Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 June 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (Netherlands ), member
Zola Majav u (S outh Africa), member
on the claim presented by the player,
Play er A, Country B
as Claimant / Counter-Respondent
against the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country B
as Intervening Party
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 15 December 2011, the Player of Country B, Player A (hereinafter: the player
or Claimant/Counter-Respondent) and the Club of Country D, Club C (hereinafter:
the club or Respondent/Counter-Claimant) signed an employment contract, valid
as from 1 January 2012 until 31 December 2015 (hereinafter: the contract).
According to said contract, the player was entitled to receive a monthly salary of
USD 7,000, payable on the 15th day of the next month.
2.
In addition, on 23 January 2014, the parties concluded an annex to said contract
(hereinafter: annex 1), in article 2 par. 1 of which inter alia the following is
stipulated: ‘[…] due to the fact that the player did not take part in training of the
club in January 2014, he shall not be entitled to the remuneration for January
2014 and the Player shall not claim it from the club in the future’.
3.
On 10 February 2015, the player and the club signed an additional annex to the
contract (hereinafter: annex 2), dated 10 February 2015, according to which in the
period between 1 July 2014 and 30 June 2015, the monthly salary of the player
was reduced to USD 4,000. Furthermore, annex 2 contains the following clause:
‘[…] in January and February 2015 the Player had not trained with the Club C or
did not provide other services to the club […]. Therefore, the parties agree that
the Player is not entitled to the remuneration for the month of January and
February 2015 […]’. Moreover, annex 2 stipulates that the contract was extended
until 30 June 2016.
4.
Article 19. par. 2 of the contract stipulates the following: ‘Any dispute arising in
connection with the execution of this Agreement shall be considered by the Court
of Arbitration Football the Football Association of Country D’.
5.
Furthermore, according to a loan agreement dated 1 March 2012, in the period
between 10 March 2012 and 30 June 2012, the player was loaned to the Club of
Country B, Club F. By means of an annex dated 26 June 2012, said loan period was
extended until 31 December 2012, and by means of an additional annex dated 31
December 2012, the loan period was again extended until 30 June 2013.
6.
In addition, according to a loan agreement dated 24 July 2013, in the periods
between 25 July 2013 until 3 December 2013, the player was loaned to the Club
of Country B, Club G. In this respect, the club and the player agreed in a separate
agreement dated 25 July 2013, that ‘Club C agrees on free loan of the Player to
Club G for the period from 25.07.2013 until 31.12.2013 year’. Further, in said
agreement the following is stipulated: ‘Parties declare that during the player loan
from 01.07.2013 until 31.12.2013 year contract for professional practice of
football concluded between the parties on 15.12.2011 shall be suspended’.
Player A, Country B / Club C, Country D /Club E, Country B
Page 2 of 21
7.
By means of a loan agreement dated “1 July 2014”, in the period between 1
January 2014 and 31 December 2014, the player was again loaned to Club G.
8.
Moreover, in the period between 26 February 2015 and 30 November 2015, the
player was loaned to the Club of Country B, Club H.
9.
On 1 March 2016, the player unilaterally terminated his contract with the club,
because of several outstanding salaries and the fact that the club allegedly failed
to meet other contractual obligations. Furthermore, the player argues that the
club ‘did not accept’ the player’s ‘right to work’.
10.
By means of a claim, posted on 2 March 2017 and received by FIFA on 17 March
2016, the player requested from the club the payment of outstanding
remuneration and compensation for breach of contract in the total amount of
USD 87,000, broken down as follows:
Outstanding remuneration in the amount of USD 51,000, as follows:
the monthly salaries for the months of December 2012, January 2013,
December 2013, January 2014 and February 2014, in the amount of USD
7,000 each;
the monthly salaries for the months of December 2014, December 2015,
January 2016 and February 2016, in the amount of USD 4,000 each;
Compensation for breach of contract in the amount of USD 36,000, as follows:
USD 16,000 as remaining value of the contract in the period between March
and June 2016;
USD 20,000 as ‘additional compensation for the damages caused by the
breaches of the contract’ by the club, corresponding to “six months of
salary”.
Furthermore, the player requested 5% interest p.a. on all requested amounts as
from the respective due dates, as well as to impose sporting sanctions on the
club.
11.
In his claim, the player explains that as from December 2012, the club failed to
pay him several salaries, all such outstanding salaries related to the periods during
which the player was not on loan with other clubs.
12.
