Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 24 August 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Joaquim Ev angelis ta (Portugal), member
Todd Durbin (US A), 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
between the parties
I.
Facts of the cas e
1.
On 1 July 2016, the player of Country B, Player A (hereinafter: the player or
Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent)
signed an employment contract (hereinafter: the contract) and a schedule to it,
both valid as from 1 July 2016 until 30 June 2019.
2.
According to the schedule to the contract, the player was entitled, inter alia, to
the following remuneration:
“(c) Basic Salary.
31 000 in the currency of Country D per month from 31 July 2016 to 30 June 2017
31 000 in the currency of Country D per month from 31 July 2017 to 30 June 2018
31 000 in the currency of Country D per month from 31 July 2018 to 30 June 2019
(d) Any other provisions:
- Signing on fee of 200.000 in the currency of Country D paid in three instalments
1st year –70.000 in the currency of Country D
2nd year –70.000 in the currency of Country D
3rd year –60.000 in the currency of Country D
- For accommodation we give 1000 in the currency of Country D.
[…]
Club C will pay full salary as soon as the player gets his working visa.”
3.
In addition, article 8.1 of the contract stipulates the following:
“The footballer shall be paid a monthly salary as recorded on the schedule to this
contract by no later than the last business day of each month.”
4.
On 29 September 2017, the player put the club in default of the payment of the
total amount of 219,000 in the currency of Country D (approx. EUR 13,715 on 29
September 2017), corresponding to the monthly salaries of July and August 2016
and June, July and August 2017 in the amount of 31,000 in the currency of
Country D each, a part of the first instalment of the signing on fee in the amount
of 45,000 in the currency of Country D and accommodation from July 2016 until
August 2017 in the total amount of 19,000 in the currency of Country D. In the
same letter, the player also highlighted that “the validity of a contract cannot be
made subject to the grant of a work permit” and pointed out that the club
allegedly “indicated to the player that [it does] not want him anymore and that
he needs to write his resignation letter in order for the club to provide him with
his clearance”, which he refused to do. The player further points out that the
club’s “conduct is of great prejudice and that the player is unable to pay for his
accommodation, for food and for doctor and medication in respect of his injury
sustained during a match played for the club”. Finally, the player warned the club
Player A, Country B / Club C, Country D
Page 2 of 13
that, in case he would not receive any indication as to where and when he should
report for training and his outstanding remuneration until 10 October 2017, he
would terminate his contract with the club and refer the matter to FIFA.
5.
On 13 October 2017, having received no reply from the club, the player
terminated the employment contract with the club with effect as from 11 October
2017 and requested to be paid the amount of 261,000 in the currency of Country
D, consisting of 219,000 in the currency of Country D previously claimed (cf. point
I.4 above) plus 31,000 in the currency of Country D as the salary for September
2017, 10,000 in the currency of Country D as the pro rata salary for October 2017
and 1,000 in the currency of Country D as accommodation for September 2017.
6.
On 12 January 2018, the player lodged a claim against the club in front of FIFA
maintaining that he had just cause to terminate the contract and requesting to be
awarded the total amount of 1,053,000 in the currency of Country D (approx. EUR
70,600 on 12 January 2018), consisting of:
“1 Outstanding moneys –264,419.38 in the currency of Country D
1.1 Salary for July 2016 –31,000.00 in the currency of Country D;
1.2 Salary for August 2016 –31,000.00 in the currency of Country D;
1.3 Salary for June 2017 –31,000.00 in the currency of Country D;
1.4 Salary for July 2017 –31,000.00 in the currency of Country D;
1.5 Salary for August 2017 –31,000.00 in the currency of Country D;
1.6 Salary for September 2017 –31,000.00 in the currency of Country D;
1.7 Salary for 1-13 October 2017 –13,000.00 in the currency of Country D;
1.8 The signing on fee for the first year in the amount of currency of Country D
45,000.00 in the currency of Country D (70,000.00 – 25,000.00);
1.9 Accommodation since July 2016 till 13 October 2017 –20,419.38 in the
currency of Country D ((20 x 1,000.00) + 1,000.00 in the currency of Country
D/31 * 13 days)).
[…]
2. Compensation –788,580.62 in the currency of Country D:
Salary:
2.1 14 October 2017 – 31 October 2017: 18,000.00
2.2 1 November 2017 – 30 June 2018: 248,000.00
2.3 1 July 2018 – 30 June 2019: 372,000.00
[…]
Signing on fee:
2.4 Payment for signing on fee for the second year: 70,000.00 in the currency of
Country D.
Player A, Country B / Club C, Country D
Page 3 of 13
2.5 Payment for signing on fee for the third year: 60,000.00 in the currency of
Country D.
