Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 August 2016,
in the following composition:
Thomas Grimm (Switzerland), Chairman
Johan van Gaalen (South Africa), member
Todd Durbin (USA), member
on the matter between the player,
Player A, Country B
as Claimant / Counter-Respondent
and the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country F
as intervening Party
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 12 August 2014, the Player of Country B Player A (hereinafter: the player) and
the Club of Country D Club C (hereinafter: the club) signed an employment
contract valid as from 2 August 2014 until 31 May 2017 (hereinafter: the
contract).
2.
According to the contract, the player was entitled to receive, inter alia, the
following amounts:
In the 2014/2015 season:
the amount of EUR 375,000, payable in 10 equal instalments in the period
between August 2014 and May 2015 and due on the last day of the relevant
month;
In the 2015/2016 season:
the amount of EUR 400,000, payable in 10 equal instalments in the period
between August 2015 and May 2016 and due on the last day of the relevant
month;
In the 2016/2017 season:
the amount of EUR 400,000, payable in 10 equal instalments in the period
between August 2016 and May 2017 and due on the last day of the relevant
month.
3.
Moreover, the contract also contains the following clause: ‘This agreement also
continues to be valid after the professional football player agreement is signed. If
any disputes occur, clauses of this agreement will prevail. […] If the payments are
not paid in the due date, %2 default interests (monthly) would apply. […]‘.
4.
Furthermore, on 12 August 2014, the player and the club signed a document
referred to as ‘Professional Football Player Contract’ (hereinafter: the
professional contract), valid as from 12 August 2014 until 31 May 2017.
5.
On 8 April 2015, the player unilaterally terminated the contract with immediate
effect, because of the outstanding salaries in the amount of EUR 112,500 and the
fact that he was forced by the club to train alone. In addition, the player
provided a confirmation of the Football Federation of Country D, stating that the
contract between the player and the club was unilaterally terminated as per 8
April 2015.
Player A, Country B / Club C, Country D / Club E, Country F
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6.
On 28 April 2015, the player lodged a claim before FIFA against the club, claiming
outstanding remuneration and compensation for breach of contract in the total
amount of EUR 987,500, specified as follows:
Outstanding remuneration in the amount of EUR 112,500, specified as follows:
three monthly salaries for the months January, February and March 2015, in
the amount of EUR 37,500 each.
Compensation for breach of contract by the club in the amount of EUR 875,000,
as follows:
EUR 75,000 as residual value of the contract in the months April and May
2015 (i.e. EUR 37,500 x 2);
EUR 400,000 as residual value of the contract in the period between August
2015 and May 2016 (i.e. EUR 40,000 x 10);
EUR 400,000 as residual value of the contract in the period between August
2016 and May 2017 (i.e. EUR 40,000 x 10).
Additionally, the player requests 5% interest p.a. ‘as from April 2015’, procedural
costs to be paid by the club, as well as ‘disciplinary measures’ to be imposed on
the club in case of non-payment.
7.
In particular, the player holds that he received the salaries for the period
between August and December 2014 as per the contract, however that the club
failed to pay him the salaries for January, February and March 2015, in the
amount of EUR 37,500 each, therefore, leading to a total outstanding amount of
EUR 112,500. Further, the player holds that he was forced to train alone for
’about three weeks’.
8.
In its different submissions replying to the claim, the club argued that as from
March 2015, the player ‘started to not resume’ his contractual duties, as well as
that he left Country D in April 2015.
9.
Further, the club holds that ‘only from the claim submit to the FIFA date 8 April
2015 the club is informed that the player terminate his contract. The club never
had been informed about any warning and termination before’. According to the
club, the player did not ‘act in compliance with the mandatory procedure of
termination’, as confirmed by CAS.
10.
In addition, the club stated that it was relegated due to the players leave, and
that as a ‘result of his departure Club has lost EUR 20,000,000 because of
Player A, Country B / Club C, Country D / Club E, Country F
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relegation’ and that because of its relegation to the League of Country D, it
could no longer pay the amounts as agreed upon in the contracts with its players.
11.
Furthermore, the club stressed that the player left Country D without any
permission or notification while the season was in progress. Further, the club
provided copies of 3 notary records, dated 11 April, 13 April and 14 April 2015, in
which the club confirms that the player missed three training sessions (i.e. on 11
April, 13 April and 14 April 2015). The club also submitted a ‘notification’ dated
10 March 2015, in which the player was allegedly informed that he ‘is dropped
out of the squad indefinitely’.
