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 (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, from country A
as Claimant
against the club,
Club B, from country B
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
The Player A, from country A (hereinafter: the Claimant), and the Club B, from
country B (hereinafter: the Respondent) entered into an employment contract
valid from 6 January 2016 until 31 May 2019.
2.
According to art. 3 of the contract, the Claimant was entitled to receive for the
season 2015/2016 a remuneration of EUR 140,000 paid in 5 monthly arrears of EUR
28,000 starting on 25 January 2016, along with a lump sum payment of EUR
100,000 to be paid “after [the Claimant] get professional football licence”.
3.
In addition, art. 3 foresees that for the season 2016/2017 the Claimant would be
entitled to receive a remuneration of EUR 285,000 paid in 10 monthly arrears of
EUR 28,500 starting on 25 August 2016.
4.
Moreover, art. 3 indicates that for the season 2017/2018 the Claimant would be
entitled to receive a remuneration of EUR 350,000 paid in 10 monthly arrears of
EUR 25,000 starting on 25 August 2017, along with a lump sum payment of EUR
100,000 to be paid “cash on 25.07.2017”.
5.
Furthermore, art. 3 states that for the season 2018/2019 the Claimant would be
entitled to receive a remuneration of EUR 350,000 paid in 10 monthly arrears of
EUR 25,000 starting on 25 August 2017, along with a lump sum payment of EUR
100,000 to be paid “cash on 25.07.2018”.
6.
On 30 October 2017, the Claimant sent a correspondence to the Respondent by
means of which he declared, inter alia, that the Respondent had not paid part of
the lump sum due on 25 July 2017 as well as three monthly salaries. Consequently,
the Claimant put the Respondent in default and requested the amount of EUR
155,000 to be paid “within 10 days”.
7.
On 3 November 2017, the Respondent sent to the Claimant a letter in which it
stated that it had been delaying some payments to the Claimant due to
“temporary financial problems” and that the situation would be regularised “in
the shortest time possible”.
8.
On 8 November and 27 November 2017, the Claimant sent two further letters to
the Respondent, indicating, inter alia, that he had still not received the
outstanding remunerations he claimed to be due in his letter dated 30 October
2017, and that an additional EUR 25,000 fell due in the meantime. The Claimant
ordered the Respondent to process with the aforementioned payments otherwise
he would “unilaterally terminate his contract”.
9.
On 11 December 2017, the Claimant sent to the Respondent a correspondence by
means of which he, inter alia, informed the latter of the unilateral termination of
the contract with immediate effect.
Player A, from country A / Club B, from country B
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10.
On 14 December 2017, the Claimant lodged a claim against the Respondent in
front of FIFA, arguing that since July 2017 the Respondent had repeatedly not
complied with its financial obligations set out in the contract it signed with the
player on 6 January 2016, thus leading him to terminate the contract with just
cause on 11 December 2017, and requested the following to be awarded:
(a) The payment of EUR 180,000 of overdue payables, amounting to:
- EUR 80,000 representing the alleged remainder of the payment due on 25 July
2017;
- The salaries for August, September, October and November 2017, i.e. EUR
25,000 x 4 = EUR 100,000;
(b) The payment of EUR 500,000 corresponding to the residual value of the
contract that was unilaterally terminated by the Claimant, that is to say salaries
from December 2017 until May 2019, i.e. EUR 25,000 x 16 = EUR 400,000 and
the lump sum payment of EUR 100,000 that was due on 25 July 2018;
(c) The payment of 5% interest from the due date of the overdue payables claims
and from 11 December 2017 for the total amount claimed as residual value of
the contract.
11.
In its reply to the claim, the Respondent started by alleging that the Claimant had
not been performing well between January 2016 and May 2016, and was
subsequently loaned out to another country B club, Club C, where he apparently
“could not show the expected performance”.
12.
As to the substance, the Respondent is of the opinion that the claim of the
Claimant should be rejected on the basis that he terminated his contract without
just cause.
13.
In fact, the Respondent indicated that it had apparently been facing some
“temporary financial difficulties” which caused payments to players to be delayed,
and that the Claimant used this situation to terminate the contract and claim
compensation. The Respondent declared that “the main intention of the Player
[was] to terminate his contract, sign a new contract with a new club in his country
and receive compensation from [the Respondent]”. In addition, the Respondent
mentioned that it did not receive the Claimant’s final warning dated 27 November
2017, and considers that the fact that the Claimant found a new club “only 18 days
from his unilateral termination” denotes that he “did not act in good faith”.
