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
I.
regarding an employment-related dispute
arisen between the parties
Facts of the cas e
1.
On 15 July 2016, the Player of Country B, Player A (hereinafter: the Claimant /
Counter-Respondent or the player) and the Club of Country D, Club C
(hereinafter: the Respondent / Counter-Claimant or the club) signed an
employment contract (hereinafter: the contract) valid as from the date of
signature until 14 July 2018.
2.
According to art. 4 of the contract, the player was entitled to the following
remuneration:
a) USD 20,833 as monthly salary payable at the end of each month (par. 1);
b) USD 100,000 payable on 8 August 2016 (par. 2);
c) USD 100,000 payable on 1 October 2017 (par. 3).
Furthermore, the club committed to provide the player with “2 (Two) return
business Class air ticket per year“(par. 6).
3.
Art. 10, point 4 of the contract stipulates that “if the [club] need to terminate the
contract the [player] shall receive only (2) Two salaries from the first party”.
4.
On 1 November 2016, the player sent a letter to the club, by means of which he
put it in default for the payment of USD 72,915.50, corresponding to half monthly
salary for the month of July 2016 and to the monthly salaries from August to
October 2016. By said letter, the player requested the payment of the
aforementioned amount within 7 November 2016 and informed that, in case of
non-payment, he was ready to terminate the contract on 8 November 2016.
5.
By means of a letter dated 8 November 2016, the player terminated the contract
and informed the club that he would leave on the same date.
6.
On 12 November 2016, the club replied to the player’s letter stating that the
parties had agreed on the delayed payment of his outstanding salaries and it
requested the player’s bank details pursuant to their alleged agreement.
7.
On 15 November 2016, the player lodged a claim in front of FIFA against the club
for breach of contract, requesting the following:
a) USD 72,915.50 as outstanding salaries for the period from 15 July 2016 until
31 October 2016 plus interest of 5% p.a. since the relevant due dates;
b) USD 527,076.50 as compensation for breach of contract, corresponding to the
remaining contractual value, plus interest of 5% p.a. since the date of the
claim;
c) USD 3,255.28 as reimbursement of two flight tickets.
Player A, Country B / Club C, Country D / Club E, Country B
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8.
In his claim, the player explained that the club did not pay him the monthly
salaries for more than three and an half months and argued that he terminated
the contract with just cause.
9.
Moreover, the player requested the reimbursement of two flight tickets, for him
and his wife, amounting to USD 3,255.28.
10.
In its reply, the club alleged that the player was aware of its financial difficulties
and that he agreed with the club to delay the payment of the outstanding
salaries. Nonetheless, according to the club, he eventually left the club without
sending a request for the payment of such salaries. In particular, the club
submitted a document - signed only by the club and dated 7 November 2016 whereby the parties agreed on the termination of the contract and the club
committed to pay the player the amount of USD 72,915 on 9 November 2016.
11.
Furthermore, the club argued that, as the player agreed on the delayed payment
and then left the club without requesting the payment, he terminated the
contract without just cause. As a consequence thereof, the club alleged that it
suffered losses when the player left and filed a counterclaim for the payment of
USD 700,000 as compensation for said termination without just cause by the
player.
12.
In his replica and reply to the counterclaim, the player rejected the club’s
arguments and affirmed that he requested the payment of the outstanding
remuneration and left the club pursuant to his letters dated 1 and 8 November
2016. What is more, the player emphasised that, in any event, as the due dates
had been set out in the contract, he had no obligation to put the club in default.
13.
Moreover, the player stressed that he neither agreed any delayed payment nor
any termination with the club. In this respect, the player underlined that he did
not sign any termination agreement with the club.
14.
Furthermore, the player emphasized that the club’s counterclaim had no legal
basis, was abusive and inappropriate and hence requested its rejection.
15.
In conclusion, the player pointed out that the club did not contest that the
claimed amount was due and reiterated his initial requests.
16.
In its duplica, the club insisted on its previous arguments, in particular that the
claimed amount corresponded to the value of the contract and to the losses
suffered by the club because of the termination of the contract without just cause
by the player.
Player A, Country B / Club C, Country D / Club E, Country B
Page 3 of 10
17.
According to the information contained in the Transfer Matching System
(hereinafter: TMS), the player entered into an employment contract with the Club
of Country B, Club E on 20 April 2017. Club E submitted its comments on the
present affair and stated that it did not induce the player to terminate the
contract with the club as it met him only after he was back to Country B and had
already filed his claim with FIFA. Moreover, Club E considered that the player had
terminated his contract with the club with just cause, as the club owed him more
than three and a half monthly salaries.
