Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 7 April 2016,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
B, from R
represented by Ms xxxx
as Claimant
against the club,
K, from U
represented by Mr xxxxx
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 13 March 2015, the player from R, B (hereinafter: the Claimant), and the club from U, K
(hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract)
valid from 13 March 2015 until 30 November 2015.
2.
In accordance with the contract, the Claimant was inter alia entitled to receive the following
remuneration:
a. “a monthly salary according to the established category, as per staff list of the
Club”;
b. xxx 180,000,000 as “financial remuneration for signing the contract”, as follows:
i. xxx 90,000,000 before April 2015;
ii. xxx 90,000,000 “until the beginning of the second round of the
Championship 2015”;
c. “to provide on[e] ticket per year for the direction x-y-x, to the place of
residence”.
3.
The contract provides “for systematic infringement by the player of his duties mentioned in
art. 3 hereof, the management of the club has the right unilaterally to revise or cancel the
art. 7.1 (cf. point I.2.b above) hereof”.
4.
On 6 July 2015, the Claimant formally put the Respondent in default, claiming that two
monthly salaries were outstanding as well as the portion sign-on fee which had fallen due as
well as bonuses, noting that the Respondent had informed him that his services were no
longer required and that it had decided to terminate the contract. Consequently he reserved
the right to not return to the training camp that was to start on 7 July 2015.
5.
On 27 July 2015, the Claimant formally terminated the employment contract by post and email stating that nearly xxx 70,000,000 of the sign-on fee had remained outstanding, and
that he had only received one and a half monthly salary payments.
6.
On 18 August 2015, the Respondent formally terminated the employment contract on the
basis of the Claimant’s absence from 6 July until 17 August 2015 and stated he would be
fined “regarding imposition of penalties” (cf. point I.7 below) and will retain the cost of the
equipment out of the salary.
7.
On 18 August 2015, the Respondent fined the Claimant 88.3% of the sign-on fee, leaving it
with the obligation to pay xxx 21,000,000 which it already had.
8.
On 9 September 2015, the Claimant lodged a claim before FIFA against the Respondent
asking that he be paid XXX 182,150,000 plus 5% interest p.a. until the date of effective
payment:
a. Outstanding remuneration:
Player B, country R / Club K, country U
2/9
i. XXX 69,000,000 as the remaining outstanding portion of the sign-on fee;
ii. XXX “1,900,000” as the remaining salary owed.
b. Compensation for breach of contract in the total amount of XXX 111,250,000, as
follows:
i. XXX 21,250,000 as salaries from July 2015 until 30 November 2015;
ii. XXX 90,000,000 as the second portion of the sign-on fee which was
allegedly due on 1 August 2015.
9.
The Claimant claims that he had only been paid one and a half monthly salaries at the time
the Respondent informed him that his services were no longer required on 2 July 2015 at the
end of the first part of the Uzbekistani Championship, in the amount of XXX 4,250,000 and
xxx 2,700,000 respectively; in this regard he claims that one monthly salary is equivalent to
xxx 4,250,000 (cf. point I.14 below). In addition, he claims he only received XXX 21,000,000 of
the first portion of the sign-on fee (cf. point I.2.b above).
10. The Claimant asserts that on 10 July 2015 the Respondent replied to the default notice (cf.
point I.4 above) stating that “the issue of your future stay at the club is currently considered
and is directly connected to your participation in the training camp of the team. Therefore,
we propose you to return to the club till 14 July 2015. The issue of the existing debt payment
will be discussed at your return”. The Claimant argues that the Respondent thereby does not
dispute that the amounts were outstanding.
11. On 14 July and 16 July 2015, the Claimant replied to the Respondent through his agent
stating that he had no money to buy a flight ticket to attend the training camp and requests
to be informed whether the outstanding amounts would be settled and whether the
Respondent would purchase flight tickets. The Claimant further claims that after these
reminders, the Respondent tried to offer him a settlement of a much lower amount than the
debt owed to him (cf. point I.18 below). In fact, the Respondent replied on 16 July 2015
stating that the Claimant is absent from training which constitutes a severe infringement of
the contract and request his immediate return; and with regards to the outstanding amounts
it states “as to the payment of outstanding amounts to them, we would like to inform you
that this matter is solved according to the general procedure along with all other players
and employees of the club”.
12. The Respondent further replied on 14 August 2015 that the Claimant was still in breach of
his obligations, requesting that he return before 17 August 2015 and give written
explanations to the alleged absence of 6 July 2015. It further states that if the Claimant does
not return to the Respondent, the contract “will be unilaterally terminated from 06.07.2015”
and that it will impose fines on the Claimant for violations of the contract. The Claimant
stated that after 18 August 2015 the Respondent paid him what it considered to be two
monthly salaries and flight tickets in the amounts of XXX 4,880,873; XXX 1,821,485 and XXX
2,201,316 as flight tickets (cf. point I.17 below).