12.
Moreover, the club reiterated that the player left the club without permission
and that he did not ‘act in compliance with the mandatory procedure of
termination’. Furthermore, the club holds that the player signed a new contract
with the Club of Country F Club E and that ‘he has not damaged’. Therefore, the
club concludes that ‘it could be’ that the player is not entitled to compensation at
all.
13.
With respect to the allegedly outstanding salary, the club holds that it paid the
player the amounts of EUR 187,500 and 49,998.57 (according to the club
corresponding to EUR 16,500). Therefore, the club holds that the player is not
entitled to the amount of EUR 875,000 as compensation for breach of contract.
14.
As a result, the club holds that the player terminated the contract without just
cause and lodged a counterclaim, claiming payment of the total amount of EUR
987,500 as compensation for the breach of contract.
15.
Moreover, the club stated that it follows from the jurisprudence of CAS that ‘the
late payments owed under a contract do not constitute a valid reason for
termination of the contract without a prior warning’. Because of the fact that the
player did not act in line with this jurisprudence, the club holds that the player
should pay the residual value of his contract, i.e. the amount of EUR 875,000 to
the club, therefore adapting its original counterclaim.
16.
Finally, the club asked for the rejection of the player’s claim, and the acceptance
of its counterclaim. In addition, the club requested for sporting sanctions to be
imposed on the player, as well as on his new club, the Club of Country F Club E.
Finally, the club requests that Club E is to be held jointly liable for the payment of
the amount of EUR 875,000.
Player A, Country B / Club C, Country D / Club E, Country F
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17.
In his reply to the counterclaim and submissions of the club, the player denies all
the allegations of the club and states that the club did not submit any evidence
of its statements. Further, the player holds that on 8 April 2015, he sent the
termination letter to the club, and that only ‘at the end of April 2015’, he
submitted his claim to FIFA.
18.
In addition, the player holds that he only left Country D, after the Football
Federation of Country D had expressly declared that the player unilaterally
terminated the contract.
19.
With respect to the club’s arguments on the mandatory procedure of
termination, the player holds that, since three monthly salaries were outstanding
and the club violated his rights to perform his football duties, he had a just cause
for the immediate termination of the contract.
20.
Moreover, the player argues that for 20 consecutive days, he was prevented from
accessing training sessions, which has to be considered as ‘serious detriment to a
professional football player career’.
21.
Subsequently, the player states that the club did not contest that three monthly
salaries were outstanding, as well as that it did not contest that the player was
‘separated from the team’ and was forced to practice alone.
22.
In conclusion, the player holds that – with reference to the jurisprudence of FIFA’s
DRC - he terminated the contract with just cause and that as a result, the
counterclaim of the club has to be rejected.
23.
In continuation, the player holds that it is clear that the termination date of the
contract is 8 April 2015 and that he terminated the contract with just cause on
said date. Further, the player rejects the club’s argument that his leave caused the
club’s relegation, by pointing out that it was actually the club, who ordered the
player to train alone.
24.
In addition, the player holds that he only received the amount of EUR 187,500,
and denies to have received the amount of 49,998.57. Furthermore, the player
states that he indeed did not attend the training sessions on 11 April, 13 April
and 14 April 2015, because he terminated the contract on 8 April 2015.
25.
In conclusion, the player asks for the rejection of the club’s counterclaim.
Player A, Country B / Club C, Country D / Club E, Country F
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26.
In reply to the counterclaim lodged by the club, the new club of the player, Club
E, confirmed that it concluded an employment contract with the player, valid as
from 1 July 2015 until ‘the end of the 2016/2017 season’, according to which the
player was entitled to receive a monthly salary of EUR 16,700.
27.
Furthermore, Club E holds that it acted in good faith, when it concluded a
contract with the player and referred to the confirmation the Football Federation
of Country D, stating that the contract between the player and the club was
unilaterally terminated as per 8 April 2015, which it received from the player (cf.
point 7. above). In conclusion, Club E holds that it never induced the player to
breach his contract with the club, since it only entered into negotiations with the
player on or around 15 June 2015 and that the player signed the contract with
Club E on 1 July 2015.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 28 April 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are 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 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2016)) 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,
with the involvement of a Club of Country F.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 11 August 2016, by means of which the
parties were informed of the composition of the Chamber, the Member G and the
Member H refrained from participating in the deliberations in the case at hand, due
to the fact that the Member G has the same nationality as the player and that, in
order to comply with the prerequisite of equal representation of club and player
representatives, also the Member H refrained from participating and thus the
Player A, Country B / Club C, Country D / Club E, Country F
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Dispute Resolution Chamber adjudicated the case in presence of three members in
accordance with art. 24 par. 2 of the Regulations.
