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 (S w itzerland), Deputy Chairman
Mario Gallav otti (Italy ), member
Guillerm o S altos Guale (Ecuador), member
Johan v an Gaalen (S outh 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 between the parties
I.
Facts of the cas e
1.
On 7 August 2015, the player of Country B, Player A (hereinafter: player or
Claimant) concluded an employment contract (hereinafter: contract) with the
club of Country D, Club C (hereinafter: club or Respondent) valid as from 7
August 2015 until 31 May 2016.
2.
In accordance with the contract, the club undertook to pay the player a monthly
remuneration in the amount of EUR 12,000, payable on the “last business day
of the month”, in ten instalments between August 2015 and May 2016.
3.
The contract contains the following clause: “The club shall provide 2 (two) round
trip tickets to the Player’ home-town per season during 2015-2016 season”.
4.
On 4 December 2015, the player sent a default notice to the club requesting
payment of outstanding remuneration in the amount of EUR 44,000 within 7
days to the bank account of the player’s attorney. In this letter, the player stated
that he would terminate the contract in case the club would not fulfil its
financial duties within the set time-limit.
5.
On 13 December 2015, the player terminated the contract in writing arguing
that the club did not fulfil its financial duties since he did not receive any
payments of the club after his default notice.
6.
On 14 December 2015, the player sent another default notice to the club
requesting payment of outstanding remuneration in the amount of EUR 44,000
within 10 days.
7.
On 5 January 2016, the player lodged a claim against the club in front of FIFA
arguing that the club is to be held liable for the early termination of the contract
and requesting payment of the following monies:
- EUR 44,000 as outstanding remuneration for the months of August until
November 2015 plus 5% interest p.a. as of the due dates;
- EUR 1,125.46 as reimbursement for flight tickets;
- EUR 72,000 as compensation for breach of contract plus 5% interest p.a. as
from 13 December 2015;
- EUR 72,000 as additional indemnity based on Swiss law;
- 4,000 as “judicial costs and attorneyship fees”.
8.
In his claim, the player held that he terminated the contract with just cause since
he “waited for the payment a long time” and only after having sent a
“warning” to the club.
Player A, Country B/ Club C, Country D
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9.
Consequently, the player argued being entitled to receive his outstanding
salaries as well as compensation for breach of contract.
10.
In its reply, the club rejected the claim of the player.
11.
The club argued that “The translation of the language of Country D approved
by the notary clearly states that, starting from September 2015 to June 2016, 10
equal payments of 12,000 Euro is going to be paid to the player”.
12.
In view of the above, the club maintained that only the amount of EUR 36,000
had fallen due at the time of the player’s default notice and termination and
that said amount was remitted to the player as follows:
- EUR 15,000 in cash on 5 August 2015;
- EUR 4,000 to the player’s bank account on 4 December 2015;
- EUR 17,000 to the bank account of the player’s attorney on 11 December 2015.
13.
The club argued that it tried to pay the amount of EUR 17,000 to the player’s
account, but that it was “closed”. Therefore, it paid it to the bank account of
the attorney of the player, which was mentioned in the player’s default notice
of 4 December 2015.
14.
In this regard, the club submitted a printout of an email, dated 11 December
2015, sent by the club’s attorney to the player’s attorney, stating that the
amount of EUR 17,000 was remitted to the bank account of the attorney and
that the debt towards the player was “concluded”.
15.
Moreover, the club stated that the player terminated the contract without just
cause since the outstanding amounts were in fact remitted. In this regard, the
club requested that FIFA shall impose sporting sanctions on the player.
16.
In his replica, the player reiterated his position and rejected the club’s argument
regarding the duration and due dates of the contract by referring to the
document on file.
17.
The player held that the payment in the amount of EUR 15,000 was remitted on
5 August 2015, i.e. two days before the contract was signed. In this context, the
player stated that said payment constitutes a “transfer payment” or “sign-on
fee”, which is mentioned in language of Country D on the receipt.
Player A, Country B/ Club C, Country D
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18.
Therefore, the player concludes that said payment was not related to the
contract and cannot be taken into account regarding the outstanding salary
payments.
19.
Regarding the alleged payment of EUR 17,000, the player pointed out that said
payment was not related to the outstanding salaries since there is “no
explanation and/or address” on the receipt and that said payment was not
related to “the case of the Claimant”.
20.
In its duplica, the club rejected the player’s arguments and reiterated its
position.
21.
Regarding the player’s argument about the alleged sign-on fee, the club held
that the translation from the language of Country D means “transfer down
payment”, which indicates an “initial amount paid” or a “partial payment to
reduce one’s indebtedness”. Furthermore, the club held that the bank
document submitted contains the player’s name and therefore was related to
the player’s case.
22.
Regarding said down payment, the club pointed out that it was made as an
advance payment in cash since the player just moved to Country D, needed
money to settle and did not have a bank account yet.
23.
Moreover, the club reiterated its argument that the salaries were due between
September 2015 and June 2016.
24.
According to the club, it answered the player’s default notice dated 4 December
2015, explaining that the above-mentioned payments were made and that he
would not be entitled to outstanding remuneration.
25.
In conclusion, the club held that the player acted in bad faith and without just
cause when he terminated the contract even though it remitted all payments
due.
