Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 September 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Mario Gallavotti (Italy), member
Taku Nomiya (Japan), member
on the claim presented by the player,
Player A, county 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 case
1.
On 15 July 2015, the player from country B, Player A (hereinafter: player or
Claimant), and the club from country D, Club C (hereinafter: club or Respondent),
signed an employment contract (hereinafter: contract) valid as from 15 July 2015
until expiry of the 2015-2016 season.
2.
According to art. 4 of the contract, the parties agreed that “(4-1) The full amount
of the contract is USD425’000 for full season which is agreed between both parties.
(4-2) 20% of the full amount will be paid after signing the contract and after
passing medical and physical test and obtaining ITC card. (4-3) 80% of the full
amount will be paid in ten (10) monthly payments during the season beginning on
August 22nd 2015.”
3.
According to art. 7-12 of the contract, if the club does not pay the player’s salaries
and bonuses for more than 3 months, “the player may ask Football Federation of
country D or FIFA to receive his rights through his manager. In case of make a
claim, he should wait for the final vote and the player is not allowed to abandon
the club whatsoever.”
4.
According to art. 8 of the contract, the parties agreed that the player would
receive USD 1,000 as victory bonus and USD 300 for each goal he scored.
5.
On 25 November 2015, the player put the club in default of payment of the
amount of USD 92,000, granting the club ten days to pay, and specified that in the
absence of payment, he would terminate the contract. In this regard, the player
highlighted that the club only paid his monthly remuneration for August 2015 and
USD 10,000 in relation to his September 2015 salary.
6.
Having received no reply to his default notice, on 11 December 2015, the player
sent a notice of termination of contract to the club. In said letter, the player inter
alia reiterated that until then the club had only paid him USD 44,000 for August
and part of September 2015, whereas it should have had paid him 4 monthly
salaries.
7.
In reply to an email from the club dated 11 December 2015, on 13 December 2015,
the player agreed to postpone the termination of the contract and transmitted a
settlement offer to the club.
8.
On 14 December 2015, the club informed the player that he should wait until the
club’s board would decide on the offer, since the person indicated as signee for
the club was not authorised to sign the offer on behalf of the club.
9.
On 3 February 2016, the player reverted to the club in writing maintaining his
termination of the contract on 11 December 2015 based on the club’s failure to
remit part of his September and his full October and November 2015 salaries. The
Player A, county B / Club C, country D
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player further asked the club to remit 2 extra months of salary as payment of
damages.
10.
On 18 March 2016, the player lodged a claim against the club before FIFA
explaining that the club only paid him the 20% in the amount of USD 85,000 (cf.
art. 4-2 of the contract) as well as USD 34,000 plus USD 10,000 relating to the
months of August and part of September 2015, respectively.
11.
In continuation, the player highlighted that when he terminated the contract, the
club was late by more than three months in the payment of his remuneration,
which gave him just cause to terminate the contract.
12.
Additionally, the player stressed that the exchange of correspondence with the
club following the contract termination does not challenge the termination of the
contract on 11 December 2015. In this regard, the player held that since it
appeared that the author of the club’s email of 11 December 2015 was not
entitled to sign on the club’s behalf, this person’s email had no legal value.
13.
On account of the aforementioned, the player deemed that he had just cause to
terminate the contract and that, consequently, the club shall be ordered to pay
him outstanding remuneration in the amount of USD 109,500 and compensation
for breach of contract in the amount of USD 193,032, composed as follows:
USD 24,000 as outstanding part of his remuneration for September 2015;
USD 68,000 as outstanding remuneration for the months of October and
November 2015;
USD 11,000 as outstanding remuneration for the month of December 2015,
calculated prorata temporis;
USD 6,500 corresponding to USD 5,000 for five victory bonuses plus USD 1,500
for three bonuses in relation to goals scored;
USD 23,032 as compensation for breach of contract, based on the residual value
of December 2015;
USD 170,000 as compensation for breach of contract, based on the five monthly
salaries left to be paid under the contract until its expiry date.
14.
In spite of having been invited to present its position in relation to the player’s claim,
no response was received from the club within the time limit granted to respond.
15.
On 25 February 2016, the player signed an employment contract with the club from
country E, Club F, in accordance with which the player was entitled to receive
remuneration of 72,000 as from February until May 2016. According to the player, this
contract was mutually terminated before its execution started and that he renounced
his rights in relation to said contract by means of a “gentlemen agreement”. In this
respect, the player submitted a copy of a statement issued by the club from country E,
which inter alia reads that after both parties signed the employment contract, they
mutually agreed to renounce to register the Claimant.
