Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 August 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Mons en (Norw ay ), member
Pav el Piv ov arov (Rus s ia), 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 case
1. On a not specified date, the Player of Country B, Player A, (hereinafter: the
Claimant) and the Club of Country D, Club C, (hereinafter: the Respondent) signed
an employment contract (hereinafter: the contract) valid as from July 2016 until 30
June 2017.
2. According to art. 9.1 of the contract, the Respondent undertook to pay the Claimant
a monthly salary of EUR 6,000, payable –pursuant to art. 9.5 of the contract– on the
25th day of the following month, and a signing fee amounting to EUR 17,000,
payable as follows:
a) EUR 12,000 on 25 July 2016;
b) EUR 5,000 on 25 January 2017.
3. Art. 9.2 of the contract stipulates the following bonuses:
“ 400 euro net / point regular season (26 games), […] as:
100% start the game in,
75% on the bench – come in min 1’,
50% on the bench – not played,
10% out of 18 players”.
4. Equally, in accordance with art. 9.3 of the contract, the Respondent committed to
pay the Claimant EUR 300 per month for the rent of a house and, pursuant to art.
9.4, to provide him with “2 plane tickets / season retour Country D – Country B”.
5. On 4 November 2016, the Claimant sent a letter to the Respondent requesting the
payment, within the following 10 days, of the amount of EUR 25,982, corresponding
to:
a) EUR 20,000 for outstanding salaries;
b) EUR 4,040 for bonuses;
c) EUR 1,200 for rent allowance;
d) EUR 742 for flight tickets.
6. On 7 November 2016, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting the amount of EUR 85,122, plus 5%
interest as from the relevant due dates, broken-down as follows:
a) EUR 20,000 for outstanding salaries corresponding to part of the month of July
2016 and to the months of August, September and October 2016;
b) EUR 4,040 for bonuses corresponding to the “points gained by the squad” in 14
matches played by the team in the regular season;
c) EUR 1,200 for rent allowance for the months from August until November 2016;
d) EUR 742 for two round-trip flight tickets Country B-Country D;
e) EUR 5,000 for the second instalment of the signing fee;
f) EUR 48,000 for compensation for breach of contract, corresponding to the
remaining monthly salaries as from November 2016 until June 2017;
Player A, Country B / Club C, Country D
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g) EUR 2,100 for compensation for breach of contract, corresponding to the rent
allowance for the months as from December 2016 until June 2017;
h) EUR 4,040 for compensation for breach of contract, corresponding to bonuses
“for points gained by the team in the remaining 13 games of the regular
season”.
7. In his claim, the Claimant stated that, despite his requests, the Respondent did not
pay him the requested outstanding remuneration and argued that, in view of the
Respondent’s alleged breach of contract, he was entitled to receive the claimed
amount. As to the outstanding bonuses, the Claimant presented a document which
shows a list of his match appearances, in the period between 22 July and 6
November 2016.
8. On 25 November 2016, the Claimant wrote a letter to the FIFA’s Administration,
alleging that the Respondent did not allow him to train and play with the team and
insisted on the non-payment. As a consequence thereof, the Claimant informed that,
on 17 November 2016, he sent a notice of termination of the contract to the
Respondent.
9. Despite having been invited by FIFA to provide its position on the claim, the
Respondent did not reply.
10. According to the TMS, on 16 January 2017, the Claimant signed a new employment
contract with the Football Club of Country E, valid as from the date of signature
until 31 May 2017, providing a total salary of 54,000.
11. Upon request of the FIFA Administration, the Claimant informed that, on 15 May
2017, he entered into another employment contract with the Football Club of
Country E, valid as from 1 June 2017 until 31 May 2018, providing a total salary of
200,000.
II. Cons iderations of the Dis pute Res olution Cham ber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 7 November
2016. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the
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 and 2 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
Player A, Country B / Club C, Country D
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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. The competence of the Chamber having been established, 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, 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 matter was submitted to
FIFA on 7 November 2016, the 2016 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4. Having established the foregoing, and entering into the substance of the matter, the
Chamber continued by acknowledging all 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, the Chamber noted that the parties entered into an employment contract valid
as from July 2016 until 30 June 2017.
6. Moreover, the DRC acknowledged that, on 4 November 2016, the Claimant put the
Respondent in default of outstanding remuneration, for the period between July
and October 2016, in the amount of EUR 25,982.
7. Subsequently, the Chamber noted that the Claimant lodged a claim against the
Respondent maintaining that he terminated the contract with just cause, since the
Respondent allegedly failed to pay his remuneration. Consequently, the Chamber
observed that the Claimant asked to be awarded his outstanding dues as well as the
payment of compensation for breach of the employment contract. Furthermore, the
Chamber also noted that the Claimant, after having lodged the claim, informed the
FIFA’s Administration that he sent a notice of termination of the contract to the
Respondent on 17 November 2016.
8. Equally, 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 was of the opinion that the Respondent renounced its
right of defence and, thus, accepted the allegations of the Claimant.
9. Along those lines, as a consequence of the aforementioned consideration, the
Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, it
shall take a decision upon the basis of the documentation on file; in other words,
upon the statements and documents presented by the Claimant.
