Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning
the player A
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Jorge Gutiérrez (Costa Rica), member
Stefano Sartori (Italy), member
CLAIMANT 1 / RESPONDENT 2:
A, Country A
Represented by
RESPONDENT 1 / CLAIMANT 2:
B, Country B
Represented by
pg. 2
I. Facts of the case
1.
On 6 August 2022, the Country A player A (hereinafter: Claimant or player) and the Country
B club, B (hereinafter: club or Respondent) concluded an employment contract (hereinafter:
contract) valid as from 1 August 2022 until 30 June 2025.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
- USD 60,000 on 15 August 2022;
- USD 60,000 on 15 August 2023;
- USD 60,000 on 15 August 2024;
- USD 7,500 as monthly salary (12x per year).
3.
Under the subtitle “Termination of the contract by the player”, the contract establishes:
4.
On 23 August 2022, according to the club, it paid for the player’s girlfriend’s return flight
ticket in the amount of USD 1,093.
5.
On 30 August 2022, the club sent an email to the player’s alleged representative and
requested time until 15 September 2022 to remit the amount.
6.
According to the club, on 2 September 2022, it remitted the player’s salary for August 2022
(USD 7,500) to the player.
7.
On 9 September 2022, the Claimant put the Respondent in default and requested payment
of USD 67,500, corresponding to the payment due on 15 August 2022 as well as the salary
of August 2022, within 15 days.
8.
On 16 September 2022, the club remitted an amount of USD 30,000 to the player.
pg. 3
9.
On 28 September 2022, the player terminated the contract with the club due to the
outstanding remuneration. On the same day, the player announced the termination on his
Instagram account.
10. The player confirmed that he remained unemployed until today.
II. Proceedings before FIFA
11. On 27 September 2022, the player filed a claim at hand before FIFA. On 7 October 2022,
before it was notified of the player’s claim, the club filed a separate claim against the player
in front of FIFA. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant
12. In his claim, the player requested payment of the following monies:
- USD 30,000, corresponding to the outstanding part of the payment due on 15
August 2022, plus 5% interest p.a. as of 16 August 2022;
- USD 382,500 as compensation (residual value of the contract from September
2022 until June 2025, plus 5% interest p.a. as of 28 September 2022.
13. In his claim, the player argued that the contract “shall be considered terminated with just
cause as of 28 September 2022” due to the breach of the club, namely the outstanding
remuneration.
14. The player held that the club failed to remit the complete amount due to him after the
default notice and remitted the amount of USD 37,500, which led to an outstanding amount
of USD 37,700 (USD 30,000 from the payment due on 15 August 2022 and USD 7,500 as
salary for September 2022).
15. In this context, the Claimant maintained that such amount corresponds to nearly 3 monthly
salaries taking into account his annual salary of USD 150,000 (divided by 12 results in USD
12,500 as “pro-rata salary”).
16. The player pointed out that he warned the club with his default notice.
17. The Claimant also referred to the wording of the contract in its art. 3.2, according to which
the player had just cause to terminate the contract if 2 monthly salaries remained
outstanding.
pg. 4
b. Position of the Respondent
18. In its claim, the club requested payment of the following monies:
- USD 1,000,000, corresponding to the “buy-out” established in art. 3.2. of the
contract;
- USD 500,000 as “damage caused to the club”.
19. In its claim, the club confirmed that the payment due to the player on 15 August 2022 was
delayed, “due to cash-flow problems”. In this regard, it pointed out that it had requested time
to remit the amount until 15 September 2022 and that the player’s agent agreed.
20. The club confirmed having received the default notice from the player, but it argued that it
“doubted its authenticity” since the lawyer’s power of attorney was dated 5 September 2022
and allegedly signed in City Z Country C, whereby the player was “physically with the club”.
21. Furthermore, B pointed out that the player requested payment of USD 67,500, whereby it
had actually remitted the player’s salary for the month of August 2022 (USD 7,500) on 2
September 2022.
22. According to the club, the player kept rendering his services and never complained about
outstanding remuneration until 28 September 2022.
23. B held that it was always willing to remit the outstanding amount and therefore expected
the player to respect the contract.
c. Player’s reply to the club’s claim
24. In his reply to the claim of the club, the player rejected the club’s claim and reiterated his
position.
