Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 February 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Mons en (Norw ay ), member
S téphane Burchkalter (France), member
Philippe Diallo (France), member
Jos eph Bell (Cameroun), member
on the claim presented by the player,
Play er A, Country B
as Claimant / Counter-Respondent
against the club,
Club C
(form erly know n as Club C), Country D
as Respondent / Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 23 July 2015, the player of Country B, Player A (hereinafter: the player or Claimant /
Counter-Respondent) and the club of Country D, Club C (hereinafter: the club or
Respondent / Counter-Claimant) concluded an employment agreement (hereinafter:
the contract), valid as from 23 July 2015 until 22 July 2018.
2.
According to article 3.A of the contract, the player was entitled to receive inter alia a
monthly salary of EUR 166,667.67, to be paid ‘at the end of each month’.
3.
Furthermore, according to article 3.B of the contract, the player was entitled to receive
the following amounts as sign-on fees:
EUR 500,000, due ‘upon the signature of the contract’;
EUR 200,000, due on 1 August 2016;
EUR 200,000, due on 1 August 2017.
4.
What is more, based on article 3.C of the contract, the player was inter alia entitled to
receive the following bonus payments:
a bonus of EUR 150,000, in case the club ‘wins the Championship of Country D’;
a bonus of EUR 50,000, in case the club ‘wins Tournament E’.
5.
In addition, based on article 3.D of the contract, the player was inter alia entitled to
receive the following benefits:
an amount of EUR 100,000 per year as renting allowance;
‘Business class air tickets for the player and his family from his country of
residence (for a total of maximum 8 return tickets)’;
a ‘luxury car or equivalent club sponsor vehicle for the duration of this agreement
[…]’;
health insurance for ‘the player and his family (wife and children if any)’;
school fees for ‘the player’s children, if any (maximum EUR 10,000 per child per
year’.
6.
On 23 January 2017, the player put the club in default of payment of EUR 1,203,865.94,
providing a deadline for payment until 6 February 2017, however to no avail. This
amount corresponds to (a) 4 unpaid salaries for the months of May, November and
December 2016, and January 2017, (b) an unpaid sign-on fee of EUR 200,000, (c)
unpaid bonuses in the total amounts of EUR 200,000 and 500,000 in the currency of
Country D (approximately EUR 111,550) and (d) unpaid school fees in the amount of
EUR 10,000. Further, the player explains that on 8 February 2017, he sent a ‘final notice
of default’ to the club, providing a deadline for payment until 15 February 2017,
however again to no avail.
Player A, Country B / Club C (formerly known as Club C), Country D
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7.
On 18 February 2017, the player unilaterally terminated the contract, because of the
outstanding amounts, and provided the club a final deadline to pay him the overdue
amount, as well as compensation for breach of contract, in the total amount of EUR
4,644,366.
8.
On 22 February 2017, the club paid the player an amount of EUR 1,183,333.35. As this
was only part of the total amount requested, on 24 February 2017, the player again
sent a letter to the club, requesting for the payment of the remaining amount of EUR
3,461,032.65, however to no avail.
9.
On 18 April 2017, the player lodged a claim against the club in front of FIFA, requesting
that the club be ordered to pay him the total amount of EUR 4,611,032.50, specified as
follows:
Outstanding remuneration in the amount of EUR 20,532.59, as follows:
EUR 20,532.59 as outstanding salaries on the date of the claim, plus 5% interest p.a.
as from 18 February 2017 until the date of effective payment. In this respect, the
player explains that on 23 January 2017 the amount of EUR 1,203,865.94 was
outstanding and that on 22 February 2017, he received a payment of EUR
1,183,333.35.
Compensation for breach of contract in the amount of EUR 3,440,500, as follows:
EUR 200,000 as sign-on fee, due on 1 August 2017;
EUR 3,000,000 as remaining value of the contract between February 2017 and July
2018, corresponding to the monthly salaries of EUR 166,667.67 each in the period
between February 2017 and July 2018);
EUR 100,000 as rental allowances;
EUR 72,000 as costs of several air tickets;
EUR 36,000 as payment of car benefit;
EUR 22,500 as reimbursement of health insurance costs;
EUR 10,000 as payment of schooling benefit.
