Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 April 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
John Bramhall (England), member
Jon Newman (USA), member
Taku Nomiya (Japan), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 12 February 2012, the player from country B, Player A (hereinafter: player
or Claimant), and the club from country D, Club C (hereinafter: club or
Respondent), signed an employment contract (hereinafter: the contract), valid
from 12 February 2012 until 12 December 2013.
2.
According to Art. 6.1 of the contract, the club undertakes to pay the player
USD 14,000 as monthly salary.
3.
In addition, according to Art. 6.2 of the contract, the club undertakes to pay
the player, inter alia, the following amounts as bonuses:
- “A bonus for each won match in the Championship of country D –
From 2.000 (two) - to 7.000 (seven) thousand USD”;
- USD 6,000 for every victory in the AFC Champions League;
- USD 10,000 for winning the Championship of country D.
- USD 10,000 for reaching the semi-finals of the AFC Champions League.
4.
Art. 6.3 of the contract refers to Appendix 1, Art.1.1. of which defines the
details regarding the bonus payments as follows:
“The award for a victory is paid to football players according to reports
of matches: Players of a starting lineup are awarded according to played
time and the contribution to result of game to 100% from the sum
specified in item 6.3. The given contract;
The Players of spare structure entered in the minutes of a match, but not
left the game, are awarded at the rate of 30%;
The Players participating in game from spare structure, are awarded
according to playing time and the contribution to result of game at the
rate 50%;
The Players who left on replacement, and, turned a match outcome, are
awarded at the discretion of a club management;
The Players who have left on replacement, but not strenghthened game
and played below level, are awarded to 30% or awarding lose;
The Players who have left on replacement (tactical replacement), are
awarded to 30%;
The award at a rate of 100% from the initial sum declared at signing
contract is paid to Players of a national team of country D.”
5.
Between 4 January and 15 January 2013, the player sent five default notices to
the club requesting payment of the partial salaries of March until October
2012, the salaries of November and December 2012 as well as several bonus
payments.
6.
On 18 January 2013, the player terminated the contract unilaterally invoking
non-compliance of the club with its financial duties.
Player A, country B / Club C, country D
Page 2 of 11
7.
On 21 January 2013, the player lodged a claim in front of FIFA maintaining
that the club is to be held liable for the early termination of the contract and
he requested to be awarded the following monies:
a) USD 61’049 as total amount of outstanding salaries:
- USD 2,840 corresponding to the partially unpaid salary of February
2012 plus 5 % interest as of 1 March 2012;
- USD 2,240 corresponding to the partially unpaid salary of March 2012
plus 5 % interest as of 1 April 2012;
- USD 2,240 corresponding to the partially unpaid salary of April 2012
plus 5 % interest as of 1 May 2012;
- USD 2,240 corresponding to the partially unpaid salary of May 2012
plus 5 % interest as of 1 June 2012;
- USD 2,240 corresponding to the partially unpaid salary of June 2012
plus 5 % interest as of 1 July 2012;
- USD 2,240 corresponding to the partially unpaid salary of July 2012
plus 5 % interest as of 1 August 2012;
- USD 2,240 corresponding to the partially unpaid salary of August 2012
plus 5 % interest as of 1 September 2012;
- USD 2,240 corresponding to the partially unpaid salary of September
2012 plus 5 % interest as of 1 October 2012;
- USD 6,400 corresponding to the partially unpaid salary of October
2012 plus 5 % interest as of 1 November 2012;
- USD 14,000 corresponding to the salary of November 2012 plus 5 %
interest as of 1 December 2012;
- USD 14,000 corresponding to the salary of December 2012 plus 5 %
interest as of 1 January 2013;
- USD 8,129 corresponding to the pro-rata salary of January 2013 plus 5
% interest as of 19 January 2013.
b) USD 41,500 as outstanding bonuses plus 5% interest as of 19 January 2013;
c) USD 154,000 as compensation for breach of contract plus 5% interest as of
19 January 2013 (11 months x USD 14,000).
8.
