Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 July 2015,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), member
on the claim lodged by the player,
Player 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 case
1.
On 1 February 2014, the player from country B, Player A (hereinafter: the player or
Claimant), and the club from country D, Club C (hereinafter: the club or
Respondent), entered into an employment contract (hereinafter: the contract)
valid as from 1 February 2014 until 30 June 2015.
2.
According to the contract, the club undertook to pay the player the net amount of
USD 300,000 as follows:
- USD 60,000 as a “prepayment” 10 days after the signature of the contract;
- USD 240,000 in 16 monthly instalments of USD 15,000, the last one to be paid in
May 2015.
3.
Equally, the player was entitled to USD 500 per month as rent.
4.
On 21 July 2014 and 7 August 2014, the player put the club in default for the total
amount of USD 137,500 and USD 153,000 respectively, after which he was paid the
amount of USD 47,500 corresponding to 3 salaries and 5 rent payments.
5.
On 17 December 2014 and 29 December 2014, the player again put the club in
default for the amount of USD 167,500, corresponding to:
- the “prepayment” (USD 60,000);
- the salaries of May to November 2014 (USD 105,000);
- the rent of July to November 2014 (USD 2,500).
In said letters, the club was given a deadline until 27 December 2014 and 7 January
2015, respectively, to pay the outstanding amount.
6.
On 13 January 2015, and since no payment had been received, the player
terminated the contract with the club in writing, invoking just cause.
7.
On 19 March 2015, the player lodged a claim against the club in front of FIFA,
requesting to be awarded the following amounts:
- USD 183,000 as outstanding remuneration corresponding to:
USD 60,000 as the sign-on fee;
USD 120,000 as 8 monthly salaries for May to December 2014;
USD 3,000 as 6 rent payments for July to December 2014.
- USD 78,000 as compensation for breach of contract.
Player A, Country B / Club C, Country D
2
8.
Equally, the player requested 5% interest as from the due dates as well as the
imposition of sporting sanctions on the club.
9.
In his claim, the player explained that he was paid only 3 months of salary and 5
rent payments after having put the club in default on 7 August 2014. Afterwards,
he was not paid any other amount and all of his default letters remained
unanswered. As a result, the player decided to terminate the contract on 13
January 2015.
10.
Although having been invited to do so, the club did not provide its reply to the
claim of the player.
11.
Upon request of FIFA, the player indicated that on 30 January 2015, he signed a
new contract with the club from country F, Club E, valid as from 22 January 2015
until 30 June 2015 in accordance with which he was entitled to the total amount
of EUR 23,000. Nevertheless, the player indicated that the parties agreed upon the
mutual termination of the contract on 30 May 2015, by means of which he
“renounced to get the amount of EUR 9,460 out of EUR 23,000”, therefore
alleging he only received an amount of EUR 13,540.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 19 March 2015. Consequently, the 2015 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. 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 from country B and a club from country
D.
3.
Furthermore, the Chamber analysed which edition of the 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 and reiterating that the present claim was lodged in front of FIFA on 19
Player A, Country B / Club C, Country D
3
March 2015, the 2015 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, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation
contained in the file. 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.
First of all, the members of the Chamber acknowledged that it was undisputed
that the player and club had concluded an employment contract valid for the
period as from 1 February 2014 until 30 June 2015. As to the financial terms of the
contract, the Chamber took note that it had been agreed upon that the club
would remunerate the player with the total amount of USD 300,000 as follows:
- USD 60,000 as a “prepayment” payable 10 days after the signature of the
contract;
- USD 240,000 payable in 16 monthly instalments of USD 15,000.
6.
In continuation, the members of the Chamber noted that the player lodged a
claim against the club in front of FIFA maintaining that he had terminated the
employment contract with just cause on 13 January 2015, after having previously
put the club in default by means of his letters sent on 21 July 2014, 7 August 2014,
17 December 2014 and 29 December 2014.
7.
In this context, the player asserted that at the time he terminated the employment
contract with the club, the latter had only paid him his salary for 3 months and his
rent for 5 months, whereas he was supposed to receive his salary and rent for 11
months as well as a sign-on fee of USD 60,000. The Chamber duly observed that, as
a consequence, the player deemed to have a just cause to terminate the contract
prematurely.
8.
Furthermore, the Chamber observed that the club failed to present its response to
the claim of the Claimant, despite having been invited to do so. In this way, so the
Chamber deemed, the Respondent renounced its right of defence and, thus,
accepted the allegations of the Claimant.
9.
As a consequence of the preceding 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 on file.
Player A, Country B / Club C, Country D
4
10.
In this respect, the Chamber concluded that it had remained uncontested by the
club that it failed to pay the player 8 months of salary, 6 rent payments as well as
the sign-on fee.
11.
