Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed in Zurich, Switzerland, on 6 June 2018,
by Jon New m an (United S tates of America),
DRC judge,
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 1 August 2017, the player from Country B, Player A (hereinafter: the Claimant),
and the club from Country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract), valid as from the date of the
signature until 31 July 2018.
2.
Art. 5 of the contract established “[the Respondent] accepted [the Claimant] and
agreed to pay an amount of (USD 70,000) for season 2017-2018 and is distributed as
follows, (USD 25,000) at the arrival the international player card and passing medical
examination, (USD 15,000) at the end of the season, (USD 30,000) as a monthly salary
of (USD 3,000 over 10 months at the beginning of every month).”.
3.
Moreover, the contract does not contain a clause regarding the financial
consequences in case of breach of contract by any of the parties.
4.
Allegedly, on 23 October 2017, the Claimant put the Respondent in default of
payment. Furthermore, by means of a letter dated 13 November 2017, which was
received by the Football Federation of Country D on 20 November 2017, the
Claimant sent a default notice to the Respondent, requesting the Football
Federation of Country D to notify the letter to the Respondent since he could not
reach the Respondent. In this respect, the Claimant put the Respondent in default of
payment, requesting to be paid the total amount of USD 34,000, amount that
corresponds to salaries of August 2017, September 2017 and October 2017, as well,
as for the outstanding amount of USD 25,000 corresponding to payment due “at the
arrival” of the International Transfer Certificate (ITC).
5.
On 4 December 2017, the Claimant put the Respondent in default of payment via
the Football Federation of Country D and requested the total amount of USD 37,000,
amount corresponding to the outstanding salaries of August 2017, September 2017,
October 2017 and November 2017, as well the amount of USD 25,000 corresponding
to the payment due “at the arrival” of the ITC, giving the Respondent a deadline of
10 days in order to remedy the breach.
6.
On 15 December 2017, the Claimant unilaterally terminated the contract in writing,
stressing that he had just cause since the Respondent failed to pay him the amounts
previously requested.
7.
On 15 December 2017, the Claimant lodged a claim against the Respondent before
FIFA, requesting the total amount of USD 70,000, amount which was broken down
by the Claimant as follows:
-
USD 25,000 corresponding to the amount due “at the arrival” of the ITC;
USD 15,000 corresponding to salaries for the months of August 2017 to
December 2017, in the amount of USD 3,000 each; and
USD 30,000 as compensation for breach of contract.
Player A, Country B / Club C, Country D
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8.
According to the Claimant, the Respondent did not fulfil its payment obligations
towards him since the beginning of the employment relationship, as it was agreed in
the contract.
9.
Moreover, the Claimant referred to his default letters and deemed having just cause
to terminate the contract “after [the Respondent] did not respect the terms of the
contract”.
10.
On its reply, the Respondent stated “[the Respondent] suffered from missing [the
claimant] caused a decline in league order to third place which is not qualifying for
finals. Consequently, [the Respondent] had financial losses concerning broadcasting,
matches tickets and sponsors.”.
11.
Furthermore, the Respondent held having contacted the legal representative of the
Claimant to solve the matter amicably.
12.
The Claimant on its part, informed that “no amicable agreement was found with
[the Respondent]”.
13.
After being requested by FIFA, the Claimant informed that he did not signed any
employment contract(s) after the termination of the contract.
II.
Cons iderations of the DRC judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC Judge)
analysed whether he was competent to deal with the
matter at hand. In this
respect, he took note that the present matter was submitted to FIFA on 15
December 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules editions 2017 and 2018).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 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 2018)
he is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from Country B
and an club from Country D.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in
the present dispute which value does not exceed CHF 100,000.
4.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players
(editions 2016 and 2018), and considering that the present claim was lodged on 15
Player A, Country B / Club C, Country D
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December 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 DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
6.
First of all, the DRC judge acknowledged that, on 1 August 2017, the Claimant and
the Respondent concluded an employment contract valid as from the date of the
signature until 31 July 2018.
7.
In this regard, the DRC judge recalled art. 5 of the contract, which established: “[the
Respondent] accepted [the Claimant] and agreed to pay an amount of (USD 70,000)
for season 2017-2018 and is distributed as follows, (USD 25,000) at the arrival the
international player card and passing medical examination, (USD 15,000) at the end
of the season, (USD 30,000) as a monthly salary of (USD 3,000 over 10 months at the
beginning of every month).”
