Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 May 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Eirik Monsen (Norw ay ), member
Todd Durbin (US A), 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 cas e
1. On 14 January 2018, the Player of Country B, Player A (hereinafter: the
Claimant or the player) and the Club of Country D, Club C (hereinafter: the
Respondent or the club) concluded an employment contract valid as from 15
January 2018 until 31 December 2019 (hereinafter: the contract).
2. According to art. 2.1 of the contract, the Claimant was entitled to the
following sign-on fee:
a) USD 13,000 as first instalment payable upon receipt of the relevant ITC “for
the first season (2018)”;
“ b) the second instalment (performance based) will be negotiated for and
paid in January 2019”.
3. Pursuant to art. 2.2 of the contract, the Respondent committed to pay the
Claimant “a basic net salary” of USD 1,500.
4. In accordance with art. 2.4 of the contract, the Respondent committed to pay
the following bonuses:
a) 2,000 for “a home win”;
b) 2,500 for “an away winning”;
c) “unutilised substitutes will be paid 80% of the above bonuses”.
5. Pursuant to art. 5, lit. c) of the contract, the termination of the contract “shall
be […]
“on disciplinary grounds for breach of trust, club’s regulations, codes and
procedures”.
6. On 31 May 2018, the Respondent sent a letter to the Claimant, whereby it
stated that his performance “has not been successful” and requested him “to
show cause within 48 hours why the club should not take any action against
[him]”.
7. On 21 June 2018, the Respondent sent a further letter to the Claimant, by
means of which it terminated the contract with immediate effect due to “poor
performance”. In particular, the Respondent stated that the Claimant’s
performance evaluation “does not meet the club’s standards”. Furthermore,
the Respondent informed the Claimant that he would be paid one month
salary “in lieu of notice”.
Player A, Country B / Club C, Country D
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8. On 6 August 2018, the player lodged a claim in front of FIFA against the club
for breach of contract, requesting compensation for breach of contract in the
amounts of USD 65,500 and 41,200, plus 5 % interest p.a. as of 21 June 2018,
broken-down as follows:
a) USD 27,000 for the remaining salaries as of July 2018 until December
2019;
b) USD 13,000 for the second instalment of the sign-on fee as per art. 2.1 lit.
b) of the contract;
c)
12,400 as bonuses for matches played by the club after the termination
of the contract during season 2018;
d) 28,800 as bonuses for matches to be played by the club after the
termination of the contract during season 2019;
e) USD 15,500 as additional compensation on the basis of the specificity of
sport.
Furthermore, the Claimant requested USD 5,000 for legal costs and sporting
sanctions to be imposed on the Respondent.
9. In his claim, the Claimant argued that his alleged “poor performance” could
not constitute a just cause for the termination of the contract. Moreover, he
emphasised that the club’s evaluation of his performance was subjective and
the termination had no contractual basis.
10. As to the requested compensation for breach of contract, the Claimant
pointed out that the second instalment of the sign-on fee should be at least
of the same amount of the first one, namely USD 13,000 (cf. point I.2).
11. Moreover, as to the claimed bonuses, the player maintained that he was
entitled to 80% of the bonuses set out in the contract for the matches already
won by the club after the termination of the contract and for those which the
same club would have “reasonably” won until the natural expiry of the
contract.
12. In its reply, the Respondent affirmed that the Claimant, at the moment of the
signature of the contract, declared to be born on 28 September 1989, as
confirmed by his passport. Nonetheless, the Respondent maintained that it
was eventually informed that, as resulting from the Transfer Matching System,
Player A, Country B / Club C, Country D
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his date of birth was 28 September 1984 and, due to such discrepancy, he was
“disqualified by the Confederations of African Football (CAF)”.
13. According to the Respondent, the fact that the Claimant was allegedly 5 years
older than he declared determined that his performance was not as expected
by the club (he allegedly played only 2 matches out of 18). Furthermore, the
Respondent alleged that the Claimant, upon request of the club (cf. point I.6),
admitted his poor performance in writing and such admission justified the
termination of the contract.
14. Upon request of the FIFA Administration, the Claimant informed that he did
not conclude any employment contract with other club after the termination
of the contract.
II. Cons iderations of the Dis pute Res olution Cham ber
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 matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 6 August 2018. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
2018; hereinafter: Procedural Rules) are 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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition June 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 a Player of Country B and a
Club of Country D.
3. At this point, the Chamber was eager to emphasize that, contrary to the
information contained in FIFA’s letter dated 3 May 2019, by means of which
the parties were informed of the composition of the Chamber, the member
Roy Vermeer refrained from participating in the deliberations of the case at
hand due to certain personal circumstances and, in order to comply with the
prerequisite of equal representation of the club’s and player’s representatives,
also the member Pavel Pivovarov refrained from participating. Thus, the
Dispute Resolution Chamber adjudicated the case in presence of three
members in accordance with art. 24 par. 2 of the Regulations.
