Dispute Resolution Chamber
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021
regarding an employment-related dispute concerning the Player A
COMPOSITION:
Clifford J. Hendel (USA and France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stéphane Burchkalter (France), member
CLAIMANT:
Player A, Country A
Represented by XXX
RESPONDENT:
Club B, Country B
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I.
FACTS OF THE CASE
1.
On 29 August 2017, the Country A player, Player A (hereinafter: the player or the Claimant),
and the Country B club, Club B (hereinafter: the club or the Respondent), signed an
employment agreement valid as from 28 July 2017 until 31 May 2019 (hereinafter: the
employment contract).
2.
In accordance with clause 3 of the employment contract, the club undertook to pay to the
player, inter alia, the following remuneration:
a. Season 2017/2018: the total amount of EUR 480,000, as follows:
(i)
(ii)
(iii)
(iv)
EUR 100,000 on 30 August 2017;
EUR 50,000 on 30 October 2017;
EUR 40,000 on 30 January 2018; and
monthly remuneration of EUR 25,000 for 10 months (i.e. from 30 August
2017 until 30 May 2018).
b. Season 2018/2019: the total amount of EUR 400,000, as follows:
(i)
(ii)
(iii)
3.
EUR 75,000 on 30 September 2018;
EUR 75,000 on 30 October 2018; and
monthly remuneration of EUR 25,000 for 10 months (i.e. from 30 August
2018 until 30 May 2019).
On 15 January 2018, the same parties signed an amendment to the contract (hereinafter:
the amendment), by means of which they modified the amount of remuneration due to the
player, in verbis:
a. Season 2017/2018: the total amount was reduced to EUR 175,000, corresponding to
a lump sum of EUR 30,000 on 22 January 2018; and a monthly remuneration of EUR
14,500 for 10 months (i.e. from 30 August 2017 until 30 May 2018).
b. Season 2018/2019: the total amount was reduced to EUR 200,000, corresponding to
a monthly remuneration of EUR 20,000 for 10 months (i.e. from 30 August 2018 until
30 May 2019).
4.
Finally, clause 4 of the amendment established that the club should pay the player an
additional amount of EUR 322,500, to be paid in 8 monthly instalments of EUR 40,312
each, due by the 30th day of each month as from March until October 2018.
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5.
On 14 January 2019, the player put the club in default and granted it with a 15 days’
deadline in order to proceed payment of EUR 477,500, corresponding to his unpaid
remuneration until that date.
6.
On 30 January 2019, the player notified the club the termination of the employment
contract with just cause.
7.
On the same date, i.e. 30 January 2019, the Country B Football Federation (Country B FA)
acknowledged that “the termination has been entered to our records and hence, the
contractual relationship between [the player] and [the club] has been terminated”.
8.
On 1 February 2019, the player and the Country A club, Club A signed an employment
agreement valid as from the date of signature until 30 June 2019. Accordingly, said club
undertook to pay the player a monthly remuneration of Currency Country A 14,000.
9.
On 13 January 2021, the player filed the claim at hand before FIFA requesting, inter alia,
the following amounts:
(i)
Outstanding remuneration of EUR 477,500, plus 5% interest p.a. as from the due
dates until the date of effective payment, broken down as follows:
a. On EUR 11,500, as from 30 February 2018;
b. On EUR 14,500, as from 30 March 2018;
c. On EUR 14,500, as from 30 April 2018;
d. On EUR 14,500, as from 30 May 2018;
e. On EUR 20,000, as from 30 August 2018;
f. On EUR 20,000, as from 30 September 2018;
g. On EUR 20,000, as from 30 October 2018;
h. On EUR 20,000, as from 30 November 2018;
i. On EUR 20,000, as from 30 December 2018;
j. On EUR 40,312, as from 30 March 2018;
k. On EUR 40,312, as from 30 April 2018;
l. On EUR 40,312, as from 30 May 2018;
m. On EUR 40,312, as from 30 June 2018;
n. On EUR 40,312, as from 30 July 2018;
o. On EUR 40,312, as from 30 August 2018;
p. On EUR 40,312, as from 30 September 2018; and
q. On EUR 40,312, as from 30 October 2018.
(ii)
10.
Compensation for breach of contract in the amount of EUR 148,000, plus interest
of 5% as from 30 January 2019 until the date of effective payment.
In his claim, the player explained that the club repeatedly failed to comply with its financial
obligations and breached the contract by not paying his monthly entitlements. In this
regard, the player remarked that he acted in good faith and accepted to renegotiate the
payments due by the club, but the latter did still not pay a relevant part of his remuneration.
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11.
As result of the club’s successive breaches, the player concluded that he had just cause to
terminate the employment contract on 30 January 2019. Consequently, the player held
that, apart from the outstanding remuneration, he is also entitled to receive compensation
in accordance with art. 17 of the FIFA Regulations on the Status and Transfer of Players
(RSTP).
12.
As per the calculation, the player pointed out the residual value of the contract amounted
to EUR 100,000, corresponding to the salaries of January 2019 to May 2019. Moreover,
the player referred to the employment agreement signed with Club A for mitigation
purposes, as well as to the additional compensation – which should be taken into
consideration.
13.
In spite of being invited to do so, the club did not provide its reply to the player’s claim.