The total bonus payment of USD 41,500 was detailed by the player as follows:
- USD 10,000 for the victory in the Cup of country D in 2012;
- USD 10,000 for reaching the semi-finals in the AFC Champions League;
- USD 4,500 for the victory in the game against Club E on 21 June 2012;
- USD 6,000 for the victory in the game against Club F on 26 June
2012;
- USD 3,000 for the victory in the game against Club G on 1 July 2012;
- USD 2,000 for the victory in the game against Club H on 19 October
2012;
- USD 2,000 for the victory in the game against Club I on 6 November
2012;
- USD 2,000 for the victory in the game against Club J on 17 November
2012;
- USD 2,000 for the victory in the game against Club K on 21 November
2012.
Player A, country B / Club C, country D
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9.
In his arguments, the player stated that he was not invited to the team’s preseason training camp in January 2013. Furthermore, in his default notices, he
offered his services to the club.
10.
In addition, the player argued that the persistent non-compliance of the club
with its financial duties constitutes a just cause to unilaterally terminate the
contract.
11.
In its answer to the claim, the club held that the contract was not terminated,
since the termination “shall be made in accordance with the Labor Code of
the Republic of country D” and that the player should have returned to the
club on 15 January 2013 after vacation. Furthermore, the club acknowledged
having debts towards the player, without specifying an amount, and offered
to pay the outstanding amount if the player collects it in country D. In
addition, the club submitted a letter, dated 21 January 2013, with an
invitation to the player to the training camp.
12.
Moreover, the club presented a letter, dated 21 January 2013, whereby the
club informed the player about an income tax deduction of 22% regarding
salaries and bonuses. In the same letter, the club stated that the outstanding
bonuses were paid to a “personal plastic card” issued by a bank.
13.
In his replica, the player upheld his position and pointed out that the club
excluded him from the first team by not taking him to the training camp in
January 2013 and that the club was no longer interested in his services.
Furthermore, the player denies having received a letter with an invitation to
the club’s training camp and he points out that the letter presented by the
club is dated 21 January 2013, thus after the training camp had ended.
14.
In addition, the player stressed that the club did not deny its debt towards him
and that it has not specified any amounts it allegedly already remitted to him,
nor did it deliver any proof of payments made to him.
15.
Furthermore, the player pointed out that he never had a bank account or a
“plastic card” in country D and that he therefore has not received the alleged
payments. In addition, the player pointed out that there is no evidence of any
tax payments that were allegedly deducted from his salary.
16.
In its duplica, the club argued that it is common that not every player is invited
to the training camp, the purpose of such camp being “to hold reviewing
training of young players and invited players”. The club further asserted that
it never declared that the player was not needed anymore. Therefore, the club
held that the player should have fulfilled his contractual duties and performed
his work after the vacation.
17.
In addition, the club acknowledged a debt of USD 21,622.37 towards the
player, consisting of unpaid salaries for November 2012, December 2012 and
January 2013, and USD 10,000 as unpaid bonuses for the victory in the Cup of
Player A, country B / Club C, country D
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country D competition. Furthermore, the club insisted that salary and bonus
payments were tax-imposed (with a rate of 22%) and, therefore less than USD
14,000 per month was paid to the player.
18.
The player informed FIFA that he remained unemployed during the period of
time between 18 January 2013 until 12 December 2013.
II.
Considerations of the Dispute Resolution Chamber
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 matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 21 January 2013. Consequently, the Rules governing the procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
2012; hereinafter: Procedural Rules) are 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 2015) 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 from country B and a club from
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 2015), and considering that the present claim was lodged on
21 January 2013, the 2012 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.
In this respect, the Chamber recalled that, on 12 February 2012, the parties
had signed an employment contract as well as an appendix, both valid as from
12 February 2012 until 12 December 2013.
Player A, country B / Club C, country D
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6.
