Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 27 February 2020,
in the following composition:
Clifford Hendel (US A), Chairman
Roy Verm eer (The Netherlands ), member
S tefano La Porta (Italy ), member
on the claim presented by the player,
Play er A, Country B,
as Claimant / Counter-Respondent I
against the club,
Club C, Country D
as Respondent / Counter-Claimant
with the club
Club E, Country F
as Counter-Respondent II
regarding an employment-related dispute
between the parties
I. Facts
1.
On 19 July 2018, the player from Country B, Player A (hereinafter: the player or the
Claimant/Counter-Respondent I) and the club from Country D, Club C (hereinafter: the
club or the Respondent/Counter-Claimant), concluded an employment contract valid
“for 2 seasons from beginning of season 2018-2019 and 2019-2020 until the full sport
season” (hereinafter: the contract).
2.
Pursuant to the contract, the player was entitled to receive from the club EUR 450,000
for each season, as follows:
a. EUR 180,000, equivalent to 40% of EUR 450,000, respectively on 19 July 2018
and 1 July 2019;
b. EUR 45,000, equivalent to 10% of EUR 450,000, respectively on 27 September
2018 and 27 September 2019;
c. EUR 90,000, equivalent to 20% of EUR 450,000, respectively on 10 January
2019 and 10 January 2020;
d. EUR 45,000, equivalent to 10% of EUR 450,000, respectively on 10 March 2019
and 10 March 2020;
e. EUR 90,000, equivalent to 20% of EUR 450,000, respectively on 10 May 2019
and 10 May 2020.
3.
On 25 October 2018, the parties signed an amendment to the contract (hereinafter:
the amended contract), by means of which the player’s salary for the seasons
2018/2019 and 2019/2020 was increased from EUR 450,000 to EUR 510,000 for each
season. Moreover, art. 2 of the amended contract specified the following:
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-
“the manner of payment for the season 2018-2019 will be based on the
amount of the original contract (450,000 EUROS) and the amount increased
from the original contract for the season 2018-2019 (which sums to 60,000
EUROS) will be paid in cash” on 4 November 2018;
“if the [club’s] decision was to extend the contract for the season 2020/2021
and/or 2021/22, the amount for the each these seasons will be 560,000 EURO
net”.
4.
Furthermore, according to art. 4 of the amended contract, the “term of this contract
is for 4 seasons, 2018-2020 and optional seasons 2020-2022. The [club] solely reserves
the decision of validity of termination of the contract for the seasons 2020-2021 and
2021-2022 and the [player] has no right to claim any compensation if the
[Respondent] decides to terminate the contract”.
5.
During a match played on 26 April 2019, the player sustained an injury to his
shoulder.
Player A, Country B / Club C, Country D / Club E, Country F
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6.
On 15 May 2019, the player returned to Country B for the seasonal holidays.
7.
On 5 June 2019, the player addressed a correspondence to the club, putting it in
default of the payment of the amount of EUR 102,000, which was allegedly due on 10
May 2019, giving it 15 days to remedy its default, i.e. until 20 June 2019.
8.
By letter dated 27 June 2019, the player unilaterally terminated the employment
contract with immediate effect.
9.
On 4 July 2019, the player lodged a claim against the club, maintaining that he had
just cause to terminate the employment relationship, and requesting the latter be
ordered to pay him outstanding remuneration in the amount of EUR 102,000, plus 5%
interest p.a. as from 11 May 2019 until the date of effective payment, and
compensation for breach of contract in the amount of EUR 1,630,000 “or,
alternatively, the amount of EUR 510,000” as compensation for breach of contract,
plus 5% interest p.a. as from 28 June 2019 “or, alternatively, as from the submission
of this claim” until the date of effective payment.
10. The player explained, first of all, that, after having signed the contract and moved to
Country D, he found out that it was hard for him “to get used to the life in Country D
and work style”. Nonetheless, the player indicated that he was performing well for
the club.
11. However, the player added that the club made the payments with “huge delay” and
only partially. The player further pointed out that the club had explained to him that,
due to international sanctions, payments could only be performed in cash. Moreover,
the player recalled that these payments were always made in peculiar ways, such
when he was instructed to receive a bag full of cash in a public restroom inside the
airport of Country F. The player claims this was frequent.
