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 December 2017, the Player of Country B, Player A (hereinafter: Claimant) and
the Club of Country D, Club C (hereinafter: Respondent) concluded an employment
contract valid as from 29 December 2017 until 28 December 2019.
2.
According to article 9 of the said contract, the Claimant was entitled to receive a
monthly remuneration of 55,480.
3.
According to the Claimant, he was, inter alia, also entitled to a signing-on fee of
USD 60,000. In this regard, the Claimant held having only received from the
Respondent the amount of USD 33,000. The Claimant further held that he was
entitled to receive 1 round-trip air ticket to Capital E (Country B) per year.
4.
On 5 August 2018, the Claimant asked the Respondent in writing to pay the amount
of USD 27,000 corresponding to the balance of the alleged signing-on fee within 10
days.
5.
On 26 August 2018, the Claimant asked the Respondent in writing to send him a
“ticket” in order for him to return to Country D and he reminded the Respondent of
the allegedly outstanding part of the signing-on fee.
6.
On 4 September 2018, the Claimant sent another default notice to the Respondent
requesting to be paid the amount of USD 5,000 corresponding to his salaries of July
and August 2018 within 15 days and reminding the Respondent that it had not yet
paid the amount of USD 27,000 and sent the airline ticket.
7.
On 21 September 2018, as the Respondent allegedly had not fulfilled its obligations
following his default notices, the Claimant terminated the employment contract in
writing.
8.
On 22 September 2018, the Claimant lodged a claim against the Respondent before
FIFA maintaining that he had just cause to terminate the employment contract and
asked to be awarded the total amount of USD 72,000, which was detailed follows:
-
USD 27,000 corresponding to the balance of the alleged signing-on fee of
USD 60,000;
USD 45,000 corresponding to 18 monthly salaries of USD 2,500 each as from
July 2018 until December 2019.
9.
According to the Claimant, the Respondent had proposed to terminate the
employment contract by mutual agreement, which he refused.
10.
The Claimant argued that he had just cause to terminate the employment contract
considering that the Respondent, despite having been put in default, did not pay
him (i) part of the signing-on fee, (ii) two monthly salaries and (iii) did not provide
him with a flight ticket to return to the Respondent.
Player A, Country B / Club C, Country D
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11.
The Respondent replied to the claim acknowledging having paid “regularly” the
Claimant’s salaries until the end of the local season in June 2018 as well as “more
than half of signing-on fee” in the amount of USD 33,000.
12.
Moreover, the Respondent argued that, since the beginning of the employment
relationship, the Claimant has been able to present himself and participate in only 7
matches out of the 20 played by the Respondent. In this respect, the Respondent
submitted a list of the minutes played by the Claimant. In its argumentation, the
Respondent also questioned the Claimant’s professionalism, as he complained about
several injuries and illnesses he allegedly suffered. In this regard, the Respondent
underlined that it has paid for several medical bills on behalf of the Claimant.
13.
Furthermore, the Respondent pointed out that the Claimant left the club during 25
consecutive days in April 2018 without authorization and that he has been warned
for his “indiscipline and poor performance” and sanctioned financially in this
respect.
14.
What is more, the Respondent acknowledged having offered to the Claimant to
amicably terminate the employment contract, which he refused.
15.
The Respondent requested that the claim be rejected in full arguing that the
Claimant had acted in breach of his contractual obligations deliberately and
intentionally since the beginning of the employment contract. In this regard, the
Respondent submitted a payment receipt dated 5 May 2018 signed by the Claimant,
in which the Claimant acknowledged having received the amount of USD 500 as
monthly salary for April 2018 with the note “this serves as the final warning for your
indiscipline & poor performance”.
16.
In his replica, the Claimant rejected the Respondent’s argument related to his
participation in matches considering that he was at the disposal of the coach.
17.
In addition, the Claimant confirmed that he left Country D for Country B to undergo
medical treatments and stressed that he was in fact injured and he made several
medical check-ups both in Country D and Country B.
18.
Furthermore, the Claimant pointed out that he did not understand the warning
notice on the receipt of payment, since it was drafted in English and he underlined
that the Respondent would have needed to put him in the position to present his
defence.
19.