Player B, country R / Club K, country U
3/9
13. The Respondent replied to the Claimant’s claim after the closure of the investigation phase
stating that only on the day he was to return to the Respondent did the Claimant demand
payment of outstanding monies from the Respondent and announced that he would not
return unless the sums were paid (cf. point I.4 above). It further states that as a result of the
Claimant’s absence the contract was terminated (cf. points I.6 and I.7 above).
14. The Respondent also claims that it had deposited all outstanding amounts “to the player to
the bank account on day of dismissal” with deduction of punitive sanctions imposed under
the terms of the contract. The Respondent acknowledges that one monthly salary is
equivalent to XXX 4,250,000. The Respondent asserts that the players were granted a holiday
from 2 until 5 July 2015.
15. The Respondent claims that during May and June 2015 it had issues with the payment of
salaries, but had paid the Claimant the salaries of March and April on 1 July 2015 (cf. point
I.9 above) stating that May 2015 hadn’t been paid and was delayed and the salary for June
2015 had not yet fallen due. It asserts that at the time the Claimant left for holiday, he was
owed one month and 20 days of salary as well as added allowances.
16. The Respondent reiterates the content of the exchange of correspondence established in the
Claimant’s claim, contesting however that it ever received the correspondence of 16 July
2015 (cf. point I.11 above). It states that it considers that the Claimant had been absent for a
month without leave and as a result of a meeting held on 14 August 2015 the Respondent
terminated the contract.
17. The Respondent fined the Claimant (cf. point I.7 above) on 18 August 2015 and alleges that
it paid the Claimant what it considered to be outstanding monies. In this regard, the
Respondent submitted three documents signed by the General Director and Chief
Accountant of the Respondent for the total amount of XXX 8,903,674 (cf. point I.12 above)
as follows:
a. XXX 3,339,844 “the money for the travel tickets for the players of PFC Buxoro are
transferred to the plastic cards in accordance with remittance order n° 340 from
18.08.2015”;
b. XXX 14,447,618 “the payments of the salary for May 2015 are transferred to the
plastic cards according to remittance order n°327 from 12.08.2015”;
c. XXX 5,934,395 “the payments of the salary for June and July 2015 are transferred
to the plastic cards according to the remittance order n°339 from 19.08.2015”.
The Respondent alleges that at the time of the Claimant’s dismissal there were no financial
liabilities due.
18. The Respondent further states that the Claimant did not justify whether the Respondent had
indicated it no longer needed his services, that two salaries were outstanding was untrue,
and states that contrary to the Claimant’s allegation the Respondent showed willingness to
Player B, country R / Club K, country U
4/9
resolve the issue upon the Claimant’s return. It also claims that it never offered the Claimant
a reduced settlement (cf. point I.11 above).
19. The Respondent claims that the Claimant was in breach of contract and was therefore not
entitled to compensation for breach. Furthermore, it alleges that the Claimant did not
contest the fines which were imposed in relation to the contract (cf. point I.3 above), and
that by sending his request to the Respondent on the first day of his absence, the Claimant
had been in breach despite the Respondent acknowledging that it had not paid him the
entirety of the sign-on fee. The Respondent does not claim any compensation from the
Claimant but considers that he should be subject to disciplinary sanctions “in the form of
disqualification”.
20. In response to FIFA’s pertinent request, the Claimant stated having not signed any
professional employment contract with any football club.
*****
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (DRC) judge analysed whether he was competent to
deal with the matter at hand. In this respect, he took note that the present matter was
submitted to FIFA on 9 September 2015. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition
2015; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. article 21
the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), he is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from R and a club from U.
3.
Furthermore, the DRC judge analysed which regulations 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 (2015 edition), and
considering that the present claim was lodged on 9 September 2015, the 2015 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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 facts of the case, as well as the documentation contained in the file. In
Player B, country R / Club K, country U
5/9
this respect, the DRC judge recalled that the parties had signed an employment contract
valid from 13 March 2015 until 30 November 2015.
5.
In continuation, the DRC judge noted that the Claimant lodged a claim against the
Respondent maintaining that he had terminated the employment contract with just cause
on 27 July 2015, after having previously put the club in default on 6 July 2015 since the
Respondent allegedly failed to pay the entirety of the Claimant’s remuneration. In this
respect, the Claimant asserts having only received partial payment of the signing-on fee
and his monthly salaries of May and June 2015 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.
6.
Subsequently, the DRC judge observed that the reply of the Respondent was received after
notification of the closure of investigation of the matter at hand. As a result, in line with
art. 9 par. 4 of the Procedural Rules as well as the Chamber’s constant jurisprudence in this
regard, the DRC judge decided not to take into account the reply of the Respondent and
established that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a
decision on the basis of those documents on file that were provided prior to the closure of
the investigation-phase, in casu, upon the statements and documents presented by the
Claimant.
