Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 August 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Taku Nomiya (Japan), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
Player A, Country B,
as Claimant / Counter-Respondent
against the club,
Club C, Country D
as Respondent / Counter-Claimant
and the clubs,
Club E and Club I, Country B
as intervening parties
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 November 2009, the player from Country B, Player A (hereinafter: the
Claimant / Counter-Respondent) and the Country D from Club C (hereinafter: the
Respondent / Counter-Claimant) signed an employment contract (hereinafter: the
contract) valid as from the date of signature until the end of the 2011 season, i.e.
3 November 2011.
According to article 7 par. 1 of the contract, the Claimant / Counter-Respondent
was entitled to receive the following amounts
- USD 50,000 as signing-on fee;
- USD 25,000 as monthly salary due “after 12 days in the next month”.
2.
3.
In addition, article 7 par. 2 of the contract specifies that “[the Claimant / CounterRespondent] must reach the attendance time of playing 75% in the season of the
championship, if [the Claimant / Counter-Respondent]’s match appearance rate
can not reach 70%, [the Respondent / Counter-Claimant] will take one year whole
income of [the Claimant / Counter-Respondent] as the base, according to
corresponding proportion to deduct (deduct 1% per 1% will be reduced), when
[the Claimant / Counter-Respondent]’s match appearance rate can not meet 60 %,
besides deduct the salary of [the Claimant / Counter-Respondent] in proportion,
[the Respondent / Counter-Claimant] have the rights to deduct 10% of [the
Claimant / Counter-Respondent]’s whole year salary income.”
4.
Additionally, according to article 7 of the contract, the Claimant / CounterRespondent was entitled to receive various performance-related bonuses.
5.
Furthermore, and with regard to penalties that may be imposed on the Claimant /
Counter-Respondent, the contract states the following:
“9.4. (…) if [the Claimant / Counter-Respondent] is proved to be able to
participate in training or matches and refuse to work in the meanwhile, [the
Claimant / Counter-Respondent] will not gain his agreed salary from [the
Respondent / Counter-Claimant] until the end of the contract period, [the
Respondent / Counter-Claimant] has the right to unilateral terminate the contract
with [the Claimant / Counter-Respondent]. [The Claimant / Counter-Respondent]
has no right to lodge an appeal or ask for compensation. [The Claimant / CounterRespondent] will compensate 100,000 USD to [the Respondent / CounterClaimant].
16.1. Be absent from training or matches without the permission by the club, over
24 hours (including the 24th hour) shall pay penalty fine $5000, over 48 hours shall
pay penalty fine $10,000, over 72 hours shall pay penalty fine $20,000.
18. In case of a violation of any detail of the Contract, [the Respondent / CounterClaimant] has the right to punish [the Claimant / Counter-Respondent] by more
than USD 50,000.00 if the sum of penalty is not mentioned in the articles
stipulated in the contract, or to terminate the contract according to the details of
violation. [The Claimant / Counter-Respondent] has no right to lodge an appeal or
ask for compensation.”
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
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6.
On 1 January 2011, the Respondent / Counter-Claimant sent a document to be
signed by the Claimant / Counter-Respondent by means of which he would accept
the mutual termination of the contract and would waive his right to claim
damages.
7.
On 7 June 2011, the Claimant / Counter-Respondent lodged a claim, amended on
23 June 2011, against the Respondent / Counter-Claimant in front of FIFA,
requesting to be awarded with the amount of USD 375,000 as salaries as from
August 2010 until the end of the contract, i.e. 15 months, as well as all playing
and appearance bonuses. In this respect, the Claimant / Counter-Respondent
explains that the Respondent / Counter-Claimant failed to pay his salary for the
months of August, September and October 2010 and refused to pay him for the
entire 2011 season. Additionally, the Claimant / Counter-Respondent states that
the bonuses outlined in article 7 of the contract are due in addition to his base
salary of USD 25,000.
8.
In his claim, the Claimant / Counter-Respondent asserts that after suffering an
injury in July 2010, the Respondent / Counter-Claimant ceased paying his salary
and failed to pay the costs of his operation amounting to USD 10,000. By an
undated correspondence, apparently received on 13 April 2011 by the Respondent
/ Counter-Claimant, the Claimant / Counter-Respondent requested the
Respondent / Counter-Claimant to comply with its obligations. The Claimant /
Counter-Respondent enclosed to said correspondence two medical reports, one
drawn up by the Country B national team’s physician and the other by the
Country D. The former referred to the treatment undergone by the Claimant /
Counter-Respondent between 6 July 2010 and 6 August 2010 and ordered a threemonth rehabilitation period while the latter, dated 13 April 2011, stated that the
Claimant / Counter-Respondent was fit for playing. In relation to the second
medical report, the Claimant / Counter-Respondent affirms that it indicates his
readiness to perform for the Respondent / Counter-Claimant.
