by the player with just cause before the expiration
date, the Player will be entitled to claim the outstanding amounts and the salary
for the remaining duration of contract as compensation, however, in case the
Player signs another contract with a third club after the termination of the
contract, the player shall only claim the difference between the two employment
contracts. (This compensation, the difference between the annual salaries of two
lower salary than his contract with Club A. There are no other compensation
rights’.
4.
On 4 January 2016, the player put the club in default for the total outstanding
amount of EUR 118,000, however to no avail.
5.
On 11 January 2016, Club A paid the amount of EUR 66,000 to the player, but
also imposed a fine in the total amount of EUR 78,000 on him, because he
Club A, Country B / Player C, Country D / Club F, Country B
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allegedly missed several training sessions in the period between 6 January and 10
January 2016.
6.
On 15 January 2016, the player unilaterally terminated the contract.
7.
Furthermore, on 19 January 2016, the player signed a contract with the Club of
Country B, Club F, valid for the period between 19 January 2016 and 31 May
2016. According to said contract, the player was entitled to receive the total
amount of EUR 110,000, payable in 5 monthly instalments of EUR 22,000 each.
After the expiry of the contract with Club F, the player holds to have remained
unemployed.
8.
On 20 January 2016, Club A lodged a claim against both the player and Club F in
front of FIFA, requesting the DRC:
(a)
to condemn the player to pay compensation in the amount of EUR 480,000
for the unilateral termination of the employment contract without just
cause, specified as follows:
-
EUR 132,000 as residual value of the contract in the 2015/2016 season,
consisting of 6 payments of EUR 22,000 each;
EUR 48,000 as ‘the left over amount from the penalty’;
EUR 300,000 as residual value of the contract in the 2016/2017 season (cf.
point 2. above).
(b) and/or to award a compensation ‘that the panel sees fit’;
(c) to find Club F jointly and severally liable for the payment as mentioned
under point (a);
(d) to impose sanctions on the player and Club F.
9.
In particular, Club A held that the player ‘hasn’t attained the half time training
camp program of the football team’ in Antalya. Club A further stated that the
player was also absent without valid reason from the club’s training sessions on 6,
7, 8, 9, 10 and 15 January 2016, as well as that he did not attend the match Club
A - Club F on 16 January 2016. As a result thereof, Club A held that the player
breached his contractual obligations.
10.
In this respect, Club A argues that, apart from the fines on 11 January 2016, it
imposed an additional fine of EUR 22,000 on the player for missing the training
on 15 January 2016. Therefore, Club A holds that fines in the total amount of
EUR 100,000 were imposed on the player, specified as follows:
Club A, Country B / Player C, Country D / Club F, Country B
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-
for the missed training on 6 January 2016, a fine of EUR 11,000;
for the missed training on 7 January 2016, a fine of EUR 11,000;
for the missed training on 8 January 2016, a fine of EUR 12,000;
for the missed training on 9 January 2016, a fine of EUR 22,000;
for the missed training on 10 January 2016, a fine of EUR 22,000;
for the missed training on 15 January 2016, a fine of EUR 22,000.
11.
Furthermore, Club A argues that on 4 January 2016, it was put in default by the
player for the total amount of EUR 118,000, as well as that on 11 January 2016, it
paid the amount of EUR 66,000 to the player. As a result, Club A holds that ‘the
full amount of 66.000€ debt was paid off’.
12.
In addition, Club A states that on 13 January 2016, the player, the player’s
manager, the club’s president and his son had a meeting in City G. According to
Club A, during said meeting the player expressed the following: ‘He is not happy
in Club A, he does not like City H. He is in disagreement with his ex-wife about
their child together, he is not able to bring his child to Country B, and from here
on even if played in Club A he would not be beneficial to anyone’. Club A further
argues that said circumstances are no valid reason for the player to terminate a
contract and to sign a new contract with another club.
13.
On 29 January 2016, the player lodged a separate claim against Club A,
requesting outstanding and compensation for breach of contract.
14.
In this respect, the player explains that Club A only paid him the signing fee of
EUR 50,000, and therefore, failed to pay him the instalment of EUR 30,000, due
on 25 December 2015, as well as the monthly salaries in the amount of EUR
22,000 each related to the period between September and December 2015.
15.
As a result of the non-payment of the salaries, on 4 January 2016, the player
holds to have put Club A in default for the total amount of EUR 118,000. Further,
the player points out that on 11 January 2016, Club A paid him part of the
requested amount, i.e. EUR 66,000. After not having received the total requested
amount of EUR 118,000, the player argues that on 15 January 2016, he
terminated the contract, due to the outstanding amounts.