Furthermore, the player states that after having asked for the payment of the
outstanding salaries and requesting for playing time in the first team of the club,
the club threatened him. According to the player, the club’s officials held that he
would ‘not play whole 2015 year’ and forced the player to sign the annex dated
10 February 2015 (cf. point I./3. above).
Player A, Country B / Club C, Country D /Club E, Country B
Page 3 of 21
13.
In addition, the player held that after he returned to the club on 2 December
2015, after being on loan with Club H, he was informed that there was ‘no work’
for him. As a result, the player holds to have returned to Country B. On 5 January
2016, according to the player, he asked the club for a visa to return to Country D,
in order to continue to perform his duties under the contract.
14.
After having received the work visa on 6 February 2016, the player claims to have
returned to Club C on 8 February 2016. Upon arriving, the player holds that the
club informed him that it was not interested in his services anymore, and that it
wanted to transfer him to the Club of Country B, Club E (hereinafter: Club E or
Intervening party). Furthermore, the player argues that the club asked him to sign
a waiver regarding the outstanding salaries for December 2015 and January 2016,
which the player refused to do.
15.
Moreover, the player states that he put the club in default on 18 February 2016
for the outstanding amounts until that date, providing the club a deadline for
payment until 25 February 2016. Further, on 23 February 2016 the player
informed the club that due to the breach of contract by the club he left Country
D, since he had no financial means to stay in Country D any longer.
16.
Finally, the player argues that on 24 February 2016, he was informed by the club
that he was in breach of his contract, due to his absence in the period between 1
December 2015 and 24 February 2016. According to the player, the club asked him
to return to Club C for ‘trainings with our team’.
17.
Moreover, the player holds that on 25 February 2016, he sent a letter to the club,
denying that he was in breach of the contract. Further, the player explained that
the club was in breach of the contract, by failing to pay him several monthly
salaries and by failing to timely provide him with a visa. Also, the player states
that he was not authorized by the club to resume his training in December 2015
and that as a result, he returned to Country B. After the club did not pay him the
outstanding salaries, on 1 March 2016, the player unilaterally terminated the
contract (cf. point I./9. above).
18.
In its reply to the player’s claim dated 4 May 2016, the club contested FIFA’s
competence in the matter at hand and argues that in article 19 par. 2 of the
contract, the parties concluded that the Court of Arbitration in Football of the
Football Association of Country D (hereinafter: The NDRC of the Football
Association of Country D) is competent in said matter. Moreover, the club argues
that The NDRC of the Football Association of Country D meets the criteria of fair
proceedings and equal representation of players, and therefore is an independent
tribunal.
Player A, Country B / Club C, Country D /Club E, Country B
Page 4 of 21
19.
As to the substance, the club states that the player had no just cause to terminate
the contract. In this respect, it confirms that it concluded the contract and annex 2
with the player, however arguing that also an additional annex dated 23 January
2014 was concluded between the parties (the annex 1, cf. point I./2. above), which
was, according to the club, ‘purposely kept secret in the Player’s claim’.
20.
Further, the club argued that the player’s performance was not good enough to
stay in the first team and that he was loaned to:
- Club F in the period between 1 March 2012 and 30 June 2013;
- Club G in the period between 25 July 2013 and 31 December 2014;
- Club H in the period between 26 February 2015 and 30 November 2015.
21.
Subsequently, the club held that the player returned in December 2015 to Club C,
with the only intention to discuss the early termination of the contract. The club
however informed the player that it did not agree with an early termination.
Further, the club holds that afterwards, the player refused to participate in the
club’s training sessions.
22.
In addition, the club held that the player’s working permit expired on 31
December 2015 and that the player did not submit a copy of his passport. As a
result, the club could not provide the player with a valid work permit, however
only with a ‘touristic visa’.
23.
Furthermore, the club holds that in January 2016, it negotiated with Club E the
transfer of the player. After the negotiations with Club E had stopped, the player
started to address contractual issues to the club, raising from ‘events more than 3
years ago’, trying to ‘antagonize the relationship with Club C’. Moreover, after
the unilateral termination of the contract by the player on 1 March 2016 and his
subsequent signing of a contract with Club E, the club holds to have objected the
registration of the player with Club E.
24.
In addition, the club argues that the requested salaries for the months of
December 2012, January 2013, December 2013, January 2014 and February 2014
are time-barred, as these are related to events that happened more than two
years before the player lodged his claim. Further, the club holds that it was never
obliged to pay these salaries, because the player was on loan with Club F and Club
G, as a result of which the contract was suspended.
25.
Moreover, also ‘in the periods of no sports performance of the new clubs in
Country B’, the club argues that the contract it concluded with the player was
suspended and that it was not obliged to pay salaries. In addition, the club
referred to annex 1, holding that the player is not entitled to the salary or January
2014, and to the additional agreement in relation to the loan with Club G (cf.