26.
According to the information contained in the Transfer Matching System (TMS),
the player remained unemployed during the relevant period until 31 May 2016.
Player A, Country B/ Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 5 January 2016. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
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 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 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
(edition 2016), and considering that the present claim was lodged on 5 January
2016, the 2015 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
5.
In this respect, the DRC acknowledged that the parties signed an employment
contract valid as from 7 August 2015 until 31 May 2016, according to which the
Respondent undertook to pay to the Claimant the amount of EUR 12,000 as
monthly remuneration, payable on the “last business day of the month”
between August 2015 and May 2016.
6.
In continuation, the members of the Chamber noted that the Claimant lodged
a claim against the Respondent maintaining that he terminated the contract
Player A, Country B/ Club C, Country D
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with just cause due to the Respondent’s failure to comply with its financial
obligations arising from the contract.
7.
In this regard, the Chamber took note that the Claimant asks to be awarded the
alleged outstanding remuneration, compensation for breach of the
employment contract as well as an additional indemnity and reimbursement of
his legal fees.
8.
Moreover, the members of the DRC acknowledged that the Respondent rejected
such argumentation and pointed out that no remuneration remained unpaid at
the moment of the termination. Consequently, the club argued that the player
had no just cause to terminate the contract.
9.
On account of the above, the members of the Chamber highlighted that the
underlying issue in this dispute, considering the diverging position of the
parties, was to determine as to whether the Claimant had just cause to
terminate the employment contract on 13 December 2015 and to decide on the
consequences thereof.
10.
Subsequently, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
11.
In continuation, the DRC took note, that before terminating the contract on 13
December 2015, the Claimant had sent a default notice to the Respondent on 4
December 2015 requesting payment of EUR 44,000, corresponding to alleged
outstanding remuneration.
12.
From the documentation on file, the members of the DRC established that the
Respondent had remitted various payments to the Claimant (cf. point I.15.).
What is more, the DRC took note that the Claimant did not deny having received
said payments, but argued that the payment of EUR 15,000 remitted to him on
5 August 2015 was not related to his salaries but rather constituted a “sign on
fee” which was not mentioned in the contract.
13.
Furthermore, the Chamber took note of the Claimant’s argumentation that that
the payment received on 11 December 2015 was not related to the contract,
since the receipt does not refer to salaries.
14.
In view of the above, the DRC analysed the content of the contract and took
note that no “sign-on fee” was agreed upon.
Player A, Country B/ Club C, Country D
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15.
Moreover, the Chamber took note that the player did not deny having received
the above-mentioned payments (cf. point I.15.). Recalling that the player bears
the burden of proof to establish that said payments are extra-contractual, and
since the player did not submit any evidence in support of his argument, the
DRC could not relate said payments to anything else but the contract.
16.
Consequently, the members of the Chamber decided to take into account the
payments in question (cf. point I.15.) and established that since the Claimant
was entitled to EUR 44,000 up to the termination on 13 December 2015, the
amount of EUR 12,000, corresponding to the salary of November 2015, remained
outstanding.
17.
In this respect, the Chamber was eager to emphasise that only a breach or
misconduct which is of a certain severity justifies the termination of a contract.
In other words, only when there are objective criteria, which do not reasonably
permit to expect a continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to ensure the
employee’s fulfilment of his contractual duties, such measures must be taken
before terminating an employment contract. A premature termination of an
employment contract can only ever be an ultima ratio measure.
18.
In this connection, and due to the payments received by the Respondent, the
Chamber pointed out that, in the past, it had on numerous occasions upheld the
unilateral termination of an employment contract by players who had
depending on the particular circumstances of the relevant case at stake, not
received their salaries for two or more months. Yet, a delay of one month could
not be considered as a just cause.
19.
In view of the conclusions above, the Claimant could not reasonably be
permitted to expect continuation of the employment relationship and that he
therefore had terminated the employment contract without just cause on 13
December 2015.
20.
On account of the above, the Chamber decided to reject the player’s claim for
compensation for breach of contract and the additional indemnity.
21.
Consequently, on account of the above and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the club is liable to
pay to the player the amount of EUR 12,000 with regard to the remuneration
due to him for November 2015.
Player A, Country B/ Club C, Country D
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22.
In addition, taking into consideration the player’s claim, the Chamber decided
to award the player interest at the rate of 5% p.a. as of 1 December 2015, until
the date of effective payment.
23.
The DRC continued with rejecting the Claimant’s claim pertaining to flight
tickets, since the player had not submit corroborating evidence, as he only
submitted general documents and no evidence that the expenses indeed
occurred.
24.
In addition, 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 wellestablished 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.
25.
The members of the Chamber concluded their deliberations on the present
matter by rejecting any further claim of the Claimant.
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 EUR 12,000 plus 5% interest p.a. as of 1 December 2015 until the
date of effective payment.
3.
In the event that the aforementioned amount plus interest is not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
upon request, to FIFA’s Disciplinary Committee for consideration and a formal
decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
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.
*****
Player A, Country B/ Club C, Country D
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Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision
and shall contain all the elements in accordance with point 2 of the directives issued
by the CAS, 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
Player A, Country B/ Club C, Country D
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