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, 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.
The Player of Country B, Player A (hereinafter: the Claimant), and the Club of
Country D, Club C (hereinafter: the Respondent) entered into an employment
contract valid from 13 January 2017 until 31 May 2019.
2.
According to art. 3 of the contract, the Claimant was entitled to receive a lump
sum payment of EUR 50,000 on 16 January 2017, and a monthly salary of EUR
25,000 payable on the 30th of each month from February to May 2017.
3.
In addition, art. 3 foresees that for the seasons 2017/2018 and 2018/2019, the
Claimant would be entitled to receive a monthly remuneration of EUR 20,000
payable on the 30th of each month from August to May (i.e. EUR 200,000 per
season), as well as two lump sum payments of EUR 50,000 payable in August and
October (i.e. EUR 100,000 per season) and an appearance bonus of EUR 1470 “per
match”.
4.
Moreover, art. 24 of the contract stipulates, inter alia, that the Respondent shall
“provide (…) a 2,500 will be paid rental allowance for the [Claimant] (sic)”.
5.
On 2 August 2017, the Claimant was loaned out for the season 2017/2018 to the
Club of Country E, Club F. The Claimant and the Respondent signed an “addendum
to the contract of employment”, according to which the Claimant and the
Respondent agreed to the suspension of the contract for the duration of the loan,
from 3 August 2017 until 30 June 2018, and agreed on the payment of a lump sum
of EUR 50,000 payable in two equal instalments on 31 August and 31 October
2017.
6.
Between 13 September and 1 November 2018, the Claimant apparently sent four
correspondences to Club C, by means of which he, inter alia, requested the
outstanding payment of the lump sum payment due in August 2018, as well as the
monthly salaries and housing allowances that had not been paid to him since
August 2018. In addition, the Claimant alleged that the Respondent was
“mobbing” him by forcing him to train alone and not giving him access to the
same facilities as the rest of the first team. In addition, the Claimant declared that
the Respondent de-registered him which meant that he was apparently no longer
eligible to play in official matches for the Respondent. As such, the Claimant
requested the “mobbing” to end, to be re-integrated with the first team and reregistered “immediately”. In his final correspondence dated 1 November 2018, the
Claimant also gave the Respondent a 30 November 2018 deadline to comply with
his above injunctions.
7.
On 20 September and 4 October 2018, the Respondent sent two letters to the
Claimant by means of which it, inter alia, denied the allegations of “mobbing”,
stated that the Claimant was given access to the first team facilities, and declared
that the payments of outstanding remunerations would be processed.
Player A, Country B / Club C, Country D
2/11
8.
On 3 December 2018, the Claimant sent to the Respondent a correspondence by
means of which he informed the latter of the unilateral termination of the
contract with immediate effect and declared that he would lodge a claim in front
of the FIFA Dispute Resolution Chamber “based on the fact that the [Respondent]
failed to comply with its contractual obligations towards the player”.
9.
On 18 December 2018, the Claimant lodged a claim against the Respondent in
front of FIFA, arguing that since July 2018 the Respondent had repeatedly
breached the contract it signed with him on 13 January 2017, and requested the
following to be awarded:
a) The payment of EUR 160,000 and 7,500 of overdue payables, amounting to:
i. EUR 100,000 representing the 2 lump sum payments of EUR 50,000 due
in August 2018 and October 2018;
ii. The salaries for August, September and October 2018, i.e. EUR 20,000 x
3 = EUR 60,000;
iii. The rental allowance for August, September and October 2018, i.e.
2,500 x 3 = 7,500;
b) The payment of EUR 140,000 corresponding to the residual value of the
contract that was unilaterally terminated by the Claimant, that is to say
salaries from November 2018 until May 2019, i.e. EUR 20,000 x 7 = EUR
140,000;
c) The payment of EUR 120,000 as “compensation because of the unjust
contract’s termination by the [Respondent]”; and
d) The payment of 5% interest from “each relevant due date until the date of
effective receipt by the [Claimant] of the amount eventually determined by
the Tribunal (DRC)”.
10.
The Claimant also provided video clips evidencing that he and another player had
apparently been training on an auxiliary pitch, separate from the rest of the first
team, and that he had been using a separate dressing room.
