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
Mohamed Al-Saikhan (Saudi Arabia), member
Zola Majavu (South Africa), member
on the claim presented by the player,
Player 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 case
1.
On 1 July 2013, the player from country B, Player A (hereinafter: the Claimant), born on
23 March 1983, and the club from country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract) valid from the date of
signature until 30 June 2017.
2.
Clause 5 of the contract established a monthly salary in the amount of 803,600 and
that, after deduction of taxes, the Claimant would receive the amount of 666,634.77
“that is equivalent to $ 83,329.35 at the commercial rate of exchange – 8 for 1 US
dollar”. Moreover, it was established that “Depending on the taxation, the amount of
deducted taxes as well as the amount of the salary paid in equivalent can vary slightly”.
3.
Clause 5.1 of the contract established that the salary will be paid either to an account
indicated by the Claimant “or from the cash desk of the club” as well as that “The
payment is made in national currency of country D”.
4.
Clause 5.8 of the contract established that the Respondent undertakes to pay for 6
business flight tickets per year, country B – country D – country B, for the Claimant.
5.
On the same date, 1 July 2013, an “Agreement for exclusive use and disposal of image
rights“ (hereinafter: the additional agreement) was concluded, valid for the same
contractual period, establishing inter alia a monthly remuneration in the amount of
USD 83,337.32 as well as 4 bonuses as follows:
-
6.
USD 1,500,000 due on 1 October 2013;
USD 500,000 due on 1 April 2014;
USD 500,000 due on 1 October 2014; and
USD 500,000 due on 1 April 2015.
On 13 February 2015, the Claimant lodged a claim before FIFA against the Respondent
for breach of contract, claiming the following:
- USD 500,000.01 as outstanding salaries for the months of October, November
and December 2014 (3 x USD 166,666.67);
- USD 500,000 as outstanding bonus due on 1 October 2014;
- USD 5,500,000 as compensation corresponding to the residual value of the
contract as well as the bonus payment in the amount of USD 500,000 due on 1
April 2015;
- USD 1,000,000 as damages for the specificity of sport equivalent to six monthly
salaries;
- 5% interest p.a. as from the due dates;
- Procedural costs; and
- Sporting sanctions.
Player A, country B / Club C, country D
Page 2 of 9
7.
According to the Claimant, he was entitled to a monthly remuneration in the amount
of USD 166,666.67 (USD 83,329.35 + USD 83,337.32), considering the contract and the
additional agreement, as well as to bonuses.
8.
In this regard, the Claimant held that the Respondent did not comply with its
contractual obligations, failing to pay the monthly remuneration of October,
November and December 2014 as well as the bonus due on 1 October 2014. In this
context, the Claimant put the Respondent in default on 16 January 2015 and on 22
January 2015, establishing a deadline for payment until 19 January 2015 and 24
January 2015, respectively.
9.
The Respondent replied to the Claimant on 23 January 2015, recognizing the
outstanding monthly remuneration as well as informing the Claimant that it had
received an offer from the club from country E, Club F, for his loan for 5 months. The
Respondent further informed the Claimant that it was facing financial difficulties and
asked the Claimant to accept the offer so the Respondent could settle all the
outstanding amounts.
10. In reply thereto, the Claimant stated that it did not want to play in country E and tried
to negotiate with the Respondent the payment of the outstanding amounts without
success. Consequently, the Claimant terminated the contract in writing, on 30 January
2015, alleging just cause, considering the outstanding remuneration clearly recognized
by the Respondent itself.
11. The Respondent submitted its position, rejecting the Claimant’s claim. In this respect,
the Respondent recognized owing the Claimant three monthly salaries in the total
amount of USD 500,000 as well as a bonus in the amount of USD 500,000, but held that
such debt does not constitute just cause for the termination of the contract.
12. According to the Respondent, the Claimant was already planning to terminate the
contract when less than three monthly salaries were outstanding, since he allegedly
put his car up for sale and left the country already in December 2014 with all his
personal belongings. Moreover, he refused to accept the offer to be transferred to
country E and subsequently lodged the claim before FIFA.
13. Additionally, the Respondent alleged that due to financial difficulties, it could not
make bank transfers and had to pay the remuneration “through the cash desk of the
club”, in accordance with clause 5.1 of the contract. Therefore, considering that the
Claimant allegedly refused to go back to the country D, it was impossible for the
Respondent to make the payments. The Respondent stated that it would have made
the payment on 11 January 2015, the date on which the Claimant should have returned
to the Respondent.
