Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 11 June 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Carlos González Puche (Colombia), member
Santiago Nebot (Spain), member
Mohammed Al-Saikhan (Saudi Arabia), member
Zola Majavu (South Africa), member
on the matter between the player,
Player A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 20 June 2012, the Player of Country B, Player A (hereinafter: the Claimant),
concluded an “Employment Contract for a Professional Football Player”
(hereinafter: the contract) with the Club of Country D, Club C (hereinafter: the
Respondent), valid as of 1 July 2012 until 31 May 2015.
2. According to clause V.I of the contract, the Claimant was entitled to a total
remuneration of EUR 500,000 (excluding bonuses), detailed as follows:
For the 2012/2013 Football Season: EUR 150,000
- EUR 50,000, to be paid as the advance payment of the above mentioned
amount after medical check, upon signature of the contract by the parties.
- EUR 50,000, to be paid in ten equal instalments in the amount of EUR 5,000,
due on the 30th day of each month, during the period comprised between 30
September 2012 and 30 June 2013.
- EUR 50,000, to be paid on a “per match” basis. The “per match” payment is
calculated as follows: 50,000/34 league games, equivalent to EUR 1,470 per
game. In this regard, the contract outlines that “if the player would be in the
squad and also fielded at the beginning of the game, he will be entitled to
receive 100% of game fee, if the player would be in the squad but fielded
during the game, he will be entitled to receive 75% of game fee, if the player
would be in the squad but not fielded at the game, he will be entitled to
receive 50% of game fee.”
For the 2013/2014 Football Season: EUR 175,000
- EUR 60,000 of the above mentioned amount to be paid as the advance
payment on 30 August 2013.
- EUR 55,000, to be paid in ten equal instalments in the amount of EUR 5,500,
due on the 30th day of each month, during the period comprised between 30
September 2013 and 30 June 2014.
- EUR 60,000, to be paid on a “per match” basis. The “per match” payment is
calculated as follows: 60,000/34 league games, equivalent to EUR 1,760 per
game. In this regard, the contract outlines that “if the player would be in the
squad and also fielded at the beginning of the game, he will be entitled to
receive 100% of game fee, if the player would be in the squad but fielded
during the game, he will be entitled to receive 75% of game fee, if the player
would be in the squad but not fielded at the game, he will be entitled to
receive 50% of game fee.”
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Player A, Country B / Club C, Country D
For the 2014/2015 Football Season: EUR 175,000
- EUR 60,000 of the above mentioned amount to be paid as the advance
payment on 30 August 2014;
- EUR 55,000, to be paid in ten equal instalments in the amount of EUR 5,500,
due on the 30th day of each month, during the period comprised between 30
August 2014 and 30 May 2015;
- EUR 60,000, to be paid on a “per match” basis. The “per match” payment is
calculated as follows: 60,000/34 league games, equivalent to EUR 1,760 per
game. In this regard, the contract outlines that “if the player would be in the
squad and also fielded at the beginning of the game, he will be entitled to
receive 100% of game fee, if the player would be in the squad but fielded
during the game, he will be entitled to receive 75% of game fee, if the player
would be in the squad but not fielded at the game, he will be entitled to
receive 50% of game fee.”
3. In addition, the contract included the following clauses:
VI. b) In case of non-payment of “two consecutive salaries” or “the following
season’s advance payment” in full or in part, the PLAYER should notify the club in
writing. If the CLUB should not pay the notified amount in 30 (thirty) days
starting from the due date of the second unpaid salary or the due date of the
following season’s advance payment, then the PLAYER shall have the right to
unilaterally terminate the CONTRACT with just cause.
c) In case of termination by the PLAYER due to the delay in payment by the CLUB,
the PLAYER shall be entitled to receive as an indemnity due to the breach by the
CLUB of its payment obligations, all the amounts established in this CONTRACT
including the payments due before and after the termination date, with this
situation being treated, as regards its consequences, as the same as that of the
unilateral termination without just cause on the part of the CLUB. Being
employed of the PLAYER by a new club between the termination date and the
actual duration shall affect the amount of the compensation indicated in this
clause and in this context the CLUB has his rights to claim the reduction (…) of
this amount before the judicial bodies (…).
