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
Johan van Gaalen (South Africa), member
Damir Vrbanovic (Croatia), member
on the matter between the club,
Club A, Country B
as 1st Claimant / 2nd Respondent
and the player,
Player C, Country D
as 2nd Claimant / 1st Respondent
and the club
Club E, Country F
as 1st Co-Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 23 July 2012, the Club of Country B, Club A and the Player C (hereinafter: the
player) concluded an employment contract (hereinafter: the first contract) valid as
of 24 July 2012 until 23 July 2015.
2.
According to the first contract, the player was entitled to receive from Club A as
follows:
a. For the season 2012/2013
i. USD 54,166 as monthly salary payable at the end of each month;
ii. USD 650,000 as advance payment payable on 1 August 2012 and
“deemed as earn pro-rata”
b. For the season 2013/2014
i. USD 60,416 as monthly salary payable at the end of each month;
ii. USD 725,000 as advance payment payable on 1 August 2013 and
“deemed as earn pro-rata”
c. For the season 2014/2015
i. USD 66,666 as monthly salary payable at the end of each month;
ii. USD 800,000 as advance payment payable on 1 August 2014 and
“deemed as earn pro-rata”
3.
Moreover, clause 7 of the first contract stipulated that “The party terminating the
contract with no just cause shall pay the other party a penalty equivalent to 50%
of the remainder of the contract….”
4.
On 24 July 2012, the parties concluded another contract (hereinafter: the second
contract) with the same period of validity and which provided the same amounts
payable to the player however not containing clause 7 of the first contract.
5.
On 6 September 2013, Club A lodged a claim based on the second contract against
the player and the Club of Country F, Club E as the player’s new club, requesting
the following amounts:
a. USD 2,651,666.67 as unamortized transfer fee;
b. USD 3,147,498.80 as the remaining value of the contract;
c. “the compensation corresponding to the specificity of sport equivalent to
6 months’ salary in accordance with the player’s new contract”;
d. Sporting sanctions on both respondents;
e. 5% interest p.a. on said amounts.
Club A, Country B / Player C, Country D / Club E, Country F
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6.
In particular, Club A firstly explained that in order to sign a contract with the
player it had to pay the amount of USD 3,700,000 to his former club, Club G.
7.
In continuation, Club A stressed that on 21 April 2013, after playing its
penultimate match of the season against Club H, it was forced to send the player
a letter informing him about “his inadequate behavior” during the first months
of the year. In this respect, Club A argued that after sending the letter and many
“verbal warnings”, it sanctioned the player with “the suspension of his
registration to play in the championship until the end of the season”. Club A
alleged that the player’s sanction was legal and limited to “one match”.
8.
According to Club A, on 27 April 2013, the player replied informing it about the
“mistreatment” he was suffering, rejecting the sanction imposed on him and
requesting his re-registration with the team.
9.
On 30 April 2013, Club A replied to the player’s letter establishing that “we can
only add that the decision taken by the Coach is merely a sporting decision which
is absolutely within the law and the regulations” and that “The player is training
and is a part of the first team, being paid accordingly and he might be registered
again on July”.
10.
On 31 May 2013, the player sent a communication to Club A whereby he
terminated the contract alleging just cause in view of his deregistration.
11.
Furthermore, Club A stressed that on 28 June 2013, the player concluded a new
employment contract with Club E, despite Club A having sent two warning letters
to said Club of Country F in order to prevent it from signing a contract with the
player. In this regard, Club A enclosed two letters dated 17 June 2013 and 23 July
2013.
12.
Moreover, Club A stressed that the salary of the player was always paid in a timely
manner and he was never prevented from entering the club’s premises.
13.
Therefore, in Club A’s view, the player terminated the contract without just cause
and thus, must be held liable for the consequences with Club E as jointly and
severally liable.
14.
On 27 September 2013, the player lodged a separate claim based on the first
contract against Club A requesting the total amount of USD 5,641,415 as follows:
a. USD 54,166 as outstanding salary of May 2013;
b. USD 3,104,166 as compensation for breach of contract;
c. USD 1,552,083 “in accordance with clause 7 of the [first] contract”;
Club A, Country B / Player C, Country D / Club E, Country F
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d. USD 931,000 as “damages to the personality of the player”.
15.
In particular, the player explained that Club A excluded him from the main squad
and deregistered him from the team alleging “sporting reasons”. The player
stressed that this meant being unable to play official matches for Club A.
16.
