Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Country B, on 9 May 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands), member
Eirik Monsen (Norway), member
Pav el Piv ov arov (Russia), member
Todd Durbin (USA), 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 between the parties
I.
Facts of the cas e
1. On 30 July 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 (hereinafter: the contract),
valid as of 30 July 2018 until 30 July 2020.
2. According to the contract, the club undertook to pay the following monies to
the player:
EUR 2,000 as monthly salary;
EUR 10,000 as bonus for “winning the championship”.
3. Art. 4 of the contract, with the subtitle “the club’s obligations towards the
football player”, contains, inter alia, the following clauses:
“Payment of expenses for the treatment of sports injuries occurring during
the performance of duties – engagement in sports activities”;
“Providing meals and accommodation while at the Club”.
4. Art. 6 of the contract reads, inter alia, as follows: “The contract must be signed
by the contracting parties and will enter into force on the date of verification
by the authorized body of the Football Federation”.
5. On 11 October 2018, the player sent a letter to the club and requested
payment of the outstanding amount of EUR 4,500, corresponding to his
salaries for August and September 2018 as well as accommodation costs of
EUR 250 per month. The player informed the club that he would exercise his
right to terminate the contract if the outstanding dues were not remitted
within 15 days.
6. On 18 October 2018, the player sent another letter to the club, stating that he
was not allowed to train with the team anymore and requested to
immediately be reinstated to the team’s training.
7. On 12 November 2018, the player terminated the contract with the club in
writing due to club’s non-fulfilment of its financial obligations.
8. On 10 December 2018, the player lodged a claim in front of FIFA against the
club for breach of contract and requested the following amounts:
EUR 6,799.20 corresponding to outstanding salaries for 3 months and 12
days;
EUR 41,465.20 as compensation corresponding to the residual value of the
contract, corresponding to the period of 20 months and “22 days”;
EUR 20,000 corresponding to the championship bonus in case the club
would win it during the seasons 2018/2019 and/or 2019/2020;
EUR 180 as reimbursement of medical costs;
Player A, Country B / Club C, Country D
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EUR 6,000 as reimbursement for accommodation costs (24 months of EUR
250);
EUR 12,000 as additional compensation corresponding to monthly salaries.
Furthermore, the player requested interest of 5% p.a. as of 12 November
2018.
9. In his claim, the player maintained that the club failed to remit any salaries
even though the player started training with the team.
10. Furthermore, the player argued that he put the club in default, but instead of
remitting his salaries, the club excluded him from the trainings of the team.
11. As a consequence of the non-payment of his salaries, the player held that he
terminated the contract with just cause on 12 November 2018.
12. The player further referred to the additional compensation based on art. 17
of the Regulations and argued that since the club failed to remit any salaries
and did exclude him from training, he would be entitled to an additional
compensation of six instead of three monthly salaries.
13. Regarding the reimbursement of his medical costs, the player submitted
receipts of payments in hospitals.
14. Moreover, the player claimed being entitled to reimbursement of his
accommodation costs since the club agreed to remit EUR 250 to him per month
in this regard.
15. On 24 December 2018, the club sent a letter to the player arguing that, due
to the medical condition of the player and since he did not provide “proof of
his health condition”, the contract could not be validated and confirmed by
the Football Federation of Country D (hereinafter: Football Federation of
Country D), and as a consequence thereof remained invalid.
16. In its reply to the claim, the club rejected the player’s claim and argued that
the contract never entered into force since it could not be validated and
confirmed by the Football Federation of Country D due to the player’s
mistake.
17. Furthermore, the club maintained that the player was injured, which was
noted already on the second day of training. Subsequently, the club requested
him to undergo a medical examination and to provide the club with “proof
of his health condition”.
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18. According to the club, the player was then informed that he would not be
permitted to train with the team anymore, before receiving “medical
clearance”.
19. The club further held that the player acted in bad faith by not revealing prior
injuries before signing the contract.
20. As a consequence of the player not delivering “proof of his health condition”,
the club stated that it could not “present the contract of services entered into
to the Football Federation of Country D for verification and validation”.
21. In this regard, the club referred to art. 6 of the contract (cf. point I.4. above)
and to the Regulations of the Football Federation of Country D, and brought
forward that it was informed by the Football Federation of Country D that
“the signed contract is not valid if it’s not confirmed by Football Federation
of Country D”, which lead the club to conclude that the contract never
entered into force.
