Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 7 June 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Jon New m an (US A), member
Pav el Piv ov arov (Rus s ia), 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 15 July 2016, the player of Country B, Player A (hereinafter: the player or
Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent)
concluded an employment contract (hereinafter: the contract), valid as from 15
July 2016 until 31 May 2019. Further, the player and the club also signed a
document referred to as ‘additional agreement’ (hereinafter: the additional
agreement), which document is, according to article 3, valid ‘exceptionally during
the term of the contract dated 15 July 2016, but enters into force, subject to
receiving the International Transfer Certificate by the Football Federation of
Country D and positive conclusion after a medical examination of football player’.
2.
Based on article 4.2 of the contract, the player was entitled to receive inter alia
the following amounts:
For the 2016/2017 season:
- a monthly salary of USD 4,500;
For the 2017/2018 season:
- a monthly salary of USD 4,500; or
-
‘if the professional football player will participate in more than 70% of the
official games in the first eleven of the main team of the club during the
2016/2017 season, then the monthly salary of the professional football
player for the following season 2017/2018 will be USD 5,000’;
For the 2018/2019 season:
- a monthly salary of USD 4,500; or
-
3.
‘if the professional football player will participate in more than 70% of the
official games in the first eleven of the main team of the club during the
2017/2018 season, then the monthly salary of the professional football
player for the following season 2018/2019 will be USD 6,000, however in
case that the monthly salary of the professional football player in the
season 2017/2018 was USD 5,000 under the terms stipulated above and the
professional football player fails to participate in more than 70% of the
official games in the first eleven of the main team of the club during the
2017/2018 season then the salary of the professional player will remain USD
5,000 for the season 2018/2019’.
In addition, article 2.2 of the contract inter alia holds the following clause: ‘The
club is the main employment place (trainings place, competitions place, and
Player A, Country B / Club C, Country D
2
school of professional craft improvement) for the professional football player,
thus till the contract expiry the latter has no right to enter into employment
relationship or negotiations with other football clubs unless there is an official
written agreement from the club […]’.
4.
What is more, according to article 3.1.3 of the contract, the player has to ‘fulfil his
work duties, to take part in games (matches) of the club’s football teams and in
all events which are related to the training process […]’. In addition, article 3.3.12
of the contract stipulates that the club is obliged ‘to hand the contract and its
addenda to the professional football player’.
5.
Furthermore, article 6.2 of the contract stipulates the following: ‘Alterations to
this contract are possible upon the mutual consent of the parties at any time.
Amendments and addenda to the contract are to be concluded in written, to be
signed by the parties, to be registered in a corresponding league/association or
organization, which holds the competition; such amendments shall be integral
parts to the contract. Unilateral alterations are not allowed’.
6.
According to article 2 of the additional agreement, the player is entitled to
receive inter alia the following amounts:
For the 2016/2017 season:
-
a monthly salary of USD 9,000;
8,000 in the currency of Country D (approximately USD 320 on 15 July 2016)
as monthly rent allowance;
‘2 (two) round air trips during one calendar year on the route Country D –
Country B’;
For the 2017/2018 season:
-
-
a monthly salary of USD 9,000; or
‘if the football player will participate in more than 70% of the official
games in the first eleven of the main team of the club during the
2016/2017 season, then the payment to the player for the following season
2017/2018 will be USD 10,000’;
8,000 in the currency of Country D as monthly rent allowance;
‘2 (two) round air trips during one calendar year on the route Country D –
Country B’;
For the 2018/2019 season:
-
a monthly salary of USD 9,000; or
Player A, Country B / Club C, Country D
3
-
-
7.
‘if the football player will participate in more than 70% of the official
games in the first eleven of the main team of the club during the
2017/2018 season, then the payment to the player for the following season
2018/2019 will be USD 12,000, however in case that the payment to the
football player in the season 2017/2018 was USD 10,000 under the terms
stipulated above and the football player fails to participate in more than
70% of the official games in the first eleven of the main team of the club
during the 2017/2018 season then the payment to the player will remain
USD 10,000 for the season 2018/2019’;
8,000 in the currency of Country D as monthly rent allowance;
‘2 (two) round air trips during one calendar year on the route Country D –
Country B’.
