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 Batis 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
between the parties
I.
Facts of the cas e
1.
On 15 June 2015, 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) concluded an employment contract (hereinafter: the contract),
valid as from 15 June 2015 until ‘2018 football season’, according to the player
between 15 June and 31 December 2018.
2.
Furthermore, a declaration referred to as ‘registration of player under written
contract’ is on file, which holds that the player agrees to be registered with the
club as from 15 June 2015 until 31 December 2018.
3.
According to the ‘schedule’ attached to the contract, the player was entitled to
receive a monthly salary of 170,000 (approximately USD 853 on 15 June 2015)
per month, from 15 June 2015 until 31 December 2018.
4.
Article 12.4.1 of the contract holds the following clause: ‘A footballer’s
contract may be terminated without pay or without notice (or payment in lieu
thereof) for serious misconduct I the first occurrence thereof, repeated
misconduct, or for any misconduct in respect of which the footballer has
received a written warning during the preceding 12 (twelve) months’.
5.
Moreover, article 12.4.3 stipulates the following:
‘The following (or similar forms of misconduct) are examples of serious
breaches for which a football’s contract may be terminated without pay,
without notice or payment in lieu of notice on the first occurrence thereof.
These examples are not limited: 12.4.3.1 Insubordination to any coach or
management of the club, 12.4.3.2. The failure to attend training or any club
function without reasonable excuse, 12.4.3.3 The failure to arrive at the match
whether League, Cup, friendly or training without reasonable excuse. 12.4.3.4
Any failure to comply with the League E or any other Football Regulations,
12.4.3.5 The taking of any banned or prohibited substance, 12.4.3.6 Physical
assault of another footballer or employee of the club, 12.4.3.7 The
communication of adverse comment regarding the club to the media without
prior written consent of the club’.
6.
On 10 August 2017, the player lodged a claim against the club in front of FIFA,
requesting outstanding remuneration and compensation for breach of
contract to be paid by the club, as follows:
Outstanding remuneration in the total amount of 3,570,000, specified as
follows:
Player A, Country B / Club C, Country D
2
21 monthly salaries of 170,000 each, corresponding to the period ’31
October 2015 to 30 June 2017’;
5% interest p.a. as from 31 October 2015;
Compensation for breach of contract in the total amount of 3,060,000, as
follows:
18 monthly salaries of 170,000 each, corresponding to the period ’30 June
2017 until 31 December 2018’;
‘an additional fine’, ‘for non-payment of the outstanding salaries as
narrated above’;
5% interest p.a.;
Finally, the player requested for sporting sanctions to be imposed on the club.
7.
In his claim, the player explains that for the first year, the club only paid him
the monthly salaries in the period between ‘July 15 till 30 September 2015’ and
that in the period thereafter, the club ‘stopped paying him monthly without
sporting just cause’.
8.
What is more, the player explains that he put the club in default on several
occasions for the outstanding remuneration, that is, on 2, 9 and 25 February
2016, on 30 March 2016, on 5 and 20 April 2016, on 17, 22 and 24 August 2016,
on 9 and 22 September 2016, on 6 and 18, 21 February 2017, on 22 May 2017
and on 3 July 2017, however to no avail.
9.
Subsequently, on 2 June 2017, the League Management Company instructed
the club to reply to the player’s letter and to find a solution to the matter at
hand. In line with this request, the club, on 9 June 2017, sent a letter to the
player, proposing an amicable solution. On 14 June 2017, the player’s
representative replied to said letter, indicating that the player agreed with
finding an amicable solution and was waiting for a concrete proposal from the
club.
10.
On 13 July 2017, after not having received a reply to his letter dated 14 June
2017, the player sent a letter to the club, explaining that due to the lack of
reply, he was no longer willing to enter into an amicable settlement, as well as
that he would ‘test this case at the Dispute Resolution Chamber of FIFA’.
Player A, Country B / Club C, Country D
3
11.
Further, the player explains that only on 30 June 2017, the club issued ‘his
letter of clearance to play for any club of his choice without paying the
outstanding salaries […]’. As a result of the alleged delay in issuing the
clearance letter, the player explains that he could not find a new club to play
for.
