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
Roy Verm eer (the Netherlands ), member
Jon New m an (US A), member
Wouter Lam brecht (Belgium ), 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
arisen between the parties
I.
Facts of the cas e
1.
On 31 August 2016, the Player of Country B, Player A (hereinafter: Claimant),
and the Club of Country D, Club C (hereinafter: Respondent), signed an
employment contract valid as from the date of signature until 31 May 2019.
2.
According to art. 3 of the employment contract, the Claimant was entitled to
receive from the Respondent, inter alia:
a.
a total amount of EUR 165,000 for the season 2016/2017, consisting of
EUR 65,000 as “advance payment” payable on the date of signature of
the contract and EUR 100,000 in ten monthly salaries of EUR 10,000
each, payable the 30th day of each month as from September 2016 until
June 2017, with December 2016 being payable on 1 January 2017 and
February 2017 on 28 February 2017;
b.
a total amount of EUR 160,000 for the season 2017/2018;
c.
a total amount of EUR 170,000 for the season 2018/2019;
d.
“Minimum wage” as net monthly wage.
3.
According to the same provision, the Respondent undertook, amongst other
obligations, to “pay the rent of the apartment of the [Claimant]”.
4.
According to clause 2) of the ‘Special Provisions’ of the employment contract,
“If the [Respondent] pay and of the amounts referred in Employment
contract for more than 90 days. (i.e salaries, benefits, bonuses and any other
monetary obligation) This contract may be terminated by the [Claimant] for
just cause. But firstly the [Claimant] has to sent a written notification to the
[Respondent] and the [Respondent] doesn’t pay the due amount within 30
days after receiving this Nonification”.
5.
By letter dated 1 December 2016, the Claimant put the Respondent in default
of payment of EUR 30,000, consisting of the monthly salaries of September,
October and November 2016, asking to be paid within 10 days. With the
same correspondence, the Claimant informed the Respondent that it had not
paid the house rent in accordance with the contract and precautionary
indicated that clause 2) of its ‘Special Provisions’ should be deemed invalid.
6.
In reply to said correspondence, the Respondent acknowledged the existence
of a debt towards the Claimant but requested to be given a 30 days’ notice in
order to comply with its contractual obligations.
7.
By a further letter addressed to the Respondent on 21 February 2017, the
Claimant reiterated his request to be paid EUR 30,000, this time referring to
the monthly salaries of November 2016, December 2016 and January 2017
asking to be paid within 10 days. With the same correspondence, the
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Claimant reiterated his position regarding the validity of clause 2) of the
‘Special Provisions’ of the employment contract and informed the
Respondent that it had not paid the house rent accordingly.
8.
By a subsequent letter dated 12 May 2017, the Claimant put the Respondent
in default of the payment of EUR 50,000, consisting of the monthly salaries of
December 2016, January, February, March and April 2017, asking to be paid
within 7 days. With said correspondence, the Claimant reiterated once again
his position regarding clause 2) of the ‘Special Provisions’ of the employment
contract and the allegedly unpaid house rent.
9.
By letter dated 24 May 2017, the Claimant unilaterally terminated the
contract, claiming that the Respondent “did not fulfil its contractual
obligations for about 5-6 months”.
10.
On 30 June 2017, the Claimant lodged a claim against the Respondent in
front of FIFA maintaining that he had just cause to terminate the contract
and requesting to be awarded the total amount of EUR 750,000 and 13,343,
consisting of:
a. EUR 50,000, corresponding to outstanding salaries as from December
2016 until April 2017, plus 5% interest p.a. as of, respectively, 1 January
2017, 30 January 2017, 28 February 2017, 30 March 2017 and 30 April
2017;
b. 13,343 as “minimum wage” as from September 2016 until 24 May 2017,
plus 5% interest p.a. as of 24 May 2017;
c. EUR 350,000 as compensation for breach of contract, corresponding to
its residual value (EUR 20,000 for the season 2016/2017, EUR 160,000 for
the season 2017/2018 and EUR 170,000 for the season 2018/2019), plus
5% interest p.a. as of the date of the claim;
d. EUR 350,000 “with its interests” as “additional compensation”,
corresponding to the player’s estimated “sporting and financial
damages”.
11.
With his claim, the Claimant further asked the reimbursement of the legal
costs.
12.
More in particular, the Claimant argued that, since the beginning of the
employment relationship, the Respondent had never fully complied with its
obligations related to the payment of salaries and fringe benefits,
notwithstanding the various default notices he sent. Therefore, the Claimant
held that he had just cause to terminate the contract on 24 May 2017, since,
by then, 5 monthly salaries were outstanding.