14.
Then, the Respondent stated that, in the event of the DRC holding that the
Claimant had just cause to terminate the contract and that compensation is due,
the compensation he claimed would be excessive and deductions should be
applied.
Player A, from country A / Club B, from country B
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15.
In this respect, the Respondent first indicated that since terminating his contract,
the Claimant had apparently entered into two further agreements with the Club
D, from country A on 1 January 2018 and with the Club E, from country E on 5 July
2018, and argued that the remuneration received through these contracts shall be
deducted from the calculation of compensation. In addition, the Respondent
stated that the Claimant agreed to enter into these agreements of his own free
will, and that should there be a negative difference between what he was meant
to earn from the Respondent and what he earned with his new employers, the
Respondent should not be held liable for said potential difference.
16.
Then, the Respondent stated that an “equity deduction” should be additionally
applied to the amount awarded as compensation, on the grounds that by
terminating his contract unilaterally the Claimant stopped providing services to the
Respondent and that as such “it will be unfair that he will receive the residual
amount of his contract as compensation”.
17.
The player informed FIFA that on 1 January 2018, the Claimant and the Club D,
from country A entered into an employment contract valid from 1 January 2018
until 1 January 2020, according to which he would be entitled to receive a monthly
fixed remuneration of EUR 2,300.
18.
The player further informed FIFA that on 5 July 2018, the Claimant and the Club E,
from country E entered into an employment contract valid from 5 July 2018 until 5
July 2019, according to which he would be entitled to receive a monthly fixed
remuneration of EUR 2,000, along with a lump sum of EUR 10,000 due in July 2018
and a lump sum of EUR 5,000 due in January 2019.
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 14 December 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 2017 and 2018 editions 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 DRC is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a Player from country A and a club from country B.
Player A, from country A / Club B, from country B
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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
(editions 2016 and 2018), and considering that the present claim was lodged on 14
December 2017, the 2016 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. The members
of the Chamber started by acknowledging 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 the facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
In this respect, the Chamber first acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 6 January 2016 until 31
May 2019. In this respect, the Chamber observed that according to art. 3 of the
contract, the Claimant was entitled to receive (1) a remuneration of EUR 140,000
for the season 2015/2016, paid in 5 monthly arrears of EUR 28,000 starting on 25
January 2016, along with a lump sum payment of EUR 100,000 to be paid “after
[the player] get professional football licence”; (2) a remuneration of EUR 285,000
for the season 2016/2017, paid in 10 monthly arrears of EUR 28,500 starting on 25
August 2016; (3) a remuneration of EUR 350,000 for the season 2017/2018, paid in
10 monthly arrears of EUR 25,000 starting on 25 August 2017, along with a lump
sum payment of EUR 100,000 to be paid “cash on 25.07.2017”, and (4) a
remuneration of EUR 350,000 for the season 2018/2019 paid in 10 monthly arrears
of EUR 25,000 starting on 25 August 2017, along with a lump sum payment of EUR
100,000 to be paid “cash on 25.07.2018”.
6.
In continuation, the DRC noted that the Claimant lodged a claim against the
Respondent arguing that he had terminated the employment contract with just
cause on 11 December 2017 invoking that the Respondent had not complied with
its financial obligations, namely the full payment of a signing-on fee as well as 4
monthly salaries, and this despite having been put in default on several occasions
prior to the termination.
7.
The Chamber observed that as a consequence the Claimant asked to be awarded
the aforementioned outstanding dues along with the payment of compensation
for breach of the employment contract.
8.
In this respect, the Claimant requested to be awarded EUR 180,000 as outstanding
remuneration plus interest, corresponding to EUR 80,000 as the remainder of the
Player A, from country A / Club B, from country B
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signing-on fee, and EUR 100,000 representing the salaries of August, September,
October and November 2017.
9.
The Claimant further requested the amount of EUR 500,000 plus interest, as
compensation for breach of contract, corresponding, according to the Claimant, to
the residual value of the contract as from the termination until 31 May 2019.
10.