25. The player pointed out that the club confirmed having received the default notice and also
that it failed to comply with the complete payments within 15 days.
26. In this context, the player pointed out that the club’s allegation having had time until 15
September 2022 is irrelevant since it failed to pay the amount.
27. The player rejected the club’s argument that the flight ticket for his girlfriend shall be
interpreted as part of his salary.
28. According to the player, the club wanted to get rid of the player and told his agent on
various occasions. This explains the delayed payments.
29. The player insisted that he had just cause to terminate the contract on 28 September 2022.
pg. 5
d. Club’s reply to the player’s claim
30. In its reply to the claim of the player, the club rejected the player’s claim and reiterated its
position.
31. The club pointed out that the amount claimed in the default notice was wrong.
32. Further, it rejected various allegations of the player and held that it complied partially with
its payment obligations.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. 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 presented to FIFA on 27 September 2022,
respectively on 7 October 2022 and submitted for decision on 23 February 2023. Taking
into account the wording of art. 34 of the October 2022 edition of the Procedural Rules
Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
34. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), 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 A and a club from Country B.
35. Subsequently, 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 (October 2022 edition), and
considering that the present claim was lodged on 27 September 2022, respectively on 7
October 2022, the July 2022 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
pg. 6
b. Burden of proof
36. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
37. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on 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.
i. Main legal discussion and considerations
38. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the early
termination of the contract by the player, based on the alleged non-payment of certain
financial obligations by the Respondent as per the contract, in accordance with art. 14bis
of the Regulations.
39. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
40. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
41. The Chamber noted that the player claims not having received his remuneration
corresponding to corresponding to the outstanding part of the payment due on 15 August
2022. Furthermore, the Chamber noted that the player has provided written evidence of
having put the club in default on 9 September 2022, i.e. at least 15 days before unilaterally
terminating the contract on 28 September 2022.
pg. 7
42. The Chamber took notice of the fact that the club made partial payments after the default
notice and that it showed its willingness to comply with the payments due.
43. However, the DRC established that the player’s total entitlement amounts to USD 150,000
per season (USD 60,000 as payment due on 22 August 2022 and 12x USD 7,500= USD
90,000), from which, at the moment of termination, undisputedly, USD 30,000 remained
outstanding.
44. Considering the wording of art. 14bis par. 2 of the Regulations and the fact that the player’s
salary was not due on a monthly basis, the Chamber calculated the pro-rata value of the
remuneration and concluded that the amount of USD 30,000 claimed corresponded to
more than two monthly salaries, taking into account the remuneration per season (USD
150,000 / 12 = USD 12,500 as monthly salary).
45. Thus, the Chamber concluded that the player had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
ii. Consequences
46. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
47. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to USD 30,000,
resulting from the instalment due on 15 August 2022.
48. Furthermore, the DRC decided to award the salary for September 2022, i.e. USD 7,500, as
outstanding remuneration as the player rendered his services for 28 days.
49. As a consequence, and 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. USD
37,500.
50. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
pg. 8
51. 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
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.
52. 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.
53. 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.
54. 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 contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 367,500 (USD 67,500 for salaries of season 2022/2023,
USD 120,000 as scheduled instalments, USD 180,000 as salaries for the remaining seasons)
serves as the basis for the determination of the amount of compensation for breach of
contract.
55. 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 as well as art. 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.
56. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
pg. 9
57. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
58. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of USD 367,500, as the residual value of the contract.
59. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 28 September 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
60. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
61. In this regard, the DRC highlighted 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. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
62. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become immediately effective on the Respondent in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
63. The club shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
64. 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. 24 par. 8 of
the Regulations.
pg. 10
d. Costs
65. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
66. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
67. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant 1 / Respondent 2, A, is partially accepted.
2.
The Respondent 1 / Claimant 2, B, has to pay to the Claimant, the following amount(s):
- USD 30,000 as outstanding remuneration plus 5% interest p.a. as from 16 August 2022
until the date of effective payment;
- USD 7,500 as outstanding remuneration plus 5% interest p.a. as from 28 September
2022 until the date of effective payment;
- USD 367,500 as compensation for breach of contract plus 5% interest p.a. as from 28
September 2022 until the date of effective payment.
3.
Any further claims of the Claimant 1 / Respondent 2 are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
The claim of Respondent 1 / Claimant 2, B, is rejected.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, 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 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13