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 28 July 2015, the player of country B, Player A (hereinafter: player or
Claimant), and the club of country D, Club C (hereinafter: club or Respondent),
concluded an employment contract (hereinafter: contract) valid as of 28 July
2015 for the duration of “two (2) football seasons, i.e. 2015-2016 and 20162017”.
2.
According to the Transfer Matching System (TMS), the sporting seasons in
Country D ran as follows:
- 2015/2016: As of 12 August 2015 until 31 May 2016;
- 2016/2017: As of 12 August 2016 until 31 May 2017.
3.
On 29 July 2015, the parties concluded an agreement (hereinafter:
agreement), “which will become an integral part” of the contract, valid for
the duration of “two (2) football seasons, i.e. 2015-2016 and 2016-2017”.
4.
According to the contract, the club undertook to pay the player a total
remuneration of EUR 10,780 for each season, payable in ten instalments of
EUR 1,078, starting on 31 August and ending on 31 May of the respective year,
with “a sixty day grace period for each payment”.
5.
According to the agreement, the club undertook to pay the player the
following amounts:
- EUR 2,500 after passing the medical examination;
- EUR 1,250 as monthly instalment starting on 31 August 2015 until 31 May
2016, with “a sixty day grace period for each payment”.
- EUR 2,000 as monthly instalment starting on 31 August 2016 until 31 May
2017, with “a sixty day grace period for each payment”.
6.
The agreement contains the following clause: “The club is responsible to offer
to the player a fully furnished apartment in a city of country D, while the
player is responsible to pay electricity, telephone and water bills”.
7.
Furthermore, according to the agreement, the player is entitled to an
“additional amount” of EUR 2,000 in case he “plays 70% of the games”.
8.
On 6 June 2016, the player sent a default notice to the club, requesting
payment of EUR 9,650 corresponding to the salaries of March, April and May
2016 plus a bonus and accommodation costs.
9.
On 30 June 2016, the player sent a second default notice to the club,
requesting payment of EUR 9,650 corresponding to the salaries of March, April
and May 2016 plus a bonus and accommodation costs. In said letter, the player
pointed out that he would terminate the contract if the club would not remit
the salaries for March and April 2016 as well as the bonus and accommodation
costs within 3 days.
Player A, Country B / Club C, Country D
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10.
On 5 July 2016, the player terminated the contract due to the non-fulfilment
by the club of its financial obligations.
11.
On 8 August 2016, the player lodged a claim in front of FIFA maintaining that
the club is to be held liable for the early termination of the contract and he
requested to be awarded the following monies:
- EUR 6,750 corresponding to outstanding salaries for the months of March
to May 2016;
- EUR 900 corresponding to 3 months of accommodation costs;
- EUR 2,000 as bonus resulting from the agreement;
- EUR 30,000 as compensation for breach of contract and agreement.
Moreover, the player requested to be reimbursed for his legal costs.
12.
In his arguments, the player held that he had just cause to terminate the
contract since the club failed to pay the salaries as of March until May 2016 as
well as accommodation costs and a bonus.
13.
Regarding the accommodation costs, the player referred to the clause in the
agreement, and argued that “the monthly rent of the apartment was equal to
the amount of EUR 300”. In this context, he claimed reimbursement for 3
months.
14.
Moreover, the player pointed out that he played more than 70% of the
matches in the season 2015/2016 and that therefore, he would be entitled to
the bonus of EUR 2,000 as agreed upon in the agreement.
15.
Furthermore, the player claimed compensation in the total amount of EUR
30,000 corresponding to the residual amount as per the contract and the
agreement.
16.
The club, for its part, acknowledged outstanding remuneration in the amount
of EUR 9,650, but rejected the player’s claim for compensation. Further, the
club pointed out that it has already deposited the outstanding remuneration
for the player with the Football Association of Country D.
17.
In its arguments, the club held that the player is not entitled to compensation
for the season 2016/2017 since it allegedly terminated the contract on 9 March
2016 due to the club’s relegation.
18.
Furthermore, the club contested the competence of FIFA to deal with the
present matter, referring to article 13 of the “standard employment contract”,
which stipulates that “Any employment dispute between the Club and the
Player shall fall under the exclusive jurisdiction of the National Dispute
Resolution Chamber of the Football Association of Country D and shall be
resolved according to the applicable regulations of the Football Association of
Country D”.
