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 (Netherlands ), member
Muzam m il bin Moham ed (S ingapore), 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
between the parties
I.
Facts of the cas e
1.
On 24 February 2016, the Player of Country B, Player A (hereinafter: the player or
Claimant) and the Club of Country D (hereinafter: the club or Respondent)
concluded an employment contract, valid as from 1 February 2016 until 31
December 2018 (hereinafter: the contract).
2.
According to article 6 of the contract, the player was entitled to inter alia receive
the following amounts:
3.
EUR 840,000 as yearly salary, payable in 12 instalments of EUR 70,000, due on
the 20th day of the respective month;
a yearly sign-on fee in the amount of EUR 360,000, due on respectively 31 March
2016, 31 March 2017 and 31 March 2018.
Furthermore, on 1 January 2018, the parties signed a termination agreement, by
means of which the parties agreed that the contract would be terminated as per
31 December 2017, ‘subject to the following conditions’:
article 2: the club paying the player the amount of EUR 950,000, as follows:
-
EUR 450,000, no later than 31 March 2018;
-
EUR 500,000, no later than 31 December 2018;
article 3: the club paying the player the amount of EUR 70,000 as salary for
December 2017, by no later than 31 January 2018.
4.
In addition, the parties agreed in article 4 of the settlement agreement upon the
following: ‘In addition to the above terms, and under the condition of the full
payment of the amounts as agreed above under art. 2 and 3, all financial
obligations between the club and Player A have been settled completely. Under the
condition of the full payment of the amounts as agreed above under art. 2 and 3,
Player A hereby waive the rights of any other claim and/or compensation’.
5.
On 4 September 2018, the player lodged a claim before FIFA against the club,
claiming outstanding remuneration and compensation for breach of contract to be
paid by the club, broken down as follows:
Player A, Country B / Club C, Country D
Page 2 of 10
Primary request: compensation for breach of contract, based on article 6 of the
contract, in the total amount of EUR 920,000, specified as follows:
EUR 360,000 as sign-on fee , due on 31 March 2018;
EUR 560,000 as the residual value of the salaries payable under the contract in
the period between January 2018 and August 2018.
Subsidiary request: outstanding remuneration, based on article 2 of the settlement
agreement in the total amount of EUR 450,000, as follows:
EUR 450,000, as outstanding payment, due on 31 March 2018;
5% interest p.a. on the amount of EUR 450,000 as from the due date until
effective payment.
Furthermore, the player requested that sporting sanctions shall be imposed on the
club.
6.
In his claim, the player explains that, after the conclusion of the settlement
agreement, the club duly paid him the amount of EUR 70,000 on 31 January 2018,
however failed to timely pay the amount of EUR 450,000 on 31 March 2018.
7.
The player further states that he put the club in default on 9 August 2018,
requesting for the payment of the amount of EUR 450,000 and providing the club
a 10 days’ deadline to make the payment, however to no avail.
8.
In addition, the player explains that the termination of the contract was conditional
to the fulfilment of the conditions mentioned in article 2 and 3 of the settlement
agreement. As the club did not fulfil its financial obligations as per the settlement
agreement, the player deems that the contract was never terminated and is
currently still valid and enforceable.
9.
Despite having been invited to present its response to the claim lodged by the
player until Monday 29 October 2018, the club only requested a deadline extension
for submitting its response to the player’s claim on Tuesday 30 October 2018.
10.
Consequently, the FIFA Administration informed the club that the request for a
deadline extension was received after the expiry of the deadline and that the
investigation phase of the matter at hand was closed.
11.
After being requested to do so, and which circumstances are confirmed in the TMS,
the player confirmed that on 20 January 2018, he signed a contract with the Club
of country E, Club F valid in the period between 20 January 2018 and 31 May 2020.
Player A, Country B / Club C, Country D
Page 3 of 10
According to said contract, the player was entitled to receive a monthly salary of
EUR 3,000 net in the period between 31 January 2018 and 31 May 2018, a monthly
salary of EUR 3,500 net in the period between 31 August 2018 and 31 May 2019
and a monthly salary of EUR 4,000 net in the period between 31 August 2019 and
31 May 2020. In the period between 20 January 2018 and 31 December 2018, this
corresponds to the total amount of EUR 26,000 (4 x EUR 3,000 + 4 x EUR 3,500).
