Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 19 April 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Takuy a Yam azaki (Japan), member
Tom is lav Kas alo (Croatia), member
Daan de Jong (The Netherlands ), member
Abu Nay eem S hohag (Banglades h), member
on the matter between the club,
Club A, Country B
as Claimant / Counter-Respondent
and the player,
Play er C, Country D
as Respondent / Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1. On 24 January 2017, the player of Country D, Player C (hereinafter: Respondent /
Counter-Claimant or the player) and the club of Country B, Club A (hereinafter:
the Claimant / Counter-Respondent or the club) concluded an employment
contract (hereinafter: the contract) valid as from the month of January 2017 until
the end of season 2019/2020, i.e. for “three seasons and a half season”.
2. According to the second clause of the contract, the player was entitled to a total
salary of USD 1,700,000, payable according to the following schedule:
a) USD 220,000 for season 2016/2017, broken-down as follows:
- USD 55,000 on 30 January 2017;
- USD 33,000 on 28 February 2017;
- USD 33,000 on 30 March 2017;
- USD 33,000 on 30 April 2017;
- USD 33,000 on 30 May 2017;
- USD 33,000 on 30 June 2017.
b) USD 466,000 for season 2017/2018;
c) USD 493,000 for season 2018/2019;
d) USD 521,000 for season 2019/2020.
3. Clause sixth of the contract stipulates that “the Club has the right to terminate
this Contract with the Player at the end of season 2017/2018, or any following
seasons so that the Player will be notified not later than 15 days after the end of
the last season official match, and the Player has no right to object and claim any
financial dues for the contract remaining seasons, (this conditions may not be
changed or amended)”.
4. On 25 May 2017, the club sent a letter to the player, contesting his unjustified
absence from the team’s trainings on that day and requesting him to immediately
report to the club.
Club A, Country B / Player C, Country D
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5. On 26, 27, and 28 May 2017, the club sent the same letter to the player with
reference to the club’s trainings on the same dates.
6. On 5 June 2017, the Claimant / Counter-Respondent lodged a claim in front of
FIFA against the Respondent / Counter-Claimant for breach of contract,
requesting the following:
a) USD 1,224,000 as reimbursement of the costs the club had allegedly incurred in
order to transfer the player;
b) USD 3,400,000 as compensation for the breach of contract, corresponding to
the damages allegedly suffered by the club due to the player’s absence.
7. In its claim, the Claimant / Counter-Respondent alleged that the player left the
club on 25 May 2017 without justification and failed to reply to the club’s
communications. In particular, the club maintained that the player not only did
not take part in the club’s trainings since that date, but he even left the country
without the club’s permission.
8. As to the costs allegedly incurred to transfer the player, the Claimant / CounterRespondent stated that it paid the following amounts:
a) USD 800,000 as transfer fee paid to the player’s former club, Club E. In this
context, the Claimant / Counter-Respondent submitted copy of the transfer
agreement between the club and Club E, indicating the aforementioned
transfer fee, and the relevant bank receipt;
b) USD 154,000 as the player’s salary for the period between 24 January 2017 and
30 April 2017;
c) USD 264,000 paid to the club’s intermediary for the transfer of the player to
the club. The Claimant / Counter-Respondent submitted copy of the relevant
“representation contract between intermediary and club” and the relevant
bank receipt, indicating a commission paid to the intermediary amounting to
USD 251,000;
d) USD 6,000 for “the equivalent of sanctioning the player agreement by the
Football Association of Country B”. In particular, on 1 June 2016, the club sent
a letter to the “Football Association of Country B”, informing it of the alleged
player’s absence since 25 May 2017 and requesting it to “take the necessary
Club A, Country B / Player C, Country D
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legal action against the player”. Moreover, according to the bank receipt on
file, the club paid USD 6,600 for “Registration fees in Football Association of
Country B (3% of annual amount)”.
9. In his reply to the claim, the Respondent / Counter-Claimant contested the club’s
arguments and lodged a counterclaim against the Claimant / CounterRespondent, requesting compensation for breach of contract in the amount of
USD 1,572,400, plus 5% interest as of 24 May 2017, broken-down as follows:
a) USD 26,400 as outstanding remuneration for the period between 1 and 24
May 2017;
b) USD 1,546,000 as compensation for breach of contract, corresponding to the
remaining value of the contract.
Furthermore, the player requested sporting sanctions to be imposed on the club.
