Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 June 2017,
in the following composition:
Thom as Grim m (Switzerland), Deputy Chairman
Mario Gallav otti (Italy), member
Guillerm o S . Guale (Ecuador), member
Johan v an Gaalen (South Africa), member
Joaquim Ev angelis ta (Portugal), member
on the claim presented by the player,
Play er A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 6 September 2016, the Player of Country B, Player A (hereinafter: the Claimant)
and the Club of Country D, Club C (hereinafter: the Respondent) signed an
employment contract valid “until the end of the Professional League of Country D
in 2016/17 equal to 1395/1396 to Calendar of Country D”.
2.
The contract provides for the total payment of USD 180,000, as follows:
a. USD 15,000 in cash on the day of signing of the contract.
b. USD 15,000 in cash on 10 September 2016 with the added condition that
“if this payment is not done, the [Claimant] is not allowed to attend
training and official games without any consequences”.
c. USD 30,000 “will be paid in cash before the 9th game in league 2016-17
season”.
d. USD 60,000 “before the second half of the season starts and the rest will
be paid as monthly salary in second half of the season”.
3.
The contract contains extra provisions, as follows:
a. if the Claimant has not received at least 65% of his total salary from the
Respondent ten days “before ending the mid season of the League of
Country D (…) the [Claimant] is with immediate effect free from every
contract with the [Respondent] and leave the [Respondent] to another
club as a free player (sic.)”.
b. “if any the is a maximum delay of the [Claimant] salary for more than 10
days, the [Claimant] is with immediate effect free”.
c. “the [Claimant] is allowed to break his contract unilaterally in Midseason
by informing the [Respondent] at least 10 days before the end of
midseason transfer window. In this case the [Respondent] has to pay him
only USD 90,000 until midseason (sic)”.
4.
The contract equally provides that “the [Claimant] shall be entitled to terminate
this contract by 7 days (Five days) notice in writing by Fax and Email to the
[Respondent] if the [Respondent] (sic)” is found “guilty of serious or persistent
breach of the terms and conditions of this contract (sic)”.
5.
The contract provides that the parties agree that “any dispute between the
[Respondent] and the [Claimant] shall be referred to FIFA”.
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6.
On 27 December 2016, the Claimant put the Respondent in default of a total of
USD 105,000, setting a time limit of ten days to the Respondent for it to cure said
default.
7.
On 8 January 2017, the Claimant lodged a claim against the Respondent in front of
FIFA, requesting to be paid outstanding remuneration and compensation for
breach as follows:
a. Outstanding remuneration of USD 105,000:
i. USD 15,000 due on 10 September 2016, plus 5% interest p.a. from
11 September 2016.
ii. USD 30,000 allegedly due on 20 October 2016, plus 5% interest p.a.
from 21 October 2016.
iii. USD 60,000 allegedly due on 23 December 2016, plus 5% interest
p.a. from 24 December 2016.
b. Compensation of USD 60,000 corresponding to the Claimant’s salaries due
for the entire second half of the season, plus 5% interest p.a. from the
date of claim.
8.
The Claimant asserts that the lodging of the claim in front of FIFA is to be
considered as the unilateral termination of the contract with just cause.
9.
The Claimant claims that until the moment the claim was lodged, the Respondent
owed him a total of USD 120,000 but only paid him USD 15,000 upon signing the
contract.
10.
The Claimant claims to have played in nine matches until he lodged his claim.
Furthermore, he states that his absence as from the 15th match day of the
Championship of Country D on 23 December 2016, can not be held against him in
light of the contract which provides that should the payment due on 10 September
2016 not be paid, he would be entitled not to train or play in official games.
11.
The Claimant considers that USD 30,000 was due to be paid after the ninth game
of the league, i.e. 20 October 2016 at the latest. The Claimant further considers
that the “second half of the season starts” on 23 December 2016.
12.
The Claimant indicates that the clause indicating that if the Claimant has not
received 65% of his salaries by “midseason” he will be a free player, has no legal
effect, is potestative and is only in favour of the Respondent. He therefore
considers that it can not be applied in the present matter.
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13.
He further considers that no mitigation to any amount of compensation awarded
may be applied, notably since the fault of terminating the contract lies entirely
with the Respondent, the breach of contract is noted by the reception by FIFA of
the claim and that the residual value of the contract does not take into account
any advantages or bonuses provided for in the contract.
14.
In spite of having been invited to do so, the Respondent has failed to reply to the
claim within the deadline set by the FIFA administration.
15.
Upon FIFA’s pertinent request, the Claimant indicated that he had signed an
employment contract with the Club of Country E, Club F, on 30 January 2017, but
indicated the contract was never executed and he was never registered.
*****
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, 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 8 January
2017. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2017; 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 (2016 edition) the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Player of Country B and a Club of Country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (2016 edition),
and considering that the present claim was lodged on 8 January 2017, the 2016
edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
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the arguments and the documentation submitted by the parties. The Chamber,
however, 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. In particular, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching
System (hereinafter: TMS).
5.
