Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 2 July 2015,
in the following composition:
Geoff Thom ps on (England), Chairman
Theodore Giannikos (Greece), member
Joaquim Ev angalis ta (Portugal), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On an unspecified date, the Player of Country B, Player A (hereinafter: player or
Claimant) and the Club of Country D, Club C (hereinafter: club or Respondent)
signed an employment contract valid as from August 2014 until 31 May 2016
(hereinafter: contract).
2.
According to the contract, the player was entitled to receive, inter alia, during the
2014/2015 season:
a lump sum of EUR 30,000, payable on 30 August 2014;
10 monthly instalments of EUR 15,000 net, starting as from 31 August 2014;
a bonus of 100,000 XXX if the club promotes to the League F of Country D
and a bonus of 50,000 XXX if the club takes part in the play-offs at the end of
the 2014/2015 season.
3.
Further, the contract stipulates that the player is inter alia entitled to receive,
during the 2015/2016 season:
a lump sum of EUR 37,000, payable on 30 August 2015, if the club plays in the
‘League E of Country D’;
a lump sum of EUR 60,000, payable on 30 August 2015, if the club plays in the
‘League F of Country D’;
10 monthly instalments of EUR 17,000 net, starting as from 31 August 2015, if
the club plays in the ‘League E of Country D’;
10 monthly instalments of EUR 30,000 net, starting as from 31 August 2015, if
the club plays in the ‘League F of Country D’.
4.
The player states that the club failed to pay him the lump sum of EUR 30,000, due
on 30 August 2014, as well as three monthly salaries for the months of August
2014, September 2014 and October 2014, due as from the last day of the respective
months.
5.
On 17 November 2014, the player put the club in default for not having paid the
total outstanding amount of EUR 75,000, giving the club a deadline of 7 days to
pay the outstanding amount. According to the player, the club did not pay the
requested amount.
6.
Therefore, on 25 November 2014, the player terminated the contract with
immediate effect.
7.
On 12 January 2015, the player lodged a claim before FIFA against the club,
claiming payment of outstanding remuneration and compensation for breach of
contract by the club, requesting the total amount of EUR 525,000, as follows:
Player A, Country B / Club C, Country D
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Outstanding remuneration in the total amount of EUR 75,000 plus 5% interest as
from the due dates, as follows:
EUR 30,000 as a lump sum payment, due as from 30 August 2014;
EUR 45,000 as salary payments for the months of August 2014, September
2014 and October 2014;
Compensation for breach of contract in the total amount of EUR 360,000:
EUR 90,000 as residual value of the contract ‘for the remaining part of the
2014/2015 season’;
EUR “270,000” as residual value of the contract for the 2015/2016 season;
Additional compensation:
EUR 90,000 as compensation within the context of the specificity of the sport.
The player further asked for the reimbursement by the club of his legal fees.
8.
Despite having been invited to do so, the club did not present its position to the
claim.
9.
Upon request of FIFA, the player informed FIFA that he signed a new contract with
the Club of Country D, Club G, valid as from 22 January 2015 until 31 May 2019,
according to which he was entitled to receive:
In the 2014/2015 season:
5 monthly instalments of USD 10,000, as from February 2015 until June 2015;
an advance payment of USD 55,000 in January 2015;
a ‘per match salary’ of USD 2,500 for every match in which the player takes
part in the first 11 players’ squad, 75% of said ‘per match salary’ if he joins the
match later and 50% of said ‘per match salary’ if he is in ‘the first 18 players’
squad, but does not enter to the game’.
In the 2015/2016 season (if the club plays in the First Division):
10 monthly instalments of USD 11,500, as from September 2015 until June
2016, and an advance payment of USD 115,000 in August 2015;
a ‘per match salary’ of USD 2,500 for every match the player takes part in the
first 11 players’ squad, 75% of said ‘per match salary’ if he joins the match
later and 50% of said ‘per match salary’ if he is in ‘the first 18 players’ squad,
but does not enter to the game’.