Player A, county B / Club C, country D
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II.
Considerations of the Dispute Resolution Chamber
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 18 March 2016. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
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 2016) 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 from country B and a club from 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 2016), and considering that the present claim was lodged on 18 March
2016, the 2015 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 available on file. 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. In particular, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching
System (TMS).
5.
Having said that, the Chamber acknowledged that the parties had signed an
employment contract valid as from 15 July 2015 until the expiry of the 2015/2016
sporting season, in accordance with which the Claimant was entitled to receive,
inter alia, USD 34,000 per month during a period of ten months as from 22 August
2015.
6.
In this respect, the Chamber referred to TMS and pointed out that based on the
information contained therein, the sporting season 2015/2016 in country G came
to an end on 20 May 2016.
Player A, county B / Club C, country D
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7.
In continuation, the members of the Chamber took into account that, on 25
November 2015, the Claimant put the Respondent in default of payment of the
amount of USD 92,000, corresponding to part of his monthly remuneration for the
month of September 2015 as well as his entire monthly remuneration for the
months of October and November 2015, and that, on 11 December 2015, having
reportedly received no payment or reaction from the Respondent to his default
notice, the Claimant notified the club of the termination of the contract on the
basis of the alleged outstanding remuneration.
8.
Additionally, the Chamber duly noted that after the Claimant and the Respondent
apparently sought an amicable resolution of the dispute opposing them, no
agreement was reportedly found and that, on 3 February 2016, the Claimant
informed the Respondent that he maintained his termination of the contract on 11
December 2015.
9.
Consequently, the Claimant held that he had just cause to terminate the contract
on 11 December 2015 and claimed that, as a result, the Respondent is liable to pay
compensation for breach of contract in addition to the outstanding remuneration.
10.
Subsequently, the DRC observed that the reply of the Respondent to the claim was
received about three months after the notification of the closure of the
investigation of the matter at hand. As a result, in line with art. 9 par. 4 of the
Procedural Rules as well as the Chamber’s constant jurisprudence in this regard,
the DRC decided not to take into account the reply of the Respondent and
established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall
take a decision upon the basis of those documents on file that were provided prior
to the closure of the investigation-phase, in casu, upon the statements and
documents presented by the Claimant.
11.
Having so found, the members of the Chamber highlighted that the underlying
issue in this dispute was to determine as to whether the Claimant had just cause to
prematurely terminate the employment contract and to decide on the
consequences thereof.
12.
Against such background, the Chamber proceeded with an analysis of the
circumstances surrounding the present matter, the Claimant’s arguments as well
the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules,
in accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
13.
By doing so, the Chamber took into account the Claimant’s allegation that the
Respondent had failed to pay his monthly remuneration for the months of
September, October and November 2015 in the total amount of USD 92,000, which
was the motive for the Claimant to terminate the contract on 11 December 2015
after having previously put the Respondent in default.
Player A, county B / Club C, country D
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14.
Bearing in mind the consideration under number II./10. above as well as art. 4-3 of
the contract, the Chamber established that when the Claimant terminated the
contract on 11 December 2015, the Respondent had not paid to the Claimant part
of his salary for September 2015, his salary for October 2015 and for November
2015 in the total amount of USD 92,000, all payments of which had fallen due and
remained unpaid by the Respondent after having been put in default by the
Claimant.
15.
On account of the above, and considering that the Respondent had repeatedly and
for a significant period of time been in breach of its contractual obligations
towards the Claimant, the Chamber decided that the Claimant had just cause to
unilaterally terminate the contract on 11 December 2015 and that, as a result, the
Respondent is to be held liable for the early termination of the contract with just
cause by the Claimant.
16.
In the context of the matter at hand, the Chamber wished to highlight that after
having terminated the contract on 11 December 2015, the Claimant continued to
give the Respondent the chance to remedy the default, to no avail.
17.
Prior to dealing with the consequences of the early termination of the
employment contract with just cause by the Claimant, the members of the
Chamber considered that the Respondent must fulfil its contractual obligations in
accordance with the general legal principle of “pacta sunt servanda” and pay to
the Claimant the amounts which were outstanding under the contract at the moment
of the termination of the contract.
18.
Accordingly, the Chamber decided that the Respondent is liable to pay to the
Claimant the amount of USD 92,000, corresponding to USD 24,000 of the
Claimant’s salary for the month of September 2015 and his contractual salaries
relating to October and November 2015, each in the amount of USD 34,000.
19.
