Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2015,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Rinaldo Martorelli (Country E), member
Damir Vrbanovic (Croatia), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player A, Country B
as Claimant
against the club
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 26 June 2013, the Player of Country B, Player A (hereinafter: the Claimant) and
the Club of Country D, Club C (hereinafter: the Respondent) concluded an
employment contract (hereinafter: the contract) valid as of 1 July 2013 until 30
June 2015.
2.
According to the contract, the Claimant was entitled to receive from the
Respondent inter alia a monthly salary of USD 83,333 payable “at the end of
Georgian month” and a “payment” of USD 500,000 payable on 1 July 2014.
3.
On 28 November 2014, the Claimant lodged a claim against the Respondent in
front of FIFA requesting as follows:
a. USD 166,666 as outstanding salaries of September and October 2014;
b. USD 500,000 as the outstanding payment due on 1 July 2014;
c. USD 666,664 as the remaining value of the contract;
d. USD 100,000 as moral damage;
e. 5% interest on all the amounts “as of the date on which [it] was
generated”.
4.
In particular, the Claimant explained that without any notice or warning, the
Respondent deregistered him, preventing him therefore from participating in any
official matches with the team. The Claimant pointed out that just before the FIFA
World Cup in Country E, he was injured reason for which the Respondent
substituted him with another player. Furthermore, the player stressed that the
Respondent always made late payments.
5.
Moreover, the Claimant enclosed an undated letter, with a DHL delivery
notification dated 12 October 2014, addressed to the Respondent, whereby he
stated as follows: “I was supposed to play in all competitions (…) To be able to
participate in competitions that take place in Country D must be enrolled in the
respective Federation and within the corresponding quota of foreigners (…) the
quota of foreign that I had were filled with another foreigner, therefore the
contract has been unfulfilled. This undoubtedly constitutes a unilateral breach of
the contract without justified cause by the club (…) and as the expressed contract
has been terminated in a unilaterally way, as this date I become detached from
your club…”
6.
On account of the above, the Claimant argued that his deregistration constitutes
a clear breach of the employment contract by the Respondent and the latter must
therefore be held liable for its consequences.
Player A, Country B / Club C, Country D
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7.
In its reply to the claim, the Respondent stressed that the Claimant was “called”
to join his national team for the FIFA World Cup in Country E, where he sustained
an injury. The Respondent ascertained that “after the injury [the Claimant] did
not return to [the Respondent] even if after the end of the [World Cup]”. In this
respect, the Respondent asserted that it booked a flight for the player and his
agent.
8.
Furthermore, the Respondent argued that on “29 September 2014”, the Claimant
joined once again his national team “but this time [he] did not return and sent
another letter asking for his payment”.
9.
The Respondent stressed that it replied to the Claimant’s letter described in point
I./5 above by e-mail, informing him as follows “Reference is made to your letter
sent (…) on 13 Oct 2014. In this regard, we would prefer to have a meeting with
you in person here in City in Country D after you are finished with your National
Team’s preparation for the FIFA Days to discuss all matters in relation to your
employment contract”. The Respondent further argued that it sent three more emails asking the player to return, however to no avail. In this respect, the
Respondent enclosed four e-mails dated 15 October, 23 November, 27 November
and 3 December 2014.
10.
As to the Claimant’s unpaid salaries, the Respondent sustained that the Claimant
“did not show up” and that is the reason of their non-payment. Furthermore, the
Respondent stressed that the player claimed for “two-month unpaid salaries” and
that “in accordance with art. 14 of the [FIFA Regulations] of which shall be for
over three months of unpaid salaries so that a player can terminate his
employment contract (…) thus, the termination is unjustified (…) [the Claimant]
mentioned in his claim that he was not paid the amount of USD 500,000. The
[FIFA Regulations] allows players to terminate employment contracts for monthly
salaries not for down payments”.
11.
As to the Claimant’s deregistration, the Respondent explained that the injury of
the Claimant prior to the World Cup was “extremely bad and he need long time
for recovery”. Therefore, the Respondent pointed out that in accordance with
“Article (43/3) of the Football Federation of Country D”, Clubs of Country D “[are
not required] to notify the players prior and/or after the replacement”. In this
regard, the Respondent argued that it “preferred to replace the player, who was
injured, to another fit player…”
12.
The above-mentioned art. 43/3 reads as follows: “Considering the provisions of
paragraph 2 of these regulations, premiere division clubs are allowed to register
two new additional non-Country D players during registration periods without
being obliged to provide the Committee with a financial settlement sheet for
Player A, Country B / Club C, Country D
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players who clubs wish to replace according to the following criteria…”
Moreover, said article 43/3 also provides, inter alia, that clubs who wish to replace
players must “undertake” to pay the replaced player’s monthly salaries “till the
date of the contract expiry” and that “replaced players may not be re-listed
except during the following registration period of their replacement”.
