Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player A
BY:
Omar Ongaro (Italy), Deputy Chairperson
Khalid Awad Al Thebity (Saudi Arabia), member
Michele Colucci (Italy), member
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
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I. Facts of the case
1.
On 18 July 2021, the Country A player, A (hereinafter: the Claimant), and the Country B
club, B (hereinafter: the Respondent) signed an employment contract valid as from the
date of signature until 31 May 2023 (hereinafter: the Contract).
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant an
annual remuneration of EUR 355,000, payable in 10 instalments of EUR 35,500 each
season, by no later than the last day of each month as from August until May of each
respective season.
3.
Furthermore, in accordance with the Contract, the Respondent undertook to pay the
Claimant a monthly car/living allowance of Country B Currency 9,000.
4.
Moreover, in accordance with art. 9 of the Contract, it was stipulated as follows:
“Disputes that may arise between the parties cannot be resolved exclusively by the FIFA
Dispute Resolution Board (DRC). Final Decision of FIFA, within 21 days from the date of
decision, before the Court of Arbitration for Sports (CAS) can be appealed. All proceedings
before the CAS will be conducted in English.”
5.
By correspondence dated 1 February 2022, the Claimant put the Respondent in default
of payment of EUR 142,000, corresponding to four monthly salaries (the exact months
which remained allegedly unpaid were not specified. In this respect, the Claimant set the
Respondent a time-limit of 14 days to remedy the alleged breach.
6.
By correspondence dated 11 March 2022, the Claimant put the Respondent in default due
to “5 months of non-payment of salary”, granting a 15-day deadline for the Respondent
to remedy the alleged breach, to no avail.
7.
On 8 April 2022, the Claimant unilaterally terminated the Contract.
8.
On 29 June 2022, the Claimant and the Country C club, C (hereinafter: the New Club) signed
an employment contract (hereinafter: the New Contract) valid as from the date of signature
until 30 June 2024.
9.
In accordance with the New Contract, the New Club undertook to pay the Claimant a base
weekly salary of Country C Currency 2,300.
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II. Proceedings before FIFA
10. On 28 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
11. The Claimant alleged that the Respondent only paid the first instalment under the
Contract, and subsequently defaulted on eight monthly salaries thereunder, amounting
to a total overdue remuneration of EUR 274,000. Moreover, the Claimant put the
Respondent in default of payment of the outstanding salaries, and the Respondent
nevertheless failed to comply with its financial obligations under the Contract. Thus, the
Claimant submitted that there was just cause to terminate the Contract.
12. According to the “Schedule of Loss” submitted by the Claimant, he is entitled to payment
of EUR 274,000 as outstanding remuneration under the Contract, plus interest of 5% p.a.
applicable on the overdue amounts as from the due dates of the respective instalments
until the date of effective payment.
13. Furthermore, the Claimant requested compensation in the amount of EUR 487,533,
corresponding to the residual value of the Contract as from the date of termination as
calculated in the “Schedule of Loss”, plus interest of 5% p.a. as from the date of
termination of the Contract (8 April 2022) until the date of effective payment.
14. In accordance with the Schedule of Loss submitted as part of the claim, the Claimant
calculated the total interest applicable on both outstanding remuneration and
compensation as EUR 38,076.
15. Lastly, the Claimant requested payment of legal costs in the amount of EUR 2,000.
b. Position of the Respondent
16. In its reply to the claim, the Respondent firstly contested the competence of FIFA, arguing
that, in accordance with art. 9 of the Contract, the dispute is within the exclusive
competence of CAS.
17. Beyond this, the Respondent submitted several proofs of payment which were allegedly
made towards the Claimant, to contest the just cause of the termination.
18. Lastly, the Respondent argued that the Claimant signed a new contract and that he has
mitigated his damages. As such, any compensation shall be reduced in light of the
remuneration due to the Claimant under the New Contract.
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c. Comments of the Claimant
19. The Claimant was invited to provide his comments as to the alleged payments made by
the Respondent.
20. In this respect, the Claimant asserted that the payments were indeed made, but that they
are not related to the amounts claimed as outstanding, thereby not affecting the request
of relief and the just cause of the termination.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 28 June 2022 and submitted
for decision on 29 September 2022. Taking into account the wording of art. 34 of the June
2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
22. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (July 2022 edition), 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
Country A player and a Country B club.
