Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 October 2015,
in the following composition:
Geoff Thompson (England), Chairman
Taku Nomiya (Japan), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player A, country B,
as Claimant/Counter-Respondent 1
against the club,
Club C, country D,
as Respondent/Counter-Claimant
and the club,
Club E, country F
as Counter-Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 19 June 2013, the player from country B, Player A (hereinafter: the player), and the
club from country D, Club C (hereinafter: Club C), signed an employment contract valid
as from 1 August 2013 until 30 June 2016.
2.
In accordance with the contract, the player was inter alia entitled to receive USD
900,000 for the duration of the contract, as follows:
a. USD 20,000 per month “from the beginning of the season”, payable over
thirty months on the last day of the month; for a total of USD 600,000;
b. USD 100,000 as an advance of payment upon signature;
c. USD 100,000 as “advance payment from the beginning of second season
2014/2015”;
d. USD 100,000 as “advance payment from the beginning of third season
2015/2016”.
3.
The contract further states that Club C will provide the player with a furnished
apartment in which the player “shall not have the right to request the change of
accommodation or furniture” as well as a car. Furthermore, Club C will provide two
“economy return tickets” to the player, his wife and one of his children “to and from
his country”. The second ticket is subject to prior authorisation granted by the
directors of Club C.
4.
On 3 October 2013, the player formally put Club C in default of salaries for August and
September 2013, noting that Club C had also failed to provide a car for the player.
Furthermore, the player contests having to stay in a hotel when the contract explicitly
stipulates for the provision of an apartment and not being allowed to train with the
first team.
5.
On 5 November 2013, the player formally notified Club C of the unilateral termination
of the contract on the basis that Club C had allegedly failed to pay his salaries, that it
apparently sought to terminate the contract and retrieve the sign-on bonus, as well as
denied him access to train with the professional team.
6.
On 11 December 2013, the player lodged a claim in front of FIFA against Club C asking
for payment of USD 1,006,000, he did not claim any interest:
a. USD 800,000 as follows:
i. USD 200,000 corresponding to his salaries of the 2013/2014 season, i.e.
September 2013 until June 2014 (i.e. 10 months x USD 20,000);
Player A, country B / Club C, country D / Club E, country F
2/12
ii. USD 300,000 pertaining to the down-payment of USD 100,000 (cf. point
I.2.c above), and ten monthly salaries amounting to a total of USD
200,000 for the 2014/2015 season;
iii. USD 300,000 pertaining to the down-payment of USD 100,000 (cf. point
I.2.d above), and ten monthly salaries amount to USD 200,000 for the
2015/2016 season.
b. Reimbursement of expenses for the contractually provided benefits for a total
of USD 156,000:
i. apartment, estimated at USD 2,000 a month and car, estimated at USD
1,000 a month, for thirty six months, i.e. a total of USD 108,000.
ii. Two return flights from country D to country B per season, claiming
USD 8,000 dollars for the family for each flight, for a total of three
seasons i.e. USD 16,000 x 3 = USD 48,000.
c. Compensation for moral prejudice in the amount of USD 50,000 and legal
expenses.
7.
The player claims to have joined Club C for a pre-season tournament on 1 August 2013
and was allegedly told by the vice-president of Club C on 17 August 2013 that Club C
wanted to terminate the contract, asking the player to reimburse the USD 100,000
sign-on bonus (cf. point I.2.b above). The player claims to have travelled to country D
with Club C on 23 August 2013.
8.
On 27 August 2013, Club C informed the player that he could not play in light of the
fact that the Football Federation of country F had not delivered the player’s
International Transfer Certificate (ITC) (cf. point I.19 below). On 3 September 2013,
Club C allegedly called the player’s agent stating that Club C did not need his services
and requested the agent to find him a new club.
9.
On 4 September 2013, the team manager allegedly informed the player of the ITC
problems that were leading to the necessary termination of the employment
relationship.
10.
According to the player, the agent allegedly went to negotiate with Club C on 10
September 2013, and noted that the player was training with the reserve team,
contrary to article 2 of the employment contract which states “the second party
agreed to play in the first football team of Club C as a professional player for three
years stars from 01/08/2013 and ends on 30/06/2016”. The agent allegedly met the TMS
manager of the club who noted the existence of file n° 75318 which shows that the
transfer request formulated on 5 August 2013 by the “instructing club” Club C had
remained unanswered by the “counter association” (i.e. the Football Federation of
Player A, country B / Club C, country D / Club E, country F
3/12
country F) until 5 September 2013. The agent was allegedly denied his request to see a
copy of the document.
11.
The player alleges that the Football Federation of country F never received any request
for an ITC delivery from Club C for the player.
12.
