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 pson (England), Chairman
Wouter Lambrecht (Belgium ), member
Todd Durbin (US A), member
Theo v an S eggelen (Netherlands ), member
Takuy a Yamazaki (Japan), member
on the matter between the player,
Play er A, Country B,
as Claimant / Counter-Respondent
and the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country B
as intervening party
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 23 July 2015, the Player of Country B, Player A (hereinafter: the player or the
Claimant / Counter-Respondent), born on 1 May 1988, and the Club of Country D,
Club C (hereinafter: the club or the Respondent / Counter-Claimant) concluded an
employment contract (hereinafter: the contract), valid as from the date of signature
until 30 June 2018.
2.
Pursuant to art. 5 of the contract, the Claimant / Counter-Respondent was entitled
to receive the following remuneration:
- 2015-16 season:
USD 1,000 as monthly salary;
USD 208,000 as “sign-on fee and performance bonus” payable as follows:
USD 100,000 upon reception of the International Transfer Certificate;
USD 54,000 on 30 January 2016;
USD 54,000 on 30 April 2016;
- 2016-17 season:
USD 1,000 as monthly salary;
USD 213,000 as “sign-on fee and performance bonus” (free translation) payable
as follows:
USD 71,000 on 30 September 2016;
USD 71,000 on 31 December 2016;
USD 71,000 on 30 April 2017;
- 2017-18 season:
USD 1,000 as monthly salary;
USD 213,000 as “sign-on fee and performance bonus” payable as follows:
USD 71,000 on 30 July 2017;
USD 71,000 on 31 December 2017;
USD 71,000 on 30 April 2018.
3.
Art. 5 of the contract further specifies that “if [the club] fails to comply with the
payment deadlines mentioned above, within 24 hours for the first instalment of the
sign-on fee, and 14 working days for the other bonuses, the player’s contract will be
automatically terminated” (free translation).
4.
Besides, art. 11 of the contract reads as follows:
“The club establishes in writing the disciplinary rules applicable to the players in the
internal regulations of the club.
In case of violation of one of those rules or contractual obligations by the player,
the latter can be imposed the sanctions and fines foreseen in the sanction scale of
the club, the content of which the player declares being aware of” (free
translation).
Moreover, art. 14 of the contract states, inter alia, that “[i]n case of claim or
disputes arising out of the execution and/or interpretation of the clauses of the
present contract, the parties shall resort with priority to the means and procedures
aimed at solving the dispute amicably” (free translation).
5.
Player A, Country B / Club C, Country D / Club E, Country B
2
6.
On 5 February 2016, the player requested the club to pay the bonus due on 30
January 2016.
7.
On 29 June 2016, the player informed the club of the automatic termination of the
contract pursuant to “the relevant clauses and provisions in the contract”. In
particular, the player emphasised that the payment due on 30 April 2016 had not
been paid yet.
8.
On the same date, the club replied to the player’s correspondence, informing the
latter that two fines of 600,000 and of 13,000 respectively had been imposed on him
on 8 June 2016 due to his unauthorised absence since 22 May 2016 in accordance
with art. 11 of the contract. In this regard, the club informed the player that he had
a deadline of 10 days to challenge the decision before the NDRC of Country D.
9.
On 5 July 2016, the player rejected the sanction and reiterated that the contract had
been terminated automatically before he left Country D.
10.
On 15 September 2016, the Claimant / Counter-Respondent lodged a claim in front
of FIFA against the Respondent / Counter-Claimant for breach of contract,
requesting the following:
- USD 54,000 as outstanding remuneration, plus 5% interest per year as from 30
April 2016;
- USD 455,000 as compensation for breach of contract, plus 5% interest per year as
from 30 April 2016.
- The imposition of a sanction on the club;
- To order the club to bear the legal and procedural costs.
11.
In his claim, the Claimant / Counter-Respondent explains that in spite of the
Respondent / Counter-Claimant’s failure to pay his rent as well as the instalments
due on 30 January 2016 and 30 April 2016 on time, he continued to comply with his
obligations in good faith until 30 May 2016. In this regard, the Claimant / CounterRespondent alleges that on that date, the club’s president informed him that he
would not be paid the instalment due on 30 April 2016 and was free to leave the
club.
12.