22. The player confirmed that he remained unemployed as of 12 November 2018.
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 10 December 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 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. 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 10 December 2018, the June 2018 edition of said regulations
Player A, Country B / Club C, Country D
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(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. First, the Chamber noted that the parties entered into an employment
contract valid as of 30 July 2018 until 30 July 2020, which entitled the
Claimant, inter alia, to a monthly salary of EUR 2,000.
6. In continuation, the DRC acknowledged that it remained undisputed that the
Claimant, on 12 November 2018, after having put the club in default
previously, sent a letter to the Respondent, by means of which he terminated
the contract due the club’s non-compliance with its financial obligations.
According to the player, the club failed to pay any remuneration due under
the existing contract. In line with the above, the Claimant argued having
terminated the contract with just cause and therefore requested to be
awarded with his outstanding dues, reimbursement of health and
accommodation costs, bonuses as well as compensation for breach of contract.
7. The Chamber further took notice of the Respondent’s argumentation that the
player acted in bad faith since he allegedly failed to reveal a pre-existing injury
before signing the contract. Furthermore, the club argued that the contract
was never verified by its Federation and therefore did not enter into force. In
this regard, the Respondent requested to reject the player’s claim.
8. In view of the allegations and arguments presented by the parties involved in
the present matter, the Chamber underlined that in order to be able to
establish as to whether, as claimed by Claimant, a breach of contract had been
committed by the Respondent, it should first of all pronounce itself on the
issue of the validity of the contract, which was signed by and between the
player and the club.
9. In this context, the Chamber duly noted that whereas both parties
acknowledged having signed the contract, the Respondent argued that the
contract cannot be considered as valid since, due to the player’s mistake, the
Football Federation of Country D could not “validate” the contract as foreseen
in its art. 6 (cf. point I.4. above) and therefore, the contract did not enter into
force.
Player A, Country B / Club C, Country D
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10. In this respect, the DRC considered relevant to recall considered relevant to
recall art. 18 par. 4 of the Regulations as well as its jurisprudence in accordance
with which the validity of an employment contract cannot be made
conditional upon the execution of (administrative) formalities, such as, but
not limited to the validation by a Federation, which are of the sole
responsibility of one party and on which the other party has no influence.
11. In continuation, the members referred to the DRC’s longstanding
jurisprudence, according to which the responsibility to conduct the necessary
medical examinations prior to the signing of an employment contract is
incumbent on the Respondent. A club wishing to employ a player has to
exercise due diligence and carry out all relevant medical examination prior to
entering into an employment contract with a player.
12. On account of the foregoing, the Chamber came to the firm conclusion that
the arguments of the Respondent cannot be upheld and that the contract
signed by and between the Claimant and the Respondent was a valid
employment contract binding the parties as from 30 July 2018 until 30 July
2020.
13. Having established the above, the members of the Chamber turned their
attention to the second issue at stake, namely whether the contract was
terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
14. With the above in mind, the Chamber proceeded with an analysis of the
circumstances surrounding the present matter, the parties’ arguments as well
the documentation on file, 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.
15. In doing so, the DRC recalled that it has remained undisputed that the
Claimant terminated the contract on 12 November 2018 by means of a letter,
referring to outstanding remuneration in the amount of EUR 6,799.20, which
correspond to more than three monthly salaries.
16. In this context, the members of the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant any remuneration
under the contract and that at the time of termination remuneration totalling
EUR 6,000, corresponding to three monthly salaries as from August to October
2018, remained outstanding. What is more, the Chamber took into account
that the Claimant had put the Respondent in default before terminating the
contract.
Player A, Country B / Club C, Country D
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17. Consequently, and considering that the Respondent had thus repeatedly and
for a significant period of time been in breach of its contractual obligations
towards the Claimant, the Chamber decided that the Claimant had just cause
to unilaterally terminate the employment contract on 12 November 2018 and
that, as a result, the Respondent is to be held liable for the early termination
of the employment contact with just cause by the Claimant.
18. Subsequently, prior to establishing the consequences of the termination of
the employment contract with just cause by the Claimant in accordance with
art. 17 par. 1 of the Regulations, the Chamber held that it, in general, had to
address the issue of unpaid remuneration at the moment when the contract
was terminated by the Claimant.