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13.
Furthermore, the Claimant maintained that, pursuant to the employment
contract, he was also entitled to the minimum wage in accordance with
Legislation of Country D, which he quantified in the total amount of 13,343.
14.
Moreover, the Claimant explained that, as a consequence of the
Respondent’s stance, he suffered additional financial and moral damages, for
which he deemed he had to be compensated.
15.
Despite having been invited by FIFA to provide its comments on the present
matter, the Respondent did not answer to the claim.
16.
The Claimant informed FIFA that, on 10 August 2017, he signed an
employment contract with the Club of Country B, Club E, valid as from 11
August 2017 until 30 June 2018, which entitled him to a monthly salary of
13,500, plus 15,750 payable on 1 November 2017 and 15,750 payable on 1
April 2018.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC
or Chamber) analysed whether it was competent to deal with the case at
hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 30 June 2017. Consequently, the DRC concluded that
the 2017 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: Procedural
Rules) is 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.
Furthermore, the Chamber analysed which regulations should be applicable
as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2018), and considering that the present claim was
lodged on 30 June 2017, the 2016 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned
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facts as well as the arguments and the documentation submitted by the
parties. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
evidence, which it considered pertinent for the assessment of the matter at
hand.
5.
Having said that, the members of the Chamber acknowledged that, on 31
August 2016, the Claimant and the Respondent concluded an employment
contract valid as from the date of signature until 31 May 2019, pursuant to
which the Claimant was entitled to a total amount of EUR 165,000 for the
season 2016/2017, a total amount of EUR 160,000 for the season 2017/2018
and a total amount of EUR 170,000 for the season 2018/2019. The members
of the Chamber noted, in particular, that it had been agreed upon between
the parties that, for the season 2016/2017, the Claimant was entitled to be
paid as follows: a) EUR 65,000 as “advance payment” payable on the date of
signature of the contract and b) EUR 100,000 in ten monthly salaries of EUR
10,000 each, payable the 30th day of each month as from September 2016
until June 2017 with December 2016 and February 2107 having 1 January
2017 and 28 February 2017, respectively, as due dates.
6.
The DRC subsequently acknowledged that, according to the Claimant, he had
just cause to unilaterally terminate the employment contract on 24 May 2017,
due to the fact that, by then, the Respondent had failed to remit him 5
monthly salaries. The members of the Chamber equally took into account
that the Claimant had put the Respondent in default of payment of his
outstanding salaries on 3 occasions prior to terminating the contract, each
time partially referring to different monthly entitlements, as the Respondent
apparently had made partial payments to the Claimant in the meantime.
Moreover, the DRC took note that in the last notice of default, dated 12 May
2017, the Claimant put the Respondent in default of payment of EUR 50,000,
consisting of the monthly salaries of December 2016, January, February,
March and April 2017.
7.
Furthermore, the Chamber took note that the Respondent, for its part, failed
to present its response to the claim of the Claimant, despite having been
invited to do so. In this way, the Chamber deemed, the Respondent
renounced its right to defence and accepted the allegations of the Claimant.
8.
Moreover, and as a consequence of the aforementioned consideration, the
Chamber established that in accordance with art. 9 par. 3 of the Procedural
Rules it shall take a decision upon the basis of the documents already on file.
9.
On account of the above, the Chamber highlighted that the underlying issue
in this dispute was to determine as to whether the employment contract had
been terminated by the Claimant with just cause and, subsequently, to
determine the consequences thereof.
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10.
In this context, first and foremost, the Chamber agreed that since the claim of
the Claimant has remained uncontested, there is no need to enter into an
analysis as to whether clause 2) of the ‘Special Provisions’ of the employment
contract in the matter at stake can be considered acceptable or applicable.
11.
Having said that, the members of the DRC observed that the Respondent had
been put in default of payment of his salaries by the Claimant initially on 1
December 2016, once again on 21 February 2017 and one last time on 12 May
2017. The Chamber took into account that in its reply to the Claimant’s first
default notice the Respondent had merely asked to be given another 30 days
to pay its debt, but that the Respondent had not replied in writing to the
Claimant’s second and third default notices and thus had not denied the
existence of the debt towards the Claimant as specified by the latter in said
default notices. In this respect, the Chamber also took into account the fact
that, as months went by, the Respondent appears to have only partially
remedied its fault, namely by paying one outstanding salary each time.
Furthermore, the Chamber stressed that when the Claimant terminated the
employment contract on 24 May 2017, he had not received 5 consecutive
salary payments as of December 2016, which allegation remained
uncontested.
