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
Theodore Giannikos (Greece), member
Eirik Monsen (Norway), member
Joaquim Evangelista (Portugal), member
on the matter between the player,
Player A, country B,
as Claimant / Counter-Respondent
and the club,
Club C, country D,
as Respondent / Counter-Claimant
and the club,
Club E, country F
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 14 January 2012, the player from country B, Player A (hereinafter: the Claimant /
Counter-Respondent or the player), and the club from country D, Club C
(hereinafter: the Respondent / Counter-Claimant or the club), concluded an
employment contract (hereinafter: the contract), valid for three and a half seasons
as of January 2012 until June 2015.
2.
The contract specified, inter alia, that the Respondent / Counter-Claimant is to
provide the Claimant / Counter-Respondent with the following remuneration:
Season 2011-2012 (second half): USD 200,000;
Season 2012-2013: USD 500,000 as follows:
- USD 125,000 due on 1 September 2012;
- USD 125,000 due on 1 January 2013;
- USD 125,000 due on 1 April 2013;
- USD 125,000 due on 30 June 2013.
Season 2013-2014: USD 625,000
Season 2014-2015: USD 750,000
3.
The preliminary article of the contract stated that “The two parties declare their
capacity to contract and they have read the regulations of players’ affairs which is
valid during the signing of this contract and this regulation supersedes any other
considered as part of this contract and complement for it”.
4.
Article 4 of the contract provided that “The [Claimant / Counter-Respondent] will
incur the taxes of the total amount of the contract according to law. The
[Respondent / Counter-Claimant] will settle the taxes to the concerned tax
administration and inform the [Claimant / Counter-Respondent] for the document
of paying after the end of the season and before the beginning of the next season”.
5.
Article 5 par. 7 of the contract foresaw that “Any financial fine imposed on the
[Claimant / Counter-Respondent] by the association will be deducted from the
[Claimant / Counter-Respondent] dues and sent to the association”.
6.
The contract further stated that the Claimant / Counter-Respondent is entitled to a
monthly amount of USD 2,500 as car and house allowance.
7.
The contract also stipulated, in its page 15, that “Fees of approval of [the
Respondent / Counter-Claimant] contracts of first and second divisions 3% of the
total value of the contract as follows:
0.5% paid at the branch which the [Claimant / Counter-Respondent] will be
registered at.
Player A, country B / Club C, country D / Club E, country F
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0.5% paid by a certified check in the name of the branch which the [Claimant /
Counter-Respondent] transferred from.
(…) 1% paid at the branch which the [Claimant / Counter-Respondent] will be
registered at if the [Claimant / Counter-Respondent] is transfering from one club to
another inside the same branch and not outside it”.
8.
On 15 May 2013, the Claimant / Counter-Respondent put the Respondent / CounterClaimant in default, claiming the outstanding amount of USD 320,650,
corresponding to USD 70,650 as balance of salary due on 1 September 2012 and USD
250,000 as full salary due on 1 January and 1 April 2013, and granting the
Respondent / Counter-Claimant a deadline of ten days to proceed to the payment.
9.
On 28 May 2013, the Claimant / Counter-Respondent reiterated his request for the
payment of the outstanding amount of USD 320,650 by no later than 7 June 2013.
10.
On 10 June 2013, the Claimant / Counter-Respondent sent a final default notice to
the Respondent / Counter-Claimant, acknowledging the payment of USD 20,000
from the Respondent / Counter-Claimant but still requesting the outstanding
amount of USD 300,650. The Claimant / Counter-Respondent further conceded not
to terminate the contract with the Respondent / Counter-Claimant if the latter
proceeded “without any delay” to the payment, within seven days, of “at least” the
amount of USD 175,650, corresponding to USD 50,650 as balance of salary due on 1
September 2012, plus USD 125,000 as full salary due on 1 January 2013.
11.
On 20 June 2013, the Claimant / Counter-Respondent terminated the contract with
the Respondent / Counter-Claimant in writing.
12.
On 28 June 2013, the Claimant / Counter-Respondent lodged a complaint before
FIFA against the Respondent / Counter-Claimant for breach of contract, requesting
the imposition of sporting sanctions as well as the following amounts:
- USD 411,761.5 as unpaid salaries as of September 2012 until 20 June 2013, i.e. USD
50,650 as balance of salary due on 1 September 2012, plus USD 250,000
corresponding to full salary due on 1 January and 1 April 2013, plus USD 111,111.5
as balance of salary up to 20 June 2013;
- USD 1,388,888.5 as compensation corresponding to the residual value of the
contract, i.e. USD 13,888.5 from 20 to 30 June 2013, plus USD 625,000 for the
season 2013-2014, plus USD 750,000 for the season 2014-2015;
- USD 100,000 as compensation for moral damages;
- USD 50,000 for legal costs.
13.
According to the Claimant / Counter-Respondent, the Respondent / CounterClaimant failed to meet its primary obligation of payment. In particular, the
Player A, country B / Club C, country D / Club E, country F
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Claimant / Counter-Respondent emphasised that the Respondent / Counter-Claimant
never paid his full salary on the agreed date. In this regard, the Claimant / CounterRespondent referred to his salary due on 1 September 2012, which the Respondent /
Counter-Claimant only paid the amount of USD 74,350. The Claimant / CounterRespondent also sustained that the Respondent / Counter-Claimant did not pay his
salary due on 1 January and 1 April 2013. In this context, the Claimant / CounterRespondent deemed that he had just cause to terminate the contract.