On 30 Mach 2017, the player lodged a claim against the club in front of FIFA,
requesting that the club has to be ordered to pay him the total amount of USD
574,800, specified as follows:
Outstanding remuneration in the amount of USD 63,900, as follows:
- USD 63,000 as 3 monthly payments of USD 9,000 each for the period between
December 2016 and February 2017, as well as 8 monthly salaries of USD 4,500
each, for the period between July 2016 and February 2017;
- USD 900 as 8 outstanding monthly rental allowances in the alleged amount of
USD 112.50 each for the period between July 2016 and February 2017;
Compensation for breach of contract in the amount of USD 510,900, as follows:
- USD 54,000 as residual value of the contract in the 2016/2017 season,
corresponding to 4 monthly payments of USD 9,000 each, as well as 4 additional
payments of USD 4,500 each, for the period between March 2017 and July 2017;
- USD 180,000 as residual value of the contract in the 2017/2018 season,
corresponding to 12 monthly payments of USD 10,000 each, as well as 12
additional payments of USD 5,000 each, for the period between August 2017
and July 2018;
- USD 216,000 as residual value of the contract in the 2018/2019 season,
corresponding to 12 monthly payments of USD 12,000 each, as well as 12
additional payments of USD 6,000 each, for the period between August 2017
and July 2018;
- USD 2,700 as remaining rental allowance for the 2016/2017 season;
Player A, Country B / Club C, Country D
4
- USD 3,600 as remaining rental allowance for the 2017/2018 season;
- USD 3,600 as remaining rental allowance for the 2018/2019 season;
- USD 3,000 as ‘yearly round trips Country D – Country B’;
- USD 7,500 as ‘moral damages’;
- USD 7,500 as ‘legal fees’;
- USD 60,000 as ‘specificity of the sport as a factor for damages’;
- minus the amount of USD 27,000, the player confirms to have received form the
club ‘after sending his letter of termination’.
Moreover, the player requested 5% interest p.a. as of the respective due dates in
relation to the amounts claimed as outstanding remuneration, as well as 5%
interest p.a. as from the date of claim on the amount claimed as compensation for
breach of contract. Finally, the player requested that sporting sanctions will be
imposed on the club.
8.
In his claim, the player explains that as from the beginning of the contract, the
club showed bad faith by not sending him a copy of the contract, as well as by
only paying him a salary of USD 9,000 instead of the agreed amount of USD
13,500. The player states that he discussed this problem with the club, and that
the club promised to send him a copy of the contract and to fulfil its financial
obligations.
9.
Further, the player argues that, after the club had failed to pay him his salaries for
December 2016, January 2017 and February 2017, on 25 February 2017, he put the
club in default for the total amount of USD 27,900, however to no avail. The
player clarifies that the amount of USD 27,900 consists of three outstanding
salaries of USD 9,000 each, as well as an amount of USD 900 as unpaid rental
allowances.
10.
Furthermore, the player explains that on 5 March 2017, after not having received
a reply from the club, neither a payment of the requested amount, he unilaterally
terminated the contract due to the outstanding amount of USD 27,900.
Furthermore, in his termination letter, the player requested the club to pay him
the outstanding remuneration and compensation for breach of contract, and
further points out that in the absence of payment, announced that he would
lodge a claim before FIFA.
Player A, Country B / Club C, Country D
5
11.
Moreover, the player states that both the contract and the additional agreement
have to be taken into account while establishing the consequences of the breach
of contract by the club, as both documents were validly agreed upon between the
parties. In this respect, the player points out that while signing the documents, he
could reasonably expect that both documents were valid and binding.
12.
Subsequently, the player deems that he had a just cause to terminate the
contract, as on 5 March 2017, he had been without income for three months, as
the club failed to pay him the monthly salaries for December 2016, January 2017
and February 2017.
13.
In its reply to the player’s claim, the club submitted a copy of the contract and
argued that the player had terminated the contract without just cause. Further,
the club referred to article 6.2 of the contract and points out that only the
contract was uploaded in TMS, and that there ‘are no changes to the contract’.
