Labour Disputes
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
Damir Vrbanovic (Croatia), member
Alejandro Marón (Argentina), member
Rinaldo Martorelli (Brazil), member
Johan van Gaalen (South Africa), 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 4 September 2013, the player from country B, Player A (hereinafter: the
Claimant), born on 2 December 1985, and the club from country D, Club C
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid as of the date of signature until 31 May 2016, “or any later date
on which an official match is played in the respective football season to be
effective for the 2015/2016 football season”.
2.
Pursuant to the contract, the Claimant was entitled to the following remuneration:
- 2013-14 season:
o EUR 75,000 as “advance payment after medical check”;
o EUR 225,000 payable in ten equal monthly instalments of EUR 22,500 each
on the 25th of the month, from October 2013 to July 2014;
- 2014-15 season: EUR 325,000 payable in twelve equal monthly instalments on the
25th of the month, from August 2014 to July 2015.
- 2015-16 season: EUR 350,000 payable in ten equal monthly instalments on the
25th of the month, from August 2015 to May 2016.
3.
Article VI of the contract contains a stipulation which reads as follows:
“a) In case of non-payment of “two consecutive salaries” in full or in part, [the
Claimant] should notify [the Respondent] in writing. If [the Respondent] should not
pay the notified amount in 60 (sixty) days starting from the due date of the second
unpaid salary, then [the Claimant] shall have the right to unilaterally terminate the
Contract with just cause.
b) In this case, [the Claimant] shall have the right to keep any and all amount
received from [the Respondent] until the termination date.
c) In case of termination by [the Claimant] due to delay in payment by [the
Respondent], [the Claimant] shall be entitled to receive as an indemnity due to the
breach by [the Respondent] of its payment obligations, all the amounts established
in this Contract including the payments due before and after the termination date,
with this situation being treated, as regards its consequences, as the same as that
of the unilateral termination without just cause on the part of [the Respondent].
Upon a termination by [the Claimant] this [Contract] as mention above and if [the
Claimant] is employed by a new Club after termination, [the Respondent] will be
responsible only for the payment of wages to the date of the new contract. [The
Claimant] shall not be entitled to receive any other compensation from [the
Respondent].
d) If [the Claimant] decides to terminate the present Contract unilaterally without
just cause, before the termination of its actual duration, [the Respondent] is
entitled to receive compensation”.
4.
On 15 May 2014, the Claimant put the Respondent in default of paying the
amount of EUR 67,500 corresponding to the salaries due on 25 February, 25 March
and 25 April 2014.
Player A, country B / Club C, country D
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5.
On 6 June 2014, the Respondent sent an e-mail to the Claimant informing him that
it will pay “the rest of the unpaid payments”, i.e. EUR 90,000, but only after
deduction of the penalty of EUR 75,000 that it imposed on him for his 6-match
ban. In addition, the Respondent stated that it would provide the Claimant with its
disciplinary regulations.
6.
On the same day, the Claimant replied by e-mail to the Respondent, alleging that
he did not understand how it could impose a penalty of EUR 75,000 for a 6-match
ban when his monthly salary, i.e. the salary received for playing an average of four
games, amounted to EUR 22,500. Furthermore, the Claimant informed the
Respondent that should it not comply with the contract, he would lodge a claim in
front of FIFA.
7.
By means of two correspondence sent on 18 July 2014, but received by the
Respondent on 21 July 2014, the Claimant reiterated his doubts regarding the
validity of the penalty. However, and should it be deemed valid and therefore
deduct from his dues, the Claimant outlined that part of his salary for April 2014,
i.e. EUR 15,000, and his salary for May 2014 would still be outstanding. In view of
the above, the Claimant requested the Respondent to pay him “the whole
amount” while emphasising that should it fail to do it, art. VI of the contract
would entitle him to terminate the contract with just cause.
8.
Subsequently, by means of a correspondence dated 26 July 2014, but received by
the Respondent on 31 July 2014, the Claimant terminated the contract in writing,
stressing that the Respondent failed to pay him his remuneration for seven
months, i.e. from January 2014 until July 2014, or at least four, should the penalty
be considered valid.
9.
On 7 August 2014, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting to be awarded with the amount of
EUR 852,500, broken down as follows:
- EUR 157,500, plus 5% interest as of 18 July 2014, as outstanding salaries for the
period as from January until July 2014;
- EUR 675,000, plus 5% interest as of 18 July 2014, as compensation corresponding
to the residual value of the contract;
- EUR 20,000 as moral damages.
In addition, the Claimant requested to be provided with salary sheets as well as
documents related to social security.
10.
In his claim, the Claimant reiterates the argumentation raised in the
correspondence addressed to the Respondent. Finally, the Claimant asserts that
should the Respondent prove the validity of the penalty, his outstanding
remuneration would be equivalent to EUR 82,500, i.e. three monthly salaries plus
EUR 15,000.
11.