12. The player added that, after having opposed the club’s modus operandi and having
signed the amended contract, the living situation in Country D got worse as his
performance had not been as good, to the point that – feeling no longer safe in the
country due to alleged threats by fans made to him – he tried to leave on 27 October
2018 but without success, as his departure was “hindered at airport in Country D”.
13. The player further recalled that, at that point, he started communicating to the club
his fears concerning the threats he had started receiving from the supporters as well
as his concerns about outstanding salaries. However, according to the player, the
payments “continued to be delayed and outstanding”.
14. The player explained that, as of 15 May 2019, the club had not yet paid to him the
amount of EUR 60,000, representing the increase in his salary for the season
2018/2019 that was due on 4 November 2018, as well as his salary payment of EUR
102,000 due on 10 May 2019.
Player A, Country B / Club C, Country D / Club E, Country F
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15. The player further recalled that he tried to get in touch with members of the club’s
management concerning his outstanding dues but to no avail.
16. The player, therefore, concluded that he had just cause to terminate the employment
contract on 27 June 2019, since, by then, the club had failed to remit to him
remuneration in the total amount of EUR 102,000.
17. The player further pointed out that he had been absent from trainings and matches
only twice, namely in December 2018 and May 2019, however rightfully so because:
a. In December 2018 the Respondent had delayed his payments despite
numerous and constant reminders;
b. In May 2019, he was on a medical leave due to his injured shoulder.
18. Moreover, the player recalled that, apart from not paying him his dues, the club also
threatened his safety by, inter alia, forcing him to accept payments in an illegal way
and by exporting and importing currency in other countries beyond the limits
permitted.
19. Additionally, the player deemed that the clause of the amended contract reserving to
the club the right to unilaterally terminate the contract for the seasons 2020/2021 and
2021/2022 should be declared invalid and, thus, the duration of the employment
relationship should be considered as from the season 2018/2019 until the end of the
season 2021/2022.
20. The player signed an employment contract with the club from Country F, Club E
(hereinafter: the Counter-Respondent II), valid as from 6 August 2019 until 31 May
2021. According to the said contract, he was entitled to a total fixed amount of EUR
1,390,000.
21. The club, for its part, rejected the player’s claim and counterclaimed against him and
the Counter-Respondent II.
22. The club pointed out that, upon signature of the contract, the player had received the
first payment of EUR 180,000. The club also maintained that it paid EUR 45,000 to the
player on 28 September 2018.
23. The club further explained that it always paid the player his salaries and that it was
never put in default by him until he left Country D.
24. The club further recalled that, following the player’s absence, it sent him a first
warning on 20 November 2018. The club added that, since the player did not come
back to Country D, it sanctioned him with a monetary fine but informed that it would
cancel such fine if the player came back to Country D by 23 November 2018. However,
as the player did not come back, the club recalled that it sent him a further
notification of absence on 23 November 2018.
Player A, Country B / Club C, Country D / Club E, Country F
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25. The club recalled that, when he finally returned, the player failed to attend the
training sessions on 25 November 2018.
26. The club further recalled that, on 26 November 2018, the player informed it about his
intention to go back to Country B.
27. The club also recalled that following a meeting between the parties, the player left
Country D on 29 November 2018 and that, on 8 December 2018, the club sent a
further notice to him.
28. The club added that, on 3 January 2019, the player came back to Country D and,
although he was not able to perform with the rest of the team, his salaries were
regularly paid.
29. The club concluded that, from the player’s behaviour, it can be noted that he was not
feeling well in Country D and forced his move to Country F where he signed a new
employment contract with the Counter-Respondent II.
30. In light of the above, the club counterclaimed against the player and his new club
compensation for breach of contract in the amount of EUR 2,530,000, consisting of
EUR 900,000 as damaged suffered, and calculated on the “mercantile value” of the
player, and EUR 1,630,000 in relation to the residual value of the amended contract.
31. The Counter-Respondent II, for its part, argued that the player had just cause to
terminate the contract as the club had repeatedly failed to pay him his salaries.
Additionally, the Counter-Respondent II submitted that it did not induce the player to
terminate the contract as the employment relationship between the player and the
Counter-Respondent II only started after the player had already filed a claim before
FIFA. The Counter-Respondent II is therefore of the position that it cannot be
considered jointly liable for the termination of the contract.
