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 (Switzerland), Deputy Chairman
Roy Verm eer (The Netherlands), member
Alex andra Góm ez Bruinew oud (Uruguay), member
Wouter Lam brecht (Belgium), member
Joel Talav era (Paraguay), member
on the matter between the player,
Play er A, Country B
as Claimant / Counter-Respondent
and the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country B
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 17 August 2014, the Player of Country B, Player A (hereinafter: the Claimant /
Counter-Respondent) born on 5 October 1990, and the Club of Country D, Club C
(hereinafter: the Respondent / Counter-Claimant) concluded an employment contract
(hereinafter: contract) valid for the season 2014/2015. In particular, clause 3 of the
contract establishes that the Claimant / Counter-Respondent “represent the first team
in the football locally and outside competitions from 17-8-2014 till 31-7-2015”.
2.
In this regard, it should be noted that the Claimant / Counter-Respondent was
transferred from the Club of Country B, Club F to the Respondent / Counter-Claimant
on 21 August 2014. The transfer agreement included a transfer fee of USD 65,000.
3.
According to clause 2 of the employment contract, the Claimant / Counter-Respondent
was entitled to a total remuneration of USD 325,000 net composed as follows:
- USD 100,000 “to the [Claimant / Counter-Respondent] (included transfer fee and
agent fee)”;
- USD 50,000 on 1 October 2014;
- USD 75,000 on 1 January 2015;
- USD 50,000 on 1 April 2015;
- USD 50,000, divided in ten monthly salaries of USD 5,000 each.
4.
Clause 8 of the contract stipulates that “in case of the [Claimant / CounterRespondent’s] abandonment of the team pays a penalty clause represented the
amounts received by him added to it 25% of total value of partnership”.
5.
Clause 10 establishes that the Claimant / Counter-Respondent “is required laws and
regulations in Country D”.
6.
Clause 11 holds that if the Claimant / Counter-Respondent does “not arrive daily
training will cut from his monthly salary USD 500 for each day”.
7.
Clause 13 establishes that “In case of non-compliance of [the Claimant / CounterRespondent] finishing the partnership before it time with [the Respondent / CounterClaimant] will bear the penalty clause 25% from total value”.
8.
Clause 16 of the contract establishes that “In case of conflict Football Association of
Country D is the judgement to settle the dispute”.
9.
Clause 20 stipulates that the Claimant / Counter-Respondent “has agreed to pay 50%
of his signing fee (USD 50,000) in the case of any misconduct or crime which cause of
absent of the [Claimant / Counter-Respondent] or banning him of playing for more
Player A, Country B / Club C, Country D / Club E, Country B
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than two months, also [the Respondent / Counter-Claimant] has right to terminate his
contract immediately”.
10. According to the information contained in the Transfer Matching System (TMS), the
Claimant / Counter-Respondent signed an employment contract with the Club of
Country B, Club E (hereinafter: Intervening Party) on 20 July 2015, valid from the date
of signature until 4 June 2016. According to the employment contract between the
Claimant / Counter-Respondent and the Intervening Party, the Claimant / CounterRespondent was to receive a monthly salary of 1,000.
11. On 12 June 2015, the Claimant / Counter-Respondent put the Respondent / CounterClaimant in default via email, requesting the payment of USD 275,000 within 48 hours.
12. On 17 June 2015, the Claimant / Counter-Respondent terminated the contract in
writing via email invoking just cause. According to the Claimant / CounterRespondent, “the termination is motivated by the nonpayment of the values due to
the [Claimant / Counter-Respondent] within the deadline set by the notification sent
to the [Respondent / Counter-Claimant] in June 12 2015”.
13. On 19 June 2015, the Claimant / Counter-Respondent lodged a claim against the
Respondent / Counter-Claimant before FIFA, requesting the following:
a. The amount of USD 275,000;
b. The ratification of the termination of the contract with just cause, allowing the
Claimant / Counter-Respondent to immediately negotiate with any other
football club;
c. Disciplinary sanctions imposed upon the Respondent / Counter-Claimant, as
established in Article 12 of FIFA’s Disciplinary Code.
14. Regarding the amount of USD 275,000, the Claimant / Counter-Respondent held that
“this value may be changed in case this Chamber arbitrate a higher value as
compensation for the breach of the contract”. According to the Claimant / CounterRespondent, the Respondent / Counter-Claimant failed to pay him the amounts as
stipulated in the contract. In particular, the Claimant / Counter-Respondent held that
the Respondent / Counter-Claimant failed to pay him the signing on fee of USD
100,000 and the instalments due on 1 October 2014, 1 January 2015 and 1 April 2015.
In this context, the Claimant / Counter-Respondent held that, after putting the
Respondent / Counter-Claimant in default of payment of the total amount of USD
275,000, he terminated the contract with just cause.