12.
In its reply, the club denied to have received any of the default letters the
player alleged to have sent. Further, the club explains that after the player’s
letter dated 14 June 2017, ‘it was waiting for the player’s representatives, but
they failed to show up’.
13.
In addition, the club explains that it paid the player for the month he played
for the club, and that after the player got injured and did not play for the club
anymore, it ‘took care of him’. What is more, the club argues that due to his
injury, the player failed to fulfil his contractual obligations, although it ‘paid
salaries and other emoluments’ and that as per the contents of article 12.4.1
and 12.4.3, the contract could be validly terminated. Finally, the club explains
that ‘the contract was terminated on July, 2015 due to injury sustained’ and
that it is ready to pay an amount of 1,500,000.
14.
In conclusion, the club requests for the rejection of the player’s claims, also,
without further clarification, arguing that ‘the suit offends the provision of
section 24 (1) of the Regulations on the Status and Transfer of Players, Zurich,
December 2004/October 2007’.
15.
In his replica, the player denies the club’s argument that it never received any
correspondence from him. In this respect, the player submitted copies of 8
letters he alleged to have sent to the club, all containing a stamp of the
‘Football Agency of State F, and confirming receipt of the respective letters.
Further, the player refers to the club’s letter dated 9 June 2017 in which the
club confirmed that it received the player’s correspondence, as well as to his
letter dated 14 June 2017, in which he explained that he was waiting for a
proposal from the club.
16.
Without further clarification, the player also submitted a letter dated 31 July
2017, with the topic ‘Adjudication in dispute between player, Player A and
Club C’, sent by the League Management Company to the club, in which it is
stated that the club ‘failed to comply with its financial obligations towards a
player as per the terms stipulated in the contract signed’. Further, the letter
contains a confirmation that a sum of 2,890,000 ‘shall be withheld from any
distribution of money otherwise due to Club C, for the purpose of and or until
the claim in question is settled’.
Player A, Country B / Club C, Country D
4
17.
Despite being invited to do so, the club did not submit its duplica.
18.
Finally, the player informed FIFA that since he left the club, he remained
unemployed.
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 10 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).
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 (editions 2016 and 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 (editions 2016 and 2018), and considering that the present claim was
lodged on 10 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.
In this respect, the Chamber recalled that on 15 June 2015, the parties had
signed an employment contract, valid as from 15 June 2015 until the end of
the 2018 season (which according to the information in TMS ended on 31
December 2018), on the basis of which the player was entitled to receive a
monthly salary of 170,000.
Player A, Country B / Club C, Country D
5
6.
In continuation, the members of the Chamber noted that the player lodged a
claim against the club, maintaining that the club, as from October 2015
stopped paying his monthly remuneration, due to an alleged injury. Further,
the player alleges that, after having put the club in default on several
occasions, however to no avail, on 13 July 2017, he finally informed the club
that he was no longer interested in finding an amicable solution to the dispute
about the outstanding remuneration arisen between them and that he would
lodge a claim before FIFA, claiming to be awarded compensation for breach of
the employment contract.
7.
On the other hand, the Chamber noted that the club did not deny the nonpayment of the salaries to the player, and further asserted that it could validly
terminate the player’s contract due to his injury, as the player was not able to
fulfil his contractual duties and to offer his services to the club, due to the
injury he suffered. Furthermore, the club argued that it would pay a specific
amount of outstanding remuneration to the player in due course.
8.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute was to determine whether the contract had
been terminated by one of the parties, on which date and whether such
termination was made with or without just cause. Subsequently, the Chamber
needed to determine the consequences of the early termination of the
contractual relationship by one of the parties.
9.
First of all, the Chamber noted that the parties concluded a valid and legally
binding employment contract on 15 June 2015, valid until the end of the 2018
season, which circumstances remained uncontested by the club in the context
of the current proceedings.
10.
The members of the Chamber also noted from the file that the player had
rendered his services to the club for entire month, until the club apparently
stopped fulfilling its contractual obligations, due to an injury the player had
suffered.