In this respect, the player argued that the facts presented by Club A are inaccurate
and do not reflect what actually happened. The player stressed, while enclosing a
letter addressed to Club A, that he first put Club A in default for his deregistration
since 11 March 2013. Therefore, it is false that Club A deregistered him only for
the last match of the season.
17.
Furthermore, the player argued that on 20 March 2013, Club A replied to his
above-mentioned letter by stating that “you are still a member of [the team] with
all the duties and rights but to play official games because of the number of
foreign players to be registered in the Football Federation of Country B. This is
nothing but a sporting issue that a club has to choose for technical reasons (…)
Then in July you might even come back to be registered”. Therefore, the player
sustained that the decision to deregister him was due to sporting reasons and not
disciplinary as Club A claims. The player further explained that his letter of 27
April 2013 was in response thereto (cf. point 8 above).
18.
On account of the above, the player pointed out that his deregistration occurred
as of March 2013 and that, as confirmed by Club A, it would last at least until July.
According to the player, this constitutes a clear breach of the contract by Club A.
19.
In continuation, the player stressed that he did not give Club A any reason in
order for it to justify his exclusion from the team. In this respect, the player
rejected his supposed misbehavior and stressed that Club A did not present any
evidence in this regard. Moreover, the player denied having received the “verbal
warnings” that Club A claimed to have issued.
20.
On its part, Club E replied to the claim by stressing that Club A did not provide
any evidence that can corroborate any of its claims. Namely, Club A did not
provide i) the transfer agreement supposedly concluded with Club G and ii) any
documentation that can prove the misbehavior of the player. Moreover, Club E
denied having received Club A’s letter dated 17 June 2013.
21.
Furthermore, Club E stressed that the deregistration of the player to participate in
the Competition of Country B, fact that is undisputed, is a clear breach of the
employment contract with the player and thus, the latter had a just cause to
terminate it.
Club A, Country B / Player C, Country D / Club E, Country F
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22.
Finally, Club E rejected having induced the player in any way to terminate his
contract. In this respect, Club E sustained that its contract with the player was
concluded on 28 June 2013 only and thus, “almost 1 month after the termination
of the contract” between the player and Club A.
23.
In its reply to the player’s claim, Club A argued that the inducement of the new
club is assumed and that Club E did not provide any evidence on the contrary.
Moreover, Club A stressed again that on 17 June 2013, it sent a letter to Club E
informing the latter about the situation with the player.
24.
As to the player’s position, Club A stressed that the player participated with the
team in a total of 9 matches where he only scored 2 goals, therefore the
“offensive production does not correspond to what was paid for the player”. In
addition, Club A argued that the player’s deregistration was made upon request
of the team’s coach in order to allow the player to “better adapt to the team
without the pressure of having to perform at the highest level”.
25.
Moreover, Club A emphasized again that the player was always paid in time and
treated with the utmost respect by everyone in the club. Finally, Club A reiterated
the arguments of its claim.
26.
In its duplica, Club E reiterated the arguments of its reply.
27.
In his last position, the player reiterated the arguments of his claim.
28.
After having been requested by FIFA, the player informed FIFA that he had
concluded the following new contracts:
a. On 28 June 2013 with Club E which was terminated in December 2013,
whereby he was entitled to a monthly salary of 21,000;
b. On 4 January 2014 with the club, Club I valid until 31 December 2015,
whereby he is entitled to a monthly remuneration of USD 10,000.
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
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 6 September 2013 by Club A and on 27 September 2013 by the player.
Consequently, the 2012 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Club A, Country B / Player C, Country D / Club E, Country F
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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 Club of Country B, a Player of Country D and a
Club of Country F. In this respect, the Chamber was eager to emphasize that
contrary to the information contained in FIFA’s letter dated 15 May 2015 by
means of which the parties were informed of the composition of the Chamber,
the Member J (club’s representative) and the Member K (player’s representative)
refrained from participating in the deliberations in the case at hand, due to the
fact that the aforementioned members have the same nationality as the player
and Club E respectively, thus the Dispute Resolution Chamber adjudicated the
case in presence of three members in accordance with art. 24 par. 2 of the
Regulations.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players 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 relevant claims were lodged on 6 and 27
September 2013, the 2012 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 members of the DRC acknowledged that on 23 and 24 July 2012,
Club A and the player concluded the first and the second contract respectively,
both valid until 23 July 2015 and according to which the player was entitled to
receive from Club A as follows:
a. For the season 2012/2013, USD 54,166 as monthly salary payable at the
end of each month plus USD 650,000 as advance payment;
Club A, Country B / Player C, Country D / Club E, Country F
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b. For the season 2013/2014, USD 60,416 as monthly salary payable at the
end of each month plus USD 725,000 as advance payment;
c. For the season 2014/2015, USD 66,666 as monthly salary payable at the
end of each month plus USD 800,000 as advance payment.
