Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 7 March 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
S tijn Boey kens (Belgium ), member
Tom is lav Kas alo (Croatia), member
Daan de Jong (The Netherlands ), member
Elv is Chetty (S eychelles ), 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 29 July 2017, the Player of Country B, Player A (hereinafter: Claimant) and the
Club of Country D, Club C (hereinafter: Respondent) concluded an employment
contract (hereinafter: contract), valid as from 1 August 2017 until 1 August 2019.
2.
According to clause 4 of the contract, the Claimant was entitled to a yearly
remuneration in the amount of USD 160,000, payable as follows:
-
An advance payment of USD 50,000;
A monthly salary of USD 9,166 payable “at the end of every Gregorian month”.
3.
In addition, the Claimant was entitled to the following benefits:
- housing
- transportation
- insurance
- “one ticket around trip for the player and his family entire the season from
Country B to Country D to Country B.”
4.
Clause 4.9 of the contract establishes that “The club can cancel this contract at any
time after pay one month salary for player.”
5.
On 25 January 2018, the Respondent sent a notice to the Claimant stating that it
terminated the contract relying on clause 4.9 of the contract. The Respondent
further informed the Claimant that, according to said provision, it would pay one
monthly salary to the Claimant and that his “full dues will be settled until the date
of termination of the contract.”
6.
In his correspondence dated 8 May 2018 addressed to the Respondent, the
Claimant stressed that the unilateral termination by the Respondent had caused
him sporting and financial damages and proposed to reach an amicable settlement.
7.
On 14 August 2018, the Claimant lodged a claim against the Respondent before
FIFA maintaining that the Respondent unilaterally terminated the contract without
just cause and he asked to be awarded the total amount of USD 573,170 as
compensation for breach of contract, which was detailed follows:
-
USD 274,170 corresponding to the salaries allegedly due as from 25 January
2018 until 1 August 2019;
USD 54,000 corresponding to housing allowances as of 25 January 2018 until 1
August 2019;
USD 18,000 corresponding to car benefits as of 25 January 2018 until 1 August
2019;
USD 18,000 corresponding to insurance coverage and medical costs as of 25
January 2018 until 1 August 2019;
USD 9,000 corresponding to flights tickets for the Claimant and his family as of
25 January 2018 until 1 August 2019;
USD 200,000 as moral damages.
Player A, Country B / Club C, Country D
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8.
In his claim, the Claimant argued that clause 4.9 of the contract does not comply
with FIFA Regulations, as it can be invoked by the Respondent only, at any time
and does not provide for a genuine compensation. Therefore, the Claimant held
that clause 4.9 cannot be considered valid and that the Respondent terminated the
contract without just cause.
9.
In reply to the Claimant’s claim, the Respondent acknowledged having terminated
the contract according to clause 4.9 and having remitted to the Claimant one
monthly salary as compensation in cash.
10.
In spite of having been invited to do so, the Claimant has not commented on the
Respondent’s position.
11.
On 31 January 2019, the Claimant signed a new employment contract with the Club
of Country B, Club E, valid as from 31 January 2019 until 30 June 2019, entitling
him to a remuneration of EUR 2,628 per month.
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA on
14 August 2018. Consequently, the 2018 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition June 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
(edition June 2018), and considering that the present claim was lodged on 14
August 2018, the June 2018 edition of the said Regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
Player A, Country B / Club C, Country D
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4.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect, the
members of the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation on file. However, the DRC
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. Moreover, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching
System (TMS).
5.
First of all, the DRC acknowledged that, on 29 July 2017, the Claimant and the
Respondent concluded an employment contract valid as from 1 August 2017 until 1
August 2019.
6.
In this regard, the DRC recalled that according to clause 4 of the contract, the
Respondent undertook to pay to the Claimant a yearly remuneration in the
amount of USD 160,000 payable by means of an advance payment of USD 50,000 as
well as a monthly salary of USD 9,166 to be paid “at the end of every Gregorian
month.”