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA on
4 September 2018. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2018;
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 June 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 Player (edition
June 2018), and considering that the present claim was lodged on 4 September
2018, the June 2018 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
In this respect, the Chamber acknowledged that on 24 February 2016, the parties
signed an employment contract valid between 1 February 2016 until 31 December
2018. In accordance with said contract, the player was entitled to receive, inter alia,
Player A, Country B / Club C, Country D
Page 4 of 10
12 instalments of EUR 70,000 per season, as well as a yearly sign-on fee of EUR
360,000.
6.
Furthermore, the members of the Chamber noted that on 1 January 2018, the
player and the club signed a termination agreement, by means of which the parties
agreed that the contract would be terminated as per 31 December 2017. In
addition, said document was valid, subject to the club paying the following
amounts to the player: (a) an amount of EUR 450,000, no later than 31 March 2018,
(b) an amount of EUR 500,000, no later than 31 December 2018 and (c) an amount
of EUR 70,000 as salary for December 2017, by no later than 31 January 2018.
7.
In continuation, the members of the Chamber noted that on 4 September 2018, the
player lodged a claim against the club, maintaining that the contract was
terminated as per 31 December 2017, but that the club had failed to respect the
financial obligations as per the settlement agreement. The player explains that,
even after he had put the club in default on 9 August 2018, the club failed to pay
the instalment of EUR 450,000, due on 31 March 2018. Consequently, the player
asks, in his primary request, to be awarded compensation for breach of contract in
the total amount EUR 920,000, consisting of the residual value of the employment
contract in the period between January and August 2018. In his subsidiary request,
the player requests to be awarded the amount of EUR 450,000, consisting of the
outstanding payment as per the settlement agreement, due as form 31 March 2018.
The Chamber finally noted that the player did not claim any compensation for
breach of contract from the club, in relation to the period between September and
December 2018.
8.
Subsequently, the DRC observed that the club, in spite of having been invited to do
so, had failed to present its reply to the claim of the player, or to timely request an
extension of the deadline within the relevant time limit set by FIFA, i.e. 29 October
2018. In fact, the club only requested an extension of the deadline on 30 October
2018.
9.
Based on the foregoing, bearing in mind the Chamber’s constant jurisprudence in
this regard and in application of art. 9 par. 3 and art. 16 par. 11 of the Procedural
Rules, the Chamber decided that the club’s request for an extension of the deadline
was correctly denied by the FIFA Administration, as it was submitted outside the
deadline provided to the club and that in the absence of a timely answer of the
club, the investigation phase of the matter at hand was closed in accordance with
art. 9 par. 3 of the Procedural Rules.
10.
As a consequence of the aforementioned consideration, the members of the
Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he
shall take a decision upon the basis of the documentation already on file; in other
words, upon the statements and documents presented by the player.
Player A, Country B / Club C, Country D
Page 5 of 10
11.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute was to determine whether the contract had been terminated
by means of the settlement agreement or by means of another (legal) action from
one of the parties, as well as on which date said termination took place.
Subsequently, the Chamber then had to determine the consequences of the early
termination of the contractual relationship by the player.
12.
Entering into the substance of the matter, the members of the Chamber first of all
established that by means of the signing of the settlement, the contract was indeed
terminated as per 31 December 2017, albeit under the condition of the full payment
of the total amount of EUR 1,020,000 as per article 2 and 3 of the settlement
agreement. Furthermore, article 4 of the settlement agreement clearly indicates
that the player would only waive his rights of ‘any other claim and/or
compensation’ and consider that all financial obligations between him and the club
are settled, under the condition of the full payment of the amount of EUR
1,020,000.
13.
From the information on file, as well as from the fact that according to the player
the club only paid him the amount of EUR 70,000 on 31 January 2018, the members
of the Chamber concluded that the club failed to timely pay the full amounts as per
the settlement agreement. As a result of this circumstance, the Chamber concluded
that the employment contract remained valid, also in the period after 31 December
2017, because the conditional termination of the employment contract as per the
settlement agreement, never entered into force.
14.
In view of the foregoing circumstances, the Chamber deemed it vital to outline that
it considered the circumstance that the player, by signing a new contract with a
club of country E on 20 January 2018, was to be considered as the effective act of
termination of the employment contract between him and the club.
15.
