Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 31 August 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Theo v an S eggelen (Netherlands), member
Wouter Lam brecht (Belgium), member
Todd Durbin (USA), member
Takay a Yam azaki (Japan), member
on the claim presented by the player,
Play er A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 27 August 2015, the Player of Country B, Player A (hereinafter: the Claimant)
signed an employment contract with the Club of Country D, Club C (hereinafter: the
Respondent) valid from 27 August 2015 until 31 May 2016, on loan from the Club of
Country B, Club E (hereinafter: Club E).
2.
The contract provides for monthly remuneration of USD 5,000 for each of the nine
months of validity of said contract. The contract also provides for the payment of USD
500 for “game for every official competition”.
3.
On 30 May 2017, the Claimant lodged a claim against the Respondent before FIFA
requesting to be paid a total of USD 40,000 plus 5% interest p.a. from 1 September
2015 until the date of effective payment as compensation for breach of contract.
4.
The Claimant claims that after having suffered an injury in September 2015, the
Respondent failed to pay the remaining amounts due in line with the employment
contract. The Claimant and the Respondent had agreed that the Claimant would be
sent to his home country for treatment and should return once he was able to re-join
the group. He claims that upon his return to Country D, he had been informed that
upon termination of the contract he would be free to continue with another club but
would not receive the remaining amount of eight months of unpaid wages.
Consequently, he deems to be entitled to USD 40,000 pertaining to the eight unpaid
monthly salaries.
5.
In spite of having been invited to do so, the Respondent did not reply to the claim of
the Claimant.
6.
From the information contained on the Transfer Matching System (TMS), it appears
the player returned to Club E on 6 July 2016 after the end of his loan with Club C.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 30 May 2017.
Consequently, the Rules governing the procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
Player A, Country B / Club C, Country D
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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.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (2016), and
considering that the present claim was lodged on 30 May 2017, the 2016 edition of
said regulations (hereinafter: Regulations) is applicable to the matter at hand as to
the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. The Chamber, however,
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.
The Chamber first acknowledged that the parties were contractually bound by an
employment contract dated 27 August 2015, valid as from the date of signature until
31 May 2016, and according to which the player was entitled to receive inter alia
monthly remuneration in the amount of USD 5,000 for the 9 months of contract.
6.
The members of the Chamber then reviewed the claim of the Claimant, who
maintains to have been sent back to Country B for treatment by the Respondent,
after suffering an injury in September 2015. Once he recovered, he allegedly returned
to Country D on a unspecified date, only to be informed by the Respondent that he
was being dismissed and would consequently not receive the 8 remaining monthly
salaries originally stipulated in the contract.
7.
Subsequently, the DRC noted that the Respondent failed to present its response to
the claim of the Claimant, in spite of having been invited to do so. By not presenting
its position to the claim, the DRC concurred that the Respondent renounced its right
of defence and, thus, accepted the allegations of the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the members of
the DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules, the
Player A, Country B / Club C, Country D
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Chamber shall take a decision upon the basis of the documentation already on file; in
other words, upon the statements and documents presented by the Claimant.
9.
On account of the above, the Chamber highlighted that the underlying issue in this
dispute was to determine whether the Respondent had had a just cause to dismiss the
player after his return from Country B. The Chamber also underlined that,
subsequently, if it were found that the contract was terminated by the Respondent
without just cause, it would be necessary to determine the consequences thereof.
10.
Having said that, the Chamber pointed out that there was no written evidence of the
termination of the contract by the Respondent on file, but in view of the fact that all
allegations of the Claimant remained entirely undisputed by the Respondent and that
the Claimant states that the termination was announced to him as 8 monthly salaries
were still to fall due, the Chamber came to the conclusion that the contract was
terminated by the Respondent on or about the end of September 2015. As per the
claim of the Claimant, no reason was provided for the termination. Therefore, the
Chamber concluded that the latter was made without just cause and in disregard of
its ultima ratio nature.
11.
For the sake of completion of its analysis, the Chamber deemed it appropriate to
remind the parties of its well-established jurisprudence, according to which an injury
or health condition of a player cannot be considered as a valid reason to cease the
payment of a player’s remuneration and even less so to terminate an employment
contract.
12.
In view of the above, the Chamber was of the opinion that the Respondent did not
have a just cause to prematurely terminate the contract with the Claimant on or
about the end of September 2015 and would thus be held liable for the financial and
sporting consequences of such breach.
13.
Prior to establishing the consequences of the breach of contract without just cause by
the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber
held that it had to address the issue of any unpaid remuneration at the moment the
contract was terminated by the Respondent. In this respect, the Chamber noted that
the Claimant does not claim any outstanding remuneration and implicitly admits
having received from the Respondent 1 monthly salary from the total of 9 salaries
due for the entire contractual period. Therefore, the Chamber concluded that no
outstanding remuneration was due to the Claimant.
14.
Having established the above, the Chamber turned its attention to the question of
the consequences of the unilateral termination of the contracts by the Respondent
without just cause on or about the end of September 2015.
Player A, Country B / Club C, Country D
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15.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that
the Claimant is entitled to receive compensation from the Respondent for the
termination of the contract without just cause.
16.
The members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including, in particular, the remuneration and
other benefits due to the Claimant under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years,
and depending on whether the contractual breach falls within the protected period.
17.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent 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.
18.
The members of the Chamber noted that no such clause was included in the contract
and, as a consequence, the amount of compensation payable by the Respondent to
the Claimant had to be assessed in application of the other parameters set out in art.
17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective criteria
may be taken into account at the discretion of the deciding body. In this regard, the
Dispute Resolution Chamber emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a case-bycase basis taking into account all specific circumstances of the respective matter.
19.
In order to estimate the amount of compensation due to the Claimant in the present
case, the members of the Chamber first turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of art.
17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and the new contract, if any, in the calculation of the amount of
compensation.
20.
Bearing in mind the consideration under point II.19 above, the Chamber concluded
that the amount of USD 40,000, i.e. corresponding to 8 months of remuneration in
Player A, Country B / Club C, Country D
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the amount of USD 5,000 serves as the basis for the final determination of the
amount of compensation for breach of contract.
21.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means
of which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for
breach of contract in connection with the player’s general obligation to mitigate his
damages.
22.
It was duly noted that, in accordance with the information contained in the TMS, the
player only returned to his original club in Country B, from which he had been loaned
to the Respondent, on 6 July 2016, i.e. after the original expiry date of the contract
with the Respondent. Thus, the Chamber concluded that the Claimant was not able to
mitigate the damages suffered from the premature termination of the contract by
the Respondent and no deductions would be made to the amount of USD 40,000,
corresponding to the residual amount of the contract.
23.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
the amount of USD 40,000 as compensation for breach of contract to the Claimant.
24.
In addition, taking into account the Claimant’s request as well as its well-established
jurisprudence, the Chamber decided that the Respondent must pay to the Claimant
interest of 5% p.a. on the amount of compensation as of the date on which the claim
was lodged, i.e. 30 May 2017, until the date of effective payment.
25.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant w ithin 30 day s from the date of
notification of this decision, compensation for breach of contract in the amount of
USD 40,000 plus 5% interest p.a. from 30 May 2017 until the date of effective
payment.
Player A, Country B / Club C, Country D
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3.
In the event that the aforementioned sum plus interest is not paid within the stated
time limit, the present matter shall be submitted upon request to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decision (legal remedy):
According to article 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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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