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 (Bangladesh), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 11 June 2016, the player of Country B, Player A (hereinafter: the Claimant or
the player), and the club of Country D, Club C (hereinafter: the Respondent or the
club) (hereinafter jointly referred to as the parties) entered into an employment
contract (hereinafter: the contract) valid as from 11 June 2016 until 31 December
2018.
2.
According to the contract, the Claimant was entitled to receive from the
Respondent a monthly salary of EUR 51,500 payable “not later than the first
decade of the next month”.
3.
On 23 May 2017, the Respondent wrote an e-mail to the Claimant whereby the
former unilaterally terminated the employment contract “due to [the Claimant’s]
continuous unauthorised absence from work for a period of 4 weeks (28 days) in
total, counted as of 24 April 2017…”
4.
On 28 September 2017, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting payment of the following monies:
- EUR 51,500 as outstanding salary for the month of April 2017;
- EUR 1,030,000 as compensation for breach of contract, corresponding to the
residual value of the contract (20x EUR 51,500);
- EUR 309,000 as additional compensation for “unjust Contract’s termination”.
Furthermore, the Claimant requested interest of 5% p.a. as of “each due date”.
5.
In particular, the Claimant explained that already in December 2016, the
executive director of the Respondent informed him that the club “does not count
on him anymore”. In support of his position, the Claimant submitted an online
printout out of a newspaper of Country D with an article about the alleged club’s
decision to release him. In the same vein, the Claimant argued that during the
month of January 2017, he was not allowed to join the team for its training camp
in City G and was forced to train alone until the end of March 2017.
6.
The Claimant continued claiming that during the month of March 2017, he was
called-up by the Football Federation of Country B; call-up which was refused by
the Respondent as he was allegedly injured. The Claimant argued in this regard
that eventually he joined the national team of Country B and that its medical
team found that he was completely fit to play. In support of his assertion, the
Claimant enclosed a medical report which concluded that the Claimant is “capable
of all sport activity include full time football match…”.
Player A, Country B / Club C, Country D
Page 2 of 9
7.
Furthermore, the Claimant asserted that the Respondent failed to register him
during the first registration period of the 2017 season of Country D, which ended
on 1 April 2017, and that therefore he stopped being eligible to play for the club
in the Championship of Country D.
8.
The Claimant further stressed that the Respondent pressured him to mutually
terminate the contract; offer which he refused. In particular, according to the
Claimant, on 23 April 2017, he was reportedly physically threatened in the
dressing room, when three people tried to force him to sign “some documents”.
After this incident, the Claimant allegedly contacted the embassy of Country B in
order to leave the country.
9.
The Claimant continued explaining that the club’s executive director kept on
negotiating the termination of the contract with his agent via email, without
reaching an agreement. In support of his claim, the Claimant enclosed an
exchange of emails between 24 April 2017 and 9 May 2017 from which it
transpires that the parties’ representatives were trying to find an amicable
solution. In particular, in said exchange, the Respondent’s executive director
denied that the club was involved in the reported incident of 23 April 2017 and he
proposed to loan the player to another club; proposal which remained
unanswered by the Claimant’s agent.
10.
In continuation, the Claimant maintained that the Respondent had no just cause
to terminate the contract on 23 May 2017 due to his absence since he was already
de-registered and would not have been eligible to play anyway. Moreover, the
Claimant sustained that his de-registration at national level constitutes a material
breach of contract by the club. What is more, the Claimant argued that he had
reasons to be absent after the incident of 23 April 2017 since he feared for his life.
11.
Finally, the Claimant stated that the Respondent failed to pay his salary for the
month of April 2017.
12.
On 23 October 2017, the FIFA Administration notified the claim of the Claimant to
the Respondent and granted the latter a deadline to submit its reply until 12
November 2017, which was thereafter extended until 22 November 2017.
13.
On 27 November 2017, the Respondent filed its answer to the claim.
14.
On 15 December 2017, the FIFA Administration informed the Respondent that its
reply had been filed after the deadline set in FIFA’s letter of 22 November 2017
and thus reminded the Respondent of the content of art. 9 par. 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber.
Player A, Country B / Club C, Country D
Page 3 of 9
15.
Finally, the Claimant informed FIFA that on 1 September 2017, he signed an
employment contract with the club of Country E, Club F, valid as from 1
September 2017 until 31 December 2018, according to which he was entitled to a
monthly salary of EUR 5,000 between 1 September 2017 and 30 June 2018 and of
EUR 5,500 between 1 July 2018 and 31 December 2018.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 28
September 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 player of Country B and a club of Country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2018), and considering that the present claim was lodged on 28
September 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. The members
of the Chamber started by acknowledging all the facts of the case, as well as the
documentation contained in the file. However, the Chamber emphasised that in
the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
In this context, the Chamber acknowledged first that the parties concluded an
employment contract valid as from 11 June 2016 until 31 December 2018,
according to which the Respondent undertook to pay to the Claimant a monthly
salary of EUR 51,500.
Player A, Country B / Club C, Country D
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6.
Furthermore, the members of the DRC noted that it remained undisputed that on
23 May 2017, the Respondent unilaterally terminated the contract due to the
absence of the Claimant since 24 April 2017.
7.
In continuation, the DRC proceeded to analyse the claim of the Claimant who
argues that the Respondent did not have just cause to terminate the contract on
23 May 2017. In particular, the Chamber noted the allegation of the Claimant
that, during December 2016 and January 2017, he was informed by the
Respondent that it was not interested in his services any longer and was sent to
train alone. What is more, the Chamber observed that, according to the Claimant,
he was not registered for the 2017 season and was pressured by the management
of the Respondent to sign an agreement in order to mutually terminate the
contract.
