Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 3 July 2019,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
club C, Country D
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 9 February 2017, the Country B player, Player A (hereinafter: the Claimant or the
player), and the Country D club, club C (hereinafter: the Respondent) concluded an
employment contract (hereinafter: the contract), valid as from the date of its
signature until 31 January 2018.
2.
According to art. 7 of the contract, the Claimant was entitled to receive from the
Respondent, inter alia, “a monthly gross amount of EUR 805.00 [payable] by the 20th
day of the month for the previous month”.
3.
In accordance with art. 8 of the contract: “the [Respondent] undertakes: to ensure
that the [Claimant] has the conditions for training and playing in matches”.
4.
On 30 March 2017, the Claimant sent a letter to the Respondent, referring to the
art. 8 of the contract and requesting the Respondent “to immediately include the
[Claimant] in the first team trainings and the preparations for the upcoming
matches of [the Respondent]”, as he was “still not a part of the (first) team, nor ever
invited to be one”.
5.
On 24 April 2017, the Claimant put the Respondent in default of payment of the
monthly instalments of February and March 2017, in the amount of EUR 805 each.
The Claimant also requested, once again, to be “immediately included in the first
team trainings and preparations for the upcoming matches of [the Respondent]”.
6.
Subsequently, on 22 May 2017, the Claimant unilaterally terminated the contract in
writing on the basis of “non fulfilment of the contractual obligations by the
[Respondent]”.
Player A, Country B / club C, Country D
Page 2 of 12
7.
On 6 November 2017, the Claimant lodged a claim against the Respondent before
FIFA requesting outstanding remuneration and compensation for breach of contract
in the total amount of EUR 28,980, plus interest, amount broken down by the
Claimant as follows:
-
-
-
EUR 2,415 as outstanding salaries, corresponding to the monthly instalments
as from February 2017 until April 2017 in the amount of EUR 805 each, plus
interest since their respective due dates;
EUR 7,245 as compensation for breach of contract, corresponding to the
salaries as from May 2017 until January 2018, in the amount of EUR 805 each,
plus interest since the date in which the claim was lodged;
EUR 19,320 as additional compensation, calculated by the Claimant as the
sum of 24 monthly instalments of EUR 805 each, plus interest since the date
in which the claim was lodged.
8.
In his claim the Claimant held that he terminated the contract with just cause as he
“did not receive his wages for the period of three consecutive months” and as the
Respondent was no longer interested in his services as the Respondent excluded
“him from training which also constitutes a clear breach of contract”. The Claimant
further stressed that his professional career has been jeopardized since “he was not
allowed to participate in any match of the [Respondent], not even in any training,
for no reason […]”.
9.
In its reply, the Respondent rejected the Claimant’s claim sustaining that, upon
entering into the contract with the Claimant, “fulfilment of the contract obligations
became impossible due to changed circumstances”.
10.
In this regard, the Respondent explained that since 1 February 2017, it is immersed
in a procedure of compulsory settlement before the District Court in Country D.
11.
In this sense, the Respondent held that, as a consequence of being immersed in the
procedure of compulsory settlement, it did not get the license to perform in the
Premiere League of Country D during the season 2017/2018. Therefore, the
Respondent allegedly concluded verbal mutual termination agreements with all the
players, by which the Respondent allegedly “terminated the contracts with all
players since the team [that played] in the Premier league no longer existed”.
12.
Furthermore, the Respondent maintained that the Claimant did not fulfil his
contractual obligations, since he stopped “training and performing” once the
Respondent no longer competed.
Player A, Country B / club C, Country D
Page 3 of 12
13.
Moreover, and regarding the Claimant’s requests, the Respondent explained that:
a. Since the Claimant signed the Contract on 9 February 2017, he is “not entitled to
the whole monthly amount for February 2017”;
b. For the calculation of compensation, two circumstances should be taken into
account:
i.
The first one refers to the alleged jurisprudence of the Football Association
of Country D, which: “declares up to max 6 months’ salary as a reasonable
and justified amount for the compensation for breach of the contract and
consequently the [Claimant]’s Claim should be rejected”. The second one
refers to the execution of the contract, which, according to the Respondent
“actually never started”;
ii.