6.
In continuation, the DRC noted that on 31 May 2013, the player terminated the
contractual relation between the parties alleging just cause in view of his
deregistration with Club A, which prevented him from participating in official
matches with the team.
7.
Having said this, the Chamber proceeded to take note of Club A’s position which
argues that on 21 April 2013, it addressed a letter to the player warning him of
his “inadequate behavior” during the first months of the year thereafter
sanctioning him with “the suspension of his registration to play in the
championship until the end of the season”. In this respect, the Chamber observed
that, according to Club A, the aforementioned sanction was legal and limited to
“one match”. What is more, according to Club A, the player’s salaries were always
paid in a timely manner and he was never prevented from entering its premises.
Hence, the Chamber acknowledged that Club A is of the opinion that the player
terminated the contract without just cause and must therefore be held liable of
the consequences thereof.
8.
Furthermore, the Chamber turned its attention to the player’s claim who stresses
that it is untrue that his deregistration was only for the last match of the season
since such decision was taken by Club A in March 2013. In this respect, the
Chamber observed the letters of 11 March 2013 and 27 April 2013 whereby the
player requested Club A to register him. Thus, the player claims that, by
deregistering him, Club A breached the employment contract and therefore he
had a just cause to terminate it.
9.
In view of the foregoing considerations, the Chamber deemed that the underlying
issue in the dispute at hand, considering the claims of Club A and the player, was
to determine whether the relevant employment contract had been unilaterally
terminated with or without just cause by the player, 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.
10.
First of all, the members of the Chamber wished that highlight that it is
undisputed that the player was deregistered and therefore was prevented from
Club A, Country B / Player C, Country D / Club E, Country F
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playing any official matches with the team. In this respect, the Chamber observed
that there are conflicting positions on when the player’s deregistration actually
took place and for what period of time.
11.
Along these lines, the members observed that whereas Club A argues that the
player’s deregistration was only for one match, the player ascertains that such
occurred as early as March 2013, after which he first sent a default letter, on 11
March 2013, to Club A objecting to it. In this regard, the members of the Chamber
underlined that Club A did not contest having received the player’s letter dated
11 March 2013. What is more, the Chamber noticed that Club A replied on 20
March 2013 in the following terms: “you are still a member of [the team] with all
the duties and rights but to play official games because of the number of foreign
players to be registered in the Football Federation of Country B. This is nothing
but a sporting issue that a club has to choose for technical reasons (…) Then in
July you might even come back to be registered”.
12.
On account of the above, the members of the Chamber came to the unanimous
conclusion that it can be established with certainty that the player’s deregistration
occurred as of March 2013 and not only for “one match” as Club A claimed.
Moreover, in accordance with Club A’s own statement, the player’s deregistration
would last at least until July, i.e. the player was prevented from participating in
any official matches with the team for at least 5 months. What is more, the player
was merely informed that in July 2013, he might be re-registered.
13.
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
competition and, as such, is violating one of his fundamental rights as a football
player.
14.
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.
15.
Furthermore and for the sake of completeness only, the Chamber wished to
underline the evident contradictory positions of Club A in its different submissions
during the proceeding; in its claim it firstly argued that the player’s deregistration
had occurred due to disciplinary reasons whereas in its reply to the player’s claim
it brought arguments related to the player’s sporting performance such as i) “the
Club A, Country B / Player C, Country D / Club E, Country F
Page 8 of 12
offensive production [of the player did] not correspond to what was paid for the
player” and ii) that the player’s deregistration occurred upon a decision of Club
A’s coach in order to allow the player to “better adapt to the team without
pressure of having to perform at the highest level”.
16.
On account of the above circumstances, the Chamber established that the conduct
of Club A clearly constituted a breach of the employment contract. Accordingly,
the Chamber concurred that the player had just cause to unilaterally terminate
the employment contract on 31 May 2013. Consequently, Club A is to be held
liable for the early termination of the employment contract with just cause by the
player.
17.
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 player.
18.
First of all, the members of the Chamber concurred that Club A 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 Club A
is liable to pay to the player the amount of USD 54,166 for May 2013.
19.
