Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 8 March 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
S tefano S artori (Italy ), member
Pav el Piv orav ov (Rus s ia), member
Muzam m il Bin Moham ed (S ingapore), 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
arisen between the parties
I.
Facts of the cas e
1. On 1 June 2016, the Player of Country B, Player A (hereinafter: the Claimant or the
player) and the Club of Country D, Club C (hereinafter: the Respondent or the club)
signed an employment contract (hereinafter: the contract) valid as from 7 June 2016
until 31 December 2017.
2. According to art. 3.1 the contract, the Claimant was entitled to a monthly salary of
130,000 payable on the last day of each month. Moreover, art. 3.2 stipulates that “a
monthly salary for the next season, will be raise to 160,000 if condition’s meet.
Club C remain in division 1
Club C remain between 1st to 10th place in division 1, the salary will raise to
180,000”.
3. Pursuant to art. 3.4 of the contract, the Respondent also committed to “provide the
player with 15,000 per month to go towards his monthly house’s rent”. Furthermore,
art. 3.5 of the contract provides that the Respondent had to “provide 2 x return
economy class ticket (City E / City F / City E) for the player and his wife” and, pursuant
to art. 3.7 of the contract, the Respondent committed to “bear the cost of organizing
the player a Non “B” VISA and Working Permit”.
4. Art. 7 of the contract stipulates as follows:
“[…] 7.1 Notwithstanding anything contained herein to the contrary, the Club shall be
entitled to terminate this Agreement without any liability to the Player upon the
occurrence of any of the following events:
a) The executive Committee of the Club passes a resolution to terminate the
Agreement with the Player;
b) The Club ceases to operate;
c) The Player resigns from the Club pursuant to Clause 7.2 hereof
7.2 The Player shall not be entitled to resign from the Club and/or terminate this
Agreement unless a prior written approval the Club is obtained.
7.3 The Player may at any time terminate this agreement to the new agreement from
any football club. The employee will pay compensation to Club C in the sum of
300,000.
7.4 Club C agree to pay the Player compensate for termination the contract sum of
300,000.
7.5 Whereas the Player does not meet the expected quality required by the head
coach, the company’s board shall make the decision to terminate the player
without consent”.
5. Furthermore, pursuant to art. 9 of the contract, both parties agreed that “this
contract shall be governed and construed in accordance with Law of Country D and
the parties submit to the non-exclusive jurisdiction of Courts of Country D. […] Should
there be any disputes […] both parties shall negotiate to resolve the dispute within 30
days commencing from the date the accusing party informs the other party in writing
about the dispute. If the parties fail to reach a Ministry of Justice for adjudication”.
Player A, Country B / Club C, Country D
2
6. On 4 October 2016, the Respondent sent a letter to the Claimant, by means of which
it terminated the contract and, inter alia, informed him that it “had to change the
head coach recently and we let the head coach decided the plan for the club”.
Moreover, within the same letter, the Respondent stated that it would pay the
Claimant “compensation of 300,000” by 4 October 2016.
7. On 7 October 2016, the Claimant sent a letter to the Respondent arguing that the
latter terminated the contract without just cause and requested the payment of
“605,000 (approximately USD 17,357.45) by 18 October 2016”, corresponding to: i)
390,000 as remainder of the salaries due for season 2016, corresponding to the
months of October, November and December 2016; ii) 200,000 for flight tickets; and
iii) 15,000 as accommodation allowance for the month of October 2016. Furthermore,
the Claimant requested the Respondent to regularize his work permit, which in the
meantime had expired.
8. On 1 November 2016, the Claimant sent a second letter to the Respondent, requesting
“550,000 (approximately USD 15,925.39) […] by 11 November 2016”, corresponding
to: i) 390,000 for salaries; ii) 130,000 for flight tickets; iii) 15,000 for accommodation
allowance and; iii) 20,000 as reimbursement of a fine imposed on him by the
Authorities of Country D, when he was leaving the country, for staying in the country
without a valid permit of stay.
9. On 22 November 2016, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting the amount of USD 104,591.15, broken
down as follows:
a) USD 66,824, corresponding to approximately 2,310,000, as “compensation for the
salaries until December 2017”;
b) USD 3,731, corresponding to approximately 130,000, as reimbursement of flight
tickets;
c) USD 6,456.15, corresponding to approximately 225,000, as rent allowance until
December 2017;
d) USD 574, corresponding to approximately 20,000, as reimbursement of the fine
imposed by the Authorities of Country D on the Claimant;
e) USD 27,546, corresponding to approximately 960,000, as additional compensation
equal to six monthly salaries, “with a minimum of 780,000 or approximately USD
22,381 in case this Chamber finds that the salary to be considered to the
calculation of the additional compensation shall be of 130,000”.
Furthermore, the Claimant requested to deduct the amount of 300,000,
acknowledging that such amount had already been paid by the Respondent upon
termination of the contract. Finally, the Claimant requested sporting sanctions on the
Respondent.
10. In his claim, the Claimant argued that art. 7 of the contract is a potestative
termination clause “completely disproportional, to the sole benefit of the club”. In
particular, the Claimant emphasised that, pursuant to said clause, the Respondent was
Player A, Country B / Club C, Country D
3
entitled to terminate the contract without the Claimant’s approval (cf. art. 7.4) while,
on the contrary, the Claimant needed the Respondent’s approval for terminating the
contract (cf. art. 7.2). Consequently, the Claimant argued that the termination clause
set out in the contract is invalid and, thus, the Respondent terminated the contract
without just cause.
11. Moreover, the Claimant affirmed that the Respondent, at the end of 2016, was not
relegated. Consequently, he argued that, pursuant to art. 3.2 of the contract, his
salary for the year 2017 would have amounted to 160,000.
