Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 January 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (Netherlands ), member
Pav el Piv ov arov (Russ ia), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 18 July 2016, the player of Country B, Player A (hereinafter: the player or
Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent)
concluded an employment contract (hereinafter: the contract), valid as from 18
July 2016 until 17 July 2018.
2.
According to article 4 of the contract, the player is entitled to receive
following amounts:
the
For the 2016/2017 season:
An annual wage of USD 1,100,000, payable as follows:
‘30% of the annual wage’ or USD 330,000, ‘paid in advance after signing
the contract’, by no later than 1 August 2016;
‘the remaining 70% of the annual wage’ or USD 770,000 in twelve equal
instalments of USD 64,166, due at the end of each subsequent month.
For the 2017/2018 season:
An annual wage of USD 1,200,000, payable as follows:
‘30% of the annual wage’ or USD 360,000, ‘paid in advance after signing
the contract’, by no later than 1 August 2016;
‘the remaining 70% of the annual wage’ or USD 840,000 in twelve equal
instalments of USD 70,000, due at the end of each subsequent month.
3.
Article 6 of the contract contains the following clause: ‘The first party may not
delay payment of the second party’s salaries or terminate the contract due to
player’s injury during play or training. The second party may terminate the
contract only with just cause according to FIFA Regulations. Delay of payment of
an aggregate of three (3) monthly wages would be considered a just cause for
termination without prior notice’.
4.
On 31 August 2017, the player lodged a claim against the club in front of FIFA,
requesting that the club has to be ordered to pay the following amounts to the
player:
Player A, Country B / Club C, Country D
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Outstanding remuneration in the amount of USD 558,332, as follows:
the monthly salaries for May and June 2017, in the amount of USD 64,166
each, plus 5% interest p.a. as of 2 August 2017;
the monthly salary for July 2017 in the amount of USD 70,000, plus 5%
interest p.a. as of 2 August 2017;
the amount of USD 360,000 as sign-on fee for the 2017/2018 season, as per
article 4 of the contract, plus 5% interest p.a. as of 2 August 2016.
Compensation for breach of contract in the amount of USD 840,000, as follows:
USD 840,000 as residual value of the contract in the period between
August 2017 and July 2018, corresponding to twelve monthly payments of
USD 70,000 each, plus 5% interest p.a. as of the date of the ‘arbitration
decision’.
Finally, the player requested for sporting sanctions to be imposed on the club, as
well as that the club be ordered to pay his legal costs.
5.
In his claim, the player holds that as from the beginning of the contract, the club
was in delay with the payment of his remuneration. After having put the club in
default on several occasions, on 19 April 2017, the club settled all its debts
towards the player until the month of March 2017.
6.
Moreover, on 3 May 2017, ‘before the last match on May 4, 2017’, the player
requested an exit visa from the club, ‘so he could return to Country B for annual
leave’ by no later than 6 May 2017. The player further explains that the club did
not reply to his letter, but that it nonetheless issued him the exit visa.
7.
Furthermore, the player explains that on 9 June 2017, the club requested him in
writing to join the pre-season camp in the city of Country D, which would start on
14 June 2017. According to the player, on 13 June 2017, he informed the club that
due to illness, he could only return to the city of Country D on 18 June 2017 and
also requested the club to deliver him the relevant flight tickets. The player
further explains that on 14 June 2017, the club provided him in writing with the
flight tickets, but that it also referred to alleged ‘unauthorized absence for
vacation’ in the period between 6 May 2017 and 31 May 2017, which was
apparently a reason for the club to withhold the payment of the salary for the
months of April and May 2017.
Player A, Country B / Club C, Country D
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8.
Moreover, the player states that, after having returned to Country D, on 10 July
2017, he put the club in default for an amount of USD 552,498, corresponding to
the unpaid salaries for the months of April, May and June 2017, as well as the
sign-on fee in the amount of USD 360,000 for the season 2017/2018. The player
holds that on 14 July 2017, during the club’s preseason training camp, he offered
the club a mutual termination of the contract, which was however refused by the
club. Moreover, the player explains that on 16 July 2017, the club informed him
about disciplinary proceedings to be held, because of his alleged unauthorized
absence in May 2017.
9.
Subsequently, after the player sent the club a document which allegedly proved
his illness on 12 June 2017, on 17 July 2017, the club informed him about the
payment of the salary for April 2017. In addition, the player holds that the club
also explained that the sign-on fee for the season 2017/2018 was only due on 1
August 2017, as the contract contained ‘a typographical error’, as well as that the
salaries for May and June 2017 would be suspended ‘on full pay pending the
investigation for unauthorized absence’.
10.
Moreover, the player explains that on 22 July 2017, he took part in a disciplinary
proceeding which was held at the club’s offices, in which meeting he ‘verbally
received’ a proposal for a mutual termination of the contract. The player explains
that said proposal was confirmed to him in writing on 25 July 2017.