9.
Besides, the Claimant / Counter-Respondent states that the Respondent / CounterClaimant’s attitude prevented him from joining a Country B club since the latter
was afraid of the consequences that it might face because of the contractual
dispute.
10.
On 3 October 2011, the Respondent / Counter-Claimant lodged a counterclaim
against the Claimant / Counter-Respondent requesting FIFA to terminate the
contract and the payment of an amount of USD 228,000, broken down as follows:
USD 58,000 as reimbursement of the undue salary paid in 2010;
USD 170,000 as compensation.
11.
According to the Respondent / Counter-Claimant, it was never informed by the
Claimant / Counter-Respondent that he would travel to Country B to undergo
surgery on 6 July 2010. Subsequently, the Respondent / Counter-Claimant
supposedly tried to contact him but he did not reply and never came back to train
with the Respondent / Counter-Claimant. Therefore, the Respondent / Counter-
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
Page 3 of 11
Claimant considered that the Claimant / Counter-Respondent breached articles 5
par. 2 and 9 par. 3 of the contract which require the Claimant / CounterRespondent to accept medical treatment as demanded by the Respondent /
Counter-Claimant.
12.
Moreover, the Respondent / Counter-Claimant states that it paid USD 175,000 to
the Claimant / Counter-Respondent for the 2010 season instead of USD 117,000. In
this regard, the Respondent / Counter-Claimant makes reference to the Claimant /
Counter-Respondent’s appearances and interprets from article 7 par. 2 of the
contract that an amount of USD 183,000 has to be deducted from the Claimant /
Counter-Respondent’s annual salary of USD 300,000. Consequently, the Claimant /
Counter-Respondent has to pay USD 58,000 back to the Respondent / CounterClaimant.
13.
Additionally, the Respondent / Counter-Claimant asserts that the Claimant /
Counter-Respondent violated the contract since, in February and March 2011, he
performed trial tests with two other Country D, Club F Football Club and Club G
Football, without the Respondent / Counter-Claimant’s authorisation.
14.
Finally, the Respondent / Counter-Claimant considers that the Claimant / CounterRespondent breached articles 9 par. 4, 16 par.1 and 18 of the contract and should
therefore pay the Respondent / Counter-Claimant for said violations USD 100,000,
USD 20,000 and USD 50,000 respectively.
15.
In his response to the counterclaim, the Claimant / Counter-Respondent states
that he wanted to return to the Respondent / Counter-Claimant in November
2010, i.e. immediately after the rehabilitation period, but the Respondent /
Counter-Claimant did not accept him back and proposed a buyout settlement of
USD 75,000 to rescind the contract. The Claimant / Counter-Respondent
apparently refused and asked for the payment of his salaries from July to
November 2010. In this regard, the Claimant / Counter-Respondent submitted a
copy of his passport as evidence of his return. According to said passport, the
Claimant / Counter-Respondent entered the country on 25 October 2010 and left
it on 20 November 2010. Additionally, the passport indicates that the Claimant /
Counter-Respondent’s visa was due to expire on 24 January 2011.
16.
Furthermore, the Claimant / Counter-Respondent asserts that in January 2011 the
Respondent / Counter-Claimant requested him to leave his apartment since he
was no longer part of the squad. However, after the Claimant / CounterRespondent resorted to the services of a lawyer who contacted the Respondent /
Counter-Claimant, the Respondent / Counter-Claimant informed the Claimant /
Counter-Respondent that he was only asked to leave due to renovations.
17.
Regarding the trial tests, the Claimant / Counter-Respondent confirms that he did
take part in them but states that it was with the approval of the Respondent /
Counter-Claimant.
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
Page 4 of 11
18.
In its last submission, the Respondent / Counter-Claimant reiterates its arguments,
and in particular that the Claimant / Counter-Respondent breached his contractual
obligations by leaving the country without informing the Respondent / CounterClaimant and by refusing to resort to the medical treatments provided by the
Respondent / Counter-Claimant.
19.
Upon FIFA’s request, the Claimant / Counter-Respondent states that he did not
sign a contract with another club and therefore retired. However, from the
information contained in Transfer Matching System (TMS), it can be noted that,
on 1 August 2011, the Claimant / Counter-Respondent signed a contract with the
Club E from Country B, valid for the 2011/2012 season and entitling him to a
monthly salary of 35000. Nevertheless, the registration process was not completed
following Football Association’s from Country D refusal to issue the International
Transfer Certificate (ITC). Subsequently, as per the information in the TMS, the
Claimant / Counter-Respondent signed, on 17 July 2012, a contract with the, Club I
from Country B, valid for the opening and closing tournament of the 2012-2013
season and entitling him to a monthly salary of USD 308.839. The registration
process with the latter club was completed in the TMS.