In continuation, the Claimant / Counter-Respondent states that on 8 August 2016,
he entered into an employment contract with the Club of Country F, Club G. The
Claimant / Counter-Respondent however asserts that the Respondent / CounterClaimant rejected to issue the ITC and requested the payment of USD 30,000,
amount that he and Club G refused to pay. Equally, the Claimant / CounterRespondent points out that the Respondent / Counter-Claimant did not register him
for the new season. Therefore, the Claimant / Counter-Respondent concludes that
he remained without club due to the Respondent / Counter-Claimant’s behaviour.
Player A, Country B / Club C, Country D / Club E, Country B
3
13.
On 20 October 2016, the Respondent / Counter-Claimant replied to the claim and
lodged a counterclaim against the Claimant / Counter-Respondent, requesting the
following:
- USD 455,000 as compensation for breach of contract, plus 5% as from 1 July 2016;
- The imposition of a sanction on the player;
- To order the player to bear the procedural costs.
14.
In its counterclaim, the Respondent / Counter-Claimant explains that as from 22 May
2016, the Claimant / Counter-Respondent stopped attending training sessions and
left the country on 1 June 2016 without authorisation, which is the reason why a
disciplinary sanction was imposed on 8 June 2016. In this regard, the Respondent /
Counter-Claimant insists that, taking into accounts the fines, the Claimant / CounterRespondent had received, until his departure, 2,154,000 corresponding to all his
dues. In particular, regarding the payment of the sign-on fee and performance
bonuses, the Respondent / Counter-Claimant submitted the following documents:
- Receipt dated 23 September 2015 in the amount of 300,000;
- Receipt dated 23 September 2015 in the amount of 50,000;
- Receipt dated 15 October 2015 in the amount of 10,000;
- Receipt dated 27 October 2015 in the amount of 50,000;
- Bill of exchange dated 30 October 2015 in the amount of 200,000;
- Bank statement indicating a payment of 210,000 on 22 December 2015;
- Document dated 9 March 2016 by means of which the club instructed its bank to
provision the player with 200,000;
- Bill of exchange dated 18 March 2016 in the amount of 350,000.
15.
In continuation, the Respondent / Counter-Claimant argues that the Claimant /
Counter-Respondent committed a second breach of contract by signing an
employment contract with Club G. The Respondent / Counter-Claimant however
alleges that it accepted in good faith to negotiate with Club G and agreed that the
latter club would pay an amount of USD 30,000 to transfer the Claimant / CounterRespondent. Having reached this agreement, the Respondent / Counter-Claimant
states that it uploaded the relevant information and documentation in TMS, but
Club G eventually cancelled the instruction. Regarding the lack of registration, the
Respondent / Counter-Claimant outlines that it would not have made any sense to
register a player that was absent and about to be transferred to Country F.
16.
In his replica, the Claimant / Counter-Respondent highlights that the documentation
presented by the Respondent / Counter-Claimant demonstrated that since the very
beginning, the latter failed to comply with the payment deadlines stipulated in art.
5 of the contract.
Player A, Country B / Club C, Country D / Club E, Country B
4
17.
Furthermore, the Claimant / Counter-Respondent points out that the Respondent /
Counter-Claimant did not attempt to communicate with him after his departure.
18.
The Claimant / Counter-Respondent further stresses that the fines should be
disregarded. The Claimant / Counter-Respondent first outlines that the disciplinary
decision was taken in violation of his right to be heard since he was not informed of
the proceedings and therefore could not present his defence. Furthermore, the
Claimant / Counter-Respondent asserts that the decision was actually made on 29
June 2016 and then backdated. Equally, the Claimant / Counter-Respondent argues
that the fines refer to alleged breaches that occurred after the termination of the
contractual relationship. Moreover, the Claimant / Counter-Respondent emphasises
that in any case the amount of the fines is clearly disproportionate.
19.
In addition, the Claimant / Counter-Respondent alleges that he lost his position in
the senior national team due to the club.
20.
In continuation, the Claimant / Counter-Respondent emphasises the incoherence of
the Respondent / Counter-Claimant’s counterclaim, which is claiming USD 455,000,
whereas it was ready to transfer him for USD 30,000.
21.
In its final comments, the Respondent / Counter-Claimant asserts that considering
the fines as well as the date of his departure, the Claimant / Counter-Respondent
received an overpayment amounting to 320,600.
22.