What is more, the club states that the player only submitted a copy of the
additional agreement, which document therefore cannot be taken into account.
14.
Moreover, the club explains that the player missed a training session of the U-21
team of the club on 4 March 2017, without a valid reason. The club explains that
the player was recovering from an injury and that he had to train with the U-21
team, but that with missing said training, he breached article 3.1.3. of the
contract. The club further states that the player did not submit evidence that he
indeed sent his default letter dated 25 February 2017 to the club.
15.
Furthermore, the club points out that on 6 March 2017, it found out that the
player had accepted an offer from the club of Country E, Club F, and that he had
already left the Country D on 5 March 2018. The club argues that this behaviour is
a breach of article 2.2 of the contract, as it received the player’s termination letter
only by fax on 6 March 2017, which is after the moment the player decided to sign
for Club F.
16.
In relation to the alleged outstanding payments, the club argues that the player
could not prove that the club was obliged to pay him ‘two salaries at once: USD
4,500 and USD 9,000’. In this respect, the club also refers to the fact that the
player allegedly sent a default letter to the club (which it deems to not have
received), in which he only mentions outstanding salaries in the amount of USD
9,000. The club concludes that it only had to pay a monthly salary of USD 4,500 to
the player, and that it addition, it paid bonuses to the player, leading to a total
monthly salary of ‘approximately USD 9,000’.
17.
Moreover, the club explains that on 25 February 2017, the salary for the month of
February 2017 had not yet fallen due, and that thus, on the day the player alleged
to have sent his default notice, only the salary for December 2016 and January
Player A, Country B / Club C, Country D
6
2017 could be claimed by him. In this respect, the club further holds that it made
the following payments to the player:
on 25 November 2016, an amount of 141,550.28 in the currency of Country D
(approximately USD 5,430 on 25 November 2016), corresponding to the salary
for the month of October 2016;
on 25 January 2017, an amount of 225,055.93 in the currency of Country D
(approximately USD 8,216 on 25 January 2017), corresponding to the salary for
the month of November 2016;
on 9 March 2017, an amount of 591,606.21 in the currency of Country D,
corresponding to the salaries for the months of December 2016, January 2017
and February 2017.
In addition, the club states that at the beginning of March 2017, its president,
President G, ‘gave USD 1,000’ to the player as rental allowances for the upcoming
three months.
18.
In conclusion, the club holds that the player breached the contract without just
cause in the protected period, however explicitly points out that it ‘has no
intentions to lodge any claims of material character against the Claimant’ and
therefore, asking for the rejection of the player’s claim.
19.
In his replica, the player argues that both the contract and the additional
agreement are legally binding documents, and that the fact that he only
submitted a copy of the additional agreement, can be of no influence on the
question whether or not he was entitled to terminate the contract with just cause.
20.
What is more, the player submitted a document referred to as ’appendix 4 –
model employer’s statement’, in which the club’s president, President G, declares
that the player’s yearly income is EUR 119,768.40. Furthermore, the player
submitted an undated declaration, in which President G confirmed that the
player’s gross salary in the period between 15 July and 31 December 2016 is EUR
59,884.32 and that he also receives ‘money for renting apartment’ in the amount
of EUR 2,056.14. The player states that based on these documents, it can be
established that ‘during the first period, the salary was paid in accordance with
the additional agreement and NOT following the employment contract’.
21.
In conclusion, the player holds that ‘both sums (employment agreement +
additional agreement) should be added and are in this phase claimable by the
player’. According to the player, this also follows from the contents of article
3.3.12 and article 3 of the additional agreement.
Player A, Country B / Club C, Country D
7
22.
Additionally, the player explains that both the contract and the additional
agreement contain the essentialia negotii and are to be considered valid and
legally binding documents.
23.
With respect to the default notice dated 25 February 2017, the player explains
that said letter was sent by e-mail to the e-mail addresses XXX, YYY and ZZZ, as
well as by fax, on 26 February 2017.
24.
