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
Roy Verm eer (The Netherlands ), member
Eirik Mons en (Norw ay ), member
Todd Durbin (US A), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, Country B,
as Claimant / Counter-Respondent
against the club,
Club C, Country D,
as Respondent / Counter-Claimant
and the club,
Club E, Country B,
as Intervening Party
regarding an employment-related dispute between the parties
Player A, Country B / Club C, Country D / Club E, Country B
Page 1 of 12
I.
Facts of the cas e
1.
On 14 February 2015, the Player of Country B, Player A (hereinafter: the player or
Claimant / Counter-Respondent) and the Club of Country D, Club C (hereinafter:
Club C or Respondent / Counter-Claimant), signed an employment contract, valid
as from the date of signature until 30 June 2019.
2.
By means of the “Football Player’s Contract Schedule”, included in the contract,
the player was entitled to a total remuneration of EUR 8,000,000, as follows:
a. EUR 500,000 for the 2014/2015 season.
b. EUR 1,500,000 for the 2015/2016 season, as follows:
i. EUR 300,000 as “advanced payment” due “in September 2015”;
ii. EUR 100,000 as monthly salary as from 1 July 2015 until 30 June 2016.
c. EUR 2,000,000 for the 2016/2017 season, as follows:
i. EUR 400,000 as “advanced payment” due “in September 2016”;
ii. EUR 160,000 as monthly salary as from 1 September 2016 until 30 June
2017.
d. EUR 2,000,000 for the 2017/2018 season, as follows:
i. EUR 400,000 as “advanced payment” due “in September 2017”;
ii. EUR 160,000 as monthly salary as from 1 September 2017 until 30 June
2018.
e. EUR 2,000,000 for the 2018/2019 season.
3.
According to art. 10 (3) of the contract, “when the termination of the Contract is
not due to a just cause or a mutual agreement between the Parties concerned,
[Club C] or the Player shall be entitled to receive from the other party in breach
of the Contract a compensation for a net amount:
- To [Club C], Euro 20.000.000
- To the player (…), (the remaining salary of the contract)”.
5.
On 17 March 2016, the player wrote a letter to Club C, requesting the payment of
the outstanding monthly salaries corresponding to January, February and March
2016.
6.
By letter dated 3 April 2016, the player communicated to Club C that it had not
paid his salaries for the last three months, that his default letter of 17 March 2016
had remained unanswered and that, as a consequence, he terminated the
contract with immediate effect.
7.
On 6 September 2017, the player lodged a claim in front of FIFA against Club C,
maintaining that Club C had breached the contract and that he terminated it with
just cause. In particular, the player requested:
Player A, Country B / Club C, Country D / Club E, Country B
Page 2 of 12
a. EUR 300,000 as outstanding remuneration for the months January, February
and March 2016, plus 5% interest p.a. as from the last day of each respective
month until the date of effective payment;
b. EUR 6,300,000 as compensation for breach of contract;
c. Sporting sanctions on Club C.
8.
According to the player, on 31 January 2016, Club C signed another foreign player.
In this light, the player explained that the Regulations of the Football Association
of Country D (hereinafter: “Regulations of Country D”) only permitted clubs to
register 3 foreign players + 1 foreign player whose nationality is one of the Asian
member federations.
9.
As a result of this signing, the player argued that Club C de-registered him from
playing competitions for the continuation of the 2015/2016 season.
10.
As per the player, following his de-registration, Club C allegedly obliged him to
train with the under-20 team or on his own.
11.
Furthermore, as per the player, he did not receive his remuneration for the
months of January, February and March 2016.
12.
On 11 November 2017, Club C submitted its reply to the claim and lodged a
counterclaim against the player, maintaining that the latter did not have a just
cause to terminate the contract. In particular, Club C requested:
a. EUR 20,000,000 as compensation for breach of contract;
b. Sporting sanctions to be imposed on the player.
14.
With regard to the alleged outstanding remuneration, Club C argued that, on the
date it received the default letter (cf. supra point 5), only two salaries had been
outstanding, and not three as the player claimed.