18.
In accordance with the above-mentioned contract uploaded in TMS, valid as from
20 April 2017 until 20 July 2017, the player was entitled to receive from Club E a
monthly salary of 1,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the
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 15 November 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 and 2 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,
with the intervention of a Club of Country B.
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 15
November 2016, the 2016 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
3.
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
Player A, Country B / Club C, Country D / Club E, Country B
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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.
First, the Chamber noted that the parties entered into an employment contract
valid as from 15 July 2016 until 14 July 2018, which entitled the player to a
monthly salary of USD 20,833, plus the amount of USD 200,000 payable in two
instalments of USD 100,000 on 8 August 2016 and on 1 October 2017 respectively.
Furthermore, the club committed to provide the player with “2 (Two) return
business Class air ticket per year“.
6.
Moreover, the DRC acknowledged that it was undisputed that, on 1 November
2016, the player put the club in default of three and an half monthly salaries, for
the period between July and October 2016 and corresponding to the amount of
USD 72,915.50, and thereafter terminated the contract and left the club on 8
November 2016. What is more, the members of the DRC duly noted that it was
also undisputed that, until that date, the player did not receive the payment of
the claimed outstanding salaries.
7.
In continuation, the DRC noted that the player alleged that the club breached the
contract as it failed to pay the outstanding salaries for more than three and an
half monthly salaries. Moreover, the player emphasized that the club also did not
pay him two flight tickets and stressed that, in view of the above-mentioned
circumstances, he terminated the contract with just cause.
8.
Equally, the Chamber took note of the reply of the club, which first alleged that
the player was aware of the club’s financial difficulties and agreed to delay the
payment of the outstanding salaries. Moreover, the members of the DRC also
noted that, according to the club, despite such alleged agreement, the player left
the club without requesting the payment of the outstanding amount.
9.
In view of the aforementioned circumstances, the club argued that the player
terminated the contract without just cause and requested the amount of USD
700,000 as compensation for such alleged termination without just cause.
10.
Furthermore, the members of the Chamber took note of the position of the
player’s new club, Club E (hereinafter: the intervening party or Club E), which
concurred on the player’s position and argued that it did not induce the
termination of the contract as it met the player only after that he lodged his claim
against the club.
11.
In view of the aforementioned considerations, the members of the Chamber
highlighted that the underlying issue in this dispute, considering the diverging
Player A, Country B / Club C, Country D / Club E, Country B
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position of the parties, was to determine whether, on 8 November 2016, the
contract had been terminated by the player with or without just cause, and to
determine thereafter the consequences of said termination.
12.
In this respect, the Chamber noticed that the club provided a copy of an
agreement, signed by the club only, stipulating the alleged amicable termination
of the contract and the club’s commitment to pay the amount of USD 72,915 to
the player on 9 November 2016. Having noticed the above, the members of the
Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according to
which any party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof. The application of the said principle in the present
matter led the members of the Dispute Resolution Chamber to conclude that it
was up to the club to prove that an agreement on the termination of the contract
and on the delayed payment of the outstanding salaries had been indeed reached
between the player and the club.
13.
Having stated the above, the members of the Chamber concurred that the club
did not substantiate his allegations, as it did not provide evidence that an
agreement, signed by both parties, had been concluded in this respect between
the player and the club. Indeed, the only copy of said agreement provided by
the club is only signed by the latter. What is more, the player explicitly rejected
having reached any kind of agreement with the club in order to early terminate
the contract.
14.
On account of the aforementioned, and considering that the club acknowledged
the outstanding amount requested by the player, the Chamber deemed that the
club failed to pay the due salary for more than three months without any valid
reason and, therefore, was in breach of its contractual obligations towards the
player for a significant period of time. Moreover, the Chamber recalled that the
player put the club in default of payment before terminating the contract.
15.
In view of the above, and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the members of the DRC decided that the player had
just cause to unilaterally terminate the employment contract on 8 November 2016
and that, as a result, the club is to be held liable for the early termination of the
employment contact with just cause by the player.
16.