Player A, Country B / Club C, Country D /Club E, Country B
Page 5 of 21
point 6. above), which stipulates that the contract was suspended until 31
December 2013.
26.
Moreover, the club argues that the player is also not entitled to the salary for
December 2014, as the contract between the parties was suspended, because of
the loan of the player to Club G. With regard to the salaries for December 2015,
January 2016 and February 2016, the club states that the player chose to not
participate in training sessions during said period, due to ‘alleged family reasons’,
which was a decision made by himself. As a result, according to the club, the
player is not entitled to these requested salaries.
27.
In conclusion, the club states that the issuance of a visa was a valid prerequisite
for the continuation of the employment relationship between the club and the
player. However, according to the club, the player did not deliver the requested
documents for the application for a work visa, and was more focused on
terminating the contract, as well as negotiating on a possible contract with other
clubs, e.g. Club E.
28.
Finally, the club concludes that the player terminated the contract without just
cause and that he is not entitled to the claimed compensation for breach of
contract. Furthermore, the club lodged a counterclaim against the player,
claiming the amounts of USD 46,000 and EUR 15,000 to be paid by the player,
broken down as follows:
-
USD 16,000 as residual value of the contract in the period between 1 March
2016 and 30 June 2016;
EUR 15,000 as ‘the current (taking into account the time remaining on the
existing contract with Club C) value of the Player’;
USD 30,000 as ‘30% of the future transfer fee (assuming the future transfer
fee to be equal to the fee from 2011)’.
Furthermore, the club asked for 5% interest p.a. on the abovementioned amounts
as from the ‘issuance of the decision’, as well as sporting sanctions to be imposed
on the player.
29.
With respect to the club’s allegations that FIFA’s DRC is not competent in the
matter at hand, the player denies the competence of The NDRC of the Football
Association of Country D, as this NDRC is not recognised by FIFA. In this respect,
the player argues that article 19 par. 2 of the contract (cf. I./4. above) is a ‘preprinted standard clause’, which ‘does not reflect special provisions with respect to
disputes with international dimension and cannot be considered as the standard
arbitration clause’.
Player A, Country B / Club C, Country D /Club E, Country B
Page 6 of 21
30.
Further, the player states that the Court of Arbitration in Football of the Football
Association of Country D is not the same body as the DRC of the Football
Association of Country D, which also follows from article 45 section 1 of the Status
of the Football Association of Country D. As a result, The NDRC of the Football
Association of Country D can never be competent to deal with the matter at
hand, since the parties had never ‘chosen and explicitly opted in writing’ for the
competence of The NDRC of the Football Association of Country D.
31.
Moreover, the player holds that the Court of Arbitration in Football of the
Football Association of Country D ‘could be considered as independent arbitration
tribunal’. However, based on article 47 of the Statutes of the Football Association
of Country D and in order to choose for the competence of the Court of
Arbitration in Football of the Football Association of Country D, the parties
needed to include a clause with an exact wording into their contracts. The player
holds that this was not done in the matter at hand.
32.
Subsequently, the player stresses that article 57 of the Statutes of the Football
Association of Country D, The NDRC of the Football Association of Country D can
deal with only national disputes (i.e. between Parties of Country D) and that
international disputes have to be dealt with by FIFA.
33.
Finally, the player states that from previous cases colleagues of him had at the
Court of Arbitration in Football of the Football Association of Country D, there
are serious doubts as to whether said body meets the requirements for fair
proceedings, as a significant amount of advance of costs is to be paid. Moreover,
according to the player, the club’s chairman, Mr J, is also a member of the
Football Association of Country D Management Board and threatened him that in
case he would lodge a claim against the club, Mr J ‘could organize a problems due
to a good relations with the Football Association of Country D’.
34.
As to the substance, the player first of all denies that his claim is partially timebarred, as the time limits ‘should be started from the time when I became
acquainted about absence of payments, i.e. from February 2016’. Furthermore,
the salary for February 2014 was only due on 15 March 2014, so this salary cannot
be time-barred, even if the date of the claim would be the relevant criterion.
35.
Further, the player denies that he signed annex 1 of the contract (cf. point I./2.
above), also referring to the fact that he participated in the club’s training camp
in January 2014 and played three friendly matches. Moreover, the player argues
that the clause in art. 2 par. 1 of annex 1 is invalid.
36.
Furthermore, the player argues that he signed the annex 2 to the contract (cf.
point I./3. above) under pressure of the club’s management and that he was also
‘forced’ to sign the separate agreement dated 25 July 2013 (cf. point I./6. above).