Additional indemnity in the amount of EUR “1,150,000”, as follows:
6 monthly salaries in the amount of EUR 166,666.67 each.
Further, the player requested 5% interest p.a. as from 18 February 2017 on the
amounts of EUR 3,440,500 and EUR 1,150,000, as well as to impose sporting sanctions
on the club.
Player A, Country B / Club C (formerly known as Club C), Country D
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10.
In spite of being invited to do so, the club did not reply to the claim of the player
before 28 May 2017. As a result, on 15 June 2017, the investigation phase of the matter
at hand was closed.
11.
The player informed FIFA that after the unilateral termination of the contract with the
club, he remained unemployed.
12.
On 24 July 2017, after closure of the investigation phase, the club submitted a position,
referred to as ‘Claim submitted to FIFA DRC […] in relation to the employment
agreement signed between the club and the player on the 23th of July 2015’, by means
of which it submitted comments as to the substance of the matter at hand and lodging
a “new claim” against the player.
13.
After having been informed by the FIFA Administration that it will be up to the
relevant decision-making body as to whether or not said position should be taken into
account, the club insisted on adding its document dated 24 July 2017 to the file. Said
documents were sent for information only to the player.
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 18 April 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 (editions 2016 and 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.
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 (editions 2016 and
2018), and considering that the present claim was lodged on 18 April 2017, the 2016
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
Player A, Country B / Club C (formerly known as Club C), Country D
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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.
5.
In this respect, the Chamber recalled that on 23 July 2015, the parties had signed an
employment contract, valid as from 23 July 2015 until 22 July 2018, on the basis of
which the player was entitled to receive inter alia a monthly salary of EUR 166,667.67, a
sign-on fee of EUR 500,000, an amount of EUR 200,000 due on 1 August 2016 as well as
an amount of EUR 200,000 on 1 August 2017. In addition, the player was also entitled
to receive housing allowances in the yearly amount of EUR 100,000, 8 business class
return flight tickets for himself and his family, a car, health insurance and
compensation for school fees up to maximum of EUR 10,000 per year.
6.
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 18 February 2017, after previously having put the club in default. The
player held that the club, as from the end of the 2015/2016 season, failed to pay him
several amounts he was entitled to. The player further explains that on 18 February
2017 the total amount of EUR 1,203,865.94 remained outstanding, corresponding to
four monthly salaries of EUR 166,667.67 each, as well as a sign-on fee of EUR 200,000
due on 1 August 2017, bonuses in the amounts of EUR 200,000 and 500,000 in the
currency of Country D, as well as school fees in the amount of EUR 10,000.
7.
What is more, the player confirms that on 22 February 2018, i.e. 4 days after the
termination of the contract, the club paid him an amount of EUR 1,183,333.35,
apparently consisting of a partial payment of the outstanding remuneration in the
total amount of EUR 1,203,865.94. Consequently, in his claim before FIFA, the player
requested to be awarded his outstanding dues, as well as 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 before the granted deadline of
28 May 2017. Subsequently, in the absence of a timely answer of the club, on 15 June
2017, the investigation phase in the matter at hand was closed by the FIFA
Administration in accordance with art. 9 par. 3 of the Procedural Rules.
9.
What is more, after the closure of the investigation phase in the matter at hand, on 24
July 2017, the club submitted unsolicited comments, which it refers to as ‘Claim
submitted to the DRC […] in relation to the employment agreement signed between
the club and the player on the 23th of July 2015’. Said document contains comments as
Player A, Country B / Club C (formerly known as Club C), Country D
5
to the substance of the player’s claim, as well as a counter-claim lodged by the club
against the player.
10.
Based on the foregoing, bearing in mind the Chamber’s constant jurisprudence in this
regard, the DRC deemed it appropriate to remind the parties of the wording of art. 9
par. 3, which inter alia stipulates the following: ‘[…] If no statement or reply is received
before the time limit expires, a decision shall be taken upon the basis of the documents
already on file. Submissions received outside the time limit shall not be taken into
account […]’. Furthermore, the members of the Chamber referred to 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.’