11.
In its reply to the claim, the Respondent stated that the Claimant had never been
ostracised from its facilities and first team, and that he had been following a
specific training programme following the treatment of an apparent long-term
injury. In this regard, the Respondent explained that the Claimant had been given
“private/extra programmes sometimes, in order to catch the level of the first
team”, and vehemently denied any “allegation of mobbing”.
Player A, Country B / Club C, Country D
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12.
In addition, the Respondent attached untranslated “payments documents”,
apparently indicating that some payments were made to the Claimant between
January 2017 and September 2018.
13.
Finally, the Respondent rejected the Claimant’s EUR 120,000 claim as
“compensation” for breach of contract, insisting that it does not see any “legal
ground” upon which such compensation could be awarded.
14.
On 27 March 2019, the Claimant confirmed that he has remained unemployed
since he unilaterally terminated his contract with the Respondent.
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 18 December 2018. Consequently, the 2018 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 2018 edition 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 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 June 2018), and considering that the present claim was lodged on 18
December 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. 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.
Player A, Country B / Club C, Country D
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5.
In this respect, the Chamber first acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 13 January 2017 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 lump sum payment of EUR
50,000 on 16 January 2017, and a monthly salary of EUR 25,000 payable on the 30 th
of each month from February to May 2017 and (2) for the seasons 2017/2018 and
2018/2019, a monthly remuneration of EUR 20,000 payable on the 30th of each
month from August to May (i.e. EUR 200,000 per season), as well as two lump sum
payments of EUR 50,000 payable in August and October of each relevant season
(i.e. EUR 100,000 per season). In addition, the DRC noted that art. 24 of the
contract stipulates, inter alia, that the Respondent shall “provide (…) a 2,500 will
be paid rental allowance for the [Claimant] (sic)”.
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 14 December 2018 based on the fact that the Respondent had not
complied with its financial obligations, namely the payment of two lump-sum fees
as well as three monthly salaries, and this despite having been put in default on
several occasions prior to the termination. The Chamber also noted that the
Claimant had requested to be re-registered with the Respondent and re-integrated
to its first team on several occasions. Furthermore, the DRC took note that the
Claimant made various complaints to the Respondent which he accused of
mobbing. The Chamber additionally acknowledged the Claimant’s video clips
provided with his claim.
7.
The DRC 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 160,000 and 7,500 as
outstanding remuneration plus interest, corresponding to EUR 100,000 as the two
lump-sum fees of EUR 50,000 payable in August 2018 and October 2018, EUR
60,000 and 7,500 representing the salaries and rental allowances of August,
September and October 2018.
9.
The Claimant further requested the amount of EUR 140,000 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.
What is more, the Claimant requested the award of EUR 120,000 as additional
compensation for breach of contract.
11.
The Chamber took note of the argumentation of the Respondent which held that
the Claimant was not being cast away from its first team but rather that he was
following a specific training regimen that comprised additional and individual
Player A, Country B / Club C, Country D
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training sessions. As to the mobbing allegations, the DRC observed that these were
denied by the Respondent. In addition, the Chamber took into consideration the
untranslated documents which indicated that payments had apparently been
made to the Claimant between January 2017 and September 2018.
12.
Having paid particular attention to the arguments of the parties, the DRC first paid
attention to the fact that the Claimant had claimed that the Respondent had
mobbed him by, inter alia, forcing him to train alone. Based on the evidence at its
disposal in that regard, the Chamber declared that it was not in a position to
objectively determine whether the Claimant was effectively training alone, and
whether such circumstance was due to medical reasons, as sustained by the
Respondent, or else. In other words, the DRC was of the opinion that the Claimant
had not provided conclusive evidence in support of this particular allegation.
13.
However, the DRC highlighted that the Respondent did not contest that it had deregistered the Claimant, and did not provide evidence that it had registered the
Claimant again following his several injunctions to do so. As such, the DRC was of
the opinion that such situation might have led the Claimant to legitimately believe
that the Respondent was no longer interested in his services.
14.