15.
Consequently, according to Club C, and considering that up until that moment
“only 13% of his annual payments were delayed”, the termination of the contract
by the player was completely disproportional.
16.
In addition, Club C argued that, in his default letter, the player had not warned it
about his intention to terminate the contract. According to Club C, the player had
failed to give it a chance to cure its default.
17.
As regards the player’s alleged de-registration, Club C held that any deregistration would require the player’s consent, “otherwise it could not be done”.
18.
Nevertheless, as per Club C, even in the case it de-registered the player for only
half of the season, this would not have affected the contract, which was still valid
Player A, Country B / Club C, Country D / Club E, Country B
Page 3 of 12
and in force. In particular, this was demonstrated by the fact that the player was
training regularly and being paid, “except for the months of January and
February 2016”.
19.
Furthermore, Club C considered that the player failed to substantiate that he was
sent to train with the under-20 team, even though there is no provision in the
contract that he must always train with the first team.
20.
In his replica and reply to the counterclaim, the player firstly held that it remained
undisputed that Club C had received his default letter of 17 March 2016.
Consequently, as per the player, the legal pre-requisite of warning the club about
its contractual breach had been fulfilled.
21.
Moreover, the player argued that Club C owed him three salaries when he
terminated the contract. In this context, the player claimed that, in addition to
the January and February 2016 salaries, he had not received the March 2016 salary
either.
22.
Furthermore, the player pointed out that Club C never responded to the default
letter nor to the subsequent termination letter. According to the player, Club C
had not provided any statement whatsoever regarding the matter at stake until
having submitted its reply to FIFA.
23.
The player further argued that, after the alleged de-registration, he never played
a match for Club C again, while four other foreign players were included in Club
C’s team.
24.
According to the player, it was thus beyond reasonable doubt that his deregistration occurred.
25.
As regards his assertion that he was sent to train with the under-20 team, the
player enclosed a number of messages exchanged between him and the coach
during February 2016 and March 2016.
26.
In its duplica, Club C firstly maintained that it had always fulfilled its contractual
obligations, that only two months’ salary had been outstanding, that the player
failed to warn it that it would terminate the contract and that, consequently, the
player did not have a just cause to terminate the contract.
27.
Moreover, Club C highlighted that the player’s arguments regarding his alleged
de-registration are speculations since there was no evidence in support of them.
As per Club C, the exhibits submitted by the player are general information as to
its squad and performance.
28.
With regard to the attached WhatsApp conversation between the player and the
coach, Club C stated that there was no confirmation that this number belonged
to the coach. Moreover, the conversation lacked any indication as to why Club C
was preventing him from joining the main team, and/or that he was separated.
Player A, Country B / Club C, Country D / Club E, Country B
Page 4 of 12
29.
Upon request of the FIFA Administration, the player held that, on 14 July 2016,
he signed an employment contract with Club E (hereinafter also referred to as:
Intervening Party or Club E), valid as from the date of signature until 30 April
2017. According to the contract, the player was to obtain a monthly salary of
100,000.
30.
The player further informed FIFA that, on 18 January 2017, he signed an
employment contract with Club F, valid as from the date of signature until 15
December 2017. According to this contract, the player was to obtain a monthly
salary of 36,000.
31.
Moreover, the player informed FIFA that, on 30 January 2018, he signed an
employment contract with Club G, valid as from 3 January 2018 until 31 December
2019. According to this contract, the player was to obtain a monthly salary of
180,000.
32.
Furthermore, the player informed FIFA that on 18 July 2018 he signed an
employment contract with Club H, valid as from the date of signature until 31
December 2018. According to this contract, the player was to obtain a monthly
salary of 180,000.
33.
Finally, the player informed FIFA that he signed an employment contract with the
Club of Country J, Club K, valid as from 1 January 2019 until 30 June 2019.
According to this contract, the player shall obtain the total amount of USD
850,000.
34.