15. With regard to the contract termination, the Claimant / Counter-Respondent also
mentioned that a compensation should be paid by the Respondent / Counter-Claimant
in accordance with article 17 FIFA RSTP, arbitrated by the DRC, “which should not be
Player A, Country B / Club C, Country D / Club E, Country B
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less than USD 275,000, which is the value due to the [Claimant / Counter-Respondent]
until the present date”.
16. In its response of 21 July 2015, the Respondent / Counter-Claimant indicated that the
parties had “agreed to choose the Football Association of Country D to be as a referee
to resolute the dispute” in accordance with clause 10 of the contract, and thus, the
Claimant / Counter-Respondent violated the contract by resorting to FIFA.
17. According to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent
quit the team and no longer attended training sessions as from 3 June 2015 without
any reason and without informing the Respondent / Counter-Claimant. Moreover, the
Respondent / Counter-Claimant affirmed having contacted the Claimant / CounterRespondent via phone, requesting him to come back, offering to pay him the flight
ticket and the amounts due. However, according to the Respondent / CounterClaimant, the Claimant / Counter-Respondent refused to return to the Respondent /
Counter-Claimant.
18. The Respondent / Counter-Claimant further provided a document dated 10 May 2015,
allegedly signed by the Claimant / Counter-Respondent’s agent, Agent G, and in which
he confirmed having received his commission fee in the amount of USD 25,000
“through TMT company in London regarding [the Claimant / Counter-Respondent] as
part of our professional contract”.
19. In this light, the Respondent / Counter-Claimant added that quitting the training and
departing abroad is considered a breach of contract and that “it is necessitated to
cease what has been agreed on in the contracts according to articles 8, 11 and 20” of
the contract.
20. In addition, the Respondent / Counter-Claimant held that it paid the Claimant /
Counter-Respondent the following amounts:
- USD 100,000 on 20 October 2014 together with the agent’s commission;
- USD 50,000 on 23 October 2014 as “second payment of the contract of the
[Claimant / Counter-Respondent] for the season 2014-2015”;
- USD 40,000 on 5 May 2015 as salaries from 1 October 2014 until 30 April 2015.
21. In this context, the Respondent / Counter-Claimant stated that “the [Claimant /
Counter-Respondent’s] remaining dues amounted USD 110,000 and the [Respondent
/ Counter-Claimant] administration has no objection to deliver this amount of
money”.
22. In his replica, dated 20 April 2016, the Claimant / Counter-Respondent did not contest
having received USD 40,000 of monthly salaries from the Respondent / CounterClaimant.
Player A, Country B / Club C, Country D / Club E, Country B
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23. However, the Claimant / Counter-Respondent did hold that he only left the
Respondent / Counter-Claimant because it failed to comply with its other contractual
obligations, amounting to USD 275,000. In particular, the Claimant / CounterRespondent highlighted that some payments were outstanding for more than 8
months and consequently he had no choice but to terminate the contract.
24. The Claimant / Counter-Respondent denied having left the Respondent / CounterClaimant without informing it, referring to the default notice and termination letter
sent to it.
25. Moreover, the Claimant / Counter-Respondent held that the documents presented by
the Respondent / Counter-Claimant are only translations and thus do not prove
payments made to the Claimant / Counter-Respondent. The Claimant / CounterRespondent further held that, in any case, the amounts in the voucher do not
correspond to the payments in the contract (cf. point I.3) and do not indicate the
beneficiary of the payment.
26. Furthermore, the Claimant / Counter-Respondent amended his claim of 19 June 2015
and argued that an additional interest of 1% per month needs to be applied to the
claimed amount of USD 275,000, “from the date of the termination of the contract
(17 June 2015) until the date of the effective payment, as a way of compensation for
the breach of contract”.
27. On 15 August 2016, the Respondent / Counter-Claimant submitted its duplica and a
counterclaim against the Claimant / Counter-Respondent and the Intervening Party.
28. As a preliminary matter in the duplica, the Respondent / Counter-Claimant highlights
that it did not have a legal representative when it submitted its response and
therefore the correct and authoritative position of the Respondent / Counter-Claimant
in respect to the claim is the position stated in the duplica / counterclaim.
29. The duplica further includes a new challenge of FIFA’s jurisdiction in this matter,
referring again to clause 16 of the employment contract.
30. As regards the substance of the case, the Respondent / Counter-Claimant highlights
that there are two disputed facts between it and the Claimant / Counter-Respondent,
namely i) the payments of the remainder of the remuneration of the contract; and ii)
whether the Claimant / Counter-Respondent terminated the contract without just
cause.
31. Regarding the payments of the remainder of the remuneration of the contract, the
Respondent / Counter-Claimant states that the parties signed two versions of the
contract in English and Arabic and both bear the Claimant / Counter-Respondent’s
fingerprint in addition to his signature.