Having taken into consideration the previous consideration, the Chamber decided
that it could be established that the Respondent had seriously neglected its
contractual obligations towards the Claimant in a continuous and constant
manner, i.e. the Respondent had failed to remunerate the Claimant for a
substantial period of time. Therefore, the Chamber considered that the
Respondent was found to be in breach of the employment contract and that the
breach was of such seriousness that, in line with the Chamber’s long-standing and
well-established jurisprudence, the Claimant had a just cause to unilaterally
terminate the contractual relationship with the Respondent on 13 January 2015,
having previously put the Respondent in default of payment of the outstanding
amounts.
12.
On account of the above, the Chamber established that the Claimant had
terminated the employment contract with just cause on 13 January 2015 and that,
consequently, the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
13.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract with just
cause by the Claimant.
14.
First of all, the members of the Chamber concurred that the club must fulfill its
obligations as per employment contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the Chamber decided that the
club is liable to pay to the player the remuneration that was outstanding at the
time of the termination i.e. the amount of USD 183,000, consisting of the monthly
salaries of May to December 2014 (USD 120,000), rent for the months of July to
December 2014 (USD 3,000) as well as the sign-on fee (USD 60,000).
15.
Furthermore, and considering the player’s claim for interest, the Chamber ruled
that the club must pay 5% interest on the amount of USD 183,000 as from the
respective due dates.
16.
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.
Player A, Country B / Club C, Country D
5
17.
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.
18.
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.
19.
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
to be taken into consideration when calculating the amount of compensation
payable.
20.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract until 30
June 2015, taking into account that according to the contract no salary was due
for June 2015. Consequently, the Chamber concluded that the amount of USD
78,000 (i.e. 5 salary payments and 6 rent payments) serves as the basis for the
determination of the amount of compensation for breach of contract.
21.
In continuation, the Chamber remarked that the player had found new
employment with the club from country F, Club E. In accordance with the
pertinent employment contract, which has been made available by the player, he
was entitled to receive a total salary of EUR 23,000 until 30 June 2015, which
corresponds to approximately USD 27,000. The Chamber wished to point out that
it decided to take into account the full amount of EUR 23,000 and not the EUR
13,540 as sustained by the player, since he voluntarily renounced to the full
payment of his salaries with the new club.
22.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the player to mitigate his damages, such
remuneration under the new employment contract shall be taken into account in
the calculation of the amount of compensation for breach of contract.
Player A, Country B / Club C, Country D
6
23.
Consequently, on account of all of the above-mentioned considerations, the
Chamber decided that the club must pay the amount of USD 51,000 to the player
as compensation for breach of contract, plus 5% interest as from the date on
which the claim was lodged.
24.
In conclusion, for all the above reasons, the Chamber decided to partially accept
the player´s claim and determined that the club must pay to the player the amount
of USD 183,000 as outstanding remuneration as well as the amount of USD 51,000
as compensation for breach of contract.
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 club had occurred
from the very start of the contractual relationship and that, as a result, on 13
January 2015, the player had terminated the contract. 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 considering that the
club had been found in breach of an employment contract without just cause, the
Chamber decided that the club 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. In this
regard, the Chamber emphasized that apart from the club having clearly acted in
breach of the contract within the protected period in the present matter, the club
had also on several occasions in the recent past been held liable by the Chamber
for the early termination of the employment contracts with, for example, the
Player W (case. Ref. nr. XX-XXXX, decided on 16 October 2014), Player X (case. Ref.
nr. XX-XXXX, decided on 16 October 2014), Player Y (case. Ref. nr. XX-XXXX,
Player A, Country B / Club C, Country D
7
decided on 27 November 2014) and Player Z (case. Ref. nr. XX-XXXX, decided on 21
January 2015). The Chamber considers this to be an aggravating circumstance.
28.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
III.
Decision of the Dispute Resolution Chamber
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
USD 183,000, plus 5% interest until the date of effective payment as follows:
-
5% p.a. as of 12 February 2014 on the amount of USD 60,000;
5% p.a. as of 1 June 2014 on the amount of USD 15,000;
5% p.a. as of 1 July 2015 on the amount of USD 15,000;
5% p.a. as of 1 August 2014 on the amount of USD 15,500;
5% p.a. as of 1 September 2014 on the amount of USD 15,500;
5% p.a. as of 1 October 2014 on the amount of USD 15,500;
5% p.a. as of 1 November 2014 on the amount of USD 15,500;
5% p.a. as of 1 December 2014 on the amount of USD 15,500;
5% p.a. as of 1 January 2015 on the amount of USD 15,500.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of the present decision, compensation for breach of contract in the
amount of USD 51,000 plus 5% interest p.a. on said amount as from 19 March 2015
until the date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 3. and 4. 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.
Player A, Country B / Club C, Country D
8
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.
7.
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 motivated decision (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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
9