Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 11 April 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez Bruinew oud (Uruguay ), member
S tefano S artori (Italy ), member
Daan de Jong (The Netherlands ), member
Muzam m il bin Moham ed (S ingapore), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the player,
Play er C, Country D
as Respondent
and the club,
Club E, Country F
as Intervening Party
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 3 November 2016, the Player of Country D, Player C (hereinafter: the
Respondent), born on 12 June 1991, and the Club of Country B, Club A (hereinafter:
Claimant), signed an employment contract (hereinafter: contract) valid as from the
date of signature until 3 November 2017.
2.
As per clause A.4 of the contract, the Respondent was entitled to an amount of USD
80,000 for the duration of the contract, payable as follows:
a)
b)
c)
d)
e)
USD 40,000 as a sign-on fee;
USD 1,000 as monthly salary;
USD 10,000 on 1 February 2017;
USD 10,000 on 1 May 2017;
USD 8,000 on 1 August 2017.
3.
Clause C of the contract holds that “the [Respondent] can terminate unilaterally
the contract from one side and go new club outside Country B if he pay 200,000
USD include 25% as agent commission”.
4.
On 3 August 2017, the Claimant lodged a claim in front of FIFA against the
Respondent maintaining that he unilaterally terminated the contract. In this
context, the Claimant held that “the [Respondent] should fulfil the penalty clause
and pay 200.000 U$$ (…) as agreed on the contract signed between us and impose
on him any consequences relating to his termination”.
5.
According to the Claimant, the Respondent was granted permission to visit his
home country for the period 5 July 2017 until 13 July 2017.
6.
However, as per the Claimant, the Respondent did not return to the Claimant after
his authorised leave.
7.
The Claimant further explained that it found out through the press that the
Claimant had signed an employment contract with the Club of Country F, Club E
(hereinafter: Intervening Party).
8.
The Claimant further stated that the Football Association of Country F (hereinafter:
the Football Association G) requested the International Transfer Certificate (ITC) for
the Respondent on 21 August 2017. According to the Claimant, the Football
Association G indicated that the Respondent unilaterally terminated his contract
on the basis that he had not received his salaries.
Club A, Country B / Player C, Country D / Club E, Country F
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9.
In this regard, the Claimant acknowledged that only USD 8,000, corresponding to
the instalment that was due on 1 August 2017, remained unpaid, given that the
Respondent had left the Claimant.
10.
In support of its position, the Claimant provided, inter alia, 20 payment receipts
corresponding to the Respondent’s salary, all signed by the Respondent, in the total
amount of USD 69,600.
11.
In his reply, the Respondent acknowledged that he travelled to Country D on 5 July
2017 with the Claimant’s authorisation and that he was to return 1 week later. He
explained that, on or around 7 July 2017, he was contacted by the Intervening Party
who told him that he could join them “as a free player, because the Football
Association of Country B was suspended by FIFA and that [the Claimant] could’t
take place anymore in the games in the CAF Confederation Cup”.
12.
The Respondent further stated that, after having ascertained that such information
was correct, on 9 July 2017, he signed an employment contract with the Intervening
Party, since he deemed that he could not properly fulfil his obligations with the
Claimant due to the FIFA suspension.
13.
According to the information in the Transfer Matching System (TMS), the
Respondent signed an employment contract with the Intervening Party on 16
August 2017, valid during 3 years starting as from the 2017-18 season and ending
at the 2019-20 season. According to this employment contract, up until November
2017, the Respondent was to receive the following payments:
a)
b)
c)
USD 33,875 on 1 September 2017;
USD 6,775 on 1 October 2017;
USD 6,775 on 1 November 2017.
14.
Despite having been invited to do so, the Intervening Party did not provide its
comments on the matter.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 3
August 2017. Consequently, the 2017 edition of the Rules Governing the Procedures
Club A, Country B / Player C, Country D / Club E, Country F
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of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is 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, a Player of Country D, with
the intervention of a Club of Country F.
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 3 August 2017, the
2016 edition of the 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 and
arguments as well as the documentation on file. 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. In this respect, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the TMS.
5.
