Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 February 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Johan van Gaalen (South Africa), member
Mohamed Al-Saikhan (Saudi Arabia), member
Eirik Monsen (Norway), member
on the claim presented by the player,
Player A, country B,
as Claimant / Counter-Respondent
against the club,
Club C, country D,
as Respondent / Counter-Claimant
and the club,
Club E, country F
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 29 January 2013, the player from country B, Player A (hereinafter: the
Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter:
the Respondent/Counter-Claimant), signed an employment contract (hereinafter:
the contract) valid as from 30 January 2014 until 30 June 2016.
2.
According to art. 3 of the contract, the Respondent/Counter-Claimant undertook
to provide the Claimant/Counter-Respondent, inter alia, with the following
monthly net salary, payable on the 30th day of the following month:
a. EUR 2,500, from 30 January 2014 until 30 June 2014;
b. EUR 3,500, from 1 July 2014 until 30 June 2015;
c. EUR 4,500, from 1 July 2015 until the end of the contract, i.e. 30 June 2016.
3.
According to art. 9 par. 1, “The contract between the club and the player can be
terminated in accordance with the labour code”. In addition, according to art. 9
par. 2, “Within seven days following the termination of the contract by mutual
consent, in writing, the club shall present to the sport technical department of the
BFU a notice and the original document of the termination. In this case, the player
has the right to be transferred to another club during the transfers periods, and
the club can use the free space”.
4.
Art. 10 par. 20 of the contract further stipulates that “in case of breach of
contract without just cause by the player only, the latter owes compensation to
the club in the amount of the double of gross his remuneration as from the
breach of the contract until its expiry”.
5.
On 15 May 2014, the Claimant/Counter-Respondent sent a notice to the
Respondent/Counter-Claimant alleging that he only received two payments as
from the beginning of the contract in the total amount of 7,500 (2,500 paid as an
Player A, country B / Club C, country D / Club E, country F
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advance payment on 19 February 2014 + 5,000, payment date not specified),
corresponding to approximatively EUR 3,832 as per the player. Therefore, the
Claimant/Counter-Respondent urged the Respondent/Counter-Claimant to comply
with its obligations and pay him the total outstanding amount of EUR 3,668 (i.e
EUR 7,500 due – EUR 3,832 paid) within three days, otherwise the contract with
the Respondent/Counter-Claimant will be terminated and he will refer the matter
to FIFA.
6.
On the same date, in accordance with the alleged procedure in country D, the
Claimant/Counter-Respondent
also
sent
a
notary
notice
to
the
Respondent/Counter-Claimant and the Football Union of country D underlining
the facts presented in point I.5. above.
7.
On 20 May 2014, the Football Union of country D released a statement which
ascertained that the Claimant/Counter-Respondent (among three other players
from the Respondent/Counter-Claimant) “unilaterally terminated his labour
contract without sending a notice” and considered his contract with the
Respondent/Counter-Claimant terminated on 19 May 2014.
8.
On 11 December 2014, the Claimant/Counter-Respondent lodged a claim in front
of FIFA against the Respondent/Counter-Claimant for breach of contract without
just cause, requesting the payment of the total amount of EUR 104,616, broken
down as follows:
i. EUR 5,200 as outstanding remuneration, corresponding to his salaries from 30
January until 30 April 2014 and 19 days in May 2014 minus EUR 3,832 paid by
the Respondent/Counter-Claimant;
ii. EUR 99,416 as compensation, corresponding to the residual value of the
contract.
Player A, country B / Club C, country D / Club E, country F
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9.
In its reply, the Respondent/Counter-Claimant rejected the Claimant/CounterRespondent’s claim and holds having fulfilled all its contractual obligations.
According to the Respondent/Counter-Claimant, it has paid the Claimant/CounterRespondent’s salary for the months of February and March 2014. The
Respondent/Counter-Claimant
further
holds
that
the
Claimant/Counter-
Respondent received a total amount of 7,389.58 for the period of February to
May 2014. In addition, the Respondent/Counter-Claimant underlines that the
Claimant/Counter-Respondent left country D in May 2014 without its permission.
Consequently, the Respondent/Counter-Claimant rejected the Claimant/CounterRespondent’s claim and lodged a counterclaim against him, on 2 February 2015
since the Claimant/Counter-Respondent had allegedly no just cause to unilaterally
terminate the contract. In particular, the Respondent/Counter-Claimant requested
an amount of compensation to be paid by the Claimant/Counter-Respondent,
corresponding to “(…) double the amount of his gross salary for the period from
the date of termination of the contract by the end of its term“, in accordance
with art. 10 par. 20 of the contract (cf. point I.4. above), as well as the legal costs
to be borne by the Claimant/Counter-Respondent.