In the 2015/2016 season (if the club plays in the Super League):
10 monthly instalments of USD 13,750, as from September 2015 until June
2016 and an advance payment of USD 150,000 in August 2015;
a ‘per match salary’ of USD 5,000 for every match the player takes part in the
first 11 players’ squad, 75% of said ‘per match salary’ if he joins the match
later and 50% of said ‘per match salary’ if he is in ‘the first 18 players’ squad,
but does not enter to the game’.
Player A, Country B / Club C, Country D
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10.
Finally, Club G promoted after the 2014/2015 season and will play in the League F
of Country D during the 2015/2016 season.
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 12 January 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2014;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015), 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 2015), and considering that the present claim was lodged on 12 January
2015, the 2014 edition of said regulations (hereinafter: 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 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.
In this respect, the Chamber recalled that the parties had signed an employment
contract, valid as from August 2014 until 31 May 2016.
6.
In continuation, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that he had terminated the
employment contract with just cause on 25 November 2014, after previously
Player A, Country B / Club C, Country D
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having put the club in default, since the Respondent allegedly failed to pay the
Claimant’s remuneration. In this respect, the Claimant stated that the club failed to
pay him the lump sum of EUR 30,000, due as from 30 August 2014, as well as three
monthly salaries for the months August 2014, September 2014 and October 2014,
at the time he terminated the employment contract. Consequently, the Claimant
asked to be awarded his outstanding dues as well as the payment of compensation
for breach of the employment contract.
7.
The Respondent, for its part, failed to present its response to the claim of the
Claimant, in spite of having been invited to do so. Consequently, the Chamber
deemed that the Respondent had renounced to its right of defence and, thus, had
accepted the allegations of the Claimant.
8.
As a consequence of the aforementioned consideration, the members of the
Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a
decision shall be taken upon the basis of the documents on file, in other words,
upon the statements and documents presented by the Claimant.
9.
Having established the foregoing, the DRC noted that in accordance with the
employment contract, the Respondent was obliged to pay to the Claimant at the
time the contract was terminated by the player, i.e. on 25 November 2014, the
sign-on fee in the amount of EUR 30,000 as well as the first three salaries in the
amount of EUR 15,000 each. As mentioned previously, the Claimant’s allegations
that these payments had not been made, remained uncontested.
10.
On account of the aforementioned, in particular in view of the considerations
under point II./6., II./7. and II./8. above, the Chamber established that the
Respondent, without any valid reason, failed to remit to the Claimant, until 25
November 2014, the total amount of EUR 75,000. 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 Chamber decided
that the Claimant had just cause to unilaterally terminate the employment
contract on 25 November 2014. In fact, the DRC noted that the Respondent had
not made a single payment to the Claimant from the very start of the employment
relationship. As a result, the Chamber concluded that the Respondent is to be held
liable for the early termination of the employment contact with just cause by the
Claimant.
11.
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
Chamber focused its attention on the consequences of such termination.
Player A, Country B / Club C, Country D
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12.
First of all, the members of the Chamber concurred 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 the remuneration that was
outstanding at the time of the termination i.e. the amount of EUR 75,000,
consisting of the monthly salaries of August to October 2014 in the total amount
of EUR 45,000 and the sign-on fee in the amount of EUR 30,000.
13.
Furthermore, and considering the player’s claim for interest, the Chamber ruled
that the club must pay 5% interest on the amount of EUR 75,000 as from the
respective due dates.
14.
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.
15.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In
doing so, the members of the Chamber firstly recapitulated that, in accordance
with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the
basis of the dispute, with due consideration for the law of the country concerned,
the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
16.
In application of the relevant provision, the Chamber held that it first of all 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.
17.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of
compensation payable.
Player A, Country B / Club C, Country D
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18.
Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the employment contract until 31 May 2016, taking into account that the
player´s remuneration until and including October 2014 is included in the
calculation of the outstanding remuneration (cf. no. II./10. above). Consequently,
the Chamber concluded that the amount of EUR 312,000 (i.e. remuneration as
from November 2014 until 31 May 2016) serves as the basis for the determination
of the amount of compensation for breach of contract. At this point, the DRC
wished to clarify that the remuneration for the 2015/2016 season did not amount
to EUR 270,000, as sustained by the Claimant, but to EUR 207,000.