20.
In spite of having been invited to do so, neither Club E nor Club I presented any
comments on the present matter.
21.
After the closure of the investigation, the Claimant / Counter-Respondent
mentioned that he never played professionally nor received any salary from Club
E or Club I
II.
Considerations of the Dispute Resolution Chamber
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
7 June 2011. Consequently, the 2008 edition of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) are applicable to the matter at stake (cf. art. 21 of the 2008, 2012
and 2014 editions 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 2014), 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 regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
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art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2010, 2012 and 2014), and considering that the present claim was lodged
in front of FIFA on 7 June 2011, the 2010 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 doing so it
started by acknowledging the facts as well as the documentation contained in the
file. However, the Chamber emphasised that in the following considerations it will
refer only to facts, arguments and documentary evidence which it considered
pertinent for the assessment of the matter at hand.
5.
In this respect, the members of the Chamber acknowledged that the parties were
bound by an employment contract, which was signed on 1 November 2009, valid as
from the date of signature until the end of the 2011 season, i.e. 3 November 2011,
in accordance with which the Respondent / Counter-Claimant would pay the
Claimant / Counter-Respondent an amount of USD 50,000 as signing-on fee as well
as a salary in the amount of USD 25,000 per month.
6.
The Chamber took note that the Claimant / Counter-Respondent, on the one hand,
maintains that the employment contract was breached by the Respondent /
Counter-Claimant by failing to pay him his salary after he suffered an injury in July
2010. The Respondent / Counter-Claimant, on the other hand, rejects such claim
asserting that the Claimant / Counter-Claimant had in fact breached the contract,
by travelling to Country B to undergo surgery without informing it and by failing
to resume his training subsequently.
7.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim and counterclaim respectively lodged by
the parties, was to determine when the contractual relationship had been
terminated and which party should be responsible for the early termination of the
latter. The DRC also underlined that, subsequently, if it were found that the
employment contract was breached by one of the parties without just cause, it
would be necessary to determine the consequences for the party that caused the
unjust breach of the relevant employment contract.
8.
In view of the above, the Chamber deemed it appropriate to shortly recall the
timeline of events in the present matter according to the documentary evidence
provided by either party as well as the respective allegations which have remained
uncontested by the opposing party.
9.
In this respect, the Chamber noted that it is uncontested that the Claimant /
Counter-Respondent left Country D to undergo surgery in July 2010. The DRC
further observed that according to the Claimant / Counter-Respondent’s passport,
the latter returned to Country D as from 25 October 2010 until 20 November 2011.
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
Page 6 of 11
In addition, the members of the Chamber took note that the Claimant / CounterRespondent’s visa was due to expire on 24 January 2011. In continuation, the
Chamber noted that the Respondent / Counter-Claimant never contested the
Claimant / Counter-Respondent’s assertions that in January 2011, it offered him to
mutually terminate the contract and requested him to leave his apartment.
10. In light of the foregoing, and considering the content of art. 12 par. 3 of the
Procedural Rules together with the date of expiry of the visa and the proposal
made by the Respondent / Counter-Claimant on 1 January 2011, the members of
the Chamber concluded that the contractual relationship came to an end on 1
January 2011.
11. The Chamber then turned its attention to the question of which party was to be
held liable for the early termination of the contractual relationship. In order to do
so, the Chamber first of all pointed out that the Respondent / Counter-Claimant did
not contest the argument of the Claimant / Counter-Respondent regarding the
non-payment of salaries as of July 2010. In continuation, the DRC took note that
the Respondent / Counter-Claimant justifies the non-payment by arguing that, for
the 2010 season, it paid a total amount of USD 175,000 to the Claimant / CounterRespondent while the amount that was actually due was USD 113,000, in
consideration of the Claimant / Counter-Respondent’s number of appearances and
the fact that his annual salary was of USD 300,000. Therefore, the Respondent /
Counter-Claimant considers that there is no outstanding amount insofar as the
Claimant / Counter-Respondent received an amount of USD 58,000 in excess of his
due remuneration.
12. In this respect and 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 Chamber was eager to point out that the
Respondent / Counter-Claimant had failed to present documentation in support of
its position. In particular, the members of the Chamber observed that the
Respondent / Counter-Claimant was not able to corroborate the number of
appearances of the Claimant / Counter-Respondent and neither the amounts that
were already paid to him. As a consequence, the Chamber considered that the
Respondent / Counter-Claimant had not presented any evidence proving that the
Claimant / Counter-Respondent was not entitled to the amounts he had already
received and came to the conclusion that, at the time of the termination, i.e. 1
January 2011, the salaries for August, September, October and November 2010
were outstanding.
