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 Monsen (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 12 August 2016, 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) which “enters into force on 12.08.2016 and be effective during
2016/2017 and 2017/2018 football seasons”.
2. In accordance with art. 6.1 of the contract, the player was entitled to a salary
of EUR 400,000 for season 2016/2017 and of EUR 450,000 for season
2017/2018. In particular, the salary for season 2016/2017 was payable as
follows:
a) EUR 50,000 on the date of signature of the contract;
b) EUR 50,000 on 31 August 2016;
c) EUR 75,000 on 30 November 2016;
d) EUR 75,000 on 31 January 2017;
e) EUR 75,000 on 31 March 2017;
f) EUR 75,000 on 31 May 2017.
3. According to art. 6.3 of the contract, the player was entitled to EUR 10,000 for
each season, “for the expenses with regard to – including but not limited with
– residence, car, flight tickets”.
4. On 26 April 2017, the player put the club in default for the payment of EUR
145,000, corresponding to part of the instalment due on 31 January 2017 and
to the entire instalment due on 31 March 2017, granting ten days to remedy
the default.
5. On 9 May 2017, the club replied to the player’s letter acknowledging that it
had receivables towards the player stating, however, that it had already paid
him EUR 60,000 on 4 May 2017.
6. On 10 May 2017, the player sent another letter to the club, by means of which
he acknowledged receipt of the payment of EUR 60,000 and put it in default
for the amount of EUR 85,000, requesting the payment within the following
five days.
7. On 16 May 2017, the player terminated the contract with immediate effect.
Player A, Country B / Club C, Country D
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8. On 9 August 2017, the player lodged a claim in front of FIFA against the club
for breach of contract, requesting the following:
a) EUR 85,000 plus 5% interest p.a., for outstanding salaries, broken-down as
follows:
i. EUR 10,000 for part of the instalment due on 31 January 2017, plus 5%
interest p.a. as of the same date;
ii. EUR 75,000 for the instalment due on 31 March 2017, plus 5% interest
p.a. as of the same date.
b) EUR 535,000 as compensation for breach of contract, corresponding to the
remaining value of the contract, plus 5% interest p.a. as of the date of the
claim.
9. In his claim, the player alleged that the club was constantly late with the
payment of his salary and he terminated the contract as he allegedly lost
confidence in the future performance of the club’s obligations. In particular
the player emphasised that the club completed the payment of the instalment
due on 30 November 2016 with 5 months of delay, as follows: EUR 30,000 on
17 February 2017, EUR 20,000 on 2 March 2017 and EUR 25,000 on 20 April
2017.
10. Moreover, the player argued that he terminated the contract with just cause,
as a significant amount – i.e. EUR 85,000 – corresponding to “nearly 3 month
salary” was due on the date he terminated the contract.
11. In its reply, the club affirmed that the player terminated the contract without
just cause because, on the date of termination, only the amount of EUR
48,680.49 was outstanding. In particular, the club stated that it paid the
following amounts to the player:
a) EUR 50,000 on 15 August 2016;
b) EUR 60,000 on 31 August 2016;
c) 18,800 in the currency of Country D, corresponding to EUR 5,639.04, on 28
September 2016;
d) 8,100 in the currency of Country D, corresponding to EUR 2,395.74, on 27
October 2016;
e) EUR 30,000 on 16 February 2017;
f) 14,000 in the currency of Country D, corresponding to EUR 3,714.21, on 23
February 2017;
g) 19,000 in the currency of Country D, corresponding to EUR 4,974.47, on 28
February 2017;
h) EUR 20,000 on 1 March 2017;
Player A, Country B / Club C, Country D
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i) EUR 30,000 on 20 April 2017;
j) EUR 60,000 on 4 May 2017;
k) 17,500 in the currency of Country D, corresponding to EUR 4,487.63, on 5
May 2017;
l) 20,000 in the currency of Country D, corresponding to EUR 5,108.42, on 9
May 2017.
In this regard, the club submitted alleged payment receipts, referring to the
payments under the above lit. a), b), c), d), e), h), i) and j) only, however not
translated in an official FIFA language.
12. In his replica, the player reiterated his previous arguments and acknowledged
that the club presented payment receipts for only two of the alleged
payments made in currency Country D- namely under point 11 lit. c) and d)
above - which, however, referred to the payment of match bonuses. What is
more, the player pointed out that said bonuses were not provided in the
contract.
13. Despite having been invited by the FIFA Administration to do so, the club did
not submit any comments on the player’s replica.
14. Upon request of the FIFA Administration, the player informed FIFA that, on a
not specified date, he entered into an employment contract with the club of
Country E, Club F, valid as from 1 July 2017 until 30 June 2019. According to
this new contract, the player, for season 2017/2018, is entitled to a monthly
salary of 216,667 in the currency of Country E “which is equal 54,166 Euro”
payable on the last day of each month as from 1 July 2017 until 30 June 2018.
15. After the closure of the investigation-phase, the club informed the FIFA
Administration that it paid the player the amount of EUR 50,000 on 29 March
2018. The player, upon request of FIFA, acknowledged receipt of such
payment.
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 9 August 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 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. In continuation, 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 9 August 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.
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 of 12 August 2016 until the end of season 2017/2018, which
entitled the Claimant to:
i)
a total salary of EUR 400,000 for season 2016/2017 payable as follows:
a)
EUR 50,000 on 12 August 2016;
b)
EUR 50,000 on 31 August 2016;
c)
EUR 75,000 on 30 November 2016;
d)
EUR 75,000 on 31 January 2017;
e)
EUR 75,000 on 31 March 2017;
f)
EUR 75,000 on 31 May 2017;
ii) a total salary of EUR 450,000 for season 2017/2018.