14.
In its reply to the claim, the Respondent / Counter-Claimant first of all held that the
parties agreed upon a gross remuneration of USD 2,075,000 for the entire term of
the contract, corresponding to a net amount of USD 1,660,000, i.e. USD 160,000 for
the season 2011-2012, plus USD 400,000 for the season 2012-2013, plus USD 500,000
for the season 2013-2014, plus USD 600,000 for the season 2014-2015. In this regard,
the Respondent / Counter-Claimant pointed to art. 4 of the contract and alleged
that the relevant taxes consisted of 20% out of the total gross value of the contract.
15.
Additionally, the Respondent / Counter-Claimant explained that a further 3% out of
the total gross value of the contract, representing USD 62,250, was deducted from
the Claimant / Counter-Respondent’s first salary, in order to pay the compulsory
registration fee to the Football Association of country D, which is requested to
foreign players transferred to a club participating in the league of country D, as per
page 15 of the contract. The Respondent / Counter-Claimant asserted that the
Claimant / Counter-Respondent requested it to defer the maturity date of such
deduction until the beginning of the season 2012-2013, i.e. deduction to be made
on the instalment of 1 September 2012.
16.
Moreover, the Respondent / Counter-Claimant quoted its Internal Regulations,
which apparently were duly acknowledged and signed by the Claimant / CounterRespondent when signing the contract, according to which the latter would only
receive 75% of his annual salary if he participated in less than 80% of the matches
with the Respondent / Counter-Claimant. In this regard, and since the league of
country D was suspended as from 1 February 2012, the Respondent / CounterClaimant explained that the Claimant / Counter-Respondent did not meet the
aforementioned requirement. In this context, the Respondent / Counter-Claimant
provided an unsigned copy of its Internal Regulations.
17.
Therefore, the Respondent / Counter-Claimant concluded that the Claimant /
Counter-Respondent was only entitled to the amount of USD 120,000 for the season
2011-2012. Accordingly, the Respondent / Counter-Claimant sustained having paid
the total amount of USD 115,000 for the relevant season and provided several
cheques as well as its internal transaction history in order to corroborate its
allegations.
Player A, country B / Club C, country D / Club E, country F
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18.
Consequently, the Respondent / Counter-Claimant deemed that at that time, it
owed the Claimant / Counter-Respondent the sole amount of USD 5,000 for June
2012. Yet, the Respondent / Counter-Claimant alleged that such amount was duly
set-off with the sanctions imposed on the Claimant / Counter-Respondent due to his
absence from training on 23 February 2012 in addition to his delay in attending
training on 5 occasions between February to April 2012. As a result, the Respondent
/ Counter-Claimant asserted having duly fulfilled its obligation of payment during
the season 2011-2012.
19.
As to the season 2012-2013, the Respondent / Counter-Claimant alleged that the
Claimant / Counter-Respondent was entitled for the first instalment of said season
to the gross amount of USD 125,000 which corresponded in net to USD 100,000.
From this amount, the Respondent / Counter-Claimant held that the amount of
“USD 62,500” had to be deducted as per the Football Association of country D’s
registration fee which the Claimant / Counter-Respondent had to bear and which
was directly paid by the Respondent / Counter-Claimant to Football Association of
country D prior thereto.
20.
In view of the foregoing, the Respondent / Counter-Claimant deemed that the
Claimant / Counter-Respondent was only entitled to USD 37,500 on 1 September
2012. Accordingly, the Respondent / Counter-Claimant held that such amount had
already been paid in advance and provided as evidence a bank certificate, which
indicated the following payments:
USD 18,000 on 12 July 2012 by wire transfer;
USD 20,000 by cheque collected on 23 August 2012.
21.
In addition, the Respondent / Counter-Claimant alleged that the Claimant /
Counter-Respondent had requested a reduction of the sanctions imposed on him
(cf. point I.24. below), claiming that he needed to be paid in advance the payment
due on 1 January 2013, which the Respondent / Counter-Claimant apparently
conceded as follows:
USD 10,000 on 9 October 2012 by wire transfer;
USD 34,000 on 5 December 2012 by wire transfer.
22.
Furthermore, the Respondent / Counter-Claimant acknowledged his delay in the
payment of the Claimant / Counter-Respondent’s remuneration “on a few
occasions” but considered having complied with all of the contractual obligations
towards the Claimant / Counter-Respondent. In this regard, the Respondent /
Counter-Claimant recalled the general legal principle of force majeure which it
deems applicable to the case at hand. In particular, the Respondent / CounterClaimant referred to art. 147 of the Civil Code of country D according to which in
Player A, country B / Club C, country D / Club E, country F
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case an unforeseen event occurred, the terms of a contract can be changed even
without the consent of both parties. The Respondent / Counter-Claimant also
alleged that such legal principle was foreseen in art. 2 of the Swiss Civil Code
according to which if during a long term contract, the surrounding circumstances
change in a manner that renders the performance excessively burdensome but not
impossible, relief may be granted. In view of the foregoing, the Respondent /
Counter-Claimant sustained that its obligations towards the Claimant / CounterRespondent can no longer be regarded as being covered by the contract since the
employment relationship between both parties had become “entirely unreasonable
and grossly disproportionate”.
23.