Player A, Country B / Club C, Country D
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19.
In this context, the club argued that said “standard employment contract
came into force in during 2015 and is obligatory for all Football Clubs and
Players in Country D”.
20.
Furthermore, the club referred to article 14 of the contract which states: “The
player […] shall in all respects and at all times obey and comply, with all
applicable Laws and Regulations of the Country D”.
21.
The club further held that the National Dispute Resolution Chamber in
Country D meets the requirements of art. 22 lit. b of the FIFA Regulations on
the Status and Transfer of Players (hereinafter: RSTP).
22.
After the player was requested to submit comments regarding the jurisdiction
only, he insisted that FIFA’s Dispute Resolution Chamber is competent to deal
with the present matter, since neither the contract nor the agreement “make
any clear reference” to the National Dispute Resolution Chamber in Country
D.
23.
On 26 August 2016, the player signed a new employment contract with the
club of country B, Club E, valid as from 26 August 2016 until 30 June 2017,
including a monthly salary of 24,000 in the currency of country B.
24.
On 31 January 2017, the player signed another employment contract with the
club of country F, Club G, valid as from 31 January 2017 until 30 June 2017,
including the following remuneration:
- EUR 679 as monthly salary;
- EUR 873.50 as additional instalment due on 31 March 2017;
- EUR 873.50 as additional instalment due on 30 June 2017.
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 8 August 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 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.
Player A, Country B / Club C, Country D
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3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding body on the basis of art. 13 of the “standard
employment contract” in Country D invoking an alleged jurisdiction of the
National Dispute Resolution Chamber of the Football Association of Country
D.
4.
In turn, the DRC noted that the Claimant rejected such position and insisted
that FIFA has competence to deal with the present matter.
5.
Taking into account 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. In
this regard, the members of the Chamber further referred to the principles
contained in the FIFA National Dispute 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 can settle an employment-related dispute between a club
and a player of an international dimension, is that the competence of the
relevant arbitration tribunal derives from a clear reference in the employment
contract.
7.
Therefore, 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 contract or the agreement at the basis of the
present dispute actually contained a clear and exclusive arbitration clause in
favour of National Dispute Resolution Chamber of the Football Association of
Country D.
8.
On account of the above, and due to the fact that neither the contract nor the
agreement, i.e. the documents at the basis of the dispute, contain an
arbitration clause, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter has to be rejected.
9.
For the sake of completeness, the Chamber referred to the Respondent’s
argument that article 13 of the “standard employment contract” would be
applicable. In this context, the DRC established that said clause is totally
irrelevant as the article referred to does not appear in the contract actually
signed by the parties.
Player A, Country B / Club C, Country D
Page 5 of 11
10.
On account of the above, 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 deal with the present matter as to the substance.
11.
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 8 August 2016, the 2016 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
12.
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.
13.
In this respect, the Chamber recalled that, on 28 July 2015, the parties had
signed an employment contract valid for “two football seasons”, i.e. until 31
May 2017.
14.
Furthermore, the DRC acknowledged that on 29 July 2015, the parties signed
the agreement, as integral part of the contract, with the same period of
validity.
15.
In continuation, the members of the Chamber noted that the Claimant lodged
a claim against the Respondent, maintaining that the latter shall be held liable
for the early termination of the contract. In this regard, the DRC took note,
that the Claimant argued having had just cause to terminate the contract on 5
July 2016 and consequently, requested outstanding remuneration,
compensation for breach of contract and reimbursement of legal fees.
16.
The DRC further noted that the Respondent, for its part, acknowledged the
outstanding remuneration claimed by the player, but rejected being liable to
pay compensation since it allegedly deposited the outstanding remuneration
for the player with the Football Federation of Country D.
17.
Having said this, the members of the Chamber acknowledged that the central
issue in the matter at stake was to determine as to whether the contract was
terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
Player A, Country B / Club C, Country D
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18.
With the above in mind, 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.
19.
The members of the Chamber noted that the player had sent two default
notices to the club requesting payment of his outstanding dues before he
terminated the contract on 9 July 2016 due to the club’s non fulfilment of its
financial obligations.
20.