In this respect, the Chamber firstly recalled that the Respondent signed an
employment contract with the Claimant on 3 November 2016, valid until 3
November 2017. Moreover, the DRC highlighted that it remained undisputed that
the Claimant granted the Respondent permission to leave on 5 July 2017 and that
he was to return by 13 July 2017.
6.
The Chamber further took into account that the Respondent failed to return to the
Claimant after the end of his authorised leave. Furthermore, the Chamber
underlined that, according to the information in TMS, the Respondent signed an
employment contract with the Intervening Party on 16 August 2017. Finally, the
DRC noted that, in its claim, the Claimant requested USD 200,000 “as agreed on the
Club A, Country B / Player C, Country D / Club E, Country F
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contract signed between [the Claimant and the Respondent]”, for breach of
contract by the Respondent.
7.
On account of the above, the DRC came to the first conclusion that, by failing to
return to the Claimant by 13 July 2017, the Respondent de facto unilaterally
terminated the contract on 14 July 2017.
8.
Given the above, the Chamber understood that the primary issue at stake is
determining whether the Respondent had a just cause to terminate the contract
with the Claimant and to decide on the consequences thereof. In this respect, the
Chamber deemed it essential to make a brief recollection of the parties’ arguments
regarding the contract termination.
9.
In this context, the DRC firstly recalled that, according to the Claimant, the Football
Association G indicated that the Respondent had unilaterally terminated the
contract on the basis that it had not received his salaries. However, the Chamber
further evoked that, as per the Claimant, only USD 8,000 corresponding to the
instalment that was due on 1 August 2017 remained unpaid, given that the
Respondent had left the Claimant.
10.
In continuation, the Chamber took into account the arguments of the Respondent,
who held that, during his authorised leave period, he was allegedly informed by
the Intervening Party that he could join them “as a free player, because the Football
Association of Country B was suspended by FIFA”. Furthermore, the DRC noted that
the Respondent concluded that he could no longer properly fulfil his contractual
obligations vis-à-vis the Claimant.
11.
Having said that, the Chamber referred to its well-established jurisprudence, and
was eager to emphasise that only a breach or misconduct which is of a certain
severity justifies the termination of a contract without prior warning. In other
words, only when there are objective criteria which do not reasonably permit to
expect a continuation of the employment relationship between the parties, a
contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employee to assure 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
always only be an ultima ratio.
12.
With the above considerations in mind, the DRC firstly held that, without entering
into the merits of the alleged suspension of the Football Association of Country B
(hereinafter: Football Association H), such situation cannot per se constitute a valid
reason for any player to terminate his employment contract. What is more, the
Chamber further underlined that, in the matter at hand, there is no indication
Club A, Country B / Player C, Country D / Club E, Country F
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whatsoever that the Respondent contacted the Claimant to inquire about the
situation regarding the Football Association H and the potential consequences with
regard the employment relationship between himself and the Claimant.
13.
Finally, and considering the Respondent’s unauthorised absence, the DRC held that
the Claimant had a valid reason to withhold the payment of USD 8,000 that fell due
on 1 August 2017.
14.
On account of the above, the Chamber came to the firm conclusion that the
arguments of the Respondent cannot be upheld and that, by failing to return to
the Claimant, the Respondent terminated the contract without just cause on 14 July
2017.
15.
Subsequently, after having established that the Respondent terminated the
contract without just cause, the DRC established that, in accordance with art. 17
par. 1 of the Regulations, the Respondent is liable to pay compensation to the
Claimant for breach of contract. Furthermore, in accordance with the unambiguous
contents of art. 17 par. 2 of the Regulations, the Chamber established that the
Respondent’s new club, i.e. the Intervening Party, shall be jointly and severally
liable for the payment of compensation. In this respect, the Chamber was eager to
point out that the joint liability of the Intervening Party is independent from the
question as to whether the new club has committed an inducement to contractual
breach or any other kind of involvement by the new club. This conclusion is in line
with the well-established jurisprudence of the Chamber that was repeatedly
confirmed by the Court of Arbitration for Sport (CAS).
16.
Having stated the above, the Chamber focussed 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 player under the existing contract and/or the new
contract, 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.