The Respondent / Counter-Claimant also evoked the Claimant / CounterRespondent’s acceptance of the application of par. 1 “Participation” of its Internal
Regulations. The said article foresaw a “holding 25% of contract value to be paid at
season end due [the Claimant / Counter-Respondent]’s participation. Participation of
80% matches number is the percentage received by [the Claimant / CounterRespondent] of these outstanding (25%) and listing his name in match list
considered participation”. The Respondent / Counter-Claimant explained that the
drastic reduction of its income due to the suspension of the league of country D and
the intervention of the Ministry of Sports of country D in the management of the
Respondent / Counter-Claimant allegedly led to an agreement between the
Respondent / Counter-Claimant‘s representatives and the players to hold 25% of the
contract value for the season 2012-2013. In this regard, the Respondent / CounterClaimant provided a related-agreement signed by other players for the season 20112012. In any event, the Respondent / Counter-Claimant deemed that the Claimant /
Counter-Respondent would not have received such quarter of his annual salary for
the relevant season since he did not participate in more than 80% of the matches,
as requested by the Respondent / Counter-Claimant’s Internal Regulations.
24.
In addition, the Respondent / Counter-Claimant asserted that it had also grounds to
proceed to the termination of the contract with just cause, yet it did not. In this
regard, the Respondent / Counter-Claimant referred to the Claimant / CounterRespondent’s behaviour, that he was repeatedly absent without any reason, among
other alleged breaches of the club’s Internal Regulations, resulting in the
Respondent / Counter-Claimant financially sanctioning the Claimant / CounterRespondent as follows:
Season 2011-2012: USD 2,500
USD 500 for missing training on 23 February 2012;
USD 2,500 for being late in training, “5 times between February and April
2012”;
Season 2012-2013: USD 204,350
Player A, country B / Club C, country D / Club E, country F
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USD 4,300 for assaulting an opponent player in a friendly match, resulting in
the Claimant / Counter-Respondent receiving a red card and the friendly
match being cancelled. The Respondent / Counter-Claimant submitted the
press article together with its translation into English;
USD 1,850 for receiving 5 yellow cards between August 2012 and May 2013;
USD 5,000 for addressing the member of the technical team impolitely on 6
September 2012;
USD 1,100 for missing training on 8 August and 14 December 2012;
USD 1,700 for being late in training, “4 times between August and December
2012”;
USD 64,900 for refusing to attend training as from 8 January 2013 until 20
February 2013;
USD 30,000 for refusing to travel to country G to play an international
friendly tournament from 18 to 25 January 2013;
USD 90,000 for refusing to play 5 official matches in the league of country D
and 1 match in the African Champions League;
3,000, equivalent to USD 500, from the Football Association of country D “for
receiving the third warning”.
25.
Subsequently, on November 2012, the Respondent / Counter-Claimant was
apparently informed through public media of the potential transfer of the “services
of the player” to his former club, i.e. Club H, which apparently created “a clear
detriment” to the Respondent / Counter-Claimant.
26.
Also, in May 2013, the Respondent / Counter-Claimant allegedly received a loan
offer from the club from country F, Club E. According to the Respondent / CounterClaimant, the player pressured it to accept such offer. The Respondent / CounterClaimant held that shortly after, on 23 June 2013, the player left and never replied
to the alleged several notices sent by the Respondent / Counter-Claimant and the
Football Association of country D, as well as never returned to the Respondent /
Counter-Claimant.
27.
In this context, the Respondent / Counter-Claimant deemed that it shall not pay any
compensation whatsoever and rejected the entire claim of the Claimant / CounterRespondent. The Respondent / Counter-Claimant also lodged a counter-claim
against the player for unilateral termination of the contract without just cause and
requested the payment of USD 3,238,880 as compensation for breach of contract by
the Claimant / Counter-Respondent and Club E, plus 5% interest p.a. as of “the date
in which the breach occurred”, broken-down as follows:
USD 1,388,888.5 as remuneration under the existing contract as from July
2013, i.e. USD 13,888 for the rest of the season 2012-2013, plus USD 625,000
for the season 2013-2014, plus USD 550,000 for the season 2014-2015;
Player A, country B / Club C, country D / Club E, country F
7/22
USD 1,000,000 for loss of earnings;
USD 500,000 as replacement costs, alleging that the Respondent / CounterClaimant would have to incur an expense similar to the one it did for the
player, in order to acquire his replacement;
USD 350,000 for specificity of sport.
The Respondent / Counter-Claimant also requested sporting sanctions to be imposed
on the Claimant / Counter-Respondent and Club E as well as legal costs to be borne
by the Claimant / Counter-Respondent.
28.
In his replica, with regard to the 20% tax deduction, the Claimant / CounterRespondent pointed to the lack of evidence from the Respondent / CounterClaimant of the payment of said taxes before the relevant local authorities. The
Claimant / Counter-Respondent further held that the Respondent / CounterClaimant never informed him of the amount of such taxes.
29.
As to the sanctions imposed on him, the Claimant / Counter-Respondent held that
the Respondent / Counter-Claimant did not provide any evidence of any disciplinary
proceedings against him. In this regard, the Claimant / Counter-Respondent asserted
having had an irreproachable behaviour towards the Respondent / CounterClaimant, regardless its delays in the payment as well as non-payment of his salary.
30.