13.
In addition, the Respondent claimed that another reason for the Claimant’s
replacement was that he “did not appear to [the Respondent] at all. He preferred
to be away for unknown period of time without having a permission…”
14.
In his replica, the Claimant stressed that it is false that he did not return to the
Respondent after the World Cup. In this regard, he argued that he did use the
flight ticket provided by the Respondent, however he could only attend to
trainings as his deregistration had already taken place. According to the Claimant,
his call-up by the Football Federation of Country B to attend some friendly
matches proves that, at that moment, he was with the Respondent. What is more,
the Respondent’s statement “but this time the player did not return…” implies
that he did return after the World Cup.
15.
Furthermore, the Claimant ascertained that the only purpose of the Respondent’s
e-mails was to simulate an alleged breach of the contract by him. The player
emphasized in this respect that by the time the e-mails were sent, it was clear that
the Respondent had already deregistered him.
16.
As to art. 43/3, the Claimant pointed out that it compels the Respondent to cover
his salaries for the entire duration of the contract, which the latter failed to do.
17.
Finally, the Claimant reiterated the arguments of his reply.
18.
Despite having been asked to do so, the Respondent did not submit any further
comments.
19.
Upon FIFA’s request, the Claimant informed FIFA that he concluded a new
employment contract with the Club of Country F, Club G valid as of 1 January
2015 until 31 May 2016 and according to which, he is entitled to a monthly salary
10,000. Moreover, the Claimant explained that as of March 2015, he has been
receiving from Club G the amount of USD 2,000 “in view of his low salary and his
sporting performance”.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
DRC or the Chamber) analysed whether it was competent to deal with the matter
Player A, Country B / Club C, Country D
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at hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 28 November 2014. Consequently, the 2014 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the 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 2015), 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, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2015), and considering that the claim was lodged in front of
FIFA on 28 November 2014, the 2014 edition of the aforementioned 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, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts 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.
First of all, the Chamber acknowledged that, on 26 June 2013, the parties entered
into a valid employment contract in accordance with which the Respondent
undertook to pay the Claimant inter alia a monthly salary of USD 83,333 payable
at the end of each month plus a payment of USD 500,000 payable on 1 July 2014.
6.
In continuation, the Chamber noted that on 12 October 2014, the Claimant
terminated the contract alleging just cause since the Respondent deregistered
him, thus preventing him from playing any official matches with the team. In this
respect, the members of the Chamber took note that the Claimant argued that his
deregistration constitutes a clear breach of the employment contract by the
Respondent. What is more, the Chamber observed that the Claimant sustained
not having received his salaries of September and October 2014, plus the payment
payable on 1 July 2014.
Player A, Country B / Club C, Country D
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7.
Conversely, the Chamber took note of the Respondent’s argumentation in
accordance with which the Claimant did not return “even if after the end of the
[World Cup]” and that, according to the Respondent, on 29 September 2014, the
Claimant joined his national team “but this time did not return to the club”. In
this respect, the Chamber duly noted the e-mails sent by the Respondent to the
Claimant on 15 October, 23 November, 27 November and 3 December 2014.
8.
Furthermore, the members of the Chamber acknowledged that the Respondent
did not dispute not having paid the Claimant his salary of September 2014 and
the payment due on 1 July 2014, and that the reason of their non-payment was
due to the fact that the Claimant “did not show up”.
9.
As to the player’s deregistration, the Chamber took note of the Respondent’s
argument that in accordance with art. 43/3 of the Football Federation of Country
D Regulations, Clubs of Country D “[are not required] to notify the players prior
and/or after the replacement”. In this regard, the Respondent argued that it
“preferred to replace the player, who was injured, to another fit player…”
10.
Having established the aforementioned, the Chamber deemed that the
underlying issue in the dispute at hand, considering the claim of the Claimant and
the allegations of the Respondent, was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the
Claimant, and which party was responsible for the early termination of the
contractual relationship in question. The DRC also underlined that, subsequently,
it would be necessary to determine the consequences for the party that caused
the breach of the relevant employment contract.
11.
In this regard, first and foremost, the members of the Chamber highlighted that it
is undisputed that the Respondent deregistered the Claimant since it “preferred
to replace the player, who was injured, to another fit player…” The Chamber
further noted that the Respondent based the Claimant’s deregistration on art.
43/3 of the Football Federation of Country D Regulations, which, according to the
Respondent, establishes that Clubs of Country D “[are not required] to notify the
players prior and/or after the replacement”.
12.
With the above-mentioned considerations in mind, the members of the Chamber
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 be
given the possibility to compete with his fellow team mates in the team’s official
matches. In this respect, the Chamber emphasized that the deregistration of a
player effectively bars, in an absolute manner, the potential access of a player to
Player A, Country B / Club C, Country D
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competition and, as such, is violating one of his fundamental rights as a football
player.