10.
In
his
reply
to
the
Respondent/Counter-Claimant’s
counterclaim,
the
Claimant/Counter-Respondent recalled having never considered his salary of
February 2014 as outstanding but he underlined that it was paid with a delay of
one month. Moreover, the Claimant/Counter-Respondent points out that the
Respondent/Counter-Claimant did not pay his salaries for two days in January
2014 (30 and 31 January 2014), his salaries for March and April 2014 and 19 days
in May 2014.
11.
Furthermore,
the
Claimant/Counter-Respondent
emphasises
that
the
Respondent/Counter-Claimant has failed to reply to his notice dated 15 May 2014
and therefore the termination of the contract was effective as from 19 May 2014
and confirmed by the Football Association of country D. In addition, the
Claimant/Counter-Respondent points out that according to the labour law of
Player A, country B / Club C, country D / Club E, country F
Page | 4
country D (art. 327, par. 1, item 2): “The employee may terminate the
employment contract unilaterally in writing without notice when the wages are
delayed by the employer, this without preventing the employee from claiming
labour remuneration and/or compensation”.
12.
Finally, the Claimant/Counter-Respondent informed FIFA that on 6 January 2015,
he signed an employment contract with the club from country F, Club E, valid
until 31 June 2017, for which he is entitled to a monthly salary of EUR 2,700 until
the original expiry of the contract with the Respondent/Counter-Claimant.
However, the Claimant/Counter-Respondent holds that as from the beginning of
the contract, he was only paid EUR 1,816 and terminated the contract with Club E
on 3 June 2015. As from this date, he remained unemployed.
13.
Upon request to provide its position in relation to the matter at stake, Club E
outlines that it has signed a first contract with the Claimant/Counter-Respondent
on 9 September 2014 but it was rejected by TMS since it “uploaded in system the
unilateral termination agreement received by the player from Football Union of
country D and in addition we were outside the transfer period”. Therefore the
contract was cancelled, the Claimant/Counter-Respondent left and came back on 6
January 2015 and the club could obtain the ITC. Finally, Club E indicates that the
contract with the Claimant/Counter-Respondent was terminated after a period of
4 months.
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 11 December 2014. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2014;
Player A, country B / Club C, country D / Club E, country F
Page | 5
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 (editions 2014 and 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 par. 2 of the Regulations on the Status and Transfer of Players
(editions 2014 and 2015), and considering that the present claim was lodged on
11 December 2014, the 2014 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 Chamber entered into the substance of the matter. In doing so, it
started to acknowledge the facts of the case as well as the documents contained
in the file.
5.
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 members of the Chamber acknowledged that the parties were
bound by an employment contract, which was signed on 29 January 2013 and
valid as from 30 January 2014 until 30 June 2016.
Player A, country B / Club C, country D / Club E, country F
Page | 6
7.
In continuation, the members of the Chamber noted that the Claimant/CounterRespondent
lodged
a
claim
against
the
Respondent/Counter-Claimant
maintaining that he had terminated the employment contract with just cause on
19 May 2014, after previously having put the Respondent/Counter-Claimant in
default on 15 May 2014, since he allegedly only received the total amount of EUR
3,832 instead of EUR 7,500, as from the beginning of the contract (cf. point I.5.
above). Consequently, the Claimant/Counter-Respondent asks to be awarded his
outstanding dues as well as the payment of compensation for breach of the
employment contract.
8.
The
Respondent/Counter-Claimant,
for
its
part,
submitted
that
the
Claimant/Counter-Respondent had been absent as from the end of the month of
May 2014 without its authorisation. In addition, the Respondent/CounterClaimant asserted that it had paid the Claimant/Counter-Respondent’s salary for
the months of February and March 2014. The Respondent/Counter-Claimant
deemed that the Claimant/Counter-Respondent unilaterally terminated the
contract without just cause on 19 May 2014 and therefore, on 2 February 2015,
the
Respondent/Counter-Claimant
Claimant/Counter-Respondent
lodged
seeking
the
a
counterclaim
payment
of
an
against
the
amount
of
compensation corresponding to “double the amount of his gross salary for the
period from the date of termination of the contract by the end of its term“, in
accordance with art. 10 par. 20 of the contract (cf. point I.9. above).