Regarding the 3% deduction as registration fee to the Football Association of
country D, the Claimant / Counter-Respondent alleged that the club only had to pay
1% of the total amount of the contract, i.e. USD 20,000, since the 3% solely applied
when several requirements were met, as provided in the contract. In the case at
hand, the Claimant / Counter-Respondent was transferred to the Respondent /
Counter-Claimant from another association, and therefore, according to the
Claimant / Counter-Respondent, only 1% of the value of the contract was due to the
Football Association of country D. The Claimant / Counter-Respondent further
pointed that in any event, the Respondent / Counter-Claimant did not substantiate
that such payment was to be borne by the Claimant / Counter-Respondent and even
more, that the Respondent / Counter-Claimant never asked for the payment of such
amount to the Claimant / Counter-Respondent until it claimed it in the present
proceedings.
31.
As regards the argument of force majeure raised by the Respondent / CounterClaimant in order to explain the delay/non-payment of his remuneration, the
Claimant / Counter-Respondent recalled that the Respondent / Counter-Claimant did
not comply with its obligation of payment even before the league of country D was
suspended in February 2012 insofar as the payment due on 23 January 2012 had not
been made to the player. Moreover, the Claimant / Counter-Respondent stressed
that, at the time he put the Respondent / Counter-Claimant in default, the latter did
Player A, country B / Club C, country D / Club E, country F
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not mention the force majeure to substantiate its delay in the payment of his salary.
In addition, the Claimant / Counter-Respondent believed that there was no relation
whatsoever between the suspension of the championship of country D and the
Respondent / Counter-Claimant’s ability to comply with its financial obligations.
32.
The Claimant / Counter-Respondent also referred to the Respondent / CounterClaimant’s alleged payments, amounting to USD 206,000 as from 14 January 2012
until April 2013. According to the Claimant / Counter-Respondent, he was entitled
to the amount of USD 575,000 for the relevant period, in addition to the
outstanding salaries up to 24 June 2013 amounting to USD 111,000. As a result, the
player deemed that the amount of USD 480,000 remained due by the Respondent /
Counter-Claimant. As to the cheques provided by the Respondent / CounterClaimant, the player held that the Respondent / Counter-Claimant did not evidence
whether these cheques were actually cashed out and also, whether they were issued
for the player.
33.
Furthermore, the Claimant / Counter-Respondent denied having been aware of the
Respondent / Counter-Claimant’s Internal Regulations allegedly annexed to the
contract. The Claimant / Counter-Respondent stressed that said copy of the
Regulations was not signed by him or the Respondent / Counter-Claimant and was
not stamped by the Football Association of country D. Moreover, the Claimant /
Counter-Respondent refuted having accepted or having been aware of the players’
alleged acceptance of a reduction of 25% upon their salary. Finally, the Claimant /
Counter-Respondent sustained that the Respondent / Counter-Claimant did not
evidence that he did not take part in more than 80% of the matches.
34.
In this context, on 28 April 2014, the Claimant / Counter-Respondent amended his
claim pertaining to outstanding remuneration, requesting the amount of USD
480,000 (cf. point I.32. above). Moreover, the Claimant / Counter-Respondent
rejected the counter-claim of the Respondent / Counter-Claimant.
35.
Subsequently, the Claimant / Counter-Respondent confirmed that, on 1 July 2013,
he signed an employment contract with the club from country F, Club E, valid from
15 July 2013 until 15 May 2014. The said contract provided for a total fixedremuneration of USD 250,000 to the player.
36.
As regards Club E, the said club solely provided a correspondence dated 20 August
2013 addressed to the Football Association of country F according to which said club
acknowledged that the player lodged a claim against the Respondent / CounterClaimant and therefore, requesting the Football Association of country F to check
with FIFA “the possibility of contracting with this player for the sports season 20132014 (…)”.
Player A, country B / Club C, country D / Club E, country F
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37.
In its duplica, the Respondent / Counter-Claimant reiterated its position pertaining
to the amounts foreseen in the contract, which were gross amounts and were
subject to a deduction of 20%. In this regard, the Respondent / Counter-Claimant
referred to the Income Tax Law of country D (Law no. 91 of 2005; hereinafter: the
country D’s tax law) which established the following:
Art. 6: “An annual tax shall be imposed on the total net income of resident
and non-resident natural persons in their respect of their incomes earned in
country D […]”;
Art. 8: “The tax rates are as follows: […]
Third bracket: More than 40,000 pounds 20%”;
Art. 14: “Employers and those required to pay taxable revenues (…) shall
withhold, from the amounts payable and stipulated in article (9) of this law,
an amount on account of the due tax, according to the percentage
determined by this law. They shall remit to the competent tax office of the
payments withheld. […]”;
Art. 15: “The person responsible for withholding and remitting the tax
according to article (14) of this law shall: […]
2- Provide the employee, at the employee’s request, with a statement
indicating full name, amount and type of income and amount of tax
withheld”.
38.
The Respondent / Counter-Claimant also provided six cheques, allegedly
corresponding to the tax deduction made on the player’s gross salary and
subsequently paid to the tax authorities of country D, indicating the following
payments:
Season 2011-2012: 200,000 equivalent to USD 30,000 issued on 3 September 2012;
Season 2012-2013: 500,000 equivalent to USD 75,000, issued on 11 April, 19 May, 26
May, 6 November and 18 December 2013 for different amounts respectively.
In this regard, the Respondent / Counter-Claimant deemed that it was the Claimant /
Counter-Respondent’s obligation to request said documents as per art. 15 of the
country D’s tax law, yet he apparently never did.
39.
