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
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.
The Player of Country B, Player A (hereinafter: the Claimant), and the Club of
Country D, Club C (hereinafter: the Respondent) entered into an employment
contract valid from 19 July 2018 until 31 May 2020.
2.
According to art. 3 of the contract, the Claimant was entitled to receive for the
seasons 2018/2019 and 2019/2020, a monthly remuneration of EUR 20,000 payable
on the 30th of each month from August to May (i.e. EUR 200,000 per season), as
well as a lump sum payment of EUR 130,000 per season payable on 19 July 2018
and 19 July 2019.
3.
In addition, art. 3 foresaw that should the Respondent play in the ‘‘League E of
Country D at the end of 2018/2019 football season”, the Claimant would be
entitled to a monthly remuneration of EUR 30,000 payable on the 30th of each
month from August to May (i.e. EUR 300,000 per season), as well as a lump sum
payment of EUR 195,000 payable on 19 July 2019.
4.
On 16 August 2018, the Claimant sent a correspondence to the Respondent
requesting to be registered with the Football Federation of Country D
(hereinafter: the Football Federation F) “in the next 7 days” otherwise he would
unilaterally terminate his contract. The Claimant indicated that the Respondent’s
“first match was on 12 August 2018 [and] because [the Respondent] didn’t fulfil its
obligations [the Claimant] could not have a duty in the team. This situation is
exactly against to [sic] effective employment principle and [Claimant’s] right to
play”.
5.
On 20 August 2018, the Respondent replied to the Claimant and stated that it will
register the Claimant before the end of the first registration period of the Football
Federation F for the season 2018-2019 on 31 August 2018. In addition, the
Respondent declared that should the Claimant terminate his contract before said
date it “will apply to FIFA against the [Claimant] to claim termination
compensation and sporting sanctions against [him]”.
6.
On 20 September 2018, the Claimant sent another correspondence to the
Respondent, by means of which he declared that he had not received the EUR
130,000 lump sum that fell due on 19 July 2018. The Claimant gave to the
Respondent a 15 days deadline to comply with said payment, and reserved his
rights to terminate his contract unilaterally and lodge a claim in front of FIFA
should the Respondent not do so.
7.
On 8 October 2018, the Claimant sent to the Respondent a correspondence by
means of which he informed the latter of the unilateral termination of the
contract with “just cause” with immediate effect and declared that he would
lodge a claim in front of FIFA in that regard.
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8.
On 30 October 2018, the Claimant lodged a claim against the Respondent in front
of FIFA, arguing that since July 2018 the Respondent had breached the contract it
signed with him on 19 July 2018 by not registering him with the Football
Federation of Country D and by not respecting the remuneration clauses of said
contract, and requested the following to be awarded:
a) The payment of EUR 170,000 of overdue payables with 5% interest p.a. from
the due date of each payment, amounting to:
i. EUR 130,000 representing the lump sum payment due on 19 July 2018;
ii. The salaries for August and September 2018, i.e. EUR 20,000 x 2 = EUR
40,000;
b) That the Claimant had just cause to terminate the contract;
c) The payment of EUR 655,000 corresponding to the residual value of the
contract that was unilaterally terminated by the Claimant with 5% interest
p.a. from the 8 October 2018;
d) The payment of
compensation”;
EUR
120,000
“with
its
interest”
as
“additional
e) The payment of EUR 120,000 “with its interest” as an “indemnity of six
months [salary]”; and
f) Sporting sanctions to be imposed on the Respondent.
9.
On 7 February 2019, the Claimant’s claim was sent to the Respondent, and on 8
February 2019 it requested the FIFA administration to be provided with a deadline
extension “due to having the necessary documents translated into English
language in order to attach them to the reply brief”. Said extension was granted
by the FIFA administration to the Respondent.
10.
On 10 March 2019, the aforementioned deadline expired without any reply from
the Respondent.
11.
Upon request, the Claimant informed FIFA that on 12 January 2019, he signed an
employment contract with the Club of Country D, Club G, valid as from 12 January
2019 until 31 May 2020, and according to which he is entitled to earn:
a) A total fixed remuneration of EUR 125,000 for the period 12 January-31 May
2019; and
b) A total fixed remuneration of EUR 255,000 for the period 1 July 2019-31 May
2020.
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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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 30 October 2018. Consequently, the 2018 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
of the 2018 edition 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 DRC 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.
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
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 30
October 2018, the June 2018 edition of said 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, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the facts of the case, 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.
In this respect, the Chamber first acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 19 July 2018 until 31
May 2020. In this respect, the Chamber observed that according to art. 3 of the
contract, the Claimant was entitled to receive for the season 2018/2019 (1) a lump
sum payment of EUR 130,000 on 19 July 2018 and (2) a monthly salary of EUR
20,000 payable on the 30th of each month from August 2018 to May 2019. In
addition, the Claimant was entitled to receive for the season 2019/2020 (1) a lump
sum payment of EUR 130,000 on 19 July 2019 and (2) a monthly salary of EUR
20,000 payable on the 30th of each month from August 2019 to May 2020.
