Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 March 2017,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Pavel Pivovarov (Russia), member
Roy Vermeer (Netherlands), member
Jon Newman (USA), 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 arisen between the parties
I.
Facts of the case
1.
On an unspecified date, the Player of Country B, Player A (hereinafter: the
Claimant), and the Club of Country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract), valid from 1
January 2016 until 30 June 2018.
2.
Pursuant to art. 4 of the contract, the Claimant was entitled to receive the
following remuneration:
2015-16 season: USD 100,000 as follows:
- USD 50,000 upon the issuance of the International Transfer Certificate;
- USD 50,000 payable in five monthly instalments of USD 10,000 from 1 February
2016 until 30 June 2016;
2016-17 season: USD 200,000 as follows:
- USD 50,000 on 1 September 2016;
- USD 150,000 payable in ten monthly instalments of USD 15,000 from 1
September 2016 until 30 June 2017;
2017-18 season: USD 200,000 as follows:
- USD 50,000 on 1 September 2017;
- USD 150,000 payable in ten monthly instalments of USD 15,000 from 1
September 2017 until 30 June 2018.
3.
On 23 September 2016, the Claimant requested the Respondent to pay him the
amount of USD 65,000 as outstanding remuneration as well as to register him by
no later than 27 September 2016.
4.
On 11 October 2016, the Claimant sent a second correspondence to the
Respondent, emphasising that “[he is] waiting from the [Respondent] some days
ago to sign the pre-agreed termination contract proposal by both parties”. In this
respect, the Claimant stressed that should the Respondent not react by 8.00 pm
CET, he would lodge a claim with FIFA.
5.
On 13 October 2016, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract requesting to be awarded the amount of USD
400,000, plus 5% interest as from 23 September 2016, as compensation for breach
of contract as well as “any other remedy that the DRC think just and fair”.
6.
In his claim, the Claimant explains that the Respondent did not pay him any
amount for the 2016-17 season. In addition, the Claimant alleges that the
Respondent did not register him at the Football Association of Country D,
preventing him from taking part in any official games for the 2016-17 season.
7.
In spite of having been invited to do so, the Respondent did not reply to the
Claimant’s claim.
Player A, Country B / Club C, Country D
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8.
Upon request, the player informed FIFA that he did not enter into any new
employment contract.
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 13 October 2016. Consequently, the 2016 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 2016), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a Player of Country B and a Club of Country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2016), and considering that the present claim was lodged on 13 October
2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. However, the Chamber emphasised that in
the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand. In this respect, the Chamber acknowledged that the parties had
signed an employment contract, valid as of 1 January 2016 until 30 June 2018.
5.
Furthermore, the Chamber observed that none of the parties formally terminated
the employment contract. Nevertheless, the Chamber noted that by putting the
Respondent in default on 23 September 2016 and, subsequently, lodging a claim in
front of FIFA for breach of contract on 13 October 2016, the Claimant clearly and
unambiguously expressed his intention to terminate the employment relationship.
Therefore, the members of the Chamber deemed the contractual relationship was
terminated on 13 October 2016, i.e. the date on which the claim was lodged.
6.
Having established the foregoing, the members of the Chamber noted that the
Claimant lodged a claim against the Respondent maintaining that he had
Player A, Country B / Club C, Country D
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terminated the employment contract with just cause. In particular, the Claimant
alleges that the Respondent did not pay him any amount for the 2016-17 season
and failed to register him at the Football Association of Country D.
7.
Subsequently, the DRC observed 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.
Consequently, the Chamber deemed that the Respondent had renounced to its
right of defence and, thus, had accepted the allegations of the Claimant.
8.
As a consequence of the aforementioned consideration, the DRC held that, in
accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken
upon the basis of the documents on file, in other words, upon the statements and
documents presented by the Claimant.
9.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute was to determine whether the contract had been terminated
by the Claimant on 13 October 2016 with or without just cause.
10.
On account of the aforementioned, and, in particular, taking into account that the
Respondent did not reply and thus, did not contest the Claimant’s assertions, the
DRC established that the Respondent, without any valid reason, failed to register
the Claimant and to remit him, until 13 October 2016, the down payment due on 1
September 2016 as well as his salary for September 2016. Consequently, and
considering that the Respondent had repeatedly and for a significant period of
time been in breach of its contractual obligations towards the Claimant, the
Chamber decided that the Claimant had just cause to unilaterally terminate the
employment contract on 13 October 2016 and that, as a result, the Respondent is
to be held liable for the early termination of the employment contact with just
cause by the Claimant.
