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
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Mario Gallavotti (Italy), member
Mohamed Al Saikhan (Saudi Arabia), member
on the matter between the player,
Player A, country B
as Claimant / Counter-Respondent
and the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country B
as Intervening Party
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 15 January 2013, the player from country B, Player A (hereinafter: player or
Claimant / Counter-Respondent) and the club from country D, Club C (hereinafter: club
or Respondent / Counter-Claimant) signed an employment contract valid as from 15
January 2013 until 30 June 2016 (hereinafter: the contract).
2.
According to the contract, the player was entitled to receive, inter alia, the following
amounts:
during the season 2012/2013, 5.5 monthly salaries of USD 5,000 each, as well as a
‘productivity bonus’ of USD 72,500;
during the season 2013/2014, 12 monthly salaries of USD 5,000 each, as well as a
‘productivity bonus’ of USD 150,000;
during the season 2014/2015, 12 monthly salaries of USD 5,000 each, as well as a
‘productivity bonus’ of USD 160,000;
during the season 2015/2016, 12 monthly salaries of USD 5,000 each, as well as a
‘productivity bonus’ of USD 170,000.
3.
Article 2 of the contract stipulates the following: ‘The present contract is concluded for
the period of three (03) years which starts in on 15 January 2013 and expires on 30th
Juin 2016’. Further, article 8 provides inter alia for the following: ‘Obligations of the
player: The player, Player A, is involved itself to: […] b- Participate in trainings and to
the preparation of the matches while respecting the instructions furnished by his
superior one (technical staff or staff leaders or medical staff) […] d- Respect record
them and act according to the instructions of the official ones of the club’.
4.
In addition, article 16 stipulates as follows: ‘The player and the club are held to respect
the statutes, regulations, include the Ethics Code, and decisions of the FIFA,
Confederacy, association member and, if need be, professional league, that are an
integral part the present contract. The parties confirm by their signature. The player
and the club recognize that the regulations linked to aforementioned soccer are likely
to change time in time’.
5.
The player states that the club failed to pay him the monthly salaries for May and June
2013 (in the total amount of USD 10,000), as well as a part of the productivity bonus
for the year 2013, in the amount of USD 32,500. On 29 July 2013, the player put the
club in default and requested the payment of the total amount of USD 42,500.
6.
According to the player, the club did not reply to the default letter, nor did it pay the
requested salaries. As a result of the aforementioned circumstances, the player states
that he ‘has been forced to travel back to his home country as he awaits the said
payment’. Further, the player argues that the club ‘instead of making good the debt’,
rather ‘opted to threating the Claimant (i.e. the player) with a view of taking
disciplinary measures’.
Player A, country B / Club C, country D / Club E, country B
Page 2 of 10
7.
On 23 August 2013, the player lodged a claim before FIFA against the club, claiming
the total amount of USD 42,500, detailed as follows:
the monthly salary for May 2013 (USD 5,000);
the monthly salary for June 2013 (USD 5,000);
part of the bonus payment for the season 2012/2013 (USD 32,500).
Furthermore, the player requested for interest ‘from date of default at commercial rate
till payment in full’ and ‘costs of the suit’. The player also asked for additional interest
on the aforementioned request for interest, ‘at commercial rate from date of
judgement till payment in full’.
8.
In addition, the player asked for ‘general damages for breach of contract’, in the
amount of USD 8,500.
9.
In its reply to the claim of the player, the club stated that during the first period of the
contract, it did not had any incident with the player and that the player received all
the salaries and the contractual financial benefits he was entitled to. Further, the club
argues that as from the beginning of May 2013, the player was absent from the
training sessions of the club without valid reasons for many times, that his efficiency
started to drop and that he became ‘nonchalant’.
10.
According to the club, on an unspecified date, it received a letter from the Football
Federation Associations of country B (hereinafter: Football Federation Associations of
country B) with the request to release the player for training sessions, starting on 24
May 2013 and for two international matches of the national team of country B, to be
played on 8 and 15 June 2013. Furthermore, the club states that the player left the club
on “20 May 2013”, without authorization of the club or the approval of his supervisors.
11.
In addition, the club argues that on 12 July 2013, it requested the player in writing to
return to the club, because he was in breach of articles 2, 8 and 16 of his contract. In its
letter, the club stated that the player had ‘not incorporated your club since June, 23th
2013 without any prior authorization by our club’ and that this has to be considered as
a breach of contract. In addition, the club requested the player to ‘reintegrate your
club by not later than July, 15th 2013’ and further states ‘If not, we will be obliged to
take appropriate disciplinary measures and to transfer the case to the Competent
Court’.
12.
Furthermore, the club states that the fact that the player received a late payment of
salary cannot be considered as a fault from the club, which could lead to the
termination of the contract by the player with just cause.
13.