In addition, taking into consideration the player’s claim and the Chamber’s longstanding jurisprudence, the members of the DRC decided to award interest on
said amount at the rate of 5% p.a. as of the due date.
20.
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, in casu, the first contract.
21.
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.
22.
Having said this and while considering 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
Club A, Country B / Player C, Country D / Club E, Country F
Page 9 of 12
contract. In this regard, the Chamber reasoned that the first contract, which as
previously set out serves as the basis of the player’s claim, appears to contain a
clause regarding compensation to be awarded in case of breach of contract by
any party, namely clause 7. What is more, the DRC emphasised that the player
himself requested the application of said compensation clause.
23.
At this point, the Chamber was eager to highlight that compensation clauses may
be freely entered into by the contractual parties and may be considered
acceptable, in the event that the pertinent written clause meets certain criteria
such as proportionality, reasonableness and reciprocity. In this respect, the
Chamber highlighted that in order to determine as to whether a compensation
clause is to be considered acceptable, the specific circumstances of the relevant
case brought before it shall also be taken into consideration.
24.
With the above-mentioned considerations in mind, the members of the Chamber
focused their attention on clause 7 of the first contract which reads “The party
terminating the contract with no just cause shall pay the other party a penalty
equivalent to 50% of the remainder of the contract….” and came to the
conclusion that i) the clause is reasonable and reciprocal as it grants both
contractual parties the possibility to request for its application in case of the
termination of the contract without just cause by the counterparty. In this regard
and for the sake of clarity, the DRC was of the opinion that evidently the relevant
clause is also applicable a contrario sensu, i.e. in case a party terminates the
contract with just cause in view of its breach by the counterparty and ii) it is
proportional as it provides as compensation 50% of the residual value of the
contract at the moment of the termination.
25.
On account of all of the above, the Chamber decided that said compensation
clause is valid and applicable in the present matter. Therefore, the Chamber
emphasised that any compensation due to the player should be calculated solely
on the basis of the relevant clause.
26.
Having established the above-mentioned, the members of the Chamber
proceeded to the calculation of the payable compensation and pointed out that
at the time of the termination of the contract, the remaining value of the latter
amounted to USD 3,104,150 comprised of USD 54,166 as per the player’s salary of
June 2013, USD 724,992 as per the player’s salaries for the season 2013/2014, USD
725,000 as per the advance payment due on 1 August 2013, USD 799,992 as per
the player’s salaries for the season 2014/2015 and USD 800,000 as per the advance
payment due on 1 August 2014.
27.
Having said this, the members of Chamber applied 50% to the aforementioned
sum in accordance with the compensation clause and decided that the total
Club A, Country B / Player C, Country D / Club E, Country F
Page 10 of 12
amount payable by Club A to the player as compensation for breach of contract
amounts to USD 1,552,075 plus 5% interest p.a. over said amount as from the
date of the claim, i.e. 27 September 2013, until the date of effective payment.
28.
Furthermore and as to the player’s request of USD 931,000 for “damages to the
personality of the player”, the members of the Chamber referred to art. 12 art. 3
of the Procedural Rules and concluded that the player had not substantiated his
claim in this regard and thus, decided to reject this part of the player’s claim.
29.
Finally, the Chamber concluded its deliberations by establishing that any further
claim lodged by the player is rejected and that the claim of Club A is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the 1st Claimant / 2nd Respondent, Club A, is rejected.
2.
The claim of the 2nd Claimant / 1st Respondent, Player C, is partially accepted.
3.
The 1st Claimant / 2nd Respondent is ordered to pay to the 2nd Claimant / 1st
Respondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of USD 54,166 plus 5% interest p.a. as
of 1 June 2013 until the date of effective payment.
4.
The 1st Claimant / 2nd Respondent is ordered to pay to the 2nd Claimant / 1st
Respondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of USD 1,552,075 plus 5%
interest p.a. as of 27 September 2013 until the date of effective payment.
5.
In the event that the amounts due to the 2nd Claimant / 1st Respondent in
accordance with the above-mentioned numbers 3. and 4. are not paid by the 1st
Claimant / 2nd 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.
6.
Any further claim lodged by the 2nd Claimant / 1st Respondent is rejected.
7.
The 2nd Claimant / 1st Respondent is directed to inform the 1st Claimant / 2nd
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.
Club A, Country B / Player C, Country D / Club E, Country F
Page 11 of 12
*****
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
Club A, Country B / Player C, Country D / Club E, Country F
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