19. Bearing in mind the above, the Chamber, in accordance with the general legal
principle of pacta sunt servanda, decided that the club is liable to pay to the
player the amount of EUR 6,000 with regard to the remuneration due to him
between August and October 2018.
20. Moreover, taking into account the player’s claim, art. 4 of the contract and
the documentation submitted by the Claimant, the DRC decided that the
player shall be reimbursed for the requested medical costs in the amount of
EUR 180.
21. In addition, taking into consideration the player’s claim, the Chamber decided
to award the Claimant interest at the rate of 5% p.a., on the aforementioned
amounts, as of 12 November 2018 until the date of effective payment.
22. Furthermore, taking into account the player’s claim and in the absence of any
monetary value in the contractual condition relating to accommodation and
of any documentary evidence in this connection (cf. art. 12 par. 3 of the
Procedural Rules), the Chamber had to reject the Claimant’s claim amounting
to EUR 6,000 relating to the alleged accommodation costs.
23. As regards the Claimant’s claim relating to the bonuses in connection with the
club’s possible win of the championship during the seasons 2018/2019 and/or
2019/2020, the members of the Chamber stressed that the payment and the
amount of such bonuses are linked to matches to be played in the future, i.e.
after the termination of the relevant contract, and, therefore, are fully
hypothetical. Consequently, the Chamber decided to reject such claim.
24. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the Claimant is entitled to receive compensation for
breach of contract from the Respondent.
Player A, Country B / Club C, Country D
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25. In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
so, the members of the Chamber firstly recapitulated that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at
the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including, in
particular, the remuneration and other benefits due to the Claimant under
the existing contract and/or the new contract, the time remaining on the
existing contract up to a maximum of five years, and depending on whether
the contractual breach falls within the protected period.
26. In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract 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 employment contract at the basis of
the matter at stake.
27. As a consequence, the DRC determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application
of the parameters set out in art. 17 par. 1 of the Regulations.
28. In line with the above, the members of the Chamber then 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.
29. 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 the date of termination with just cause by the Claimant until
its natural expiration, bearing in mind that he would have received in total
EUR 42,000 as remuneration for the period as from November 2018 until 30
July 2020. Consequently, the Chamber concluded that the amount of EUR
42,000 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
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30. 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 enabled to reduce his loss of income.
In this respect, the DRC deemed it necessary to refer to the first sentence of
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”).
31. However, the members of the Chamber noted that the player remained
unemployed as from the termination of the contract until the date of the
decision and, therefore, decided that he should be entitled to receive
compensation in the amount of EUR 42,000 for this period of time,
corresponding to the residual value of the contract.
32. Subsequently, the Chamber turned its attention to the second sentence of art.
17 par. 1 lit. ii) of the Regulations, according to which, in addition to the
mitigated compensation, the player shall be entitled to an additional
compensation of three monthly salaries, subject to the early termination of
the contract being due to overdue payables. In case of egregious
circumstances, the additional compensation may be increased up to a
maximum of six monthly salaries.
33. With the above in mind, and since according to art. 17 par. 1 lit ii) the overall
compensation may never exceed the rest value of the prematurely terminated
contract, the DRC decided to reject the player’s request for additional
compensation.
34. Consequently, on account of the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amount of EUR 42,000 as
compensation for breach of contract to the Claimant, which is considered by
the Chamber to be a fair and reasonable amount.
35. In addition, taking into consideration the player’s claim, the Chamber decided
to award the Claimant interest at the rate of 5% p.a. as of the date of the
claim, i.e. 10 December 2018, until the date of effective payment.
36. The DRC concluded its deliberations by rejecting any further claim of the
Claimant.
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37. 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.
38. 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.
39. 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.
40. 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.
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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 the amount of EUR 6,180
as outstanding remuneration, plus 5% interest p.a. as of 12 November 2018
until the date of effective payment.
3.
The Respondent has to pay to the Claimant the amount of EUR 42,000 as
compensation for breach of contract, plus 5% interest p.a. as of 10
December 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 points 2. and 3. above.
6.
The Respondent shall provide evidence of payment of the due amount 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 plus interest 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 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).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to
its complete serving, once the due amounts are paid.
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9.
In the event that the aforementioned sums plus interest 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 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. 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
Player A, Country B / Club C, Country D
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