Player A, Country B / Club C, Country D / Club E, Country B
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32. The Respondent / Counter-Claimant provided new documents, including the “Transfer
Contract” signed by the Claimant / Counter-Respondent, the Respondent / CounterClaimant and the Claimant / Counter-Respondent’s former club, Club F dated 21
August 2014 (cf. point I.2). Referring to this Transfer Contract and the employment
contract signed between the Claimant / Counter-Respondent and the Respondent /
Counter-Claimant on 17 August 2014, the Respondent / Counter-Claimant now
maintains that, contrary to what the Claimant / Counter-Respondent stated in his
claim of 19 June 2015, the breakdown of the USD 325,000 is as follows:
a. USD 235,000 is payable to the Claimant / Counter-Respondent;
b. USD 65,000 is payable to Club F;
c. USD 25,000 is payable to the Claimant / Counter-Respondent’s agent Agent G.
33. According to the Respondent / Counter-Claimant, this means that the Claimant /
Counter-Respondent erred in his claim when he stated that he was entitled to USD
325,000 in remuneration for the duration of the contract, the correct remuneration
being USD 235,000. In light of clause 2 of the employment contract (cf. point I.3), the
Respondent / Counter-Claimant noted that the Claimant / Counter-Respondent was
only entitled to receive USD 10,000 related to the payment of USD 100,000, which
included the mentioned transfer fee and the agent fee.
34. In continuation, the Respondent / Counter-Claimant explains that on 26 August 2014
it paid Club F the agreed amount of USD 65,000.
35. Furthermore, the Respondent / Counter-Claimant delivered new evidence showing
that it paid the Claimant / Counter-Respondent a total of USD 190,000, i.e. equal to
the amounts mentioned in point 20 above.
36. With regard to the payments in cash, the Respondent / Counter-Claimant points out
that the Claimant / Counter-Respondent did not provide the details of his bank
account by alleging that he had none and insisted during the negotiation of the
contract that he be paid in cash. This is the reason why the employment contract did
not contain details of the Claimant / Counter-Respondent’s bank account, and also
why the Respondent / Counter-Claimant demanded that, in addition to the signature,
the Claimant / Counter-Respondent imprint his thumbprint next to his signature on
the contracts and the payment receipts.
37. In the event that the Claimant / Counter-Respondent were to question the
authenticity of his signature and thumbprint, the Respondent / Counter-Claimant
submitted to the State Crime Lab of Country D the Arabic and English copies of the
contract and the two above-mentioned payment vouchers. The Respondent / CounterClaimant further notes that the report issued by the Crime Lab states the following: i)
“The two thumbprints imprinted on the (…) employment contract (…) and the two
thumbprints imprinted on the two payment vouchers (…) are identical and belong to
Player A, Country B / Club C, Country D / Club E, Country B
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the same person”; and ii) “The signatures of [Claimant / Counter-Respondent] in (…)
the employment contract (…) perfectly matched his signatures (…) in the two
payment vouchers.”
38. In addition and with regard to Income Tax of Country D, the Respondent / CounterClaimant argues that Law of Country D stipulates that the income of the Claimant /
Counter-Respondent is taxable at 15%. Because the Claimant / Counter-Respondent’s
income for the duration of the contract is USD 235,000, the Respondent / CounterClaimant would be obliged to deduct USD 35,250 from the Claimant / CounterRespondent’s remuneration (15% of 235,000) and pay it to the tax authorities when
the Respondent / Counter-Claimant files its tax return. Moreover, Law of Country D
also mandates the Respondent / Counter-Claimant to withhold 10% of the amounts
due to the Claimant / Counter-Respondent. Such amount will only be released to the
Claimant / Counter-Respondent after he submits to the Respondent / CounterClaimant a certificate of clearance from income tax. In other words, the Respondent /
Counter-Claimant would have to withhold USD 23,500 (10% of 235,000).
39. In conclusion, the Respondent / Counter-Claimant claims that it has paid USD 338,750
with regard to the Claimant / Counter-Respondent’s salary, his former club and his
agent, i.e. more than what the Respondent / Counter-Claimant actually owed (cf.
point I.32). The Respondent / Counter-Claimant further provided the following
breakdown of the payments and deductions of the remuneration of the contract:
a. USD 65,000 paid to Club F;
b. USD 25,000 paid to the Claimant / Counter-Respondent’s agent, Agent G;
c. USD 40,000 as monthly salaries paid to the Claimant / Counter-Respondent
between October 2014 and April 2015;
d. USD 100,000 paid directly to the Claimant / Counter-Respondent on 20 October
2014;
e. USD 50,000 paid directly to the Claimant / Counter-Respondent on 23 October
2014;
f. USD 35,250 income tax deduction;
g. USD 23,500 income tax withholding.