13. Furthermore, the Chamber underlined that the Respondent / Counter-Claimant had
not provided any documentation which would prove that the lack of payment of
the Claimant / Counter-Respondent’s salaries, was justified by any other reason
than the latter’s injury.
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
Page 7 of 11
14. In addition, the members of the Chamber established that the Respondent /
Counter-Claimant had no longer been interested in the Claimant / CounterRespondent’s services by sending him the proposal of mutual termination in
January 2011 and by having previously offered a buyout settlement in November
2010, the latter allegation equally having remained uncontested by the
Respondent / Counter-Claimant.
15. On account of the all the above circumstances, and considering that the
Respondent/Counter-Claimant had repeatedly been in breach of its contractual
obligations towards the Claimant/Counter-Respondent together with the reasons
thereof, the Chamber concurred that the Respondent / Counter-Claimant had de
facto terminated the contract without just cause on 1 January 2011.
16. In light of the foregoing, the Chamber decided to accept the Claimant / CounterRespondent’s claim with regards to the Respondent / Counter-Claimant’s breach of
contract without just cause and, thus, rejected the Respondent / Counter-Claimant’s
claim.
17. Having established that the Respondent / Counter-Claimant is to be held liable for
the early termination of the employment contract, the Chamber focused its
attention on the consequences of such termination. Taking into consideration art.
17 par. 1 of the Regulations, the Chamber decided that the Claimant / CounterRespondent is entitled to receive from the Respondent / Counter-Claimant an
amount of money as compensation for breach of contract in addition to any
outstanding payments on the basis of the relevant employment contract.
18. First of all, the Chamber reverted to the Claimant / Counter-Respondent’s financial
claim, which includes outstanding salaries as well as outstanding match bonuses. In
this regard, the Chamber emphasised the fact that it would only consider the
amounts that have already fallen due at the date of termination, i.e. 1 January
2011.
19. At this stage, the DRC made reference to its previous considerations and recalled
that at the time of the termination, the salaries for August, September, October
and November 2010 were outstanding.
20. Then, the Chamber turned its attention to the match bonuses claimed by the
Claimant / Counter-Respondent and pointed out that the latter failed to specify his
request in this regard and to provide any documentary evidence that they were
actually due. Consequently, and after making reference to the content of art. 9 par.
1 as well as 12 par. 3 of the Procedural Rules, the members of Chamber decided to
reject the Claimant / Counter-Respondent’s claim.
21. Consequently, in accordance with the principle of pacta sunt servanda and taking
into account the fact that the employment contract was considered terminated as
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
Page 8 of 11
of 1 January 2011 and the documentary evidence provided by the parties, the
Chamber decided that the Respondent / Counter-Claimant is liable to pay the
Claimant / Counter-Respondent the amount of USD 100,000 as outstanding
remuneration corresponding to the salaries relating to August, September, October
and November 2010.
22. In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract 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 / Counter-Respondent 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.
23. 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.
24. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant /
Counter-Respondent 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.
25. Bearing in mind the foregoing as well as the claim of the Claimant / CounterRespondent, the Chamber proceeded with the calculation of the monies payable to
the Claimant / Counter-Respondent under the terms of the employment contract
until 3 November 2011, taking into account that the Claimant / CounterRespondent’s remuneration until November 2010 is included in the calculation of
the outstanding remuneration. Consequently, the Chamber concluded that the
amount of USD 275,000, i.e. remuneration as from December 2010 until the end of
the 2011 season, serves as the basis for the determination of the amount of
compensation for breach of contract.
26. In continuation, the Chamber verified as to whether the Claimant / CounterRespondent had 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
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
Page 9 of 11
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.
27. The Chamber noted that according to the documentation contained in the TMS, he
signed an employment contract with Club E, on 1 August 2011; however the
registration process was never completed. The DRC also observed that the Claimant
/ Counter-Respondent subsequently entered into an employment agreement with
Club I on 17 July 2012, i.e. after the original date of expiry of the contract with the
Respondent / Counter-Claimant. Thus, the player had apparently not been able to
mitigate damages. In this context, the Chamber declared that there is no
remuneration to be taken into account in order to mitigate the amount of
compensation for breach of contract.
28. In this respect and bearing in mind all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the Respondent /
Counter-Claimant must pay the amount of USD 275,000 to the Claimant / CounterRespondent, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
29. The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim filed by the Claimant / Counter-Respondent is
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of USD 100,000.
4.
The Respondent / Counter-Claimant has to pay to the Claimant, within 30 days
as from the date of notification of this decision, compensation for breach of
contract amounting to USD 275,000.
5.
In the event that the amounts due to the Claimant / Counter-Respondent in
accordance with the above-mentioned points 2. and 3. are not paid by the
Respondent / Counter-Claimant 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.
6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
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7.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D / Club E and Club I, both Country B
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