Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 16 August 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Eirik Mons en (Norw ay ), member
Johan v an Gaalen (S outh Africa), member
Pav el Piv ov arov (Russ ia), 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 31 August 2015, the Player of Country B, Player A, (hereinafter: the player or the
Claimant) and the club Of Country D, club C, (hereinafter: the club or the
Respondent) signed an employment contract (hereinafter: the contract) valid as from
the date of its signature until 31 May 2016.
2.
In accordance with clause 3 of the contract, the club undertook to pay to the player,
inter alia, the total amount of EUR 209,000, as follows:
- EUR 50,000 on 31 August 2015;
- EUR 13,500 on 30 September 2015;
- EUR 13,500 on 31 October 2015;
- EUR 13,500 on 30 November 2015;
- EUR 13,500 on 1 January 2016;
- EUR 13,500 on 31 January 2016;
- EUR 13,500 on 28 February 2016;
- EUR 51,000 on 31 March 2016;
- EUR 13,500 on 30 April 2016;
- EUR 13,500 on 31 May 2016.
3.
Furthermore, paragraph 1 of the section named “Special Provisions”, under art. 3 of
the contract (hereinafter: paragraph 1 of the contract), reads as follows: “If the club
doesn’t realize their payment undertakings within 90 days following the payment
dates, the football player has the right to annul the contract as one-sided
immediately by sending a notification and allowing a period of 1 month”.
4.
In addition, paragraph 10 of the section named “Special Provisions”, under art. 3 of
the contract (hereinafter: paragraph 10 of the contract), reads as follows: “Payments
made or which will be made under the name of down payment or guaranteed
money, will have the quality of advance of payment and as a result of football
player’s serving at the club at the end of season, they will be accepted as progress
payment. If the football player leaves the club in halftime for any season (just or
unjust annulment), the yearly down payment or guaranteed money will be
proportionated as per the period he stayed at the club and the remaining portion
will be set off the monthly payments”.
5.
On 22 December 2015, the player put the club in default of payment, in writing, of
the amount of EUR 40,500 corresponding to the monthly instalments due in
September, October and November 2015 –in the amount of EUR 13,500 each–,
granting the club a seven days’ deadline to remedy the default.
6.
Subsequently, on 6 January 2016, the player unilaterally terminated the contract, in
writing, since the club allegedly failed to remedy the default.
Player A, Country B / Club C, Country D
2
7.
Thereafter, on 20 September 2016, the player sent a second default notice to the
club, requesting the latter to pay the amount of EUR 67,500, corresponding to the
monthly instalments due in September 2015, October 2015, November 2015 and
January 2016; granting the club a ten days’ deadline to comply with its financial
obligations.
8.
In reply thereof, on 30 September 2016, the club sent a letter to the player, where
the former firstly stated that, during the season 2015/2016, the club’s income
decreased and “payment difficulties showed up”. Nevertheless, the club held that
the player terminated the contract without just cause on 6 January 2016, since –
according to paragraph 1 of the contract– “if payments are not made within 90 days,
the agreement is terminated by giving one month period”; requirement with which
the player did not comply, according to the club.
9.
On 24 May 2017, the player lodged a claim against the club before FIFA, requesting
outstanding remuneration and compensation for breach of contract, as noted below:
a) Outstanding remuneration in the amount of EUR 54,000, broken down by the
player as follows:
- EUR 13,500 corresponding to the instalment due on 30 September 2015;
- EUR 13,500 corresponding to the instalment due on 31 October 2015;
- EUR 13,500 corresponding to the instalment due on 30 November 2015;
- EUR 13,500 corresponding to the instalment due on 1 January 2016.
In addition, the player requested interest of 5% p.a. as from the due dates until
the date of effective payment.
b) Compensation for breach of contract in the amount of EUR 105,000, broken down
by the player as follows:
- EUR 13,500 corresponding to the instalment due on 31 January 2016;
- EUR 13,500 corresponding to the instalment due on 28 February 2016;
- EUR 51,000 corresponding to the instalment due on 31 March 2016;
- EUR 13,500 corresponding to the instalment due on 30 April 2016;
- EUR 13,500 corresponding to the instalment due on 31 May 2016.
In addition, the player requested interest of 5% p.a. as from the date on which the
claim was lodged, i.e. 24 May 2017, until the date of effective payment.