19.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount
of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
20.
In this respect, the Chamber noted that the Claimant stated that he remained
unemployed during the months November and December 2014, and that he
therefore was not able to mitigate his damages in these months. Therefore, the
Chamber concluded that the Claimant during said months suffered damages in the
total amount of EUR 30,000.
21.
Furthermore, the Chamber noted that in January 2015, the Claimant found
employment with the Club of Country D, Club G. In accordance with the pertinent
employment contract, which has been made available by the Claimant, valid until
31 May 2019, the Claimant was entitled to receive a monthly salary of USD 10,000
as well as a signing-on fee of USD 55,000 during the 2014/2015 season and a
monthly salary of USD 13,750 as well as a signing-on fee of USD 150,000 during the
2015/2016 season. Consequently, the Chamber established that the value of the
new employment contract concluded between the Claimant and Club G for the
period as from January 2015 until 31 May 2016 amounted to USD 378,750, and is
therefore of a higher value than his contract with the Respondent. As such, the
Chamber concluded that the player had been able to mitigate his damages in full
in relation to the period from January 2015 to May 2016.
22.
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 30,000 to the Claimant as compensation for breach of
contract in the present matter.
Player A, Country B / Club C, Country D
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23.
In conclusion, for all the above reasons, the Chamber decided to partially accept
the Claimant´s claim and determined that the Respondent must pay to the
Claimant the amount of EUR 75,000 as outstanding remuneration and EUR 30,000
as compensation for breach of contract.
24.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
25.
In continuation, the Chamber focused its attention on the further consequences of
the breach of contract in question and, in this respect, addressed the question of
sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates inter alia that, in addition to the obligation to pay
compensation, sporting sanctions shall be imposed on a club found to be in breach
of contract during the protected period.
26.
Subsequently, the members of the Chamber referred to item 7 of the “Definitions”
section of the Regulations, which stipulates, inter alia, that the protected period
shall last “for three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the
28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this respect, the Chamber
took note that the breach of the employment contract by the Respondent had
occurred at the end of November 2014. Therefore, the Chamber concluded that –
irrespective of the player’s age - the breach of contract by the Respondent had
occurred within the protected period.
27.
As a result, by virtue of art. 17 par. 4 of the Regulations and also considering that
the Respondent had on previous occasions been found in breach of an
employment contract without just cause by the Chamber, the Chamber decided
that the Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
28.
In this regard, the Chamber emphasised that apart from the Respondent having
clearly acted in breach of the contract within the protected period in the present
matter, the Respondent had also on several occasions in the recent past been held
liable by the Chamber for the early termination of the employment contracts with
other players, for example: Player H (case. ref. nr. XXX; decided on 19 June 2015),
Player J (case ref. nr. XXX; decided on 16 October 2014), Player K (case ref. nr. XXX;
decided on 25 September 2014) and Player L (case ref. nr. XXX, decided on 17
January 2014).
Player A, Country B / Club C, Country D
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29.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant 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, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 75,000, plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 31 August 2014 on the amount of EUR 30,000;
b. 5% p.a. as of 1 September 2014 on the amount of EUR 15,000;
c. 5% p.a. as of 1 October 2014 on the amount of EUR 15,000;
d. 5% p.a. as of 1 November 2014 on the amount of EUR 15,000.
3.
In the event that the amounts due to the Claimant in accordance with the abovementioned number 2. 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.
4.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 30,000.
5.
In the event that the amount due to the Claimant in accordance with the abovementioned numbers 4. is not paid by the Respondent within the stated time limit,
interest at the rate of 5% will fall due as expiry of the aforementioned time limit
and the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
6.
Any further request filed by the Claimant is rejected.
7.
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.
Player A, Country B / Club C, Country D
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8.
The Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 67 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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