11.
The Chamber further took into consideration that an injury or health condition
of a player can be no valid reason to cease the payment of a player’s
remuneration and even less so to terminate an employment contract. In this
regard, the Chamber highlighted that it is the club’s responsibility to secure
the continuation of payment of remuneration in such cases, possibly by means
of adequate insurance. Furthermore, the Chamber took into account that the
club had ceased the payment of the player’s remuneration as early as in
October 2015.
Player A, Country B / Club C, Country D
6
12.
On account of all of the above, the members of the Chamber unanimously
rejected the club’s argumentation and concluded that it did not have a valid
reason to stop paying the player’s remuneration, based on his injury.
13.
The Chamber, however, noted from the case file that there was no explicit
termination letter from the any of the parties on file. In view of the foregoing,
the Chamber deemed it appropriate to consider that the player, by informing
the club on 13 July 2017 that he was no longer interested in amicable solution
to the dispute, had effectively terminated the contract.
14.
Consequently, and considering that on 13 July 2017, the club had repeatedly
and for a significant period of time been in breach of its contractual
obligations towards the player, without any valid justification, the Chamber
decided that the player had a just cause to unilaterally terminate the
employment contract on 13 July 2017. As a result, the club is to be held liable
for the early termination of the employment contact with just cause by the
player.
15.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the employment contract
with just cause by the player.
16.
First of all, the members of the Chamber concurred that the club must fulfil its
obligations as per employment contract up until the date of termination of the
contract in accordance with the general legal principle of “pacta sunt
servanda”. Consequently, and taking into account that the player alleged that
on 13 July 2017, he had not received from the club any of the amounts he was
entitled to as from October 2015, the Chamber decided that the club is liable
to pay to the player the remuneration that was outstanding at the time of the
termination, i.e. the amount of 3,570,000, consisting of 21 monthly salaries of
170,000 each for the period between October 2015 and June 2017.
17.
Moreover, in line with the Chamber’s longstanding jurisprudence, the
Chamber decided that the club has to pay 5% interest p.a. on the amount of
3,570,000 as from 10 August 2017, i.e. the date of the player’s claim.
18.
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.
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
Player A, Country B / Club C, Country D
7
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.
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 employment contract at the basis of the matter at
stake.
21.
Subsequently, and in order to evaluate the compensation to be paid by the
club, the members of the Chamber took into account the remuneration due to
the player in accordance with the employment contract as well as the time
remaining on the same contract, along with the professional situation of the
player after the early termination occurred.
22.
In this respect, the Chamber pointed out that at the time of the termination of
the employment contract on 13 July 2017, the contract would run until the end
of the 2018 season, which ends according to the information in the TMS on 31
December 2018, in which period (July 2017 until December 2018) 18
instalments of 170,000 each were still to be paid to the player. Consequently,
taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early
termination by the player until the regular expiry of the contract amounts to
3,060,000 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
23.
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.
24.
However, the Chamber noted that the player did not find new employment
with another club during the relevant period of time and established that as a
result thereof, no amounts shall be deducted from the amount of
compensation for breach of contract as calculated in point II.22 above.
Player A, Country B / Club C, Country D
8
25.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the club must
pay the amount of 3,060,000 to the player, which was to be considered a
reasonable and justified amount of compensation for breach of contract in the
present matter.
26.
Additionally, taking into account the Chamber’s longstanding jurisprudence,
the Chamber decided that the club has to pay 5% interest p.a. on the amount
of 3,060,000 as from 10 August 2017, the date the claim was lodged by the
player.
27.
Moreover, in relation to the player’s request for an additional fine is rejected
due to the lack of a legal basis.
28.
The Chamber concluded its deliberations in the present matter by establishing
that any further claims lodged by the player 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 days as from the
date of notification of this decision, outstanding remuneration in the amount of
3,570,000, plus 5% interest p.a. as from 10 August 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
3,060,000, plus 5% interest p.a. as of 10 August 2017 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 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 is rejected.
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.
Player A, Country B / Club C, Country D
9
*****
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
10