40. Regarding the question of whether the Claimant / Counter-Respondent terminated
the contract without just cause, the Respondent / Counter-Claimant highlighted that
the Claimant / Counter-Respondent left the Respondent / Counter-Claimant without
prior notification on 3 June 2015. At that point, the player had never mentioned
anything concerning overdue payables or payment requests. The Respondent /
Counter-Claimant notes that the payment request did not reach it until 12 June 2015,
in which he demanded the payment of USD 275,000 within 48 hours (cf. point I.11).
41. On 14 June 2015, the Respondent / Counter-Claimant sent the Claimant / CounterRespondent a short email informing him that his desertion of the team was unlawful.
Player A, Country B / Club C, Country D / Club E, Country B
7/19
42. According to the Respondent / Counter-Claimant, on 15 June 2015, the Claimant /
Counter-Respondent sent another email to Respondent / Counter-Claimant and
proposed:
a. The immediate termination of the contract, as well as “the release of the
[Claimant / Counter-Respondent] as its athlete (issue of the ITC). Doing this, the
[Respondent / Counter-Claimant] will be released of the payment of the monthly
salary of June and July 2015”;
b. The payment of USD 275,000 within 15 days “in an account to be informed”.
43. Moreover, the Respondent / Counter-Claimant confirms that the Claimant / CounterRespondent unilaterally terminated his contract via email on 17 June 2015.
44. The Respondent / Counter-Claimant further states that in the period between 10 and
20 June 2015, it held several telephone conversations with the Claimant / CounterRespondent requesting his immediate return to Country D in order to complete the
full term of the contract. The Respondent / Counter-Claimant holds that on 22 June
2015 it emailed the Claimant / Counter-Respondent via his agent, requesting him to
return to Country D to complete the term of the contract.
45. According to the Respondent / Counter-Claimant, and given that it claims to have paid
all the moneys due to the Claimant / Counter-Respondent, the Claimant / CounterRespondent unilaterally breached the contract without just cause.
46. The Respondent / Counter-Claimant continues by arguing that, even if the Claimant /
Counter-Respondent did not receive the two payments of USD 100,000 and USD
50,000 respectively, the Claimant / Counter-Respondent did not submit any document
or evidence establishing that he had raised this issue with the Respondent / CounterClaimant prior to his email of 12 June 2015 or had provided the Respondent / CounterClaimant with the opportunity to remedy the situation.
47. The Respondent / Counter-Claimant reiterates that the Claimant / CounterRespondent left unexpectedly on 3 June 2015, signed a Power of Attorney on 10 June
2015 in Country B, and sent the Respondent / Counter-Claimant an email for the very
first time on 12 June 2015 regarding outstanding remuneration, giving the
Respondent / Counter-Claimant only 48 hours to remedy the situation without
providing a bank account to which the payment had to be remitted. Furthermore,
while the subsequent email by the Claimant / Counter-Respondent to the Respondent
/ Counter-Claimant of 15 June 2015 (cf. point I.11) proposed a solution, the Claimant
/ Counter-Respondent decided to unilaterally terminate the contract on 17 June 2015.
According to the Respondent / Counter-Claimant, this contract termination is clearly
without just cause.
Player A, Country B / Club C, Country D / Club E, Country B
8/19
48. Contrary to what is written in the duplica, in the counterclaim the Respondent /
Counter-Claimant holds that the DRC has jurisdiction to hear the counterclaim since it
is also directed against the Intervening Party.
49. Given that, according to the Respondent / Counter-Claimant, the Claimant / CounterRespondent terminated the contract without just cause, the Respondent / CounterClaimant refers to clause 8 of the contract. This clause stipulates that “in case of [the
Claimant / Counter-Respondent’s] abandonment of the team pays a penalty clause
represented the amounts received by him added to it 25% of total value of
partnership”.
50. As a result, the Respondent / Counter-Claimant requests the following:
a. To declare that the DRC lacks jurisdiction to entertain the Claimant / CounterRespondent’s claim of 19 June 2015;
b. Alternatively, to reject the Claimant / Counter-Respondent’s claim in its entirety;
c. To establish that the Claimant / Counter-Respondent unlawfully and unilaterally
terminated the employment contract without just cause;
d. The payment of USD 346,000 plus 5% interest as from 3 June 2015 until the
effective date of payment from the Claimant / Counter-Respondent and the
Intervening Party as the second Counter-Respondent broken down as follows:
i. USD 65,000 paid to the Claimant / Counter-Respondent’s former club, Club
F;
ii. USD 25,000 paid to the Claimant / Counter-Respondent’s agent;
iii. USD 40,000 corresponding to eight months of salary;
iv. USD 100,000 corresponding to the payment done on 20 October 2014;
v. USD 50,000 corresponding to the payment done on 23 October 2014;
vi. “USD 106,600 representing 25% of the total remuneration of the
contract”.
e. To hold the Intervening Party jointly and severally liable for the payment of the
above requested compensation.
