Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 June 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Carlos González Puche (Colombia), member
on the claim presented by the player,
Player A, from country B,
as Claimant
against the club,
Club C, from country D,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 29 September 2014, the club of country D, Club C, (hereinafter: the
Respondent), and the player from country B, Player (hereinafter: the Claimant),
concluded an employment contract (hereinafter: the contract), valid as of 16
October 2014 until 15 October 2015.
2.
According to article 7 of the contract, the Claimant was entitled to a monthly
remuneration of 167,000, broken down as follows:
139,167 as base salary;
27,833 as “Regional coefficient of 20%”;
“Percentage extra charge to 30% earnings – 0,00”.
3.
According to article 10.3. of the contract “in case of cancellation of the
employment contract at the initiative of the [Claimant] (at own will) without valid
excuse, or in case of cancellation of the employment contract at the initiative of
the [Respondent] on the bases which belongs to disciplinary punishments of the
[Claimant] […], compensation sum, compensated to the [Respondent] […], is
established at a rate of 3 (three) average monthly earnings of the [Claimant]”.
4.
Pursuant to article 10.4. of the contract “at early cancellation of the employment
contract at the initiative of [the Respondent] in the absence of guilty actions of the
[Claimant], [the Respondent] pays to the [Claimant] compensation at a rate of
250,000 (two hundred fifty thousand)”.
5.
On 22 June 2015, the Claimant sent a notice of default to the Respondent
requesting the unpaid salaries for the period as of October 2014 until March 2015,
in the total amount of 1,002,000. In this regard, the Claimant gave the Respondent
a deadline of 10 days to proceed with the payments.
6.
On 13 July 2015, the Claimant lodged a claim against the Respondent in front of
FIFA for breach of contract, requesting to be awarded with the following amounts:
1,002,000 corresponding to outstanding salaries for the period as from
October 2014 until March 2015;
EUR 1,303 “as flight expenses”;
5% interest on the amounts due to the Claimant “from the date that each
payment became due”;
Sporting sanctions.
7.
In his claim, the Claimant explained that whereas he had fulfilled all of his
obligations, the Respondent did not comply with its financial duties. Additionally,
Player A, from country B / Club C, from country D
2
the Claimant sustained that, at the beginning of their contractual relationship, the
Respondent notified him that it was banned from registering new players.
8.
The Claimant asserted that he was not registered by the Respondent and,
therefore, he was “unable to participate in official games with [the Respondent]”.
As a consequence, the Claimant alleged having unilaterally terminated his contract
by leaving the Respondent on 29 March 2015. The Claimant further alleged that
the Respondent ignored his notice of default.
9.
In its reply to the Claimant’s claim, the Respondent firstly acknowledged a debt of
530,757.84 in favour of the Claimant. The Respondent declared that the amounts
the Claimant was claiming had a 30% tax deduction under the “Tax Code of
Federation of country D” for the personal incomes. According to the Respondent,
the Claimant would be entitled to the following amounts:
60,991.64 net for the salary of October 2014;
112,570.20 net for the salary of November 2014;
97,417 net for the salary of December 2014;
97,417 net for the salary of January 2015;
97,417 net for the salary of February 2015;
64,946 net for the salary of March 2015.
30,482 as interests taking into account the date of 27 August 2015 as “Date
of payment”.
10.
The Respondent further alleged that the Claimant was entitled to the “regional
coefficient of 20%” only for the months of October and November 2014. In this
regard, the Respondent declared that these amounts were granted by the
Federation of country D for “the territories with rough natural climatic
conditions”. The Respondent stated that it was located in one of those territories
and, consequently, its employees had these amounts granted while they were in its
location and, as according to the Respondent, the Claimant left the “related
territory” on 20 November 2014, the Claimant should not be entitled to the
“regional coefficient” as from December 2014.
11.
The Respondent declared that, since the Claimant’s work permit was obtained on
16 October 2014, the estimation of the Claimant’s salaries should be made for the
period as of 16 October 2014 until 21 March 2015, date on which, according to the
Respondent, the Claimant left. In this respect, the Respondent provided a copy of a
flight ticket, dated 21 March 2015, from country D to country B.
12.
Furthermore, the Respondent attached to its response a document called
“Invitation Note” dated 20 March 2015 and apparently signed by the Claimant,
Player A, from country B / Club C, from country D
3
where it was stated that the Claimant was eliminated from training camp on 21
March 2015 for being “unfit for team squad”.