The Claimant insisted on the fact that the Respondent did not react to his default
notices but instead offered him to terminate the employment contract by mutual
consent. The Claimant further referred to article 14bis of the Regulations on the
Status and Transfer of Players related to the termination of contract with just cause
for outstanding salaries.
20.
In its duplica, the Respondent reiterated its previous argumentation regarding the
matches in which the Claimant participated. In this regard, the Respondent stressed
Player A, Country B / Club C, Country D
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that the Claimant showed a lack of effort and diligence even when he was fielded.
In this regard, the Respondent further stated that the medical documents it
presented show that the Claimant’s alleged ailments did not exist and that, thus, he
had no reason not to properly perform his duties.
21.
Moreover, the Respondent rejected the Claimant’s argument related to his right of
being heard for the alleged “indiscipline”, since he did not provide for the legal
basis of such argument. The Respondent further rejected the Claimant’s argument
relating to the English language of the relevant receipt.
22.
Finally, the club considered that it could not continue the employment relationship
with the player because of his “unacceptable behaviour and poor performance (…)
from day one”.
23.
The Claimant informed FIFA that he had not signed any new employment contract
following the early termination of the contract with the Respondent.
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 22 September
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 22 September 2018, the
June 2018 edition of the said Regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
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
Player A, Country B / Club C, Country D
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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.
Having established the above, the Chamber acknowledged that, on 29 December
2017, the Claimant and the Respondent concluded a contract valid as from its date
of signature until 29 December 2019 and according to which the Claimant was
entitled to receive a monthly salary of 55,480.
6.
Furthermore, the DRC took into consideration that the Claimant alleged that he was
also entitled to a signing-on fee of USD 60,000, of which he acknowledged having
received USD 33,000, and to 1 round-trip air ticket to Capital E per year. In this
regard, the members of the DRC observed that the contract submitted by the
Claimant along with his statement of claim does not include such entitlements.
However, the DRC took into account that the Respondent acknowledged that it paid
USD 33,000 relating to more than half of the signing-on fee to the Claimant and
that it had not denied that the Claimant was entitled to the other benefits referred
to by the latter, in particular, an air ticket and a monthly salary of USD 2,500.
7.
At this stage, the DRC duly noted that, according to the information available in the
TMS, the Respondent uploaded another document referred to as “Football service
contract Agreement” signed by both the Claimant and the Respondent on 28
December 2017 with a 2 years’ duration as from the date of signature. According to
said “Football service contract Agreement”, the Claimant was entitled to (i) a yearly
remuneration of USD 30,000 payable in monthly salaries of USD 2,500, (ii) a signingon fee of USD 60,000, no due date for which was indicated, and (iii) one round-trip
air ticket per year to Capital E.
8.
In light of the above and the fact that from the parties’ submissions it can be
concluded that both parties relied on the aforementioned “Football service contract
Agreement” in their argumentation, the DRC decided to take into consideration the
“Football service contract Agreement” uploaded in the TMS (hereinafter:
employment contract) as the relevant employment contract for the assessment of
the present matter.
9.
In continuation, the Chamber observed that the Claimant requested the Respondent
twice, in August 2018, in writing to pay the remainder of the signing-on fee and to
send him an air ticket. In addition, the DRC took into account that, on 4 September
2018, the Claimant put the Respondent in default of payment of his salary for July
and August 2018 setting a 15 days’ time limit in order for the Respondent to comply
with its financial obligations. In the same correspondence, the Claimant reminded
the Respondent that the remainder of the signing-on fee and the air ticket were still
due.
Player A, Country B / Club C, Country D
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10. In addition, the members of the Chamber took into account that the Claimant
lodged a claim against the Respondent, maintaining that the Respondent had not
reacted to his default notices and that he, thus, terminated the employment
contract with just cause on 21 September 2018 on the basis of art. 14bis of the
Regulations.
11. Subsequently, the members of the Chamber noted that the Respondent, for its part,
held that it had regularly paid the Claimant’s remuneration until the end of the local
season in June 2018 and that the Claimant had been absent in April 2018 without
authorisation. Moreover, according to the Respondent, the Claimant had
participated in a few matches only. Furthermore, the Respondent held that the
Claimant had not shown effort and diligence in the execution of his obligations
since the start of the employment relationship and that, thus, he had acted in breach
of his contractual obligations.