8.
At this point, the members of the Chamber recalled that the Respondent had filed
its reply to the claim of the Claimant on 27 November 2017 only. This is, after the
deadline set by the FIFA Administration, i.e. 22 November 2017. In this respect,
the DRC referred to art. 9 par. 3 of the Procedural Rules which provides, inter alia,
that “submissions received outside the time limit shall not be taken into account”
(emphasis added).
9.
Consequently, the members of the Chamber unanimously concluded that the
reply of the club, filed after the expiration of the deadline, cannot be admitted to
the file. As such, the DRC held that, in accordance with art. 9 par. 3 of the
Procedural Rules, a decision shall be taken upon the basis of the admissible
documents. In other words, upon the statements and documents presented by the
Claimant.
10.
Having established the above, the Chamber wished to recalled its long standing
and well-established jurisprudence which dictates that among a player’s
fundamental rights under an employment contract is not only his right to a timely
payment of his remuneration, but also his right to access training and to be given
the possibility to compete with his fellow team mates in the team’s official
matches. Hence, by de-registering a player, a club is, in principle, effectively
barring, in an absolute manner, the potential access of the player in question to
competition and, as such, is violating one of his fundamental rights as a football
player. To put it differently, the deregistration of a player constitutes, in general,
a material breach of the contract which justifies its early termination.
11.
With the afore-described principle in mind and referring to the circumstances
surrounding the present matter as presented by the Claimant, the members of the
Chamber outlined that it remained uncontested that the Respondent failed to
register the Claimant during the first registration period of the 2017 season,
Player A, Country B / Club C, Country D
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which ended on 1 April 2017. As such and considering that, according to the
information contained in the Transfer Matching System (cf. art. 6 par. 3 of Annexe
3 of the Regulations), the next registration period in Country D would be open
until 13 June 2017, the members of the DRC highlighted that the player was to be
deregistered for at least two and a half months, without the Respondent being
able to remedy this material breach.
12.
What is more, the DRC underlined that it also remained undisputed that since
January 2017 the Claimant was sent to train by himself and that, according to the
evidence presented by the Claimant, the Respondent publicly declared already in
December 2016 that it was not interested in him as he was “prone to injuries”.
Along these lines, the members of the Chamber were satisfied by the medical
report presented by the Claimant, according to which, he was fit to play.
13.
On account of all the foregoing, the members of the Chamber concluded that,
considering the Claimant’s submission and the admitted evidence on file, the
Respondent was not interested in the Claimant’s services any longer. As such, the
Chamber held that the Respondent did not have just cause to terminate the
contract on 23 May 2017 and that, consequently, the Respondent is to be held
liable for said early termination of the contract.
14.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract without
just cause by the Respondent.
15.
In so doing, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per the contract in accordance with the general legal
principle of pacta sunt servanda. Consequently, the Chamber decided that the
Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination of the contract.
16.
Along those lines, the Chamber recalled that it also remained uncontested that
the Respondent failed to pay to the Claimant his salary for the month of April
2017. As such, the DRC decided that the Respondent has to pay to the Claimant as
outstanding remuneration his salary for said month, i.e. EUR 51,500.
17.
The DRC further established that, considering the claim of the Claimant as well as
its well-established jurisprudence, the Respondent has to pay interest on said
amount of 5% p.a. as of 11 May 2017, until the date of effective payment.
18.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the Claimant is entitled to receive from the Respondent
Player A, Country B / Club C, Country D
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compensation for breach of contract in addition to any outstanding salaries on
the basis of the relevant employment contract.
19.
In this context, the Chamber outlined that, in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
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.
20.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation payable
by the contractual parties in the event of breach of contract. In this regard, the
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
21.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by the Respondent, the members of the Chamber took into account
the remuneration due to the Claimant in accordance with the employment
contract, along with the professional situation of the Claimant after the early
termination occurred. In this respect, the Chamber pointed out that at the time of
the termination of the contract, the remaining value of the contract as from its
early termination by the Claimant until its regular expiry amounted to EUR
1,030,000 corresponding to the months as of May 2017 until December 2018. The
Chamber concluded that this amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
22.
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 Claimant’s general
obligation to mitigate his damages.
16.
In this context, the Chamber recalled that the Claimant concluded a new
employment contract with the club of Country E, Club F, valid as from 1
September 2017 until 31 December 2018, according to which he was entitled to a
monthly salary of EUR 5,000 between 1 September 2017 and 30 June 2018 and of
EUR 5,500 between 1 July 2018 and 31 December 2018, i.e. a total of EUR 83,000.
Player A, Country B / Club C, Country D
Page 7 of 9
17.
On account of all the above, the Chamber concluded that the Claimant is entitled
to receive from the Respondent compensation for breach of contract in the
amount of EUR 947,000 which is considered by the members as a fair and justified
amount as well as 5% interest p.a. over said amount as from the date of the
claim, i.e. 28 September 2017, until the date of effective payment, in accordance
with the Chamber’s long standing jurisprudence.
18.
Finally, the members of the DRC concluded their deliberations by establishing that
any further claim is rejected.
*****
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, is ordered 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 51,500 plus 5% interest p.a. as of 11 May 2017 until the date of
effective payment.
3.
The Respondent is ordered 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 947,000 plus 5% interest p.a. as of 28 September 2017 until the
date of effective payment.
4.
In the event that the amounts plus interest due to the Claimant in accordance
with the above-mentioned numbers 2. and 3. are not paid by the 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.
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
Dispute Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
Player A, Country B / Club 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:
Omar Ongaro
Football Regulatory Director
Encl. CAS Directives
Player A, Country B / Club C, Country D
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