Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 March 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Roy Verm eer (The Netherlands ), member
Alex andra Góm ez (Uruguay ), member
Wouter Lam brecht (Belgium ), member
Joel Talav era (Paraguay ), member
on the claim presented by the player,
Play er 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 cas e
1.
On 4 July 2016, the agent of the player of Country B, Player A (hereinafter: the
player or Claimant) received a letter from the club of Country D, Club C
(hereinafter: the club or Respondent), with a proposal for the player to join the
club for the 2016-2017 season, for a yearly salary of USD 200,000. According to
the information contained in the Transfer Matching System (TMS), the 2016/2017
season in Country D started on 27 July 2016 and ended on 24 May 2017.
2.
After having received the club’s proposal, the player, allegedly in the period
between 4 and 11 July 2016, terminated his contract with the club of Country B,
Club E, and flew to Country D on 12 July 2016, in order to conclude the
negotiations with the club.
3.
After having passed a medical examination in Country D on 14 July 2016, on 16
July 2016, the player and the club concluded an employment agreement
(hereinafter: the contract), valid for the season 2016-2017.
4.
According to article 4.1 of the contract, the player was entitled to receive a total
salary of USD 200,000, corresponding to 6,017,900,000 in the currency of Country
D, to be paid as follows:
30% of 6,017,900,000 in the currency of Country D as first payment ‘one
week before starting the first game’;
20% of 6,017,900,000 in the currency of Country D as second payment ‘in
half season time’;
30% of 6,017,900,000 in the currency of Country D as ‘low to be paid in 10
instalments during the tournament’;
20% of 6,017,900,000 in the currency of Country D as third payment ‘before
last game of season’.
5.
Moreover, according to the articles 4.1.2 and 4.1.3 of the contract, the player is
entitled to receive ‘bonus apartment furnishing’ as well as ‘bonus tree round –
trip ticket per year’.
6.
On 1 March 2017, the player lodged a claim against the club in front of FIFA,
requesting that the club be ordered to pay him the total amount of USD 207,600
as compensation for breach of contract, specified as follows:
USD 200,000 as value of the contract in the 2016-2017 season;
USD 5,700 as costs related to three round-trip tickets;
Player A, Country B / Club C, Country D
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USD 1,900 as costs related to the reimbursement of the costs of an air ticket
for the player’s agent to travel back to Country B;
Furthermore, the player requested the amount of 55,000 in the currency of
Country B to be paid by the club, as ‘the lost amounts with Club E’, specified as
follows:
50,000 in the currency of Country B as salaries from July until November
2016;
5,000 in the currency of Country B as ‘bonus established in the contract with
Club E’.
Finally, the player requested 1% interest per month on the amounts of USD
207.600 and 55,000 in the currency of Country B as from August 2016 until the
date of effective payment.
7.
In his claim, the player explains that after the signing of the contract on 16 July
2016, he was presented to the media by the club and the signing of the contract
was published on the club’s website. Also, the player argues that he started
training with the team on 16 July 2016.
8.
Furthermore, the player explains that ‘just a few days after the contract
conclusion’, the club informed him that ‘his services were no longer needed’, and
that he ‘was dismissed from the team’. Moreover, the player states that the club
refused to pay any values to him related to the contract, and did not even pay
for his air tickets back to Country B.
9.
In addition, the player explains that on 24 October 2016, he put the club in
default, providing a 15 days’ deadline to pay the amount of USD 207,600,
however to no avail.
10.
In spite of being invited to do so, the club did not reply to the claim of the
player.
11.
After being requested to do so, the player informed FIFA that on 4 November
2016, he signed an employment contract with the club of Country B, Club F, valid
as from 1 December 2016 until 31 December 2017, and provided a copy of said
contract. Based on this document, the player is entitled to receive a monthly
salary of 9,500 in the currency of Country B (approximately USD 2,971 or
108,503,000 in the currency of Country D) for the month of December 2016, and
a monthly salary of 13,000 in the currency of Country B (approximately USD
4,065 or 148,478,000 in the currency of Country D) for the period between 1
January and 31 December 2017. For the period between 1 December 2016 and 24
Player A, Country B / Club C, Country D
3
May 2017, this amounts to approximately 71,565 in the currency of Country B
(approximately USD 22,382 or 817,374,000 in the currency of Country D).