51. On 3 October 2016 the Intervening Party submitted its response to the Respondent /
Counter-Claimant’s counterclaim of 15 August 2016.
52. The Intervening Party firstly holds that the Claimant / Counter-Respondent had
terminated his contract with just cause with the Respondent / Counter-Claimant, and
that he therefore was without an employment contract, when he was presented at
the Intervening Party.
53. Secondly, after the Intervening Party and the Claimant / Counter-Respondent signed
an employment contract which was supposed to last from 20 July 2015 until 4 June
2016, and for which the ITC was subsequently requested by the Intervening Party, the
Respondent / Counter-Claimant never informed FIFA that there was a labour dispute
Player A, Country B / Club C, Country D / Club E, Country B
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between the Respondent / Counter-Claimant and the Claimant / Counter-Respondent,
nor did it question the transfer at that time. Only more than a year after the ITC was
issued is the Respondent / Counter-Claimant holding the Intervening Party liable.
54. Thirdly, the Claimant / Counter-Respondent’s registration was prohibited by the
(regional) Football Federation of State H, because the Intervening Party was not
disputing professional competitions that year. As a result, the Intervening Party and
the Claimant / Counter-Respondent rescinded the employment contract.
55. The Intervening Party consequently concludes that the counterclaim against it should
be rejected, since it followed all the necessary measures to ensure that the Claimant /
Counter-Respondent was free to negotiate with another Respondent / CounterClaimant and, more importantly, since the Claimant / Counter-Respondent was never
registered with the Intervening Party.
56. In his response of 4 October 2016 to the Respondent / Counter-Claimant’s
counterclaim, the Claimant / Counter-Respondent holds that the Respondent /
Counter-Claimant’s response on the one hand, and its duplica / counterclaim are
contradictory. In particular, where the Respondent / Counter-Claimant in the response
alleges that it paid the Claimant / Counter-Respondent USD 100,000 on 20 October
2014 together with the agent’s commission (cf. point I.20), in the duplica the
Respondent / Counter-Claimant alleges to have paid the transfer fee to Club F, and
that it paid the agent directly and separately from the payment of 20 October 2014
(cf. points I.32-35 above). The Claimant / Counter-Respondent, however, argues that
he never received the USD 100,000 and that the Respondent / Counter-Claimant “only
paid [Club F] and his agent and tries to impose those payments as also made to the
[Claimant / Counter-Respondent], by making him sign a Payment Voucher”.
57. The Claimant / Counter-Respondent further questions the breakdown of payments
presented in the Respondent / Counter-Claimant’s duplica (cf. points I.39). According
to the breakdown, within two months of signing the employment contract the
Respondent / Counter-Claimant had paid “[the Claimant / Counter-Respondent] USD
215,000 out of a USD 325,000 contract”, which is “clear proof that the [Respondent /
Counter-Claimant] is trying to confuse the chamber”.
58. As regards the payment vouchers presented by the Respondent / Counter-Claimant in
the duplica and which included the Claimant / Counter-Respondent’s signature and
fingerprints (cf. points I.36-37), the Claimant / Counter-Respondent argues that these
documents cannot be considered as proof of payment because they were presented
to the Claimant / Counter-Respondent in Arabic. “In other words, it was impossible
[for the Claimant / Counter-Respondent] to imagine the content of those documents
and, as an employee of the [Respondent / Counter-Claimant], he had no other option
than sign them”.
Player A, Country B / Club C, Country D / Club E, Country B
10/19
59. Furthermore, the Claimant / Counter-Respondent denotes to the Respondent /
Counter-Claimant’s statement in the duplica that income tax needs to be deducted
from the Claimant / Counter-Respondent’s salary (cf. point I.38), and refers to clause 2
of the employment contract, which states that the total of the contract is USD 325,000
net (cf. point I.3).
60. The Claimant / Counter-Respondent reiterates that USD 275,000 out of USD 325,000
remains outstanding, that he had not been paid in accordance with the contract for a
period of at least eight (8) months and that, as a consequence, he had a just cause to
terminate the contract. In this respect, the Claimant / Counter-Respondent refers to
the Respondent / Counter-Claimant’s response of 21 July 2015, in which it recognized
that it failed to comply with its contractual obligations regarding the Claimant /
Counter-Respondent (cf. point I.21).
61. Lastly, the Claimant / Counter-Respondent refers to the Respondent / CounterClaimant’s email of 14 June 2015 (cf. point I.41) and points out that he did not
understand the Respondent / Counter-Claimant’s message. For that reason, on 15 June
2015, the Claimant / Counter-Respondent requested clarification from the Respondent
/ Counter-Claimant and “presented an agreement proposal to the case”.
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,
DRC or deciding body) 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
12 June 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. article 21 of the 2015, 2017
and 2018 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 2015, 2016 and
2018) the Dispute Resolution Chamber shall adjudicate on employment-related disputes
between a club and a player that have an international dimension.
3.