In relation to the outstanding salaries, the player argues that the club did not
prove that the amounts it alleged to have paid in the period between 25
November 2016 and 9 March 2017, were effectively transferred to his bank
account. Further, if this would have been the case, the player argues that he only
received the salaries for December 2016, January 2017 and February 2017 on 9
March 2017, i.e. 4 days after he unilaterally terminated the contract. As such, the
player deems to have had a just cause to terminate the contract on 5 March 2017.
25.
Finally, the player holds that only after the termination of the contract on 5
March 2017, he was informed by his agent about an opportunity to play in
Country E for Club F, and that only on 15 March 2017, he signed a new contract
with Club F.
26.
In its duplica, the club reiterates its request to reject the player’s claim and argues
that the e-mail address ZZZ does not belong to the club, as the correct e-mail
addresses are QQQ and TTT. These addresses are according to the club also
mentioned in the letters of the salary specifications that the club had sent to the
player in the period between July and December 2016. Further, the club argues
that the e-mail addresses XXX, YYY belong to employees of the club, who are not
authorized to represent the club in matters like contractual obligations.
27.
As a result of the foregoing, the club deems that the player never duly informed
the club about the alleged outstanding payments. What is more, according to the
club, the player could not clarify his absence on a training session on 4 March
2017, neither that he stayed in Country D until 6 March 2017. Based on these
circumstances, the club deems that the player had no just cause to terminate the
contract.
28.
In relation to the alleged outstanding salaries, the club points out that the player
implicitly confirmed that he received the salaries for October and November 2016.
Furthermore, the club argues that – based on the established mode of payment it only had the obligation to pay the salary for December 2016 at the latest on 1
February 2017, and that the salary for January 2017 had to be paid at the latest
on 1 March 2017. Therefore, on 4 March 2017, only two salaries (for December
2016 and January 2017) were outstanding, which circumstance was, according to
the club, caused by the lack of a shirt sponsor.
Player A, Country B / Club C, Country D
8
29.
In addition, the club again points out that the player already on 5 March 2017
accepted the offer of Club F and that this is contrary to the contents of the
contract.
30.
Finally, the player informed FIFA that on 10 March 2017, he signed an
employment contract with the club of Country E, Club F, valid as from 10 March
2017 until 10 December 2017 and provided a copy of said contract. Based on this
document, the player is entitled to receive a total amount of 1,138,000,000 in the
currency of Country E, ‘or equal to USD 85,000’.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 30 March 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2018) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player of Country B and a club of Country D.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 31 May 2018 by means of which the
parties were informed of the composition of the Chamber, the member, Member
H, and the member, Member L, refrained from participating in the deliberations
in the case at hand, due to the fact that the member, Member H has the same
nationality as the player and that, in order to comply with the prerequisite of
equal representation of club and player representatives, also the member,
Member L, refrained from participating and thus the Dispute Resolution Chamber
adjudicated the case in presence of three members in accordance with art. 24 par.
2 of the Regulations.
4.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2016 and 2018), and considering that the present claim was lodged on 30
Player A, Country B / Club C, Country D
9
March 2017, the 2016 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
5.
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.
6.
In this respect, the Chamber recalled that, according to the player, he has signed
an employment contract with the club, valid as from 15 July 2016 until 31 May
2019, on the basis of which he was entitled to receive a monthly salary of USD
4,500, as well as that said monthly salary would be raised to USD 5,000 in the
2017/2018 season, in case the player would play in 70% of the club’s official
matches in the 2016/2017 season. Furthermore, the contract stipulates that in the
2018/2019 season, the player’s monthly salary would be USD 6,000, if the player
would play in both the 2016/2017 season and the 2017/2018 season in 70% of the
club’s official matches, however that the monthly salary for the 2018/2019 would
remain USD 5,000, if the player would have only played in 70% of the club’s
official matches in the 2017/2018 season.
7.
In continuation, the Chamber noted that the player also alleged that he signed an
additional agreement with the club, valid ‘exceptionally during the term of the
contract dated 15 July 2016’, on the basis of which the player was entitled to
receive a monthly salary of USD 9,000. Further, the additional agreement
contained a similar salary raise clause as the contract, stipulating that said
monthly salary would be raised to USD 10,000 in the 2017/2018 season, in case the
player would play in 70% of the club’s official matches in the 2016/2017 season.