13.
As for the interests claimed by the Claimant, the Respondent declared its readiness
to pay the amount of 30,482 for this concept in accordance “to the provisions,
specified in art. 236 of Labour Code of the Federation of country D”.
14.
With regard to the flight tickets claimed by the Claimant, the Respondent stated
that such claim was “unfounded and not subject to satisfaction”.
15.
In his replica, the Claimant denied that his salary was subject to any tax deduction
and maintained that his salary as per the contract, was net. Furthermore, the
Claimant affirmed that “the references to the legislation of country D cannot be
accepted because they are not part of the contract, they have not been proven nor
any relevant document submitted”.
16.
In this regard, the Claimant repeated that he did not receive any payment from
the Respondent and remarked that the Respondent itself acknowledged the lack
of payment of every salary he was claiming.
17.
As for the flight tickets provided by the Respondent dated 21 March 2015, the
Claimant denied having ever received them.
18.
With respect to the document enclosed by the Respondent named “Invitation
Note”, the Claimant stated that he never signed such document and that,
irrespective of whether such document was forged or not, “it is of limited
relevance to the present dispute” since in no way can be considered as a mutual
termination of the contract.
19.
Finally, the Claimant amended his claim requesting an additional amount of
1,085,500 as compensation for breach of contract for the remaining period of the
contract until 15 October 2015 as well as “aggravating damages”.
20.
In its duplica, the Respondent stated that the arguments presented by the
Claimant regarding the country D legislation were “invalid and contradict not only
Legislative Acts of the Federation of country D but also fundamental principles of
International Law”.
21.
Moreover, the Respondent stressed out that the contract was concluded and
executed in the Federation of country D “on the basis of a special work permit”
with a country D employer. Therefore, the contract and the corresponding salaries
are subject to law of country D.
Player A, from country B / Club C, from country D
4
22.
The Respondent reiterated that the Claimant left “the place of employment” on
21 March 2015 as stated in the flight tickets attached to its response. Additionally,
the Respondent remarked that the EUR 1,303 claimed by the Claimant as flight
tickets “is dated back to the period preceding the moment of the employment
contract conclusion”. Therefore, the Respondent considered it was not obliged to
compensate this amount.
23.
As for the compensation for breach of contract requested by the Claimant in his
replica, the Respondent declared that said concept was “illegal and ungrounded”.
Moreover, the Respondent stated that the Claimant “significantly violated the
conditions of the employment contract” by not returning to the Respondent,
however, according to the Respondent, it decided not to impose disciplinary
sanctions on the Claimant. The Respondent further asserted that the contract
provided an amount of compensation in case of an early termination by the
Respondent, which “cannot exceed the sum of 250,000 (two hundred fifty
thousand)”.
24.
Finally, the Respondent reiterated its acceptance of a debt in favour of the
Claimant in the amount of 561,240.72.
25.
The Claimant, upon request of FIFA, declared that he signed a new contract with
the country B club, Club X, valid as of 1 August 2015 until 31 May 2018. According
to the above-mentioned contract, the Claimant is entitled to receive a monthly
salary of EUR 600 (approximately 40,000).
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the matter at stake. In
this respect, the DRC took note that the present matter was submitted to FIFA on
13 July 2015. Consequently, the Chamber concluded that the 2015 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 Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 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 2016) 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
country B player and a country D club.
Player A, from country B / Club C, from country D
5
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 (edition 2016), and considering that the present matter was submitted
to FIFA on 13 July 2015, the 2015 edition of the aforementioned 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. 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 first acknowledged that the parties had signed an
employment contract, valid as of 16 October 2014 until 15 October 2015, according
to which the Claimant was entitled to a monthly remuneration in the amount of
167,000, of which the sum of 139,167 was considered to be the base salary and the
sum of 27,833 corresponded to the “Regional coefficient of 20%”.
6.
In continuation, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that he had terminated the
employment contract with just cause by leaving the Respondent on 29 March 2015,
insofar as the Respondent allegedly failed to pay the Claimant’s remuneration and
never registered the Claimant. In this respect, the Claimant highlighted not having
received, from the Respondent, any of his salaries at the time he terminated the
employment contract. Consequently, the Claimant asked to be awarded with his
outstanding dues as well as with the payment of compensation for breach of the
employment contract.
7.
