Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 August 2015,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Mario Gallavotti (Italy), member
on the matter between the player,
Player A, country B
as Claimant / Counter-Respondent 1
and the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country F
as Counter-Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 23 January 2013, the player from country B, Player A (hereinafter; the player
or the Claimant/Counter-Respondent 1) and the club from country D, Club C
(hereinafter; Club C or the Respondent/Counter-Claimant) concluded an
employment contract (hereinafter; the contract) valid as of the date of its
signature until 31 May 2016.
2.
According to the contract, the player was entitled to receive from Club C as
follows:
a. For the season 2012/2013:
i. EUR 125,000 in 5 monthly instalments of EUR 25,000 as from 31
January 2013 until 31 May 2013;
b. For the season 2013/2014:
i. EUR 250,000 in 10 monthly instalments of EUR 25,000 as from 30
August 2013 until 31 May 2014;
c. For the season 2014/2015:
i. EUR 250,000 in 10 monthly instalments of EUR 25,000 as from 30
August 2014 until 31 May 2015;
d. For the season 2015/2016:
i. EUR 250,000 in 10 monthly instalments of EUR 25,000 as from 30
August 2015 until 31 May 2016;
3.
Moreover, the contract provided the following payments to the player:
a. EUR 50,000 to be paid “in 5 days after receiving the ITC”;
b. EUR 100,000 to be paid in June 2013;
c. EUR 100,000 to be paid in June 2014 and;
d. EUR 100,000 to be paid in June 2015.
4.
On 18 February 2014, the parties concluded a document titled “Contract”
(hereinafter; the agreement) which reads, inter alia, as follows:
“[The parties] have agreed to transfer the player on a loan basis to the Club G
until 30.06.2014.
[Club C] recognizes to owe the player the sum of EUR 75,000 already unpaid for
the 2013-2014 season. This sum will be paid as follows: EUR 25,000 at the 20th of
March 2014, EUR 25,000 at the 20th of April 2014, EUR 25,000 at the 20th May
2014.
Player A, country B / Club C, country D / Club E, country F
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[Club C] will pay EUR 17,500 salary for February, March, April and May 2014. The
player declares the EUR 7,500 difference for each month will be paid by Club G.
[The parties] hereby declare that the existing conflicts to date have been settled.
Therefore, the parties agree to rescind all the imputations and intimations
contained in their previous communications”.
5.
On 3 April 2014, the player put Club C in default of payment of the amounts of
EUR 25,000 payable on 20 March 2014 and of EUR 17,500 corresponding to his
salary of February 2014.
6.
On 7 April 2014, Club C replied the following: “our club now is trying to arrange
cash flow (…) we are planning to pay the amount in one month…”.
7.
On 28 April 2014, the player remitted to Club C a second default notice for the
amounts claimed in his previous letter plus EUR 25,000 payable on 20 April 2014
and his salary of March 2014 in the amount of EUR 17,500.
8.
On 23 May 2014, in view of the non-payment of the claimed amounts and “by
means of a correspondence dated 15 May 2014”, the player terminated the
contract alleging just cause.
9.
On 30 May 2014, Club C replied by rejecting the termination since “none of the
amounts have been passed over 2 months, which is regarded as acceptable and
justified delay”.
10.
On 9 September 2014, the player lodged a claim against Club C in front of FIFA
requesting the following amounts:
a. EUR 35,000 for his salaries of March and April 2014;
b. EUR 75,000 for the payments due on 20 March, 20 April and 20 May 2014
in accordance with the agreement;
c. EUR 637,439 as compensation for breach of contract;
d. “Interests on all the amounts as of 23 May 2014”.
11.
In particular, the player explained that since the beginning of the contract, Club C
made late and partial payments, which is confirmed by the agreement signed on
18 February 2014. Moreover, the player stressed that at the moment of the
termination of the contract, he had already put Club C in default of payment
twice and that the outstanding remuneration amounted to “EUR 110,000”.
12.
Therefore, according to the player, he had just cause to terminate the
employment contract on 23 May 2014.
Player A, country B / Club C, country D / Club E, country F
Page 3 of 11
13.