12. Having established the above, the members of the Chamber took into account that
the Respondent did not deny that it had not paid the Claimant’s monthly salaries of
July and August 2018 and part of the signing-on fee. In addition, the Respondent
did not contest that it had not provided the Claimant with an air ticket and
acknowledged that it had proposed to the Claimant to terminate the contract by
mutual agreement.
13. In addition, reverting to the argumentation put forward by the Respondent in its
defence, the DRC highlighted that the alleged unauthorized absence of the
Claimant and warning dated back to April 2018 and, thus, do not appear to be
related to the period of time in which the Respondent was in default of its
contractual obligations towards the Claimant, i.e. as of July 2018 with regard to the
Claimant’s salaries and bearing in mind that a signing-on fee typically is paid at the
beginning of the employment relationship. Consequently, the DRC considered such
argument as irrelevant.
14. In addition, the members of the Chamber agreed that the Claimant’s alleged low
performance or alleged non-professionalism cannot be considered valid reasons not
to pay the Claimant’s salary.
15. On account of the above, the Chamber concluded that the Respondent failed to pay
without valid reason the Claimant’s remuneration in the total amount of USD
32,000, consisting of USD 27,000 relating to the signing-on fee and USD 5,000
relating to the monthly salaries of July and August 2018.
16.
In addition, bearing in mind the consideration under point I./6. above, the Chamber
concluded that the Claimant had duly proceeded in accordance with art. 14bis par. 1
of the Regulations, which establishes that the creditor (player or club) must have put
the debtor club in default in writing and have granted a deadline of at least 15 days
for the debtor club to comply with its financial obligation.
Player A, Country B / Club C, Country D
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17.
Therefore, on the basis of art. 14bis par. 1 of the Regulations as well the DRC’s
longstanding jurisprudence, the Chamber decided that the Claimant had a just cause
to terminate the employment contract on 21 September 2018.
18. Consequently, in application of the principle of pacta sunt servanda, the Chamber
established that the Respondent must pay the amount of USD 32,000 to the
Claimant as outstanding remuneration.
19. Moreover, the Chamber observed that, in addition to the payment of outstanding
salaries, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is
entitled to receive from the Respondent compensation for breach of contract on the
basis of the relevant employment contract.
20. In continuation, the Chamber outlined that, in accordance with 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.
21. In application of the relevant provision, the members of the Chamber held that they
first of all had to clarify whether the pertinent employment contract contained a
clause, by means of which the parties had beforehand agreed upon a compensation
payable by the contractual parties in the event of breach of contract. In this regard,
the DRC established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
22. In continuation, the members of the Chamber recalled the content of art. 17 par. 1 i
of the Regulations, according to which in case a player did not sign any new contract
following the termination of his previous contract, as a general rule, the
compensation shall be equal to the residual value of the contract that was
prematurely terminated.
23. In this regard, the DRC noted that the Claimant did not sign any new contract during
the relevant period of time, which circumstance appears to be in line with the
information available in the TMS, and was, therefore, not able to mitigate his
damages.
24. As a result, in order to establish the compensation to be paid by the Respondent, the
Chamber took into account the remuneration due to the Claimant in accordance
with the employment contract as from the moment of its early termination, i.e. as
from 21 September 2018, until its regular date of expiry on 28 December 2019. The
DRC pointed out that the contract would thus have run for 16 months more, during
which time the Claimant would have earned the total amount of USD 40,000.
Player A, Country B / Club C, Country D
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Consequently, the DRC established that the remaining value of the contract as from
its early termination until its regular expiry amounts to USD 40,000.
25. In view of all of the above, the DRC decided that the Respondent must pay the
amount of USD 40,000 to the Claimant as compensation for breach of contract.
26. 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.
27. In this regard, the Chamber pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban 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.
28. Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts 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.
29. Finally, the Chamber recalled that the above-mentioned ban 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 accepted.
2.
The Respondent, Club C, has to pay to the Claimant outstanding remuneration in the
amount of USD 32,000.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of USD 40,000.
Player A, Country B / Club C, Country D
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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 points 2. and 3. above.
5.
The Respondent shall provide evidence of payment of the due amounts in
accordance with points 2. and 3. 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 points 2. and 3. above are not
paid by the Respondent w ithin 45 day s as from the notification by the Claimant of
the 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.
*****
Player A, Country B / Club C, Country D
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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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