In this respect, the Chamber wished to emphasise that, according to the
Claimant, he had not received payments in the amount of EUR 9,650,
corresponding to the salaries of March, April and May 2016 plus
accommodation costs and bonuses.
21.
The Chamber then turned its attention to the arguments of the Respondent,
which acknowledged the debt in full, but held that it had deposited said
amount with the Football Association of Country D.
22.
Due to the fact, that the Respondent did not submit any evidence in support
of its allegations, its argument of having deposited the debt must be rejected.
23.
In any case, even if such a payment could have been established, the Chamber
wished to point out that there is no reason to remit the remuneration to the
Federation instead of the player.
24.
In this context, the Chamber established that the Respondent, without any
valid reason, failed to remit to the Claimant remuneration totalling EUR 9,650
up to 9 July 2016, corresponding to three monthly salaries plus bonuses and
accommodation costs.
25.
Consequently, and considering that the Respondent had thus 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 9 July 2016 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.
26.
Subsequently, prior to establishing the consequences of the termination of the
employment contract with just cause by the Claimant in accordance with art.
17 par. 1 of the Regulations, the Chamber held that it, in general, had to
address the issue of unpaid remuneration at the moment when the contract
was terminated by the Claimant.
Player A, Country B / Club C, Country D
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27.
Bearing in mind that the Respondent acknowledged its debt towards the
player without being able to proof that it remitted the claimed amount to the
player, the Chamber accepted the player’s claim for outstanding
remuneration.
28.
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 9,650 with regard to the
remuneration due to him between March and May 2016.
29.
Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the Claimant is entitled to receive compensation for
breach of contract from the Respondent.
30.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
so, the members of the Chamber firstly recapitulated that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at
the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including, in
particular, the remuneration and other benefits due to the Claimant under the
existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
31.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains a
provision by means of which the parties had beforehand agreed upon an
amount of compensation payable by the contractual parties in the event of
breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
32.
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 nonexhaustive 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 for contractual breach has to be assessed by
the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter.
Player A, Country B / Club C, Country D
Page 8 of 11
33.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
new contract, which criterion was considered by the Chamber to be essential.
The members of the Chamber deemed it important to emphasise that the
wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
34.
Bearing in mind the foregoing, the Chamber proceeded with the calculation
of the monies payable to the player under the terms of the employment
contract as from the date of termination with just cause by the Claimant until
its natural expiration, bearing in mind that he would have received in total
EUR 28,780 as remuneration for the period as from 9 July 2016 until 31 May
2017. Consequently, the Chamber concluded that the amount of EUR 28,780
serves as the basis for the final determination of the amount of compensation
for breach of contract in the case at hand.
35.
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.
36.
In this respect, the Chamber recalled that the Claimant had found new
employment with the club of country B, Club E, as from 26 August 2016 until
30 January 2017. In accordance with the employment contract signed between
the Claimant and Club H, the Claimant was entitled to a monthly salary of
24,000 in the currency of country B.
37.
What is more, the DRC noted that the Claimant signed another employment
contract with the club of country F, Club G, valid as from 31 January 2017 until
30 June 2017, including the following remuneration:
- EUR 679 as monthly salary;
- EUR 873.50 as additional instalment due on 31 March 2017;
- EUR 873.50 as additional instalment due on 30 June 2017.
38.
Consequently, on account of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to
mitigate his damage, the Chamber decided to partially accept the Claimant’s
claim and that the Respondent must pay the amount of EUR 24,190.50 as
compensation for breach of contract to the Claimant, which is considered by
the Chamber to be a fair and reasonable amount.
39.
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 well-
Player A, Country B / Club C, Country D
Page 9 of 11
established 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.
40.
The members of the Chamber concluded their deliberations 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 admissible.
2.
The claim of the Claimant is partially accepted.
3.
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 9,650.
4.
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 EUR 24,190.50.
5.
In the event that the aforementioned amounts are not paid by the
Respondent within the stated time limit, interest at the rate of 5% p.a. will
fall due as of expiry of the aforementioned time limit and the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent immediately and directly
of the account number to which the remittance are to be made and to notify
the Dispute Resolution Chamber of every payment received.
*****
Player A, Country B / Club C, Country D
Page 10 of 11
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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