16.
Based on the foregoing circumstances, the player lodged a claim before FIFA and
requested the DRC to establish that Club A had to pay him:
Club A, Country B / Player C, Country D / Club F, Country B
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(a)
the amount of EUR 52,000 as outstanding remuneration (corresponding
to the outstanding salary on the date of termination of the contract, i.e.
EUR 118,000 -/- EUR 66,000), plus ‘the applicable interest’;
(b)
the amount of EUR 22,000 as compensation for breach of contract,
calculated as follows: EUR 132,000 as residual value of the contract with
Club A -/- EUR 110,000 as value of his new contract with Club F.
In addition, the player asked for legal expenses to be borne by Club A.
17.
In reply to the claim of Club A, the player denied the Club A’s allegations that he
was absent without a valid reason from the training sessions between 6 January
and 10 January 2016. The player stated that he had permission from Club A to
return only on 11 January 2016 to City J, like some other players of team.
Furthermore, the player stated that he only on 18 January 2016, via his lawyer,
received the notary records Club A refers to.
18.
With respect to the imposed fines, the player argued that these fines cannot be
upheld and that they are invalid, since they are ‘exorbitant’ and he had no right
to defend his case. Further, the player stated that his absence was not unjustified,
and that Club A only imposed these fines in order to set them off against the
outstanding amounts.
19.
As a result of the foregoing, the player requested for the rejection of Club A’s
claim, even if the termination would for whatever reason be considered as made
without just cause, since Club A’s claim is groundless. In addition, the player
explains that the compensation for breach of contract cannot exceed the
difference between the contract with Club A and the contract with Club F.
20.
Despite being invited to do so, Club A failed to submit its reply to the player’s
claim.
21.
After being informed about the claim against the player, Club F submitted its
comments, requesting for the rejection of all claims of Club A.
22.
In this context, Club F stated that ‘it is easy to understand that the Claimant is
trying to use monetary fines to diminish its debts towards the Player […]’ and
further argues that the player was not aware of the fact that these fines were
imposed on him and that he was not given the possibility of defence. In addition,
Club F holds that ‘this kind of fines and sanctions lead to an unjustified
disadvantage of the player’s financial rights’.
Club A, Country B / Player C, Country D / Club F, Country B
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23.
Further, Club F argues that the fines were disproportionate, that there is no
evidence ‘that proves reality of the alleged improper act’ and that ‘the Claimant
could not substantiate its assertions’.
24.
Finally, according to Club F, it was not a party of the contract between Club A
and the player. Moreover, Club F states that upon the signing of its contract with
the player, it checked all the documents provided by him and concluded that the
player, due to the non-payment of salaries, validly terminated his contract with
Club A. In conclusion, Club F states that it cannot be held responsible ‘from any
act because of this’.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 20 January 2016. 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 par. 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 of Country D and a Club of Country B,
with the involvement of another Club of Country B.
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 2016), and considering that the present claim was lodged on 20 January
2016, 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.
Club A, Country B / Player C, Country D / Club F, Country B
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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 doing so, the DRC acknowledged that on 4 August 2015, Club A and the player
signed an employment contract valid until 31 May 2017, in accordance with
which the player was entitled to receive in the 2015/2016 and 2016/2017 season,
the amount of EUR 300,000 per season.
6.
In continuation, the Chamber also took note that it remained uncontested by
both the player and Club A that their contractual relationship was terminated by
the player on 15 January 2016.
7.
In this regard, the Chamber took note that Club A argued that the player had
unilaterally terminated the contractual relationship without just cause, as well as
that the player missed several training sessions, for which circumstance fines in
the total amount of EUR 100,000 were imposed on the player, and that it ‘set off
its debt towards the player’ by making a payment of EUR 66,000 on 11 January
2016. Moreover, Club A explained that the player left, because ‘he was not happy
in City H’ and that he made an ‘unjust transfer’ to ‘Club F’. Based on the
aforementioned circumstances, Club A maintained that the player had
terminated the contract without just cause and therefore claims compensation to
be paid by the player.
8.