10. In his claim, the player stressed that he “has fulfilled all his obligations towards the
Respondent” but the Respondent “has never fully and timely paid the wages” the
Claimant was entitled to. Therefore, according to the player, he had no alternative
but to terminate the contract on 6 January 2016. Furthermore, the player explained
that, due to the lack of payment of his wages, he has “experienced vast difficulties”,
since he had “designed his life and plans within the scope of [the contract]”.
Player A, Country B / Club C, Country D
3
11. On its part, the club rejected the arguments raised by the player and argued the
following:
a.
That, according to art. 28 of the Regulations on the Status and Transfer of Players
issued by the Football Federation of Country D (hereinafter: Football Federation
of Country D), in order for a player to have just cause to terminate his contract,
he must have put the club in default of payment, granting the latter 30 days to
remedy the default and, only 7 days after that deadline had expired, the player
might terminate the contract. In this regard, the club held that the player
terminated the contract without just cause on 6 January 2016, since the player
did not comply with the aforementioned provision.
b. Moreover, the club asserted that the player “claims more than his receivables”,
since, according to the club, in addition to the instalment of EUR 50,000 paid on
31 August 2015, the club made the following payments to the player:
- 4,000 on 30 October 2015;
- EUR 1,625 on 1 December 2015;
- 2,000 –which according to the club equals to EUR 1,875– on 11 December 2015.
In this respect, the club submitted copy of the banking extracts related to the
aforementioned payments.
c.
That, according to paragraph 10 of the contract (see point I.4 above), should the
player terminate the contract –with or without just cause– “in the winter break”,
the player would only be entitled to the moneys corresponding to the period
actually worked for the club, which will be calculated on a pro rata basis,
considering the whole value of the contract. In this context, the club held that,
the whole value of the contract, i.e. EUR 209,000, divided into the total days of
the term of the contract, i.e. 275 days, would result in a pro rata entitlement of
EUR 760 per day. That being said, the club further held that, since the player
terminated the contract on 6 January 2016, he only worked for the club for 128
days. Hence, according to the calculation made by the club, the player, in
principle, would only be entitled to EUR 97,280 (corresponding to EUR 760 x 128
days = EUR 97,280); which, after the deduction of the payments already made to
the player, i.e. EUR 53,500 (namely 50,000 + 1,625 + 1,875 = EUR 53,500), would
result in a final entitlement of EUR 43,780.
d. That, should FIFA deem that the player is entitled to compensation for breach of
contract, any earnings received by the player upon entering into a new contract
with any other new club shall be deducted from the claimed compensation. In
addition, the club stated that, should the salary of the player at the new club be
lower than the one stipulated in the contract, the player “is required to bear this
loss”.
Player A, Country B / Club C, Country D
4
12. In his replica, the player reiterated his previous arguments as well as his request for
relief. In addition, the player made comments as to the argument raised by the club
regarding the application of art. 28 of the Regulations issued by the Football
Federation of Country D. In this regard, the player held that the said provision aims
to “protect the clubs against football players” where the former fail to comply with
its financial obligations towards the latter. Moreover, the player held that, since the
club was already in default of payment of four monthly instalments, “it won’t make
any sense to give an extra time [of 30 days] to the club” to remedy the default.
13. Despite being invited to do so, the Respondent failed to provide any further
comments.
14. After being requested by FIFA, the player informed the FIFA administration that he
did not sign any new contract during the relevant period, namely as of the date of
his unilateral termination until the date of the natural expiry of the contract.
II. Cons iderations of the Dis pute Res olution Cham be r
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 24 May 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 (edition June 2019), 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 June
2019), and considering that the present claim was lodged on 24 May 2017, the 2016
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
Player A, Country B / Club C, Country D
5
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 31 August 2015 until 31 May 2016, which entitled the Claimant to a total salary
of EUR 209,000, broken-down as detailed under point I.2 above.
6. Moreover, the DRC acknowledged that it was undisputed that, on 22 December 2015,
the Claimant put the Respondent in default of payment of EUR 40,500, corresponding
to the monthly salaries of September, October and November 2015, and thereafter
terminated the contract on 6 January 2016.
7. In continuation, the DRC noted that the Claimant alleged that the Respondent
breached the contract as it failed to pay him EUR 54,000, corresponding to four
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
above-mentioned circumstances, he terminated the contract with just cause.
8. Equally, the Chamber took note of the reply of the Respondent, which maintained
that the Claimant terminated the contract without just cause as he did not put the
club in default and terminated the contract in accordance with the time-limits
allegedly set by the regulations of the Football Federation of Country D.