4.
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 2016), and considering that the present claim was lodged on 28 April
2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
5.
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.
6.
In doing so, the DRC acknowledged that on 12 August 2014, the club and the
player signed an employment contract valid as from 2 August 2014 until 31 May
2017, in accordance with which the player was entitled to receive the total
amount of EUR 375,000 during the season 2014/2015, the total amount of EUR
400,000 during the season 2015/2016 and the total amount of EUR 400,000
during the season 2016/2017.
7.
In continuation, the Chamber also took note that it remained uncontested by
both parties that their contractual relationship was terminated by the player on 8
April 2015.
8.
In this regard, the Chamber took note of the argumentation of the player, who
insists on the fact that the breach of the contract occurred due to the fault of the
club, since it separated him from the first team, as well as that the club failed to
pay him his salaries as from January 2015. In this respect, the members of the
Chamber noted that the player argued that for more than 20 consecutive days,
he had to train alone and was prevented from accessing the club’s training
sessions. As a result, according to the above-mentioned circumstances, the player
considers that the club breached the contract by excluding him from the first
team, and by not paying him his monthly salaries as from January 2015.
9.
Furthermore, the members of the Chamber took due note of the fact that the
club argued that the player had unilaterally terminated the contractual
Player A, Country B / Club C, Country D / Club E, Country F
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relationship without just cause, by not fulfilling his contractual duties and by
leaving Country D in April 2015. Furthermore, the club held that it paid the
player the amounts of EUR 187,500 and 49,998.57, as well as that the player
terminated his contract without acting ‘in compliance with the mandatory
procedure of termination’. In this respect, the club further referred to the fact
that ‘a prerequisite for terminating an employment contract because of a late
payment is that the employee must have given a written warning’. Based on the
aforementioned circumstances, the club maintained that the player had terminated
the contract without just cause and therefore claims EUR 875,000 as compensation
for the unjustified termination of the contract by the player.
10.
Considering the opposite position of the parties, the Chamber deemed that the
underlying issue in this dispute, considering the claim and counterclaim
respectively lodged by the parties, was to determine whether the 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,
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.
11.
In this context, the Chamber considered that it remained uncontested by the club
that the salaries for the months of January, February and March 2015 were not
timely paid and remained outstanding on the date of termination of the
contract, as well as that the player was obliged to train alone, the latter
circumstance even being explicitly acknowledged by the club, which stated that
on 10 March 2015 the player ‘was dropped out of the squad’. Moreover, the DRC
took note that it also remained uncontested that the player stayed at least until
April 2015 in Country D. On the other hand, the Chamber took note of the
argument of the club, that the player remained to ‘not resume his contractual
duties’ as from March 2015 and that he had no just cause to terminate the
contract.
12.
At this point, the members of the DRC first of all considered important to point
out, as has been previously sustained by the DRC, that among a player’s
fundamental rights under an employment contract, is not only his right to a
timely payment of his remuneration, but also his right to access training and to
be given the possibility to compete with his fellow team mates in the team’s
official matches. In this context, the DRC emphasized that by refusing a player to
take part in trainings or official matches, a club is effectively barring, in an
Player A, Country B / Club C, Country D / Club E, Country F
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absolute manner, the potential access of a player to competition and, as such,
violating one of his fundamental rights as a football player.
13.
In casu, the DRC pointed out that at the time of the termination of the contract,
i.e. on 8 April 2015, it is a fact that the player had been excluded from the club’s
first team and was not taking part in the team’s activities for approximately one
month. Moreover, the player had not been paid his monthly salary since January
2015.
14.
In view of the above, the members of the DRC highlighted that, at the moment
the player terminated the contract, i.e. on 8 April 2015, the player could not have
expected that his situation of not being part of the first team of the club and not
being paid his monthly salary, would improve at short notice and thus, that the
player had strong reasons to believe that the club was no longer interested in
him. In this respect, and in relation to the argument of the club that allegedly the
player did not follow the ‘mandatory procedure of termination’, the DRC
highlighted that although the player did not inform the club of its default before
terminating the contract on 8 April 2015, it remains uncontested that the club failed
to pay to him the monthly salaries for January, February and March 2015. Thus,
taking into account such an important delay in payment, the members of the
Chamber deemed that the player could in good faith believe that, in spite of a
hypothetical notice informing about its default, the club would have persisted on the
noncompliance with the financial terms of the contract.
