Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 May 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
John Bram hall (England), member
S tijn Boey kens (Belgium ), member
Philippe Diallo (France), member
Jérôm e Perlem uter (France), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case:
1.
On 12 January 2017, the Player of Country B, Player A (hereinafter: the Claimant),
and the Club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract) valid as from 1 January 2017 until
31 December 2017.
2.
According to the contract’s schedule, the Claimant was entitled to receive the
following monthly salaries at the end of each month:
- For January 2017 and February 2017, 28,600;
- For March 2017 and April 2017, 33,000;
- For May 2017 and June 2017, 35,200;
- For July 2017 until December 2017 35,500.
3.
Clause 8 par. “e” of the contract stipulates: “if the [Claimant], without any valid
reason, terminates this contract one-sided or without the mutual agreement with
the [Respondent], then the [Respondent] has the right to claim compensation for
the total remaining period of the contract not served”.
4.
Likewise, clause 8 par. “f” reads as follow: “if the [Respondent], without any valid
reason, terminates this contract one-sided or without the mutual agreement with
the [Claimant], then the [Claimant] has the right to claim salary and other benefits
payment for the total remaining period of the contract not served and the
[Claimant] is released from all the administration aspect of the contract”.
5.
According to the Respondent, on 29 May 2017, the Claimant’s agent signed a
document labelled “Agreement to Terminate Football Player’s Contract”
(hereinafter: the termination agreement), by means of which the Claimant
allegedly “agreed to terminate the contract” with the Respondent.
6.
On 25 August 2017, the Claimant lodged a claim before FIFA against the
Respondent and requested the following amounts:
35,200 corresponding to his outstanding salary for May 2017;
246,400 as compensation for termination of the contract without just
cause, amount that according to the Claimant corresponds to the residual
value of the contract (salaries from June 2017 until December 2017).
7.
Furthermore, the Claimant requested the imposition of sporting sanctions on the
Respondent.
8.
In his claim, the Claimant stated that on 1 June 2017, he was prevented from
participating in the trainings with the rest of the Respondent’s squad. According
to the Claimant, the Respondent took this decision because he did not accept to
be transferred on loan to a club from Country E.
Player A, Country B / Club C, Country D
Page 2 of 9
9.
Within this context, the Claimant sent a letter to the club on 12 June 2017
requesting to be included again in the trainings of the Respondent’s squad. In
addition to that, the Claimant also requested his outstanding salary for May 2017.
10.
In continuation, the Claimant explained that the Respondent replied on 22 June
2017 arguing that the contract was terminated by means of the termination
agreement.
11.
In reply to said letter, on 23 June 2017 the Claimant sent a new correspondence to
the Respondent. In this letter, the Claimant argued the he never agreed on the
termination of the contract and requested once again his outstanding salary for
May 2017 and the residual value of the contract (salaries from June 2017 until
December 2017) as a compensation.
12.
According to the Claimant, the Respondent terminated the employment contract
unilaterally and without just cause by means of the termination agreement dated
29 May 2017. In this regard, the Claimant stated that he never signed and/or
never agreed on the termination of the contract. In particular, the Claimant held
that said document bears the signature of a different person in the section
provided for signature by him.
13.
In its reply to the claim lodged by the Claimant, the Respondent argued that the
Claimant’s claim should be rejected. In particular, the Respondent explained that
by means of the termination agreement the parties ended their employment
relationship on 29 May 2017.
14.
In particular, the Respondent explained that it offered the Claimant his
outstanding salary for May 2017 and “ex gratia of 2 months’ salary” as a
“settlement amount”.
15.
In this context, the Respondent stated that the Claimant’s agent, Agent F, signed
the termination agreement. According to the Respondent, the “agent was
authorized by the [Claimant] to deal with his contract from the outset of the
relationship between [the Respondent] and the [Claimant]” and “the agent
signed the agreement to terminate on behalf of the [Claimant] with full
knowledge and authority of the [Claimant]”.
16.
In continuation, the Respondent argued that the “settlement amount” was given
to the Claimant. According to the Respondent, in a meeting held on 16 June 2017,
the Claimant “admitted and confessed [that] he went to the bank with the agent
to cash out the settlement amount”.
Player A, Country B / Club C, Country D
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17.
In this respect, the Respondent argued that “cashing out the settlement amount
must be taken as an acquiescence to the termination” and that the Claimant is
trying “to get more money from [the Respondent] after agreeing to the earlier
settlement amount”.
18.
The Claimant submitted his replica, reiterating his arguments and confirming his
position with regards to his statement of claim.
19.
Moreover, the Claimant denied the content of the meeting held on 16 June 2017
and argued that in said meeting he requested his outstanding salaries and the
continuation of the employment relationship.
20.
Furthermore, the Claimant explained that the Respondent was not able to prove
that his alleged agent was authorized to sign the termination agreement and/or
that he received the alleged settlement amount.
21.
The Respondent submitted its duplica reiterating its arguments and confirming its
position with regards to the claim.
22.
Finally, the Claimant informed that, on 1 August 2017, he signed a new
employment contract with the Club of Country B, Club G, valid as from the date
of signature until 30 June 2018. This contract provides a monthly salary in the
amount of 14,700.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) 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 25
August 2017. Consequently, the 2017 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 2017 and 2018 editions of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between an Player of Country B and a Club of Country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
Player A, Country B / Club C, Country D
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art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2016 and 2018), and considering that the present matter was submitted
to FIFA on 25 August 2017, the 2016 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter, while emphasizing that, although having acknowledged all the abovementioned facts, 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.
Firstly, the DRC acknowledged that, on 12 January 2017, the Claimant and the
Respondent, signed an employment contract valid as from 1 January 2017 until 31
December 2017.
6.