However, and with regard to the Claimant’s claim pertaining to allegedly
outstanding victory/goal bonuses in the amount of USD 6,500, the Chamber
referred to art. 12 par. 3 of the Procedural Rules and decided that since the
Claimant had not substantiated such claim with documentary evidence
demonstrating that the conditions for payment of such bonuses had been fulfilled,
this part of the Claimant’s claim had to be rejected.
20.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided
that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable
to pay compensation to the Claimant. Consequently, the Chamber focused its
attention on the calculation of the amount of compensation for breach of contract
in the case at stake.
Player A, county B / Club C, country D
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21.
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.
22.
In application of the relevant provision, the Chamber held that it first of all 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
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.
23.
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. 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. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body.
24.
Having said that, the members of the Chamber turned their attention to the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, which criterion was considered by the Chamber to be
essential. The members of the Chamber deemed it important to emphasise that
the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract in the calculation of the
amount of compensation.
25.
In this respect, the Chamber proceeded with the calculation of the monies payable
to the Claimant under the terms of the employment contract as from its date of
termination with just cause by the Claimant, i.e. 11 December 2015, until May 2016
and concluded that the Claimant would have received in total USD 204,000, i.e. 6
monthly salaries of USD 34,000 each, as remuneration had the contract been
executed until its expiry date. Consequently, the Chamber concluded that the
amount of USD 204,000 serves as the basis for the final determination of the
compensation for breach of contract in the matter at hand.
26.
In continuation, the Chamber verified whether the Claimant had 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 the DRC, such remuneration under a new employment
contract shall be taken into account in the calculation of the amount of
Player A, county B / Club C, country D
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compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
27.
In this respect, the Chamber took into account that based on the information
available in TMS, the Claimant had found new employment with the club from
country E, Club F, as from 17 February 2016 until 30 June 2016. Furthermore, the
Chamber noted that according to the pertinent employment contract, the
Claimant was entitled to a remuneration of 72,000, thus approximately USD
18,000, as from February until May 2016.
28.
Regardless of the fact that the Claimant omitted to present evidence
corroborating his statement that he renounced his rights under this new
employment contract, which apparently was terminated by mutual consent before
its execution started, the members of the Chamber deemed it important to point
out that by voluntarily agreeing to the early termination of his new employment
contract with Club F, the Claimant had actually freely renounced to receive the
income relating to the period of time between February 2016 and May 2016.
Consequently, the Chamber concurred that the full amount 72,000 under the new
employment contract shall be taken into consideration in the calculation of the
amount of compensation for breach of contract in the case at hand.
29.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to
mitigate his damage, the Chamber decided that the Respondent must pay the
amount of USD 186,000 to the Claimant as compensation for breach of contract.
30.
In continuation, the Chamber focused its attention on the further consequences of
the breach of contract in question and, in this respect, addressed the question of
sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates inter alia that, in addition to the obligation to pay
compensation, sporting sanctions shall be imposed on a club found to be in breach
of contract during the protected period.
31.
Subsequently, the members of the Chamber referred to item 7 of the “Definitions”
section of the Regulations, which stipulates, inter alia, that the protected period
shall last “for three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the
28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this respect, the
Chamber took note that the termination with just cause of the contract by the
Claimant had occurred on 11 December 2015, i.e. almost 5 months following the
entry into force of the contract at the basis of the dispute. Therefore, the Chamber
concluded that, irrespective of the Claimant’s age, the breach of contract by the
Respondent had occurred within the protected period.
Player A, county B / Club C, country D
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32.
As a result, by virtue of art. 17 par. 4 of the Regulations, the Chamber decided that
the Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision. In this regard, the
Chamber emphasised that apart from the Respondent having clearly acted in
breach of the contract within the protected period in the present matter, the
Respondent had also on several occasions in the recent past been held liable by the
Chamber for the early termination of the employment contracts with the players
Player H (case. ref. nr. xxxxxxxxxx; decided on 6 November 2014), Player I (case ref.
nr. xxxxxxxxx; decided on 23 July 2015), and Player J (case ref. nr. xxxxxxxxxx;
decided on 18 August 2016).
33.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant outstanding remuneration in
the amount of USD 92,000, within 30 days as from the date of notification of this
decision.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of USD 186,000, within 30 days as from the date of notification of
this decision.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers III./2. and III./3. are not paid by the Respondent within the
stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limits and 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 remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
Player A, county B / Club C, country D
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7.
The Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
*****
Note relating to the motivated 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
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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, county B / Club C, country D
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