9.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant/CounterRespondent and the allegations of the Respondent/Counter-Claimant, was to
determine whether the employment contract had been unilaterally terminated
with or without just cause by the Claimant/Counter-Respondent, on 19 May 2014.
10.
At this point already, and in relation to the documentation provided by the
parties, the Chamber deemed it appropriate to refer the parties to the content of
Player A, country B / Club C, country D / Club E, country F
Page | 7
art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a
right on the basis on an alleged fact shall carry the burden of proof”.
11.
In view of the above, the DRC deemed that, in the present case, the
Respondent/Counter-Claimant carried the burden of proof of proving the
payment of the Claimant/Counter-Claimant’s remuneration or to have had any
valid reasons not to pay him in accordance with the contract.
12.
In this context, the members of the Chamber first observed that the
Respondent/Counter-Claimant could provide documentary evidence proving two
payments towards the player: Two receipts issued by the Respondent/CounterClaimant and signed by the Claimant/Counter-Respondent, the first one dated 30
April 2014 for an amount of 4,889.68 and the second one, for an amount of 2,500
dated 19 February 2014.
13.
Therefore, the Chamber determined that the Respondent/Counter-Claimant could
prove having paid the Claimant/Counter-Respondent’s salary for the month of
February 2014 and part of the salary of March 2014. Moreover, the Chamber
recalled that the Claimant/Counter-Respondent confirmed having received from
the Respondent/Counter-Claimant the total amount of EUR 3,832.
14.
Turning its attention to the arguments of the Respondent/Counter-Claimant for
the non-payment of the Claimant/Counter-Respondent’s salary, the DRC noted
that the Respondent/Counter-Claimant does not present any valid reason or
evidence for not having paid the Claimant/Counter-Respondent’s salary for part of
the month of March 2014.
15.
The Chamber deemed it important to underline that the Claimant/CounterRespondent considered that at the time of the termination of the contract, the
salaries of April 2014 and 19 days in May 2014 were due.
Player A, country B / Club C, country D / Club E, country F
Page | 8
16.
Having recalled the aforementioned, the Chamber outlined that, in accordance
with art. 3. of the contract (cf. point I. 2. above), the Claimant/CounterRespondent’s salary was payable until the 30th day of the following month.
17.
In this context, the Chamber stressed that at the date of the termination of the
contract by the Claimant/Counter-Respondent, i.e. 19 May 2014, remuneration of
less than one month, i.e. March 2014, was outstanding. In this respect, the
Chamber deemed it fit to point out that, in general, that is, regardless of specific
circumstances surrounding a matter, solely the partial non-payment of one
monthly remuneration cannot be considered a just cause for a player to cease
rendering his services to a club.
18.
Having stated the above, the Chamber turned its attention to the question as to
whether the Claimant/Counter-Respondent had had a just cause to prematurely
terminate his contract with the Respondent / Counter-Claimant. In this respect,
the Chamber noted that the only reason given by the Claimant/CounterRespondent for leaving the club was related to the alleged outstanding payments.
19.
On account of the above, considering that less than one month of the
Claimant/Counter-Respondent’s salary was outstanding at the time of the
termination of the contract, the DRC decided that the Claimant/CounterRespondent did not have a just cause to unilaterally terminate the employment
relationship
between
the
Claimant/Counter-Respondent
and
the
Respondent/Counter-Claimant, on 19 May 2014.
20.
Prior to analysing the amount of compensation due to the Respondent/CounterClaimant, and on account of the aforementioned considerations, the Chamber
decided that in accordance with the general legal principle of pacta sunt
servanda, since the Claimant/Counter-Respondent rendered his services until and
including the 19 May 2014, the Respondent/Counter-Claimant is liable to pay to
the Claimant/Counter-Respondent the remuneration until the termination i.e. the
amount of EUR 5,200.
Player A, country B / Club C, country D / Club E, country F
Page | 9
21.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber focused
its attention on the calculation of the amount of compensation for breach of
contract
payable
by
the
Claimant/Counter-Respondent
to
the
Respondent/Counter-Claimant in the case at stake.
22.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent contract 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. The members of the
Chamber recalled that according to art. 10 par. 20 of the contract “in case of
breach of contract without just cause by the player only, the latter owes
compensation to the club in the amount of the double of gross his remuneration
as from the breach of the contract until its expiry”.
23.
