Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 March 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
John Bramhall (England), member
Theodore Giannikos (Greece), member
Zola Majavu (South Africa), member
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 28 December 2014, the player from country B, Player A (hereinafter: the
player or the Claimant) and the club from country D, Club C (hereinafter: the
club or the Respondent) entered into an employment contract (hereinafter:
the contract) valid as from its signature date until the end of the 2015-16
sporting season.
2.
According to the Transfer Matching System (TMS), the 2015-16 sporting season
in country D starts on 30 July 2015 and ends on 20 May 2016.
3.
According to art. 4-6 of the contract, the club may grant the player a 10 days
leave during the mid-season break.
4.
Furthermore, in case of any delay in returning from vacation, the club may
sanction the player by imposing a fine of USD 5,000 per day of delay.
5.
Moreover, should the player’s delay last more than a week, and in addition to
the daily penalty, the club is entitled to penalise the player by reducing his
annual income by 25%.
6.
According to art. 4-10 of the contract, the club may unilaterally terminate the
contract should the player be absent from the club more than 10 days.
7.
According to art. 7 of the contract, the player is entitled to the following
remuneration:
USD 133,000 (4,655,000,000) for the sporting season 2014/2015, payable via
a down payment of USD 50,000 upon signature of the contract, plus six
monthly payments of USD 10,000 each. The remaining amount of USD
23,000 shall be paid to the player at the end of the season “as guarantee
of the player’s good performance.”
USD 267,000 (i.e. 9,345,000,000) for the sporting season 2015/2016, 20% of
which being payable at the end of the relevant sporting season as
“guarantee of the player’s good performance” and the remaining amount
being payable via 12 monthly installments of USD 17,800 each.
8.
Pursuant to art. 4-7 of the contract, the club shall provide the player and his
wife with one round trip flight ticket country D-country B-country D per
person.
9.
According to the player, the club and his representative signed a second
contract (hereinafter: the alleged second contract) at the end of the month of
December 2014, allegedly stipulating that the club shall pay the player a
signing-on fee of USD 20,000 within fifteen days of its signature.
Player A, country B / Club C, country D
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10.
On 26 May 2015, by email, the player notified the club of non-payment of
three monthly salaries and of organizing the return flights from country B to
country D. Furthermore, the player asked the club to inform him of the date
on which he had to return to the club.
11.
On 30 June 2015, the club terminated the employment contract in writing due
to the player’s alleged unjustified absence for more than 10 days, invoking art.
4-10 of the contract.
12.
The notice of termination further indicated that based on the club’s calendar
and the information verbally given by the club’s manager, the player should
have returned to country D to resume training on 18 June 2015 and that in his
email, the player had only questioned the club about the issuance of his return
flight tickets, whereas it deemed having already issued the flight tickets
country D-country B the player is contractually entitled to. In said termination
notice, the club asked the player to provide his bank details so as to proceed to
pay the player’s outstanding remuneration.
13.
On 8 December 2015, the player lodged a claim against the club with FIFA,
asserting that the club unilaterally terminated the employment contract
without just cause.
14.
In this context, the player inter alia requested that the club be ordered to pay
him outstanding remuneration and compensation for breach of contract in the
total amount of USD 350,650, plus 5% interest p.a., calculated as follows:
Outstanding remuneration in the amount of USD 60,650:
USD 20,000 related to the signing-on fee of the alleged second
contract, plus interest on said sum, calculated as from the expiry of
the fifteenth day following its signature;
USD 40,000 corresponding to the player’s remuneration for the
months of March, April, May and June 2015 (USD 10,000 x 4) in
accordance with the employment contract, plus interest, calculated as
from the relevant due dates;
USD 650 corresponding to the costs the player allegedly incurred to
modify the details of the flight tickets country D/country B he and his
wife received from the club, plus interest on said amount, calculated
as from the month of May 2015.
Compensation for breach of contract in the amount of USD 290,000:
Player A, country B / Club C, country D
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USD 23,000, based on the amount to be paid at the end of the
sporting season 2014/2015, plus interest on said sum, calculated as
from the termination date;
USD 213,600, composed of the player’s 12 monthly salaries related to
the sporting season 2015/2016, plus interest, applied as from the
termination date;
USD 53,400 corresponding to the amount payable at the end of the
sporting season 2015/2016, plus interest, calculated as from the
termination date;
15.
The player further asks that sporting sanctions be imposed upon the club.
16.
In support of his claim, the player explained that although he always complied
with his contractual obligations, the club stopped paying his remuneration
after having remitted his first two monthly salaries.
17.
He further stated that his email of 26 May 2015 remained unanswered by the
club.
18.
In continuation, the player asserted that as he was allowed to leave on
vacation at the end of the sporting season 2014/2015 and that the club bought
one flight ticket for him and one for his wife, to return to country B. However,
according to the player, and as the flight dates were “incorrect”, the player
rescheduled the flight details for himself and his wife, which allegedly cost him
USD 650.
