Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed in Zurich, Switzerland, on 17 May 2018,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Play er A, from country A
as Claimant
against the club,
Club B , from country B
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 5 July 2016, Player A, from country A (hereinafter: Claimant or player) and the
Club B, from country B (hereinafter: Respondent or club) concluded an employment
contract valid as from 1 August 2016 until 31 May 2018 (hereinafter: contract).
2.
According to article 5 of the contract, the player was entitled to receive from the
club the following remuneration:
From 1 August 2016 to 31 May 2017:“27,20,000”, payable in a monthly
“2,72,000 equivalent to USD 4,000”;
From 1 August 2017 to 31 May 2018:“30,60,000”, payable in a monthly
“3,06,000 equivalent to USD 4,500”;
A “rent allowance up to 35,000 per month and the player will have to find an
accommodation for himself at his own cost” throughout the duration of the
contract;
Performance bonuses during the length of the contract: “5,000 per goal
scored, 3,500 per assists and 2,500 per game won in the League or Federation
Cup (if the player starts).”
3.
Article 15 xii of the contract provides that “the Club B [i.e. the club] will have an
option to terminate this agreement [i.e. the contract] with prior written notice of
one (1) month to the player if the club is not participating in the League in the
season 2017-18.”
4.
The 2016-17 season in country B ended on 31 May 2017 and the 2017-18 season
started on 1 June 2017.
5.
By correspondence dated 21 September 2017, the club terminated the contract
explaining that “due to severe financial constraints, [the club] will be unable to
participate in the 2017/2018 edition of the League”, and hence it had to terminate
the contract. In such correspondence, the club also acknowledged having a debt in
the amount of 15,35,000 towards the player at the date of 31 May 2017 and that
such amount would be paid as soon as funds would be available.
6.
On 21 September 2017, the club issued a statement certifying, inter alia, that the
player fulfilled his obligations towards the club and is released with immediate
effect. The club further stated “the club mutually terminates the contract on 1st
June 2017”.
7.
By correspondence dated 4 October 2017 addressed to the club, the player
highlighted that the club terminated the contract without just cause and asked that
it pay him USD 67,904.41 for outstanding remuneration and compensation.
8.
On 6 November 2017, the player lodged a claim against the club before FIFA
maintaining that the club terminated the contract without just cause and asking
Player A, from country A / Club B, from country B
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that the club be ordered to pay to him the amount of USD 67,904.41 corresponding
to:
Outstanding remuneration for the 2016/2017 season in the total of 15,57,500
or USD 22,904.41 corresponding to (i) 5 monthly salaries of 2,72,000 or USD
4,000 each, (ii) 5 rent allowances of 35,000 each and (iii) game bonuses of
22,500;
USD 45,000 as compensation for breach of contract corresponding to 10
monthly salaries of USD 4,500 each for to the 2017/2018 season.
9.
The player further asked to be awarded interest of 5% interest p.a. “for every
payment starting from the date of debt maturity until the date of payment.”
10.
The player informed FIFA that he had not signed any new employment contract
following the termination of his contract with the club and underlined that, as from
April 2018, he has been playing for Club X, as an amateur in the country X.
11.
In spite of having been invited to do so, the club has not replied to the claim.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 6 November 2017. Consequently, the 2017 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art.
21 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition
2018) he is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player and
a club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players
(edition 2018), and considering that the present claim was lodged on 6 November
2017, the 2016 edition of the Regulations on the Status and Transfer of Players
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
Player A, from country A / Club B, from country B
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the arguments and the documentation on file. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand. In particular, the DRC judge recalled that in accordance with art. 6
par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence
generated or contained in the Transfer Matching System (TMS).
5.
First of all, the DRC judge acknowledged that, on 5 July 2016, the Claimant and the
Respondent had concluded an employment contract valid as from 1 August 2016
until 31 May 2018.
6.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the total amount of USD 67,904.41,
which includes both outstanding remuneration and compensation for breach of
contract, asserting that the Respondent had terminated the employment contract
without just cause by means of its correspondence dated 21 September 2017.
Furthermore, the DRC judge noted that in its letter of termination, the Respondent
acknowledged that it owed the amount of 15,35,000 to the Claimant for the period
of time running up to 31 May 2017.
7.
Subsequently, the DRC judge took into account that 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 DRC judge considered that, in this way, the
Respondent renounced its right to defence and accepted the allegations of the
Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concluded that in accordance with art. 9 par. 3 of the Procedural Rules he shall take
a decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
9.