11.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the Chamber focused its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant is entitled to receive from the
Respondent an amount of money as compensation for breach of contract in
addition to any outstanding payments on the basis of the relevant employment
contract.
12.
At this stage, the DRC made reference to its previous considerations and recalled
that at the time of the termination, i.e. on 13 October 2016, the down payment
due on 1 September 2016 as well as the salary for September 2016 were
outstanding.
13.
Consequently, in accordance with the principle of pacta sunt servanda, the DRC
decided that the Respondent is liable to pay the Claimant the amount of USD
65,000 as outstanding remuneration.
Player A, Country B / Club C, Country D
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14.
In addition, and taking into consideration the Claimant’s claim, the DRC decided
that the Respondent had to pay default interest at a rate of 5% as follows:
a. 5% p.a. as of 23 September 2016 on the amount of USD 50,000;
b. 5% p.a. as of 1 October 2016 on the amount of USD 15,000.
15.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent 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 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.
16.
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.
17.
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. 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.
18.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract until
30 June 2018, taking into account that the Claimant’s remuneration until
September 2016 is included in the calculation of the outstanding remuneration.
Consequently, the Chamber concluded that the amount of USD 335,000, i.e.
remuneration as from October 2016 until 30 June 2018, serves as the basis for the
determination of the amount of compensation for breach of contract.
19.
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
Player A, Country B / Club C, Country D
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of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
20.
The Chamber noted that it appears from the documentation on file that the
Claimant did not sign any contract with a new club within the relevant period.
Thus, the Claimant had apparently not been able to mitigate damages. In this
context, the DRC declared that there is no remuneration to be taken into account
in order to mitigate the amount of compensation for breach of contract.
21.
In this respect and bearing in mind all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the Respondent
must pay the amount of USD 335,000 to the Claimant, which was to be considered
a reasonable and justified amount of compensation for breach of contract in the
present matter.
22.
In addition, taking into account the Claimant’s request as well as its longstanding
and well-established 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. 13 October 2016, until the date of
effective payment.
23.
Subsequently, the DRC analysed the Claimant’s request for “any other remedy that
the DRC think just and fair”. In this regard, the Chamber deemed it appropriate to
point out that the request for said “remedy” presented by the Claimant had no
legal or regulatory basis and that no corroborating evidence had been submitted
which would warrant any other “remedy” to be given to the Claimant.
24.
In continuation, the Chamber focused its attention on the further consequences of
the breach of contract in question and, in this respect, addressed the question of
sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates inter alia that, in addition to the obligation to pay
compensation, sporting sanctions shall be imposed on a club found to be in breach
of contract during the protected period.
25.
Subsequently, the members of the Chamber referred to item 7 of the “Definitions”
section of the Regulations, which stipulates, inter alia, that the protected period
shall last “for three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the
28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this respect, the
Chamber took note that the breach of the employment contract by the
Respondent had occurred on 13 October 2016, i.e. 10 months following the entry
into force of the contract at the basis of the dispute. Therefore, the Chamber
concluded that, irrespective of the Claimant’s age, such breach of contract by the
Respondent had occurred within the protected period.
Player A, Country B / Club C, Country D
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26.
As a result, by virtue of art. 17 par. 4 of the Regulations and considering that the
Claimant terminated the contract with the Respondent with just cause, the
Chamber decided that the Respondent shall be banned from registering any new
players, either nationally or internationally, for the two next entire and
consecutive registration periods following the notification of the present decision.
In this regard, the Chamber emphasised that apart from the Respondent having
clearly acted in breach of the contract within the protected period in the present
matter, the Respondent had also on several occasions in the recent past been held
liable for the early termination of the employment contracts with the players
Player E (case ref. nr. X; decided on 15 October 2015), Player F (case. ref. nr. Y;
decided on 10 November 2015) and Player G (case. ref. nr. Z; decided on 30
September 2016).
27.
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
65,000 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
5% p.a. as of 23 September 2016 on the amount of USD 50,000;
5% p.a. as of 1 October 2016 on the amount of USD 15,000.
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 amounting to USD
335,000 plus 5% interest p.a. on said amount as from 5 October 2016 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.
5.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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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.
7.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following
the notification of the present decision.
*****
Note relating to the motivated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS, a
copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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