10. In his counterclaim, the Respondent / Counter-Claimant argued that he
terminated the contract with just cause by leaving Country B on 25 May 2017, as
the following circumstances allegedly rendered the continuation of the
employment relationship “in good faith unconscionable for him”:
i) the confiscation of his passport by the club upon his arrival to Country B and
the consequent club’s refusal to return it to him until 24 May 2017. The player
stated that, as a consequence thereof, during said period he was prevented
from travelling freely and accessing banking facilities in Country B. Moreover,
the player emphasised that he left the country with his family on 25 May 2017,
i.e. immediately after his passport was returned, and alleged that he informed
the club about the termination of the contract;
ii) the “club’s instruction to pray upon scoring a goal”. In this regard, the player
affirmed that he informed the club about his intention not to comply with the
aforementioned instruction and alleged that, because of his refusal, he was
treated in a degrading and humiliating way by the club;
iii) the club’s instruction not to give interviews to the press.
In this context, the player only submitted witness statements released by himself
and his wife in order to corroborate his argumentation.
Club A, Country B / Player C, Country D
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Moreover, the player submitted alleged death threats and racist insults which he
reportedly received via internet, after he left the club and maintained that such
circumstance made the continuation of the employment relationship impossible.
11. In its reply, the Claimant / Counter-Respondent insisted with its previous
arguments and rejected the player’s counterclaim. In particular, the club denied
that the player received any kind of oppression based on his religious beliefs and
affirmed that he was treated “as a grand star”, as allegedly confirmed by the
player himself on the club’s website. In particular, the club highlighted that,
according to news published on the club’s official website on 11 May 2017, the
player expressed “happiness with the confidence given to him by the fans” after
winning the “player’s of the month award”.
12. Moreover, the club emphasised that, according to its internal regulations, the
player was not instructed not to release interviews, but rather to obtain the club’s
permission before contacting the media.
13. Furthermore, as to the threats allegedly received by the player via internet, the
club maintained that such threats were created by the player himself with the aim
of finding a cause which could prevent him from returning to Country B.
14. In his final comments, the Respondent / Counter-Claimant reiterated his initial
requests and emphasised that the club did not expressly deny that it confiscated
his passport until 24 May 2017 or that it instructed him to pray upon scoring
goals.
15. Furthermore, the player argued that the statements released by himself on the
club’s official website proved that the club did not allow him to contact media not
controlled by the club itself.
16. Upon request of the FIFA Administration, the player informed that it did not
conclude any employment contract with other club after the termination of the
contract, situation which remains at the moment of the present decision.
II. Cons iderations of the Dis pute Res olution Cham ber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the
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 5 June 2017. Consequently, the Rules Governing the Procedures of the Players’
Club A, Country B / Player C, Country D
5
Status Committee and the Dispute Resolution Chamber (edition 2017; 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 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 club of Country B and a player of Country D.
3. In continuation, 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 2018), and considering that the present claim was lodged on 5 June 2017,
the 2016 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 DRC acknowledged that the player and the club signed an
employment contract, valid as from the month of January 2017 until the end of
season 2019/2020. Furthermore, the Chamber also took note that it is uncontested
by the parties that, on 25 May 2017, the player definitively left the club, thereby
terminating the contract.
6. In continuation, the DRC noted that the player argued that he had just cause to
terminate the contract. In particular, he maintained that the alleged following
circumstances made it impossible for him to continue with the employment
relationship with the club: i) the confiscation of his passport by the club until 24
May 2017; ii) the club’s instruction to pray upon scoring a goal; iii) the club’s
instruction to not give interviews; iv) the death threats and insults he received on
internet after he left the club.
Club A, Country B / Player C, Country D
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7. The Chamber further took note that, conversely, the club argued that the player
did not have just cause to terminate the contract. Particularly, the club referred to
the player’s alleged unjustified absences from the team’s trainings between 25
and 28 May 2017 and to his departure without justified reason. As a consequence
thereof, the club requested compensation for the alleged breach of the contract
by the player.
8. In view of the aforementioned considerations, the members of the Chamber
highlighted that the underlying issue in this dispute, considering the diverging
position of the parties, was to determine whether, on 25 May 2017, the contract
had been terminated by the player with or without just cause and which party
was responsible for the early termination of the contractual relationship in
question.
9. In this context, the Chamber was eager to emphasise first that according to its
well established jurisprudence only a breach or misconduct which is of a certain
severity justifies the termination of a contract. In other words, a contract may be
terminated prematurely only when there are objective criteria which do not
reasonably permit one to expect the continuation of the employment
relationship. Hence, if there are more lenient measures which can be taken in
order for an employee to ensure the employer’s fulfilment of his contractual
duties, such measures must be taken before terminating an employment contract.
A premature termination of an employment contract can only be an ultima ratio.
10. Moreover, the Chamber referred to art. 12 par. 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber,
according to which any party claiming a right on the basis of an alleged fact shall
carry the burden of proof. Thus, it is up to the Respondent / Counter-Claimant to
substantiate and provide documentary evidence with regard to the alleged
circumstances which, according to the player, made impossible the continuation
of the employment relationship with the club.
