Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 10 August 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Carlos González Puche (Colom bia), member
Eirik Mons en (Norw ay ), member
Juan Bautis ta Mahiques (Argentina), member
Daan de Jong (The Netherlands ), 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 23 January 2017, the Player of Country B, Player A (hereinafter: the Claimant or the
player) and the Club of Country D, Club C (hereinafter: the Respondent or the club)
signed an employment contract (hereinafter: the contract) valid as from the date of
signature until 31 May 2017.
2. According to art. 3 of the contract, the player was entitled to a salary of EUR 200,000,
payable in four instalments of EUR 50,000 each on the following dates: 10 February, 10
March, 10 April and 31 May 2017.
3. Art. 3, lit. c) of the contract stipulates that “in case of non-payment of salaries, […] in
the amount of at least two consecutive instalments, the Player shall inform the Club
officially and in written notice form. The Player will be entitled to terminate the
employment contract with just cause if the Club fails to fulfil its financial obligations
within 15 days upon the receipt of the formal written notice”.
4. On 19 April 2017, the player put the club in default of payment in the total amount of
EUR 135,000, corresponding to part of the first instalment and to the entire second and
third instalment, setting a time limit expiring on 4 May 2017 in order to remedy the
default.
5. According to the player, on 16 May 2017 he sent a letter to the club by means of which
he terminated the contract, affirming that more than 15 days had passed since he put
the club in default.
6. On 16 June 2017, the player lodged a claim against the club before FIFA for breach of
contract, requesting the following:
a) EUR 135,000 as outstanding salaries, broken-down as follows:
-
EUR 35,000 as part of the first instalment;
-
EUR 50,000 for the second instalment;
-
EUR 50,000 for the third instalment.
b) EUR 50,000 as compensation for breach of contract, corresponding to the remaining
value of the contract;
c) Interest at 5% p.a. on the aforementioned amounts as of the due dates;
d) Sporting sanctions on the club.
7. In his claim, the player affirmed that he rendered his services to the club and
terminated the contract with just cause on 16 May 2017.
Player A, Country B / Club C, Country D
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8. Moreover, the player maintained that, after said termination of the contract, he did
not sign any new employment contract with any other club during the relevant period.
9. Despite having been invited to provide its comments on the present matter, the club
did not reply to the claim within the deadline set by the FIFA administration.
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 the
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on 16
June 2017. Consequently, the DRC concluded that the 2017 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 2018), 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 (edition 2018), and
considering that the present claim was lodged on 16 June 2017, the 2016 edition of
said 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, 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.
5. Having said that, the members of the Chamber acknowledged that, on 23 January
2017, the Claimant and the Respondent concluded an employment contract valid as
from the date of signature until 31 May 2017, pursuant to which the Claimant was
entitled to a total salary of EUR 200,000, payable in four instalments of EUR 50,000
each, respectively on 10 February, 10 March, 10 April and 31 May 2017.
Player A, Country B / Club C, Country D
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6. Moreover, the DRC acknowledged that, on 19 April 2017, the Claimant put the
Respondent in default of the payment of outstanding salaries in the total amount of
EUR 135,000.
7. Furthermore, the Chamber observed that the Claimant eventually terminated the
contract alleging that more than 15 days had passed since the date of his previous
default notice.
8. In continuation, the DRC noted that the Claimant affirmed that the Respondent
breached the contract as it failed to pay the outstanding salaries for the total amount
EUR 135,000, corresponding to part of the first instalment and to the entire second and
third instalment set out in the contract. Moreover, the Claimant emphasised that the
Respondent did not reply to his notice of termination and stressed that, in view of the
above-mentioned circumstances, he terminated the contract with just cause.
9. At this point, the members of the Chamber observed that the Respondent did not
submit its reply to the claim within the time limit set by the FIFA Administration. As a
result, in line with art. 9 par. 3 of the Procedural Rules as well as the Chamber’s
constant jurisprudence in this regard, the DRC established that it shall take a decision
on the basis of those documents on file that were provided prior to the deadline set by
FIFA, in casu, on the statements and documents presented by the Claimant.
10. With the above in mind, the Chamber highlighted that the underlying issue in this
dispute was to determine as to whether the contract had been terminated by the
Claimant with just cause and, subsequently, to determine the consequences thereof.
11. In so doing, the members of the DRC observed that the Claimant put the Respondent in
default of payment on 19 April 2017 for the amount of EUR 135,000 and, thereafter on
16 May 2017, he terminated the contract. In this regard, the DRC recalled that,
according to art. 3 lit. c) of the contract “in case of non-payment of salaries, […] in the
amount of at least two consecutive instalments, the Player shall inform the Club
officially and in written notice form. The Player will be entitled to terminate the
employment contract with just cause if the Club fails to fulfil its financial obligations
within 15 days upon the receipt of the formal written notice”.
12. On account of the above, the Chamber concluded that not only the Claimant
terminated the contract in accordance with art. 3 lit. c) of the contract, but also that
the Respondent had blatantly neglected its contractual obligations towards the
Claimant by failing to pay the latter salaries in the amount of EUR 135,000, which
corresponds to more than half of the salary set out in the contract.
13. On account of the above-mentioned considerations, the Chamber decided that the
Claimant terminated the contract with just cause and, therefore, the Respondent is to
be held liable for said termination.
14. In continuation, prior to establishing the consequences of the termination of the
contract with just cause by the Claimant, the Chamber decided that the Respondent
Player A, Country B / Club C, Country D
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must fulfil its obligations as per the contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the Chamber decided that the
Respondent is liable to pay to the Claimant part of the first instalment, as well as the
entire second and third instalment, in the total amount of EUR 135,000.
15. In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. as of the day following the day on
which each instalment fell due in accordance with the contract until the date of
effective payment.
16. In continuation and 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 decided that, taking into consideration art.17 par. 1 of the Regulations, the
Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to the aforementioned outstanding remuneration.
17. In this context, the Chamber outlined that in accordance with said provision 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 whether the pertinent employment contract contained any clause, by means of
which the parties had beforehand agreed upon a 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 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. Bearing
in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the contract as from its termination and
concluded that the Claimant would have been entitled to receive EUR 50,000, namely
the fourth and last instalment, as remuneration had the contract been executed until
its regular expiry date, i.e. 31 May 2017.
20. In continuation the Chamber assessed as to whether the Claimant has 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 DRC, such remuneration under a new employment contract(s) 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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21. In respect of the above, the Chamber recalled that the Claimant had not signed any
other employment contract after the termination of the one at stake in the present
matter and, therefore, he was not able to mitigate his damages.
22. Consequently, on account of all of the above-mentioned considerations, the Chamber
decided that the Respondent must pay the amount of EUR 50,000 to the Claimant as
compensation for breach of contract.
23. In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, 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. 16 June 2017, until the
date of effective payment.
24. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is 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 EUR
135,000, plus 5% interest p.a. until the date of effective payment, as follows:
a.
b.
c.
as of 11 February 2017, on the amount of EUR 35,000;
as of 11 March 2017, on the amount of EUR 50,000;
as of 11 April 2017, on the amount of EUR 50,000.
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
50,000, plus 5% interest p.a. as of 16 June 2017 until the date of effective payment.
4. In the event that the amounts plus interest due to the Claimant in accordance with the
above-mentioned 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.
Player A, Country B / Club C, Country D
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6. The Claimant is directed to inform the Respondent 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 m otiv ated decis ion (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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