14. In this regard, the Respondent submitted a letter dated 9 January 2015, by means of
which it informed the Claimant that the Respondent’s training camp would start on 11
January 2015 in country H and asked the Claimant to confirm his arrival in order for the
Respondent to provide him the flight ticket. According to the Respondent, the
Claimant breached the contract by not returning to the Respondent.
Player A, country B / Club C, country D
Page 3 of 9
15. In addition, the Respondent affirmed that the Claimant already received
USD 9,931,661.50 for his services during the contract and could have waited for the
payment of the outstanding remuneration, therefore not having just cause to
terminate the contract.
16. The Claimant submitted his replica, rejecting the arguments of the Respondent
regarding his alleged premeditation to terminate the contract and held that, in any
case, the Respondent did not discharge its burden of proof. Moreover, the Claimant
affirmed that the Respondent always paid his remuneration via bank transfer and thus,
its argument that it would pay in cash cannot be accepted.
17. Additionally, the Claimant denied having received the letter dated 9 January 2015 and
asked the Respondent to provide proof of remittance, since such letter was allegedly
not presented during the proceedings for the issuance of the International Transfer
Certificate of the Claimant to Club G.
18. Although having been invited to submit its final comments, the Respondent did not
provide any final comments.
19. Finally, the Claimant informed FIFA that he concluded an employment contract with
Club G on 6 February 2015, valid from the date of signature until 5 February 2018,
establishing a monthly salary of 210,000 as well as a monthly housing allowance in the
amount of 2,000.
II. Considerations of the Dispute Resolution Chamber
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 13 February
2015. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2014; 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 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 from
country B and a club from 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 2015),
and considering that the present claim was lodged on 13 February 2015, the 2014
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
Player A, country B / Club C, country D
Page 4 of 9
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.
In this respect, the Chamber recalled that a contract as well as an additional agreement
both valid as from 1 July 2013 until 30 June 2017 had been concluded, in accordance
with which the Claimant was entitled to receive, inter alia, a monthly remuneration in
the amount of USD 166,666.67 (USD 83,329.35 regarding the contract + USD 83,337.32
regarding the additional agreement), as well as bonuses in the global amount of USD
3,000,000.
6.
In continuation, the members of the Chamber took into account that, on 16 and 22
January 2015, the Claimant put the club in default, asking it to pay the outstanding
remuneration regarding the months of October, November and December 2014 as well
as the bonus payment due on 1 October 2014. Moreover, the Chamber acknowledged
that, on 30 January 2015, the Claimant notified the Respondent of the termination of
the contract alleging just cause.
7.
Having recalled the above-mentioned, the Chamber took note that the Claimant
lodged a claim for breach of contract against the Respondent, claiming outstanding
remuneration and compensation based both on the contract and on the additional
agreement. The Respondent, for its part, denied that the Claimant had just cause to
terminate the contract on 30 January 2015.
8.
In this context, the DRC highlighted that the central issue in the matter at stake would
be, thus, to determine as to whether the Claimant had just cause to terminate the
contractual relationship on 30 January 2015.
9.
In this respect, the Chamber wished to emphasize that it remained undisputed by the
Respondent that, at the time of the termination of the contract on 30 January 2015,
the total amount of USD 1,000,000.01 was outstanding, corresponding to the months
of October, November, December 2014 and the bonus payment due on 1 October 2014.
10. The DRC then turned its attention to the arguments of the Respondent and
acknowledged that according to the latter, it was facing financial difficulties and could
only pay the Claimant in cash. Therefore, since the Claimant had left the club, it could
not make the relevant payments.
11. Equaly, the Chamber took note that, according to the Respondent, it had offered the
Claimant to be transferred to a club in country E, transfer which would allow the
Respondent to “cover some debts”. However, the transfer was refused by the Claimant.
Player A, country B / Club C, country D
Page 5 of 9
12. Finally, the members of the DRC took note that the Respondent held that the Claimant
had already received more than USD 9,000,000 during the execution of the contract
and thus, he could have waited to receive the outstanding amounts.
13. Taking into account all the above, the DRC considered that the arguments of the
Respondent could not be sustained and that the Respondent could not justify the nonpayment of the remuneration as established in the contract and in the additional
agreement. In particular, the Chamber finds that the financial situation of the
Respondent cannot affect the rights of the Claimant and that the Claimant was under
no obligation to accept the transfer to country E. Indeed, it is not up to the
Respondent to decide where the Claimant would continue his career. As to the
argument that the Claimant already planned to leave the club, the Chamber finds such
argument irrelevant since it remained undisputed that various salaries had not been
paid, even before December 2014. Also, the Chamber finds that the remuneration
already paid to the Claimant cannot form a justification for not paying his subsequent
salaries, which are clearly stipulated in the contract.