19.
With respect to the club’s reasoning for the termination of the contract as
indicated in the notice of termination, the player deemed that the club is
acting in bad faith and tries to distort the facts, not only to hide its own
unlawful behaviour, but to make the player responsible for the termination of
the contract.
20.
In this respect, the player insisted that the club never informed him of the date
on which he had to return from his vacation, neither via a calendar or verbally,
nor following his email of 26 May 2015.
21.
More importantly, the player deemed in this regard that instead of acting in
the interest of the maintenance of their contractual relationship, the club
remained inactive until the ten days deadline stipulated in art. 4-10 had ended
and, thereafter, invoked such clause in order to justify the termination of the
contract.
22.
Additionally, the player maintained that the club violated art. 4-7 of the
contract as it only provided him with 2 one-way flight tickets for him and his
Player A, country B / Club C, country D
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wife to travel to country B, and not with two round trip flight tickets. The
player stressed that the club admitted this violation as it mentioned in its
termination notice that it remitted the tickets “country D/country B” to the
player.
23.
The player further stressed that in its termination notice, the club admitted
that it was in breach of contract in relation to the payment of the player’s
salaries as from March 2015 until June 2015.
24.
Finally, the player held that should it be considered that he acted in breach of
contract by not returning to the club on 18 June 2015, quod non, the club had
to apply art. 4-6 of the contract, which is specifically related to the question of
late a return from vacation, and not art. 4-10, which is related to absence
without further specification. In this respect, the player stressed that art. 4-6
only provides for the imposition of financial penalties upon the player in case
of late return from holidays and does not give the club any grounds for
terminating the contract.
25.
In spite of having been invited to do so, the club did not present any answer to
the claim of the player.
26.
On 20 July 2015, the player and the club from country B, Club E signed an
employment contract valid as from its signature date until 30 November 2015.
According to said contract, the player was entitled to a remuneration of 1,500.
27.
On 30 November 2015, the player and the club from country F, Club G signed
an employment contract, valid as from 1 December 2015 until 30 November
2016, in accordance with which the player is entitled to receive a signing-on
fee of USD 10,000 and a monthly remuneration of USD 18,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 8 December 2015. Consequently, the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (edition
2015; hereinafter: Procedural Rules) are applicable to the matter at hand (cf.
art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2015) the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
Player A, country B / Club C, country D
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an international dimension between a player from country B and a club from
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 (edition 2015), and considering that the present claim was lodged on 8
December 2015, the 2015 edition of said regulations (hereinafter: Regulations)
is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the documentation available 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. In particular, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use,
within the scope of proceedings pertaining to the application of the
Regulations, any documentation or evidence generated or contained in the
Transfer Matching System (TMS).
5.
The members of the Chamber acknowledged that, on 28 December 2014, the
Claimant and the Respondent signed an employment contract valid as from 28
December 2014 until the end of the sporting season of country D 2015/2016,
i.e. 20 May 2016.
6.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the total amount of USD
350,650, asserting that the Respondent had not fulfilled its contractual
obligations towards him. More specifically, the Claimant held that in addition
to having repeatedly failed to pay him his monthly remuneration, the
Respondent terminated the employment contract without just cause and
therefore is to be held liable to pay compensation in addition to outstanding
remuneration.
7.
The Chamber was eager to highlight 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. Therefore, the Chamber considered that, in this way, the
Respondent renounced its right of defence and accepted the allegations of the
Claimant.
8.
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 documents already on file,
Player A, country B / Club C, country D
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in other words, upon the statements and documents presented by the
Claimant.
9.
On account of the above, the Chamber acknowledged that it had to establish
as to whether the Respondent terminated the employment contract without
just cause on 30 June 2015, as claimed by the Claimant, and, subsequently, in
the affirmative, to decide on the consequences thereof.
10.
In this respect, the members of the Chamber focussed their attention on the
notice of termination dated 30 June 2015, via which the Respondent informed
the Claimant of the termination of the employment contract and the reason
thereof, i.e. the Claimant’s alleged unjustified absence for more than 10 days.
11.
The Chamber observed that in his statement of claim, the Claimant held that
he was authorised to travel to country B for vacation purposes at the end of
the 2014-15 season and that the Respondent had issued a one-way flight ticket
on such occasion.
12.
The members of the Chamber further took into account that according to the
Claimant, the Respondent failed to reply to his email of 26 May 2015 and he
was not informed of the date on which he was to return to the club nor was
he provided with the required return flight ticket.
13.
In this respect, the Chamber took into account that the Respondent had
contractually undertaken to provide the Claimant with a round trip flight
ticket.
14.