[…]
Accommodation Allowance:
2.6 14 October 2017 – 31 October 2017: 580.62 in the currency of Country D
2.7 1 November 2017 – 30 June 2018: 8,000.00 in the currency of Country D
2.8 1 July 2018 – 30 June 2019: 12,000.00 in the currency of Country D”
The player further claimed the imposition of a fine on the club as per art. 12bis
par. 4 lit. c) of the FIFA Regulations or appropriate sanctions as per the
aforementioned Regulations, as well as “interest on all moneys from date when it
were due till date of payment”.
7.
In his claim, the player argued that the club did not register him “with the league
for the 2017/2018 season”, and even though the player requested clarification on
this from the club in his correspondence dated 29 September 2017 (cf. point I.4
above), the club failed to answer.
8.
According to the player, the club informed him in a meeting in August 2017,
“that the Club does not want him anymore and that he needs to write his
resignation letter in order for the Club to provide him with his clearance. Mr. E
informed the Player that if he does not write his resignation letter, the Club will
call the Police in order to deport him back to his country.” The player added that
“despite the fact that the Club informed him that the Club does not want him
anymore, the Player continued to train at the club and rendered his services,
when possible.”
9.
The player claims that as a result of the “outstanding amounts of money
equivalent to 8 months’ salaries”, the fact that “the club never registered the
player with the league for the 2017/218 season” and that “during August 2017
the club informed the player that it has no longer any interest in the service of
the player”, he had a just cause to terminate the contract with the club on 13
October 2017.
10.
In its reply, the club argued that it paid all salaries to the player, except for May,
June and July 2017, as the player “was not available for June and July 2017”.
Furthermore, the club claimed that the player got injured at the end of the
2016/2017 season and after the summer break, the player failed to report back for
pre-season training on 7 July 2017, returning to work only on the second week of
August.
Player A, Country B / Club C, Country D
Page 4 of 13
11.
According to the club, “later that week” the player did not feel well and was sent
home by the coach. The club added that “he later came back end of August 2017
and requested to terminate his contract if he was paid his outstanding 3 month’s
salary, the club agreed and drafted his termination with this condition that he
must be paid outstanding salaries. He was supposed to come back and sign the
next day he never came.”
12.
Subsequently, the club feels that “Club C never did anything wrong or chase the
footballer away. He still have our work visa on his passport. The footballer is still
contracted with the club. He went missing after requesting termination.”
13.
Finally, after having been requested to do so, the player informed FIFA that he
remained unemployed since the termination of the contract.
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 12 January 2018. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2018;
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 (January 2018 edition) 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.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 20 August 2018 by means of which
the parties were informed of the composition of the Chamber, the Member F and
the Member G refrained from participating in the deliberations in the case at
hand, due to the fact that the Member F has the same nationality as the
Respondent and that, in order to comply with the prerequisite of equal
representation of club and player representatives, also the Member G refrained
from participating and thus the Dispute Resolution Chamber adjudicated the case
in presence of three members in accordance with art. 24 par. 2 of the Regulations.
Player A, Country B / Club C, Country D
Page 5 of 13
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
(January 2018 and June 2018 editions), and considering that the present claim was
lodged on 12 January 2018, the January 2018 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 this respect, the Chamber acknowledged that the parties had signed an
employment contract, valid as from 1 July 2016 until 30 June 2019, on the basis of
which the player was entitled to receive a monthly salary of 31,000 in the currency
of Country D and a signing on fee in the amount of 200,000 in the currency of
Country D, to be paid in three instalments, as well as 1,000 in the currency of
Country D for accommodation.
7.
The members of the Chamber then reviewed the claim of the player, who
maintains that he had a just cause to terminate the contract on 13 October 2017,
as the club failed to pay him 6 monthly salaries, i.e. July and August 2016 and
June, July, August and September 2017, a part of the signing on fee and the
accommodation from July 2016 until the date of termination. Consequently, the
Claimant asked to be awarded, inter alia, the payment of his outstanding
remuneration, including monthly salaries, accommodation fees and part of his
signing on fee, as well as compensation for breach of contract. The Chamber also
took note of the Claimant’s allegation, that the Respondent did not register the
player for the 2017/2018 season, explicitly informed the player that it was no
longer interested in his services and asked him to sign a resignation letter.
8.
The Chamber then turned its attention to the arguments of the Respondent and
acknowledged that the latter argued to have paid all salaries due to the player
except for May (not claimed), June and July 2017, due to the fact that he was
allegedly absent in June and July 2017. The Chamber also took note of the
Respondent’s allegations, that the Claimant failed to report back for pre-season
training on 7 July 2017, returning to work only on the second week of August
2017.