32. Alternatively, the Counter-Respondent II claimed that should it be the case that FIFA
finds that the player terminated the contract without just cause, the compensation
requested by the club “is totally contradictory”, “seriously wrong” and “excessive,
disproportionate and arbitrary”, as the club would be benefited from the salaries it
did not have to pay the player for the remainder of the contract; hence, the CounterRespondent II claimed that this amount should be considered as mitigation and not
additional compensation. The Counter-Respondent II concluded by requesting that no
sporting sanction or joint liability be applied against it.
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
Player A, Country B / Club C, Country D / Club E, Country F
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respect, it took note that the present matter was submitted to FIFA on 4 July 2019.
Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
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 conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
January 2020), 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, a club from Country D, and a club from
Country F.
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 January
2020), and considering that the present claim was lodged on 4 July 2019, the June
2019 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 documentation on file. However, the DRC 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.
By doing so, the Chamber firstly recalled that the parties had signed an employment
contract, as amended on 25 October 2018, valid as from the season 2018/2019 until
the end of the season 2021/2022, in accordance with which the Claimant/CounterRespondent I was entitled to receive, inter alia, as follows:
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6.
EUR 180,000 on 19 July 2018;
EUR 45,000 on 27 September 2018;
EUR 60,000 on 4 November 2018;
EUR 90,000 on 10 January 2019;
EUR 45,000 on 10 March 2019;
EUR 90,000 on 10 May 2019;
EUR 510,000 for the season 2019/2020;
EUR 560,000 for the seasons 2020/2021 and 2021/2022.
In continuation, the members of the Chamber took into account that, on 27 June
2019, the player notified the club of the termination of the contract on the basis of
outstanding remuneration, which amounted to EUR 102,000. The club, for its part,
submits that the player terminated the contract without just cause, and requested
Player A, Country B / Club C, Country D / Club E, Country F
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compensation for breach of contract and that the Counter-Respondent II be
considered jointly liable.
7.
The DRC highlighted that the central issue in the matter at stake would be, thus, to
determine as to whether the player had just cause to terminate the contract on 27
June 2019.
8.
In this sense, the Chamber took note that the parties, as per their submissions,
concurred that the residual value of the contract was EUR 1,630,000, which matches
the player’s remuneration for seasons 2019/2020, 2020/2021, and 2021/2022.
Additionally, the Chamber observed the contents of the amended contract, and took
note of its article 4, according to which the term of the employment relationship
between the player and the club was 4 seasons. Consequently, the Chamber
concluded, and emphasized, that it stands undisputed contract, as amended, would
expire on 30 June 2022.
9.
Additionally, the Chamber wished to emphasize that, according to the player, at the
time of the termination of the contract, the total amount of EUR 102,000 was yet to
be paid by the club.
10. Lastly, the DRC observed that the player granted the club in writing, on 5 June 2019,
with a deadline of 15 days to cure its default, to no avail.
11. The Chamber then turned its attention to the arguments of the club and
acknowledged that according to the latter the player’s salaries were “paid regularly”.
12. In continuation, the DRC recalled that according to the legal principle of the burden
of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right
on the basis of an alleged fact shall carry the burden of proof. With that in mind, the
Chamber observed that the club did not presented evidence of payment of the
player’s requested salaries in the amount of EUR 102,000.
13. As such, and in light of the player’s submissions, the Chamber concluded that the club
failed to pay the player salaries in the total amount of EUR 102,000 which, since the
player was not paid on a monthly basis, corresponds to 2.4 salaries.
14. On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the player had just cause to
unilaterally terminate the contract on 27 June 2019 and that the club is to be held
liable for the early termination of the contract with just cause by the player.
15. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the club is liable to pay to the player the
amounts which were outstanding under the contract at the moment of the
termination, i.e. EUR 102,000.
Player A, Country B / Club C, Country D / Club E, Country F
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16. In addition, taking into consideration the Claimant/Counter-Respondent I’s request as
well as the constant practice of the Dispute Resolution Chamber in this regard, the
members of the Chamber decided to award the Claimant/Counter-Respondent I
interest at the rate of 5% p.a. on the outstanding amount of EUR 102,000 as of 11
May 2019 until the date of effective payment.
17. In continuation, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract 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.
18. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains 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.
19. 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.
Therefore, other objective criteria may be taken into account at the discretion of the
deciding body.
20. The members of the Chamber then turned their attention to the remuneration and
other benefits due to the player under the existing contract and/or the new contract,
which criterion was considered by the Chamber to be essential. The members of the
Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the
Regulations allows the Chamber to take into account both the existing contract and
the new contract in the calculation of the amount of compensation.
21. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the contract as from its date of
termination with just cause by the player, i.e. 27 June 2019, until 30 June 2022, and
concluded that the player would have received in total EUR 1,630,000 as
remuneration had the contract been executed until its expiry date. Consequently, the
Chamber concluded that the amount of EUR 1,630,000 serves as the basis for the final
Player A, Country B / Club C, Country D / Club E, Country F
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determination of the amount of compensation for breach of contract in the case at
hand.
22. In continuation, the Chamber verified as to whether the Claimant/CounterRespondent I 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, and article 17 par.1 lit.
ii) of the Regulations, 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. The Chamber recalled that the player signed an employment contract with the
Counter-Respondent II, valid until 31 May 2021, in accordance with which the player
was to receive a total fixed remuneration of EUR 1,390,000. Accordingly, the Chamber
concluded that the mitigated compensation due to the player, comprehending both
the residual value of the contract and the amounts the player was able to mitigate,
amounts to EUR 240,000.
24. Further, the Chamber turned its attention to art. 17 par. 1 lit ii) of the Regulations,
and observed that, subject to the early termination of the contract being due to
overdue payables, in addition to the mitigated compensation, the player shall be
entitled to an amount corresponding to three monthly salaries as additional
compensation.
25. The Chamber then proceeded to calculate the additional compensation, and noted
that the player was entitled to an average salary of EUR 44,583.33 in line with the
contract. Accordingly, the player is entitled to receive three times the referred
amount, that is, EUR 133,750.
26. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the player’s general obligation to mitigate
his damage, the Chamber decided to partially accept the player’s claim and that the
club must pay the amount of EUR 373,750 as compensation for breach of contract in
the case at hand.
27. In addition, taking into account the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber decided that the club
must pay to the Claimant/Counter-Respondent I interest of 5% p.a. on the amount of
compensation as of 4 July 2019 until the date of effective payment.
28. Finally, taking into account the consideration under number II./3. above, the Chamber
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its
decision, the pertinent FIFA deciding body shall also rule on the consequences
deriving from the failure of the concerned party to pay the relevant amounts of
outstanding remuneration and/or compensation in due time.
Player A, Country B / Club C, Country D / Club E, Country F
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29. In this regard, the DRC pointed out that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid
and for the maximum duration of three entire and consecutive registration periods.
30. Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent/Counter-Claimant does not pay the amounts due to the
Claimant/Counter-Respondent I within 45 days as from the moment in which the
Claimant/Counter-Respondent I, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering
any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
31. The DRC recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art.
24bis par. 3 of the Regulations.
III. Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant/Counter-Respondent I, Player A, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent I
the amount of EUR 475,750, plus interest as follows:
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at the rate of 5% p.a. on the amount of EUR 102,000 as from 11 May 2019 until the
date of effective payment;
at the rate of 5% p.a. on the amount of EUR 373,750 as from 4 July 2019 until the
date of effective payment.
4.
Any further claim lodged by the Claimant/Counter-Respondent I is rejected.
5.
The Claimant/Counter-Respondent I is directed to inform the Respondent/CounterClaimant, immediately and directly, preferably to the e-mail address as indicated on
the cover letter of the present decision, of the relevant bank account to which the
Respondent must pay the amounts mentioned under point III./3. above.
Player A, Country B / Club C, Country D / Club E, Country F
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6.
The Respondent/Counter-Claimant shall provide evidence of payment of the due
amount in accordance with point III./3. above to FIFA to the e-mail address
[email protected], duly translated into one of the official FIFA languages (English,
French, German, Spanish).
7.
In the event that the amount plus interest due in accordance with point III./3. above is
not paid by the Respondent/Counter-Claimant w ithin 45 day s as from the
notification by the Claimant/Counter-Respondent I of the relevant bank details to the
Respondent/Counter-Claimant, the Respondent/Counter-Claimant shall be banned
from registering any new players, either nationally or internationally, up until the due
amount is paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
8.
The ban mentioned in point III./7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
9.
In the event that the aforementioned sum plus interest is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to
publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
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. 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.
The full address and contact numbers of the CAS are the following:
Player A, Country B / Club C, Country D / Club E, Country F
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Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player A, Country B / Club C, Country D / Club E, Country F
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