In order to be able to establish, first and foremost, as to whether, as claimed by the
Claimant, the Respondent terminated the employment contract without just cause,
the DRC judge turned his attention to art. 15 xii of the employment contract, which
appears to have been invoked by the Respondent when terminating the contract.
10. As stated above, according to art. 15 xii of the employment contract “the Club B [i.e.
the club] will have an option to terminate this agreement [i.e. the contract] with prior
written notice of one (1) month to the player if the club is not participating in the
League in the season 2017-18.”
11. In this respect, the DRC judge held that he could not accept said article as being
valid, as it provides for a unilateral termination right without any compensation to
the benefit of the club only. Indeed, said article does not appear to grant the same
Player A, from country A / Club B, from country B
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right of termination to the player in the event of the fulfilment of the relevant
condition. Therefore, the DRC judge underlined that the Respondent could not
legitimately terminate the contractual relationship with the Claimant by making use
of art. 15 xii of the employment contract. In addition to the unilateral character of
art. 15 xii, the DRC judge took into account that the Respondent notified its decision
to terminate the contract on the basis of such ground on 21 September 2017,
whereas the 2017-18 season had already started on 1 June 2017.
12. Consequently, the DRC judge decided that the Respondent terminated the contract
without just cause.
13. Bearing in mind the previous considerations, the DRC judge went on to deal with
the consequences of the early termination of the employment contract without just
cause by the Respondent.
14. First of all, the DRC judge highlighted that the Respondent must fulfil its obligations
as per the employment contract until its termination in accordance with the general
legal principle of “pacta sunt servanda”. Consequently, and bearing in mind that the
Claimant claimed outstanding remuneration relating to the 2016-17 season only, the
DRC judge decided that the Respondent is liable to pay to the Claimant the amount
of 15,35,000 or USD 22,573, consisting of five monthly salaries of USD 4,000 each as
well as five rent allowances of 35,000 each.
15. However, the DRC judge considered that the request of the Claimant pertaining to
game bonuses agreed in the employment contract had to be dismissed as the
Claimant did not present sufficient evidence demonstrating that these game
bonuses had in fact fallen due.
16.
Furthermore, taking into consideration the Claimant’s petition for payment of
interest and the fact that the Claimant had not specified the months included in the
amount of outstanding remuneration, whereas the amount is related to the 2016-17
season, the Chamber decided to award the Claimant interest at the rate of 5% p.a.
on the amounts of 15,35,000 or USD 22,573 as of the day on which the 2016-17
season had ended until the date of effective payment.
17.
Having established the above, the DRC judge turned his attention to the question of
the consequences of the termination of the employment contract by the Respondent
without just cause.
18.
Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided
that the Claimant is entitled to receive from the Respondent compensation for
breach of contract.
In this context, the DRC judge 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
19.
Player A, from country A / Club B, from country B
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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 DRC judge held that he 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 DRC judge
established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
21. Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the DRC judge took into account the remuneration due to the Claimant
in accordance with the employment contract for the time remaining on the same
contract, along with the professional situation of the Claimant after the early
termination occurred. In this respect, the DRC judge pointed out that the contract
would run for another season, i.e. until 31 May 2018, in which a total of USD 45,000
as salaries was to be paid. Consequently, taking into account the financial terms of
the contract, the DRC judge concluded that the remaining value of the contract as
from its early termination by the Respondent until the regular expiry of the contract
amounts to USD 45,000 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
22. In continuation, the DRC judge remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant did not sign a
new professional contract during the relevant period of time, which circumstance
appears to be in line with the information available in the TMS, and was therefore
not able to mitigate his damages.
23. In view of all of the above, the DRC judge decided that the Respondent must pay the
amount of USD 45,000 to the Claimant as compensation for breach of contract
without just cause.
24. Furthermore, taking into consideration the Claimant’s petition as well as the
constant jurisprudence of the Dispute Resolution Chamber in this regard, the DRC
judge decided that the Respondent is liable to pay to the Claimant interest at the
rate of 5% p.a. on the amount of compensation as from the date on which the claim
was lodged, i.e. 6 November 2017, until the date of effective payment.
25. The DRC judge concluded his deliberations in the present matter by establishing that
any further claim lodged by the Claimant is rejected.
Player A, from country A / Club B, from country B
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III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, 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
15,35,000 or USD 22,573 plus 5% interest p.a. as from 31 May 2017 until the date of
effective payment.
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
USD 45,000 plus 5% interest p.a. as from 6 November 2017 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.
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 DRC
judge of every payment received.
Player A, from country A / Club B, from country B
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*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 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 DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, from country A / Club B, from country B
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