Furthermore, the members of the Chamber took due note of the separate claim
of the player, as well as the argumentation contained therein, by means of which
the player explained that the breach of the contract occurred due to the fault of
Club A, since as from September 2015, it failed to pay a lump sum payment in the
amount of EUR 30,000, as well as his monthly salaries in the amount of EUR
22,000 each. In this respect, the members of the Chamber noted that the player
further argued that he put Club A in default, warning the latter that he reserved
his rights to terminate the contract, if Club A would not pay him the outstanding
amounts. Since Club A did not pay him the full requested amount, the player
considered that it breached its contractual obligations and that consequently, he
terminated the contract with just cause.
9.
With the aforementioned considerations in mind, in particular, the opposite
position of the parties, the Chamber deemed that the underlying issue in this
dispute, was to determine whether the employment contract had been
unilaterally terminated on 15 January 2016 with or without just cause by the
Club A, Country B / Player C, Country D / Club F, Country B
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player, and subsequently, to determine the consequences of said early
termination of the contractual relationship by the player.
10.
With the abovementioned in mind, the Chamber first pointed that it remained
uncontested that at the end of December 2015, salaries in the total amount of
EUR 118,000 remained outstanding, consisting of the salaries for the period
between September and December 2015, and the instalment of EUR 30,000 due
on 25 December 2015.
11.
What is more, the Chamber duly noted that the club confirmed that only on 11
January 2016, after being put in default on 4 January 2016 by the player for the
total amount of EUR 118,000, it paid him an amount of EUR 66,000, leaving a
total outstanding amount of only EUR 52,000. However, the club deemed that
fines totalling EUR 100,000, which were imposed on the player by the club for
alleged missed trainings, are to be deducted from the outstanding amount of
EUR 52,000. Consequently, the club requested that it was owed the amount of
EUR 48,000 by the player, and further requested for compensation for breach of
contract to be paid by the player.
12.
On the other hand, the members of the Chamber noted that the player rejected
that the fines were to be deducted from his receivables, pointing out that on 18
January 2016 only, via his lawyer, he was informed for the first time about these
fines, which is after the termination of the contract. Further, the player argued
that he had permission to join the training sessions of the club as from 11 January
2016 only. Moreover, according to the player, these fines are disproportionate
and were only imposed on him in order to set-off the debts the club had towards
him.
13.
With regard to the player’s alleged absence, the Chamber observed that the club
did not submit sufficient evidence which could prove – at the Chamber’s
satisfaction – that the player was indeed absent without valid reason as from 6
January 2016, which circumstance is moreover explicitly contested by the player.
In addition, the Chamber noted that the club could not prove that the letters it
alleges to have sent to the player, requesting him to come back, were duly
notified and received by the player, who claims to have received these letters via
his lawyer on 18 January 2016 only.
14.
What is more, the Chamber concurred that the fines imposed on the player by
the club for his alleged absence shall in any case be disregarded. In this respect,
the Chamber noted that the player does not appear to have had the possibility to
defend himself. Moreover, there is no proof on file that the imposition of said
fines was duly notified to the player. As a result, the Chamber concluded that the
Club A, Country B / Player C, Country D / Club F, Country B
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aforementioned circumstances constitute a violation of the player’s right to a due
process. Thus, said fines should be disregarded. In any case, the fines imposed by
the club on the player, in the total amount of EUR 100,000 represent almost five
monthly salaries, which is clearly to be considered disproportionate and excessive.
15.
Furthermore, and irrespective of the foregoing consideration, the Chamber
wished to point out that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a means to set off outstanding
financial obligations towards players.
16.
In view of the above, the DRC first of all took into consideration the content of
article 14 of the Regulations, which provides that “a contract may be terminated
by either party without consequences of any kind (either payment of
compensation or imposition of sporting sanctions) where there is just cause”.
17.
In continuation, the Chamber stressed that the definition of just cause and
whether just cause exists shall be established in accordance with the merits of
each particular case.
18.
Consequently, the Chamber determined that the club did not have a valid reason
to set off its debt towards the player, thus, the amount of EUR 52,000 remained
outstanding at the date of termination.
19.
Moreover, the DRC took note that - after it had been put in default by the player
on 4 January 2016 – the club paid an amount of EUR 66,000.
20.
In view of the above, the members of the DRC highlighted that, at the moment
the player terminated the contract, i.e. 15 January 2016, the amount of EUR
52,000, corresponding to almost two and a half monthly salaries, remained
outstanding and that Club A had seriously neglected its contractual obligations.
As a result, the members of the Chamber were of the unanimous opinion that
the player could in good faith believe that, in spite of the payment received on
11 January 2016, the club would have persisted on the noncompliance with the
financial terms of the contract.