The amount of 19,320 EUR as additional compensation “is clearly set too
high”. In this respect, the Respondent “disputes strongly that any amount
for the additional damages is payable by the [Respondent] to the
[Claimant] because there are absolutely no such reasons for such damages”.
14.
In his replica, the Claimant denied the arguments of the Respondent, referred to his
previous argumentation and further argued that the fact of being in a procedure of
compulsory settlement is “completely irrelevant for the substance of this case”
since, according to the Respondent itself, “the ban about compulsory settlement
start was published on 1 February 2017 and the contract was signed on 9 February
2017; hence, later”.
15.
In addition, the Claimant referred to the Respondent’s argumentation regarding
the absences of the Claimant during training sessions and stressed that: “the
[Respondent] was clearly invited on numerous occasions to allow the [Claimant] to
join the team but the [Claimant] was completely ignored on each and every
instance”.
16.
In its duplica, the Respondent maintained its previous arguments and held that the
fact that the Claimant “tried to contact the [Respondent]” in order to participate in
training sessions and matches are “baseless” since the Claimant “did not prove any
of it”. In this respect, the Respondent argued that, since the Claimant “was absent
from trainings for more than two weeks, the absence of the [Claimant] was a
serious violation of the contract, which occurred even before the [Respondent]
failed to fulfil its obligations”.
Player A, Country B / club C, Country D
Page 4 of 12
17.
By means of its correspondence dated 4 September 2017 and 17 January 2019, the
Football Association of Country D confirmed that the Respondent has remained
affiliated to the Football Association of Country D and is currently participating in
organized football within the competitions of the said association.
18.
Upon request of FIFA, the Claimant stated that he did not sign a new professional
employment contract since the end of his contract with the Respondent and
declared that he joined the Country B club, club E, as an amateur and that he
“received no salary from club E or any other football club from 22 May 2017 until 31
January 2018”.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, the DRC judge took note that the present matter was
submitted to FIFA on 6 November 2017. Consequently, the DRC judge concluded
that the 2017 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber, (hereinafter: the Procedural
Rules), is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2019)
the DRC judge is competent to decide on the present matter, which concerns an
employment-related dispute with an international dimension between a Country B
player and a Country D club.
3.
Furthermore, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (edition June 2019) and
considering that the present claim was lodged in front of FIFA on 6 November 2017,
the 2016 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the 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 judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC judge
started by acknowledging the above-mentioned facts as well as the documentation
contained in the file. However, the DRC judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence,
which he considered pertinent for the assessment of the matter at hand. In
particular, the DRC judge recalled that, in accordance with art. 6 par. 3 of Annex 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 TMS.
5.
Having said this, the DRC judge proceeded with an analysis of the circumstances
surroundings the present matter, the parties’ arguments as well the documentation
on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with
which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof.
6.
First of all, the DRC judge acknowledged that, on 9 February 2017, the Claimant and
the Respondent had concluded an employment contract valid as from the date of its
signature until 31 January 2018, pursuant to which the Respondent undertook, inter
alia, to pay to the Claimant a monthly salary of EUR 805, payable “by the 20th day of
the month for the previous month”.
7.
In continuation, the DRC judge noted that, according to the Claimant, during the
course of the employment relationship, the Respondent failed to remit to him three
monthly salaries, i.e. February, March and April 2017 and excluded him from
participating in any training sessions and matches, and, therefore, after having put
it in default on 24 April 2017, he had just cause to terminate the employment
contract on 22 May 2017. In this regard, the Claimant affirmed that he had no
alternative but to terminate the contract and deemed that the Respondent should
be held liable for the early termination of said contract.
8.
In continuation, the DRC judge took note that the Respondent, for its part,
maintained that, since 1 February 2017, it is immersed in a procedure of compulsory
settlement before the District Court in Country D, and that, in view of the fact that
i) the Respondent’s office is located in Country D and ii) the contractual obligations
were to be performed in Country D, law of Country D is applicable and prevails over
any other law.
Player A, Country B / club C, Country D
Page 6 of 12
9.
In this context, the DRC judge first wished to stress that when deciding a dispute
before the DRC, FIFA’s regulations prevail over any national law chosen by the
parties. In this regard, the Chamber emphasized that the main objective of the
different FIFA Regulations is to create a standard set of rules to which all the actors
within the football community are subject to and can rely on. This objective would
not be achievable if the DRC would have to apply the national law of a specific
party on every dispute brought to it. Therefore, the DRC judge deemed that it is not
appropriate to apply the principles of a particular national law to a dispute brought
before it but rather the Regulations on the Status and Transfer of Players, general
principles of law and, where existing, the Chamber’s well-established jurisprudence.
