Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 1 February 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Johan v an Gaalen (S outh Africa), member
S tefano La Porta (Italy ), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, from country A,
as Claimant
against the club,
Club B, from country B,
as Respondent
regarding an employment-related dispute between the parties
Player A, from country A / Club B, from country B
Page 1 of 11
I.
Facts of the cas e
1.
On 12 July 2016, the player A, from country A (hereinafter: Claimant) and the Club
B, from country B (hereinafter: Respondent), signed an employment contract
(hereinafter: contract), valid as from 1 July 2016 until 30 June 2018.
2.
According to clause 2 of the contract, the Respondent undertook to pay the
Claimant an annual remuneration of EUR 35,000 during both the 2016-17 and the
2017-18 season, “payable until the 20th day of the following month”.
3.
Furthermore, also in accordance with clause 2 of the contract, if in the 2016-17
season the Respondent would be promoted to the first league, the Claimant’s
annual remuneration for the 2017-18 season would be doubled to EUR 70,000.
4.
Moreover, as per clause 2 of the contract, the Claimant was entitled to housing for
himself and his family.
5.
According to clause 4 of the contract, the Claimant was entitled to receive, “at the
beginning of his leave and in the Christmas season, an allowance equivalent to his
basic remuneration”.
6.
On 13 September 2016, the country B League informed the football players’ union
from country B (hereinafter: players’ union) in writing that “as requested … no
record of any sporting employment contract has been registered between the
[Claimant] (…) and [the Respondent]”.
7.
On 2 February 2017, the Claimant informed the players’ union that the Respondent
had provided him with housing and food in accordance with the contract, but had
failed to register him and the contract with the Football Federation of country B
and to pay his monthly salary. The Claimant requested that the players’ union
contact the Respondent and demand it to pay the outstanding remuneration as
well as to register him with the Football Federation of country B “within 48 hours”.
8.
On 7 April 2017, the Claimant terminated the contract in writing. In his termination
letter, the Claimant argued that since signing the contract, the Respondent only
paid him EUR 2,929 on 13 September 2016 and made two payments of EUR 1,750
in September and October 2016, respectively. In his letter, the Claimant further held
that the Respondent had not registered him and that, on 21 December 2016, he
was “forbidden to practice and was prevented from attending the [Respondent]”,
as a result of all of which he returned to country A. The Claimant also referred to
Player A, from country A / Club B, from country B
Page 2 of 11
the notification of 2 February 2017 and stated that the Respondent had failed to
reply to it.
9.
On 15 March 2018, the Claimant lodged a claim in front of FIFA against the
Respondent maintaining that he had just cause to terminate the contract and
requested to be awarded:
a)
b)
c)
EUR 21,828 corresponding to outstanding remuneration (i.e. part of the
September 2016 salary, salaries as from October 2016 until March 2017 as
well as the Christmas allowance);
EUR 78,751 as compensation for breach of contract by the Respondent on
the basis of an annual salary of EUR 70,000 for the second season alleging
that the Respondent was promoted to the first league;
Interest “at a rate of 5% from the date when the first salary was due until
full payment”.
10.
In this context, the Claimant held that in light of clause 2 of the contract, he was
entitled to a monthly salary of EUR 2,917.
11.
However, as per the Claimant, the Respondent only paid the July 2016 salary on 13
September 2016 by bank transfer in the amount of EUR 2,929 and made two cash
payments in the amount of EUR 1,750 each, during the months of September and
October 2016. Therefore, according to the Claimant, at the time he terminated the
contract, the Respondent owed him part of his September 2016 salary as well as his
salary as from October 2016 until March 2017 and the Christmas allowance.
12.
In addition, the Claimant alleged that the Respondent had not registered him and
the contract with the Football Federation of country B, as a result of which he was
prevented from exercising his professional activity.
13.
Furthermore, according to the Claimant, on 21 December 2016, he was “forbidden
to practice with the team and informed that he had to leave the [Respondent]”.
14.
The Claimant argued that for these reasons he returned to his country.
15.
Consequently, as per the Claimant, on 2 February 2017, he sent by registered mail
the aforementioned formal notification “to the [Respondent]”, which remained
unanswered by the Respondent.
16.
Despite being invited to do so, the Respondent failed to provide its reply to the
Claimant’s claim.
Player A, from country A / Club B, from country B
Page 3 of 11
17.
Upon request, the Claimant informed FIFA that since he returned to country A he
has “played as an amateur for the country A clubs Club C and Club D in the country
A third tier and therefore he had not signed any employment contract nor received
any salaries”.
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 case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 15
March 2018. Consequently, the 2018 edition of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is 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 country A player and a country B club.
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
2018), and considering that the present claim was lodged on 15 March 2018, the
2018 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 documentation contained in the file. 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 12 July 2016, the Claimant and the
Respondent signed an employment contract valid as from 1 July 2016 until 30 June
Player A, from country A / Club B, from country B
Page 4 of 11
2018. In this sense, the Chamber acknowledged that, in accordance with the
contract, the Respondent was obliged to pay to the Claimant a remuneration of
EUR 35,000 during both the 2016-17 and the 2017-18 season, “payable until the
20th day of the following month”.