Within this context, the Chamber understood that, in principle, it would be competent
to decide on the present litigation which involves a Player of Country B, a Club of
Country D and a Club of Country B regarding an employment-related dispute.
Player A, Country B / Club C, Country D / Club E, Country B
11/19
4.
However, the Chamber acknowledged that the Respondent / Counter-Claimant
contested the competence of FIFA’s deciding bodies on the grounds that as per the
Respondent / Counter-Claimant, the parties had “agreed to choose the Football
Association of Country D to be as a referee to resolute the dispute”, in accordance
with clauses 10 and 16 of the contract.
5.
In this respect, the Chamber recalled that Clause 10 of the employment contract holds
that “(t)he second party is required laws and regulations in Country D”, while Clause 16
of the employment contract stipulates that “(i)n case of conflict Football Association of
Country D is the judgement to settle the dispute”.
6.
Having examined the relevant provisions, the Chamber came to the unanimous
conclusion that neither Clause 10 nor Clause 16 of the employment contract constitute
a clear jurisdiction clause in favour of a specific court in Country D. The DRC
interpreted Clause 10 as merely referring to the applicable law and not to any court.
In a similar vein, the Chamber established that Clause 16 is drafted in a generic
manner, and that the Football Association of Country D as such cannot be considered
an independent dispute resolution chamber. Consequently, the Chamber understood
that the parties actually never clearly and undisputedly agreed upon a specific jurisdiction.
7.
Thus, the Chamber established that the Respondent / Counter-Claimant’s objection
towards the competence of FIFA to deal with the present matter has to be rejected, and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as to the
substance and that the claim of the Claimant / Counter-Respondent is admissible.
8.
Next, 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 2015,
2016 and 2018), and considering that the present claim was lodged on 10 June 2015,
the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
9.
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.
10. The Chamber first acknowledged that the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant signed an employment contract on 17 August 2014
Player A, Country B / Club C, Country D / Club E, Country B
12/19
valid until 31 July 2015. Moreover, the Chamber recalled that on 17 June 2015 the
Claimant / Counter-Respondent terminated his contract with the Respondent /
Counter-Claimant.
11. In continuation, the Chamber established that the primary issue at stake is
determining whether the Claimant / Counter-Respondent had a just cause to
terminate the contract with the Respondent / Counter-Claimant on 17 June 2015. In
this respect, the Chamber deemed it essential to make a brief recollection of the
parties’ arguments regarding the contract termination, and in particular, determine
whether there was any outstanding remuneration due to the Claimant / CounterRespondent on the day he terminated the contract.
12. In this context, the deciding authority firstly highlighted that in accordance with
Clause 2 of the contract (cf. point I.3), the Claimant / Counter-Respondent was entitled
to a total remuneration of USD 325,000, which included “USD 100,000 to the
[Claimant / Counter-Respondent] (included transfer fee and agent fee)”.
13. However, the DRC recalled that, according to the Respondent / Counter-Claimant, the
Claimant / Counter-Respondent was personally only entitled to USD 235,000 (cf. points
I.32 and I.39). The remainder of the total remuneration of USD 325,000 was to be paid
to the Claimant / Counter-Respondent’s former club, Club F as a transfer fee (USD
65,000), and to the Claimant / Counter-Respondent’s agent (USD 25,000), as per the
Respondent / Counter-Claimant.
14. The Chamber does not follow the Respondent / Counter-Claimant’s argumentation.
The contract, and in particular clause 2 thereof, does not specifically stipulate that
part of the remuneration was to be paid by the Respondent / Counter-Claimant to the
Claimant / Counter-Respondent’s former club and his agent. Instead, the deciding
body determined unanimously that all the amounts mentioned in clause 2 of the
contract, including the “USD 100,000 to the [Claimant / Counter-Respondent]
(included transfer fee and agent fee)”, were to be paid directly by the Respondent /
Counter-Claimant to the Claimant / Counter-Respondent. In other words, the Claimant
/ Counter-Respondent was entitled to a total amount of USD 325,000 for the duration
of the contract.
15. The Chamber further called to mind that the Respondent / Counter-Claimant argued
that the income of the Claimant / Counter-Respondent is taxable at 15%, and that it
also had to withhold a further 10% of the amounts due to the Claimant / CounterRespondent pursuant to Law of Country D (cf. point I.38). As a result, according to the
Respondent / Counter-Claimant, the alleged amounts of USD 35,250 and USD 23,500
it withheld from the Claimant / Counter-Respondent’s salary cannot be considered
outstanding.
Player A, Country B / Club C, Country D / Club E, Country B
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16. On this point, the DRC unanimously disagreed with the Respondent / CounterClaimant. Clause 2 of the contract specifically holds that the Claimant / CounterRespondent was to obtain his salary in net amounts. Consequently, the Chamber
decided that any amount the Respondent / Counter-Claimant withheld for tax reasons
cannot be deducted from any alleged amount still outstanding to the Claimant /
Counter-Respondent.
