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, 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 case
1. On 30 December 2015, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent),
signed an employment contract (hereinafter: the contract) valid as from 1
January 2016 until 30 June 2017.
2. Art. 3 of the contract stated the following: “if the second party (player) leave
Club C before the end of the term of this contract without the consent of the
first party or laze on its implementation shall be responsible before the Club for
the payment of all expenses incurred by the club either those paid against
obtaining the approval on his transfer to the club, or those incurred by the club
for any other purpose, in addition to compensation for damage to the club and
at the discretion of the club“.
3. According to art. 4 of the contract, the Claimant was entitled to the following
remuneration:
a) USD 110,00 for season 2015/2016, to be paid as follows:
- USD 50,000 “once bringing the international card of the player”;
- USD 60,000 in seven monthly installments of USD 8,571 each payable as
from 1 February 2016 until 1 August 2016;
b) USD 220,000 for season 2016/2017, to be paid as follows:
- USD 100,000 on 1 September 2016;
- USD 120,000 in ten monthly installments of USD 12,000 each payable as
from 1 September 2016 until 30 June 2016.
4. On 4 and 16 May 2016, the Claimant put the Respondent in default of payment
of his remuneration as from February 2016 until April 2016, for the total amount
of USD 25,713.
5. On 26 May 2016, the Claimant sent a notice of termination of the contract to the
Respondent stating that, since the Respondent did not show willingness to
respect the contract and failed to comply with its financial obligations, he was
terminating the contract with immediate effect.
6. On 31 May 2016, the Claimant lodged a claim in front of FIFA against the club
for breach of contract and requested the total amount of USD 245,713 brokendown as follows:
a) USD 25,713 “with interest from 26 May 2016”;
b) USD 220,000 “with interest from the date of the decision”.
7. The Claimant stated, in his claim, that the Respondent stopped paying his
salaries as of February 2016 and did not show the intention to comply with its
financial obligations set out in the contract.
Player A, country B / Club C, country D
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8. Therefore, according to the Claimant, as a consequence of the breach of contract
by the Respondent, he terminated the contract with just cause.
9. On 2 June 2016, the FIFA administration invited the Respondent, via the Football
Association of country D, to provide its response to the claim of the Claimant by
no later than 22 June 2016.
10. On 27 June 2016, in view of the lack of response by the Respondent, the FIFA
administration informed the parties that the investigation-phase of the matter
at hand had been closed and that no further submissions from the parties would
be admitted to the file.
11. On 4 July 2016, the Respondent informed FIFA that, allegedly, it had never
received the claim of the Claimant.
12. On 7 August 2016, the Football Association of country D, whilst enclosing some
positive fax reports, confirmed to FIFA it had duly submitted to the Respondent
the claim of the Claimant on 2 June 2016.
13. Upon FIFA’s request, the Claimant informed that, on 12 September 2016, he
signed a new employment contract with the club from country B, Club E, valid as
from 12 September 2016 until 31 May 2017. Pursuant to such new contract, the
Claimant is entitled to a salary of EUR 27,000.
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 31 May 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. In continuation, the Chamber analyzed which regulations should be applicable
as to the substance of the matter. In this respect, it confirmed that in accordance
Player A, country B / Club C, country D
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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 31 May
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 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 from 1 January 2016 until 30 June 2017, which entitled the Claimant to a
salary of USD 110,000 for the season 2015/2016 and of USD 220,000 for the
season 2016/2017.
6. Furthermore, the DRC acknowledged that the Claimant put the Respondent in
default of his salaries, as from February until April 2016, corresponding to the
amount of USD 25,713, and thereafter terminated the employment agreement
on 26 May 2016.
7. In this context, the DRC noted that the Claimant alleged that the Respondent
breached the employment contract as it failed to pay him the outstanding
salaries for the months of February, March and April 2016, for the total amount
USD 25,713. Moreover, the Claimant emphasized that the Respondent neither
replied to his notice of termination nor showed any intention to comply with the
obligations set out in the contract. In view of the above-mentioned
circumstances, the Claimant stressed that he terminated the employment
contract with just cause.
8. In continuation, the members of the Chamber highlighted that the Respondent,
for its part, failed to present its response to the claim of the Claimant, in spite of
having been invited to do so. In this way, the Chamber considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of
the Claimant.