Furthermore, the Respondent / Counter-Claimant emphasises that the Claimant /
Counter-Respondent was given the possibility to appeal the disciplinary decision but
voluntarily refused to do so. In this regard, the Respondent / Counter-Claimant
stresses that the decision of the NDRC of Country D could have been appealed
before FIFA.
23.
In continuation, the Respondent / Counter-Claimant questions why the Claimant /
Counter-Respondent did not resort to the procedure established in art. 14 of the
contract before leaving the club (cf. point 5 above).
24.
On 1 September 2016, the Claimant / Counter-Respondent and the Club of Country
B, Club E, concluded an employment contract, valid as from the date of signature
until 30 August 2018 and in accordance with which he is entitled to a monthly salary
of 1,000 (approx. USD 250). Furthermore, on 9 February 2017, the Claimant /
Counter-Respondent and the Club of Country B, Club H, concluded an employment
contract valid for one year and providing for a monthly remuneration of 3,000
(approx. USD 700).
25.
Having been invited to do so, Club E explains that it decided to offer a contract to
the Claimant / Counter-Respondent to relaunch his career after making sure that
Player A, Country B / Club C, Country D / Club E, Country B
5
the contractual relationship between him and the club had been terminated. In this
regard, Club E stresses that it was not involved at all in the termination.
26.
Finally, on 22 March 2017, the Claimant / Counter-Respondent submitted unsolicited
additional comments.
27.
According to TMS, on 7 August 2017, the player, the club and Club G signed a
transfer agreement, in accordance with which the parties agreed on the transfer of
the player from the club to Club G in exchange for the payment of USD 30,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter 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 20
October 2016. Consequently, the 2015 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 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, a Club of Country D and a
Club of Country B.
3.
Furthermore, the Chamber analysed which regulations 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 2016), and considering that the claim of the Claimant / CounterRespondent was lodged on 20 October 2016, the 2016 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 facts, arguments and documentary evidence which it considered
pertinent for the assessment of the matter at hand.
5.
Subsequently, the DRC observed that the Claimant / Counter-Respondent had
presented additional comments in spite of not having been invited to do so. As a
Player A, Country B / Club C, Country D / Club E, Country B
6
result, bearing in mind the Chamber’s constant jurisprudence in this regard and in
application of art. 9 par. 3 of the Procedural Rules, the Chamber decided not to take
into account the additional comments of the Claimant / Counter-Respondent
submitted on 22 March 2017.
6.
Having established the above, the DRC firstly acknowledged that the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant had signed an
employment contract on 23 July 2015, valid until 30 June 2018.
7.
In continuation, the Chamber noted that the Claimant / Counter-Respondent lodged
a claim against the Respondent / Counter-Claimant maintaining that the contract
was automatically terminated due to the Respondent / Counter-Claimant’s failure to
pay the down payment payable on 30 April 2016 in accordance with art. 5 of the
contract.
8.
Thereafter, the DRC took note that the Respondent / Counter-Claimant lodged a
counterclaim against the Claimant / Counter-Respondent alleging that the latter left
the country on 1 June 2016 without authorisation, which constitutes, in its opinion,
a breach of contract.
9.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant / Counter-Respondent
and the counterclaim of the Respondent / Counter-Claimant, was to determine
whether the employment contract had been unilaterally terminated with or
without just cause by the Claimant / Counter-Respondent, and which party was
responsible for the early termination of the contractual relationship in question.
10.
In this context, the Chamber recalled the content of art. 5 of the contract which
stipulates that “if [the club] fails to comply with the payment deadlines mentioned
above, within 24 hours for the first instalment of the sign-on fee, and 14 working
days for the other bonuses, the player’s contract will be automatically terminated”.
11.
In this respect, the Chamber deemed it important to highlight that this type of
clause, which provides for a specific definition of the just cause, must interpreted
strictly. With this in mind, the Chamber wished to emphasise that the Claimant /
Counter-Respondent himself acknowledged that he remained with the Respondent
/ Counter-Claimant until the end of the month of May 2016, i.e. more than 14
working days after the due date of the alleged outstanding payment. In view of the
above, and considering that the deadline established in the aforesaid clause was not
complied with, the Chamber came to the conclusion that the Claimant / CounterRespondent could not rely on art. 5 of the contract in order to terminate the
contractual relationship. Indeed, in the Chamber’s view, this would constitute a
violation of the principle of venire contra factum proprium.