23. The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the Court of Arbitration for Sport (hereinafter: CAS), alleging
that the latter is competent to deal with any dispute deriving from the Contract, in
accordance with art. 9 thereunder.
24. Taking into account the above, the Chamber emphasised that, in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established
at national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
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arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs.
25. In this context, the Chamber pointed out that it should first analyse whether the Contract
contained a clear and exclusive jurisdiction clause in favour of CAS.
26. In this respect, the Chamber referred to art. 9 under the Contract, according to which
“Disputes that may arise between the parties cannot be resolved exclusively by the FIFA
Dispute Resolution Board (DRC). Final Decision of FIFA, within 21 days from the date of
decision, before the Court of Arbitration for Sports (CAS) can be appealed. All proceedings
before the CAS will be conducted in English.” The Chamber, after analysing the wording of
the jurisdiction clause, concluded that such clause did not clearly and exclusively establish
the competence of CAS, in accordance with art. 22 par. 1 lit. b).
27. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of another tribunal than the Football Tribunal was not met,
and therefore, without need to enter the analysis of any further requirement, it
established that the Respondent’s objection to the competence of FIFA’s decision-making
bodies to deal with the present matter has to be rejected and that the Dispute Resolution
Chamber is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider
the present matter as to the substance.
28. Subsequently, 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 (July 2022 decision),
and considering that the present claim was lodged on 28 June 2022, the June 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
29. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within the Transfer Matching System (TMS).
c. Merits of the dispute
30. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
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documentation 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.
i. Main legal discussion and considerations
31. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the early
termination of the Contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the respondent as per the Contract, in accordance with art. 14bis
of the Regulations.
32. In this context, the Chamber acknowledged that it its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
33. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
34. The Chamber noted that the Claimant outlined in his “Schedule of Loss” that the
Respondent defaulted on eight monthly salaries, in the purported total amount of
EUR 274,000. At the same time, the Chamber further noted that the Claimant also
submitted having received only the first salary instalment under the Contract in
October 2021, and that said assertion was confirmed by the Respondent in its respective
submission. Furthermore, the Chamber recalled that the Contract was terminated
unilaterally by the Claimant on 8 April 2022.
35. Thus, as the Schedule of Loss submitted by the Claimant appeared to contradict the facts
submitted by both Parties, the Chamber decided not to base its calculations on said
Schedule and instead considered the factual context presented by the parties.
36. In this context, the Chamber recalled that the parties respectively confirmed that the
Respondent only made the first salary payment under the Contract as from August 2021
until the date of termination, 8 April 2022. Therefore, the Chamber established that the
Respondent was in default of payment of the seven remaining monthly salary
instalments, in the total amount of EUR 248,500.
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37. Moreover, the Chamber recalled that the Claimant put the Respondent in default of
payment of the outstanding amounts on two occasions, granting deadlines of 14 and 15
days respectively, before terminating the Contract.
38. The Chamber also noted that, in the case at hand, the Respondent bore the burden of
proving that it had a valid justification for defaulting on the amounts established as
outstanding, but that no such evidence was provided in the case at hand.
39. In light of the above, the Chamber concluded that the Claimant had a just cause to
unilaterally terminate the Contract, based on art. 14bis of the Regulations.
40. Lastly, with regards to the accommodation and car allowance in the monthly amount of
Country B Currency 9,000, the Chamber noted that the Claimant did not substantiate
either in his request for relief, or in the attached Schedule of Loss whether or not the
relevant instalments had remained unpaid. Thus, with regards to the calculation of the
total outstanding remuneration due to the Claimant under the Contract, the Chamber did
not take these amounts into consideration.
ii. Consequences
41. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
42. The Chamber recalled that the outstanding remuneration at the time the Contract was
terminated, coupled with the specific requests for relief of the Claimant, was equivalent
to seven monthly salaries, amounting to EUR 248,500.
43. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay the Claimant the
amounts which were outstanding under the Contract at the moment of termination, i.e.,
EUR 248,500 (or, 7 times EUR 35,500).
44. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from the following dates:
-
on the amount of EUR 35,500, as from 1 October 2021 until the date of
effective payment;
-
on the amount of EUR 35,500, as from 1 November 2021 until the date of
effective payment;
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-
on the amount of EUR 35,500, as from 1 December 2021 until the date of
effective payment;
-
on the amount of EUR 35,500, as from 1 January 2022 until the date of
effective payment;
-
on the amount of EUR 35,500, as from 1 February 2022 until the date of
effective payment;
-
on the amount of EUR 35,500, as from 1 March 2022 until the date of
effective payment;
-
on the amount of EUR 35,500, as from 1 April 2022 until the date of
effective payment.
45. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, 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.
46. In application of the relevant provision, the Chamber held that it first had to clarify
whether the 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.
47. In this regard, the Chamber established that no such compensation clause was included
in the Contract.
48. As a consequence, 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.
49. Bearing in mind the foregoing, as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the terms of
the Contract until its term. Consequently, the Chamber concluded that the amount of
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EUR 426,000 plus Country B Currency 108,000 (i.e., 12 times EUR 35,500 plus Country B
Currency 9,000 for the periods between April 2022 - May 2022 and August 2022 until May
2023) serves as the basis for calculating the amount of compensation for breach of
contract.
50. 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 enabled to reduce his loss of income. According to the constant practice of the
Chamber, as well as art. 17 par. 1 lit. ii) of the Regulations, 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 Claimant’s general obligation
to mitigate his damages.
51. Indeed, the Claimant found new employment with the New Club. In accordance with the
New Contract, the Claimant was entitled to a weekly salary of Country C Currency 2,300.
Therefore, the Chamber concluded that the Claimant mitigated his damages in the total
amount of Country C Currency 119,600 (or EUR 137,937), that is, 52 times Country C
Currency 2,300.
52. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation, should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason, i.e. overdue payables by the Respondent, and
therefore decided that the Claimant shall receive additional compensation.
53. In this respect, the Chamber decided to award the amount of additional compensation of
EUR 106,500, i.e., three times EUR 35,500, as the monthly remuneration of the Claimant.
54. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of
the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract.
55. Consequently, on account of all the above-mentioned considerations and the specificities
of the Case at hand, the Chamber decided that the Respondent must pay the amount of
EUR 394,563 (i.e., EUR 426,000 minus EUR 137,937 plus EUR 106,500) and Country B
Currency 108,000, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
56. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as from 28 June 2022 until the date of effective
payment.
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iii. Compliance with monetary decisions
57. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24
par. 1 and 2 of the Regulations which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
58. In this regard, the DRC highlighted that, against club, the consequence of the failure to
pay the relevant amounts in due time shall consist, in principle, of a ban from registering
any new players, either nationally or internationally, up until the due amounts are paid.
59. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par.
3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of art. 12bis, 17 or 18quater of the Regulations.
60. In this respect, the Chamber recalled that by means of a decision passed on 21 July 2022
and notified on 2 August 2022, a transfer ban has been imposed on the Club pursuant to
art. 17 par. 4 of the Regulations (i.e., namely in the case FPSD-xxxx).
61. Accordingly, the Chamber established that, in casu, art. 24 par. 2 of the Regulations shall
not apply, insofar as, in case the Club fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Club would be moot and against the spirit of the Regulations, in
particular the enforcement mechanism established under art. 24 of the Regulations.
62. In view of the above, the DRC decided that, if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Player, to the FIFA Disciplinary Committee for its consideration and
a formal decision.
63. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
d. Costs
64. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
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agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were
to be imposed on the parties.
65. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
66. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, B, has to pay to the Claimant, the following amount(s):
- EUR 35,500 as outstanding remuneration plus 5% interest p.a. as from
1 October 2021 until the date of effective payment;
- EUR 35,500 as outstanding remuneration plus 5% interest p.a. as from
1 November 2021 until the date of effective payment;
- EUR 35,500 as outstanding remuneration plus 5% interest p.a. as from
1 December 2021 until the date of effective payment;
- EUR 35,500 as outstanding remuneration plus 5% interest p.a. as from
1 January 2022 until the date of effective payment;
- EUR 35,500 as outstanding remuneration plus 5% interest p.a. as from
1 February 2022 until the date of effective payment;
- EUR 35,500 as outstanding remuneration plus 5% interest p.a. as from
1 March 2022 until the date of effective payment;
- EUR 35,500 as outstanding remuneration plus 5% interest p.a. as from
1 April 2022 until the date of effective payment;
- EUR 394,563 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 28 June 2022 until the date of effective payment;
- Country B Currency 108,000 as compensation for breach of contract without just cause
plus 5% interest p.a. as from 28 June 2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
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5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form within 30 days of the
notification of this decision.
6.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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