Furthermore, the player explained that he concluded a new employment contract
with the club from country F, Club E (hereinafter; Club E) valid as of 1 July 2014
until 30 June 2015, according to which he is entitled to receive the total amount
of USD 105,000 “equivalent to EUR 80,060.99”.
14.
In this respect, the player sustained that the remaining value of his contract with
Club C was of “EUR 717,500”, therefore, after making the relevant deductions, he
is entitled to EUR 637,439 as compensation for breach of contract.
15.
In its reply to the claim, Club C rejected the claim and highlighted that “before
10.01.2014”, the player had already received EUR 175,000. In this respect, Club C
provided the following payment receipts:
Date
3 September 2013
26 September 2013
2 October 2013
7 November 2013
4 December 2013
10 January 2014
7 May 2014
TOTAL
Amount
EUR 25,000
EUR 50,000
EUR 25,000
EUR 25,000
EUR 25,000
EUR 25,000
EUR 17,500
EUR 192,500
16.
Moreover, Club C stressed that “none of the amounts have been passed over 2
months, which can be accepted as justified delay and are not substantial
compared to payments [Club C] has made to the player before”. Club C sustained
that the oldest unpaid amount is EUR 25,000 payable on “20.03.2014”.
17.
Club C further argued that the parties met in country D between 4 and 6 of
August 2014 to try to reach an agreement, however “the player agent and
representative again showed no intent to end conflict”. In this respect, Club C
pointed out that it covered the flight tickets and the accommodation of the
player and his agent.
18.
On account of the above, Club C is of the opinion that the player terminated the
contract without just cause and no compensation should be payable. As a result,
Club C lodged a counterclaim for breach of contract against the player and Club E,
as his new club, for the amount of EUR 200,000. Likewise, Club C requested
sporting sanctions to be imposed on both the player and Club E.
Player A, country B / Club C, country D / Club E, country F
Page 4 of 11
19.
In his replica and reply to Club C’s counterclaim, the player underlined that the
payment receipts enclosed by Club C correspond to payments made before the
agreement of 18 February 2014, amounts which are not disputed. Moreover, the
player argued that the payment of 7 May 2014 for the amount of EUR 17,500 “is
not claimed”.
20.
As to the meetings held in country D, the player recognized that such were held
but that the offers made by Club C were too low.
21.
As to the proportionality of the debt, the player stressed that it amounted to
“6.28” monthly salaries. In this regard, the player held that as of the date of
conclusion of the agreement until the date of the termination of the contract he
should have received “EUR 145,000”, however Club C only made one payment of
EUR 17,500.
22.
In view of the foregoing, the player asked Club C’s counterclaim to be rejected
and reaffirmed his original claim.
23.
On its part, Club E replied to Club C’s claim by stressing that it was the player
himself who decided to terminate his contract with Club C. In this respect, Club E
underlined that its contract with the player was concluded in July 2014 only.
24.
Moreover, Club E argued that it is clear that the player had a just cause to
terminate his contract with Club C.
25.
In its duplica, Club C reiterated the arguments of its reply and reaffirmed its
counterclaim.
26.
Upon FIFA’s request, the player informed FIFA that he did not conclude any new
employment contract after 30 June 2015.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
DRC or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 9 September 2014. Consequently, the 2014 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the 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 and 2 in
Player A, country B / Club C, country D / Club E, country F
Page 5 of 11
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, a club from country D
and a club from country F.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber 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 player’s claim was lodged on 9 September 2014,
the 2014 edition of the aforementioned 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, 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 DRC acknowledged that on 23 January 2013, the
parties concluded an employment contract valid until 31 May 2016 whereby the
player was entitled to receive from Club C the total amount of EUR 125,000 for
the season 2012/2013, EUR 250,000 in each of the seasons 2013/2014, 2014/2015
and 2015/2016 as well as the following lump sum payments:
a. EUR 50,000 to be paid “in 5 days after receiving the ITC”;
b. EUR 100,000 to be paid in June 2013;
c. EUR 100,000 to be paid in June 2014 and;
d. EUR 100,000 to be paid in June 2015.
6.