The Chamber took note of the argumentation of the Respondent which held that
the Claimant took advantage of its “temporary financial difficulties”, which caused
delays in remunerating the Claimant, in order to terminate the contract and claim
compensation.
11.
Having paid particular attention to the arguments of the parties, the DRC first
took into account that at no point during the proceedings the Respondent denied
that the remunerations referred to by the Claimant in his default notices and his
claim had remained outstanding. The Chamber agreed that the main reason put
forward by the Respondent in its defence, namely the club’s financial hardship,
cannot be considered a valid reason to justify the outstanding payments.
12.
Then, the DRC vigorously highlighted that the Respondent had not remedied the
default in payments in spite of having been given the opportunity by the Claimant
to do so in at least two occasions. Furthermore, the Chamber duly noted that on
the date of the termination of the contract, i.e. 11 December 2017, four monthly
salaries and the most part of a lump-sum fee remained outstanding, for a total
amount of EUR 180,000.
13.
Consequently, in view of the foregoing and in line with the DRC’s longstanding
jurisprudence in this respect, the Chamber concluded that the Claimant had just
cause to unilaterally terminate the contract and that, as a result, the Respondent is
to be held liable for the early termination of the employment contract.
14.
Bearing in mind the previous considerations, the Chamber turned its attention to
the consequences of the early termination of the contract with just cause by the
Claimant.
15.
First of all, the DRC concurred that the Respondent must fulfil its obligations as per
the employment contract up and until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”.
Consequently, the DRC decided that the Respondent is liable to pay to the
Claimant outstanding remuneration in the amount of EUR 180,000, consisting of
four monthly salaries of EUR 25,000 each as from August until and including
November 2017 as well as EUR 80,000 as the remainder of the lump-sum fee
payable in July 2017.
Player A, from country A / Club B, from country B
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16.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. as of the respective
due dates of the aforementioned sums until the date of effective payment.
17.
Furthermore, the DRC decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to the aforementioned
outstanding remuneration.
18.
In this context, the Chamber outlined that, in accordance with the 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
Claimant under the existing contract and/or the new contract, the time remaining
on the existing contract up to a maximum of five years, and depending on
whether the contractual breach falls within the protected period.
19.
In application of the relevant provision, the DRC 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 an amount of compensation
payable by the contractual parties in the event of breach of contract. In this
regard, the DRC established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
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.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as
from its early termination until its regular date of expiry. In this respect, the DRC
concluded that the remaining value of the contract as from its early termination
until the regular expiry of the contract amounts to EUR 500,000 and that such
amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract
21.
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 able 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.
Player A, from country A / Club B, from country B
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22.
Indeed, the Chamber took note that the Claimant signed two new employment
contracts, with Club D on 1 January 2018 and with Club E on 5 July 2018 until 5
July 2019. According to these two agreements, the Claiamnt would be entitled to
receive a total fixed remuneration of EUR 51,680 for the period 11 December 2017
– 31 May 2019.
23.
Taking into account all the aforementioned elements as well as the specificities of
the matter at hand, the DRC decided that the Respondent is liable to pay to the
Claimant the amount of EUR 448,320 as compensation for breach of contract.
24.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount
of compensation as of the date on which the claim was lodged, i.e. 14 December
2017, until the date of effective payment.
25.
The DRC concluded its deliberations in the present matter establishing that any
further claim lodged by the Claimant was rejected.
*****
Player A, from country A / Club B, from country B
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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 B, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, the amount of EUR 180,000 plus 5% interest
p.a. as follows:
a.
b.
c.
d.
e.
on the amount of EUR 80,000 as of 26 July 2017 until the date of effective
payment;
on the amount of EUR 25,000 as of 26 August 2017 until the date of effective
payment;
on the amount of EUR 25,000 as of 26 September 2017 until the date of
effective payment;
on the amount of EUR 25,000 as of 26 October 2017 until the date of effective
payment;
on the amount of EUR 25,000 as of 26 November 2017 until the date of
effective payment.
3.
The Respondent has to pay 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 448,320 plus 5% interest p.a. on said amount as from 14 December 2017 until
the date of effective payment.
4.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. and 3. is not paid by the Respondent within the stated time
limits, 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.
Player A, from country A / Club B, from country B
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6.
The Claimant is directed to inform the Respondent 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.
*****
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, from country A / Club B, from country B
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