Player A, Country B / Club C, Country D /Club E, Country B
Page 7 of 21
In addition, the player denies to have signed the annex dated 31 December 2012
(cf. point I./5 above), the loan agreement dated 24 July 2013 (cf. point I./6. above)
and the loan agreement dated 1 July 2014 (cf. point I./7. above).
37.
Furthermore, the player states that he is entitled to the salaries for December
2012, January 2013, December 2013, January 2014 and December 2014 as the
contract with the club was not suspended during said period and he was no
longer on loan with other clubs.
38.
Regarding the club’s allegations that the player refused to resume his work in
December 2015, the player holds that he was prevented from accessing the club’s
training sessions, as well as that he was instructed by Ms K, the club’s Managing
Director, that he had to leave Country D, as there was no work for him.
39.
In addition, the player holds that it was the club’s responsibility to ‘assist me or
even grant independently a work permit and multi-entrance visa to the country
for work’.
40.
With respect to the club’s counterclaim, the player denies to have ‘antagonized
the relationship’ with the club and states that during the negotiations with other
clubs, he was ‘acting openly’ towards the club. Furthermore, the player argues
that the documents provided by the club, show that the club and Club E ‘almost
agree my loan on free of charge basis’, and that an alleged sell-on clause of 30%
(cf. point 28. above) could not be acceptable, since the document said clause is
based on, is not signed by both Club E and the club.
41.
In conclusion, the player holds that he never violated the contract, and that
therefore, the counterclaim of the club has to be rejected.
42.
In its duplica, the club holds that by means of article 19 par. 2 of the contract, the
parties clearly intended to opt-out from the competence of FIFA. Furthermore,
the club argues that as per art. 1 section 2 of the Resolution IXI/81 of November
19th, 2015 of the Management Board of the Football Association of Country D (cf.
point I./18. above), The NDRC of the Football Association of Country D can be
competent in all kind of matters, ‘irrespective the nationality of the parties’. This
Resolution should prevail over article 57 of the Statutes of the Football
Association of Country D. Moreover, the club holds that The NDRC of the Football
Association of Country D meets the requirements for fair and independent
proceedings.
43.
Further, the club reiterates that the request of the player for the salaries of
December 2012, January 2013, December 2013, January 2014 and February 2014 is
time-barred. Moreover, the club argues that it is undisputed that the player
signed the loan agreements with Club F and Club G, and that he never objected
Player A, Country B / Club C, Country D /Club E, Country B
Page 8 of 21
to perform his services to the clubs in Country B. Also, the club holds that the
player did not prove that he took part in the training camp in January 2014, and
further argues that the salary for February 2014 had to be borne by Club G, as the
player was only in the first week of February 2014 at the disposal of the club.
44.
In addition, the club argues that for the salary in relation to December 2014, the
player and Club G decided to terminate the loan by mutual agreement, a decision
for which the club cannot be held liable.
45.
In relation to the salaries for December 2015, the club holds that the player did
not prove that ‘he had been deprived from participating in training sessions’. For
the salaries related to January and February 2016, the club again referred to the
fact that the player did not submit a copy of his passport and that as a result, no
work permit could be requested for him.
46.
In conclusion, the club asks for the rejection of the player’s claims and for the
acceptance of its counterclaim. In this respect, it concludes that the player ‘openly
admits that he declined to sign a written declaration of no entrance into an
agreement with a third party regarding his economic rights’, as well as that the
‘the sell-on clause (initially of 25% and then of 30%) was included in the transfer
offers of Club E itself dated 19th January 2016’.
47.
The player submitted unsolicited comments, arguing that the club is responsible
for the payment of salaries in the ‘time between each respective loan’, that is:
-
-
for the period between 27 November 2012 and 14 January 2013, because he
was not on loan with Club F in this period;
for the period between 3 December 2013 and 25 February 2014, as well as for
the month of December 2014, because he performed his services for the club
and was not on loan with Club G;
for the period between 3 December 2015 and February 2016, because was he
was not on loan with Club H in this period.
48.
Furthermore, the player argues that he was never aware of the end of the loan
period, as this was only agreed upon between the club and the respective Club of
Country B where he was on loan. Therefore, the player holds that he could not
renounce his right to receive remuneration from the loaning clubs.
49.
With respect to discussion around the work visa, the player holds that apparently
he needed to send a scan of ‘all completed pages of valid passport’, but that he
confirmed to the club that his ‘valid passport was not changed’. The player
concludes that the club had all documents needed to ‘initiate for me procedure
for applying for a residence and work permit’.