15.
In light of the aforementioned, the DRC came to the unanimous conclusion that,
considering the situation of the player at the time of the termination, the
objective circumstances at the time of the termination did provide the player
with a just cause to prematurely terminate the employment contract.
16.
Having established that the club 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 player is entitled to receive from the
club an amount of money as compensation for breach of contract in addition to
any outstanding payments on the basis of the relevant employment contract.
17.
Along those lines, the Chamber firstly referred to the player’s request regarding
the outstanding salaries at the time of the unilateral termination of the contract,
and in this respect noted that the club argued having paid to the player the total
amount of EUR 187,500 (allegedly corresponding to the player’s salary for the
months of August, September, October, November and December 2014), as well
Player A, Country B / Club C, Country D / Club E, Country F
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as the amount of 49,998.75. Furthermore, the DRC noted that the club provided
payment receipts related to said alleged payments.
18.
Subsequently, the members of the Chamber observed that the club had not
contested or given any valid explanations or justifications for the non-payment of
the relevant salaries for the months of January, February and March 2015 in the
amount of EUR 37,500.
19.
Furthermore, the members of the Chamber noted that the player did not contest
that he had received salary payments up to the amount of EUR 187,500, but
contested having received the amount of 49,998.57. In this context, the Chamber
was of the unanimous opinion that the club submitted sufficient documentary
evidence to prove, at its satisfactory, that it paid the amount of 49,998.57 to the
player. As a result, the members of the Chamber held that, it could be established
that the player also received said amount, which corresponds to approximately
EUR 16,500.
20.
In view of the above, the members of the Chamber stressed that the club must
fulfill its obligations as per employment contract in accordance with the general
legal principle of “pacta sunt servanda”. Consequently, taking into account that
the employment contract was terminated on 8 April 2015, the Chamber decided
that the club is liable to pay the player the remuneration that was outstanding at
the time of the early termination of the employment contract by the player. This
outstanding amount corresponding to EUR 96,000, compromised of the
outstanding salaries for the months of January, February and March 2015, in the
total amount of EUR 112,500, minus the amount of EUR 16,500 that the player
received.
21.
Moreover, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the amount of
outstanding remuneration, i.e. EUR 96,000 as of 28 April 2015, as per the player’s
request, until the date of effective payment.
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
Player A, Country B / Club C, Country D / Club E, Country F
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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 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 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.
25.
Bearing in mind the foregoing as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the employment contract until 31 May 2017. Consequently the Chamber
concluded that the amount of EUR 875,000 (i.e. the salaries as from April 2015
until May 2017) 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 player 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 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.
In this context, the Chamber noted that the player had signed on 1 July 2015, an
employment contract with the Club of Country F Club E, valid as from 1 July 2015
until the end of the 2016/2017 season, by means of which he would receive in the
period between 1 July 2015 until 31 May 2017 the total amount of EUR 384,100.
Player A, Country B / Club C, Country D / Club E, Country F
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28.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the
amount of EUR 490,900 to the player which was considered reasonable and
proportionate as compensation for breach of contract in the case at hand.
29.
In addition, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the amount of
compensation, i.e. EUR 490,900 as of the date of the claim, i.e. 28 April 2015 until
the date of effective payment.
30.
Furthermore, the members of the Chamber decided to reject any further claim
lodged by the player.
31.
The Chamber concluded its deliberations in the present matter by rejecting the
counterclaim lodged by the club, as it has been established that the player had
just cause to terminate the employment contract.
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 EUR 96,000, plus 5% interest p.a. as
from 28 April 2015 until the date of effective payment.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 490,900, plus 5%
interest p.a. on said amount as from 28 April 2015 until the date of effective
payment.
5.
In the event that the amounts due to the Claimant / Counter-Respondent in
accordance with the above-mentioned numbers 3. and 4. are not paid by the
Respondent / Counter-Claimant within the stated time limit, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
Player A, Country B / Club C, Country D / Club E, Country F
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6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
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. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl.: CAS directives
Player A, Country B / Club C, Country D / Club E, Country F
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