Along with the above, the Chamber noted that according to the contract’s
schedule, the Claimant was entitled to receive the following monthly salaries at
the end of each month:
- For January 2017 and February 2017, 28,600;
- For March 2017 and April 2017, 33,000;
- For May 2017 and June 2017, 35,200;
- For July 2017 until December 2017 35,500.
7.
In addition, the Chamber took note that the Respondent held that, on 29 May
2017, the alleged Claimant’s agent signed a termination agreement on behalf of
the Claimant, by means of which the Claimant allegedly “agreed to terminate the
contract” with the Respondent.
8.
The DRC further observed that, on 25 August 2017, the Claimant lodged a claim
against the Respondent before FIFA requesting the payment of 35,200
corresponding to his outstanding salary for May 2017 and 246,400 as
compensation for breach of contract.
9.
In particular, the Chamber took note that the Claimant held that the Respondent
terminated the employment relation unilaterally and without just cause by means
of the above-mentioned termination agreement. In this regard, the members of
the Chamber acknowledged that the Claimant stated that he never agreed on the
termination of the contract arguing that the termination agreement was signed
by a person who did not have authorization to sign on behalf of him.
10.
In continuation, the Dispute Resolution Chamber took note that the Respondent
on its part requested the complete rejection of the Claimant’s claim. In particular,
Player A, Country B / Club C, Country D
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the Chamber observed that the Respondent argued that the parties ended their
employment relationship on 29 May 2017 by means of the termination
agreement. According to the Respondent, the alleged Claimant’s agent, Agent F,
signed said document on behalf of the Claimant and the Claimant accepted his
salary for May 2017 and “ex gratia of 2 months’ salary” as a “settlement
amount”.
11.
After having carefully examined the parties’ positions, the DRC highlighted that
the underlying issue in this dispute, considering the diverging position of the
parties, was to determine as to whether the termination agreement should be
considered as a legally binding document between the parties.
12.
In this regard, and after having carefully examined the documentation on file, the
Chamber found it important to note that the termination agreement does not
bear the signature of the Claimant.
13.
Moreover, the members of the Chamber recalled that according to the legal
principle of the burden of proof, any party claiming a right on the basis of an
alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural
Rules). In this context, the DRC observed that the Respondent did not provide any
evidence that confirms that the alleged Claimant’s agent was authorized to sign
the termination agreement and/or that the Claimant accepted and received two
monthly salaries as a “settlement amount”.
14.
As a consequence of the above, the members of the Chamber concluded that the
termination agreement cannot be considered as a valid and legally binding
document between the parties. Consequently, the DRC decided that the
Respondent terminated the contract without just cause on 29 May 2017.
15.
Bearing in mind the previous consideration, the Chamber went on to deal with
the consequences of the early termination of the employment contract without
just cause by the Respondent.
16.
First of all, the members of the Chamber concurred that the Respondent must
fulfil its obligations as per the employment contract in accordance with the
general legal principle of pacta sunt servanda.
17.
In this respect, and taking into account the documentation presented by the
Claimant in support of his petition and that the Respondent did not present any
evidence that the Claimant’s salary for May 2017 (35,200) was paid, the DRC
decided that the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of 35,200.
Player A, Country B / Club C, Country D
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18.
In continuation and having established that the Respondent is to be held liable
for the early termination of the employment contract without just cause, the
Chamber decided that the Claimant is entitled to receive from the Respondent an
amount of money as compensation.
19.
In this regard, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract 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.
20.
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.
21.
Upon careful examination of the employment contract concluded between the
Claimant and the Respondent, the members of the Chamber took note that article
8 par. “e” of the contract stipulates that “if the [Claimant], without any valid
reason, terminates this contract one-sided or without the mutual agreement with
the [Respondent], then the [Respondent] has the right to claim compensation for
the total remaining period of the contract not served”.
22.
Moreover, the DRC observed that clause 8 par. “f” of the contract establishes that
“if the [Respondent], without any valid reason, terminates this contract one-sided
or without the mutual agreement with the [Claimant], then the [Claimant] has
the right to claim salary and other benefits payment for the total remaining
period of the contract not served and the [Claimant] is released from all the
administration aspect of the contract”.
23.
The members of the Chamber duly analysed the contents of the above-mentioned
clauses and acknowledged that they clearly provide for the amount of
compensation payable in the event of a termination of the employment contract
without just cause by either of the parties. In addition, the Chamber established
that the pertinent clauses are fully reciprocal, since they grant the same rights to
both contractual parties.
Player A, Country B / Club C, Country D
Page 7 of 9
24.
On account of the above, the Dispute Resolution Chamber concluded that the
clause contained in 8 par. “f” of the contract has to be considered as valid and
fully effective, i.e. that the compensation provided for in said article must be
awarded to the Claimant, without taking into account any of the other criteria
mentioned under art. 17 par. 1 of the Regulations, in compliance with the latter
article of the Regulations.
25.
Nevertheless, the Chamber acknowledged that said contractual clause did not
include any predetermined amount of compensation; however, it clearly provided
for a determinable amount of compensation payable by the party in breach of the
contract to the other party, which corresponds to the remaining value of the
contract.
26.
In this regard, it appears that the remaining value of his employment contract can
be calculated as being the amount of 248,200 relating to the Claimant’s financial
entitlements, i.e. salaries from June 2017 until December 2017. However, the
Chamber took into account that the Claimant requested 246,400 as compensation.
27.
Taking into account all of the above, the Chamber decided that the Respondent
has to pay to the Claimant the total amount of 246,400 as compensation for
breach of contract.
*****
III. Decis ion of the Dis pute Res olution Ch am ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
35,200.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount
of 246,400.
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 limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
Player A, Country B / Club C, Country D
Page 8 of 9
5.
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 m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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