In continuation, the members of the Chamber noted that the Claimant lodged
a claim against the Respondent maintaining that he had terminated the
employment contract with just cause on 18 January 2013, after previously
having put the club in default, since the Respondent allegedly had failed to
pay the Claimant’s remuneration. In this respect, the Claimant submits that
parts of the salaries of March until October 2012, the salaries of November
and December 2012 and several bonus payments had remained outstanding at
the time he terminated the employment contract. Consequently, the Claimant
asks to be awarded his outstanding dues as well as the payment of
compensation for breach of the employment contract.
7.
The Chamber noted that the Respondent argued that the termination was not
valid under country D’s law and that the Claimant should have returned to the
Respondent on 15 January 2013, after his vacation.
8.
Nevertheless, the Respondent acknowledged outstanding payments relating
to one bonus payment, the full salaries of November and December 2012 and
explained that due to tax deductions of 22% less than the agreed monthly
salary was paid for February to October 2012.
9.
Moreover, the Respondent alleged having paid outstanding bonuses for the
player to a “personal plastic card”.
10.
On account of the above, the members of the Chamber highlighted that the
underlying issue in this dispute, considering the diverging position of the
parties, was to determine as to whether the Claimant had just cause to
terminate the relevant employment contract on 18 January 2013 and to decide
on the consequences thereof.
11.
As regards the Respondent’s argument that the termination of the contract by
the Claimant was not valid under country D’s law, the Chamber wished to
highlight that the main objective of the 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. This should apply, in particular, also to the termination of a
contract. In this respect, the DRC wished to point out that it is in the interest
of football that the termination of contract is based on uniform criteria rather
than on provisions of national law that may vary considerable from country to
country. Therefore, the Chamber deems that it is not appropriate to apply the
principles of a particular national law to the termination of the contract but
rather the Regulations on the Status and Transfer of Players, general principles
of law and, where existing, the Chamber’s well-established jurisprudence.
12.
In continuation, the members of the Chamber took into account that the
Respondent acknowledged outstanding payments relating to one bonus
payment and two monthly salaries, for November and December 2012, which
Player A, country B / Club C, country D
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had fallen due when the Claimant terminated the employment contract on 18
January 2013.
13.
In respect of the Respondent’s arguments related to allegedly paid bonuses
and tax reductions of 22% with regard to the Claimant’s remuneration as
from February until October 2012, the Chamber recalled the basic principle of
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.
14.
Bearing in mind the above, the Chamber highlighted that the Respondent did
not present convincing evidence in respect of the alleged bonus payments and
tax deductions, allegations that were contested by the Claimant. For the sake
of completeness, the Chamber highlighted that the employment contract at
the basis of the present dispute does not contain any clause dealing with tax
deductions from the Claimant’s remuneration.
15.
As a consequence, due to the lack of evidence corroborating the Respondent’s
position, the Chamber concluded that it had to reject the Respondent’s
arguments in this regard.
16.
On account of the above, in particular the fact that parts of the salaries of
February until October 2012, the salaries of November and December 2012
and several bonus payments were outstanding at the time of the termination
of the contract by the Claimant, and taking into consideration the Chamber’s
pertinent longstanding and constant jurisprudence, the Chamber decided that
the Claimant had just cause to unilaterally terminate the employment contract
on 18 January 2013 and that the Respondent is to be held liable for the early
termination of the contract with just cause by the player.
17.
In continuation, prior to establishing the consequences of the termination of
the employment contract with just cause by the Claimant in accordance with
art. 17 par. 1 of the Regulations, the Chamber held that it had to address the
issue of any unpaid remuneration at the moment the contract was terminated
by the Claimant.
18.
In this regard, the members of the Chamber recalled that at the date of
termination of the contract, i.e. 18 January 2013, parts of the salaries of
February 2012 until October 2012 and the salaries of November 2012 and
December 2012 in the total amount of USD 52,920 had fallen due and
remained unpaid by the Respondent without valid reason.