In spite of having been invited to do so, the Respondent did not reply to the claim.
Player A, country B / Club C, country D
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12.
According to the information uploaded into the Transfer Matching System (TMS),
on 16 January 2015, the Claimant and the club from country F, Club E, concluded
an employment contract, valid until 30 June 2015 and according to which, the
Claimant was entitled to a total remuneration of EUR 30,000.
II.
Considerations of the Dispute Resolution Chamber
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 7 August 2014. Consequently, the 2014 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 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 and par. 2 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 from country B and a club from 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
(editions 2014 and 2015), and considering that the present claim was lodged on 7
August 2014, the 2014 edition of said regulations (hereinafter: 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 recalled that the parties had signed an employment
contract, valid as from 4 September 2013 until 31 May 2016, “or any later date on
which an official match is played in the respective football season to be effective
for the 2015/2016 football season”.
6.
In continuation, the members of the Chamber noted that the Claimant lodged a
Player A, country B / Club C, country D
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claim against the Respondent maintaining that he had terminated the
employment contract with just cause on 31 July 2014, after previously having put
the club in default, since the Respondent allegedly failed to pay him seven
monthly salaries. Consequently, the Claimant asks to be awarded with his
outstanding dues as well as with the payment of compensation for breach of the
employment contract.
7.
The Respondent, for its part, failed to present its response to the claim of the
Claimant, in spite of having been invited to do so. Consequently, the Chamber
deemed that the Respondent had renounced to its right of defence and, thus, had
accepted the allegations of the Claimant.
8.
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, a
decision shall be taken upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
9.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute was to determine whether the contract had been terminated
by the Claimant on 31 July 2014 with or without just cause. The DRC also
underlined that, subsequently, it would be necessary to determine the financial
consequences for the party that is to be held liable for the early termination of the
pertinent employment contract.
10.
In order to do so, the Chamber, first and foremost, recalled the content of art. VI
lit. a) of the contract, which stipulates that “[i]n case of non-payment of ‘two
consecutive salaries’ in full or in part, [the Claimant] should notify [the Respondent]
in writing. If [the Respondent] should not pay the notified amount in 60 (sixty)
days starting from the due date of the second unpaid salary, then [the Claimant]
shall have the right to unilaterally terminate the Contract with just cause”.
11.
In this respect, the DRC deemed it crucial to outline that it is remained
uncontested that the Respondent failed to pay the Claimant more than two
consecutive salaries, actually seven consecutive monthly salaries i.e. from January
until July 2014. Furthermore, the DRC stressed that it is also undisputed that the
Claimant put the Respondent in default in writing and then terminated the
contract more than sixty days after the due date of the second outstanding salary.
12.
On account of the aforementioned, the members of the Chamber concurred that
the Claimant had terminated the contract in accordance with art. VI of the
contract and had, therefore, just cause to do so.
13.
In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant, the
Chamber focused its attention on the consequences of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Player A, country B / Club C, country D
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Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract in addition to any outstanding payments on
the basis of the relevant employment contract.
14.
At this stage, the DRC made reference to its previous considerations and recalled
that at the time of the termination, the salaries from January until July 2014 were
outstanding.
15.
Consequently, in accordance with the principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay the Claimant the amount of
EUR 157,500 as outstanding remuneration corresponding to the salaries relating to
January until July 2014.
16.
In addition, taking into consideration the Claimant’s claim, the Chamber decided
to award the Claimant interest at the rate of 5% p.a. on the amount of EUR
157,500 as of 1 August 2014 until the date of effective payment.
17.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent 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 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.
18.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision 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 context, the members of the Chamber recalled the content of art.
VI lit. c) and d) of the contract which provide that “[i]n case of termination by [the
Claimant] due to delay in payment by [the Respondent], [the Claimant] shall be
entitled to receive as an indemnity due to the breach by [the Respondent] of its
payment obligations, all the amounts established in this Contract including the
payments due before and after the termination date, with this situation being
treated, as regards its consequences, as the same as that of the unilateral
termination without just cause on the part of [the Respondent]. Upon a
termination by [the Claimant] this [Contract] as mention above and if [the
Claimant] is employed by a new Club after termination, [the Respondent] will be
responsible only for the payment of wages to the date of the new contract. [The
Claimant] shall not be entitled to receive any other compensation from [the
Respondent]” and that “if [the Claimant] decides to terminate the present
Player A, country B / Club C, country D
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Contract unilaterally without just cause, before the termination of its actual
duration, [the Respondent] is entitled to receive compensation”.
19.
The members of the Chamber duly analysed the contents of said clause and
acknowledged that the aforementioned art. VI lit. c) of the contract provides that,
upon the termination of the contract with just cause by the Claimant and if the
Claimant signs a new contract, the Respondent’s obligation to pay compensation is
limited to the starting date of the potential new employment relationship, no
matter the (low) value of this new contract in comparison with the contract
concluded between the Claimant and the Respondent. In this respect, the DRC
referred to the player’s general obligation to mitigate his damages, which is
commonly interpreted as an obligation for the player to do his best to enter into a
new employment contract after the termination of his previous contract. In view
of the above, the Chamber stressed that the Claimant’s strict compliance with his
obligations would have as a consequence the Respondent’s total release of its
obligation to pay compensation.