9.
On account of the above, the Chamber highlighted that the underlying issue in
this dispute was to determine as to whether the contract had been unilaterally
Player A, Country B / Club C, Country D
Page 6 of 13
terminated with or without just cause by the Claimant on 13 October 2017, with
effect as from 11 October 2017. The Chamber also underlined that, subsequently,
if it were found that the contract was terminated with just cause, it would be
necessary to determine the consequences thereof.
10.
Bearing in mind the arguments put forth by the Claimant and the Respondent, as
well as the contents of the employment contract, the Chamber acknowledged
that it remained undisputed by the Respondent that it did not pay the salary of
the Claimant for the months of May (not claimed), June and July 2017. The
Chamber further acknowledged that the Respondent argued that the reason why
it did not pay the above-mentioned salaries, was because the player was absent in
June and July 2017. However, the Chamber was eager to emphasise that the
Respondent itself stated in its reply, that the players were allowed to go on a
break after the end of the season in May and only had to return on 7 July 2017.
Furthermore, the Chamber noted that no substantial evidence of the player’s
alleged absence during the entire month of July 2017 was provided by the
Respondent.
11.
Subsequently, 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 on the basis of an alleged fact shall carry the respective burden of
proof.
12.
In view of the above, the Chamber observed that the Respondent did not submit
sufficient evidence – to the Chamber’s satisfaction – which could prove the
alleged unauthorized absence of the Claimant. In addition, the Chamber noted
that the Respondent also could not prove that it had paid the salaries of the
Claimant for July and August 2016 and for August and September 2017, the
outstanding part of his signing on fee or the accommodation fees for the period
from July 2016 to September 2017. Moreover, the DRC recalled that the club only
submitted screenshots from an alleged whatsapp conversation between the
Claimant and his team mate in a non-official FIFA language, without any
translation.
13.
On account of the above and taking into consideration the Chamber’s
longstanding jurisprudence in this respect, the Chamber established that on 11
October 2017, date on which the termination by the player was meant to become
effective, the player’s salaries for July and August 2016, and for June to
September 2017, as well as part of his signing on fee in the amount of 45,000 in
the currency of Country D in the , and the accommodation fees for the whole
period of July 2016 to September 2017 had remained outstanding. Thus, the
Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract on 13 October 2017 and that the Respondent is to be held liable for
the early termination of the contract with just cause by the player.
Player A, Country B / Club C, Country D
Page 7 of 13
14.
In continuation, having established that the club is to be held liable for the early
termination of the employment contract with just cause by the player with effect
as from 11 October 2017, the Chamber focused its attention on the consequences
of such termination.
15.
First of all, the members of the Chamber concurred that the club must fulfil its
obligations as per the employment contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the Chamber decided that the
club is liable to pay to the player the remuneration that was outstanding at the
time of the termination in the total amount of 246,000 in the currency of Country
D, consisting of the salaries for the months of July and August 2016 and June until
September 2017, à 31,000 in the currency of Country D each, the unpaid part of
the first instalment of the signing on fee in the amount of 45,000 in the currency
of Country D and the agreed amount for accommodation due from July 2016 until
September 2017 in the total amount of 15,000 in the currency of Country D.
16.
Furthermore, considering the player’s claim for interest and also taking into
account the Chamber’s longstanding jurisprudence, the Chamber ruled that the
club must pay 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
f.
g.
h.
a.
i.
j.
5% p.a. as from 2 July 2016 on the amount of 45,000 in the currency of
Country D;
5% p.a. as from 1 August 2016 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 September 2016 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 July 2017 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 August 2017 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 September 2017 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 October 2017 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 2 July 2016 on the amount of 1,000 in the currency of Country
D;
5% p.a. as from 2 August 2016 on the amount of 1,000 in the currency of
Country D;
5% p.a. as from 2 September 2016 on the amount of 1,000 in the currency of
Country D;
5% p.a. as from 2 October 2016 on the amount of 1,000 in the currency of
Country D;
Player A, Country B / Club C, Country D
Page 8 of 13
k.
5% p.a. as from 2 November 2016 on the amount of 1,000 in the currency of
Country D;
l. 5% p.a. as from 2 December 2016 on the amount of 1,000 in the currency of
Country D;
m. 5% p.a. as from 2 January 2017 on the amount of 1,000 in the currency of
Country D;
n. 5% p.a. as from 2 February 2017 on the amount of 1,000 in the currency of
Country D;
o. 5% p.a. as from 2 March 2017 on the amount of 1,000 in the currency of
Country D;
p. 5% p.a. as from 2 April 2017 on the amount of 1,000 in the currency of
Country D;
q. 5% p.a. as from 2 May 2017 on the amount of 1,000 in the currency of
Country D;
r. 5% p.a. as from 2 June 2017 on the amount of 1,000 in the currency of
Country D;
s. 5% p.a. as from 2 July 2017 on the amount of 1,000 in the currency of Country
D;
t. 5% p.a. as from 2 August 2017 on the amount of 1,000 in the currency of
Country D;
u. 5% p.a. as from 2 September 2017 on the amount of 1,000 in the currency of
Country D.
