Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 February 2017,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Joaquim Evangelista (Portugal), member
Taku Nomiya (Japan), member
Todd Durbin (USA), member
on the claim presented by the player,
Player A, Country B,
as Claimant
against the club,
Club C, Country D,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1. On 28 August 2014, the Player of Country B Player A (hereinafter: the Claimant)
and the Club of Country D Club C (hereinafter: the Respondent) signed an
employment contract (hereinafter: the contract) valid from the date of signature
until 31 May 2015.
2. In accordance with to art. V, par. 1 of the contract, the Claimant was a entitled
to a salary of EUR 150,000, payable as follows:
a)
b)
EUR 50,000 on signature of the contract;
EUR 100,000 in ten monthly instalments on the 30 th of each month,
starting from 30 September 2014 until 30 June 2015.
3. On an unspecified date, the Claimant sent a letter to the Respondent requesting
the payment of EUR 30,000, corresponding to salaries from January 2015 to
March 2015. The Claimant granted ten days for the payment and informed the
Respondent that, “in case of not transferring the amount […] [the contract] will
be cancelled unilaterally with a valid reason”.
4. On 9 April 2015, the Claimant wrote a letter to the Respondent, asserting that it
neither replied to his letter allegedly dated 31 March 2015 nor paid the
requested salaries. By means of such letter, the Claimant informed the
Respondent that, “due to the reasons mentioned above […] [the contract] was
cancelled unilaterally with a valid reason”.
5. On 12 August 2015, the Claimant put the Respondent in default for the amount
of EUR 60,000, corresponding to salaries from January to June 2015, granting ten
days for the payment.
6. On 17 November 2015, the Claimant lodged a claim in front of FIFA, requesting
the amount of EUR 60,000, plus interest, corresponding to the salaries from 30
January 2015 until 30 June 2015.
7. In his claim, the player stated that he fulfilled its obligations provided in the
contract, but the Respondent, despite his letters, did not pay him six monthly
salaries, from 30 January 2015 until 30 June 2015, for the total amount of EUR
60,000.
8. In its reply, the Respondent argued that the Claimant terminated the contract on
9 April 2015 without just cause and asserted that “on January 6th 2015, a total of
25.000 € debt was paid off”.
9. Moreover, the Respondent reported that, on 10 March 2015, the Claimant was
excluded from the first team and fined with the amount of EUR 15,000 for
alleged lack of discipline.
Player A, Country B / Club C, Country D
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10. Furthermore, the Respondent alleged that the Claimant did not attend trainings
from 23 to 25 March 2015.
11. In conclusion, the Respondent asserted that “the payment [the Claimant] is
asking is not correct” and argued that “the money the club had paid (25.000 €)
and penalty given (15.000 €) should be reconsidered”.
12. Despite having been invited by FIFA Administration to do so, the Claimant did
not provide his comments on the response of the Respondent.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 17 November 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 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 B and a Club of Country D.
3. In continuation, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2016), and considering that the present claim was lodged on 17
November 2015, the 2015 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4. The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
Player A, Country B / Club C, Country D
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5. First, the Chamber noted that the parties entered into an employment contract
valid as of 28 August 2014 until 31 May 2015, which entitled the Claimant to a
salary of EUR 150,000 of which EUR 50,000 were payable upon the signature of
the contract and EUR 100,000 in ten monthly instalments, starting from
September 2014 until 30 June 2015.
6. Furthermore, the DRC acknowledged that it was undisputed that, on 31 March
2015, the Claimant put the Respondent in default of three monthly salaries,
corresponding to the amount of EUR 30,000, and thereafter terminated the
contract on 9 April 2015.
7. In continuation, the DRC noted that the Claimant alleged that the Respondent
breached the contract as it failed to pay the outstanding salaries for the months
of January, February and March 2015, for the total amount EUR 30,000.
Moreover, the Claimant emphasized that the Respondent did not reply to his
notice of termination and stressed that, in view of the above-mentioned
circumstances, he terminated the contract with just cause.
8. Equally, the Chamber took note of the reply of the Respondent, which first
argued that the Claimant terminated the contract without just cause as it paid
him EUR 25,000 on 6 January 2015. Moreover, the Respondent emphasised that,
on 10 March 2015, the Claimant was excluded from the first team and fined with
EUR 15,000 for alleged lack of discipline.
9. In view of the foregoing considerations, the Chamber deemed that the
underlying dispute in the matter at hand was whether the relevant employment
contract had been terminated by the Respondent with or without just cause
and, depending on this finding, it would have to determine which would be the
potential consequence of said termination.
10. In this context, the members of the Chamber pointed out that the payment
allegedly made by the Respondent was made on 6 January 2015, i.e. before the
claimed outstanding salaries had fallen due. Consequently, the member of the
Chamber considered that said alleged payment, even if actually made by the
Respondent, could not correspond to the claimed outstanding salaries. Thus, as a
consequence thereof, the Chamber decided to reject the first argument of the
Respondent in this regard.
11. In continuation, as to the fine allegedly imposed on the Claimant, the Chamber
recalled its long-standing jurisprudence, according to which 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.
What is more, the members of the Chamber emphasised that the Respondent
did not provide any evidence that the alleged fine had been properly notified to
the Claimant, let alone that the latter was given the opportunity to defend
himself within the context of the alleged disciplinary proceedings. Consequently,
Player A, Country B / Club C, Country D
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the Chamber decided to disregard the alleged fine imposed on the Claimant and
to reject the Respondent’s argument in this regard.
12. On account of the aforementioned, and considering that the Respondent did
not invoke any other reason to justify the non-payment of the Claimant’s
salaries, the Chamber deemed that the Respondent failed to pay the due salary
for January, February and March 2015 without any valid reason and, therefore, it
could be established that the Respondent had seriously neglected its contractual
obligations towards the Claimant in a continuous manner and for a significant
period of time.
13. In view of the above, and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just
cause to unilaterally terminate the employment contract on 9 April 2015 and
that, as a result thereof, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
14. In continuation, having established that the Respondent is to be held liable for
the early termination of the employment contract with just cause by the
Claimant, the Chamber focused its attention on the consequences of such
termination. In this regard, in accordance with the general legal principle of
pacta sunt servanda, the Chamber decided that the Respondent is liable to pay
to the Claimant the amounts which were outstanding under the contract at the
moment of the termination, i.e. EUR 30,000 corresponding to the salaries
relating to January, February and March 2015.
15. In continuation, the Chamber decided that, in accordance with art. 17 par. 1 of
the Regulations, the Respondent is liable to pay compensation for breach of
contract to the Claimant.
16. Furthermore, the Chamber considered that the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the
basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including, in
particular, the remuneration and other benefits due to the Claimant under the
existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
17. In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract and the private
agreement contain a provision by means of which the parties had beforehand
agreed upon an amount of compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract or in the
private agreement at the basis of the matter at stake.
Player A, Country B / Club C, Country D
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18. Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
and concluded that the Claimant would have received a total remuneration of
EUR 30,000, had the contract been executed until its expiry date.
19. Furthermore, the Chamber noted that the Claimant did not conclude a new
employment contract during the original period of validity of the contract which
was terminated prematurely with just cause.
20. Consequently, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amount of EUR 30,000 as
compensation for breach of contract to the Claimant, which is to be considered a
reasonable and justified compensation for the breach of contract in the matter
at hand.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 30,000.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract in the
amount of EUR 30,000.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent within
the stated time 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 submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a
formal decision.
Player A, Country B / Club C, Country D
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5.
The Claimant is directed to inform the Respondent 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.
*****
Note relating to the motivated decision (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Player A, Country B / Club C, Country D
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