Player A, Country B / Club C, Country D /Club E, Country B
Page 9 of 21
50.
Finally, the player holds that all negotiations regarding his transfer to another
club were ‘managed exclusively by Club C’.
51.
The club further informed FIFA that the player received remuneration from Club
G in December 2014, by means of ‘court proceedings’ and submitted a copy of a
decision from the District Court of City L in City M dated 29 January 2015 in this
respect. According to said decision, the player was entitled to inter alia receive the
amount of XXX 65,494,400 (approximately USD 4,300) related to salaries and
bonuses in the period between 3 December 2014 and 14 January 2015.
52.
After being requested to do so, the player provided FIFA with an update about his
contractual situation. The player first states that after 3 December 2014, he was
no longer ‘an employee of Club G’ and can therefore not be entitled to receive
salary from said club in December 2014. However, because of a delay in the
payment, the player started a procedure under the Law of Country B, claiming
‘average remunerations for delay of final payment on the day of dismissal for the
period from 3 December to 30 December 2014’.
53.
Furthermore, the player explained that on 17 March 2016, he signed a contract
with Club E, valid as from 17 March 2016 until 16 December 2016. According to
said contract, the player was entitled to receive (a) a basic wage rate of XXX
292,000 (approximately USD 14), (b) a monthly fixed salary of XXX 15,746,135
(approximately USD 760) and (c) a monthly ‘premium part’ of XXX 32,451,540
(approximately USD 1,565).
54.
After being requested to do so, the new club of the player, Club E, submitted its
position to the matter, stating that after ‘not so smoothly’ negotiations with the
club, only on 17 March 2016, it signed a contract with the player, valid as from 17
March 2016 until 16 December 2016. The club further explains that the player is
currently unemployed.
55.
Furthermore, Club E holds that it investigated the circumstances around the
termination of the contract between the player and the club, as well as that it
received a copy of the player’s termination letter dated 1 March 2016 and the
claim of the player against the club dated 5 March 2016.
56.
In addition, Club E argues that it received a confirmation of the Football
Federation of Country B, with the following quote: ‘In accordance with data of
FIFA TMS system the player’s ITC is located at Football Federation of Country B
since 13 March 2013. There are no pending and active requests about
returning/issuing the player’s ITC’.
Player A, Country B / Club C, Country D /Club E, Country B
Page 10 of 21
57.
In conclusion, the club held that it did not ‘illegally approached the player during
his valid contract with Club C and did not induce to his decision to terminate the
contract by just cause’.
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 from the information on file it could be
established that the present matter was submitted to FIFA on 2 March 2016 (cf.
point I./10. Above), as this was the date on which the player posted his claim.
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 would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Player of Country B
and a Club of Country D, with the involvement of a Club of Country B.
3.
However, the Chamber acknowledged that the club contested the competence of
FIFA’s deciding bodies on the basis of the alleged fact that the Court of
Arbitration in Football of the Football Arbitration of Country D is competent in
the present matter.
4.
In this regard, the Chamber noted that the player rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is
competent to deal with a matter such as the one at hand, unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs, has been established at national level
within the framework of the association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the
FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the
Chamber referred to the principles contained in the FIFA National Dispute
Player A, Country B / Club C, Country D /Club E, Country B
Page 11 of 21
Resolution Chamber (NDRC) Standard Regulations, which came into force on
1 January 2008.
6.
In relation to the above, the Chamber also deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another organ
than the DRC is competence to settle an employment-related dispute between a
club and a player of an international dimension, is that the jurisdiction of the
relevant national arbitration tribunal or national court derives from a clear
reference in the employment contract.
7.
Furthermore, with reference to art. 9 par. 1 and art. 12 par. 3 of the Procedural
Rules the party contesting the competence of FIFA’s deciding bodies, needs to
provide sufficient documentary evidence, on the basis of which it could be
established that another deciding body than FIFA’s deciding bodies is competent,
and that such other deciding body complies with the standards of an independent
arbitration tribunal guaranteeing equal representation and fair proceedings.
8.
In view of the foregoing, while analysing whether it was competent to hear the
present matter, the Dispute Resolution Chamber considered that it should, first
and foremost, analyse whether the employment contract at the basis of the
present dispute contained a clear arbitration clause.
9.
In this respect, the Chamber recalled that art. 19 par. 2 of the employment
contract stipulates that: ‘Any dispute arising in connection with the execution of
this Agreement shall be considered by the Court of Arbitration Football of the
Football Association of Country D’.
10.
Having examined the relevant provision, the Chamber came to the conclusion that
art. 19 par. 2 in itself is a clear arbitration clause, referring to a specific dispute
resolution body in Country D.