Player A, Country B / Club C, Country D
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4. In continuation, 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 (edition June 2018), and considering that the present claim
was lodged on 6 August 2018, the June 2018 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
5. The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
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. In addition,
the Chamber 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).
6. First, the Chamber noted that the parties entered into an employment
contract valid as of 15 January 2018 until 31 December 2019, which entitled
the Claimant, inter alia, to a monthly salary of USD 1,500.
7. In continuation, the DRC acknowledged that it remained undisputed that the
Respondent, on 21 June 2018, sent a letter to the Claimant, by means of which
it terminated the contract due the alleged player’s “poor performance” and
committed to pay one month salary “in lieu of notice”.
8. After having taken note of the above, the DRC also took note of the position
of the parties in the present matter. In this respect, the Claimant argued that
the Respondent terminated the contract without just cause and requested
compensation for breach of contract from the latter.
9. Equally, the members of the Chamber took note of the position of the
Respondent, which maintained that the player was 5 years older than he
declared at the moment of the signature of the contract and it argued that
such circumstance determined that his performance did not reach the level
expected by the club. Moreover, the Respondent held that the Claimant
expressly admitted his poor performance in writing and such admission
justified the termination of the contract.
10. Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant and the
allegations of both parties, was to determine whether the employment
Player A, Country B / Club C, Country D
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contract had been unilaterally terminated with or without just cause by the
Respondent. The DRC also underlined that, subsequently, if it were found that
the employment contract was terminated without just cause, it would be
necessary to determine the consequences for the party that was responsible
for the early termination of the contractual relation without just cause.
11. In this respect, the Chamber acknowledged that, according to the
Respondent, the Claimant was allegedly 5 years older than he declared, as
confirmed by the alleged fact the player had been “disqualified by the
Confederations of African Football (CAF)”. With the above in mind, the DRC
recalled the basic principle of burden of proof, as established in art. 12 par. 3
of the Procedural Rules, according to which a party claiming a right on the
basis of an alleged fact shall carry the respective burden of proof.
12. In light of the foregoing, the DRC took note that the Respondent did not
corroborate the allegation of sporting sanctions imposed by CAF on the player
with any evidence. Moreover, the members of the Chamber wished to point
out that the Respondent did not provide sufficient evidence in order to
demonstrate that the age declared by the Claimant was not correct. What is
more, the DRC wished to emphasise that, even in the alleged case of any
discrepancy concerning the age of the player within the documentation
available to the club at the moment the contract was concluded, the
Respondent would have been expected to exercise the required diligence
before concluding the relevant contract.
13. On account of the above, the Chamber agreed that the Respondent’s
argumentation regarding the alleged age of the player could not be upheld
and proceeded to analyse whether the player’s alleged level of a performance
could be used as a mean for justifying the unilateral termination of the
contract.
14. In this respect, the Chamber was keen to emphasise that, in accordance with
its longstanding and well-established jurisprudence, the unsatisfactory
performance of a player does not constitute a just cause for a club to
prematurely terminate the employment relationship, as this judgement is
subjective and unmeasurable. Thus, due to the subjective and arbitrary nature
of such grounds for dismissal, the Chamber concluded that this argument of
the Respondent in order to justify the unilateral termination of the contract
could not be sustained.
15. Furthermore, the members of the Chamber wished to emphasise that the
aforementioned conclusion cannot be overturned by making use of any
alleged subjective self-evaluation that the player could do with reference to
his performances, even more if such evaluation is made by the player while he
Player A, Country B / Club C, Country D
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is still under contract with the club. Consequently, the DRC concluded that the
player’s alleged admission of poor performance could not be invoked by the
Respondent as a reason for justifying the unilateral termination of the
contract.
16. On account of all the above, as the Respondent did not refer to any other
reason for justifying the termination of the contract, the members of the
Chamber decided that the Respondent terminated the contract without just
cause on 21 June 2018.
17. In continuation, prior to establishing the consequences of the breach of
contract without just cause by the Respondent in accordance with art. 17 par.
1 of the Regulations, the Chamber took note that there was no unpaid
remuneration at the moment when the contract was terminated by the
Respondent.
18. Having established the above, the Chamber turned its attention to the
question of the consequences of the termination of the contract by the
Respondent without just cause.
19. In this respect, 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.
20. In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the contract at the basis of the present dispute
contains 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 regard, the Chamber established that no
such compensation clause was included in the contract at the basis of the
matter at stake.
21. 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 nonexhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective
criteria may be taken into account at the discretion of the deciding body. In
Player A, Country B / Club C, Country D
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this regard, the Dispute Resolution Chamber emphasised beforehand that
each request for compensation for contractual breach has to be assessed by
the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter.