The members of the Chamber started by acknowledging that the parties had signed an
employment contract valid “until the end of the Professional League of Country D in
2016/2017” which provided for the payment of a total of USD 180,000 with USD 15,000
payable upon the signing of the contract as well as USD 15,000 payable on 10
September 2016. In addition, the Chamber noted that before the ninth league game
the Claimant is entitled to the payment of USD 30,000. In this regard, the Chamber
noted from the documentation on file that said amount fell due on 20 October 2016,
since the ninth league game was played on 21 October 2016. In continuation, the
members of the Chamber noted that USD 60,000 was to be paid to the Claimant
before the “second half of the season starts and the rest will be paid as monthly salary
in second half of the season”, and therefore considered that a further USD 60,000 had
to be paid as a monthly salary from the beginning of the second half of the season
until the end of the validity of the employment contract.
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 on the basis of outstanding remuneration by lodging the present claim
in front of FIFA on 8 January 2017. The Chamber noted that the Claimant asserts
having not been paid USD 15,000 on 10 September 2016, nor was he paid USD 30,000
due before the ninth league game as well as USD 60,000 due at the beginning of the
second half of the season.
7.
The DRC noted that the Respondent, for its part, failed to present its response to the
claim of the Claimant in spite of having been invited to do so. Consequently, the
Chamber deemed that the Respondent had renounced to its right of defence, and
thus, had accepted the allegations of the Claimant.
8.
As a consequence of the aforementioned consideration, the members of the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall
be taken on the basis of the documents already on file, in other words, on the
statements and documents presented by the Claimant.
9.
Bearing in mind the foregoing, the Chamber went on to analyse the arguments and
the documentation provided by the Claimant. In this respect, the DRC noted that, in
spite of the fact that the contract stipulated rather unclear payment dates, it should be
established that the amounts of USD 15,000 (cf. point I.2.b) due on 10 September 2016,
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and USD 30,000 (cf. point I.2.c) due before 21 October 2016 had fallen due and their
non-payment remained undisputable by the Respondent.
10.
On this basis, the Chamber deemed that at the time the Claimant had terminated
the employment contract, i.e. 8 January 2017, he was owed USD 60,000 and had
only been paid USD 15,000. The Chamber therefore noted that at the time of
termination, 75% of the amounts having fallen due to the Claimant had remained
unpaid, and that this amount also corresponds to 25% of the total value of the
contract.
11.
On account of the aforementioned, in particular in view of the considerations
under point II./7. and II./8. above, the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant, until 8 January 2017,
date on which the Claimant de facto terminated the contract, the total amount of
USD 45,000. 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 8 January 2017 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.
In addition, taking into consideration the Claimant’s claim, the Chamber decided
to award the Claimant interest at a rate of 5% p.a. on the amount of USD 15,000
and USD 30,000 as of the days following the days on which each instalment fell
due, i.e. 11 September 2016 and 21 October 2016 respectively.
13.
In continuation, 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 USD 45,000 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.
14.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the matter at hand.
In doing so, the members of the Chamber first 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 of 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.
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15.
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 previously agreed on an amount of compensation
payable by the contractual parties in the event of breach of contract. In this
regard, the Chamber noted that the contract inter alia provides that Claimant is
“allowed to break his contract unilaterally in Midseason by informing the club at
least 10 days before the end of midseason transfer window. In this case the club
has to pay him only USD 90,000 until midseason”.
16.
The Chamber duly analysed the content of said clause and acknowledged that the
aforementioned clause does not apply to the current case as the reason for
termination for the Claimant was a breach by the Respondent and not the alleged
right to terminate the contract until mid-season, as stipulated by said clause.
17.
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
members of 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. In this regard, the Dispute
Resolution Chamber emphasised beforehand that each request for compensation
relating to contractual breach has to be assessed by the Chamber on a case-by-case
basis, taking into account all specific circumstances of the relevant matter.
18.
Bearing the foregoing in mind as well as the claim of the Claimant, the members
of the Chamber proceeded with the calculation of the monies payable to the
Claimant under the terms of the employment contract until the end of the
2016/2017 season. Consequently, the Chamber concluded that the amount of USD
120,000 (i.e. USD 60,000 due “before the second half of the season starts” and USD
60,000 to be paid “as monthly salary in second half of the season”) serves as the
basis of for the determination of the amount of compensation due for breach of
contract.
19.
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.
20.
Indeed, on 30 January 2017, the Claimant signed an employment contract with the
Club of Country E, Club F, which would have entitled the player to EUR 1,800 per
month until 30 June 2017. In this regard, the Chamber noted that the Claimant
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asserted that said contract was never executed and he was never registered. The
members of the Chamber acknowledged that from the information contained on
TMS, the assertions of the Claimant were correct, and consequently deemed that
the Claimant was unable to mitigate his damages.
21.
Consequently, on account of all the aforementioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of USD 120,000 to the Claimant which was to be considered a
reasonable and justified amount of compensation for breach of contract in the
present matter.
22.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 8 January 2017,
until the date of effective payment.
23.
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 45,000 as outstanding remuneration and EUR 120,000 as
compensation for breach of contract, plus the relevant interest.
24.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
*****
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, w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
USD 45,000 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
5% p.a. as of 11 September 2016 on the amount of USD 15,000;
5% p.a. as of 21 October 2016 on the amount of USD 30,000.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount of
USD 120,000 plus 5% interest p.a. as from 8 January 2017 until the date of
effective payment.
4.
In the event that the amounts plus interest due to the Claimant in accordance with
the aforementioned numbers 2. and 3. are not paid by the Respondent within the
stated time limits, 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.
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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 m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS, a
copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
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