Having said that, bearing in mind the considerations under points II./7. and
II./8. above, the Chamber concluded that it has remained uncontested that the
Claimant had left for holiday purposes with the approval of the Respondent
and that the Respondent had not provided the Claimant with the contractual
return flight ticket or informed him of the date on which he had to return to
the club, not even after the Claimant had asked the Respondent to provide
him with such document/information on 26 May 2015.
15.
Regardless of the question as to whether the Claimant was supposed to
resume training at the club on 18 June 2015, the Chamber was of the firm
opinion that the Respondent did, in any case, not have just cause to
prematurely terminate the employment contract with the Claimant on 30 June
2015, since the alleged breach could not legitimately be considered as being
severe enough to justify the termination of the contract, and that there would
have been more lenient measures to be taken (e.g., among others, a
suspension or a fine) in order to sanction an alleged unjustified absence as
from 18 June 2015. The Chamber stressed that a premature termination of an
employment contract can only ever be an ultima ratio measure.
Player A, country B / Club C, country D
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16.
On account of all of the above, the Chamber decided that, on 30 June 2015,
the Respondent terminated the employment contract without just cause.
17.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber
went on to deal with the consequences thereof.
Firstly, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract up until the date of
termination of the contract in accordance with the general legal principle of
“pacta sunt servanda”.
18.
19.
In this respect, the Chamber recalled that it has remained uncontested that the
Claimant’s monthly remuneration in accordance with the employment contract
as from March 2015 until its termination had not yet been paid by the
Respondent.
20.
Consequently, the Chamber decided that the Respondent is liable to pay to the
Claimant the remuneration that was outstanding at the time of the
termination, i.e. the amount of USD 40,000, consisting of four monthly
instalments of USD 10,000 each corresponding to the months of March, April,
May and June 2015 under the employment contract.
21.
In addition, taking into consideration the Claimant’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 interest at the rate of
5% p.a. on the outstanding amount of USD 40,000, calculated as of the day
following the due date of payment of each of the aforesaid monthly
instalments of USD 10,000, until the date of effective payment.
22.
In continuation, on account of the principle of the burden of proof set out in
art. 12 par. 3 of the Procedural Rules, in accordance with which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof,
the members of the DRC unanimously agreed that the Claimant’s claims for
payment of USD 20,000 on the basis of an alleged second contract and the
reimbursement of USD 650 in respect of alleged costs for changes in flight
tickets had to be rejected as they were not corroborated by any documentary
evidence.
23.
Having established the above, the Chamber decided that, taking into
consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to
receive from the Respondent compensation for breach of contract.
24.
In this context, the Chamber outlined that, in accordance with said provision,
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
Player A, country B / Club C, country D
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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.
25.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, 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.
26.
As a consequence, the members of 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.
27.
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.
28.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant 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.
29.
In this respect, the Chamber pointed out that as from the termination of the
employment contract on 30 June 2015 until the original expiry of the contract,
12 monthly instalments of USD 17,800 each and two payments of USD 23,000
and 53,400, respectively, were payable to the Claimant. Consequently, the
Chamber concluded that the residual value of the contract amounts to USD
290,000 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract in the
case at hand.
30.
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 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.
Player A, country B / Club C, country D
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31.
Following the early termination of the employment contract, the Claimant had
found new employment as from 20 July 2015. Indeed, the Claimant signed an
employment contract with the club from country B, Club E, valid as from 20
July 2015 until 30 November 2015, in accordance with which he would be
remunerated with the monthly amount of 1,500, corresponding approximately
to a total of USD 2,224 for the duration of this contract. The Claimant further
signed an employment contract with a club from country F, Club G, valid as
from 1 December 2015 until 30 November 2016, in accordance with which the
Claimant was entitled to a monthly salary of USD 18,000 and a signing-on fee
of USD 10,000, i.e. a total of USD 118,000 for the residual period of time until
the end of May 2016.
32.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand as well as the Claimant’s general obligation
to mitigate his damage, the Chamber decided that the Respondent must pay
the amount of USD 169,776 to the Claimant as compensation for breach of
contract without just case.
33.
Furthermore, taking into account the Claimant’s petition 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. 8
December 2015, until the date of effective payment.
34.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of USD 40,000 plus 5% interest p.a. until the date of effective
payment as follows.
a. 5% p.a. as of 1 April 2015 on the amount of USD 10,000;
b. 5% p.a. as of 1 May 2105 on the amount of USD 10,000;
c. 5% p.a. as of 1 June 2015 on the amount of USD 10,000;
d. 5% p.a. as of 1 July 2015 on the amount of USD 10,000.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract in the
Player A, country B / Club C, country D
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amount of USD 169,776 plus 5% interest p.a. on said amount as from 8
December 2015 until the date of effective payment.
4.
In the event that the aforementioned sums plus interest are not paid by the
Respondent within the stated time limit, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
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 remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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:
_____________________
Marco Villiger
Deputy Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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