22. In order to estimate the amount of compensation due to the Claimant in the
present case, the members of the Chamber first turned their attention to the
remuneration and other benefits due to the Claimant under the existing
contract and/or the new contract, which criterion was considered by the
Chamber to be essential. The members of the Chamber deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the
Chamber to take into account both the existing contract and the new contract,
if any, in the calculation of the amount of compensation.
23. On the basis of the contract signed by the Claimant and the Respondent,
which, after the breach of contract occurred, was to run until 31 December
2019, and in view of a contractually agreed monthly salary of USD 1,500, the
Chamber concluded that the amount of USD 27,000 serves as the basis for the
final determination of the amount of compensation for breach of contract.
24. In continuation the Chamber assessed as to whether the Claimant has signed
an employment contract with another club during the relevant period of time,
by means of which he would have been able to reduce his loss of income.
According to the constant practice of DRC, such remuneration under a new
employment contract(s) 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.
25. In respect of the above, the Chamber recalled that the Claimant had not
signed any other employment contract after the termination of the one at
stake and, therefore, he was not able to mitigate his damages.
26. In continuation, as to the Claimant’s request for second instalment of the signon fee pursuant to art. 2.1 lit. b) of the contract, the DRC recalled that said
contractual provision merely provided that said instalment was “performance
based”, not defined and “will be negotiated for and paid in January 2019”.
Consequently the DRC stressed that, in accordance with art. 12 par. 3 of the
Procedural Rules, according to which any party claiming a right on the basis
of an alleged fact shall carry the respective burden of proof, it would had been
up to the Claimant to demonstrate that the aforementioned second
instalment had been indeed agreed and defined by the parties and, thus, it
should be considered in the calculation of the compensation for breach of
contract. Nevertheless, the Chamber deemed it appropriate to point out that
no evidence had been submitted by the Claimant in order to demonstrate the
Player A, Country B / Club C, Country D
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existence of such an agreement. Consequently, the members of the Chamber
had no other option than to reject that part of the player’s claim.
27. As regards the Claimant’s claim relating to future match bonuses, the
members of the Chamber stressed that the payment of such bonuses is linked
to matches to be played in the future, i.e. after the termination of the relevant
contract and, therefore, is fully hypothetical. What is more, the DRC
considered that the Claimant did not provide sufficient evidence related to
bonuses for matches allegedly played by the club after the termination of the
contract and before he lodged the claim. Consequently, the Chamber decided
to reject such part of the claim.
28. On account of all of the above-mentioned considerations and the specificities
of the case at hand, the DRC decided that the Respondent must pay the
Claimant the final amount of USD 27,000, which is to be considered a
reasonable and justified amount of compensation for breach of contract in
the matter at hand.
29. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber
decided that the Respondent must pay to the Claimant interest of 5% p.a. on
the aforementioned amount as of the date on which the claim was lodged,
i.e. 6 August 2018, until the date of effective payment.
30. Finally, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs, in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
31. The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
32. Furthermore, taking into account the consideration under number II./4. above,
the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which
stipulate that, with its decision, the pertinent FIFA deciding body shall also
rule on the consequences deriving from the failure of the concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation
in due time.
33. In this regard, the Chamber pointed out that, against clubs, the consequence
of the failure to pay the relevant amounts in due time shall consist of a ban
from registering any new players, either nationally or internationally, up until
the due amounts are paid and for the maximum duration of three entire and
consecutive registration periods.
Player A, Country B / Club C, Country D
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34. Therefore, bearing in mind the above, the DRC decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days
as from the moment in which the Claimant, following the notification of the
present decision, communicates the relevant bank details to the Respondent,
a ban from registering any new players, either nationally or internationally,
for the maximum duration of three entire and consecutive registration
periods shall become effective on the Respondent in accordance with art.
24bis par. 2 and 4 of the Regulations.
35. Finally, the Chamber recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due
amounts, in accordance with art. 24bis par. 3 of the Regulations.
III. Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant compensation for breach
of contract in the amount of USD 27,000 plus 5% interest p.a. as of 6 August
2018 until the date of effective payment.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and
directly, preferably to the e-mail address as indicated on the cover letter of
the present decision, of the relevant bank account to which the Respondent
must pay the amount plus interest mentioned under point 2. above.
5.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address
[email protected], duly translated, if need be, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due plus interest in accordance with point 2.
above is not paid by the Respondent w ithin 45 day s as from the
notification by the Claimant of the relevant bank details to the Respondent,
the Respondent shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods (cf.
art. 24bis of the Regulations on the Status and Transfer of Players).
Player A, Country B / Club C, Country D
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7.
The ban mentioned in point 6. above will be lifted immediately and prior to
its complete serving, once the due amount is paid.
8.
In the event that the aforementioned sum plus interest is still not paid by
the end of the ban of three entire and consecutive registration periods, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
*****
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 Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Player A, Country B / Club C, Country D
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