Equally, the DRC took due note of the fact that the Respondent acknowledged the
default of payment of the Claimant’s salaries, however, alleging that some
deductions should be made regarding the amounts owed to the Claimant. The
Chamber observed that these deductions were calculated by the Respondent on
the basis of country D national tax legislation and by applying the “Regional
coefficient of 20%” contractually provided in art. 7 of the contract (cf. point I.2.
above). Additionally, the Chamber observed that the Respondent asserted that the
Claimant left the Respondent’s discipline on 21 March 2015.
Player A, from country B / Club C, from country D
6
8.
Having said the above, the Chamber deemed that the underlying issue in this
dispute was to determine when the contract had been terminated and whether it
had been terminated by the Claimant with or without just cause.
9.
In view of the above, the DRC deemed it appropriate to shortly recall the timeline
of events in the present matter according to the documentary evidence on file and
to the respective positions of the parties. In this context, the Chamber outlined
that, although the Respondent alleged that the Claimant left its discipline on 21
March 2015, the Claimant rejected this argument and assured having definitively
left country D on 29 March 2015, thereby stopping to render services to the
Respondent as of that date. Consequently, the Chamber concluded that, in view of
art. 12 par. 3 of the Procedural Rules and as the Respondent did not provide
convincing evidence showing that the Claimant had left country D before the date
he alleges having done so, the contract had de facto been terminated on 29 March
2015.
10.
At this stage, the Chamber noted that until the aforementioned date of
termination, the salaries as from October 2014 until February 2015 had fallen due
and should have been paid by the Respondent to the Claimant.
11.
Moreover, the members of the Chamber wished to stress that it had remained
uncontested by the Respondent that the Claimant had not been registered for the
relevant season. In this context, the members of the Chamber established that, by
not registering the Claimant for the relevant season, the Respondent showed an
absolute lack of interest in the Claimant’s services.
12.
On account of the aforementioned and, in particular, taking into account that the
Respondent acknowledged that the salaries as from October 2014 had not been
paid to the Claimant, the Chamber established that the Respondent, without any
valid reason, failed to remit to the Claimant his salaries as from October 2014
onwards. 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 29 March 2015 and that, as a
result, the Respondent was to be held liable for the early termination of the
employment contact with just cause by the Claimant.
13.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the Chamber focused its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant was entitled to receive from
the Respondent an amount of money as compensation for breach of contract in
Player A, from country B / Club C, from country D
7
addition to any outstanding payments on the basis of the relevant employment
contract.
14.
First, reverting to the Claimant’s claim for outstanding remuneration, the DRC
made reference to its previous considerations and recalled that, at the time of the
termination, i.e. on 29 March 2015, the Claimant’s salaries as from October 2014
until February 2015 were outstanding and pointed out that the Claimant had
rendered his services towards the Respondent during the full month of March
2015.
15.
In continuation, the members of the Chamber examined the Respondent’s request
to deduct from the Claimant’s salaries (i) 30% as taxes on the basis of country D
national legislation, as well as (ii) the “Regional coefficient of 20%”.
16.
In this respect and 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, the Chamber was eager to point out that the
Respondent had failed to present any conclusive documentation in support of its
position. In particular, the members of the Chamber highlighted that the
Respondent was not able to corroborate that the Claimant was not entitled to the
“Regional coefficient of 20%”, which was an amount contractually provided, for
the time he was not in the Respondent’s premises, nor that it had the obligation to
deduct taxes at a rate of 30% from the salaries provided in the contract.
17.
Furthermore, at this point, the Chamber wished to point out that when deciding a
dispute before the DRC, FIFA’s regulations prevail over any national law chosen by
the parties. In this regard the Chamber emphasized that the main objective of the
FIFA regulations is to create a standard set of rules to which all the actors within
the football community are subject and can rely on. This objective would not be
achievable if the DRC would have to apply the national law of a specific party on
every dispute brought to it. In this respect, the DRC wished to point out that it is in
the interest of football that a player’s remuneration is based on uniform criteria
rather than on provisions of national law that may vary considerably from country
to country. Therefore, the Chamber deemed that it is not appropriate to this case
to apply specific aspects of a particular national law but rather the Regulations on
the Status and Transfer of Players, general principles of law and, where existing,
the Chamber’s well-established jurisprudence.
18.
Taking into account the above, the members of the Chamber unanimously agreed
that the Respondent’s request to deduct from the Claimant’s salaries 30% as taxes,
as well as to further deduct the “Regional coefficient of 20%”, must be rejected.