In view of the foregoing, and bearing in mind the Respondent/Counter-Claimant’s
request, the Chamber deemed that a clause establishing that compensation for
breach of contract amounts to double of the residual value of the contract is
clearly disproportionate and cannot be applied.
24.
As a consequence, the members of the Chamber determined that the amount of
compensation
payable
by
the
Claimant/Counter-Respondent
to
the
Respondent/Counter-Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations.
25.
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. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body. In this regard, the
Dispute Resolution Chamber emphasized 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.
Player A, country B / Club C, country D / Club E, country F
Page | 10
26.
Having said this, the Chamber turned its attention to the remuneration and other
benefits due to the Claimant/Counter-Respondent under the existing contract
and/or the new contract. The members of the Chamber deemed it important to
emphasise that the wording of article 17 par. 1 of the Regulations allows the
Chamber to take into account both the existing contract and any new contract(s)
in the calculation of the amount of compensation thus enabling the Chamber to
gather indications as to the economic value attributed to a player by both his
former and his new club(s).
27.
In this regard, the Chamber noted that, as per the employment contract signed
with the Respondent/Counter-Claimant, the Claimant/Counter-Respondent was
entitled to a total salary of EUR 99,468 from the date of termination, i.e. 19 May
2014, until the original end of the contract i.e., until 30 June 2016.
28.
In continuation, the DRC equally took note of the Claimant/Counter-Respondent’s
remuneration with his new club, i.e. Club E, which corresponded to a total
amount of EUR 67,500, until the original end of the contract with the
Respondent/Counter-Claimant.
29.
Taking into account the aforementioned elements the Chamber concluded that
the average remuneration of EUR 83,484 for the time remaining of the relevant
contract should be taken into account in the calculation of the amount of
compensation for breach of contract payable to the Respondent/CounterClaimant.
30.
On account of all of the above-mentioned considerations, the Chamber decided
that the Claimant/Counter-Respondent must pay the amount of EUR 83,484 to the
Respondent/Counter-Claimant as compensation for breach of contract, which was
considered a fair and adequate amount of compensation in the present matter.
31.
Furthermore, in accordance with the unambiguous content of article 17 par. 2 of
the Regulations, the Chamber established that the Claimant’s new club, i.e. Club
E, shall be jointly and severally liable for the payment of compensation.
Player A, country B / Club C, country D / Club E, country F
Page | 11
32.
In this respect, the Chamber was eager to recall that the joint liability of a player’s
new club is independent from the question as to whether this new club has
committed an inducement to contractual breach. This conclusion is in line with
the well-established jurisprudence of the Chamber that was repeatedly confirmed
by the Court of Arbitration for Sport (CAS). Hence, the Chamber decided that Club
E is jointly and severally liable for the payment of the relevant compensation.
33.
Finally, the DRC decided that the Respondent/Counter-Claimant’s claim pertaining
to legal costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s longstanding respective jurisprudence.
34.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant/CounterRespondent are rejected and that the counterclaim of the Respondent/CounterClaimant is partially accepted.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club C, is partially
accepted.
3.
The
Respondent/Counter-Claimant
has
to
pay
to
the
Claimant/Counter-
Respondent outstanding remuneration in the amount of EUR 5,200, within 30
days as from the date of notification of this decision.
Player A, country B / Club C, country D / Club E, country F
Page | 12
4.
The Claimant/Counter-Respondent has to pay to the Respondent/CounterClaimant compensation for breach of contract in the amount of EUR 83,484,
within 30 days as from the date of notification of this decision.
5.
The Intervening Party, Club E, shall be held jointly and severally liable for the
payment of the amount mentioned in point 4 above.
6.
In the event that the amount due to the Claimant/Counter-Respondent in
accordance with the above-mentioned number 3. and the amount due to the
Respondent/Counter-Claimant in accordance with the above-mentioned number
4. are not paid by respectively the Respondent/Counter-Claimant and the
Claimant/Counter-Claimant within the stated time limits, interest at the rate of
5% p.a. will fall due as of expiry of the aforementioned time limits and the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
7.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
8.
Any further counterclaim lodged by the Respondent/Counter-Claimant is rejected.
9.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant immediately and directly of the account number to which the
remittance is to be made and to notify the Dispute Resolution Chamber of every
payment received.
10.
The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent and the Intervening Party immediately and directly of the account
number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
Player A, country B / Club C, country D / Club E, country F
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*****
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:
Markus Kattner
Acting Secretary General
Encl.: CAS directives
Player A, country B / Club C, country D / Club E, country F
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