6. Moreover, the DRC acknowledged that it was undisputed that, on 10 May
2017, the Claimant put the Respondent in default of payment of EUR 85,000,
corresponding to part of the instalment due on 31 January 2017 and to the
entire instalment due on 31 March 2017, and thereafter terminated the
contract on 16 May 2017. Furthermore, the Chamber observed that the
Player A, Country B / Club C, Country D
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Respondent provided the Claimant with the payment of EUR 50,000 on 29
March 2018.
7. In continuation, the DRC noted that the Claimant alleged that the
Respondent breached the contract as it failed to pay him EUR 85,000, arguing
that such amount was corresponding to nearly three monthly salaries.
Moreover, the Claimant emphasised that the Respondent was constantly late
with the payment of his salaries and stressed that, in view of the abovementioned circumstances, he terminated the contract with just cause.
8. Equally, the Chamber took note of the reply of the Respondent, which
maintained that it provided the Claimant with the payments listed under
point I.11 above, arguing that, on the date the Claimant terminated the
contract, only the amount of EUR 48.680,49 was outstanding. Hence, the
Respondent averred that the Claimant terminated the contract without just
cause.
9. Furthermore, the DRC also duly noted that the Claimant rejected the
arguments raised by the Respondent and, in particular, he argued that the
Respondent, within its submission, only submitted two payment receipts for
the payments allegedly made in currency of Country D, namely those under
paragraph I.11 lit. c) and d). What is more, the Claimant maintained that said
payment receipts referred to two match bonuses which were not provided in
the contract.
10. In view of the foregoing considerations, the Chamber deemed that the
underlying dispute in the matter at hand was whether the relevant
employment contract had been terminated by the Claimant with or without
just cause and, depending on this finding, it would have to determine which
would be the potential consequence of said termination.
11. In continuation, the members of the Chamber referred to the basic principle
of burden of proof, as established in art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof.
12. With the above in mind, the members of the Chamber went on to analyse the
alleged payment receipts submitted by the Respondent in order to prove that
the execution of the payments under paragraph I.11 above. In this regard, the
members of the Chamber first recalled that, in accordance with art. 9 par. 1
lit. e) of the Procedural Rules, all documentation provided in the context of a
dispute in front of FIFA should be presented in the original version and, if
applicable, translated into one of the official FIFA languages (English, French,
Spanish and German). Bearing in mind the wording of the aforementioned
provision, the Chamber were eager to emphasise that the Respondent failed
Player A, Country B / Club C, Country D
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to submit such documents translated into one of the four official FIFA
languages which, therefore, could not be taken into account.
13. Consequently, the members of the DRC deemed that no substantial evidence
was provided by the Respondent with regard to the alleged payments and, in
accordance with the well-established jurisprudence of the DRC, the members
of the Chamber had no other option than not to take into account the
alleged payment receipts submitted by the Respondent.
14. On account of the aforementioned, and considering that the Respondent did
not invoke any other reason to justify the non-payment of the Claimant’s
salaries, the Chamber deemed that the Respondent, on the date of
termination of the contract by the Claimant - i.e. 16 May 2017- failed to pay
the amount of EUR 85,000 to the player. Moreover the members of the
Chamber pointed out that such amount is equivalent to more than two and a
half monthly salaries and concluded that, as the Respondent failed to pay said
remuneration without any valid reason, it could be established that the
Respondent had seriously neglected its contractual obligations towards the
Claimant in a continuous manner and for a significant period of time.
15. In view of the above, and taking into consideration the Chamber’s
longstanding jurisprudence in this respect, the Chamber decided that the
Claimant had just cause to unilaterally terminate the employment contract on
16 May 2017 and that, as a result thereof, the Respondent is to be held liable
for the early termination of the employment contact with just cause by the
Claimant.
16. In continuation, 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 its attention on the consequences of such
termination. In this regard, in accordance with the general legal principle of
pacta sunt servanda, the Chamber decided that the Respondent would be, in
principle, liable to pay to the Claimant the amounts which were outstanding
under the contract at the moment of the termination, i.e. EUR 85,000.
Nonetheless, the Chamber recalled that it remained undisputed that the
Respondent provided the Claimant with the payment of EUR 50,000 on 29
March 2018 and, thus, proceeded to deduct such amount from the monies
which were outstanding on the date of termination of the contract. On
account of the aforementioned considerations, the DRC concluded that
Claimant is entitled to receive from the Respondent outstanding
remuneration in the amount of EUR 35,000.
17. 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
Player A, Country B / Club C, Country D
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following the day on which the payment fell due in accordance with the
contract, i.e. 1 April 2017, until the date of effective payment.
18. 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.
19. 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.
20. 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.
21. 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 535,000, namely the last instalment for season
2016/2017 (i.e. EUR 75,000) and the entire remuneration for season 2017/2018
(i.e. EUR 460,000), had the contract been executed until its expiry date.
22. 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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23. Indeed, the Claimant found employment with the club of Country E, Club F,
which entitled him to a monthly salary of 216,667 in the currency of Country E
for season 2017/2018, corresponding to approximately EUR 54,166. Therefore,
for the period between 1 July 2017 until 30 June 2018, the player’s salary
amounted to EUR 595,826.
24. Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the DRC decided that the Respondent
must pay the Claimant the amount of EUR 75,000, which is to be considered a
reasonable and justified amount of compensation for breach of contract in
the matter at hand.
25. 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. 9 August 2017, until the date of effective payment.
26. 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 35,000, plus 5% interest p.a. as of 1 April 2017 until the date
of effective payment.
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 75,000, plus 5% interest p.a. as of 9 August 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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