8.
In continuation, the DRC judged noted that the Claimant lodged a claim against the
Respondent, maintaining that he had terminated the contract with just cause on 15
December 2017, after having previously having put the Respondent in default, since
the Respondent allegedly failed to paid him USD 34,000, corresponding to
outstanding salaries of August 2017, September 2017, October 2017 and November
2017, plus the outstanding amount corresponding to the payment due at the date
of arrival of the ITC. Consequently, the Claimant requested to be awarded with his
outstanding dues, as well as with the payment of compensation for breach of the
employment contract.
9.
Subsequently, the DRC judge took into consideration that on its reply, the
Respondent argued did not contest the allegations of the Claimant and sustained
that after the Claimant left, it had suffered financial losses and that their intention
was to solve the matter amicably.
10. In this regard, the DRC judge duly observed that the Claimant informed that no
settlement has been reached between the parties.
11. Along this line, the DRC judge concluded that the underlying issue in the present
matter is to determine if the employment contract had been unilaterally terminated
by the Claimant with or without just cause and which party was responsible for the
early termination of the contractual relationship in question and the consequences
thereof.
Player A, Country B / Club C, Country D
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12. At this stage, the DRC Judge recalled that the Claimant held that he did not receive
any payment from the Respondent since the beginning of the contract. On that
basis, the DRC judge confirmed that in accordance with the contract, the
Respondent was obliged to pay to the Claimant at the time the contract was
terminated by the Claimant, i.e. on 15 December 2017, USD 37,000, amount
corresponding to 4 salaries for the months of August 2017 until November 2017, plus
the corresponding amount of USD 25,000, which was payable on the date of the
arrival of the ITC.
13. On account of the aforementioned, the DRC judge established that the Respondent,
without any valid reason, failed to remit to the Claimant, until 15 December 2017,
date on which the Claimant terminated the contract, the total amount of USD
37,000. Consequently, and considering that the Respondent had repeatedly and for
a significant period of time been in breach of its contractual obligations towards the
Claimant, the DRC judge was of the opinion that the foregoing situation
legitimately caused the Claimant’s confidence in the Respondent respecting its
future duties under the contract to be lost and that the Claimant had just cause to
unilaterally terminate the employment contract on 15 December 2017 2012 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.
14. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract in addition to any outstanding payments on
the basis of the relevant employment contract.
15. First of all, the DRC judge concurred that the Respondent must fulfil its obligations
as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”. Consequently,
the DRC judge decided that the Respondent is liable to pay to the Claimant the
remuneration that was outstanding at the time of the termination i.e. USD 37,000,
consisting of the monthly salaries of August to November 2017, USD 3,000 each, plus
the payment due at the date of the arrival of the ITC, USD 25,000.
16. In continuation, 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
DRC judge focussed its attention on the consequences of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the
Claimant is entitled to receive an amount of money from the Respondent as
compensation for the termination of the contract with just cause in addition to any
outstanding payments on the basis of the relevant employment contract.
17. In this context, the DRC judge 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
Player A, Country B / Club C, Country D
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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.
18. In application of the relevant provision, the DRC judge 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 DRC judge
established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
19. Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the DRC judge took into account the remuneration due to the Claimant
in accordance with the employment contract as well as the time remaining on the
same contract, along with the professional situation of the Claimant after the early
termination occurred. In this respect, the DRC judge pointed out that at the time of
the termination of the employment contract on 15 December 2017, the contract
would run until 31 July 2018 in which a total of USD 33,000 as salaries was still to be
paid. Consequently, taking into account the financial terms of the contract, the DRC
judge concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract amounts to
USD 33,000 and that such amount shall serve as the basis for the final determination
of the amount of compensation for breach of contract.
20. In continuation, the DRC judge remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant did not sign a
new professional contract during the relevant period of time and was therefore not
able to mitigate his damages.
21. In view of all of the above, the DRC judge decided that the Respondent must pay the
amount of USD 33,000 to the Claimant as compensation for breach of contract
without just cause, which is considered by the DRC judge to be a reasonable and
justified amount as compensation.
22. As a result, the DRC judge decided that the Respondent is liable to pay to the
Claimant the amount of USD 33,000 as compensation for breach of contract.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is 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
USD 37,000.
Player A, Country B / Club C, Country D
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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
USD 33,000.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned points 2. and 3. are not paid by the Respondent within the stated time
limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned
time limits and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
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 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 DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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