6.
The DRC further took into consideration that the Claimant maintained that he had
just cause to terminate the contract due to the amount of outstanding
remuneration and the fact that he was not registered with the Football Federation
of country B as a result of which he was prevented from exercising his professional
activity.
7.
In continuation, the DRC recalled that the Claimant requested to be awarded the
remuneration that allegedly had remained outstanding as well as compensation
for the alleged breach of contract by the Respondent.
8.
Subsequently, the Chamber noted that the Respondent, for its part, failed to
present its response to the claim of the Claimant, in spite of having been invited to
do so. By not presenting its position to the claim, the DRC was of the opinion that
the Respondent renounced its right of defence and, thus, accepted the allegations
of the Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take
a decision upon the basis of the documentation already on file; in other words,
upon the statements and documents presented by the Claimant.
10.
As a result, the Chamber established that the primary issue at stake is determining
whether the Claimant had a just cause to terminate the contract. In this respect,
the Chamber deemed it essential to make a brief recollection of the Claimant’s
arguments regarding the contract termination as well as the documentation
presented in relation thereto.
11.
In this context, the Chamber evoked that, according the Claimant, the Respondent
had only paid him a total amount of EUR 6,429 between July and October 2016,
and that, consequently, part of his September 2016 salary as well as his salary as
from October 2016 until March 2017 and the Christmas allowance remained
outstanding, on the basis of a monthly remuneration of EUR 2,917.
12.
Moreover, the DRC noted that, as per the Claimant, the Respondent had not
registered him and the contract with the Football Federation of country B, as a
result of which he was prevented from exercising his professional activity.
Player A, from country A / Club B, from country B
Page 5 of 11
13.
In continuation, the Chamber took into account that, as per the Claimant, on 21
December 2016, he returned to his home country for the above reasons and after
the Respondent informed him that he was forbidden to practice with the team and
that he had to leave the Respondent.
14.
In addition, the Chamber established that it remained undisputed that the parties
signed a valid employment contract on 12 July 2016 in accordance with which the
Claimant was entitled to an annual remuneration of EUR 35,000 for the 2016-17
season (cf. clause 2 of the contract). In this respect, the Chamber further considered
that, in the absence of a clear contractual stipulation as to the payment due dates
of said annual remuneration and taking into account the contractual addition that
the amount was payable “until the 20th day of the following month”, the EUR
35,000 was payable in 12 monthly instalments, each of which fell due until the 20th
day of the following month. The Chamber further took into account that in
addition to the aforementioned EUR 35,000, in accordance with clause 4 of the
contract, the Claimant was entitled to receive “at the beginning of his leave and in
the Christmas season, an allowance equivalent to his basic remuneration”. In the
absence of any further contractual stipulation with regard the relevant amounts
and payment due dates, the Chamber agreed that said allowance was equivalent
to the amount of 1 of the aforementioned monthly instalments and fell due at the
start of the time period to which the allowance is related.
15.
On account of the above and bearing in mind that the Claimant’s allegations
remained uncontested, the DRC concluded that the Claimant had remained at the
Respondent’s disposal as from the beginning of the contractual duration on 1 July
2016 until at least 21 December 2016 and that during this period of time the
Claimant had only received the amount of EUR 6,429 from the Respondent.
Consequently, with regard to the monthly salaries, the Chamber established that,
when the Claimant left the Respondent on 21 December 2016, five monthly salaries,
i.e. as from July until and including November 2016, had fallen due, whereas the
Respondent had only paid an amount that fully covers two monthly salaries (July
and August 2016) and a small part (i.e. approx. 20%) of the 3 rd salary (September
2016).
16.
What is more, the DRC took into account that, based on the facts that the
Claimant’s allegation was not contested and that the country B League informed
the players’ union on 13 September 2016 that there was no record of registration
of the Claimant’s contract, the Respondent had failed to register the contract and
the Claimant with the Football Federation of country B. As a consequence, the
Claimant was not able to play in official competitions for the Respondent and, as
such, was prevented from carrying out his profession. As has been previously
sustained by the DRC, among a player’s fundamental rights under an employment
Player A, from country A / Club B, from country B
Page 6 of 11
contract, is not only his right to a timely payment of his remuneration, but also his
right to access training and to be given the possibility to compete with his fellow
team mates in the team’s official matches. In fact, the non-registration of a player
prevents him from being eligible to play for his club.
17.
With regard to the non-registration of the contract, the Chamber further wished
to emphasise, in particular, that by not carrying out the relevant steps for the
registration procedure of the employment contract although this being the
responsibility of the Respondent, the Respondent had refused to accept the
Claimant’s services without any valid reason. As has been previously established by
the DRC, such conduct constitutes, in the Chamber’s view, a clear breach of contract
without just cause.
18.
On account of all the above, while recalling that the Claimant remained at the
Respondent’s disposal until in December 2016, by leaving the Respondent on or
about 21 December 2016, the Chamber determined that the Claimant had de facto
terminated the employment contract, with just cause, at that point in time.