Furthermore, the Chamber took note that on 18 February 2014, the parties
entered into an agreement whereby Club C undertook to pay to the player EUR
75,000 in three equal instalments of EUR 25,000 payable on 20 March, 20 April
and 20 May 2014. Moreover, by means of the agreement, Club C obliged itself to
cover the player’s salaries of February, March, April and May 2014 each in the
amount of EUR 17,500.
7.
In continuation, the DRC noted that, after putting Club C in default of payment
twice on 3 and 28 April 2014, on 23 May 2014, the player terminated the contract
concluded between the parties alleging just cause in view of the non-payment of
Player A, country B / Club C, country D / Club E, country F
Page 6 of 11
EUR 110,000 corresponding to the payments due on 20 March, 20 April and 20
May 2014 as well as his salaries of March and April 2014.
8.
Moreover, the Chamber proceeded to take note of Club C’s position which, while
enclosing several payment receipts, argued that the player terminated the
contract without just cause as “none of the amounts have been passed over 2
months, which can be accepted as justified delay and are not substantial
compared to payments [Club C] has made to the player before”. In this respect,
the DRC acknowledged that, according to Club C, the oldest unpaid amount is
EUR 25,000 payable on “20.03.2014”.
9.
Equally, the members of the Chamber took note that Club C lodged a counterclaim against the player and Club E, as his new club, claiming the total amount of
EUR 200,000, as according to Club C, the player terminated the contract without
just cause.
10.
Furthermore, the Chamber turned its attention to the player’s position who
stresses that, between the moment of signing of the agreement and the date of
the termination of the contract, he should have received the amount of EUR
145,000. However, Club C only made one payment of EUR 17,500. Therefore,
according to the player, the debt amounted to “6.28” salaries, which constituted
a just cause for him to terminate the employment contract.
11.
In view of the foregoing considerations, the Chamber deemed that the underlying
issue in the dispute at hand, considering the claim of the player and the counterclaim of Club C, was to determine whether the relevant employment contract had
been unilaterally terminated with or without just cause by the player, and which
party was responsible for the early termination of the contractual relationship in
question. The DRC also underlined that, subsequently, it would be necessary to
determine the consequences for the party that caused the breach of the relevant
employment contract.
12.
First of all, the members of the Chamber wished to point out that it is undisputed
that at the moment of the termination of the contract, i.e. 23 May 2014, Club C
had failed to pay to the player the total amount of EUR 110,000 comprised of the
payments due on 20 March, 20 April and 20 May 2014 plus his salaries of March
and April 2014. In this respect, the Chamber further underlined that Club C did
not put forward in its defense any reason that could possibly have justified the
non-payment of the aforementioned amounts but limited itself to argue that the
player had no just cause to terminate the employment contract since, “none of
the amounts have been passed over 2 months, which can be accepted as justified
delay and are not substantial compared to payments [Club C] has made to the
player before”.
Player A, country B / Club C, country D / Club E, country F
Page 7 of 11
13.
In addition, the Chamber observed that Club C had already been in delay of
payment over the duration of the employment contract. In fact, as it is clearly
established in the agreement, the signing of the agreement derived from a
previous debt that Club C had towards the player for the season 2013/2014.
14.
With the above-mentioned considerations in mind, the DRC considered that it
could not follow the argument of Club C that the player terminated the contract
without just cause since the outstanding amounts were insubstantial. In fact, the
members of the Chamber were of the unanimous opinion that it could be
established that Club C had seriously neglected its contractual obligations towards
the player in a continuous manner. Indeed, at the moment of the termination of
the contract, Club C, out of six payments totaling the amount of EUR 127,500, had
only made one payment of EUR 17,500.
15.
Along these lines, the members of the Chamber wished to emphasise once again
that prior to the termination of the contract, i) Club C had already been in delay
of payment, ii) the player had already put Club C in default of payment twice and
iii) Club C failed to fulfil its promise contained in its letter of 7 April 2014 whereby
it stated that “our club now is trying to arrange cash flow (…) we are planning to
pay the amount in one month…”.
16.
On account of the above, the members of the Chamber concluded that given the
objective circumstances at the moment of the termination, the player had no
reasons to believe that Club C would comply with the rest of its obligations. As
such, his loss of confidence towards the club respecting its future duties under the
contract was therefore justified.