12. In continuation, the Claimant argued that the Respondent did not provide him with
the flight tickets indicated under art. 3.5 of the contract and alleged that he had to
purchase two of such flight tickets for himself and his wife. Hence, the Claimant
requested their reimbursement.
13. Furthermore, the Claimant averred that, pursuant to art. 3.7 of the contract, it was
the Respondent’s obligation to provide him with a valid residence permit. However,
the Claimant alleged that, already before the termination of the contract by the
Respondent, his residence permit had expired and the Respondent, despite his
requests, did not extend it. As a consequence, the Claimant requested the
reimbursement of the fine imposed on him by the Authorities of Country D in that
regard, amounting to 20,000.
14. The Respondent replied to the claim only after the expiry of the deadline set by FIFA
administration, affirming that it terminated the contract in accordance with the
termination clause under art. 7.4 and 7.5 of the contract and it paid the compensation
of 300,000 set out therein.
15. Upon request of the FIFA Administration, the Claimant informed that, on 16
December 2017, he signed an employment contract with the Club of Country D, Club
G, valid as from the date of signature until 15 December 2018. According to such
contract, the Claimant is entitled to a monthly salary of 60,000, as well as to 5,000 on
a monthly basis for accommodation expenses.
II.
Cons iderations of the Dis pute Res olution Cham ber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the
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 22
November 2016. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2016; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21, par. 2 of the
Procedural Rules).
Player A, Country B / Club C, Country D
4
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 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. In continuation, 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 of the Regulations on the Status and Transfer of Players (edition 2018), and
considering that the present claim was lodged on 22 November 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. 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. First, the Chamber noted that the parties entered into an employment contract valid
as from 7 June 2016 until 31 December 2017, which entitled the Claimant to a
monthly salary of 130,000 for season 2016 and, should the club remain in first division,
of 160,000 for the next season.
6. In continuation, the members of the Chamber took note that the Claimant requested
the payment of USD 104,591.15 corresponding to:
a) USD 66,824 as “compensation for the salaries until December 2017”;
b) USD 3,731 as reimbursement of flight tickets;
c) USD 6,456.15 as rent allowance until December 2017;
d) USD 574 as reimbursement of a fine imposed by the Authorities of Country D on
the Claimant;
e) USD 27,546 as additional compensation equal to six monthly salaries.
7. Equally, the members of the Chamber observed that the Respondent submitted its
reply to the claim only after the expiry of the time limit set by FIFA. As a result, in line
with art. 9 par. 3 of the Procedural Rules as well as the Chamber’s constant
jurisprudence in this regard, the DRC decided not to admit to the file the reply of the
Respondent and established that, in accordance with art. 9 par. 3 of the Procedural
Rules, it shall take a decision on the basis of those documents on file that were
provided prior to the deadline set by FIFA, in casu, on the statements and documents
presented by the Claimant.
Player A, Country B / Club C, Country D
5
8. With the above in mind, the members of the Chamber took note that, according to
the documentation provided by the Claimant, the Respondent terminated the
contract on 4 October 2016, informing the Claimant that it would pay him
“compensation of 300,000”. Furthermore, the DRC took note that the Claimant
acknowledged receipt of the aforementioned amount.
9. In continuation, the DRC took note that, according to the Claimant, art. 7 of the
contract (cf. point I.4. above) was a potestative clause, disproportionate and to the
benefit of the Respondent only. Consequently, the Claimant argued that the
aforementioned clause was invalid and, thus, he is entitled to receive compensation
for breach of contract in accordance with art. 17 of the Regulations.
10. First, the DRC considered that it remained undisputed that the Respondent
terminated the contract on 4 October 2016 and that the main issue of the present
dispute consists in addressing the consequences of such termination and, in particular,
the applicability of art. 7 of the contract.
11. On account of the aforementioned considerations, the members of the Chamber
deemed essential to focus their attention on the clause stipulated in art. 7 of the
contract.
12. In this context, the decision-making body duly analysed the contents of said clause
and acknowledged that it clearly provides the same amount of compensation payable
in the event that either the player or the club terminate the contract for whatever
reason. In particular, the members of the Chamber emphasised that, pursuant to art.
7.3 and 7.4 of the contract, both the Claimant and the Respondent are respectively
entitled to terminate the contract at any time, by paying the amount of 300,000. As a
consequence thereof, the DRC concluded that the aforementioned termination clause
is reciprocal and respects the balance of rights amongst the parties, as it grants the
same right to terminate the contract to both the contractual parties and provides for
the same consequences. Consequently, the DRC concluded that such clause has to be
considered as valid and fully effective and, as a consequence of the termination of the
contract by the Respondent, it entitles the Claimant to a compensation of 300,000.
13. Moreover, having concluded that the contract at the basis of the dispute contains a
valid and effective compensation clause, the members of the DRC were eager to recall
that the Claimant indeed acknowledged receipt of the aforementioned compensation
of 300,000 from the Respondent.
14. On account of all the above-mentioned considerations, the Dispute Resolution
Chamber concluded that, as the Claimant received the amount provided by the
contract in the event of termination by the Respondent, he is not entitled to any
further compensation. Consequently, the Chamber decided to reject the Claimant’s
arguments in this regard.
Player A, Country B / Club C, Country D
6
15. Finally, as to the player’s claim for the reimbursement of the fine allegedly imposed
on the Claimant by the Authorities of Country D, the DRC considered that the player’s
claim in that regard lacks of contractual basis. Consequently, the members of the
Chamber concluded their deliberations by rejecting also this part of the claim, as well
as any further claim of the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
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
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
7