Moreover, the club argues that the player terminated the contract without having just
cause and lodged a counterclaim, requesting the player to be ordered to pay the total
amount of USD 1,324,742, as follows:
Player A, country B / Club C, country D / Club E, country B
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‘compensation in proportion to the value of the transfer agreement’, in the
amount of USD 247,142;
salary related to the months of May and June 2013, in the amount of USD 10,000;
salary related to the period from July 2013 until June 2016, in the amount of USD
180,000;
productivity bonuses related to the period between July 2013 and June 2016, in
the amount of USD 480,000;
rental expenses in the amount of USD 19,000 (30 months x USD 500);
costs of airlines tickets in the amount of USD 12,000 (12 travels x USD 1,000);
car rental in the amount of USD 26,600 (38 months x USD 700);
‘salaries, bonuses and benefits already paid’, in the amount of USD 50,000;
‘financial and competitive damage (loss of earnings and breach of contract during
the protected period and training compensation for the club)’, in the amount of
USD 300,000.
14.
Despite being invited to do so, the player did not respond to the counterclaim within
the investigation phase of the matter, but only after the closure of investigation.
Furthermore, the correspondence received from the player was incomplete and
although having been asked to send the complete correspondence, the player failed to
do so.
15.
Despite being invited to do so, the new club of the player, Club E, did not present its
comments. According to the information contained in the Transfer Matching System
(TMS), the player signed a contract valid for 6 months in accordance with which he
would earn a monthly salary of 2,000,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 23 August 2013.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2012; 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 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, with the involvement of a club from
country B.
Player A, country B / Club C, country D / Club E, country B
Page 4 of 10
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015),
and considering that the present claim was lodged on 23 August 2013, the 2012
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. What is more, the Chamber decided that since the
player’s answer to the club’s counterclaim was received only after the closure of the
investigation-phase, said submission could not be taken into consideration.
5.
In continuation, the members of the Chamber noted that the player - after previously
having put the club in default - lodged a claim against the club maintaining that the
club failed to pay him the total amount of USD 42,500 as outstanding remuneration.
The player further alleged that he would only return to the club when the outstanding
amounts would be paid.
6.
The club, on the other hand, rejected such claim and lodged a counterclaim against
the player, maintaining that the latter had terminated the contract without just cause
by not going back to the club and therefore claiming USD 1,324,742 as compensation
for the unjustified termination of the contract by the player.
7.
In this context, the members of the Chamber highlighted that the central issue in the
matter at stake would be, thus, to determine as to whether the player had just cause
to not go back to the club and/or to terminate the contract. The members of the
Chamber also underlined that, subsequently, after the determination whether the
contract was terminated by the player with or without just cause, it would be
necessary to determine the consequences of such termination.
8.
In this respect, the player submits that at the end of July 2013, he had not received
from the club the monthly salaries for the months May and June 2013 in the amount
of USD 5,000 each, as well as the unpaid part of the productivity bonus in the amount
of USD 32,500. Consequently, the player asked to be awarded his outstanding dues, as
well as compensation for breach of contract in the amount of USD 8,500, referred to as
‘general damages’.
9.
Furthermore, the members of the Chamber took note of the arguments of the player
that, after being called up for the national team of country B, he did not went back to
Player A, country B / Club C, country D / Club E, country B
Page 5 of 10
the club and that - after he had put the club in default on 29 July 2013 and requested
for payment of the outstanding amounts - he was forced to travel back to his home
country, i.e. country B, where he awaited for the outstanding payments to be paid by
the club.
10.
The Chamber then turned its attention to the arguments of the club stating that the
player had no just cause to terminate the contract, since (a) the player was invited for
international duties with the national team of country B, but allegedly left the club on
20 May 2013 without the authorization and (b) that the fact that the player received a
late salary payment, cannot lead to the termination of the contract without just cause.
Further, the Chamber took note of the club’s argument that the player did not reply to
the club’s letter dated 12 July 2013, in which he was requested to return to the club by
no later than 15 July 2013.
11.
In this context, the members of the Chamber first recalled the basic principle of burden
of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a
party claiming a right on the basis of an alleged fact shall carry the respective burden
of proof.
12.
With respect to the club’s arguments, the Chamber noted that the club did not provide
any evidence of its allegations that the player left the club on 20 May 2013 without
permission. In this respect, the club only presented a letter it received from the
Football Federation Associations of country B, in which the club is requested to release
the player for training sessions with the national team of country B starting on 24 May
2013 and for international games to be played in June 2013.
13.
In this respect, the members of the Chamber first recalled that, in accordance with art.
1 par. 1 of Annexe 1 of the Regulations, clubs are obliged to release their registered
players to the representative teams of the country for which the player is eligible to
play on the basis of his nationality, if they are called up by the association concerned.
Furthermore, from the stamp on the letter of the Football Federation Associations of
country B, it can only be derived that said letter was received by the Football
Federation of country D on 22 May 2013. The Chamber concluded that on the basis of
these circumstances, it could not be established that the player left the club without
permission on 20 May 2013.
14.
As a result, the Chamber established that the club’s argument that the player left the
club without its permission on 20 May 2013, cannot be upheld, since the club failed to
prove such allegation.