Furthermore, the Chamber observed that art. 3 of the contract indicated that
should the Respondent be promoted to the ‘‘League E of Country D” at the end of
the season 2018/2019, the Claimant would be entitled to (1) a lump sum payment
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of EUR 195,000 on 19 July 2019 and (2) a monthly salary of EUR 30,000 payable on
the 30th of each month from August 2019 to May 2020.
6.
In continuation, the DRC noted that 30 October 2018 the Claimant lodged a claim
against the Respondent arguing that he had terminated the employment contract
with just cause on 8 October 2018 based on the fact that the Respondent had not
complied with its financial obligations, namely the payment of a lump-sum fee as
well as two monthly salaries, and this despite having been put in default on
several occasions prior to the termination. In addition, the Chamber duly noted
that the Claimant had requested to be registered with the Respondent.
7.
The DRC observed that as a consequence the Claimant asked to be awarded the
aforementioned outstanding dues along with the payment of compensation for
breach of the employment contract.
8.
In this respect, the Claimant requested to be awarded EUR 170,000 as outstanding
remuneration plus interest, corresponding to EUR 130,000 as the lump-sum fee
payable on 19 July 2018, and EUR 40,000 representing the salaries of August and
September 2018.
9.
The Claimant further requested the amount of EUR 655,000 plus interest, as
compensation for breach of contract, corresponding, according to the Claimant, to
the residual value of the contract as from the termination until 31 May 2020.
10.
What is more, the Claimant requested the award of EUR 120,000 plus interest as
additional compensation for breach of contract.
11.
The Claimant also requested the award of EUR 120,000 plus interest as an
“indemnity of six months [salary]”, as well as the imposing of sporting sanctions on
the Respondent.
12.
The Chamber acknowledged 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. In
this way, the Chamber considered that the Respondent renounced its right of
defence and, thus, accepted the allegations of the Claimant.
13.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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.
14.
In this respect, the DRC observed that on 16 August 2018, that is to say almost a
month after the Claimant and the Respondent signed the contract and after the
Respondent apparently played its first competitive fixture, the Claimant requested
to be registered with the Respondent. The Chamber duly noted that in response,
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the Respondent referred to the fact that it had until the last day of the
registration period, i.e. 31 August 2018, to register the Claimant and assured him it
would do so by said date. The DRC also acknowledged that the Respondent told
the Claimant that should he terminate his contract before the expiry of said
registration period, it would lodge a claim against him in front of FIFA requesting
compensation and sporting sanctions to be imposed on him. What is more, the
Chamber observed that the Claimant indicated in his claim that the Respondent
had ultimately failed to register him by 31 August 2018.
15.
In view of the above and bearing in mind that in the absence of a response from
the Respondent to the claim, the DRC deemed that it remained uncontested that
the Claimant was never registered with the Respondent at any point during the
duration of their contractual relationship. Consequently, the Chamber was of the
opinion that such situation might have led the Claimant to legitimately believe
that the Respondent was never interested in his services. In addition, the DRC
stressed that by its actions, namely by not registering the player before the end of
the relevant registration period despite stating that it would do so, the
Respondent, for all intents and purposes, effectively deceived the Claimant.
16.
In view of the above, the members of the DRC considered important to point out,
as it 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 access training and to
be given the possibility to compete with his fellow team mates in the team’s
official matches. In this context, the DRC emphasized that in principle, by
refusing to register a player, a club is effectively barring, in an absolute manner,
the potential access of a player to competition and, as such, violating one of his
fundamental rights as a football player. What is more, the Chamber insisted that,
by wrongly letting the Claimant believe that he would be registered before 31
August 2018, the Respondent acted egregiously and severely prejudiced the
Claimant’s rights.
17.
What is more, the DRC considered that in the absence of reply of the Respondent
to the claim, the remunerations referred to by the Claimant in his default notices
and his claim had to be considered outstanding.
18.
In view of the foregoing, the Chamber concluded that the Respondent did not put
forward any reason to justify the outstanding payments nor provided any
substantial proof that any of the alleged outstanding payments were made to the
Claimant.
19.
Consequently, the DRC vigorously highlighted that the Respondent had not
remedied the default in payments in spite of having been given the opportunity
by the Claimant to do so on at least two occasions. Furthermore, the Chamber duly
noted that on the date of the termination of the contract, i.e. 8 October 2018, two
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monthly salaries and a lump-sum fee remained outstanding, for a total amount of
EUR 170,000. What is more, the Chamber underlined that the Claimant had, in his
last default notice dated 20 September 2018, given a 15-days deadline to the
Respondent.
20.
At this point, the Chamber recalled the provisions set out in art. 14bis par. 1 of the
Regulations, according to which in the case of a club unlawfully failing to pay a
player at least two monthly salaries on their due dates, the player will be deemed
to have a just cause to terminate his contract, provided that he has put the debtor
club in default in writing and has granted a deadline of at least 15 days for the
debtor club to fully comply with its financial obligation(s). In light of its conclusion
regarding the outstanding remuneration towards the Claimant as well as the fact
that the latter had duly put the Respondent in default, granting it a 15 days
deadline to remedy such default, the DRC established that the Claimant had just
cause to unilaterally terminate the contract in accordance with art. 14bis of the
Regulations, and that, as a result, the Respondent is to be held liable for the early
termination of the employment contract.