11.
In view of the foregoing regulatory provisions, the members of the Chamber decided
not to take into account the unsolicited comments of the club submitted on 24 July
2017, including its counterclaim against the player, which were submitted after the
expiry of the granted deadline until 28 May 2017, and even after the closure of the
investigation phase on 15 June 2017. In the Chamber’s view, any other conclusion
would lead to a potential circumvention of the Procedural Rules. As a result, the club’s
counterclaim is considered to be inadmissible.
12.
Furthermore, in view of all 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 18 February 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 the player’s
statements that the club failed to pay him the remuneration he was entitled to as from
the end of the 2015/2016 season, the DRC could establish that at the time the contract
was terminated, i.e. on 18 February 2017, the club had failed to pay the player the
monthly salaries for the months of May, November and December 2016, as well as
January 2017, in the amount of EUR 166,667.67 each, as described in the player’s
default notice of 23 January 2017. Furthermore, also considering the content of the
player’s default notice of 23 January 2017, the club had failed to pay the player the
sign-on fee in the amount of EUR 200,000 and school fees in the amount of EUR 10,000.
What is more, according to the player, on the date of termination of the contract, the
Player A, Country B / Club C (formerly known as Club C), Country D
6
club also failed to pay bonuses in the amounts of EUR 200,000 and 500,000 in the
currency of Country D, as per the contract. All this information remained uncontested
by the club, in the context of these proceedings.
15.
At this point, the members of the DRC deemed it vital to outline that according to the
basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules,
a party claiming a right on the basis of an alleged fact, shall carry the respective burden
of proof.
16.
In relation to the aforementioned legal principle, and taking into account the amounts
the player claims to not have received from the club, the Chamber noted on the one
hand that the player did not provide documentary evidence of his actual entitlement to
receive the claimed bonuses in the amounts of EUR 200,000 and 500,000 in the currency
of Country D. In this respect, the Chamber pointed out that, based on the contract and
the documents submitted by the player, it could only be established that on the date of
termination, the player was entitled to the amount of EUR 876,670.68, corresponding
to the 4 outstanding salaries of EUR 166,667.67 each, the outstanding sign-on fee of
EUR 200,000 and school fees in the amount of EUR 10,000.
17.
On the other hand, the members of the Chamber were of the opinion that the club, by
paying an amount of EUR 1,183,333.35 to the player on 22 February 2017, recognized
that on that specific date, the player was entitled to a higher amount that the amount
of EUR 876,670.68 (cf. point II./16. above), which undisputedly remained outstanding.
What is more, the aforementioned payment made on 22 February 2017 was made after
the player had the put the club in default for the payment of the amount of EUR
1,203,865.94 on 23 January 2017. In view of the foregoing circumstances, the Chamber
deemed that it had no other option than to conclude that the club, with its payment of
EUR 1,183,333.35 made on 22 February 2017, partially recognized the amounts claimed
as bonus payments by the player by means of his default letter dated 23 January 2017,
up to an amount of EUR 306,662.67, i.e. EUR 1,183,333.35 minus EUR 876,670.68.
18.
Moreover, the Chamber noticed that the payment of EUR 1,183,333.35 was only made
after the termination of the contract by the player on 18 February 2017. Therefore,
such circumstance shall, in accordance with the well-established and longstanding
jurisprudence of the DRC, have no influence whatsoever on the question of whether on
18 February 2017, the player had a just cause to terminate the contract.
19.
On account of all the aforementioned considerations, in particular in view of the
considerations under points II./16., II./17. and II./18. above, the Chamber established
that the club, without any valid reason, failed to remit to the player, until 18 February
2017, the date on which the player terminated the contract, the total amount of EUR
876,670.68, corresponding to 4 monthly salaries, a sign-on fee of EUR 200,000 and
school fees in the amount of EUR 10,000, as well as an amount of EUR 306,662.67 (cf.