17.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the player is entitled to receive from the club compensation
for breach of contract, in addition to any outstanding salaries on the basis of the
relevant employment contract.
18.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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 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.
19.
In application of the relevant provision, the Chamber held that first of all, it 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
Player A, Country B / Club C, Country D
Page 9 of 13
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.
20.
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.
21.
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 as
from its date of termination with just cause by the Claimant, i.e. 11 October 2017,
until 30 June 2019, and concluded that the Claimant would have received in total
802,000 in the currency of Country D as remuneration had the contract been
executed until its expiry date. Consequently, the Chamber concluded that the
amount of 802,000 in the currency of Country D serves as the basis for the final
determination of the amount of compensation for breach of contract in the case
at hand, consisting of 21 monthly salaries à 31,000 in the currency of Country D
each, 21 months of accommodation fees à EUR 1,000 each and the second and
third instalments of the signing on fee, amounting to 70,000 in the currency of
Country D and 60,000 in the currency of Country D respectively.
22.
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.
23.
The Chamber noted that the Claimant had been unemployed since the
termination of the contract with the Respondent and therefore no further
deductions should be made to the amount of 802,000 in the currency of Country
D.
24.
In addition, taking into account the Claimant’s request and the DRC’s wellestablished jurisprudence, the Chamber decided that the Respondent must pay to
the Claimant interest of 5% p.a. on the amount of 802,000 in the currency of
Country D as of the date on which the claim was lodged, i.e. 12 January 2018,
until the date of effective payment.
Player A, Country B / Club C, Country D
Page 10 of 13
25.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to the imposition of a fine on the Respondent as per art. 12bis par. 4
lit. c) of the Regulations, as the present dispute does not meet the formal prerequisites of the application of art. 12bis of the Regulations.
26.
Finally, the Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
rejected.
*****
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
246,000 in the currency of Country D plus 5% interest p.a. until the date of
effective payment as follows:
a.
b.
c.
d.
e.
f.
g.
h.
a.
i.
j.
5% p.a. as from 2 July 2016 on the amount of 45,000 in the currency of
Country D;
5% p.a. as from 1 August 2016 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 September 2016 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 July 2017 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 August 2017 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 September 2017 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 1 October 2017 on the amount of 31,000 in the currency of
Country D;
5% p.a. as from 2 July 2016 on the amount of 1,000 in the currency of Country
D;
5% p.a. as from 2 August 2016 on the amount of 1,000 in the currency of
Country D;
5% p.a. as from 2 September 2016 on the amount of 1,000 in the currency of
Country D;
5% p.a. as from 2 October 2016 on the amount of 1,000 in the currency of
Country D;
Player A, Country B / Club C, Country D
Page 11 of 13
k.
5% p.a. as from 2 November 2016 on the amount of 1,000 in the currency of
Country D;
l. 5% p.a. as from 2 December 2016 on the amount of 1,000 in the currency of
Country D;
m. 5% p.a. as from 2 January 2017 on the amount of 1,000 in the currency of
Country D;
n. 5% p.a. as from 2 February 2017 on the amount of 1,000 in the currency of
Country D;
o. 5% p.a. as from 2 March 2017 on the amount of 1,000 in the currency of
Country D;
p. 5% p.a. as from 2 April 2017 on the amount of 1,000 in the currency of
Country D;
q. 5% p.a. as from 2 May 2017 on the amount of 1,000 in the currency of
Country D;
r. 5% p.a. as from 2 June 2017 on the amount of 1,000 in the currency of
Country D;
s. 5% p.a. as from 2 July 2017 on the amount of 1,000 in the currency of Country
D;
t. 5% p.a. as from 2 August 2017 on the amount of 1,000 in the currency of
Country D;
u. 5% p.a. as from 2 September 2017 on the amount of 1,000 in the currency of
Country D.
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 802,000 in the currency of Country D plus 5% interest p.a. on said amount as
from 12 January 2018 until the date of effective payment.
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 limits, 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 remittances in numbers 2. and 3. above are to
be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
Player A, Country B / Club C, Country D
Page 12 of 13
Note relating to the m otiv ated 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 (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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