20.
In addition, the Chamber considered that art. VI of the contract does not grant the
same rights to the parties, since it provides for a method of mitigation of the
compensation payable to the Claimant in case of breach of contract by the
Respondent, whereas it stipulates that the Respondent will be entitled to an
imprecise amount of compensation without any possibility of mitigation, in case
the breach would be attributable to the Claimant.
21.
Based on the above-mentioned considerations, the members of the Chamber
agreed that art. VI of the contract is to the benefit of the Respondent, i.e. it lacks
of proportionality as it does not grant the same rights to the Claimant than to the
Respondent and that, therefore, said clause cannot be taken into consideration in
the determination of the amount of compensation.
22.
On account of the foregoing, the Chamber decided that art. VI lit. c) of the
contract could not be taken into consideration in the determination of the amount
of compensation.
23.
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. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of
compensation payable.
24.
Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the
terms of the employment contract until 31 May 2016, taking into account that the
Claimant´s remuneration until July 2014 is included in the calculation of the
outstanding remuneration. Consequently, the Chamber concluded that the
Player A, country B / Club C, country D
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amount of EUR 675,000, i.e. remuneration as from August 2014 until May 2016,
serves as the basis for the determination of the amount of compensation for
breach of contract.
25.
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 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.
26.
Indeed, on 16 January 2015, the Claimant found employment with the club from
country F, Club E. In accordance with the pertinent employment contract, valid
until 30 June 2015, the Claimant is entitled to receive a total remuneration of EUR
30,000. In addition, and considering that the Claimant’s new contract is due to
expire on 30 June 2015 whereas his previous contract was supposed to expire on
31 May 2016, the DRC deemed that the Claimant will have the opportunity to
further mitigate his loss.
27.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 600,000 to the Claimant, which was to be considered a
reasonable and justified amount of compensation for breach of contract in the
present matter.
28.
Moreover, taking into account the Claimant’s request, 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. 7 August 2014,
until the date of effective payment.
29.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for moral damages in the amount of EUR 20,000. In this regard, the
Chamber deemed it appropriate to point out that the request for said
compensation presented by the Claimant had no legal or regulatory basis and
pointed out that no corroborating evidence had been submitted that
demonstrated the damage suffered or its quantity.
30.
In continuation, the Chamber focused its attention on the further consequences of
the breach of contract in question and, in this respect, addressed the question of
sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates inter alia that, in addition to the obligation to pay
compensation, sporting sanctions shall be imposed on a club found to be in breach
of contract during the protected period.
31.
Subsequently, the members of the Chamber referred to item 7 of the “Definitions”
Player A, country B / Club C, country D
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section of the Regulations, which stipulates, inter alia, that the protected period
shall last “for three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the
28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this respect, the
Chamber took note that the breach of the employment contract by the
Respondent had occurred on 31 July 2014, i.e. 10 months following the entry into
force of the contract at the basis of the dispute. Therefore, the Chamber
concluded that, irrespective of the Claimant’s age, such breach of contract by the
Respondent had occurred within the protected period.
32.
As a result, by virtue of art. 17 par. 4 of the Regulations and considering that the
Claimant terminated the contract with the Respondent with just cause and,
consequently, the Respondent was to be held liable for the early termination of
the employment contract, the Chamber decided that the Respondent shall be
banned from registering any new players, either nationally or internationally, for
the two next entire and consecutive registration periods following the notification
of the present decision. In this regard, the Chamber emphasised that apart from
the Respondent having clearly acted in breach of the contract within the protected
period in the present matter, the Respondent had also on several occasions in the
recent past been held liable by the Chamber for the early termination of the
employment contracts with the players Player G (case. ref. nr. xxxxxxx; decided on
31 October 2013), Player H (case ref. nr. xxxxxxx; decided on 10 April 2015) and
Player I (case ref. nr. xxxxxx; decided on 24 April 2015).
33.
The Dispute Resolution Chamber concluded its deliberations in the present matter
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, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, outstanding remuneration in the amount of EUR
157,500, plus 5% interest p.a. on said amounts as from 1 August 2014 until the date of
effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract amounting to EUR
600,000, plus 5% interest p.a. on said amounts as from 7 August 2014 until the date of
effective payment.
4.
In the event that the amounts plus interest due to the Claimant in accordance with the
above-mentioned points 2. and 3. are not paid by the Respondent within the stated
Player A, country B / Club C, country D
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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
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.
7.
The Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
*****
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:
Markus Kattner
Deputy Secretary General
Player A, country B / Club C, country D
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Encl. CAS directives
Player A, country B / Club C, country D
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