Player A, Country B / Club C (formerly known as Club C), Country D
7
point II./17. above) related to bonus payments. 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, the Chamber decided that the player had
just cause to unilaterally terminate the employment contract on 18 February 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.
14.
Having established the foregoing, the Chamber focused its attention on the
consequences of such termination of the contract with just cause by the player.
15.
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” and it has to pay all outstanding remuneration due
to the player, if any.
16.
However, in this respect, the Chamber referred to the fact that the player
acknowledged to have received an amount of EUR 1,183,333.35 out of the amount of
EUR 1,203,865.94 mentioned in the player’s default letter dated 23 January 2017. What
is more, the Chamber deemed that the player was not able to provide documentary
evidence, on the basis of which it could be concluded that he was entitled to the
difference between the two aforementioned amounts, corresponding to bonuses.
Based on the foregoing, the Chamber concluded that at the moment of rendering this
decision, there were no outstanding amounts – supported by substantial evidence – still
to be paid by the club to the player. Therefore, the Chamber decided to reject the
player’s claim for the allegedly outstanding amount of EUR 20,532.59.
17.
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.
18.
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 maximum of five years, and depending on whether the
contractual breach falls within the protected period.
19.
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
Player A, Country B / Club C (formerly known as Club C), Country D
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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.
20.
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.
21.
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 22 July 2018, taking into account that the player was
entitled to receive 18 payments of EUR 166,667.67 each for the period between
February 2017 and July 2018, as well as a sign-on fee of EUR 200,000, due on 1 August
2017, rental allowances in the amount of EUR 100,000 per year for the 2017/2018
season and EUR 10,000 as school fee contribution for the 2017/2018 season. In this
respect, the Chamber established that, in the absence of any monetary value in the
contractual conditions relating to the car benefit and the health insurance costs, said
benefits shall be not be taken into consideration when calculating the residual value of
the contract. Consequently, the Chamber concluded that the amount of EUR 3,310,000
serves as the basis for the determination of the amount of compensation for breach of
contract.
22.
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.
23.
However, the Chamber noted that the player did not find new employment with
another club during the relevant period of time and established that as a result
thereof, no amounts shall be deducted from the amount of compensation for breach of
contract as claimed by the player.
24.
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 EUR 3,310,000 to the player, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
Player A, Country B / Club C (formerly known as Club C), Country D
9
25.
Furthermore, considering the player’s claim for interest and taking into account the
Chamber’s longstanding jurisprudence, the Chamber ruled that the club must pay 5%
interest p.a. on the amount of EUR 3,310,000 as from 18 April 2017, the date the claim
was lodged by the player.
26.
Furthermore, as regards the player’s claim pertaining to additional indemnity in the
amount of EUR 1,150,000, the Chamber concluded that such claim is to be rejected due
to a lack of legal basis.
27.
Finally, as regards the player’s claim pertaining to air tickets, the Chamber decided that
- on the basis of the information provided by FIFA Travel and referring to the relevant
terms of the contract - the club must pay to the player the amount of CHF 4,489 for a
business class air ticket from the Country D to Country B.
28.
Additionally, taking into account the Chamber’s longstanding jurisprudence, the
Chamber decided that the club has to pay 5% interest p.a. on the amount of CHF 4,489
as from 18 April 2017, the date the claim was lodged by the player.
29.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the player is rejected, as well as that the
counter-claim of the club is inadmissible.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The counter-claim of the Respondent / Counter-Claimant is inadmissible.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-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 3,310,000, plus 5% interest p.a. as from 18
April 2017 until the date of effective payment.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent,
w ithin 30 day s as from the date of notification of this decision, the amount of CHF
4,489 as the costs of a flight ticket, plus 5% interest p.a. as from 18 April 2017 until the
date of effective payment.
5.
In the event that the amounts due to the Claimant / Counter-Respondent in accordance
with the above-mentioned numbers 3. and 4. are not paid by the Respondent /
Counter-Claimant within the stated time limits, 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 (formerly known as Club C), Country D
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6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant 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 m otiv ated decision (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 (formerly known as Club C), Country D
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