17. Having determined that the Claimant / Counter-Respondent was entitled to a total
remuneration of USD 325,000 net for the duration of the contract, the Chamber then
proceeded to determine the amounts that were actually paid to him by the
Respondent / Counter-Claimant. In this light, the DRC firstly acknowledged that the
Claimant / Counter-Respondent admitted having received USD 40,000 on 5 May 2015
as salaries from 1 October 2014 until 30 April 2015 (cf. points I.20 and I.22).
18. Secondly, the deciding body took note of the two payment vouchers of USD 100,000
dated 20 October 2014 and USD 50,000 dated 23 October 2014 respectively (cf. point
I.35). Importantly, the Chamber noted that the Claimant / Counter-Respondent
admitted that he “had no other option [but to] sign them” (cf. point I.58). In this
regard, the Claimant / Counter-Respondent argued that these vouchers should not be
interpreted as proof of payment, because they were presented to him in Arabic (cf.
point I.58), a language which he did not understand. However, the Chamber referred
to its well-established jurisprudence, and reaffirmed that a party signing a document
of legal importance does so at its own responsibility. Consequently, the Chamber
concluded that the Claimant / Counter-Respondent’s arguments that the payment
vouchers should not be taken into account for being in Arabic cannot be upheld.
19. In accordance with the established in points II.17 and II.18, the Chamber concluded
therefore that the Respondent / Counter-Claimant paid the Claimant / CounterRespondent a total amount USD 190,000. Thus, it is also established that on the day
the Claimant / Counter-Respondent terminated the contract, i.e. 17 June 2015, USD
125,000 out of the contractually established amount of USD 325,000 was outstanding.
In this light, the Chamber considered that, e.g., the USD 75,000 that was to be paid
on 1 January 2015 in accordance with clause 2 of the contract (cf. point I.3) was
outstanding in its entirety on the day of contract termination.
20. Moreover, the DRC noted that according to the Respondent / Counter-Claimant, after
the Claimant / Counter-Respondent left on 3 June 2015 (cf. point I.40), the Respondent
/ Counter-Claimant requested him via phone calls to return, offering him the flight
tickets and the amounts due (cf. point I.44).
21. However, at this point the DRC pointed out that not only did the Respondent /
Counter-Claimant not pay the outstanding amounts, it did not buy the flight tickets
for the Claimant / Counter-Respondent’s return to Country D either, as it had offered.
Player A, Country B / Club C, Country D / Club E, Country B
14/19
As a consequence, the Claimant / Counter-Respondent placed the Respondent /
Counter-Claimant in default on 12 June 2015, providing it 48 hours to pay the alleged
outstanding amount of USD 275,000. Furthermore, on 15 June 2015 the Claimant /
Counter-Respondent’s lawyer contacted the Respondent / Counter-Claimant again,
proposing an amicable settlement that consisted of a termination of the contract and
the payment of the requested amount in 15 days. Finally, the Chamber referred to the
termination letter of 17 June 2015, and reiterated that, according to the Claimant /
Counter-Respondent, the termination was “motivated by the nonpayment of the
values due to the [Claimant / Counter-Respondent] within the deadline set by the
notification sent to the [Respondent / Counter-Claimant] on 12 June 2015” (cf. point
I.17).
22. In summary, the Chamber concluded that the Respondent / Counter-Claimant was in
delay of a substantial amount of the contractual value (approx. 38%) for a
considerable amount of time (e.g. the salary due on 1 January 2015 had not been
paid), and that it was provided the chance to remedy such default by the Claimant /
Counter-Respondent. As a result, the DRC unanimously determined that the
Respondent / Counter-Claimant is to be held liable for the early termination of the
employment contract with just cause by the Claimant / Counter-Respondent and
should therefore bear the consequences of its unjustified breach of the employment
contract, including the possible payment of compensation to the Claimant / CounterRespondent, in addition to any possibly outstanding amounts at the time of
termination.
23. Having established the above, and before entering the matter of the calculation of
the compensation for breach of contract payable by the Respondent / CounterClaimant, the DRC first proceeded to establish the amount of outstanding
remuneration, if any, still due to the Claimant / Counter-Respondent on the date of
the decision.
24. In this light, the deciding body reiterated that the Claimant / Counter-Respondent was
entitled to the amount of USD 325,000 for the entire duration of the contract, and
that he had received USD 40,000, USD 100,000 and USD 50,000 respectively (cf. points
II.17-18). In other words, the Claimant / Counter-Respondent had not yet received USD
135,000 from the Respondent / Counter-Claimant. However, given that the monthly
salaries of USD 5,000 each (cf. point I.3) for June and July 2015 were not yet due on
the day of the contract termination, the Chamber decided that this amount of USD
10,000 would be taken into account for the calculation of the compensation for the
unjustified breach of the employment contract by the Respondent / Counter-Claimant.