9. Along those lines, the Chamber pointed out that the Football Association of
country D confirmed having forwarded to the Respondent the claim of the
Claimant while enclosing the relevant positive fax reports dated 2 June 2016.
10. Consequently, the Chamber concurred that, in accordance with art. 9 par. 3 of
the Procedural Rules, it shall take a decision upon the basis of the documents on
file, in other words, upon the statements and documents presented by the
Claimant.
Player A, country B / Club C, country D
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11. On account of the aforementioned considerations, the members of the Chamber
concurred that the Respondent failed to pay the Claimant’s salary for February,
March and April 2016 without any valid reason and, therefore, it was in breach
of its contractual obligations towards the Claimant for a significant period of
time. Indeed, the Chamber underlined that if the payment of the salary is
repeatedly not made on the date designated in the employment contract, this
may obviously cause the player’s confidence in the proper fulfilment of future
obligation by the club to be lost.
12. In view of the above, the Chamber decided that the Claimant had just cause to
unilaterally terminate the employment contract on 26 May 2016 and that, as a
result, the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
13. 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 is liable to pay
to the Claimant the amounts which were outstanding under the contract at the
moment of the termination, i.e. USD 25,713 corresponding to the salaries
relating to February, March and April 2016.
14. In addition, taking into consideration the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber in this regard, the members
of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on
the outstanding amount of USD 25,713 as from 26 May 2016.
15. In continuation, having established that the Respondent is to be held liable for
the termination of the contract with just cause by the Claimant and has to pay
the amount of USD 25,713 as outstanding remuneration to the Claimant, the
Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the
Respondent is liable to pay compensation for breach of contract to the Claimant.
16. In view of the above, the Chamber considered that 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.
17. In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract and the private
Player A, country B / Club C, country D
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agreement 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 acknowledged that
art. 3 of the contract provided the payment of compensation to the Respondent
in case the Claimant “leaves [the Respondent] before the end of the term of this
contract without the consent of the [the Respondent] or laze on its
implementation”.
18. Nevertheless, the members of the Chamber unanimously concluded that they
could not take such clause into account in order to determine the payable
compensation for breach of contract as the scenario foreseen in said clause is not
applicable in the matter at hand. Indeed, it was not the Claimant but the
Respondent which breached the contract without just cause.
19. As a consequence, the members of the Chamber determined that the prejudice
suffered by the Claimant in the present matter had to be assessed in application
of the other parameters set out in art. 17 par. 1 of the Regulations. In this
regard, the DRC emphasised beforehand that each request for compensation for
contractual breach has to be assessed by the Chamber on a case-by-case basis
taking into account all specific circumstances of the respective matter, as well as
the Chamber’s specific knowledge of the world of football and its experience
gained throughout the years.
20. With the aforementioned in mind and in application of the relevant provision,
the members of the DRC emphasised that the Claimant is requesting the amount
of USD 220,000 as compensation for breach of contract.
21. In continuation, the Chamber verified as to 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 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.
22. In this context, the DRC pointed out that the Claimant signed a new
employment contract with the club from country B, Club E, valid from 12
September 2016 until 31 May 2017, with a salary of EUR 27,000, corresponding
to USD 30,600 approximately. In view of the above, the Chamber established
that the value of the new employment contract concluded between the
Claimant and the new club amounted to USD 30,600.
23. 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 USD 189,400 as compensation for breach of
contract, which is to be considered a reasonable and justified amount.
Player A, country B / Club C, country D
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24. In addition, the Chamber decided that the Claimant is entitled to 5% interest
p.a. on said amount as of 30 September 2016 until the date of effective
payment, as explicitly requested by the Claimant.
25. The members of the Chamber concluded their deliberations by rejecting any
further claim of 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, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of USD 25,713 plus 5% interest p.a. as from 26 May 2016 until the date
of effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract in the
amount of USD 189,400 plus 5% interest p.a. as from 30 September 2016 until
the date of effective payment.
4.
In the event that the amounts 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.
*****
Player A, country B / Club C, country D
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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.
*****
Note relating to the motivated decision (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:
Marco Villiger
Deputy Secretary General
Player A, country B / Club C, country D
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Player A, country B / Club C, country D
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