Club A, Country B / Player C, Country D / Club E, Country F
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17.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of contract.
18.
In this context, the Chamber wished to recall that, in accordance with Clause C of
the contract (cf. point I.3), “the [Respondent] can terminate unilaterally the
contract from one side an go new club outside Country B if he pay 200,000 USD
include 25% as agent commission”. Furthermore, the DRC pointed out that the
Claimant requested USD 200,000 on the basis of said Clause C.
19.
However, while analysing the aforementioned clause, the members of the Chamber
noted that said clause only grants the Respondent the right to terminate the
contract by paying a predetermined amount to the club and does not provide for
an amount of compensation payable by the contractual parties in the event of
breach of contract. As such, and in accordance with the longstanding jurisprudence
of the DRC in this respect, the Chamber decided that, by means of said clause, the
parties did not agree upon a compensation payable in case of breach of contract.
Consequently, the DRC concluded that the aforementioned clause cannot be taken
into consideration in the determination of the amount of compensation.
20.
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 non-exhaustive 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. In this regard, the Dispute
Resolution Chamber stated 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.
21.
In order to estimate the amount of compensation due to the Claimant in the
present case, the members of the Chamber first turned their attention to the
financial terms of the former contract and the new contract, the value of which
constitutes an essential criterion in the calculation of the amount of compensation
in accordance with art. 17 par. 1 of the Regulations. The members of the Chamber
deemed it important to emphasise that the relevant compensation should be
calculated based on the average fixed remuneration, i.e. excluding any conditional
or performance related payment, agreed by the player with his former club and his
new club, as well as considering the period of time remaining on the contract
signed between the player and the former club.
Club A, Country B / Player C, Country D / Club E, Country F
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22.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
fixed remuneration payable to the Respondent under the terms of the employment
contract signed with the Claimant for the period that was remaining since the
unilateral termination of the contract by the player until its expiry, i.e. from 14 July
2017 until 3 November 2017.
23.
In this regard, the Chamber noted that, as per the employment contract signed with
the Claimant, the Respondent was entitled to one instalment of USD 8,000 due on
1 August 2017, as well as monthly remuneration in the amount of USD 1,000 for
the remaining contractual period, i.e. a total fixed remuneration of USD 11,000.
24.
In continuation, the DRC equally took note of the Respondent’s remuneration for
the relevant period under the terms of his employment contract with his new club,
i.e. the Intervening Party, which corresponded to the total amount of USD 47,425.
25.
Taking into account the above, the Chamber concluded that, for the relevant
period, the Respondent’s average remuneration amounted to USD 29,213.
26.
On account of the above, and taking into account all the aforementioned objective
elements in the matter at hand, the DRC decided that the total amount of USD
29,213 was to be considered a reasonable and justified amount to be paid as
compensation for breach of contract in the case at hand.
27.
Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the
Regulations, the Intervening Party shall be jointly and severally liable for the
payment of the aforementioned amount of compensation.
28.
In continuation, the Chamber focussed its attention on the further consequences
of the breach of contract in question and, in this respect, it addressed the question
of sporting sanctions against the Respondent in accordance with art. 17 par. 3 of
the Regulations. The cited provision stipulates that, in addition to the obligation to
pay compensation, sporting sanctions shall be imposed on any player found to be
in breach of contract during the protected period.
29.
In this respect, the members of the Chamber referred to item 7 of the “Definitions”
section of the Regulations, which stipulates, inter alia, that the protected period
shall last “for three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the
28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this regard, the DRC
pointed out that the Respondent, whose date of birth is 12 June 1991, was 25 years
of age when he signed his employment contract with the Claimant on 3 November
2016, entailing that the unilateral termination of the contract occurred within the
applicable protected period.
Club A, Country B / Player C, Country D / Club E, Country F
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30.
With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a
suspension of four months on a player’s eligibility to participate in official matches
is the minimum sporting sanction that can be imposed for breach of contract during
the protected period. This sanction, according to the explicit wording of the
relevant provision, can be extended in case of aggravating circumstances. In other
words, the Regulations intend to guarantee a restriction on the player’s eligibility
of four months as the minimum sanction. Therefore, the relevant provision does
not provide for a possibility to the deciding body to reduce the sanction under the
fixed minimum duration in case of mitigating circumstances.