In order to further substantiate its allegations as per the taxes deduction from the
Claimant / Counter-Respondent’s salary, the Respondent / Counter-Claimant further
provided a statement from the Football Association of country D, according to
which in order to register a player at the Football Association of country D, “each
club shall submit (…) the club internal regulations signed by the player annexed
with the contract. Also the player to be registered has to burden the payment of
3% of the total gross amount of his contract as registration fees for approval of
player’s contract which should be paid by his club on behalf of the player and to be
deducted after that from his salary”. Moreover, the Football Association of country
Player A, country B / Club C, country D / Club E, country F
10/22
D confirmed that “according to country D’s Tax Law and Football Association of
country D player’s contract, each club is responsible for deducting the due taxes
amounting to 20% from the salary of each player as to be paid to the taxes
authority”.
40.
Moreover, referring to the preliminary article of the contract (cf. point I.3. above),
the Respondent / Counter-Claimant restated that its Internal Rules were part of the
contract and that the Claimant / Counter-Respondent was thus bound by them and,
in this context, provided a copy of said Rules signed by the player and stamped by
the Football Association of country D.
41.
With regard to the application of par. 1 “Participation” of its Internal Regulations
(cf. point I.23. above), the Respondent / Counter-Claimant insisted that the payment
of the last 25% of the Claimant / Counter-Respondent’s remuneration was subject
to participation in over 80% of the matches. It deemed that it should be regarded
as a conditional salary, “namely a variable part of their salary in order to ensure
their implication and commitment”. In particular, the Respondent / CounterClaimant referred to the Claimant / Counter-Respondent’s first default notice dated
15 May 2013 in which the Claimant / Counter-Respondent did not request the
payment of 25% of his remuneration, which according to the Respondent / CounterClaimant corresponded to his acceptance of its interpretation. In any event, the
Respondent / Counter-Claimant maintained that the Claimant / Counter-Respondent
did not play more than 80% of the matches, according to transfermarkt.com
extracts provided by the Respondent / Counter-Claimant.
42.
As to the sanctions imposed on the Claimant / Counter-Respondent, the Respondent
/ Counter-Claimant maintained that they were duly notified to the player. In this
regard, the Respondent / Counter-Claimant provided a correspondence dated 30
January 2013 from the Respondent / Counter-Claimant to the Football Association
of country D, notifying the Claimant / Counter-Respondent’s absence from training
since 8 January 2013 as well as his refusal to take part in international friendly
matches in the country G and informing the Football Association of country D of the
amount of fines imposed on the player, i.e. 10,000 + USD 15,000. Moreover, the
Respondent / Counter-Claimant asserted in said correspondence having “notified
the player with the above”. Accordingly, the Respondent / Counter-Claimant
attached the following notices:
letter dated 13 January 2013 allegedly addressed to the President of the
Respondent / Counter-Claimant, to inform of the Claimant / CounterRespondent’s absence from training and requesting the Respondent /
Counter-Claimant Board to take action pertaining to his infringement;
letter dated 17 January 2013 addressed to the Claimant / CounterRespondent, informing that considering his breaches of the contract, i.e.
Player A, country B / Club C, country D / Club E, country F
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absence from training, the Respondent / Counter-Claimant’s Board decided to
“freeze all and any payments to be made” and to impose fines on him
representing 10,000 for each day of absence as of the 5th day of absence
until his return, which will be deducted from his salary. Said letter also
granted the Claimant / Counter-Respondent a deadline of 5 days in order to
“express any observations on the above, alternatively the sanction shall be
deemed applicable immediately”;
letter dated 29 January 2013 addressed to the Claimant / CounterRespondent, informing that the fine for more than 20 days of absence from
training reached 200,000, in addition to USD 30,000 for not attending the
friendly international tournament and refusing to play two matches; the
Respondent / Counter-Claimant also informed the Claimant / CounterRespondent that if he does not resume the team, the fine will amount to USD
15,000 for each match missed. Said letter also granted the Claimant /
Counter-Respondent a deadline of 5 days in order to “express any
observations on the above, alternatively the sanction shall be deemed
applicable immediately”;
letter dated 1 March 2013 addressed to the Claimant / Counter-Respondent
to inform him that, since 8 January 2013 to date, he missed 6 official matches
and therefore, the total amount of fines amounted to USD 90,000. Said letter
also granted the Claimant / Counter-Respondent a deadline of 5 days in order
to “express any observations on the above, alternatively the sanction shall be
deemed applicable immediately”. As regards this fine, the Respondent /
Counter-Claimant admitted that such situation was not foreseen in the
Respondent / Counter-Claimant’s Internal Regulations. The Respondent /
Counter-Claimant deemed that such fine was not disproportionate and that,
in any case, said amount was subsequently reduced by the Respondent /
Counter-Claimant’s Board upon the player’s request (cf. point I.21. above)
and “set-off claims between an employer and an employee” was allowed by
art. 120 and notably 323 b. of the Swiss Code of Obligations.
43.
Furthermore, the Respondent / Counter-Claimant maintained that the suspension of
the championship of country D affected the Respondent / Counter-Claimant’s
income. In particular, the Respondent / Counter-Claimant stated that its income
decreased by approximately 35% for the season 2011-2012 and almost 65% for the
season 2012-2013. In this respect, the Respondent / Counter-Claimant provided a
summary of its financial balance.
44.
In addition, the Respondent / Counter-Claimant restated that, on 17 May 2013, it
received a loan offer from Club E for one sporting season and since then, the
Claimant / Counter-Respondent apparently pressured the Respondent / CounterClaimant to be released by the end of the season 2012-2013.