Furthermore, the contract stipulates that in the 2018/2019 season, the player’s
monthly salary would be USD 12,000, if the player would play in both the
2016/2017 season and the 2017/2018 season in 70% of the club’s official matches,
however that the monthly salary for the 2018/2019 would remain USD 10,000, if
the player would have only played in 70% of the club’s official matches in the
2017/2018 season.
8.
On account of the above, the player deems that during the period he was under
contract with the club, he was entitled to a total salary of USD 13,500, consisting
of a monthly salary of USD 4,500 as per the contract, and an additional monthly
salary of USD 9,000 as per the additional agreement. What is more, the player
holds that he could only submit a signed copy of the additional agreement, as he
never received a signed copy of the contract from the club.
Player A, Country B / Club C, Country D
10
9.
In continuation, the members of the Chamber noted that the player lodged a
claim against the club, maintaining that he had terminated the employment
contract with just cause on 5 March 2017, after having previously put the club in
default on 25 February 2017 for the outstanding payments. The player held that
the club allegedly failed to pay him the remuneration he was entitled to, and that
on 5 March 2017, his remuneration due under the contract in the period between
July 2016 and February 2017, as well as the remuneration due under the
additional agreement in the period between December 2016 and February 2017,
remained outstanding. Consequently, the player requested to be awarded his
outstanding dues as well as the payment of compensation for breach of the
employment contract.
10.
Subsequently, the DRC observed that the club contested the player’s allegations
and first of all argued that only the contract was validly concluded between the
parties and therefore applicable, and submitted a copy of this document. In
relation to the additional agreement, the club holds that this document is not
applicable, as the player could only submit a copy of it. Further, the club argues
that the player missed a training session with its U-21 team and that on 5 March
2017, he already left the Country D, accepting an offer from the club of Country E,
Club F, on 6 March 2017, and that such behavior constituted a breach of contract
by the player. What is more, the club explains that the player did not correctly put
the club in default and denied that there were any outstanding payments, as on 9
March 2017, it paid all outstanding salaries to the player. In conclusion, the club
asks for the rejection of all the player’s claims.
11.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute was to establish which documents were validly
concluded between the parties and applicable to the matter at hand, as well as to
determine whether one of these agreements – or both of them – had been
prematurely terminated by one of the parties with or without just cause, and
subsequently, to determine the consequences of said early termination of the
contractual relationship.
12.
First of all, in relation to the discussion arisen between the parties about the
validity of the contract and the additional agreement, the Chamber wished to
emphasise that in order for a contract to be considered as valid and binding, it
must at least contain the names of the parties, the object, the duration of the
employment relationship, and the signature of the parties.
13.
Turning its attention to the contents of the contract and the additional
agreement, the Chamber noted that both documents were duly signed by all
parties, and that in addition, inter alia, the name of the parties, the object, the
duration of the contractual relationship, were included said documents concluded
between the parties on 15 July 2016.
Player A, Country B / Club C, Country D
11
14.
In view of the aforementioned, the Chamber came to the conclusion that, in
principle, both the contract as well as the additional agreement signed on 15 July
2016 contained all the essentialia negotii, in order to be considered valid and
binding employment contracts. Notwithstanding the foregoing, the Chamber
declared that it still needed to analyse whether these two contracts were in fact
valid simultaneously, i.e. complementary to each other as alleged by the player, or
whether one of them prevailed over the other. In this regard, the Chamber
referred to the content of art. 12 par. 3 of the Procedural Rules and established
that the player bore the burden of proving that both contracts were in fact valid
simultaneously.
15.
In this respect, the Chamber first noted that the additional agreement does not
hold any clause mentioning that the remuneration therein established was to be
paid in addition to the remuneration stipulated in the contract. In fact, the
Chamber noted that in accordance with art. 3 of the additional agreement, the
latter was valid “exceptionally during the term of the contract dated 15 July
2016”, confirming that the additional agreement was in fact to be considered as
the one valid document governing the employment relationship between the
player and the club, during the validity of the first employment contract.