9. Moreover, the Respondent argued that it provided the Claimant with the payments
listed under point I.11, lit. b. above and that, pursuant to paragraph 10 of the
contract, as a consequence of his unilateral termination, he was entitled to the
amount of EUR 43,780 only.
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 the consequences 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.
Player A, Country B / Club C, Country D
6
12. With the above in mind, the DRC first went on to analyse the banking extracts
submitted by the Respondent in order to prove the execution of the payments under
paragraph I.11 above. In this respect, the members of the Chamber took note that the
Claimant did not dispute such payments and, consequently, reached the unanimous
conclusion that the following amounts were paid by the Respondent and, thus, shall
be deducted from the player’s receivables:
- 4,000, corresponding approximately to EUR 1,248, on 30 October 2015;
- EUR 1,625 on 1 December 2015;
- 2,000, corresponding approximately to EUR 624, on 11 December 2015.
13. As to the club’s argumentation that the Claimant terminated the contract without
just cause because he did not comply with the time-limits allegedly provided by the
regulations of the Football Federation of Country D, the DRC first took note that the
Respondent did not corroborate its allegations with sufficient supporting evidence.
Moreover, the members of the Chamber wished to emphasise that the contract at the
basis of the dispute does not contain any contractual stipulation regarding the
application of the regulations of the Football Federation of Country D invoked by the
Respondent.
14. On account of the aforementioned considerations, 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, failed to pay the amount of EUR 50,503 to the player.
Moreover the members of the Chamber pointed out that such amount is equivalent
to more than three 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 6 January 2016 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 the above, 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 shall
pay to the Claimant the amounts which were outstanding under the contract at the
moment of the termination, i.e. EUR 50,503.
Player A, Country B / Club C, Country D
7
17. In addition, taking into consideration the foregoing and the player’s claim, the
Chamber decided to award the Claimant interest at the rate of 5% p.a. as follows:
a. on the amount of EUR 13,500 as of 1 October 2015 until the date of effective
payment;
b. on the amount of EUR 12,252 as of 1 November 2015 until the date of effective
payment;
c. on the amount of EUR 11,251 as of 1 December 2015 until the date of effective
payment;
d. on the amount of EUR 13,500 as of 2 January 2016 until the date of effective
payment.
18. Furthermore 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
acknowledged that the Respondent invoked the application of paragraph 10 of the
contract, according to which “Payments made or which will be made under the name
of down payment or guaranteed money, will have the quality of advance of payment
and as a result of football player’s serving at the club at the end of season, they will
be accepted as progress payment. If the football player leaves the club in halftime for
any season (just or unjust annulment), the yearly down payment or guaranteed
money will be proportionated as per the period he stayed at the club and the
remaining portion will be set off the monthly payments”.
Player A, Country B / Club C, Country D
8
21. In this respect, the members of the Chamber stressed that the aforementioned
provision is not only clearly unilateral and in favour of the club, but does not
constitute a compensation clause, as it does not provide the payment of any
compensation, regardless of the termination being with or without just cause. 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 105,000, had the contract been executed until its expiry date.
22. In continuation the Chamber assessed 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.
23. In this respect, the members of the DRC acknowledged that the Claimant was not able
to conclude a new employment contract during the relevant period and, as such, was
not able to mitigate his damages. Consequently, on account of all of the abovementioned considerations and the specificities of the case at hand, the DRC decided
that the Respondent must pay the Claimant the amount of EUR 105,000, which is to
be considered a reasonable and justified amount of compensation for breach of
contract in the matter at hand.
24. 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. 24 May 2017, until
the date of effective payment.
25. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
9
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
50,503, plus interest, calculated as follows:
a. 5% p.a. on the amount of EUR 13,500 as of 1 October 2015 until the date of
effective payment;
b. 5% p.a. on the amount of EUR 12,252 as of 1 November 2015 until the date of
effective payment;
c. 5% p.a. on the amount of EUR 11,251 as of 1 December 2015 until the date of
effective payment;
d. 5% p.a. on the amount of EUR 13,500 as of 2 January 2016 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 105,000, plus 5% interest p.a. as from 24 May 2017 until the date of effective
payment.
4. In the event that the aforementioned sums plus interest due to the Claimant in
accordance with the above-mentioned numbers 2. and 3. are not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
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
10
*****
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. 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Player A, Country B / Club C, Country D
11