II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
14.
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 presented to FIFA on 13 January 2021 and submitted
for decision on 29 April 2021. Taking into account the wording of art. 21 of the January
2021 of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
15.
In continuation, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and observed 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 February 2021), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Country A player and a Country B club.
16.
At this point, the DRC referred to art. 25 par. 5 of the Regulations on the Status and Transfer
of Players (edition February 2021), which stipulates that the decision-making bodies of FIFA
shall not hear any dispute if more than two years have elapsed since the facts leading to
the dispute arose and that the application of this time limit shall be examined ex officio in
each individual case.
17.
In this context, the Chamber recalled that the present claim was lodged in front of the DRC
on 13 January 2021. Therefore, in line with art. 25 par. 5 of the Regulations, any amounts
fallen due before 13 January 2019 are affected by the statute of limitations. In casu, the
DRC noted that the player, inter alia, requested payment of his outstanding remuneration
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for the period from February until December 2018. Bearing in mind the foregoing, the DRC
concluded that the player’s request for outstanding remuneration is time-barred.
Consequently, this specific part of the player’s claim is considered inadmissible.
18.
Subsequently, 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 February 2021), and
considering that the present claim was lodged on 13 January 2021, the January 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
19.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
20.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
21.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
i. Main legal discussion and considerations
22.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the player lodged a claim against the club seeking payment
of outstanding remuneration (i.e. time-barred in line with par. 17, supra) and compensation
for breach of contract, claiming that he had just cause to terminate the contract.
23.
In this context, the DRC observed that the club, for its part, failed to present its response to
the claim of the player, in spite of having been invited to do so. In this way, the DRC
considered that the club renounced its right to defence and thus accepted the allegations
of the player.
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24.
As a consequence of the aforementioned consideration, the DRC concurred that in
accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis
of the documents already on file, in other words, upon the statements and documents
presented by the player.
25.
In light of the abovementioned, the DRC turned to the evidence on file and noted that it
was clear that upon the termination of the contract (i.e. 30 January 2019), not only the club
had been duly warned and granted a deadline of 15 days to cure its breach, but also the
payments defaulted amounted to more than two monthly salaries.
26.
The Chamber then recalled the solid DRC jurisprudence according to which such persistent
and substantial non-compliance of the contractual obligations by the club can justify the
unilateral termination of the agreement as well as it can hold the club liable for breach of
contract.
27.
Based on the foregoing and having in mind the contents of art. 14bis of the Regulations,
the DRC unanimously decided that the player had just cause to terminate the contract.
ii. Consequences
28.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the club.
29.
In this regard and taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the player is entitled to receive compensation from the club for the termination
of the contract with just cause.
30.
To this extent, the Chamber outlined that in accordance with the aforementioned 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 coach 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.
31.
In application of the relevant provision, the DRC held that it first had to clarify whether the
contract contained any clause by means of which the parties had previously agreed on
compensation payable by the contractual parties in the event of breach. 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.
32.
Subsequently, and in order to evaluate the compensation to be paid by the club, the DRC
took into account the remuneration due to the player in accordance with the employment
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contract as well as the time remaining on the same employment contract, along with the
professional situation of the player after the early termination occurred.
33.
For the sake of clarity, the members of the Chamber emphasized that in line with the
player’s claim and the evidence on file, there were still five months remaining to the expiry
of the contract at the time of termination (i.e. from January until May 2019).
34.
Consequently, taking into account the financial terms of the contract the members of the
DRC concurred that its remaining value from the early termination until the regular expiry
amounts to EUR 100,000 and that such an amount shall serve as the basis for the final
determination of the amount of compensation due for breach of contract.
35.
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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
36.
Indeed, the player found employment with Club A. In accordance with the pertinent
employment agreement, the player was entitled to an approximate monthly remuneration
of EUR 3,000 during the overlapping period of his new employment relationship and the
one previously established with the club. Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of EUR 12,000.
37.
Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to
overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
38.
In this respect, the DRC highlighted that theoretically the player would be entitled to EUR
60,000 as additional compensation. However, the Chamber recalled that as per the clear
wording of art. 17 of the Regulations, the amount of compensation (including any
additional compensation) cannot exceed the residual value of the contract.
39.
As a consequence, it was decided to award the amount of additional compensation of EUR
12,000 to the player.
40.
Therefore, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber unanimously decided that the club must pay the amount of
EUR 100,000 to the player (i.e. EUR 100,000 minus EUR 12,000 plus EUR 12,000) for breach
of contract in the present matter.
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41.
With regard to the claimed interest, the Chamber, applying the constant practice of the
DRC, decided to award the player 5% interest p.a. on the said amount as from the date of
the claim (i.e. 13 January 2021).
iii. Compliance with monetary decisions
42.
Finally, the Chamber referred to par. 1 lit. a) 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.
43.
In this regard, the DRC highlighted 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
44.
Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
45.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
46.
The DRC 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. 8
of the Regulations.
d.
Costs
47.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
48.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Player A, is partially accepted insofar as it is admissible.
2.
The Respondent, Club B, has to pay to the Claimant, the following amount:
- EUR 100,000 as compensation for breach of contract plus 5% interest p.a. as from 13
January 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
paid by the end of the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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