On 13 December 2018, upon invitation of the FIFA Administration, Club E
submitted its comments on the present matter explaining that, in July 2016, the
player informed it that he had terminated the contract due to outstanding
remuneration by Club C.
35.
Subsequently, as per Club E, after signing the employment contract on 14 July
2016, the Football Association of Country D delivered the ITC on 18 July 2016.
36.
With regard to Club C’s counterclaim of 11 November 2017, Club E highlighted
that the counterclaim was only filed against the player. As per Club E, Club C never
accused it of inducing the player to terminate the contract, nor was Club E ever
mentioned in any of the parties’ submissions.
37.
According to Club E, it is easy to verify that the player terminated the contract
with Club C with just cause, given the outstanding salaries and the default letter.
Therefore, Club C was not entitled to claim compensation.
38.
Furthermore, Club E pointed out that it negotiated the employment contract with
the player several months after the termination of the contract with Club C.
Player A, Country B / Club C, Country D / Club E, Country B
Page 5 of 12
39.
For these reasons, Club E concluded that Club C’s counterclaim should be rejected
in full.
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 player’s claim was submitted to FIFA on
6 September 2017 and that Club C’s counterclaim was submitted to FIFA on 11
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 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. a of the Regulations on the Status and Transfer of
Players (edition June 2018), the Dispute Resolution Chamber is in principle
competent to deal with the matter at stake, which concerns an employmentrelated dispute between a Player of Country B and a Club of Country D.
3.
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 player’s claim was lodged on 6
September 2017, as well as that Club C’s counterclaim was lodged on 11 November
2017, the 2016 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. 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.
5.
Having said that, the members of the Chamber acknowledged that, on 14
February 2015, the player and Club C concluded an employment contract, valid as
from the date of signature until 30 June 2019, according to which the player was
entitled to a total remuneration of EUR 8,000,000. More specifically, with regards
to the season 2015/2016, the members of the DRC observed that the player, on
top of an “advance payment” of EUR 300,000, was entitled to a monthly salary of
EUR 100,000 as from 1 July 2015 until 30 June 2016.
6.
The DRC further acknowledged that, according to the player, he had just cause to
unilaterally terminate the employment contract on 3 April 2016, due to the fact
that, by the time of termination, Club C had failed to remit him the total amount
Player A, Country B / Club C, Country D / Club E, Country B
Page 6 of 12
of EUR 300,000, consisting of his salaries for the months of January, February and
March 2016.
7.
The members of the Chamber equally took into account that, according to the
player, Club C de-registered him on 31 January 2016.
8.
In continuation, the members of the Chamber noted that Club C, for its part, held
that the player had no just cause to prematurely put an end to the employment
relationship, mainly due to the fact that, according to it, at the time he terminated
the contract, only the salaries for January and February 2016 were outstanding.
9.
On account of the above, the Chamber highlighted that the underlying issue in
this dispute was to determine whether the employment contract had been
terminated by the player with just cause or not and, in the affirmative, to
determine the consequences thereof.
10.
In this respect, the members of the DRC first turned their attention to the player’s
allegation that, on 31 January 2016, Club C signed another foreign player and,
consequently, de-registered him from playing competitions for the continuation
of the 2015/2016 season. In this respect, the Chamber – bearing in mind art. 12
par. 3 of the Procedural Rules, in accordance with which any party claiming a right
on the basis of an alleged fact shall carry the burden of proof – observed that the
player provided excerpts of the Regulations of the Football Association of Country
D (hereinafter: Football Association L), which seem to provide that Clubs of
Country D may only register 3 foreign players + 1 foreign player whose nationality
is one of the Asian member federations. Furthermore, according to the player’s
passport issued by the Football Association L and available on the Transfer
Matching System (TMS), the player was indeed de-registered from Club C on 31
January 2016.
11.
Although confident of the exhaustiveness of the foregoing line of reasoning, the
DRC further observed, for the sake of completeness, that the player provided
abstracts from ‘Transfermarkt’ from which, inter alia, it emerges that he played in
13 games between 12 September 2015 and 28 January 2016, whereas he was not
included in the complete line-ups of players for three games played between 5
February 2016 and 28 February 2016.