Player A, country B / Club C, country D / Club E, country F
12/22
45.
In this context, on 1 October 2014, the Respondent / Counter-Claimant amended the
financial part of its counter-claim, requesting the amount of USD 2,675,000 to be
paid by the Claimant / Counter-Respondent and Club E as follows:
USD 825,000 as net remuneration under the existing contract, i.e. after
deduction of the taxes and the “25% variable salary”, corresponding to USD
375,000 for the season 2013-2014 and USD 450,000 for the season 2014-2015;
USD 1,000,000 as loss of earnings;
USD 500,000 as replacement costs;
USD 350,000 for specificity of sport.
Alternatively, in case the DRC deemed that the termination of the contract by the
Claimant / Counter-Respondent was with just cause, the DRC shall award
compensation to him in light of the net amounts he was supposed to receive.
46.
In his final comments, the Claimant / Counter-Respondent mainly reiterated his
position, insisting on the fact that at the time he terminated the contract, he had
only received the amount of USD 236,000 whereas he was entitled to USD 700,000.
47.
The Claimant / Counter-Respondent also maintained that the Respondent / CounterClaimant did not provide any evidence pertaining to the payment of the said tax of
20% on behalf of the Claimant / Counter-Respondent emphasising that the cheques
provided to substantiate the payment of said tax were not reliable evidence. In
particular, the Claimant / Counter-Respondent pointed to the cheques issued in
November and December 2013, i.e. approx. 6 months after the player left.
48.
The Claimant / Counter-Respondent also held that the Respondent / CounterClaimant never informed him of the amount of the taxes, as per art. 4 of the
contract. In this context, the Claimant / Counter-Respondent maintained that the
amounts provided in the contract were net and that the contractual provisions
which stipulated the contrary were to be regarded as clause of “style” or a routine
form of expression imposed by the Football Association of country D but which
should not be enforced.
49.
As to the sanctions allegedly imposed on the Claimant / Counter-Respondent
amounting to USD 204,300, he sustained that the Respondent / Counter-Claimant
did not provide any concrete evidence pertaining to disciplinary proceedings against
him, such as minutes of a disciplinary meeting or notification of decision, thus
infringing art. 64 of the country D’s labour code according to which “No sanction
shall be imposed on the worker except after notifying him in writing the infraction
ascribed to him, hearing his statements, actualising his defense, and recording all
that in a report to be deposited in his proper file”. Furthermore, the Claimant /
Player A, country B / Club C, country D / Club E, country F
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Counter-Respondent stressed that the Respondent / Counter-Claimant did not prove
that the sanctions were duly notified to him.
50.
As regards the waiver of 25% of his salary as per the Respondent / CounterClaimant’s Internal Regulations allegedly annexed to the contract, the Claimant /
Counter-Respondent asserted that he was not aware of having signed such
document. The Claimant / Counter-Respondent thus requested the Respondent /
Counter-Claimant to provide the original version of said document. Moreover, the
Claimant / Counter-Respondent stressed that the clause pertaining to said waiver of
25% of his salary was drafted approximately and was open to several
interpretations. In this context, such clause should benefit to the weaker party, i.e.
the Claimant / Counter-Respondent.
51.
Moreover, the Claimant / Counter-Respondent emphasised that he took part in
more than 90% of the matches as from his qualification on 20 January 2012. As a
result, the percentage of matches should be calculated as from this date, and not in
due consideration of the entire season. In this respect, the Claimant / CounterRespondent provided a table of matches, indicating that he took part in 11 matches
as from January until September 2012.
52.
The Claimant / Counter-Respondent also referred to his first default notice which
included a mistake in the amount requested to the Respondent / Counter-Claimant,
i.e. the former lawyer of the Claimant / Counter-Respondent having charged the
payment of USD 34,000 on the instalment of September 2012 while it should have
been charged on the instalment of June 2012 which was still not fully paid. The
Claimant / Counter-Respondent therefore deemed that such mistake could not be
interpreted as a waiver of the payment of his salary.
53.
The Claimant / Counter-Respondent finally rejected the rest of the argumentation
of the Respondent / Counter-Claimant and amended his financial claim on 23 June
2015, requesting the following:
USD 505,500 as outstanding remuneration, plus 5% interest p.a. as of 20 June
2013, broken-down as follows:
o USD 463,000 as outstanding salaries, i.e. USD 700,000 minus USD 237,000
paid;
o USD 42,500 as car and house allowance for the period as from January
2012 until June 2013, i.e. USD 2,500 x 17 months;
USD 1,435,000 as compensation corresponding to the residual value of the
contract, composed of the following:
o USD 1,375,000 as salary until 30 June 2015;
o USD 60,000 as car and house allowance from 1 July 2013 until 30 June
2015;
Player A, country B / Club C, country D / Club E, country F
14/22
USD 50,000 as legal costs.
From the aforementioned amount claimed as compensation, the Claimant /
Counter-Respondent deducted the remuneration received from Club E, and took
this opportunity to amend his previous statement in this regard. The Claimant /
Counter-Respondent confirmed that the employment contract concluded with Club
E amounted to USD 500,000 for two seasons, i.e. USD 250,000 for each, and that the
contract initially provided was poorly written.
54.
According to the information contained in the Transfer Matching System (TMS),
there was one contract for each season. In particular, as to the season 2014-2015,
the Claimant / Counter-Respondent was to receive USD 300,000.
55.
In its final comments, the Respondent / Counter-Claimant purely reiterated its
previous argumentation.