15.
Furthermore, with respect to the outstanding amounts as claimed by the player, the
Chamber noted that the club did not contest that the salaries for the month of May
and June 2013, as well as part of the productivity bonus for the 2012/2013 season in
the amount of USD 32,500, remained outstanding as from the day the player left the
Player A, country B / Club C, country D / Club E, country B
Page 6 of 10
club. In addition, the Chamber noted that in accordance with the employment
contract, no due dates for the payment of the salaries were agreed.
16.
As a result of the afore-mentioned circumstances, the members of the Chamber
established that the monthly salaries fell due as from the first day of the respective
following month. With respect to the productivity bonus for the 2012/2013 season, the
Chamber concluded that - since the employment contract did not provide for the
payment of this productivity bonus in instalments and since the club already paid part
of said productivity bonus – it could be established that this amount had fallen due in
its entirety at the time the player left the club for his international duties.
17.
Consequently, the Chamber established that the club should have paid to the player at
the time the player left the club for his international duties, the salary for May 2013 as
well as the amount of USD 32,500 were outstanding. Furthermore, at the time the
player and the club sent their default letters in July 2013, the salary of June 2013 had
fallen due too.
18.
In this regard, the members of the Chamber were of the opinion that the abovementioned salaries and the unpaid part of the productivity bonus (corresponding to at
least six monthly salaries) qualify as a substantial part of the amounts due to the
player. Therefore, the club seriously neglected its financial contractual obligations. The
members of the Chamber established that the player therefore had a legitimate reason
not to go back to the club after his international duties. Indeed, one cannot request
the execution of the contract when it itself is already in violation of such contract.
19.
Hence, despite the reply of the player not being taken into account, the Chamber was
of the opinion that based on the documents on file, it could be established that the
club did not timely pay the monthly salaries for May and June 2013, as well as part of
the productivity bonus for the season 2012/2013 in the amount of USD 32,500, which
amounts had fallen due and remained outstanding at the time the player put the club
in default in July 2013.
20.
Consequently, and reiterating the Chamber’s jurisprudence at this point, the Chamber
decided that the club was repeatedly and for a significant period of time been in
breach of its contractual obligations towards the player. As a result thereof, the
Chamber decided that the player – after the club had not replied to his default letter
and had not paid the requested amounts – had just cause not to return to the club,
which should be considered a termination of the contract by the player with just cause
under the given circumstances.
21.
As a result of the aforementioned considerations, the Chamber concluded that the club
is to be held liable for the early termination of the employment contact with just cause
by the player. In continuation, the Chamber focused its attention on the consequences
of such termination.
Player A, country B / Club C, country D / Club E, country B
Page 7 of 10
22.
First of all, the members of the Chamber concurred that the club must fulfil its
obligations as per the 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 for the months during which the player was employed by
the club and had not yet been paid, i.e. (as per the player’s claim) the amount of USD
42,500, consisting of the salaries for May and June 2013 in the amount of USD 5,000
each, as well as the unpaid part of the ‘productivity bonus’ for the season 2012/2013 in
the amount of USD 32,500.
23.
Furthermore, and considering the player’s claim for interest, the Chamber ruled that
the club must pay 5% interest on the amount of USD 42,500 as from the date of claim,
i.e. 23 August 2013.
24.
In continuation, the Chamber noted that in his claim, the player requested for ‘general
damages for breach of contract’ in the amount of USD 8,500.
25.
In this context, the members of the Chamber noted that the player did not provide a
further explanation or specification of said amount, nor that the player referred to the
legal basis of the requested amount. Taking into account the aforementioned
considerations, as well as art. 12 par. 3 of the Procedural Rules, the Chamber concluded
that the player failed to specify his position and that he did not substantiate his
allegation that the club is liable to pay him ‘general damages’ in the amount of USD
8,500.
26.
All in all, the Chamber decided that this part of the player’s claim cannot be awarded
to the player, due to the lack of specification.
27.
Furthermore, the members of the Chamber decided to reject any further claim lodged
by the player.
28.
The Chamber concluded its deliberations in the present matter by rejecting the
counterclaim lodged by the club, as it has been established that the player had just
cause to terminate the employment contract.
*****
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 rejected.
Player A, country B / Club C, country D / Club E, country B
Page 8 of 10
3. The Respondent / Counter-Claimant, has to pay to the Claimant / Counter-Respondent,
within 30 days as from the date of notification of this decision, outstanding
remuneration in the amount of USD 42,500 plus 5% interest p.a. as from 23 August 2013
until the date of effective payment.
4. In the event that the amount due to the Claimant / Counter-Respondent in accordance
with the above-mentioned number 3. is not paid by the Respondent / Counter-Claimant
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. Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6. The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittances are
to be made and to notify the Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS, a copy of which we
enclose hereto. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal arguments
giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Player A, country B / Club C, country D / Club E, country B
Page 9 of 10
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country B
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