16.
In addition to that, the members of the Chamber noted that from the very
beginning of the contractual relationship between the parties, more specifically in
the period between 15 July and 31 December 2016, it appears that the player was
paid the monthly amount of approximately EUR 10,000 gross or EUR 8,000 net,
corresponding to USD 9,000, which is his salary as stipulated in the additional
agreement. The aforementioned in confirmed by a document named “appendix
4” and in a declaration of the club, both submitted by the player himself, in which
his remuneration corresponds to the one stipulated in the additional agreement.
Based on these circumstances, the members of the Chamber were of the opinion
that for the analysis of this case in relation to possible outstanding remuneration
and breach of contract, the additional agreement signed on 15 July 2016 is the
document to be considered at the basis of the employment relationship between
the player and the club.
17.
Having concluded the above, the Chamber went on to analyse article 2 of the
additional agreement in relation to the salary the player was entitled to during
the validity of the employment relationship, which reads inter alia as follows: ‘if
the professional football player will participate in more than 70% of the official
games in the first eleven of the main team of the club during the 2016/2017
season, then the monthly salary of the professional football player for the
following season 2017/2018 will be USD 5,000’ and ‘if the professional football
player will participate in more than 70% of the official games in the first eleven
of the main team of the club during the 2017/2018 season, then the monthly
salary of the professional football player for the following season 2018/2019 will
be USD 6,000, however in case that the monthly salary of the professional football
Player A, Country B / Club C, Country D
12
player in the season 2017/2018 was USD 5,000 under the terms stipulated above
and the professional football player fails to participate in more than 70% of the
official games in the first eleven of the main team of the club during the
2017/2018 season then the salary of the professional player will remain USD 5,000
for the season 2018/2019’.
18.
In this respect, the members of the Chamber wished to point out that the decision
of lining-up of a player in a match is normally left fully to the discretion of the
club. As such, the player had no influence on the question of whether or not he
would be fielded in a specific number of matches in the relevant season,
consequently leaving it entirely up to the club to decide on the amount of
remuneration he would receive for the upcoming season.
19.
In this context, the members of the Chamber highlighted that, in general,
potestative clauses, i.e. clauses that contain obligations which fulfilment are
conditional upon an event that one party entirely controls, can in general not be
applied, since they limit the rights of the other contractual party in an excessive
manner and lead to an unjustified disadvantage of the latter towards the other.
20.
Along those lines, the members of the Chamber agreed that the condition
stipulated in article 2 that the player needed to play in 70% of the club’s official
matches, cannot be taken into consideration, due to its potestative nature.
Indeed, as previously mentioned, the club totally controlled the fielding of the
player and therefore, only the club was in a position to decide what the actual
salary of the player would be in a specific sporting season.
21.
Having taken into account the previous considerations, the members of the
Chamber came to the conclusion that, by means of the additional agreement, the
player and the club agreed that the player was entitled to a monthly salary of
USD 9,000 in the 2016/2017 season, a monthly salary of USD 10,000 in the
2017/2018 season and a monthly salary of USD 12,000 in the 2018/2019 season.
22.
Turning its attention to the player’s allegations that the salary payments for the
months of December 2016, January 2017 and February 2017 due under the
additional agreement remained outstanding, the members of the Chamber noted
that the club contested said circumstance by arguing that a) the salary for
February 2017 had not yet fallen due on the day the player sent his default letter,
i.e. 25 February 2017 and b) by explaining that on 9 March 2017, it made the
payment of the salaries of December 2016, January 2017 and February 2017, in
the total amount of 591,606.21 in the currency of Country D (corresponding to
approximately 3 monthly salaries).
23.
The Chamber was eager to emphasize that from the information on file and the
contents of the contract, it could be noted that the parties did not agree upon a
Player A, Country B / Club C, Country D
13
specific due date for payment of the salaries. As a result, it could be established
that the salaries were to be paid at the latest on the last day of the respective
month, i.e. the salary for February 2017 had to be paid the latest on 28 February
2017. Although on 25 February 2017, when the player put the club in default and
asked for the payment of his outstanding remuneration, the salary for February
2017 had not yet fallen due, on 5 March 2017, the day the player unilaterally
terminated the contract, three monthly salaries related the months of December
2016, January 2017 and February 2017, had fallen due and remained outstanding.