11.
Subsequently, the members of the Chamber established that the documents
provided by the club in its reply in order to prove that the Court of Arbitration in
Football should be competent to deal with the matter at hand, are however
related to the Dispute Resolution Chamber of the Football Association of Country
D, which is another deciding body than the Court of Arbitration in Football of the
Football Association of Country D and to which body no reference is made in the
pertinent contract. As such, the Chamber could not establish – as the club did not
submit supporting documentary evidence – that the Court of Arbitration in
Football of the Football Arbitration of Country D complies with the standards of
an independent arbitration tribunal guaranteeing equal representation and fair
proceedings.
Player A, Country B / Club C, Country D /Club E, Country B
Page 12 of 21
12.
The foregoing conclusion is also supported by the club’s statements in its reply, in
which it refers to the competence of both the Court of Arbitration in Football and
the Dispute Resolution Chamber, both deciding bodies under the Football
Association of Country D, therefore, not referring to one specific national
deciding body. Furthermore, the DRC also noted that on 4 May 2017 (cf. point
I./23. above), the club lodged a counterclaim against the player in front of FIFA,
confirming that it in fact accepts the competence of the DRC to deal with the
present matter.
13.
On account of all the above, the Chamber established that the club’s objection
towards the competence of FIFA to deal with the present matter has to be
rejected, and that the Dispute Resolution Chamber is competent, on the basis of
art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider
the present matter as to the substance.
14.
In continuation, 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 2 March
2016, the 2015 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
15.
Subsequently, the DRC duly noted that – in view of the date of the player’s claim
and the club’s allegations that said claim has to be considered time-barred - it
should examine if the present claim, or any part of it, could be possibly timebarred. In this respect, the Chamber noted that the employment contract at the
basis of the dispute was concluded on 15 December 2011, as well as that based on
the documentation on file, it could be established that the player lodged his claim
before FIFA on 2 March 2016, claiming for alleged outstanding salaries as from
the month of December 2012.
16.
In this respect, the members of the Chamber referred to art. 25 par. 5 of the
Regulations, which, in completion to the general procedural terms outlined in the
Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall
not hear any dispute if more than two years have elapsed since the event giving
rise to the dispute arose and that the application of this time limit shall be
examined ex officio in each individual case.
17.
Bearing in mind the foregoing, the DRC referred to the claim of the player, based
on which he requested inter alia the payment of the salaries for the months of
December 2012, January and December 2013, January 2014, February and
December 2014, December 2015, as well as January and February 2016. All these
salaries were due on the 15th day of the following month, as per the contract
signed between the parties on 15 December 2011.
Player A, Country B / Club C, Country D /Club E, Country B
Page 13 of 21
18.
As a consequence, recalling that the present claim was lodged on 2 March 2016,
the DRC concluded that the time limit of two years had elapsed for claiming the
salaries for the months of December 2012, January and December 2013, as well as
January 2014. Therefore, this part of the player’s claim is to be considered timebarred and consequently inadmissible. The Chamber concluded its reasoning by
stating that the player’s other requests, as well the subsequent counterclaim of
the club, were made within the 2 years’ time limit and, therefore will be further
analysed as to their substance.
19.
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.
20.
The members of the Chamber first acknowledged that the parties were
contractually bound by means of an employment contract and two annexes, valid
altogether as from 1 January 2012 until 30 June 2016.
21.
Furthermore, the DRC noted that the player, on the one hand, maintained that
during the validity of his contract with the club, he was loaned to several other
clubs, only playing for the club in a limited period of time. Moreover, the player
indicates that during the periods in which he was not on loan with other clubs,
the club repeatedly failed to comply with its financial obligations under the
contract. In this respect, the player claims that several salaries remained
outstanding and that he sent several default letters, however to no avail. As a
result, on 1 March 2016, the player unilaterally terminated the contract, due to
the outstanding salaries and the club’s failure to timely provide him with a visa.
The player held that these circumstances are to be considered as a reason to
terminate the contract with just case.
22.
The Chamber further noted that the club, on the other hand, rejected the claim
put forward by the player and stated that part of the player’s claim is time barred.
In relation to the amounts claimed by the player and related to the period as from
February 2014, the club holds that the player is not entitled to these amounts,
since (a) the contract between the player and the club was suspended between
January 2014 and December 2014 and (b) that as from December 2015, the player
did not fulfil his contractual obligations anymore.
23.