12.
In light of all the above, the DRC could, therefore, concur in the conclusion that
the player had been de-registered from Club C on 31 January 2016.
13.
In continuation, the members of the Chamber also took due note of Club C’s
position that any de-registration requires a player’s consent “otherwise it could
not be done” and that, even in the case it de-registered the player for only half
of the season, this would not have affected the contract, which was still valid and
in force.
14.
In this respect, first of all, the members of the Chamber considered important to
point out, as it has been previously sustained by the DRC, that among a player’s
Player A, Country B / Club C, Country D / Club E, Country B
Page 7 of 12
fundamental rights under an employment contract, is not only his right to a timely
payment of his remuneration, but also his right to access training and to be given
the possibility to compete with his fellow team mates in the team’s official
matches.
15.
Moreover, and referring to Club C’s position, the DRC deemed it worth recalling
that, by de-registering a player, even for a limited time period, a club is effectively
barring, 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.
Therefore, the Chamber established that the de-registration of a player could in
principle constitute a breach of contract, in and by itself, since it de facto prevents
a player from being eligible to play for his club.
16.
The foregoing having been established, and bearing in mind that the player
alleged that he had accrued 3 month-salary worth of outstanding remuneration
towards Club C, the members of the DRC turned their attention to the core of the
matter in order to establish whether the player had terminated the employment
contract with or without just cause on 3 April 2016.
17.
In this respect, first of all, the DRC observed that it remained undisputed that Club
C failed to remit to the player his salaries of January and February 2016. Therefore,
the DRC concluded that it remained to be seen whether the player’s salary of
March 2016 remained outstanding as well by the time he terminated the
employment contract on 3 April 2016.
18.
In this context, the Chamber deemed important to point out, bearing in mind the
recalled art. 12 par. 3 of the Procedural Rules, that – on the one hand – the player
provided a copy of his bank balance for the period between 1 March and 3 April
2016 from which no payments from Club C are to be seen anywhere. The DRC
then observed that, on the other hand, Club C did not provide any documentary
evidence in relation to a payment performed towards the player concerning his
salary of March 2016.
19.
Consequently, the DRC underlined that, by the time the player terminated the
employment contract on 3 April 2016, his salaries of January, February and March
2016 were outstanding, for a total amount of EUR 300,000.
20.
On account of all the aforementioned considerations, the Chamber decided that
the player had just cause to terminate the employment contract on that day and
that Club C is to be held liable for the early termination of the employment
contract with just cause by the player.
21.
Consequently, the Chamber decided to fully reject Club C’s argumentation and
counterclaim.
22.
In continuation, prior to establishing the consequences of the termination of the
employment contract with just cause by the player, the Chamber decided that
Club C must fulfil its obligations as per the employment contract in accordance
Player A, Country B / Club C, Country D / Club E, Country B
Page 8 of 12
with the general legal principle of “pacta sunt servanda”. Consequently, the
Chamber decided that Club C is liable to pay to the player the remuneration that
was outstanding at the time of the termination. In this regard, the Chamber
established that the amount of EUR 300,000, consisting of the player’s salary for
the months of January, February and March 2016, remained unpaid at the time.
23.
Therefore, the Chamber decided that Club C must pay outstanding remuneration
in the amount of EUR 300,000 to the player.
24.
In addition, taking into consideration the player’s claim and bearing in mind that
the employment contract does not contain any provision concerning the day on
which the monthly salaries were due, the Chamber decided to award him interest
at the rate of 5% p.a. on each monthly salary overdue as of the first day following
the relevant month.
25.
In continuation and having established that Club C is to be held liable for the early
termination of the employment contract with just cause by the player, the
Chamber decided that, taking into consideration art.17 par. 1 of the Regulations,
the player is entitled to receive from Club C compensation for breach of contract
in addition to the aforementioned outstanding remuneration.
26.
In this context, the Chamber outlined that, in accordance with the recalled
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 player 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.
27.