24.
Further, the members of the Chamber referred to the fact that the club confirmed
to have paid the aforementioned three outstanding salaries only on 9 March
2017, which circumstance is supported by documentary evidence provided by the
club and not contested by the player. As a result, and because the payment of the
salaries only took place after the termination of the contract, the Chamber
established that this circumstance was of no influence on the question whether
the player had terminated the contract with or without just cause on 5 March
2017.
25.
Finally, while analysing the other club’s arguments, that the player did not
correctly put the club in default and was apparently absent for one training
session on 4 March 2017 and that he left the Country D in order to sign a contract
in Country E, the Chamber first of all noted that the club confirmed that the
default letter dated 25 February 2017 was received by some of its own employees,
as a result of which the allegation of the club that it was not aware of said
default letter cannot be upheld.
26.
Moreover, the Chamber observed that the club did not submit any documentary
evidence, which could prove that the player was indeed absent on 4 March 2017.
Notwithstanding, the Chamber was of the firm opinion that even if the player
would have been absent, in any case, said absence could not justify the club’s
conclusion that the player terminated the contract without just cause on 5 March
2017, by being allegedly absent for one training session, while being owed at
least three months of outstanding remuneration.
27.
What is more, the club’s allegations that the player already left the Country D on
5 March 2017 and that he accepted already on 6 March 2017 a proposal from the
club of Country E, Club F, were not backed by any corroborating documentary
evidence. Moreover, the player explicitly contested said circumstances, as he
argued that only after the termination of the contract on 5 March 2017, he was
informed about the possibility to play in Country E by his agent, and that only on
10 March 2017, he signed a contract with Club F. In view of the foregoing, the
Chamber deemed that also this argumentation of the club had to be rejected.
28.
In conclusion, in accordance with the additional agreement concluded between
the parties, and taking into account that the player stated that the club failed to
Player A, Country B / Club C, Country D
14
pay him his monthly salaries between December 2016 and February 2017, as well
as the rental allowances in the alleged amount of USD 900, the Chamber noted
that the club could not prove that it paid these amounts before the unilateral
termination of the contract by the player, i.e. on 5 March 2017. As a result, the
members of the Chamber established that on 5 March 2017, the monthly salaries
for the months December 2016, January 2017 and February 2017 in the amount of
USD 9,000 each, as well as the three payments of rental allowances for these
months, remained outstanding.
29.
On account of the aforementioned, in particular in view of the considerations
under point II./22. and II./27. above, the Chamber established that the club,
without any valid reason, failed to remit to the player, until 5 March 2017, the
date on which the player terminated the contract, three monthly salaries for
December 2016, January and February 2017, as well as the monthly rental
allowances the player was entitled to in said period. 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, the Chamber decided
that the player had just cause to unilaterally terminate the employment contract
on 5 March 2017. As a result, the club is to be held liable for the early termination
of the employment contact with just cause by the player.
30.
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.
31.
First of all, the members of the Chamber concurred that the club must fulfil its
obligations as per the employment contract in accordance with the general legal
principle of “pacta sunt servanda”. In this respect, the Chamber wished to point
out that the club provided documentary evidence of the payment of the player’s
salaries for the months of December 2016, January 2017 and February 2017, which
were outstanding at the date of termination, i.e. 5 March 2017, shortly after said
termination, that is, on 9 March 2017. Such evidence was not contested by the
player. Consequently, the Chamber decided that the club is liable to pay to the
player the amounts that were outstanding at the time of the termination and are
still not paid by the club to the player, i.e. the unpaid rental allowances in the
total of approximately USD 900.
32.