In continuation, the Chamber took into account that the player fully rejected the
club’s allegations, as well as that the club in its final reply insisted on the alleged
Player A, Country B / Club C, Country D /Club E, Country B
Page 14 of 21
fact that the player did not fulfil its contractual obligations by missing training
sessions and that he did not submit a copy of his passport, which made it for the
club impossible to timely request a visa for the player.
24.
In view of the aforementioned considerations, 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 on 1 March 2016, the
contract had been terminated by the player with or without just cause, and to
determine the consequences of said termination.
25.
In this respect, the members of the Chamber first of all reiterated that the
amounts claimed by the player related to the months of December 2012, January
and December 2013, as well as January 2014 are to be considered time-barred (cf.
no. II./15., II./16. , II./17. and II.18. above).
26.
Moreover, the Chamber deemed it vital to outline that according to its wellestablished jurisprudence, in case the player is loaned to another club, the effects
of the employment contract with the club of origin are temporarily suspended,
unless the club of origin and the player have otherwise agreed. In relation to the
salaries claimed for the months of February and December 2014, the Chamber
analysed the loan agreement concluded between the club and Club G (cf. no. I./7.
above) for the loan of the player in the period between 1 January 2014 and 31
December 2014 and noted that, even though said loan agreement is not co-signed
by the player, it does not provide for amounts to be paid by the club to the player
during the loan with Club G. Moreover, the player did not submit evidence that
he and the club agreed upon amounts to be paid to him by the club, in the period
during which he was on loan with Club G. As a result, and in line with its wellestablished jurisprudence, the Chamber rejected the part of the player’s claim
related to the salaries for months of February and December 2014, as during this
period the player was on loan with Club G and his contract with the club was
temporarily without effect.
27.
Subsequently, the members of the Chamber focused their attention on the
arguments brought forward by the parties, in relation to the salaries for the
months of December 2015, as well as January and February 2016. According to the
player, the club did not pay him these salaries without having a valid reason to
not do so, however the club alleged that as from December 2015, the player did
not participate in the club’s training sessions, and that as a result, the player is not
entitled to these salaries. Subsequently, the player argues that the club showed a
lack of interest in his services, as it only sent him a visa and work permit in
February 2016, which prevented him from entering the country of Country D
between January 2015 and February 2016.
Player A, Country B / Club C, Country D /Club E, Country B
Page 15 of 21
28.
In this respect, the Chamber first of all noted that, the club – based on the
contract (cf. points I./1. and I./3. above) in principle is obliged to pay the salaries
related to the months December 2015, January 2016 and February 2016, as the
player was not on loan with any other clubs. Moreover, from the information on
file, it appears that the player went back to the club on 2 December 2015,
offering his services to the club, however he was allegedly told that there was no
work for him and subsequently returned to Country B. In this respect, the
Chamber noted that the club did not contest the return of the player to Country
D on 2 December 2015, however only arguing that it was the player’s own choice
to return to Country B and to not attend the club’s training sessions, without
providing any evidence of such allegations.
29.
In addition, the Chamber noted that the club – after having invoked
administrative reasons which made it allegedly impossible for it to timely request
the necessary documents for the player - had sent the work permit and visa to the
player on 6 February 2016. Subsequently, from the information on file, the
members took note that on 8 February 2016, the player travelled to Country D
and offered his services to the club, however that the club allegedly informed him
about its intention to transfer him to another club. Moreover, in spite of the
several requests of the player, his salaries for December 2015, as well as January
and February 2016, remained unpaid.
30.
Based on the foregoing circumstances, the members of the Chamber established
that the club did not explicitly contest the player’s allegations, and moreover, it
could not prove its allegations that in the period between December 2015 and
February 2016, the player refused to render his services under the contract. As a
result, the members were of the firm opinion that the player’s conduct in the
matter at hand cannot be reproached, since from the information on file, it
appears that the player did all in his power to return to the club after the loan
and as soon as he got the visa, in order to offer his services. In this respect, the
DRC deemed it appropriate to emphasize that according to its well-established
jurisprudence, it is the club’s responsibility to undertake all administrative
measures to ensure that the player is provided a visa and/or work permit, in order
to perform his work, as per the employment contract. Moreover, it appears that
the club did not pay the player several outstanding salaries, as well as that from
the club’s behaviour, it could be established that it appeared to be no longer
interested in the services of the player.
31.
Consequently, and considering that the club had repeatedly and for a significant
period of time been in breach of its contractual obligations towards the player, as
well as that – considering the subsequent loans, the untimely organisation of the
player’s visa and the lack of reaction to the default notices - it was apparently no
longer interested in the player’s services, the Chamber decided that the player
Player A, Country B / Club C, Country D /Club E, Country B
Page 16 of 21
had just cause to unilaterally terminate the employment contract on 1 March
2016.