The player notes that he sent a default notice to Club C (cf. point I.4 above) because he
received no salary, was not provided with a car or an apartment, and was eventually
made to pay for his own hotel room and pay weekly tax as a result of the expiry of his
visa, the fault of which he attributes to Club C. The player left country D on an
unspecified date and terminated his employment contract (cf. point I.5 above).
13.
In its reply, Club C claims it paid the player 28,500 on 23 June 2013 and 14,200 on the
same day. Club C estimates that it paid a total of USD 150,731. Club C claims that at
the time of his departure on 8 November 2013, the player had received the sign-on fee
as well as an advance for the first two monthly salaries: in this regard, Club C claims
that should the player’s ITC have been delivered, the player would have been entitled
to USD 140,000 but received USD 150,731 despite the non-delivery of said ITC, and that
fact that these amounts were not due at the time means that he was overpaid.
14.
Club C claims it requested the delivery of the ITC on 5 August 2013. Club C claims that
the club from country F, Club E (hereinafter: Club E) failed to answer it regarding the
ITC. Club C claims that the subsequent signing of a contract between Club E and the
player breaches FIFA’s regulations and “appropriate sanctions” should be applied to
both the player and Club E.
15.
Club C also claims that the player had refused to provide it with his passport in order
to renew his visa and therefore breached national law of country D. Club C also claims
the player breached article 5 (cf. point I.3 above) of the contract by refusing to accept
the accommodation provided to him.
16.
Club C asserts that at the time of the first default notice (cf. point I.4 above) the player
was only owed his salary for September 2013. It also claims that any statement by the
player’s agent regarding the fact that the player was not training with the first team
are false allegations which are not substantiated. At the time of termination, (cf. point
I.5 above) he was only owed salaries for September and October 2013.
17.
On 2 February 2014, Club C lodged a counterclaim against the player and Club E asking
to be reimbursed all amounts paid by Club C to the player, i.e. USD 148,966, as well as
the imposition of sanctions on both the player and Club E, in addition to an
unspecified amount of compensation for breach of contract and the payment of legal
costs. On 6 April 2014 Club C modified its counterclaim, asking for Club E and the
player to be jointly and severally liable for the payment of compensation for breach of
Player A, country B / Club C, country D / Club E, country F
4/12
contract in the total amount of USD 1,050,731 resulting from the alleged breach of
contract, law of country D and in light of FIFA’s regulations.
18.
In his reply to the counterclaim, the player seeks to demonstrate that Club C wished to
terminate the employment relationship as early as the 17 August 2013. The player
provides transcripts of “whatsapp” conversations to substantiate this, the content of
which appears to indicate that the wishes of Club C were to release the player and
retrieve monies paid to him.
19.
The player claims that Club C never requested the delivery of the ITC, and provides an
e-mail exchange dated 20 September 2013 with Mr G, the Football Federation of
country F’s TMS user, which confirms that “the Football Association of country D hasn’t
submitted any request for your International Transfer Certificate in favour of its
affiliated Club C in TMS till this day”. The player further notes that even had the
request been sent and no reply was received from the Football Federation of country
F, the Football Association of country D could have provisionally registered the player.
The absence of an ITC request allegedly shows a deliberate intention to terminate the
contract.
20.
The player further notes that letters provided by Club C in relation his alleged refusal
to transmit his passport for the visa renewal or accommodation (cf. point I.15 above)
should have no legal bearing on the basis that there is simply no proof of delivery of
any kind. Furthermore, the player claims that at the time the letters were allegedly
written, the player had already been excluded from first-team training for at least two
months and was staying at the hotel at his own cost precisely because Club C never
provided him with accommodation.
21.
The player acknowledges having received the two cheques amounting to 42,700 (cf.
point I.13 above) corresponding to approximately USD 150,000 after conversion. The
player, however, alleges that the payment of 28,500 was in relation to the sign-on fee
(cf. point I.2.b above) and that any other payment made, i.e. 14,200, was made of Club
C’s free will and not in relation to any salary payments on advance of salary payments.
The player states that he never received more money than he was owed, as Club C is
seeking to demonstrate. He also states that, in relation to the terms of the contract,
the first salary was due at the end of the month from the beginning of the season, i.e.
should have been due at the end of August 2013.
22.
The player claims that the counterclaim of Club C should be entirely rejected as it was
undoubtedly Club C who caused the breach of contract.
23.
In its reply to the counterclaim, Club E asserts having verified the player’s status
through his international player’s passport, which indicated that the player had not
been registered with any other club since his previous registration with Club E ended
on 30 June 2013. In particular, Club E noted that the player had not been registered
Player A, country B / Club C, country D / Club E, country F
5/12
with Club C. Club E claims to have acted in good faith and in compliance with the
relevant FIFA regulations and therefore asks that the counterclaim of Club C be
rejected.
24.