19.
Furthermore, the Chamber noted that the Respondent has not denied that the
Claimant is entitled to receive the claimed bonuses of USD 41,500 and recalled
that the Respondent had not presented credible evidence corroboration its
allegations with respect to bonus payments it asserts having made to the
Claimant.
Player A, country B / Club C, country D
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20.
Consequently, on account of the above and in accordance with the general
legal principle of pacta sunt servanda, the Chamber decided that the
Respondent is liable to pay to the Claimant the amount of USD 94,420 in
connection with the remuneration due to the Claimant in accordance with the
employment contract until its early termination.
21.
In addition, taking into consideration the Claimant’s claim, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. as of the day
following the day on which each of the payments included in the global
amount of USD 94,420 fell due.
22.
Having established the above, the Chamber turned its attention to the
question of the consequences of the termination of the employment contract
by the Claimant with just cause on 18 January 2013.
23.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant is entitled to receive compensation for breach of
contract from the Respondent.
24.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
so, the members of the Chamber 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 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.
25.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains 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 Chamber 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 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. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective
criteria may be taken into account at the discretion of the deciding body.
Player A, country B / Club C, country D
Page 8 of 11
27.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
new contract, which criterion was considered by the Chamber to be essential.
The members of the Chamber deemed it important to emphasise that the
wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
28.
Bearing in mind the foregoing, the Chamber proceeded with the calculation
of the monies payable to the player under the terms of the employment
contract as from its date of termination with just cause by the Claimant, i.e. 18
January 2013, until 12 December 2013, and concluded that the Claimant
would have received in total USD 154,000 as remuneration had the contract
been executed until its ordinary expiry date. Consequently, the Chamber
concluded that the amount of USD 154,000 serves as the basis for the final
determination of the amount of compensation for breach of contract in the
case at hand.
29.
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 enabled 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 breach of contract in connection with the
player’s general obligation to mitigate his damages.
30.
In this regard, the members of the Chamber noted that the Claimant had not
signed any new employment contract within the period of time between the
termination of the contract and its original date of expiry and, thus, had not
been able to mitigate damages.
31.
Consequently, on account of the above and the specificities of the case at
hand, the Chamber decided that the Respondent must pay the amount of USD
154,000 to the Claimant as compensation for breach of contract in the case at
hand.
32.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of compensation as of the date on which the claim was lodged, i.e. 21
January 2013, until the date of effective payment.
33.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
Player A, country B / Club C, country D
Page 9 of 11
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of USD 94,420 plus 5% interest p.a. until the date of effective
payment as follows:
a. 5% p.a. as of 1 March 2012 on the amount of USD 2,840;
b. 5% p.a. as of 1 April 2012 on the amount of USD 2,240;
c. 5% p.a. as of 1 May 2012 on the amount of USD 2,240;
d. 5% p.a. as of 1 June 2012 on the amount of USD 2,240;
e. 5% p.a. as of 1 July 2012 on the amount of USD 2,240;
f. 5% p.a. as of 1 August 2012 on the amount of USD 2,240;
g. 5% p.a. as of 1 September 2012 on the amount of USD 2,240;
h. 5% p.a. as of 1 October 2012 on the amount of USD 2,240;
i. 5% p.a. as of 1 November 2012 on the amount of USD 6,400;
j. 5% p.a. as of 1 December 2012 on the amount of USD 14,000;
k. 5% p.a. as of 1 January 2013 on the amount of USD 14,000;
l. 5% p.a. as of 19 January 2013 on the amount of USD 41,500.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract in the
amount of USD 154,000 plus 5% interest p.a. on said amount as from 21
January 2013 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent within
the stated time limits, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
Player A, country B / Club C, country D
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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
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 67 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:
Jérôme Valcke
Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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