11. On account of the aforementioned considerations, the member of the Chamber
went to analyse the arguments brought by the Respondent / Counter-Claimant in
support of his decision to terminate the contract.
12. First the Chamber noted that, according to the Respondent / Counter-Claimant,
the Claimant / Counter-Respondent allegedly confiscated his passport upon his
arrival in Country B and only returned it on 24 May 2017.
13. What is more, the DRC also noted that the Respondent / Counter-Claimant
maintained that the alleged confiscation of the passport prevented him from
Club A, Country B / Player C, Country D
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travelling freely and access to bank facilities in Country B. In this regard, and
again referring to the burden of proof as explained above, the members of the
DRC deemed essential to emphasise that the Respondent / Counter-Claimant
neither provided any tangible evidence which could prove that, during his stay in
Country B, he indeed requested the club to return him his passport, nor that the
lack of such document prevented him from accessing bank facilities. In any case,
the DRC pointed out that it has remained undisputed that the club always
complied with its financial obligations towards the player.
14. In continuation, as to the Respondent / Counter-Claimant’s allegation that he was
treated in a degrading and humiliating way by the club due, in particular, to his
religious beliefs, the members of the Chamber noted that the statements of the
player are contested by the club. In particular, the DRC noted that, according to
news published on the official website of the club, which were submitted by the
Claimant / Counter-Respondent, the player was expressing “happiness” about his
condition at the club.
15. In this context, the Chamber deemed necessary to highlight that the Respondent /
Counter-Claimant, as evidence of the circumstances allegedly occurred until he
terminated the contract, only submitted witness statements released by himself
and his wife. In this regard, the DRC concluded that such witness statements, in
and of themselves, are insufficient to demonstrate to the Chamber’s satisfaction
that the aforementioned circumstances actually took place.
16. Furthermore, as to the threats and insults allegedly received by the Respondent /
Counter-Claimant on internet, the members of the Chamber went to analyse the
messages submitted by the player in support to his argumentation. In this context,
the DRC noted that, from the content of the aforementioned messages, it is not
possible to establish the identity of neither the sender nor the recipient of each
message. What is more, said messages date back to the month of June 2017, thus
after the Respondent / Counter-Claimant had already terminated the contract.
17. On account of the aforementioned considerations, the Chamber decided that
there was no other option but to dismiss the argumentations of the Respondent /
Counter-Claimant since it had not been proven that the circumstances alleged by
the player occurred, nor had it been demonstrated that said circumstances were
as severe as to justify a premature termination of the employment contract by the
Respondent / Counter-Claimant. Finally, the DRC emphasised once again that the
player never put the club in default of its contractual obligations in order to
provide the latter a possibility to remedy the default. Consequently, the Chamber
deemed that player had no just cause to unilaterally terminate the employment
relationship and therefore concluded that the Respondent / Counter-Claimant had
Club A, Country B / Player C, Country D
8
terminated the employment contract without just cause on 25 May 2017 and is to
be held liable for such contractual termination.
18. In light of the foregoing, the DRC established that, in accordance with art. 17 par.
1 of the Regulations, the Respondent / Counter-Claimant is liable to pay
compensation to the Claimant.
19. Having stated the above, 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 reiterated 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(s), the time remaining on the existing contract up to a
maximum of five years as well as the fees and expenses paid or incurred by the
former club (amortised over the term of the contract) and whether the
contractual breach falls within a protected period. The DRC recalled that the list
of objective criteria is not exhaustive and that the broad scope of criteria
indicated tends to ensure that a just and fair amount of compensation is awarded
to the prejudiced party.
20. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the relevant employment contract between the player and
the club contains a provision by means of which the parties had beforehand
agreed upon an amount of compensation for breach of contract. In this regard,
the Chamber established that no such compensation clause was included in the
said employment contract at the basis of the matter at stake.
21. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant /
Counter-Respondent had to be assessed in application of the other parameters set
out in art. 17 par. 1 of the Regulations. In this regard, the DRC emphasised
beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter, as well as the Chamber’s specific
knowledge of the world of football and its experience gained throughout the
years.
Club A, Country B / Player C, Country D
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22. Consequently, in order to estimate the amount of compensation due to the
Claimant / Counter-Respondent in the present case, the Chamber firstly turned its
attention to the to the essential criterion relating to the fees and expenses paid
by the club for the acquisition of the player’s services insofar as these have not
been amortised over the term of the relevant contract. The Chamber recalled that
a transfer compensation of USD 800,000 had been paid by the Claimant / CounterRespondent to the Club E for the player‘s transfer in January 2017, documentation
of which has been presented by the Claimant / Counter-Respondent. According to
article 17 par. 1 of the Regulations, this amount shall be amortised over the term
of the relevant employment contract. As stated above, the player was still bound
to the club for further three years when he terminated the relevant employment
contract. As a result of the player’s breach of contract on 25 May 2017, the club
has thus been prevented from amortising the amount of USD 704,760, relating to
the transfer compensation that it paid in order to acquire the player’s services.