31.
With the above in mind, the members of the Chamber wished to recall the sequence
of the events of the present matter. First, the DRC recalled that, by not returning
to the Claimant by 13 July 2017, the Respondent de facto unilaterally terminated
the contract without just cause with the Claimant on 14 July 2017.
32.
Having stated that, the DRC was eager to emphasise that the Respondent raised his
income considerably by concluding an employment contract with the Intervening
Party and underlined that only one month passed between the unilateral contract
termination with the Claimant and the conclusion of the new contract with the
Intervening Party.
33.
Consequently, taking into account the circumstances surrounding the present
matter, the Chamber was of the opinion that the Respondent only terminated the
contract with the aim of signing a new contract with the Intervening Party. As such,
the DRC decided that, by virtue of art. 17 par. 3 of the Regulations, the Respondent
is to be sanctioned with a restriction of four months on his eligibility to participate
in official matches.
34.
Finally, the members of the Chamber turned their attention to the question of
whether, in view of art. 17 par. 4 of the Regulations, the player’s new club, i.e. the
Intervening Party, must be considered to have induced the Respondent to
unilaterally terminate his contract with the Claimant without just cause during the
protected period and, therefore, shall be banned from registering any new players,
either nationally or internationally, for two entire and consecutive registration
periods.
35.
In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the
Regulations, it shall be presumed, unless established to the contrary, that any club
signing a professional player who has terminated his previous contract without just
cause has induced that professional to commit a breach. Consequently, the
Chamber pointed out that the party that is presumed to have induced the player
to commit a breach carries the burden of proof to demonstrate the contrary.
Club A, Country B / Player C, Country D / Club E, Country F
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36.
Having stated the above, the members of the Chamber took note that, based on
the response provided by the Respondent, it appeared that the Intervening Party
induced the Respondent to terminate his contract with the Claimant and sign for
the Intervening Party instead, on the alleged basis that the Football Association H
was suspended by FIFA and that the Claimant would not be able to participate in
international competitions. Furthermore, the DRC placed particular emphasis on
the fact that the Intervening Party failed to provide any comments on the matter
after it was invited to do so.
37.
In light of the aforementioned, and given that the Intervening Party did not
provide any explanation as to its possible non-involvement in the Respondent’s
decision to unilaterally terminate his employment contract with the Claimant, the
DRC had no option other than to conclude that the Intervening Party had not been
able to reverse the presumption contained in art. 17 par. 4 of the Regulations and
that, accordingly, the latter had induced the Respondent to unilaterally terminate
his employment contract with the Claimant.
38.
In view of the above, the Chamber decided that, in accordance with art. 17 par. 4
of the Regulations, the Intervening Party shall be banned from registering any new
players, either nationally or internationally, for the two entire and consecutive
registration periods following the notification of the present decision. The
Intervening Party shall be able to register new players, either nationally or
internationally, only as of the next registration period following the complete
serving of the relevant sporting sanction. In particular, it may not make use of the
exception and the provisional measures stipulated in art. 6 par. 1 of the Regulations
in order to register players at an earlier stage.
39.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
*****
Club A, Country B / Player C, Country D / Club E, Country F
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Player C, 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 USD 29,213.
3.
The Intervening Party, Club E, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
In the event that the aforementioned amount is not paid 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.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent and the Intervening Party,
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.
7.
A restriction of four months on his eligibility to play in official matches is imposed
on the Respondent, Player C. This sanction applies with immediate effect as of the
date of notification of the present decision. The sporting sanctions shall remain
suspended in the period between the last official match of the season and the first
official match of the next season, in both cases including national cups and
international championships for clubs.
Club A, Country B / Player C, Country D / Club E, Country F
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8.
The Intervening Party, Club E, shall be banned from registering any new players,
either nationally or internationally, for the two next entire and consecutive
registration periods following the notification of the present decision.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of
the time limit for filing the statement of appeal, the appellant shall file a brief stating
the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl. CAS directives
Club A, Country B / Player C, Country D / Club E, Country F
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