Player A, Country B / Club C, Country D / Club E, Country B
7
12.
Having stated the above, the Chamber actually noted that on 7 August 2016, the
Claimant / Counter-Respondent and the Respondent / Counter-Claimant co-signed
the transfer agreement concluded with Club G, thereby demonstrating that they
still considered themselves bound by the contract. In the Chamber’s opinion, on that
date, the Claimant / Counter-Respondent and the Respondent / Counter-Claimant
clearly and unequivocally expressed their intention not to continue with the
contractual relationship. In this regard, the Chamber was eager to point out that
although the transfer did not go eventually through, both parties behaved as if
they had been released from the contractual link.
13.
In light of the foregoing, the Chamber held that both parties, by their respective
behaviour, manifestly expressed their intention of being no longer bound by the
contractual relationship and therefore concluded that none of them could be held
liable for the early termination of the contractual relationship.
14.
Having established the above, the DRC reverted to the Claimant / CounterRespondent’s claim for outstanding remuneration. In this respect, the Chamber
observed that the Claimant / Counter-Respondent argues that the Respondent /
Counter-Claimant failed to pay him the outstanding payment due on 30 April 2016.
15.
The Chamber noted that the Respondent / Counter-Claimant, for its part, asserts
that the Claimant / Counter-Respondent’s remuneration was reduced by means of
two fines imposed on him on 8 June 2016 due to his unjustified absence as from 22
May 2016.
16.
At this point and for the sake of good order, the Chamber recalled the basic principle of
burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to
which a party claiming a right from an alleged fact shall carry the respective burden of
proof.
17.
In relation to the above-mentioned fines, the DRC noted that the Claimant / CounterRespondent claims never having been informed of the existence of any pending fines
against him and that those penalties were, consequently, the result of a unilateral
procedure. The Chamber further observed that the Respondent / Counter-Claimant was
unable to provide any type of evidence regarding the Claimant / Counter-Respondent’s
due participation in the proceedings leading to the imposition of said fines.
18.
In view of the foregoing, the Chamber deemed that, in the absence of substantial
evidence with regard to the existence of the alleged fines and of the player’s
participation in such proceedings, it could not be taken into account in order to justify
the non-payment of part of the remuneration of the Claimant / Counter-Respondent.
19.
In this context, and irrespective of the foregoing consideration, the Chamber was eager
to emphasise that the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a means to set off outstanding financial
Player A, Country B / Club C, Country D / Club E, Country B
8
obligations towards players. Consequently, the Chamber decided to reject the
Respondent / Counter-Claimant’s argument in this regard.
20.
In continuation, the Chamber deemed it important to outline that in spite of being
still contractually bound to the Respondent / Counter-Claimant until August 2016, it
remains uncontested that the Claimant / Counter-Respondent did not render any
service to the latter between June and August 2016. As a consequence, and in virtue
of the principle of exceptio non adimpleti contractus, the Chamber held the
Respondent / Counter-Claimant was entitled to retain the Claimant / CounterRespondent’s salaries for the aforesaid period and therefore decided not to award
any amount to the Claimant / Counter-Respondent in this respect.
21.
In view of the above, in accordance with the principle of pacta sunt servanda, the
Chamber decided that the Respondent / Counter-Claimant is liable to pay the
Claimant / Counter-Respondent the amount of USD 54,000 corresponding to the
down payment due on 30 April 2016.
22.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. on the amount of USD 54,000 as
from 1 May 2016 until the date of effective payment.
23.
Consequently, the Chamber decided to partially accept the Claimant / CounterRespondent’s claim, and to reject the Respondent / Counter-Claimant’s
counterclaim.
24.
Finally, the DRC concluded his deliberations in the present matter by establishing that
any further claim lodged by the Claimant / Counter-Respondent is rejected.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
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 / Counter-Respondent,
w ithin 30 day s as from the date of notification of this decision, outstanding
remuneration in the amount of USD 54,000 plus 5% interest p.a. on said amount as
from 1 May 2016 until the date of effective payment.
4.
In the event that the amount plus interest due to the Claimant / Counter-Respondent in
accordance with the above-mentioned point 3. is not paid by the Respondent / Counter-
Player A, Country B / Club C, Country D / Club E, Country B
9
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.
5.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant 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 decis ion (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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D / Club E, Country B
10