In continuation, having established that the club is to be held liable for the early
termination of the employment contract with just cause by the player, the
Chamber focused its attention on the consequences of such termination. In this
regard, 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 amounts which
Player A, Country B / Club C, Country D / Club E, Country B
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were outstanding under the contract at the moment of the termination, i.e. USD
72,915, corresponding to the salaries relating to half of the month of July and to
the months from August to October 2016.
17.
In addition, taking into consideration the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the player interest at the rate of 5% p.a. on the
outstanding amount of USD 72,915, as follows:
a.
b.
c.
d.
5% p.a. as of 1 August 2016 on the amount of USD 10,416;
5% p.a. as of 1 September 2016 on the amount of USD 20,833;
5% p.a. as of 1 October 2016 on the amount of USD 20,833;
5% p.a. as of 1 November 2016 on the amount of USD 20,833.
18.
Furthermore, as to the player's request for the reimbursement of flight tickets,
the members of the Chamber first referred to art. 4 par. 6 of the contract,
according to which it was the club’s obligation to provide the player with “2
(Two) return business Class air ticket per year“. In this regard, the DRC, having
noticed that the aforementioned request was not contested by the club and in
view of the evidence submitted by the player pursuant to art. 12 par. 3 of the
Procedural Rules, decided that the club is liable to pay to the player the requested
amount of USD 3,255, corresponding to the costs borne by the player for two
flight tickets.
19.
In continuation, the Chamber decided that, in accordance with art. 17 par. 1 of
the Regulations, the club is liable to pay compensation for breach of contract to
the player.
20.
Along those lines, the Chamber pointed out that 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.
21.
In application of the relevant provision, the Chamber held therefore that it first of
all had to clarify as to whether the 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 members of the Chamber recalled that art. 10, point 4 of the contract
Player A, Country B / Club C, Country D / Club E, Country B
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stipulates that “if the [club] need to terminate the contract the [player] shall
receive only (2) Two salaries from the first party”.
22.
The members of the Chamber agreed that this clause is to the benefit of the club
only, i.e. it is not reciprocal as it does not grant the same rights to the player and
that, therefore, said clause cannot be taken into consideration in the
determination of the amount of compensation. What is more, the members of the
Chambers pointed out that said clause referred to a different case, i.e. the
termination of the contract by the club, and, thus, was anyway not applicable to
the case at stake.
23.
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
until 14 July 2018 and concluded that the player would have received a total
remuneration of USD 527,076, equal to the monthly salaries for twenty and an
half months plus the payment set out in art. 4 par. 3 of the contract, had the
contract been executed until its expiry date.
24.
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.
25.
Indeed, the player found employment with the Club of Country B, Club E, with
which he signed a contract valid from 20 April 2017 until 20 July 2017, with a
monthly salary of 1,000. Consequently, the Chamber established that the value of
the new employment contract amounted to 1,000, corresponding to
approximately USD 305.
26.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC decided that the club must pay the
player the amount of USD 526,161 which, is to be considered a reasonable and
justified amount of compensation for breach of contract in the matter at hand.
27.
In addition and with regard to the player's request for interest, the Chamber
decided that the player is entitled to 5% interest p.a. on said amount as
requested, as of 15 November 2016.
Player A, Country B / Club C, Country D / Club E, Country B
Page 8 of 10
28.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the player.
29.
Finally, the DRC also rejected the counterclaim lodged by the club, as it has been
established that the player had just cause to terminate the contract.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The Respondent / Counter-Claimant, Club C, 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 72,915, plus 5% interest p.a. as
follows:
a. 5% p.a. as of 1 August 2016 on the amount of USD 10,416;
b. 5% p.a. as of 1 September 2016 on the amount of USD 20,833;
c. 5% p.a. as of 1 October 2016 on the amount of USD 20,833;
d. 5% p.a. as of 1 November 2016 on the amount of USD 20,833.
3.
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 526,161 plus 5%
interest p.a. as from 15 November 2016 until the date of effective payment.
4.
In the event that the amounts plus interest due to the Claimant / CounterRespondent in accordance with the above-mentioned numbers 2. and 3. 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.
5.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent the amount of USD 3,255, w ithin 30 day s as from the date of
notification of this decision.
6.
In the event that the aforementioned amount due to the Claimant / CounterRespondent in accordance with the above-mentioned number 5. is not paid by the
Respondent / Counter-Claimant 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.
7.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
Player A, Country B / Club C, Country D / Club E, Country B
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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.
9.
The counterclaim of the Respondent / Counter-Claimant is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives). The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D / Club E, Country B
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