Player A, from country B / Club C, from country D
8
19.
Consequently, in accordance with the principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant the amount
of 1,002,000 as outstanding remuneration, corresponding to the salaries for the
period during which the Claimant rendered his services towards the Respondent,
i.e. as from October 2014 until March 2015.
20.
In addition, taking into consideration the Claimant’s claim, the Chamber decided
that the Respondent has to pay default interest at a rate of 5% as follows:
a. 5% p.a. as of 1 November 2014 on the amount of 167,000;
b. 5% p.a. as of 1 December 2014 on the amount of 167,000;
c. 5% p.a. as of 1 January 2015 on the amount of 167,000;
d. 5% p.a. as of 1 February 2015 on the amount of 167,000;
e. 5% p.a. as of 1 March 2015 on the amount of 167,000;
f. 5% p.a. as of 1 April 2015 on the amount of 167,000.
21.
In continuation, the Chamber focused its attention on 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.
22.
In application of the relevant provision, the Chamber held that it first 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.
23.
In this respect, the members of the Chamber recalled that, according to art. 10.3 of
the contract, “in case of cancellation of the employment contract at the initiative
of the [Claimant] (at own will) without valid excuse, or in case of cancellation of
the employment contract at the initiative of the [Respondent] on the bases which
belongs to disciplinary punishments of the [Claimant] […], compensation sum,
compensated to the [Respondent] […], is established at a rate of 3 (three) average
monthly earnings of the [Claimant]”. Moreover, the DRC noted that, according to
art. 10.4 of the contract, “at early cancellation of the employment contract at the
initiative of [the Respondent] in the absence of guilty actions of the [Claimant],
Player A, from country B / Club C, from country D
9
[the Respondent] pays to the [Claimant] compensation at a rate of 250,000 (two
hundred fifty thousand)”.
24.
The members of the Chamber agreed that this articles of the employment contract
are to the benefit of the Respondent only, i.e. they are not balanced as they do
not grant the same rights to the Claimant, and that, therefore, said provisions
cannot be taken into consideration in the determination of the amount of
compensation.
25.
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.
26.
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 until
15 October 2015. Consequently, the Chamber concluded that the amount of
1,002,000, i.e. remuneration as from April 2015 until September 2015, serves as the
basis for the determination of the amount of compensation for breach of contract.
27.
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.
28.
The Chamber noted that according to the Claimant’s declarations and the
documentation submitted, the Claimant concluded a new employment contract
valid as of 1 August 2015 until 31 May 2018, according to which he was entitled to
receive a total remuneration of 80,000 for the relevant period, i.e. until September
2015.
29.
In continuation, the Chamber analysed the Claimant’s request for the “flight
expenses”. In this regard, the Chamber observed that these amounts were not
contractually provided. As a consequence, and in the absence of a contractual basis
as well as of any documentary evidence provided in this connection by the
Claimant to show his entitlement to these amounts (cf. art. 12 par. 3 of the
Procedural Rules), the Chamber had to reject the Claimant’s claim for this concept.
Player A, from country B / Club C, from country D
10
30.
In view of all of the above, and taking into consideration the respective duration
of the original and of the new contract, the DRC decided that the Respondent
must pay the amount of 922,000 to the Claimant, which was considered by the
DRC to be a reasonable and justified amount as compensation for breach of
contract.
31.
In addition, taking into account the Claimant’s request as well as its longstanding
and well-established jurisprudence, 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 of the Claimant’s amended claim, i.e. 17 December 2015.
32.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is 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 this decision, outstanding remuneration in the amount of
1,002,000 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
f.
5% p.a. as of 1 November 2014 on the amount of 167,000;
5% p.a. as of 1 December 2014 on the amount of 167,000;
5% p.a. as of 1 January 2015 on the amount of 167,000;
5% p.a. as of 1 February 2015 on the amount of 167,000;
5% p.a. as of 1 March 2015 on the amount of 167,000;
5% p.a. as of 1 April 2015 on the amount of 167,000.
3.
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
922,000 plus 5% interest p.a. on said amount as from 17 December 2015 until the
date of effective payment.
4.
In the event that the aforementioned sums plus interest are not paid within the
stated time limits, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
Player A, from country B / Club C, from country D
11
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS, a
copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, from country B / Club C, from country D
12