32.
In view of the above, the Chamber concluded that the club had to be held liable
for the early termination of the employment contract with just cause by the
player and was liable to compensate the player. In continuation, the Chamber
focused its attention on the consequences of such termination.
33.
In this regard, prior to establishing the consequences of the early termination of
the contract by the club in accordance with art. 17 par. 1 of the Regulations, the
Chamber held that it had to address the issue of any unpaid remuneration at the
moment the contract was terminated by the club.
34.
In relation the player’s claim, and taking into account that the claimed salaries for
December 2012, January 2013, December 2013 and January 2014 are to be
considered time-barred (cf. no. II./15., II./16. , II./17. and II.18. above), as well as
that there is no legal basis to grant the player the salaries for February and
December 2014 (cf. no. II./26. above), the members of the Chamber focused their
attention on the alleged outstanding salaries for December 2015, January and
February 2016. In this respect, and in line with the fact that the club could not
prove that the player did not fulfil his contractual obligations (cf. no. II./27., II./28.,
II./29. and II.30. above), the members established that three monthly salaries in
the amount of USD 4,000 each were to be considered outstanding, as a result of
which the club has to pay the amount of USD 12,000 as outstanding remuneration
to the player.
35.
In addition, the members of the Chamber determined that the club has to pay 5%
interest p.a. on the amount of USD 12,000, as requested by the player, i.e.:
-
5% p.a. as of 16 January 2016 on the amount of USD 4,000;
5% p.a. as of 16 February 2016 on the amount of USD 4,000;
5% p.a. as of 16 March 2016 on the amount of USD 4,000.
36.
Having established the above, the Chamber turned its attention to the question
of the consequences of the unilateral termination of the contract by the player
with just cause on 2 March 2016.
37.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the player is entitled to receive from the club compensation
for breach of contract in addition to any outstanding salaries on the basis of the
relevant employment contract.
38.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so,
Player A, Country B / Club C, Country D /Club E, Country B
Page 17 of 21
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 player 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.
39.
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
clause was included in the employment contract at the basis of the matter at
stake.
40.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
41.
Bearing in mind the foregoing as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the employment contract until 30 June 2016. Consequently, the Chamber
concluded that the amount of USD 16,000 (i.e. the monthly remuneration due to
the player between the months of March 2016 and June 2016) serves as the basis
for the determination of the amount of compensation for breach of contract.
42.
In continuation, the Chamber verified as to whether the player 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.
43.
Indeed, the player found employment with the Club of Country B, Club E. In
accordance with the pertinent employment contract with said club, valid as from
17 March 2016 until 16 December 2016, the player was entitled to receive a
monthly salary of XXX 48,489,675, which amounts to approximately USD 2,339.
Player A, Country B / Club C, Country D /Club E, Country B
Page 18 of 21
Therefore, in the period between 17 March 2016 and 30 June 2016, the player
entitled to approximately USD 8,200.
44.
As a result of the foregoing, the Chamber noted that the player was able to
mitigate his damages in the relevant period to approximately USD 8,200.
45.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the
amount of USD 7,800 to the player, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
46.
In addition, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the amount of
compensation, i.e. USD 7,800 as of the date of the claim (2 March 2016) until the
date of effective payment.
47.
Furthermore, the members of the Chamber established that any further request
filed by the player is rejected.
48.
The Chamber concluded its deliberations in the present matter by rejecting the
counterclaim lodged by the club, as it has been established that the player had
just cause to terminate the employment contract.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is admissible.
2.
The claim of the Claimant / Counter-Respondent is partially accepted.
3.
The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of USD 12,000, plus 5% interest p.a.
until the date of effective payment as follows:
a. 5% p.a. as of 16 January 2016 on the amount of USD 4,000;
b. 5% p.a. as of 16 February 2016 on the amount of USD 4,000;
c. 5% p.a. as of 16 March 2016 on the amount of USD 4,000.
Player A, Country B / Club C, Country D /Club E, Country B
Page 19 of 21
5.
The Respondent / Counter-Claimant, has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
compensation for breach of contract in the amount of USD 7,800 plus 5% interest
p.a. on said amount as from 2 March 2016 until the date of effective payment.
6.
In the event that the amounts due to the Claimant / Counter-Respondent in
accordance with the above-mentioned numbers 4. and 5. are not paid by the
Respondent / Counter-Claimant within the stated time limits, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
7.
Any further claim lodged by the Claimant is rejected.
8.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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:
Player A, Country B / Club C, Country D /Club E, Country B
Page 20 of 21
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 /Club E, Country B
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