56.
In addition, the Respondent / Counter-Claimant pointed to Club E’s alleged refusal
to exercise its right to be heard in the present proceedings which shall be regarded
as its tacit acceptation of all arguments.
57.
As to the original version of the Respondent / Counter-Claimant’s Internal
Regulations, the Respondent / Counter-Claimant provided a correspondence dated
20 August 2015 from the Football Association of country D which stated that the
original document therein requested was lost.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 28 June 2013.
Consequently, the 2012 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at stake (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 2015), 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, an club from country D
and a club from country F.
Player A, country B / Club C, country D / Club E, country F
15/22
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
2015), and considering that the present claim was lodged in front of FIFA on 28
June 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 DRC and the applicable regulations having been established,
the Chamber entered the substance of the present matter. In doing so, it started by
acknowledging the abovementioned facts of the matter as well as the
documentation contained in the 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.
5.
In this respect, the Chamber acknowledged that the Claimant / Counter-Respondent
and the Respondent / Counter-Claimant entered into a contractual relationship,
which was to run from January 2012 until June 2015 and according to which the
Claimant / Counter-Respondent was entitled to a total remuneration amounting to
USD 200,000 for the second half of the season 2011-2012, USD 500,000 for the
season 2012-2013, USD 625,000 for the season 2013-2014 and USD 750,000 for the
season 2014-2015.
6.
The Chamber further observed that the Claimant / Counter-Respondent terminated
the contract on 20 June 2013 in writing, after having put the Respondent / CounterClaimant in default on several previous occasions, and that he subsequently lodged
a claim in front of FIFA against the Respondent / Counter-Claimant seeking payment
of outstanding remuneration as well as compensation for breach of contract.
Equally, the player added a request for compensation for moral damages and the
payment of legal costs by the Respondent / Counter-Claimant.
7.
On the other hand, the Chamber duly noted that the Respondent / CounterClaimant held that it had complied with all of its contractual obligations and that it
was in fact the Claimant / Counter-Claimant who had terminated the contract
without just cause by leaving the club in June 2013. As a result, the Respondent /
Counter-Claimant lodged a counter-claim against the Claimant / CounterRespondent for the total amount of USD 3,238,880.
8.
The DRC is aware that whereas the Claimant / Counter-Respondent held that at the
time of the termination of the contract, the Respondent / Counter-Claimant had
outstanding salaries towards him in a significant amount, the Respondent / CounterClaimant sustained that it complied in full with its financial obligations. As a
Player A, country B / Club C, country D / Club E, country F
16/22
consequence, the Chamber first of all needed to examine whether the Respondent /
Counter-Claimant complied with its financial obligations towards the Claimant /
Counter-Respondent. In this respect, the Chamber observed that the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant had, in particular,
divergent opinions on whether the deductions made by the Respondent / CounterClaimant from the Claimant / Counter-Respondent’s salary were justified. In this
framework, the Chamber deemed it necessary to examine each and every deduction
made.
i) The deduction of USD 62,250 concerning the registration fee
As to the first deduction of the Claimant / Counter-Respondent’s salary, the
Chamber referred to page 15 of the contract which reads: “Fees of approval of [the
Respondent / Counter-Claimant] contracts of first and second divisions 3% of the
total value of the contract as follows:
0.5% paid at the branch which the [Claimant / Counter-Respondent] will be
registered at.
0.5% paid by a certified check in the name of the branch which the [Claimant /
Counter-Respondent] transferred from.
(…) 1% paid at the branch which the [Claimant / Counter-Respondent] will be
registered at if the [Claimant / Counter-Respondent] is transfering from one club to
another inside the same branch and not outside it”.
After having analysed the aforementioned provision, the Chamber was not
convinced that the amount of USD 62,250 as registration fee was to be deducted
from the Claimant / Counter-Respondent’s salary. The Chamber found that the cited
provision did not indicate which party was responsible for the payment of the
registration fee. The DRC also did not take into account the documentation
provided by the Respondent / Counter-Claimant in this regard, especially the
statement of the Football Association of country D (cf. point I.39. above), since the
contract was to be regarded as the primary document governing the relationship
between the parties. As such, without an explicit contractual basis and considering
that it was the Respondent / Counter-Claimant’s responsibility to register the
Claimant / Counter-Respondent with the Football Association of country D, the DRC
was of the opinion that the Respondent / Counter-Claimant was not allowed to
deduct 3%, equivalent to USD 62,250, out of the player’s remuneration. As a result,
the Chamber concluded that the Respondent / Counter-Claimant’s argument
relating to the payment of the registration fee was to be rejected.
ii) The deduction of 25% from the player’s annual salary
The Chamber took due note that this particular deduction was established in the
Respondent / Counter-Claimant’s Internal Regulations, according to which 75% of
Player A, country B / Club C, country D / Club E, country F
17/22
the Claimant / Counter-Respondent’s annual remuneration was fixed and the last
quarter was conditional upon the participation of the Claimant / CounterRespondent in more than 80% of matches. The Chamber outlined that the Claimant
/ Counter-Respondent denied having signed said document and that the original
document could not be provided by the Respondent / Counter-Claimant or the
Football Association of country D.