17.
As a consequence of the above, the Chamber unanimously decided that the player
had just cause to terminate the employment contract on 23 May 2014 and that
thus, Club C should be held liable for the consequences thereof.
18.
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 player.
19.
First of all, the members of the Chamber concurred that Club C must fulfill its
obligations as per the agreement in accordance with the general legal principle of
pacta sunt servanda. Consequently, the Chamber decided that Club C is liable to
pay to the Claimant the remuneration that was outstanding at the time of the
termination i.e. EUR 110,000 as per the payments due on 20 March, 20 April and
20 May 2014 in the amount of EUR 75,000 as well as his salaries of March and
April 2014 in the amount of EUR 35,000.
Player A, country B / Club C, country D / Club E, country F
Page 8 of 11
20.
In addition, taking into consideration the player’s claim, the members of the DRC
decided to award interest on said amount at the rate of 5% p.a. as of 23 May
2014.
21.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the player is entitled to receive from Club C compensation
for breach of contract in addition to any outstanding salaries on the basis of the
relevant employment contract.
22.
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
player 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 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
employment contract at the basis of the matter at stake.
24.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by Club C, the members of the Chamber took into account the
remuneration due to the player in accordance with both the agreement as well as
the employment contract, along with the professional situation of the player after
the early termination occurred. In this respect, the Chamber pointed out that at
the time of the termination of the contract, the remaining value of both the
contract and the agreement as from their early termination by the player until
their regular expiry amounts to EUR 717,500, comprised of EUR 17,500 as salary of
May 2014, EUR 200,000 as per the payments due in June 2014 and June 2015, EUR
250,000 for the season 2014/2015 and EUR 250,000 for the season 2015/2016. The
Chamber concluded that this amount which shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
25.
In continuation, the Chamber recalled that the player had entered into a new
employment with the club from country F, Club E, valid as of 1 July 2014 until 30
June 2015 and according to which, he was entitled to the total amount of USD
105,000. Consequently, in accordance with the constant practice of the Dispute
Player A, country B / Club C, country D / Club E, country F
Page 9 of 11
Resolution Chamber and the general obligation of the Claimant to mitigate his
damages, the above-mentioned amounts shall be taken into account in the
calculation of the amount of compensation for breach of contract.
26.
Furthermore, and in the context of the player’s obligation to mitigate his
damages, the members of the Chamber observed that whereas the player’s
contract with Club C would have run until May 2016, his new contract with Club E
ended in June 2015. Consequently, the Chamber underlined that the player will
have two complete registrations periods in order to further mitigate his damages.
27.
In view of all of the above, the Chamber decided that Club C must pay the
amount of EUR 550,000 to the player as compensation for breach of contract,
which is considered by the Chamber to be a reasonable and justified amount, as
well as 5% interest p.a. over said amount as from the date of the claim, i.e. 9
September 2014, until the date of effective payment.
28.
Finally, the Chamber concluded its deliberations by establishing that any further
claim lodged by the Claimant is rejected. Equally, and considering that Club C was
found to be in breach of the contract, the counterclaim of Club C is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent 1, Player A, is partially accepted.
2.
The Respondent/Counter-Claimant, Club C, is ordered to pay to the
Claimant/Counter-Respondent 1, within 30 days as from the date of notification
of this decision, outstanding remuneration in the amount of EUR 110,000 plus 5%
interest p.a. as of 23 May 2014 until the date of effective payment.
3.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent 1, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 550,000 plus 5%
interest p.a. as of 9 September 2014 until the date of effective payment.
4.
5.
In the event that the amounts plus interest due to the Claimant/CounterRespondent 1 in accordance with the above-mentioned numbers 2. and 3. are not
paid by the Respondent/Counter-Claimant within the stated time limits, the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
Any further claim lodged by the Claimant/Counter-Respondent 1 is rejected.
6.
The counter-claim lodged by the Respondent/Counter-Claimant is rejected.
Player A, country B / Club C, country D / Club E, country F
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7.
The
Claimant/Counter-Respondent
1
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 article 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
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country F
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