10. In this context, the members of the Chamber took into consideration that, according
to documentation provided by the Claimant, at the time he terminated the contract,
Player A, Country B / Club C, Country D
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the Respondent failed to pay his remuneration in the total amount of EUR 25,982,
corresponding to:
- salaries for the months from July until October 2016 in the amount of EUR
20,000;
- match bonuses for the period between July and November 2016 in the amount of
EUR 4,040;
- rent allowance for the months from August until November 2016 in the amount
of EUR 1,200;
- reimbursement of two round-trip flight tickets Country B-Country D in the
amount of EUR 742.
11. In relation to the above-mentioned request, the members of the Chamber recalled
that, according to the contract, the Claimant was entitled to a monthly salary of EUR
6,000, plus the amount of EUR 17,000 payable in two instalments, of EUR 12,000 on
25 July 2016 and of EUR 5,000 on 25 January 2017 respectively. Furthermore, the
Respondent committed to pay the Claimant a monthly rent allowance of EUR 300 for
a house and to provide him with “2 plane tickets / season retour Country D –
Country B“.
12. In addition, the members of the Chamber noted that, as specified in the contract (cf.
point I.3 above), the Claimant was entitled to a series of bonuses referred to his
participation in official matches.
13. In this respect, the Chamber recalled the basic principle of the burden of proof,
according to which a party claiming a right on the basis of an alleged fact shall carry
the respective burden of proof. In particular, the members of the Chamber noted
that the Claimant provided sufficient evidence, in order to substantiate that said
bonuses were effectively due by the Respondent in the light of the Claimant’s
participation in the relevant matches.
14. On account of the aforementioned and, in particular in view of the considerations
made above, the Chamber established that the Respondent, without any valid
reason, failed to remit to the Claimant, until 17 November 2016, the total amount of
EUR 25,892, corresponding to his salaries for the period between July and October
2016, to the match bonuses from July until November 2016, to the rent allowance
from August until November 2016 and to the reimbursement of the flight tickets.
15. Consequently, and considering that the Respondent had for a significant period of
time (i.e. more than three months) been in breach of its contractual obligations
towards the Claimant, the Chamber decided that the Claimant had just cause to
unilaterally terminate the employment contract and that, as a result, the
Respondent is to be held liable for the early termination of the employment contact
with just cause by the Claimant.
16. Having established that the Respondent is to be held liable for the early termination
of the employment contract with just cause by the Claimant, the Chamber focused
Player A, Country B / Club C, Country D
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its attention on the consequences of such termination. In this regard, the members
of the Chamber determined that the Respondent was not only to pay the amount of
EUR 25,892 as outstanding remuneration to the Claimant, but also to pay
compensation for breach of contract in conformity with art. 17 par. 1 of the
Regulations.
17. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In
doing so, the members of the Chamber firstly recapitulated that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including in particular, the remuneration and
other benefits due to the Claimant 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.
18. 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.
19. As a consequence, the members of the Chamber determined that 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.
20. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract until 30
June 2017 and concluded that the player would have received a total remuneration
of EUR 55,100, equal to eight monthly salaries plus the second instalment of the
signing fee (cf. point I.2 above) and the rent allowance of seven months, had the
contract been executed until its expiry date.
21. 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 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.
Player A, Country B / Club C, Country D
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22. Indeed, the Claimant found employment with the Football Club of Country E, with
which he signed a contract valid as from 16 January 2017 until 31 May 2017, with a
total salary of 54,000, corresponding to approximately EUR 37,000.
23. Furthermore, the Claimant signed a further contract with the above-mentioned Club
of Country E valid as from 1 June 2017 until 31 May 2018, with a total salary of
200,000, corresponding to approximately EUR 135,000.
24. Consequently, the Chamber established that the value of the new employment
contracts as from 16 January until 30 June 2017 amounted to the total amount of
EUR 48,250, which exceeds the residual value of the contract with the Respondent
for the same period of time. Therefore, the Chamber decided that, even though the
Respondent is liable for the early termination of the employment contract with just
cause by the Claimant, there is no amount that should be awarded to the Claimant
as compensation for breach of contract for the period as from 16 January until 30
June 2017, since the Claimant has been able to fully mitigate his damages for said
time period.
25. However, the members of the Chamber noted that, as from 17 November 2016 until
the signature of his new employment contract on 16 January 2017, with the Football
Club of Country E, the Claimant remained unemployed and, therefore, decided that
he should be entitled to receive compensation for this specific period of time, i.e. for
a period of two months.
26. In accordance with the contract at the basis of the present dispute, during the
above-mentioned period, the Claimant was entitled to receive the amount of EUR
12,600, corresponding to two monthly salaries plus two monthly rent allowances.
27. Consequently, the Chamber decided that the Respondent is liable to pay
compensation for breach of contract in the amount of EUR 12,600 to the Claimant.
28. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the Claimant.
III. Decis ion 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 as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 25,892.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 12,600.
Player A, Country B / Club C, Country D
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4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and 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 is rejected.
6.
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 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 (CAS)
Avenue de Beaumont 2
CH-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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