10.
In continuation, the DRC judge noted that the Respondent affirmed that, as a
consequence of being immersed in the procedure of compulsory settlement, it did
not get the license to perform in the Premiere League of Country D during the
season 2017-2018 and that said circumstances allegedly led it to conclude “verbal
mutual termination agreements with all the players”, because, pursuant to law of
Country D, if contractual obligations become impossible to fulfil, obligations revoke.
For these reasons, the Respondent rejected the Claimant’s claim in its entirety.
11.
Furthermore, the DRC judge also observed that the Respondent affirmed that the
Claimant did not fulfil his contractual obligations, since the Claimant allegedly
stopped “training and performing” once the Respondent no longer competed.
Furthermore, the DRC judge noted that the Respondent held that “since the
[Claimant] was absent from trainings for more than two weeks, the absence of the
[Claimant] was a serious violation of the contract, which occurred even before the
[Respondent] failed to fulfil its obligations”.
12.
In light of the foregoing, the DRC judge considered that the underlying issue in this
dispute, considering the parties’ position, was to determine as to whether the
Claimant had just cause to terminate the employment contract and to determine
the consequences thereof.
13.
In this context, and in relation to the documentation and explanations provided by
the Respondent, the DRC judge recalled the basic principle of the burden of proof,
as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective burden of
proof. At this point, the DRC judge deemed it appropriate to clarify that, in the
present case, the Respondent bore the burden of proving either the payment of the
Claimant’s salaries or that it had a valid reason for not having done so.
Player A, Country B / club C, Country D
Page 7 of 12
14.
With respect to the request put forward by the Respondent to reject the claim of
the Claimant due to its “procedure of compulsory settlement”, the DRC judge
stressed that in accordance with the jurisprudence of both the DRC and the Court of
Arbitration for Sport, bankruptcy/insolvency procedures do not affect procedures in
front of the DRC. In fact, the DRC judge wished to outline that it is only requested
to address the recognition of the Claimant’s claim and not the execution of a
possible debt. What is more, the DRC judge noted that according to the
correspondence dated 4 September 2017 and 17 January 2019 of the Football
Association of Country D, the Respondent remains affiliated to the Football
Association of Country D and is currently participating in organized football within
the competitions of the said association.
15.
On account of the above, the DRC judge was of the unanimous opinion that the
Respondent cannot use its situation of insolvency, for which the Claimant holds no
liability, as an exemption to avoid complying with its financial obligations towards
the Claimant. Consequently, the DRC judge decided that the argumentation of the
Respondent cannot be followed on this point. Moreover, the DRC judge was
comfortably satisfied with this conclusion by the fact that, the Respondent
concluded a contract with the Claimant on 9 February 2017, i.e. after it had entered
into the compulsory settlement procedure on 1 February 2017.
16.
Furthermore, and concerning the Respondent’s allegations that it allegedly
concluded a mutual termination with the player and that the Claimant allegedly
stopped “training and participating” once the club no longer competed in the
Premiere League of Country D, the DRC judge observed that the Respondent had
not provided any evidence in support of its argumentation. Consequently, the DRC
judge decided to reject the Respondent’s argument in this connection.
17.
In light of the foregoing, the DRC judge concluded that, at the time the Claimant
terminated the employment contract on 22 May 2017, three monthly salaries
remained outstanding.
18.
On account of the above, in light of the persistent violations of the Respondent’s
contractually agreed financial obligations, the DRC judge came to the conclusion
that on 22 May 2017, the Claimant had just cause to unilaterally terminate the
employment contract and that the Respondent is to be held liable for the early
termination of the contract with just cause by the Claimant.
Player A, Country B / club C, Country D
Page 8 of 12
19.
Having established that the Respondent is to be held liable for the early termination
of the employment contract, the DRC judge focused his attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC judge established that the Claimant is entitled to receive from
the Respondent compensation for breach of contract, in addition to any
outstanding payments on the basis of the relevant employment contract.
20.