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 1 March 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
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 (editions 2016 and 2018) the Dispute Resolution Chamber is competent to
deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a 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
(editions 2016 and 2018), and considering that the present claim was lodged on 1
March 2017, 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. In this
respect, the Chamber started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber recalled that on 16 July 2016, the parties had signed
an employment contract, valid for the 2016/2017 season, on the basis of which
the player was entitled to receive inter alia a total salary of USD 200,000 or
6,017,900,000 in the currency of Country D, payable in 4 different instalments, in
currency of Country D. In addition, the player was also entitled to receive
housing allowances as well as return flight tickets from Country D to Country B.
Player A, Country B / Club C, Country D
4
6.
In continuation, the members of the Chamber noted that the player lodged a
claim against the club, maintaining that the club, ‘a couple of days’ after the
signing of the contract on 16 July 2016, had unilaterally terminated the
employment contract without just cause, alleging it no longer needed the
services of the player. After having put the club in default and having asked for
being paid the residual value of the contract, however to no avail, the player
lodged a claim before FIFA, claiming to be awarded compensation for breach of
the employment contract
7.
Subsequently, the DRC observed that the club, in spite of having been invited to
do so, had failed to present its reply to the claim of the player. Consequently, the
Chamber deemed that the club had renounced to its right of defence and, thus,
had accepted the allegations of the player.
8.
As a consequence of the aforementioned consideration, the members of the
Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules,
a decision shall be taken upon the basis of the documents already on file, in
other words, upon the statements and documents presented by the player.
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 club in the month of July 2016 with or without just cause, and
subsequently, to determine the consequences of the early termination of the
contractual relationship by the club, or rather whether the contract had at all
been executed by the club.
10.
First of all, the Chamber noted that the parties concluded a valid and legally
binding employment contract on 16 July 2016, valid for the 2016/2017 season,
which circumstances remained uncontested by the club in the context of the
current proceedings. However, considering the circumstances described by the
player in his claim regarding the termination of the contract by the club in July
2016 just a few days after its signature, as well as the TMS information that the
2016/2017 season in Country D – for which the contract was valid – started on 27
July 2016, it appeared to the members of the Chamber that the parties, in fact,
never started the execution of the contract. Furthermore, the player’s
allegations, that he took part in training sessions and two friendly matches, were
not backed by corroborating documentary evidence and thus, could not be taken
into account.
11.
Having concluded that the employment contract signed between the player and
the club had not been executed at all, the Chamber focused its attention on the
reasons brought forward by the club – as per the uncontested claim of the player
– to dismiss the player in the month of July 2016, a few days after signing the
contract, namely that it was no longer in need of his services.
Player A, Country B / Club C, Country D
5
12.
First and foremost, the Chamber noticed that the alleged reason brought
forward by the club to dismiss the player do not clearly explain the legal or
factual basis of this decision, however only refer to an alleged lack of need of
the player’s services, only a couple of day after the conclusion of the contract.
Already at this point, the Chamber deemed it vital to outline that a legal action,
such as the termination of a contract, needs to have a clear legal basis.
Furthermore, only when there are objective criteria which do not reasonably
permit to expect the continuation of the employment relationship between the
parties, a contract may be terminated prematurely. A premature termination of
an employment contract can only ever be an ultima ratio measure.
13.
For the sake of completeness of its analysis, the Chamber wished to emphasise
that the alleged unsatisfactory performance of a player and/or the lack of need
of the player’s services, is a purely unilateral and subjective evaluation made by
the club. Said circumstances cannot, by any means, be considered as a valid
reason to terminate the contract of a player – namely not to start its execution –,
as they are the result of a purely subjective perception, not measurable in
objective criteria.
14.
On account of all the aforementioned considerations, in particular in view of the
considerations under points II./12. and II./13. above, the Chamber established
that the club had no valid reasons not to start the execution of the contract
undisputedly concluded with the player on 16 July 2016. Consequently, the
Chamber concluded that the club had to be held responsible for the legal
consequences of said termination.