In response, Club C asserts that it informed Club E that the player had signed a
contract with it on 8 August 2014 and requested the delivery of the ITC, which Club E
allegedly refused to do.
25.
Club C claims that the “whatsapp” conversation submitted by the player (cf. point I.18
above) does not have any date, and there is no proof that the recipient is indeed who
the player alleges it is. Club C notes that the player acknowledges having deliberately
not handed over his passport to Club C.
26.
Club C asserts that the 2013/2014 season in country D started on 30 August 2013. On
this basis, Club C estimates it paid the sign-on fee as well as an advance of payment for
the months of September and October as well as half of November 2013, although his
ITC had not even been received.
27.
Club E riposted claiming that on 6 January 2014, i.e. after the player had once again
been registered with Club E, Club C entered an instruction into TMS n° 82068
requesting the player’s ITC. According to Club E, this demonstrates the deliberate bad
faith of Club C, notably because they knew that the player had been registered with
Club E since 2 January 2014 and demands that the claim against them be rejected.
28.
In response to FIFA’s pertinent request, the player indicated that he had signed a
contract with Club E on 1 January 2014 valid until 30 June 2016. The contract provides
for monthly remuneration of EUR 828,25 and 30 instalments of EUR 8,330 in the total
amount of EUR 250,000 payable at the end of each month from January 2014 until
June 2016.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 submitted to FIFA on 11 December 2013.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. article 21 par. 2 and 3 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 2015) the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
Player A, country B / Club C, country D / Club E, country F
6/12
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 (2015 edition),
and considering that the present claim was lodged on 11 December 2013, the 2012
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 aforementioned facts as well as the
arguments and the documentation submitted by the parties. The Chamber, however,
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 continuation the Chamber acknowledged that the player and Club C signed an
employment contract, on 19 June 2013, in which the parties agreed that employment
would last from 1 August 2013 until 30 June 2016 and that the player would be
entitled to receive, inter alia, a monthly salary of USD 20,000 and a USD 100,000
advance of payment. The player maintained that in light of not having received his
salaries of August and September 2013, as well as the fact that Club C allegedly failed
to request his ITC, he terminated the employment on contract on 5 November 2013.
6.
The members of the Chamber noted that Club C argued that it had requested the ITC
but that it was Club E who had failed to answer its request. Furthermore, the Chamber
noted that Club C claims to have paid the player a higher amount of remuneration
that the one he was contractually entitled to receive. Thus, Club C deems that the
player terminated the contract without just cause and, on 2 February 2014, it lodged a
counterclaim against the player and Club E.
7.
In addition, the members of the Chamber took note that Club E argued that it could
not be held responsible for the termination of the employment contract by the player
allegedly without just cause, as it had noted that the player had not been registered
on TMS with any other club since he had left Club E in June 2013 to join Club C. In
addition, it notes that Club C’s ITC request made in January 2014 demonstrates the
latter’s bad faith as it was already fully aware that the player and Club E had already
signed an employment contract.
8.
In view of the foregoing allegations of the parties, the Chamber consequently focused
its attention on the question of whether the player had just cause to terminate his
employment contract with Club C on 5 November 2013.
Player A, country B / Club C, country D / Club E, country F
7/12
9.
In this regard, the Chamber noted that the contract was terminated by the player on 5
November 2013, at which time the player claims to be owed three monthly salaries
pertaining to August, September and October 2013. In continuation, the members of
the Chamber recalled that Club C had provided evidence that it had made payments
due to the player (cf. point I.13 above) of which the player had acknowledged receipt
(cf. point I.21 above). Indeed, according to the contract salaries are payable from the
“beginning of the season”, and it was noted from the information contained on TMS
that the 2013/2014 season began on 3 September 2013. Therefore, on the date of
termination, i.e. 5 November 2013, the salaries of September and October 2013 had
fallen due in the total amount of USD 40,000 as well as the advance of payment in the
amount of USD 100,000. Consequently, the amount due at the time of termination is
USD 140,000. In consideration of the fact Club C alleges to have paid said amounts (cf.
point I.13 above) and the fact that the player has acknowledged the payment of USD
150,000 (cf. point I.21 above), the members of the Chamber noted that Club C had paid
an excess of USD 10,000 to the player. Thus, the Chamber established that no
outstanding monies were due at the time of termination by the player, who therefore
did not have just cause to terminate the contract on the basis of outstanding
remuneration.
10.
In continuation, the members of the Chamber analysed any other argument presented
which could amount to just cause. In this regard, the DRC noted that the player had
stated that no car was ever provided to him and that this was never contested by Club
C. In addition, the player alleges that he was not permitted to train with Club C’s 1st
team, which was a contractual obligation. This was contested by Club C, but the DRC
took note that no evidence was provided by either party in this regard. The members
of the Chamber also took note that no evidence was submitted by the player to
substantiate his contested allegation that no accommodation was provided to him and
that he had to pay for his own hotel room. The DRC also took note that Club C alleges
that the player refused to hand over his passport to allow Club C to proceed with
administrative formalities and that no consistent evidence was provided by either party
in this regard, nor was any evidence submitted by the player regarding his claim that
he was paying tax duties in order to remain in the country without a visa.