21.
Bearing in mind the previous considerations, the Chamber turned its attention to
the consequences of the early termination of the contract with just cause by the
Claimant.
22.
First of all, the DRC concurred that the Respondent must fulfil its obligations as per
the employment contract up and until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”.
Consequently, the DRC decided that the Respondent is liable to pay to the
Claimant outstanding remuneration in the amount of EUR 150,000, consisting of
two monthly salaries of EUR 20,000 for the months of August and September 2018
and the lump-sum fee of EUR 130,000 that was payable on 19 July 2018.
23.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. as of the respective
due dates of the aforementioned sums until the date of effective payment.
24.
Furthermore, the DRC 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 the aforementioned
outstanding remuneration.
25.
In this context, the Chamber outlined that, in accordance with the 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
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on the existing contract up to a maximum of five years, and depending on
whether the contractual breach falls within the protected period.
26.
In application of the relevant provision, the DRC 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 an amount of compensation
payable by the contractual parties in the event of breach of contract. In this
regard, the DRC established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
27.
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.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as
from its early termination until its regular date of expiry.
28.
In this respect, the DRC noted that in his claim, the Claimant calculated the
remaining value of the contract based on the fulfilment of the clause described in
art. 3 (cf. I./3. above), i.e. the promotion of the Respondent to the ‘‘League E of
Country D at the end of 2018/2019 football season”. However, the DRC
acknowledged that the Claimant did not provide any evidence in support of such
event occurring, and in any case, the Chamber highlighted that it was public
knowledge that at the time of the present decision, the Respondent could not be
promoted to said league at the end of the season 2018/2019. Therefore, the
Chamber concluded that the remaining value of the contract as from its early
termination until the regular expiry of the contract amounts to EUR 490,000 and
that such amount shall serve as the basis for the final determination of the amount
of compensation for breach of contract.
29.
In continuation, the Chamber verified as to whether the Claimant 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. In fact, the
DRC recalled the provisions set out in art. 17 par. 1 lit ii. of the Regulations
according to which “in case the player signed a new contract by the time of the
decision, the value of the new contract for the period corresponding to the time
remaining on the prematurely terminated contract shall be deducted from the
residual value of the contract that was terminated early (the “Mitigated
Compensation”)”.
30.
Indeed, the Chamber took note that the Claimant signed a new employment
contract with the Club of Country D, Club G on 12 January 2019. According to this
agreement, the Claimant would be entitled to receive a total fixed remuneration
of EUR 380,000 for the period 12 January 2019 – 31 May 2020. Therefore, the DRC
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concluded that the Claimant shall be awarded EUR 110,000 as “Mitigated
Compensation”.
31.
Furthermore, the DRC emphasised that, pursuant to art. 17 par. 1 lit ii. of the
Regulations, a player, in case of the early termination of the contract being due to
overdue payables, in addition to the “Mitigated Compensation”, shall also be
entitled to an amount corresponding to three monthly salaries (i.e. the
“Additional Compensation”). What is more, in case of egregious circumstances, the
Additional Compensation may be increased to a maximum of six monthly salaries.
32.
Taking into account all the aforementioned elements as well as the specificities of
the matter at hand, in particular the egregious conduct of the Respondent (cf.
II./14. to 16. above), the DRC decided that in the present matter the “Mitigated
Compensation” shall correspond to six monthly salaries. Consequently, the
Respondent is liable to pay to the Claimant the total amount of EUR 230,000 as
overall compensation for breach of contract.
33.
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 amount
of compensation as of the date on which the claim was lodged, i.e. 30 October
2018, until the date of effective payment.
34.
The DRC concluded its deliberations in the present matter establishing that any
further claim lodged by the Claimant was rejected.
35.
Furthermore, taking into account the consideration under number II./3. 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.
36.
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.
37.
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
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effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
38.
Finally, the Chamber recalled that the above-mentioned sanction 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 outstanding remuneration in the
amount of EUR 170,000 plus 5% interest p.a. as follows:
a.
on the amount of EUR 130,000 as of 20 July 2018 until the date of effective
payment;
b.
on the amount of EUR 20,000 as of 31 August 2018 until the date of effective
payment; and
c.
on the amount of EUR 20,000 as of 1 October 2018 until the date of effective
payment.
3. The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of EUR 230,000, plus 5% interest p.a. on said amount as from 30
October 2018 until the date of effective payment.
4. Any further claim lodged by the Claimant is rejected.
5. 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
amounts mentioned under point 2. and 3. above.
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6. The Respondent shall provide evidence of payment of the due amounts in
accordance with points 2. and 3. 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).
7. In the event that the amounts due in accordance with points 2. and 3. above are 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
amounts are 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).
8. The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
9. In the event that the aforementioned sums are 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 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).
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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
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