7.
In light of all of the above, in particular point II.6, the DRC judge noted that in accordance
with the employment contract, the Respondent had to pay the Claimant at the time of
termination of the employment contract the first instalment of the sign-on fee in addition
to the unpaid portions of his monthly salaries of May and June 2015. It remains undisputed
that the Claimant’s monthly salary amounts to XXX 4,250,000.
8.
Nevertheless, the DRC judge decided it was important to establish whether the Claimant
had just cause to terminate the employment relationship with the Respondent on 27 July
2015. In this regard, the DRC judge took due note that at the time of termination part of
the due sign-on fee corresponding to XXX 69,000,000 as well as the monthly salaries of
May and June 2015, in the total amount of XXX 8,500,000, had remained outstanding (cf.
points I.12 and I.17 above) without any valid reason or justification.
9.
On account of the aforementioned, in particular in view of the considerations under point
II.8 above, the DRC judge established that the Respondent, without any valid reason, had
failed to remit to the Claimant, until 27 July 2015, date on which the Claimant terminated
the contract, the total amount of XXX 77,500,000 corresponding to the monthly salaries
for May and June 2015 as well as part of his sign-on fee. Consequently, and considering
that the Respondent had been in breach of its contractual obligations towards the
Claimant, the DRC judge decided that the Claimant had just cause to unilaterally terminate
the employment contract on 27 July 2015 and that as a result the Respondent is to be held
liable for the early termination of the employment contact with just cause by the
Claimant.
Player B, country R / Club K, country U
6/9
10.
In continuation, the DRC judge took note that the Claimant had acknowledged having
received XXX 6,702,358 from the Respondent on 18 May 2015, i.e. after the termination,
corresponding to monthly salaries (cf. point I.12 above). Therefore, in accordance with the
general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations
deriving from the employment contract concluded with the Claimant, and consequently is
to be held liable to pay outstanding remuneration in the amount of USD 70,797,642
corresponding to XXX 69,000,000 as the sign-on fee in addition to XXX 1,797,642
pertaining to the salaries of May and June 2015 (i.e. XXX 8,500,000) minus the
acknowledged payment of XXX 6,702,358.
11.
In continuation, having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the DRC judge
focused his attention on the consequences of such a termination. In this regard, the DRC
judge determined that the Respondent was not only to pay the amount of XXX 70,797,642
as outstanding remuneration to the Claimant, but also to pay compensation for breach of
contract in conformity with art. 17 par. 1 of the Regulations.
12.
Having stated the above, the DRC judge turned his attention to the calculation of the
amount of compensation payable to the Claimant by the Respondent in the case at stake.
In doing so, the DRC judge first 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.
13.
In application of the relevant provision, the DRC judge held that he first 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.
14.
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. The DRC judge recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
15.
Bearing in mind the foregoing as well as the claim of the Claimant, the DRC judge
proceeded with the calculation of the monies payable to the Claimant under the terms of
Player B, country R / Club K, country U
7/9
the employment contract until 30 November 2015. Consequently, the DRC judge concluded
that the amount of XXX 111,250,000 (i.e. remuneration falling due between July 2015 and
30 November 2015 as well as the second instalment of the sign-on fee) serves as the basis
for the determination of the amount of compensation for breach of contract.
16.
In continuation, the DRC judge verified 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.
17.
The DRC judge noted that according to the Claimant’s declaration, he 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 therefore, had not been able to mitigate his
damages.
18.
Consequently, on account of all of the aforementioned considerations and the specificities
of the case at hand, the DRC judge decided that the Respondent must pay the amount of
XXX 111,250,000 to the Claimant, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter. Moreover, taking
into consideration the Claimant’s claim, the DRC judge decided to award the Claimant
interest at the rate of 5% p.a. from 9 September 2015 on these amounts, i.e. from the date
on which the claim was lodged.
19.
The Dispute Resolution Chamber judge concluded his deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, K, has to pay to the Claimant, within 30 days from the date of
notification of this decision, outstanding remuneration in the amount of XXX 70,797,642
plus 5% interest p.a. from 9 September 2015 until the date of effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days from the date of notification
of this decision, compensation for breach of contract in the amount of XXX 111,250,000
plus 5% interest p.a. as from 9 September 2015 until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the aforementioned
numbers 2. and 3. are not paid by the Respondent within the stated time limits, the
Player B, country R / Club K, country U
8/9
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.
6.
The Claimant is directed to inform the Respondent immediately and directly of the account
number to which the remittances are to be made and to notify the DRC judge of every
payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player B, country R / Club K, country U
9/9