Consequently, the Chamber concluded that none of the aforementioned allegations
were substantially proven and would justify the player having just cause to terminate
the contract.
11.
Furthermore, the Chamber noted that the player had claimed that Club C had never
requested the delivery of the ITC, and had claimed that even had the request been sent
and no reply was received from the Football Federation of country F, the Football
Association of country D could have provisionally registered the player. The members
of the Chamber acknowledged that Club C stated that it had informed Club E that the
player had signed a contract with Club C on 8 August 2014 and had requested the ITC
(cf. point I.24 above). It was noted by the Chamber that each party gave diverging
Player A, country B / Club C, country D / Club E, country F
8/12
12.
positions, and in light of art. 6.3 of Annex 3 of the Regulations, the DRC took note of
what is contained on TMS.
Consequently, the DRC noted from the documentation provided and the information
contained on TMS that Club C had entered an ITC request on 5 August 2013 and had
cancelled the ITC request on 5 September 2013, i.e. eleven days before the closure of
the registration window. During this period, Club E did not enter a counter instruction
and the ITC was never transferred from the Football Federation of country F to the
Football Association of country D.
13.
In this regard, the Chamber considered relevant to recall its jurisprudence in
accordance with which the registration procedure in connection with the international
transfer of a player is of the sole responsibility of a club and on which a player has no
influence. With regard to the specificities of the case at stake and the aforementioned
considerations, notably in point II.9 above, the members of the Chamber again
concluded that Club C had cancelled the ITC request when Club E still could have
completed the administrative formalities. Bearing in mind that according to Annexe 3
of the Regulations an ITC request depends on the new club’s application to the new
association to register a professional, the club is actually in the position to prevent the
occurrence of the condition precedent of receipt of an ITC by willfully choosing not to
proceed with the application for an ITC request.
14.
For these reasons, the members of the Chamber concluded that by cancelling the ITC
request made on TMS, Club C put the player in the position where it was impossible for
him to be registered, and consequently impossible for him to execute his contract. The
members of the Chamber concluded that the player therefore had just cause to
terminate the employment contract on 5 November 2013.
15.
Having established that the player prematurely terminated the employment contract
with just cause, the Chamber focused its attention on the consequences of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant is entitled to receive from the Respondent an amount of
money as compensation for breach of contract.
16.
In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. 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.
Player A, country B / Club C, country D / Club E, country F
9/12
17.
In application of the relevant provision, the Chamber held that it first had to clarify
whether the pertinent employment contract contains 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.
18.
Bearing the foregoing in mind, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract from the
date of termination, i.e. 5 November 2013, until 30 June 2016 and concluded that the
player would have received a total of USD 750,000 (i.e. USD 160,000 for the 2013/2014
season minus USD 10,000 which has been paid in advance, in addition to USD 300,000
for the 2014/2015 season, and USD 300,000 for the 2015/2016 season) as salaries had
the contract been executed until its expiry date.
19.
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.
20.
The Chamber noted from the admission of both the player and Club E, that on 1
January 2014 the player had signed an employment contract with Club E valid until 30
June 2016, which provided for total remuneration of EUR 274,475, corresponding to
approximately USD 380,000 on 1 January 2014.
21.
Consequently, on account of all of the aforementioned considerations and the
specificities of the case at hand, the Chamber decided that Club C must pay the
amount of USD 370,000 to the player as compensation for breach of contract.
22.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the player and the counterclaim of Club
C are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent 1, Player A, is partially accepted.
2.
The Respondent/Counter-Claimant, Club C, has to pay to the Claimant/CounterRespondent 1, compensation for breach of contract in the amount of USD 370,000,
within 30 days as from the date of notification of this decision.
Player A, country B / Club C, country D / Club E, country F
10/12
3.
In the event that the amount due to the Claimant/Counter-Respondent 1 in accordance
with the aforementioned number 2. is not paid by the Respondent/Counter-Claimant
within the stated time limit, interest at a rate of 5% p.a. will fall due as of expiry of
the aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant/Counter-Respondent 1 is rejected.
5.
The counterclaim of the Respondent/Counter-Claimant is rejected.
6.
The Claimant/Counter-Respondent 1 is directed to inform the Respondent/CounterClaimant 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 art. 67 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:
Markus Kattner
Acting Secretary General
Player A, country B / Club C, country D / Club E, country F
11/12
Encl: CAS directives
Player A, country B / Club C, country D / Club E, country F
12/12