13.
Therefore, the Chamber established that the deregistration of a player
constitutes, in principle, a breach of contract since it de facto prevents a player
from being eligible to play for his club. In this respect, the Chamber wished to
underline that the fact that the player had allegedly sustained an injury cannot be
considered as a justification to deregister him.
14.
In addition, it is undisputed that, at the moment of the termination of the
contract by the Claimant, the Respondent had failed to remit the Claimant’s salary
of September 2014 and the payment of USD 500,000 payable on 1 July 2014. In
this respect, the Respondent’s argument that the Claimant “did not show up”
cannot be upheld. The Chamber outlined that the Respondent’s allegation that
the player had not returned to the club after the 2014 FIFA World Cup had not
been supported by any evidence. In fact, the Chamber observed that the
Respondent indicated that at the end of September 2014, the player had once
again joined his national team, therewith contradicting its own statement that
the player had not returned after the 2014 FIFA World Cup. As such, the Chamber
concluded that the Respondent had not been able to prove its justification for the
non-payment of the two aforementioned amounts, which concerned a significant
amount of remuneration.
15.
On account of the above circumstances, the Chamber established that the
Respondent had obviously no longer been interested in the Claimant’s services
and had breached the contract by i) failing to remit the Claimant his salary of
September 2014 and the payment of 1 July 2014 without any valid reason and ii)
by deregistering him from the team. In the Chamber’s view, such conduct
constitutes a clear breach of contract. Accordingly, the Chamber concurred that
the Claimant had a just cause to unilaterally terminate the employment contract
on 12 October 2014. Consequently, the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant.
16.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract with just
cause by the Claimant.
17.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per the employment contract in accordance with the
general legal principle of pacta sunt servanda. Consequently, the Chamber
decided that the Respondent is liable to pay to the Claimant the remuneration
that was outstanding at the time of the termination i.e. USD 583,333 consisting of
Player A, Country B / Club C, Country D
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USD 500,000 as per the payment due on 1 July 2014, as well as USD 83,333 as per
his salary of September 2014.
18.
In addition, taking into consideration the Claimant’s claim and the Chamber’s
long-standing jurisprudence, the members of the DRC decided to award interest
on said amounts at the rate of 5% p.a. as of the due dates of each amount.
19.
In continuation, the Chamber 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 any outstanding salaries on
the basis of the relevant employment contract.
20.
In this context, the Chamber outlined that, in accordance with 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.
21.
In application of the relevant provision, the Chamber 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 a compensation payable
by the contractual parties 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.
22.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by the Respondent, the members of the Chamber took into account
the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In this
respect, the Chamber pointed out that at the time of the termination of the
contract, this would run for another nine months. Consequently, the Chamber
concluded that the remaining value of the contract as from its early termination
by the Claimant until its regular expiry amounts to USD 749,997, an amount which
shall serve as the basis for the final determination of the amount of compensation
for breach of contract.
23.
In continuation, the Chamber recalled that the Claimant had entered into a new
employment with the Club of Country F, Club G valid as of 1 January 2015 until 31
May 2016 and according to which, he is entitled to a monthly salary 10,000, which
Player A, Country B / Club C, Country D
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corresponds to approximately USD 800. Moreover, the members of the Chamber
took note that the Claimant had been receiving from the aforementioned Club of
Country F the amount of USD 2,000 as of March 2015. Consequently, in
accordance with the constant practice of the Dispute Resolution Chamber and the
general obligation of the Claimant to mitigate his damages, the above-mentioned
amounts shall be taken into account in the calculation of the amount of
compensation for breach of contract.
24.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of USD 737,197 to the Claimant as compensation for breach of
contract, which is considered by the Chamber to be a reasonable and justified
amount, as well as 5% interest p.a. over said amount as from the date of the
claim, i.e. 28 November 2014, until the date of effective payment.
25.
Furthermore and as to the Claimant’s request of USD 100,000 as moral damage,
the members of the Chamber referred to art. 12 art. 3 of the Procedural Rules and
concluded that the Claimant had not substantiated his claim in this regard and
thus decided to reject this part of the Claimant’s claim.
26.
Finally, the Chamber concluded its deliberations by establishing that any further
claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as
from the date of notification of this decision, outstanding remuneration in the
amount of USD 583,333 plus 5% interest p.a. until the date of effective payment
as follows:
a. 5% p.a. on the amount of USD 500,000 as of 2 July 2014;
b. 5% p.a. on the amount of USD 83,333 as of 1 October 2014
3.
The Respondent is ordered to pay to the Claimant, within 30 days as from the
date of notification of this decision, compensation for breach of contract in the
amount of USD 737,197 plus 5% interest p.a. as of 28 November 2014 until the
date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are 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.
Player A, Country B / Club C, Country D
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5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent, immediately and directly, of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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