4. On 17 November 2014, the Claimant lodged a claim before FIFA, and requested
the payment of a total amount of EUR 361,470, plus procedural costs, detailed as
follows:
- EUR 82,470, plus 5% interest p.a. as of 5 December 2013 until the date of
effective payment, calculated as in the letters sent by the Claimant on 31
October 2013;
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Player A, Country B / Club C, Country D
- EUR 279,000, as compensation for breach of contract, corresponding to all the
amounts established in the contract payable as from the actual date of
termination until the original date of termination of the contract.
5. The Claimant argued that, on 3 August 2013, the Respondent’s sports director
told him that he did not count on him anymore, and that he should not train
with the first team.
6. In addition, the Claimant explained that, on 24 August 2013, he received a letter
from the Respondent informing him that he would not be allowed to train with
the first team and to sleep in the Respondent’s training camp anymore.
7. Furthermore, the Claimant declared that, on 11 September 2013, the
Respondent’s sports director apparently talked with the coach of the second
team, and allegedly ordered him to prevent the Claimant from training with the
second team.
8. Consequently, the Claimant explained that, on 2 October 2013, he asked the
Respondent to give him “in writing” the reasoning behind his exclusion from the
trainings of the second team. According to the Claimant, immediately thereafter
he started to train again with the second team.
9. Thereafter, the Claimant stated that, on 31 October 2013, he sent a letter to the
Respondent and to the Football Federation of Country D requesting the
payment, within 30 days, of a total overdue amount of EUR 82,470, detailed as
follows:
For the 2012-2013 season:
- EUR 5,000, to be paid on 30 May 2013;
- EUR 5,000, to be paid on 30 June 2013;
- EUR 735 for the match Club E-Club C;
- EUR 735 for the match Club C-Club F.
For the 2013-2014 season:
- EUR 60,000, as advance payment, to be paid on 30 August 2013;
- EUR 5,500, to be paid on 30 September 2013;
- EUR 5,500, to be paid on 30 October 2013.
10. In addition, the aforementioned letter warned the Respondent that, upon
termination of the deadline established in the letter, the Claimant would deem
the contract as unilaterally terminated in a rightful manner.
11. Subsequently, the Claimant argued that, on 17 November 2013, the Respondent’s
president ordered the coach of the second team to keep the Claimant as second
player on every match.
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Player A, Country B / Club C, Country D
12. Afterwards, the Claimant explained that, on 5 December 2013, he sent a new
letter to the Respondent and to the Football Federation of Country D, in which
he declared that, due to the expiration of the deadline established in his previous
correspondence, he deemed the contract as terminated.
13. Finally, the Claimant declared that, on 10 December 2013, the Football
Federation of Country D confirmed the termination of the contract.
14. Despite being invited to do so, the Respondent did not respond to the claim.
15. On 30 April 2015, the Claimant informed FIFA that he concluded a new
employment contract with the Club of Country G, Club H, valid as of 7 August
2014 until 31 May 2015, which entitled him to a monthly salary of EUR 2,000,
with an additional right to have his rent refunded in the amount of EUR 400 per
month. In addition, the Claimant explained that he did not play for any club
between December 2013 and 26 February 2014. The player also declared that,
from 26 February 2014 until 11 August 2014, he played as an amateur without
any remuneration with the Club of Country B Club I.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) 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 17
November 2014. Consequently, the 2014 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
of the 2014 and 2015 editions 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 2015, 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. The competence of the Chamber having been established, the Chamber analysed
which edition of the Regulations on the Status and Transfer of Players 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 (editions 2014 and 2015), and considering that the present
matter was submitted to FIFA on 17 November 2014, the 2014 edition of the
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Player A, Country B / Club C, Country D
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the
matter. However, the Chamber emphasised that in the following considerations it
will refer only to the facts, arguments and documentary evidence which it
considered for the assessment of the matter at hand.
5. In this respect, the Chamber acknowledged that the parties to the dispute had
signed a valid employment contract on 20 June 2012, valid as from 1 July 2012
until 31 May 2015.
6. Subsequently, the Chamber noted that the Claimant lodged a claim against the
Respondent maintaining that he had terminated the employment contract with
just cause on 5 December 2013, after previously having put the club in default,
since the Respondent allegedly failed to pay the Claimant’s remuneration.