19.
That said, the Chamber concluded that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant and
should therefore bear the consequences of its breach of the employment contract,
including the payment of compensation, if any, to the Claimant, in addition to any
outstanding amounts at the time of termination.
20.
Having established the above, the DRC first proceeded to establish the amount of
outstanding remuneration still due to the Claimant by Respondent on the date of
the early termination of the contract.
21.
In this context, the DRC recalled that, according to the Claimant, a total amount of
EUR 21,828 was still outstanding including a part of the September 2016 salary,
monthly salaries as from October 2016 until March 2017, as well as the Christmas
allowance.
22.
Firstly, with regard to the outstanding salary, the Chamber referred to its previous
arguments, and evoked that the employment relationship was terminated on or
about 21 December 2016. In other words, up until this date, the Claimant was
contractually entitled to five monthly salaries (July until November 2016) plus a
Christmas allowance, thereby totalling EUR 17,496. However, the DRC further
recalled that the Claimant had only received a total amount of EUR 6,429 from the
Respondent.
Player A, from country A / Club B, from country B
Page 7 of 11
23.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of EUR
11,067.
24.
Consequently, the DRC decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of EUR 11,067.
25.
In addition, taking into consideration the Claimant’s claim and constant
jurisprudence, the Chamber decided to award the Claimant interest at the rate of
5% p.a. on the amount of EUR 11,067, as from the respective due dates until the
date of effective payment.
26.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract payable by the Respondent to the
Claimant in the case at stake. In doing so, the members of the Chamber first
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 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.
27.
In application of the relevant provision, the Chamber held that it first of all 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.
28.
As a consequence, the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The DRC 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 DRC emphasized beforehand that each
request for compensation for contractual breach has to be assessed on a case-bycase basis taking into account all specific circumstances of the respective matter.
Player A, from country A / Club B, from country B
Page 8 of 11
29.
In order to estimate the amount of compensation due to the Claimant in the
present case, the Chamber first turned its attention to the remuneration and other
benefits due to him under the existing contract and/or the new contract(s), which
criterion was considered to be essential. The DRC deemed it important to emphasise
that the wording of art. 17 par. 1 of the Regulations allows it to take into account
both the existing contract and the new contract, if any, in the calculation of the
amount of compensation.
30.
In view of the foregoing, the DRC firstly determined the total residual of the
contract between the Claimant and the Respondent. In this light, the Chamber
recalled that as per the Claimant, he was entitled to EUR 70,000 for the second year
of the contract, given that the Respondent allegedly was promoted to the country
B’s first league.
31.
In this regard, and taking into account the documentation presented by the
Claimant in support of his petition, the DRC concluded that the Claimant had not
substantiated his allegation that the Respondent had obtained the promotion to
the country B’s first league with pertinent documentary evidence in accordance
with art. 12 par. 3 of the Procedural Rules. Consequently, the DRC decided that the
amount of EUR 35,000 shall be taken into consideration as annual remuneration
for the second season.
32.
Given the above considerations, and taking into account that according to the
contract the Claimant’s yearly remuneration is EUR 35,000 for both the 2016/2017
season and the 2017/2018 season, the DRC concluded that the residual value of the
contract includes 19 monthly salaries, one “beginning of his leave”-bonus, and one
Christmas bonus. The Chamber thus established that the total residual value of the
contract is EUR 61,236, which amount shall serve as the basis for the calculation of
the amount of compensation.
33.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been able 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 termination of contract with just cause in connection with the
player’s general obligation to mitigate his damages.
34.
In this regard, the Chamber observed that after the termination of the contract
with the Respondent, the Claimant had not signed an employment contract with
another club.
Player A, from country A / Club B, from country B
Page 9 of 11
35.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay the amount of EUR 61,236 to
the Claimant as compensation for breach of contract.
36.
In addition, taking into account the Claimant’s request as well as the Chamber’s
constant jurisprudence, the Chamber decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the amount of compensation as of the date on
which the claim was lodged, i.e. 15 March 2018, until the date of effective payment.
37.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are 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 B, 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
EUR 11,067, plus interest at the rate of 5% p.a. until the date of effective payment
as follows:
a. 5 % p.a. on the amount of EUR 2,319 as from 21 October 2016;
b. 5 % p.a. on the amount of EUR 2,916 as from 21 November 2016;
c. 5 % p.a. on the amount of EUR 2,916 as from 21 December 2016;
d. 5 % p.a. on the amount of EUR 2,916 as from 1 January 2017.
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
EUR 61,236, plus 5% interest p.a. as from 15 March 2018 until the date of effective
payment.
4.
In the event that the amounts plus interest due to the Claimant in accordance with
the above-mentioned points 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.
Player A, from country A / Club B, from country B
Page 10 of 11
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 remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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 (CAS)
Avenue de Beaumont 2
CH-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:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives
Player A, from country A / Club B, from country B
Page 11 of 11