Along those lines, the DRC judge firstly referred to the Claimant’s request regarding
the outstanding remuneration at the time of the unilateral termination of the
employment contract. In this respect, the DRC judge concurred that the Respondent
must fulfil its obligations as per the employment contract in accordance with the
general legal principle of “pacta sunt servanda”.
21.
Consequently, and bearing in mind that the Claimant terminated his employment
contract on 22 may 2017, the DRC judge decided that the Respondent is liable to
pay to the Claimant outstanding remuneration in the amount of EUR 3,220,
pertaining to his monthly salaries of February to April 2017 as well as of May 2017,
since said month was also fully worked by the Claimant.
22.
In addition, taking into consideration the Claimant’s Claim, the DRC judge decided
to award the latter interest at the rate of 5% p.a. on the amount of EUR 3,220 as
from the respective due dates until the date of effective payment.
23.
Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC
judge decided that the Claimant is entitled to receive compensation for breach of
contract from the Respondent.
24.
In continuation, the DRC judge focused his attention on the calculation of the
amount of compensation for breach of contract due to the Claimant by the
Respondent in the case at stake. In doing so, the DRC judge firstly recapitulated
that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in
the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including,
in particular, the remuneration and other benefits due to the player under the
existing contract and/or the new contract, the time remaining on the 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
Page 9 of 12
25.
In application of the relevant provision, the DRC judge 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.
In this regard, the DRC judge established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
26.
As a consequence, the DRC judge 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. Bearing in mind the
foregoing, the DRC judge proceeded with the calculation of the monies payable to
the Claimant under the terms of the employment contract as from its termination
and concluded that he would have been entitled to receive EUR 6,440 as
remuneration had the employment contract been executed until its regular expiry
date, i.e. 31 January 2018.
27.
In continuation, the DRC judge assessed as to whether the player had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been able to reduce his loss of income. According to
the constant practice of the DRC, such remuneration under a new employment
contract(s) shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
28.
In this respect, the DRC judge observed that the player remained unemployed since
the termination of the employment contract at the basis of the present dispute until
its regular expiry, i.e. 31 January 2018. In this context, the DRC judge further noted
that, according to the information contained in the TMS, it appears that the
Claimant did not enter into a new employment relationship during the relevant
period of time. Consequently, the DRC judge decided that the Claimant was entitled
to the amount of EUR 6,440 as compensation for breach of contract, which is
considered by the DRC judge to be a fair and reasonable amount.
29.
In addition, taking into consideration the Claimant’s claim, the DRC judge decided
to award the Claimant interest at the rate of 5% p.a. as of the date of the claim, i.e.
6 November 2017, until the date of effective payment.
Player A, Country B / club C, Country D
Page 10 of 12
30.
Subsequently, the DRC judge analysed the request of the Claimant corresponding to
“additional compensation” in the amount of EUR 19,320. In this regard, the DRC
judge deemed it appropriate to point out that the request for said compensation
presented by the Claimant had no contractual basis and pointed out that no
corroborating evidence had been submitted that demonstrated or quantified the
damage suffered. Consequently, the DRC judge decided to reject the Claimant’s
request relating to “additional compensation”.
31.
The DRC decided that the claim of the Claimant is partially accepted and concluded
its deliberations by rejecting any further claim of the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 3,220, plus interest, calculated as follows:
a. 5% p.a. on the amount of EUR 805 as of 21 March 2017 until the date of
effective payment;
b. 5% p.a. on the amount of EUR 805 as of 21 April 2017 until the date of
effective payment;
c. 5% p.a. on the amount of EUR 805 as of 21 May 2017 until the date of
effective payment;
d. 5% p.a. on the amount of EUR 805 as of 22 May 2017 until the date of
effective payment.
3. The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 6,440, plus 5% interest p.a. as from 6 November 2017 until the date of
effective payment.
4. In the event that the aforementioned sums plus interest due to the Claimant in
accordance with the above-mentioned numbers 2. and 3. are not paid within the
stated time limit, 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
Page 11 of 12
5. Any further claim lodged by the Claimant is rejected.
6. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the DRC
judge of every payment received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the
CAS, a copy of which we enclose hereto. Within another 10 days following the expiry
of the time limit for filing the statement of appeal, the appellant shall file a brief
stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point
4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Player A, Country B / club C, Country D
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