Consequently, the Claimant asks to be awarded his outstanding dues as well as
the payment of compensation for breach of the employment contract.
7. Moreover, the DRC noted that the Respondent failed to present its response to
the claim of the Claimant, in spite of having been invited to do so. By not
presenting its position to the claim, the DRC was of the opinion that the
Respondent renounced its right of defence and, thus, accepted the allegations of
the Claimant.
8. 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 documentation already on file; in
other words, upon the statements and documents presented by the Claimant.
9. In continuation, the DRC acknowledged that, in accordance with the contract
provided by the Claimant, the Respondent was obliged to pay to the Claimant
the total amount of EUR 500,000 (excluding bonuses) for the whole term of the
contract.
10. In this respect, the members of the Chamber took into consideration that
according to documentation provided by the Claimant at the time he terminated
the contract, the Respondent had failed to pay his remuneration in the total
amount of EUR 87,970, corresponding to the salaries of May 2013 and June 2013,
in the amount of EUR 5,000 each, as well as to the salaries of September 2013,
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Player A, Country B / Club C, Country D
October 2013 and November 2013, corresponding to EUR 5,500 each. In addition,
the members of the Chamber noted that the aforementioned total amount
included the sum of EUR 60,000, corresponding to the “advance payment” for
the 2013/2014 football season, as well as the amount of EUR 1,470, related to two
match bonuses for the season 2012-2013.
11. On account of the aforementioned and, in particular in view of the
considerations made above, the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant, until 5 December 2013,
date on which the Claimant terminated the contract, the total amount of EUR
87,970. Consequently, and considering that the Respondent had 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 5 December 2013 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.
12. Having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the
Chamber focused its attention on the consequences of such termination. In this
regard, the members of the Chamber determined that the Respondent was not
only to pay the amount of EUR 87,970 as outstanding remuneration to the
Claimant, but also to pay compensation for breach of contract in conformity with
art. 17 par. 1 of the Regulations.
13. Having stated the above, the Chamber turned to the calculation of the amount
of compensation payable to the Claimant by the Respondent 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.
14. In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract contained 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
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Player A, Country B / Club C, Country D
clause was included in the employment contract at the basis of the matter at
stake.
15. 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 non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
16. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the
terms of the employment contract until 31 May 2015, taking into account that
the Claimant´s remuneration until December 2013 is included in the calculation of
the outstanding remuneration. Consequently, the Chamber concluded that the
amount of EUR 153,500 (i.e. remuneration as from December 2013 until 31 May
2015) serves as the basis for the determination of the amount of compensation
for breach of contract.
17. 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.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the
Claimant’s general obligation to mitigate his damages.
18. Indeed, on 7 August 2014, the Claimant found employment with the Club of
Country G, Club H. In accordance with the pertinent employment contract, which
has been made available by the Claimant, valid until 31 May 2015, the Claimant
was entitled to receive a monthly salary of EUR 2,000, plus EUR 400 per month for
housing. Consequently, the Chamber established that the value of the new
employment contract concluded between the Claimant and Club H for the period
as from 7 August 2014 until and including 31 May 2015 amounted to EUR 24,000.
19. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 129,500 to the Claimant, which was to be considered a
reasonable and justified amount of compensation for breach of contract in the
present matter.
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Player A, Country B / Club C, Country D
20. In conclusion, for all the above reasons, the Chamber decided to partially accept
the Claimant´s claim and that the Respondent must pay to the Claimant the
amount of EUR 87,970 as outstanding remuneration and EUR 129,500 as
compensation for breach of contract.
21. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR
87,970 as from 5 December 2013 until the date of effective payment.
22. Moreover, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant’s request relating to
legal expenses.
23. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the Claimant.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 87,970, plus 5% interest p.a. as of 5 December 2013 until the date of
effective payment.
3. In the event that the amount foreseen in point 2. plus interest is not paid within
the stated time limit by the Respondent, the matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4. The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount
of EUR 129,500.
5. In the event that the amount set forth in point 4. is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of
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Player A, Country B / Club C, Country D
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 is rejected.
7. The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances under points 2. and 4. are to be
made and to notify the Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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 (CAS)
Avenue de Beaumont 2
CH-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:
Marco Villiger
Acting Deputy Secretary General
Enclosed: CAS directives
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Player A, Country B / Club C, Country D