Bearing in mind the foregoing, as well as the claim of the player and the
agreement concluded between the parties, the Chamber wished to outline that,
in accordance with its well-established jurisprudence in this respect, any amount
of remuneration in relation to rental allowances, payable to the player would be
due in currency of Country D – and not in USD as per the player’s claim –, as the
parties had agreed in the contract upon the payment of the rental allowances in
several instalments in currency of Country D. As a result, the Chamber established
that the player is entitled to payment of outstanding rental allowances in the
Player A, Country B / Club C, Country D
15
amount of 24,100 in the currency of Country D (corresponding to USD 900, for
approximately 3 months).
33.
Furthermore, considering the player’s claim for interest and also taking into
account the Chamber’s longstanding jurisprudence, the Chamber ruled that the
club must pay 5% interest p.a. on the amount of 24,100 in the currency of
Country D until the date of effective payment as follows:
a. 5% p.a. as of 2 December 2016 on the amount of 8,033,34 in the currency of
Country D ;
b. 5% p.a. as of 2 January 2017 on the amount of 8,033.33 in the currency of
Country D;
c. 5% p.a. as of 2 February 2017 on the amount of 8,033.33 in the currency of
Country D.
34.
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.
35.
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,
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.
36.
In application of the relevant provision, the Chamber held that first of all, it 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.
37.
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
Player A, Country B / Club C, Country D
16
to be taken into consideration when calculating the amount of compensation
payable.
38.
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 31 May 2019. In this respect, the Chamber
took into account that the player would have been entitled to a monthly salary of
USD 9,000 in the 2016/2017 season, a monthly salary of USD 10,000 in the
2017/2018 season and a monthly salary of USD 12,000 in the 2018/2019 season, in
view of the considerations under points II./17. and II./21. above, as well as to a
monthly rent allowance of 8,000 in the currency of Country D, corresponding to
approximately USD 320. Consequently, the Chamber concluded that the amount
of USD 296,640 serves as the basis for the determination of the amount of
compensation for breach of contract.
39.
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.
40.
Indeed, on 10 March 2017, the player found employment with the club of Country
E, Club F. In accordance with the pertinent employment contract, which has been
made available by the player, valid as from 10 March 2017 until 10 December
2017, the player was entitled to receive a monthly salary of 1,138,000,000 in the
currency of Country E, corresponding to USD 85,000. Consequently, the Chamber
established that the value of the new employment contract concluded between
the player and Club F, amounting to USD 85,000, should be deducted from the
compensation for breach of contract the player was entitled to.
41.
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 211,640 to the player, which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present
matter.
42.
Furthermore, in accordance with its established jurisprudence and taking into
account the request of the player, the Chamber further decided that interest at
the rate of 5% p.a. was to be applied over the amount of USD 211,640 as from 30
March 2017, i.e. the date of the claim.
43.
What is more, as regards the player’s claim pertaining to legal fees, additional
indemnity in the amount of USD 60,000 and moral damages, which was not at all
Player A, Country B / Club C, Country D
17
specified by the player, the Chamber concluded that such claims are to be rejected
due to a lack of legal basis.
44.
Finally, as regards the player’s claim pertaining to air tickets, the Chamber decided
that - on the basis of the information provided by FIFA Travel and referring to the
relevant terms of the contract - the club must pay to the player the amount of
CHF 401 for an economy class air ticket from the Country D to the Country B.
45.
Additionally, taking into account the Chamber’s longstanding jurisprudence, the
Chamber decided that the club has to pay 5% interest p.a. on the amount of CHF
401 as from 30 March 2017, the date the claim was lodged by the player.
46.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
24,100 in the currency of Country D, plus 5% interest p.a. until the date of effective
payment as follows:
a.
5% p.a. as of 2 December 2016 on the amount of 8,033,34 in the
currency of Country D;
b.
5% p.a. as of 2 January 2017 on the amount of 8,033.33 in the
currency of Country D;
c.
5% p.a. as of 2 February 2017 on the amount of 8,033.33 in the
currency of Country D.
3. The Respondent has to pay to the Claimant w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amounts of
USD 211,640 and of CHF 401, plus 5% interest p.a. as of 30 March 2017 until the
date of effective payment.
4. In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
Player A, Country B / Club C, Country D
18
5. Any further claim lodged by the Claimant is rejected.
6. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
19