23. The Chamber then focused on the intermediary’s fee of USD 251,000 that the club
alleged having incurred in connection with the signing of the player. In this
regard, the members of the Chamber pointed out that, according to article 17
par. 1 of the Regulations, intermediary fees may be included as one of the criteria
to be taken into account in the calculation of compensation. In this respect, the
members of the Chamber referred to the bank statement submitted by the
Claimant in relation to the payment of the amount of USD 251,000 as
intermediary fee and concluded that the unamortised part of such fee was to be
calculated considering the remaining period provided in the employment
contract. Consequently, the members of the Chamber concluded that the amount
of USD 221,100 shall be taken into account as unamortised intermediary fee for
the remaining period of three years.
24. In continuation, the members of the Chamber turned their attention to the
remuneration and other benefits due to the player under the existing contract
and the new contract(s), which criterion was considered by the Chamber to be
essential. In this context, the members of the Chamber deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to
take into consideration both the existing contract and the new contract(s) in the
calculation of the amount of compensation, thus enabling the Chamber to gather
indications as to the economic value attributed to a player by both his former and
his new club(s).
25. In this regard, the DRC established, on the one hand, that the employment
contract between the player and the club, signed on 24 January 2017, had been
set to expire at the end of season 2019/2020. Moreover, the DRC took note that,
at the moment of the present decision, the player did not sign any new
Club A, Country B / Player C, Country D
10
employment contract after the termination of the contract and that he is
currently still unemployed. In view of the foregoing, and also considering the
young age of the player (currently 23 years old) as well as the specific
circumstances surrounding the present case, the members of the Chamber
deemed fair and reasonable to consider only the last two seasons of the
remaining contractual period, in the amount of USD 1,014,000.
26. On the other hand the Chamber recalled that the player is still unemployed. An
inevitable consequence of such fact is that the value of “the player’s new
contract” should be set to 0. Consequently, the Chamber concluded that the
average of remuneration between the relevant part of the terminated contract
and of the “new contract” amounts to USD 507,000.
27. Consequently, on account of the above-mentioned considerations, the Chamber
decided that the Respondent / Counter-Claimant must pay the amount of USD
1,432,860 to the Claimant / Counter-Respondent which, is to be considered a
reasonable and justified amount of compensation for breach of contract in the
matter at hand.
28. Furthermore, as to the counterclaim lodged by the player against the club for
outstanding remuneration, the DRC took note that the player’s remuneration for
the month of May 2017 corresponds to USD 33,000 payable on 30 May 2017, and
that the Respondent / Counter-Claimant requested outstanding remuneration in
the amount of USD 26,400 for the period between 1 and 24 May 2017.
29. In continuation, the members of the Chamber considered that it remained
uncontested by the Claimant / Counter-Respondent that the Respondent /
Counter-Claimant did not receive the remuneration for the month of May 2017.
30. Consequently, on account of the aforementioned considerations, the DRC
concluded that the Respondent / Counter-Claimant is entitled to outstanding
remuneration in the amount of USD 24,600.
31. In addition, with regard to the player’s request for interest and as per the wellestablished jurisprudence of the DRC, the Chamber decided that the Claimant is
entitled to 5% interest p.a. on said amount as of 31 May 2017 until the date of
effective payment.
32. Finally, the DRC also rejected the counterclaim lodged by the player for breach of
contract, as it has been established that the player terminated the contract
without just cause.
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33. The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant / CounterRespondent and the Respondent / Counter -Claimant are rejected.
III. Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant / Counter-Respondent, Club A, is partially accepted.
2. The Respondent / Counter-Claimant, Player C, has to pay to the Claimant /
Counter-Respondent, w ithin 30 day s as from the date of notification of this
decision, compensation for breach of contract in the amount of USD 1,432,860.
3. In the event that the aforementioned amount is not paid by the Respondent /
Counter-Claimant within the stated time limit, interest at the rate of 5% p.a. will
fall due as of expiry of the aforementioned time limit and the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
4. The counterclaim of the Respondent / Counter-Claimant is partially accepted.
5. The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of USD 26,400, plus 5% interest p.a. as
of 31 May 2017.
6. In the event that the aforementioned amount plus interest is not paid by the
Claimant / Counter-Respondent within the stated time limit, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
7. Any further claim lodged by the Claimant / Counter-Respondent and by the
Respondent / Counter-Claimant is rejected.
8. The Claimant / Counter-Respondent and the Respondent / Counter-Claimant are
directed to inform each other, immediately and directly, of the account number
to which the relevant remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
Club A, Country B / Player C, Country D
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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
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 & Integrity Officer
Encl.: CAS directives
Club A, Country B / Player C, Country D
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