What is more, the members of the Chamber noted that the fact that the player had
terminated the contract, did not prevent him from claiming outstanding
remuneration and/or compensation for breach of contract from the club, as the
clause in article 4 of the settlement agreement explicitly grants him said right.
16.
For all of these reasons, the Chamber decided that the player had terminated the
employment contract the latest on 20 January 2018, and that the club, in view of
the non-compliance with the conditions of settlement agreement and in view of
the aforementioned article 4, is to be held liable for the consequences of such
termination.
17.
Having established that the foregoing, the Chamber focussed its attention on the
consequences of such termination of the contract. Taking into consideration art. 17
Player A, Country B / Club C, Country D
Page 6 of 10
par. 1 of the Regulations, as well as the contents of the settlement agreement, the
Chamber decided that the player is entitled to receive from the club an amount of
money as compensation for breach of contract, in addition to any outstanding
payments on the basis of the relevant contract, if any.
18.
The Chamber then reverted to the player’s claim, as well as his acknowledgement
of the receipt of EUR 70,000 on 31 January 2018, corresponding to the salary for
December 2017, there are currently no outstanding amounts to be paid by the club
to the player.
19.
In continuation, 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, 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 as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party 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.
Bearing in mind the foregoing as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the terms
of the employment contract. In this respect, first of all, the Chamber took into
account that the player limited his claim for compensation for breach of contract
to the period between January and August 2018. Furthermore, the player explicitly
requested that – in view of the fact that he concluded a new contract with a club
of country E in the relevant period - an additional amount of EUR 18,500 would be
deducted from the claimed compensation for breach of contract. As a result of the
foregoing, the player deems that he would be entitled to the amount of EUR
901,500.
22.
Based on the foregoing circumstances, the members of the Chamber decided that
the residual value of the contract until 31 August 2018, before mitigation,
corresponds to 8 monthly salaries of EUR 70,000 net, as well as the sign-on fee of
EUR 360,000, therefore, the total amount of EUR 920,000.
Player A, Country B / Club C, Country D
Page 7 of 10
23.
In continuation, the Chamber verified as to whether the player 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.
24.
Indeed, as already pointed out by the player, on 20 January 2018, the player found
employment with the club of country E, Club F. In accordance with the pertinent
employment contract, valid as from 20 January 2018 until 31 May 2020, the player
was entitled to receive a monthly salary of EUR 3,000 in the period between 31
January 2018 and 31 May 2018, a monthly salary of EUR 3,500 in the 2018/2019
season and a monthly salary of EUR 4,000 in the 2019/2020 season. For the period
between 20 January 2018 until 31 August 2018, the player was therefore entitled
to receive the total amount of EUR 18,500. Consequently, the Chamber established
that the value of the new employment contract concluded between the player and
Club F, amounting to EUR 18,500, also in line with the player’s requests, should be
deducted from the compensation for breach of contract the player was in principle
entitled to.
25.
Consequently, on account of all of the above-mentioned considerations, the
request of the player and the specificities of the case at hand, the Chamber decided
that the club must pay the amount of EUR 901,500 to the player, which was to be
considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
26.
Furthermore, in accordance with its established jurisprudence and taking into
account the request of the player, the Chamber further decided that interest at the
rate of 5% p.a. was to be applied over the amount of EUR 901,500 as from 4
September 2018, i.e. the date of the claim.
27.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
28.
In this regard, the Chamber pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
Player A, Country B / Club C, Country D
Page 8 of 10
29.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
club does not pay the amounts due to the player within 45 days as from the moment
in which the player, following the notification of the present decision,
communicates the relevant bank details to the club, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the club in
accordance with art. 24bis par. 2 and 4 of the Regulations.
30.
Finally, the Chamber recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
31.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player 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, has to pay to the Claimant compensation for breach of
contract in the amount of EUR 901,500, plus 5% interest p.a. as from 4 September
2018 until the date of effective payment.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amount mentioned under point 2. above.
5.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).
6.
In the event that the amount due plus interest in accordance with point 2. above is
not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amounts are paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
Player A, Country B / Club C, Country D
Page 9 of 10
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
8.
In the event that the aforementioned sum plus interest is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
*******
Note relating to the m otiv ated decision (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
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 Officer
Encl.
CAS directives
Player A, Country B / Club C, Country D
Page 10 of 10