7.
In continuation, the members of the Chamber noted that, by means of a letter
dated 25 January 2018 remitted to the Claimant, the Respondent unilaterally
terminated the contract invoking a contractual termination clause in accordance
with which the Respondent could put an end to the employment relationship at
any time against payment of one monthly salary to the Claimant.
8.
What is more, the DRC acknowledged that the Claimant lodged a claim against the
Respondent, arguing that the aforementioned termination clause had to be
considered invalid and that, as a consequence, the Respondent terminated the
contract without just cause and that he was entitled to receive compensation for
breach of contract.
9.
Subsequently, the Chamber took into consideration that, in its reply, the
Respondent acknowledged having terminated the contract by means of its
termination notice dated 25 January 2018 in accordance with clause 4.9 of the
contract. The members of the Chamber further noted that the notice of
termination did not include any reason for the premature termination of the
contract.
10.
At this stage, in order to be able to establish, first and foremost, as to whether, as
claimed by the Claimant and denied by the Respondent, the latter terminated the
employment contract without just cause, the Chamber turned its attention to art.
4.9 of the employment contract, which was invoked by the Respondent in its
defence.
Player A, Country B / Club C, Country D
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11.
As stated above, according to clause 4.9 of the employment contract “The club can
cancel this contract at any time after pay one month salary for player.”
12.
In this respect, the Chamber agreed that it could not accept said clause as being
valid, as it provides for a termination right to the benefit of the Respondent only,
even though according to the same clause the Claimant was entitled to receive one
monthly salary by way of compensation. In addition to the unbalanced character of
clause 4.9, the DRC stressed that according to the wording of said clause, such right
could be exercised by the Respondent at any time and apparently without any
reason for termination, which clearly contravenes with the principle of
maintenance of contractual stability as set out in Chapter IV of the Regulations.
13.
Therefore and taking into consideration the Chamber’s constant jurisprudence in
this regard, the Chamber decided that the Respondent could not legitimately put
an end to the contractual relationship with the Claimant by invoking clause 4.9 of
the employment contract. Consequently, the Chamber rejected the Respondent’s
argument in this respect.
14.
Having established the above, the Chamber took into account that neither in the
notice of termination nor during the proceedings in front of FIFA had the
Respondent presented any reasons as to why it terminated the contract.
15.
Therefore and taking into account the Chamber’s longstanding jurisprudence in
this respect, the members of the Chamber decided that the Respondent had no just
cause to unilaterally terminate the contract and that, as a result, the Respondent is
to be held liable for the early termination of the employment contract without just
cause on 25 January 2018.
16.
Subsequently, the Chamber turned its attention to the consequences of the early
termination of the contract without just cause by the Respondent.
17.
Having said that, on account of the above, the DRC decided that in accordance
with art. 17 par. 1 of the Regulations the Claimant is entitled to receive
compensation for breach of contract from the Respondent.
18.
In this context, the Chamber outlined that, in accordance with the said provision,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other 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.
Player A, Country B / Club C, Country D
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19.
In application of the relevant provision, the DRC held that it first of all had to
clarify whether the pertinent employment contract contained a clause, by means of
which the parties had beforehand agreed upon an amount of compensation
payable by the contractual parties in the event of breach of contract. In this regard,
taking into account the consideration under point II./12. above, the DRC
established that no such compensation clause was included in the employment
contract that could be taken into consideration in the matter at stake.
20.
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.
21.
The DRC took into account that in his calculation of the amount of compensation,
the Claimant included, inter alia, salaries and fringe benefits calculated as of the
date of the termination of the contract, i.e. 25 January 2018, until the original date
of expiry of the contract.
22.