21.
In light of the aforementioned, the DRC came to the unanimous conclusion that,
considering the situation of the player at the time of the termination, the
outstanding salaries in the amount of EUR 52,000, as well as the objective
circumstances at the time of the termination did provide the player with a just
cause to prematurely terminate the employment contract.
Club A, Country B / Player C, Country D / Club F, Country B
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22.
Having established that the club 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 to reject the club’s claim and established that
the player is entitled to receive from the club an amount of money as
compensation for breach of contract, in addition to any outstanding payments on
the basis of the relevant employment contract.
23.
Along those lines, the Chamber firstly referred to the player’s request regarding
the outstanding salaries at the time of the unilateral termination of the contract.
In this respect, the members of the Chamber concurred that the club must fulfil
its obligations as per the employment contract in accordance with the general
legal principle of “pacta sunt servanda”.
24.
Consequently, the Chamber decided that the club is liable to pay to the player
the remuneration that was outstanding at the time of the termination, i.e. the
amount of EUR 52,000, which is the remaining part of the amount of EUR
118,000, which was outstanding at the end of December 2015.
25.
Moreover, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the amount of
outstanding remuneration, i.e. EUR 52,000 as of 29 January 2016 until the date of
effective payment.
26.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract 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 player 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.
27.
In application of the relevant provision, the Chamber held that it first of all 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
Club A, Country B / Player C, Country D / Club F, Country B
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contract. In this regard, the Chamber noted that the clause in article i) of the
‘Special provisions’ of the contract stipulates the consequences of a unilateral
termination of the contract with just cause by the player.
28.
The members of the Chamber agreed that this clause is not reciprocal as it does
not grant the same rights to both parties, and that, therefore, in accordance with
the longstanding jurisprudence of the DRC in this regard, said clause cannot be
taken into consideration in the determination of the amount of compensation.
29.
As a consequence of the above, the members of the Chamber determined that
the amount of compensation payable by the club to the player had to be assessed
in application of the 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.
30.
Bearing in mind the foregoing, as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the employment contract until the end of the 2015/2016 season.
Consequently the Chamber concluded that, in line with the player’s request, the
amount of EUR 132,000 (i.e. the salary payments with due dates between January
2016 until June 2016) serves as the basis for the determination of the amount of
compensation for breach of contract.
31.
In continuation, the Chamber verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been able 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.
32.
In this context, the Chamber noted that the player had signed on 19 January
2016, an employment contract with the Club of Country B, Club F, valid as from
19 January 2016 until 31 May 2016, by means of which he would receive the total
amount of EUR 110,000.
33.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay – as
per the player’s request - the amount of EUR 22,000 to the player, which was
Club A, Country B / Player C, Country D / Club F, Country B
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considered reasonable and proportionate as compensation for breach of contract
in the case at hand.
34.
Furthermore, the members of the Chamber decided to reject any further claim
lodged by the player.
35.
The Chamber concluded its deliberations in the present matter by rejecting the
claim lodged by the club, as it has been established that the player had just cause
to terminate the employment contract.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of First Claimant / Respondent, Club A, is rejected.
2.
The claim of Second Claimant / Respondent, Player C, is partially accepted.
3.
The First Claimant / Respondent has to pay to the Second Claimant / Respondent,
w ithin 30 day s as from the date of notification of this decision, outstanding
remuneration in the amount of EUR 52,000, plus 5% interest p.a. as of 29 January
2016 until the date of effective payment.
4.
In the event that the amount due to the Second Claimant / Respondent in
accordance with the above-mentioned number 3. is not paid by the First Claimant
/ Respondent within the stated time limit, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
5.
The First Claimant / Respondent has to pay to the Second Claimant / Respondent,
w ithin 30 day s as from the date of notification of this decision, compensation
for breach of contract in the amount of EUR 22,000.
6.
In the event that the amount due to the Second Claimant / Respondent in
accordance with the above-mentioned number 5. is not paid by the First Claimant
/ 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
Club A, Country B / Player C, Country D / Club F, Country B
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submitted, upon request, to the FIFA Disciplinary Committee for consideration and
a formal decision.
7.
Any further claim lodged by the Second Claimant / Respondent is rejected.
8.
The Second Claimant / Respondent is directed to inform the First Claimant /
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 m otiv ated decis ion (legal remedy):
According to art. 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).
Club A, Country B / Player C, Country D / Club F, Country B
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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
Club A, Country B / Player C, Country D / Club F, Country B
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