12.
On account of the above, the Chamber concluded that the Respondent had
blatantly neglected its contractual obligations towards the Claimant by
failing to pay the latter 5 consecutive monthly salaries.
13.
With the foregoing in mind, the Chamber considered that the Respondent
was found to be in breach of the contract and that, in line with the
Chamber’s longstanding and well-established jurisprudence the breach was
of such seriousness that the Claimant had just cause to unilaterally terminate
the employment contract with the Respondent on 24 May 2017.
14.
On account of the above-mentioned considerations, the Chamber decided
that the Respondent is to be held liable for the early termination of the
employment contract with just cause by the Claimant.
15.
In continuation, prior to establishing the consequences of the termination of
the employment contract with just cause by the Claimant, the Chamber
decided that the Respondent must fulfil its obligations as per the
employment contract in accordance with the general legal principle of “pacta
sunt servanda”. Consequently, the Chamber decided that the Respondent is
liable to pay to the Claimant 5 monthly salaries, as from December 2016 until
April 2017, in the amount of EUR 50,000.
16.
In addition, taking into consideration the Claimant’s claim, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. as of the day
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following the day on which each instalment fell due in accordance with the
employment contract until the date of effective payment.
17.
As regards the payment of 13,343 requested by the Claimant in relation to a
“minimum wage” for the months as from September 2016 until 24 May 2017,
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, the DRC concluded that the Claimant did not provide
sufficient evidence corroborating his entitlement to said additional
remuneration. Indeed, the employment contract does not indicate any
monetary value in respect of the Minimum Wage in Country D. Furthermore,
the document submitted by the Claimant, i.e. a copy of the alleged
ministerial web page from which he calculated the amount of the minimum
wage in Country D in relation to undefined collective labour agreements for
the relevant period, does not prove any specific entitlement of the Claimant
to a “minimum wage”.
18.
In continuation and having established that the Respondent is to be held
liable for the early termination of the employment contract with just cause
by the Claimant, the Chamber decided that, taking into consideration art.17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Respondent compensation for breach of contract in addition to the
aforementioned outstanding remuneration.
19.
In this context, the Chamber outlined that in accordance with said provision
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.
20.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
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 contract at the basis of the matter at stake.
21.
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. Bearing in mind the foregoing, the Chamber proceeded with the
calculation of the monies payable to the Claimant under the terms of the
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employment contract as from its termination and concluded that the
Claimant would have received EUR 350,000 as remuneration had the
employment contract been executed until its regular expiry date, i.e. 31 May
2019.
22.
In continuation the Chamber assessed as to whether the Claimant has signed
an employment contract with another club during the relevant period of
time, by means of which he would have been able to reduce his loss of
income. According to the constant practice of DRC, such remuneration under
a new employment contract(s) 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.
23.
The Chamber recalled that, on 10 August 2017, the Claimant signed an
employment contract with the Club of Country B, Club E, valid as from 11
August 2017 until 30 June 2018, which entitled him to a monthly salary of
13,500, plus 15,750 payable on 1 November 2017 and 15,750 payable on 1
April 2018.
24.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the
Respondent must pay the amount of EUR 310,500 to the Claimant as
compensation for breach of contract.
25.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber
decided that the Respondent must pay to the Claimant interest of 5% p.a. on
the amount of compensation as of the date on which the claim was lodged,
i.e. 30 June 2017, until the date of effective payment.
26.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for sporting and financial damages in the amount of EUR
350,000. In this regard, the Chamber deemed it appropriate to point out that
the request for said compensation presented by the Claimant had no legal or
regulatory basis and that no corroborating evidence had been submitted that
demonstrated or quantified the damage suffered.
27.
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 longstanding and wellestablished jurisprudence, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the Chamber decided to reject the
Claimant’s request relating to legal expenses.
28.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 50,000, plus 5% interest p.a. as follows:
a. 5% p.a. on EUR 10,000 as of 2 January 2017 until the date of effective
payment;
b. 5% p.a. on EUR 10,000 as of 31 January 2017 until the date of effective
payment;
c. 5% p.a. on EUR 10,000 as of 1 March 2017 until the date of effective
payment;
d. 5% p.a. on EUR 10,000 as of 31 March 2017 until the date of effective
payment;
e. 5% p.a. on EUR 10,000 as of 1 May 2017 until the date of effective
payment.
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
amount of EUR 310,500, plus 5% interest p.a. as from 30 June 2017 until the
date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent 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.
Any further claim lodged by the Claimant is rejected.
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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 (CAS)
Avenue de Beaumont 2
CH-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
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