15.
In this respect, the members of the Chamber first deemed it appropriate to
establish that no outstanding remuneration is due to the player, since the
contract did not start to be executed by the parties, due to the fault of the club,
and none of the contractually agreed payments had fallen due at that point in
time.
16.
Notwithstanding the foregoing, the Chamber decided that, taking into
consideration art. 17 par. 1 of the Regulations, the player is entitled to receive
from the club compensation for the unjust breach of contract.
17.
Having stated the above, the Chamber turned its attention to the calculation of
the amount of compensation payable to the player by the club 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
Player A, Country B / Club C, Country D
6
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 first of all, it 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.
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.
20.
Bearing in mind the foregoing as well as the claim of the player, the Chamber
wished to outline that, in accordance with its well-established jurisprudence in
this respect, any amount of compensation payable to the player would be due in
currency of Country D – and not in USD as per the player’s claim –, as the parties
had agreed in the contract upon the payment of the player’s remuneration in
several instalments in currency of Country D.
21.
Subsequently, the members of the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract as
from 16 July 2016 until the end of the 2016/2017 season, and noted that in said
period of time, the player was entitled to 4 instalments, in total amounting to
6,017,900,000 in the currency of Country D. In this respect, the Chamber
established that, in the absence of any monetary value in the contractual
conditions relating to the housing allowance, said benefit shall be not be taken
into consideration when calculating the residual value of the contract.
Consequently, the Chamber concluded that the amount of 6,017,900,000 in the
currency of Country D serves as the basis for the determination of the amount of
compensation due to the player for breach of contract.
22.
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, 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
7
23.
In this context, the Chamber noted that the player had signed a contract with
the club of Country B, Club F, where he earned in the period between 1
December 2016 and 24 May 2017 an amount of 71,565 in the currency of Country
B, corresponding to approximately 817,374,000 in the currency of Country D.
Therefore, the Chamber deemed that the player was able to mitigate his
damages with the total amount of 817,374,000 in the currency of Country D in
the relevant period and that, as a result, the amount of 5,200,526,000 in the
currency of Country D should be considered for the calculation of compensation.
24.
The Chamber also considered important to point out that, although the
employment contract was fully valid and enforceable, the execution of the
contract had never started. In this respect, the members of the Chamber deemed
that such circumstance should be taken into consideration in the calculation of
the amount of compensation for breach of contract, and decided – in accordance
with its well-established jurisprudence – to reduce the aforementioned amount
of 5,200,526,000 in the currency of Country D as damages the player suffered, to
one third of it, amounting to 1,733,508,666 in the currency of Country D.
25.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the
amount of 1,733,508,666 in the currency of Country D to the player, which was
to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
26.
Furthermore, taking into account the Chamber’s longstanding jurisprudence and
the player’s request, the Chamber ruled that the club must pay 5% interest p.a.
on the amount of 1,733,508,666 in the currency of Country D as from 1 March
2017, the date the claim was lodged by the player.
27.
Finally, as regards the player’s claim pertaining to air tickets, the Chamber
decided that – on the basis of the information provided by FIFA Travel and
referring to the relevant terms of the contract – the club must pay to the player
the amount of CHF 1,000 for a business class air ticket from Country D to Country
B.
28.
Additionally, taking into account the Chamber’s longstanding jurisprudence and
the player’s request, the Chamber decided that the club has to pay 5% interest
p.a. on the amount of CHF 1,000 as from 1 March 2017.
29.
Finally, the player’s claim for additional damages in the total amount of 55,000
in the currency of Country B, corresponding to the amount he did not earn with
his previous Club E, is rejected due to its lack of legal basis.
30.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the player is rejected.
Player A, Country B / Club C, Country D
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, compensation for breach of contract in the
amount of 1,733,508,666 in the currency of Country D and of Swiss Francs (CHF)
1,000, plus 5% interest p.a. as from 1 March 2017 until the date of effective
payment.
3.
In the event that the amounts due to the Claimant in accordance with the abovementioned number 2. 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.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
Player A, Country B / Club C, Country D
9
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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