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 as
from its early termination until its regular date of expiry. In this respect, the DRC
took into account that as from 25 January 2018 until 31 July 2018, the Claimant
would have earned USD 64,162 in salary, keeping in mind that USD 50,000 for the
first season was payable in advance when the player arrived at the club and that
the Claimant had not indicated that such advance payment, or any other payment
due prior to 25 January 2018 for that matter, had remained unpaid. In addition,
the Chamber took into account that according to the contract the Claimant would
have been entitled to an income of USD 160,000 for the second season.
23.
At this stage, the Chamber wished to stress that in the absence of any monetary
value in the contractual conditions relating to fringe benefits such as housing or
transportation and of any documentary evidence in this connection (cf. art. 12 par.
3 of the Procedural Rules), no such fringe benefits can be taken into consideration
in the calculation of the amount of compensation.
24.
Consequently, the Chamber concluded that the remaining value of the contract as
from its early termination until the regular expiry of the contract amounts to USD
224,162 and that such amount shall serve as the basis for the final determination of
the amount of compensation for breach of contract.
25.
In continuation, while referring to art. 17 par. 1 ii. of the Regulations and stressing
that the early termination of the contract in the matter at hand is not due to
overdue payables, 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
Player A, Country B / Club C, Country D
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compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
26.
In this regard, the Chamber took note that according to the information available
in the TMS, the Claimant had signed a new employment contract with the Club of
Country B, Club E, valid as from 31 January 2019 until 30 June 2019, entitling him
to a remuneration in the total approximate amount of USD 15,000 corresponding
to five monthly salaries.
27.
In addition, the Chamber took into account that it has remained uncontested that
the Claimant already received one monthly salary from the Respondent in this
context, i.e. the amount of USD 9,166.
28.
Taking into account all the aforementioned elements as well as the specificities of
the matter at hand, the DRC decided that the Respondent is liable to pay to the
Claimant the amount of USD 200,000 as compensation for breach of contract.
29.
In addition, as regards the Claimant’s claim pertaining to air tickets, on the basis of
the information provided by FIFA Travel and referring to its jurisprudence, the
Chamber decided that the Respondent must pay to the Claimant the amount of
CHF 540 for 1 air ticket to return back home.
30.
Equally, in the absence of any monetary value in the contractual condition relating
to insurance coverage and of any documentary evidence relating to said coverage
and medical costs (cf. art. 12 par. 3 of the Procedural Rules), the Chamber had to
reject the Claimant’s claim amounting to USD 18,000 relating to these items.
31.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for moral damages in the amount of USD 200,000. In this regard, the
Chamber deemed it appropriate to point out that the request for said
compensation presented by the Claimant had no legal or regulatory basis and
pointed out that no corroborating evidence had been submitted that
demonstrated or quantified the damage suffered.
32.
Therefore, the Chamber decided to reject the Claimant’s claim relating to moral
damages.
33.
Finally, the Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are rejected.
34.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
Player A, Country B / Club C, Country D
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35.
In this regard, the Chamber established that, in virtue of the aforementioned
provision, it has competence to impose a sanction on the Respondent. More in
particular, the DRC pointed out that, against clubs, the sanction shall consist in a
ban from registering any new players, either nationally or internationally, up until
the due amount is paid and for the maximum duration of three entire and
consecutive registration periods.
36.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective
on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
37.
Finally, the Chamber recalled that the above-mentioned sanction will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
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 compensation for breach of
contract in the amounts of USD 200,000 and CHF 540.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under point 2 above.
5.
The Respondent shall provide evidence of payment of the due amounts in
accordance with point 2 above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).
6.
In the event that the amounts due in accordance with point 2 above are not paid
by the Respondent w ithin 45 day s as from the notification by the Claimant of the
Player A, Country B / Club C, Country D
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relevant bank details to the Respondent, the Respondent shall be banned from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
7.
The ban mentioned in point 6 above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
8.
In the event that the aforementioned sums are still not paid by the end of the ban
of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 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:
Emilio García Silvero
Chief Legal Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
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