As a result, the deciding body concluded that a total amount of USD 125,000 remained
outstanding.
Player A, Country B / Club C, Country D / Club E, Country B
15/19
25. In addition, taking into consideration the Claimant / Counter-Respondent’s claim (cf.
point I.26) and bearing in mind that the Claimant / Counter-Respondent had not
presented a full breakdown of the global outstanding amount of USD 125,000, which
would have enabled the Chamber to determine the due dates of the specific financial
obligations included in the amount of USD 125,000, the Chamber decided to award
the Claimant interest at the rate of 5% p.a. on the amount of USD 125,000 as of the
date of receipt of the claim, 19 June 2015.
26. In continuation, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract payable by the Respondent / Counter-Claimant
to the Claimant / Counter-Respondent in the case at stake. In doing so, the members
of the Chamber first 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 / Counter-Respondent 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.
27. 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.
28. In this regard, the Chamber noted that clause 13 of the contract stipulated that “(i)n
case of non-compliance of [the Claimant / Counter-Respondent] finishing the
partnership before it time with [the Respondent / Counter-Claimant] will bear the
penalty clause 25% from total value” (cf. point I.7). Bearing in mind that, in the
present case, the contract had been terminated by the Claimant / Counter-Respondent
with just cause, the Chamber concluded that the aforementioned clause 13 of the
contract would not apply to the present case and no other clause was included in the
contract related to the payment of compensation by the Respondent / CounterClaimant to the Claimant / Counter-Respondent in case of a termination with just
cause by the latter.
29. As a consequence, the Chamber determined that the amount of compensation
payable by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent
had to be assessed in application of the other parameters set out in art. 17 par. 1 of
the Regulations. The DRC recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount
Player A, Country B / Club C, Country D / Club E, Country B
16/19
of compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body. In this regard, the DRC emphasized
beforehand that each request for compensation for contractual breach has to be
assessed on a case-by-case basis taking into account all specific circumstances of the
respective matter.
30. In order to estimate the amount of compensation due to the Claimant / CounterRespondent in the present case, the Chamber first turned its attention to the
remuneration and other benefits due to him under the existing contract and/or the
new contract(s), which criterion was considered to be essential. The DRC deemed it
important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it
to take into account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
31. In view of the foregoing, the DRC concluded that the residual value of the contract
amounted to two monthly salaries, namely June 2015 and July 2015. Subsequently,
the Chamber pointed out that in accordance with clause 2 of the contract, the
Claimant / Counter-Respondent was to obtain USD 50,000, divided in ten monthly
salaries of USD 5,000 each (cf. point I.3). After multiplying the figure of USD 5,000 by
two months, the Chamber concluded that the total residual value of the contract
before mitigation is USD 10,000.
32. 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 able 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
termination of contract with just cause in connection with the player’s general
obligation to mitigate his damages.
33. The Chamber recalled that, on 20 July 2015 (cf. point I.10), the Claimant / CounterRespondent concluded an employment contract with the Intervening Party, for the
period from 20 July 2015 to 4 June 2016. The Chamber then established that between
20 July 2015 and 31 July 2015 (i.e. the expiry date of the employment contract with
the Respondent / Counter-Claimant), the Claimant / Counter-Respondent would have
received a total amount of USD 111 (USD 313 / 31 x 11). Consequently, after
mitigation, the total amount of compensation due to the Claimant / CounterRespondent is USD 9,889.
Player A, Country B / Club C, Country D / Club E, Country B
17/19
34. In addition, taking into account the Claimant / Counter-Respondent’s request, the
Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant /
Counter-Respondent interest of 5% p.a. on the amount of compensation as of the
date on which the claim was lodged, i.e. 19 June 2015, until the date of effective
payment.
35. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant / Counter-Respondent
and the Respondent / Counter-Claimant are rejected.
III. Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is admissible.
2.
The claim of the Claimant / Counter-Respondent is partially accepted.
3.
The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of USD 125,000, plus 5% interest p.a. on the
said amount as from 19 June 2015 until the date of effective payment.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent,
w ithin 30 day s as from the date of notification of this decision, compensation for
breach of contract in the amount of USD 9,889 plus 5% interest p.a. on the said
amount as from 19 June 2015 until the date of effective payment.
5.
In the event that the amounts due plus interest to the Claimant / Counter-Respondent
in accordance with the above-mentioned points 3. and 4. are not paid by the
Respondent / Counter-Claimant within the stated time limit, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for consideration and
a formal decision.
6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant 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.
8.
The counterclaim of the Respondent / Counter-Claimant is rejected.
Player A, Country B / Club C, Country D / Club E, Country B
18/19
*****
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 (CAS)
Avenue de Beaumont 2
CH-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 / Club E, Country B
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