In view of the above, the members of the DRC considered important to point out,
as has been previously sustained by the DRC, 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. In
this context, the DRC emphasized that in principle, by refusing to register a player,
a club is effectively barring, in an absolute manner, the potential access of a player
to competition and, as such, violating one of his fundamental rights as a football
player.
15.
Then, the DRC 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.
16.
In this respect, the DRC noted that the Respondent merely submitted untranslated
“payments documents”. The Chamber first recalled that, in accordance with art. 9
par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of
a dispute in front of FIFA should be presented in the original version and, if
applicable, translated into one of the official FIFA languages (English, French,
Spanish and German). Bearing in mind the wording of the aforementioned
provision, the Chamber concluded that said documents provided by the
Respondent without a translation in one of the official FIFA languages could not
be taken into account.
Player A, Country B / Club C, Country D
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17.
In view of the foregoing, the Chamber concluded that the Respondent did not put
forward any reason to justify the outstanding payments nor provided any
substantial proof that any of the alleged outstanding payments were made to the
Claimant.
18.
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 four occasions. Furthermore, the Chamber duly noted that on
the date of the termination of the contract, i.e. 14 December 2018, four monthly
salaries and three rental allowances as well as two lump-sum fees remained
outstanding, for a total amount of EUR 180,000 and 7,500. What is more, the
Chamber underlined that the Claimant had, in his last default notice dated 1
November 2018, given a 30-days deadline to the Respondent.
19.
Recalling the provisions set out in art. 14bis par. 1 according to which in the case
of a club unlawfully failing to pay a player at least two monthly salaries on their
due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a
deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s), 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.
20.
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.
21.
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 and 7,500,
consisting of four monthly salaries of EUR 20,000 each as from August until and
including November 2018, two lump sum payments of EUR 50,000 payable in
August and October 2018 and three rental allowances of 2,500 for the months of
August, September and October 2018.
22.
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.
23.
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.
Player A, Country B / Club C, Country D
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24.
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.
25.
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.
26.
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 120,000 and that such
amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract
27.
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.
28.
In this respect, the Chamber noted that the Claimant indicated that he had
remained unemployed since unilaterally terminating his contract with the
Claimant.
29.
In line with the provisions set out in art. 17 par. 1 lit. i, the DRC determined that in
the present case, the compensation awarded to the Claimant shall be equal to the
residual value of the contract that was prematurely terminated. As such, the
Chamber concluded that the Respondent is liable to pay to the Claimant the
amount of EUR 120,000 as compensation for breach of contract.
30.
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
Player A, Country B / Club C, Country D
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of compensation as of the date on which the claim was lodged, i.e. 18 December
2018, until the date of effective payment.
31.
The DRC concluded its deliberations in the present matter establishing that any
further claim lodged by the Claimant was rejected.
32.
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.
33.
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.
34.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
35.
Finally, the Chamber recalled that the above-mentioned sanction 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.
*****
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 the amounts of
EUR 180,000 and 7,500 plus 5% interest p.a. as follows:
Player A, Country B / Club C, Country D
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a.
on the amounts of EUR 20,000 and 2,500 as of 31 August 2018 until the date
of effective payment;
b.
on the amount of EUR 50,000 as of 1 September 2018 until the date of
effective payment;
c.
on the amounts of EUR 20,000 and 2,500 as of 1 October 2018 until the date
of effective payment;
d.
on the amounts of EUR 20,000 and 2,500 as of 31 October 2018 until the date
of effective payment;
e.
on the amount of EUR 50,000 as of 1 November 2018 until the date of
effective payment;
f.
on the amount of EUR 20,000 as of 1 December 2018 until the date of
effective payment.
3. The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of EUR 120,000, plus 5% interest p.a. on said amount as from 18
December 2018 until the date of effective payment.
4. Any further claim lodged by the Claimant is rejected.
5. 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
amounts mentioned under point 2. and 3. above.
6. The Respondent shall provide evidence of payment of the due amounts in
accordance with points 2. and 3. 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).
7. In the event that the amounts due in accordance with points 2. and 3. above are 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).
8. The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player A, Country B / Club C, Country D
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9. In the event that the aforementioned sums are 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 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
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
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