14. At this point, as a consequence of the aforementioned considerations and taking into
account the documentation presented by the parties to the dispute, the Chamber
emphasised that on the date of the termination, i.e. 30 January 2015, 3 monthly
salaries and a bonus were outstanding. Moreover, the members of the DRC highlighted
that the Claimant had put the Respondent in default on two occasions before
terminating the contract.
15. Consequently, the Chamber concurred that the Respondent had seriously neglected its
financial contractual obligations towards the Claimant. On account of the above and
taking into consideration the Chamber’s longstanding jurisprudence in this respect, the
Chamber decided that the Claimant had just cause to unilaterally terminate the
contract on 30 January 2015 and that the Respondent is to be held liable for the early
termination of the contractual relationship with just cause by the player.
16. Having established that the Respondent is to be held liable for the early termination of
the contractual relationship with just cause by the Claimant, the Chamber focussed its
attention on the consequences of such termination. Taking into consideration art. 17
par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive
an amount of money from the Respondent as compensation for the termination of the
contract with just cause in addition to any outstanding payments on the basis of the
relevant employment contract.
17. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant
the amounts which were outstanding under the contract at the moment of the
termination, i.e. USD 1,000,000.01 corresponding to the bonus in the amount of USD
500,000 due on 1 October 2014 as well as the monthly salaries for the months of
October, November and December 2014 in the amount of USD 166,666.67 each.
Equally, and since the contractual relationship was terminated on 30 January 2015, the
Chamber decided that the month of January 2015 should also be included in the
amount for outstanding remuneration.
Player A, country B / Club C, country D
Page 6 of 9
18. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amount of USD 1,166,666.68 as of the respective due dates until the date
of effective payment.
19. 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.
20. 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.
21. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the discretion
of the deciding body.
22. 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 in the calculation of the amount of compensation.
23. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the contract and the additional
agreement as from the date of termination with just cause by the Claimant, i.e. 30
January 2015, until 30 June 2017, and concluded that the Claimant would have
received in total USD 5,333,333.40 as remuneration had the contract been executed
until its expiry date. In particular, the DRC pointed out that the aforementioned
amount is composed of 29 monthly salaries of USD 166,666.67 each and a bonus in the
amount of USD 500,000 due on 1 April 2015. Consequently, the Chamber concluded
that the amount of USD 5,333,333.40 serves as the basis for the final determination of
the amount of compensation for breach of contract in the case at hand.
Player A, country B / Club C, country D
Page 7 of 9
24. 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 player’s general obligation to mitigate his
damages.
25. The Chamber recalled that, on 6 February 2015, the Claimant signed an employment
contract with the club from country B, Club G, valid until 5 February 2018, in
accordance with which the Claimant was entitled to receive a monthly salary of
210,000 and a monthly housing allowance of 2,000. This employment contract enabled
the Claimant to earn an income of 6,148,000 (i.e. 29 months x 212,000) during the
contractual period, which is equivalent to approximately USD 2,240,221.
26. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to mitigate
his damage, the Chamber decided that the Respondent must pay the amount of USD
3,093,112.40 as compensation for breach of contract in the case at hand.
27. In addition, the Chamber decided to reject the Claimant’s claim for damages for
specificity of sport, considering the compensation already granted.
28. Furthermore, taking into account the Claimant’s petition and the constant practice of
the Dispute Resolution Chamber, the members of the Chamber decided to award the
Claimant interest at the rate of 5% p.a. on the amount of compensation, as from 13
February 2015 until the date of effective payment.
29. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
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 the present decision, outstanding remuneration in the amount of
USD 1,166,666.68 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
3.
5% p.a. as of 2 October 2014 on the amount of USD 500,000;
5% p.a. as of 1 November 2014 on the amount of USD 166,666.67;
5% p.a. as of 1 December 2014 on the amount of USD 166,666.67;
5% p.a. as of 1 January 2015 on the amount of USD 166,666.67;
5% p.a. as of 1 February 2015 on the amount of USD 166,666.67.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of the present decision, compensation for breach of contract in the
Player A, country B / Club C, country D
Page 8 of 9
amount of USD 3,093,112.40 plus 5% interest p.a. as from 13 February 2015 until the
date of effective payment.
4.
In the event that the amounts due to the Claimant are not paid by the Respondent
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.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is 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
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:
Marco Villiger
Acting Deputy Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
Page 9 of 9