11.
What is more, the player argues that on 26 July 2017, he replied to the club,
indicating that he refused to take part in any further disciplinary proceedings, and
putting the club again in default for the payment of ‘all outstanding debts’.
Finally, the player indicated that if he would not receive the outstanding amounts
by 2 August 2017, he would initiate proceedings before FIFA and terminate the
contract.
12.
On 2 August 2017, after not having heard from the club, the player unilaterally
terminated the contract, due to outstanding remuneration in the total amount of
USD 558,332.
13.
Finally, the player explains that after the termination of the contract, the club
refused to issue him an exit visa, as a result of which the player was not able to
leave Country D. The player holds that after he requested intervention of inter
alia FIFA and FIFPro, on 4 August 2017, he received an exit visa and left Country D.
14.
The club was invited to submit its reply to the player’s claim before 24 September
2017, and asked for a deadline extension on 21 September 2017, which was
granted until 4 October 2017. However, on 4 October 2017, the club replied by
Player A, Country B / Club C, Country D
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stating that the player’s claim was allegedly illegible and asking FIFA to resend
the claim.
15.
After being informed by the FIFA administration that, in view of the foregoing
circumstances, the investigation phase of the matter at hand was to be considered
as closed as per 5 October 2016, on 5 October 2016, the club submitted an
additional correspondence, indicating that it would lodge claim against the player
for breach of contract, however in the end, never doing so.
16.
Finally, the player informed FIFA that, on 31 August 2017, he signed an
employment contract with the club of Country E, Club F, valid as from 12 October
2017 until 30 June 2019 and provided a copy of said contract. Based on this
document, the player is entitled to receive a monthly salary of EUR 10,000 ‘net’, as
well as a sign-on fee of EUR 210,000 gross, according to the player in total
amounting to EUR 172,143 net for the 2017/2018 season.
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 31 August 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
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 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2018) 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 B and a club of Country D.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 18 January 2018 by means of which
the parties were informed of the composition of the Chamber, the Member G and
the Member H refrained from participating in the deliberations in the case at
hand, due to the fact that the Member G has the same nationality as the player
and that, in order to comply with the prerequisite of equal representation of club
and player representatives, also the Member H refrained from participating and
thus the Dispute Resolution Chamber adjudicated the case in presence of three
members in accordance with art. 24 par. 2 of the Regulations.
Player A, Country B / Club C, Country D
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4.
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 2018), and considering that the present claim was lodged on 31 August
2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
5.
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.
6.
In this respect, the Chamber recalled that the parties had signed an employment
contract, valid as from 18 July 2016 until 17 July 2018, on the basis of which the
player was entitled to receive the amount of USD 1,100,000 for the 2016/2017
season and the amount of USD 1,200,000 for the 2017/2018 season.
7.
In continuation, the members of the Chamber noted that the player lodged a
claim against the club, maintaining that he had terminated the employment
contract with just cause on 2 August 2017, after previously having put the club in
default. The player held that the club, as from the start of the contract, allegedly
failed to pay him the remuneration he was entitled to, and that on 2 August
2017, three monthly salaries, in the total amount of USD 198,332, as well as a
sign-on fee of USD 360,000 remained outstanding. Consequently, the player
requested to be awarded his outstanding dues as well as the payment of
compensation for breach of the employment contract.
8.
Subsequently, the DRC observed that the club, in spite of having been invited to
do so, had failed to present its reply to the claim of the player, even within the
extended deadline granted by FIFA, i.e. 4 October 2017. In fact, on 4 October
2017, the club requested FIFA to resend it the entire case, as the documents
previously received were allegedly illegible. The FIFA Administration denied said
request, as this was in facto a second request for an extension of the deadline,
which is not allowed in accordance with art. 16 par. 11 of the Procedural Rules.
Subsequently, the investigation phase in the matter at hand was closed.
9.
What is more, after the closure of the investigation phase in the matter at hand,
the club submitted unsolicited comments, indicating that it considered lodging a
counterclaim towards the player, however effectively failing to do so until today.
Player A, Country B / Club C, Country D
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10.
Based on the foregoing, bearing in mind the Chamber’s constant jurisprudence in
this regard and in application of art. 9 par. 3 and art. 16 par. 11 of the Procedural
Rules, the members of the Chamber decided that the club’s request for an
extension of the deadline was correctly denied by the FIFA Administration, as this
was in fact to be considered a second request for an extension of the deadline.
Furthermore, in the absence of a timely answer of the club, the investigation
phase of the matter at hand was correctly closed in accordance with art. 9 par. 3
of the Procedural Rules.
11.
What is more, the members of the Chamber recalled the wording of art. 9 par. 4
of the Procedural Rules, which provides inter alia for the following: ‘The parties
shall not be authorised to supplement or amend their requests or their
arguments, to produce new exhibits or to specify further evidence on which they
intend to rely, after notification of the closure of the investigation.’ In this
respect, the members of the Chamber decided to not take into account the
unsolicited comments of the club, which were submitted after the closure of the
investigation phase.