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. In this regard, the
members of the Chamber recalled that, according art. 10 (3) of the contract,
“when the termination of the Contract is not due to a just cause or a mutual
agreement between the Parties concerned, [Club C] or the Player shall be entitled
to receive from the other party in breach of the Contract a compensation for a
net amount: - To [Club C], Euro 20.000.000; - To the player […], (the remaining
salary of the contract)”. In other words, the DRC observed that the compensation
clause contained in the employment contract granted, for the same occurrence,
EUR 20,000,000 to Club C and the residual value of the employment contract to
the player, depending on which party was found to be responsible.
28.
The members of the Chamber agreed that this clause determines a
disproportionate benefit in favour of Club C, i.e. although being reciprocal, it
does not grant the same financial rights to the player, envisaging an amount of
compensation which is, at the very least (i.e. a termination occurred three months
Player A, Country B / Club C, Country D / Club E, Country B
Page 9 of 12
after the signing of the contract), more than two times higher for Club C.
Therefore, the DRC held that said clause cannot be taken into consideration in
the determination of the amount of compensation.
29.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by Club C to the player had to be assessed in application
of the other parameters set out in art. 17 par. 1 of the regulations. Bearing in
mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from its
termination and concluded that the player would have received EUR 6,300,000 as
remuneration had the employment contract been executed until its regular expiry
date, i.e. until 30 June 2019 and that such amount shall serve as the basis for the
final determination of the amount of compensation for breach of contract.
30.
In continuation the Chamber assessed as to whether the player had 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.
31.
In respect of the above, the members of the DRC observed that, after the
termination of the employment contract at stake, the player entered into 5
subsequent employment relationships with 5 different clubs.
32.
More specifically, the Chamber recalled that, on 14 July 2016, the player signed
an employment contract with Club E, valid as from the date of signature until 30
April 2017. According to the contract, the player was to obtain a monthly salary
of 100,000. The DRC further noted that, on 18 January 2017, the player signed an
employment contract with Club F, valid as from the date of signature until 15
December 2017, according to which, he was to obtain a monthly salary of 36,000.
Furthermore, the Chamber took note that, on 30 January 2018, the player signed
an employment contract with Club G, valid as from 3 January 2018 until 31
December 2019. According to this contract, he was to obtain a monthly salary of
180,000. Moreover, the DRC recalled that, on 18 July 2018, the player signed an
employment contract with Club H, valid as from the date of signature until 31
December 2018. According to this contract, the player was to obtain a monthly
salary of 180,000. Finally, the DRC recalled that the player signed an employment
contract with the Club of Country J Club K, valid as from 1 January 2019 until 30
June 2019, according to which he was entitled to the total amount of USD
850,000.
33.
In light of the above and applying the appropriate conversion rates, the members
of the DRC concluded that, for the relevant period, the player was able to mitigate
his damages for a total amount of EUR 1,575,000.
Player A, Country B / Club C, Country D / Club E, Country B
Page 10 of 12
34.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that Club C must pay the
amount of EUR 4,725,000 to the player as compensation for breach of contract.
35.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 300,000, plus interest at the rate
of 5% p.a. until the date of effective payment, as follows:
a. as from 1 February 2016, on the amount of EUR 100,000;
b. as from 1 March 2016, on the amount of EUR 100,000;
c. as from 1 April 2016 on the amount of EUR 100,000.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 4,725,000.
4.
In the event that the amount plus interest due to the Claimant / CounterRespondent in accordance with the above-mentioned point 2. is not paid by the
Respondent / Counter-Claimant within the stated time limit, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
5.
In the event that the amount due to the Claimant / Counter-Respondent in
accordance with the above-mentioned point 3. is not paid by the Respondent /
Counter-Claimant 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 the FIFA Disciplinary Committee for consideration
and a formal decision.
6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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.
8.
The counterclaim of the Respondent / Counter-Claimant is rejected.
Player A, Country B / Club C, Country D / Club E, Country B
Page 11 of 12
*****
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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl. CAS directives
Player A, Country B / Club C, Country D / Club E, Country B
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