12.
In view of the foregoing, the DRC established that it shall take a decision on the
basis of those documents on file that were provided prior to the deadline set by
FIFA and prior to the subsequent closure of the investigation phase, in casu, on
the statements and documents presented by the player.
13.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute was to determine whether the contract had been
terminated by the player on 2 August 2017 with or without just cause, and
subsequently, to determine the consequences of the early termination of the
contractual relationship by the player.
14.
In accordance with the employment contract, and taking into account that the
player stated that the club failed to pay him his monthly salaries as from the start
of the contract, the club was obliged to pay to the player at the time the contract
was terminated, i.e. on 2 August 2017, the monthly salaries for the months May
and June 2017 in the amount of USD 64,166 each, the salary for the month of July
2017 in the amount of USD 70,000, as well as a sign-on fee in the amount of USD
360,000, related to the 2017/2018 season.
15.
In this respect, the Chamber wished to clarify that, although the contract contains
a clause specifying that the amount of USD 360,000 for the 2017/2018 season
would be payable already on 1 August 2016, it appeared that this is a clerical
error in the contract, as the sign-on fee clearly refers to the 2017/2018 season. As
a result, the Chamber deemed that the sign-on fee of USD 360,000 fell due on 1
August 2017.
Player A, Country B / Club C, Country D
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16.
On account of the aforementioned, in particular in view of the considerations
under point II./14. and II./15. above, the Chamber established that the club,
without any valid reason, failed to remit to the player, until 2 August 2017, the
date on which the player terminated the contract, the total amount of USD
558,332. Consequently, and considering that the club had repeatedly and for a
significant period of time been in breach of its contractual obligations towards
the player, as well as article 3 of the contract, which contains a clear stipulation
that the player may terminate the contract with just cause if three monthly
salaries are outstanding, the Chamber decided that the player had just cause to
unilaterally terminate the employment contract on 2 August 2017. As a result, the
club is to be held liable for the early termination of the employment contact with
just cause by the player.
17.
In continuation, having established that the club is to be held liable for the early
termination of the employment contract with just cause by the player, the
Chamber focused its attention on the consequences of such termination.
18.
First of all, 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”. 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 USD 558,332, consisting of the salaries
for the months of May, June and July 2017, in the total amount of USD 198,332,
as well as second part of the sign-on fee in the amount of USD 360,000.
19.
Furthermore, considering the player’s claim for interest and also taking into
account the Chamber’s longstanding jurisprudence, the Chamber ruled that the
club must pay 5% interest p.a. on the amount of USD 558,332 as from 2 August
2017, as claimed by the player.
20.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the player is entitled to receive from the club compensation
for breach of contract, in addition to any outstanding salaries on the basis of the
relevant employment contract.
21.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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
Player A, Country B / Club C, Country D
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maximum of five years, and depending on whether the contractual breach falls
within the protected period.
22.
In application of the relevant provision, the Chamber held that first of all, it 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.
23.
As a consequence, 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 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.
24.
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 17 July 2018, taking into account that the
player was entitled to receive 12 payments of EUR 70,000 each for the 2017/2018
season, but that the salary for the month of July 2017 is included in the
outstanding remuneration the player is entitled to receive (cf point II./14. and
II./18. above. Consequently, the Chamber concluded that the amount of USD
770,000 serves as the basis for the determination of the amount of compensation
for breach of contract.
25.
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 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.
26.
Indeed, on 31 August 2017, the player found employment with the club of
Country E, Club F. In accordance with the pertinent employment contract, which
has been made available by the player, valid as from 12 October 2017 until 30
June 2019, the player was entitled to receive a monthly salary of EUR 10,000 net,
as well as a sign-on fee of EUR 210,000 gross. Furthermore, the player explained
in detail, and based on extensive documentation, that in the relevant period, i.e.
the 2017/2018 season, said contract entitled him to receive a total amount of EUR
172,143 net. Consequently, the Chamber established that the value of the new
Player A, Country B / Club C, Country D
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employment contract concluded between the player and Club F for the period as
from 31 August 2017 until 17 July 2018 amounted to EUR 172,143, or
approximately USD 210,000.
27.
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 the
amount of USD 560,000 to the player, which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present
matter. In accordance with its established jurisprudence and taking into account
the request of the player, the Chamber further decided that interest at the rate of
5% p.a. was to be applied over the amount of USD 560,000 as from 25 January
2018, i.e. the date of the decision.
28.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
USD 558,332, plus 5% interest p.a. as of 2 August 2017 until the date of effective
payment.
3.
The Respondent has to pay to the Claimant w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount
of USD 560,000, plus 5% interest p.a. on said amount as from 25 January 2018
until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned 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.
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.
*****
Player A, Country B / Club C, Country D
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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).
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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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