The DRC further wished to underline the Respondent / Counter-Claimant’s
confusion when it asserted that the last quarter of the Claimant / CounterRespondent’s remuneration was also waived by the latter due to the suspension of
the country D’s league which led to the Respondent / Counter-Claimant’s financial
issues. In this regard, the Chamber stressed that the Respondent / Counter-Claimant
did not provide any agreement signed by the parties corroborating such
information. The DRC also noted that the Claimant / Counter-Respondent refuted
having waived the last quarter of his annual remuneration. Therefore, and referring
to art. 12 par. 3 of the Procedural Rules, the DRC decided to reject the Respondent /
Counter-Claimant’s arguments related to the deduction of 25% upon the Claimant /
Counter-Respondent’s annual remuneration.
iii) The deduction of USD 206,850 as fines imposed on the player by the club
Contrary to the statements of the club in this regard (cf. point I.24. above), the
Chamber deemed that the imposition of the relevant several fines was not justified.
The Chamber in particular outlined that no conclusive evidence had been provided
by the Respondent / Counter-Claimant as to the alleged offenses by the Claimant /
Counter-Respondent, or as to the effective notification to the Claimant / CounterRespondent of any of the sanctions so that the player could defend himself against
the imposition of said fines. As a result, the Chamber could not accept the
imposition of the relevant fines and decided to reject the Respondent / CounterClaimant’s arguments in this respect.
iv) The deduction of 20% as income tax
The members of the Chamber have noted that the Respondent / Counter-Claimant
was of the opinion that 20% income tax should be deducted from the total value of
the contract, as per art. 4 of the contract combined with art. 8 of country D’s law,
asserting that the amounts provided for in the contract corresponded to the player’s
gross remuneration. In this respect, the Chamber observed that the Respondent /
Counter-Claimant provided the necessary documentation to evidence that such
deduction had to be done as per country D’s law, regardless of the consideration
whether the Respondent / Counter-Claimant paid the relevant tax to the authorities
in question by means of the cheques provided by the latter as proof of payment. As
Player A, country B / Club C, country D / Club E, country F
18/22
a result, the Chamber determined that the Respondent / Counter-Claimant was
allowed to deduct 20% out of the Claimant / Counter-Respondent’s total salary.
9.
In consideration of the foregoing, and reverting to the termination of the contract
by the Claimant / Counter-Respondent, the Chamber concluded that the Claimant /
Counter-Respondent had just cause to terminate the employment contract with the
Respondent / Counter-Claimant on 20 June 2013. In particular, the Chamber
considered that, at the time the Claimant / Counter-Respondent terminated the
contract, the Claimant / Counter-Respondent should have received the gross amount
of USD 575,000, i.e. USD 200,000 for the season 2011-2012, plus USD 375,000 for the
season 2012-2013, corresponding to USD 460,000 after the 20% tax relevant
deduction. Moreover, the Chamber took into account the payment of USD 206,000
by the Respondent / Counter-Claimant, which the Claimant / Counter-Respondent
confirmed in point I.32. above. In view of the foregoing, the DRC observed that, at
the time of the termination of the contract, the Respondent / Counter-Claimant had
not paid the Claimant / Counter-Respondent the total amount of USD 254,000,
representing approximately two instalments as per the contract. Therefore, given
that each instalment was paid every three months, the DRC considered that the
Claimant / Counter-Respondent had remained more than six months without
receiving any salary. As a consequence, the Chamber was of the unanimous opinion
that the Claimant / Counter-Respondent had a justified reason not to continue his
employment relationship with the Respondent / Counter-Claimant.
10.
On account of all the above, the Chamber established that the Claimant / CounterRespondent terminated the employment contract with just cause on 20 June 2013.
Consequently, the Respondent / Counter-Claimant was to be held liable for the early
termination of the employment contact and thus, the DRC rejected the Respondent
/ Counter-Claimant’s counterclaim.
11.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the premature termination of the employment contract with just
cause by the Claimant / Counter-Respondent.
12.
At this point, the members of the Chamber agreed that, irrespective of the
aforementioned considerations, the Claimant / Counter-Respondent’s claim was
amended twice, the second amendment being made on 23 June 2015, which was
more than two years after the event giving rise to the dispute. Therefore, every
concept requested by the Claimant / Counter-Respondent in the second amendment
to his claim, except for the car and house allowance for June 2013, must be
considered barred by the statute of limitations in accordance with art. 25 par. 5 of
the Regulations.
Player A, country B / Club C, country D / Club E, country F
19/22
13.
In continuation, the members of the Chamber concurred that the Respondent /
Counter-Claimant had to fulfill its obligations as per the employment contract in
accordance with the general legal principle of “pacta sunt servanda”. In other
words, the Chamber decided that the Respondent / Counter-Claimant was liable to
pay to the Claimant / Counter-Respondent the remuneration that was outstanding
at the time of the termination, i.e. USD 254,000 (cf. point II.9. above), plus USD
2,500 as car and house allowance for June 2013.
14.
As a result, the Chamber determined that the Respondent / Counter-Claimant had
to pay the Claimant / Counter-Respondent the amount of USD 256,500 as
outstanding remuneration.
15.
Subsequently, the Chamber decided that, taking into consideration art. 17 par. 1 of
the Regulations, the Claimant / Counter-Respondent was entitled to receive from
the Respondent / Counter-Claimant compensation for breach of contract in addition
to the outstanding remuneration on the basis of the relevant employment contract.
16.
In this context, the Chamber outlined that, in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
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.
17.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by means
of which the parties had beforehand agreed upon a compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
18.
Having recalled the aforementioned, and in order to evaluate the compensation to
be paid by the club, the members of the Chamber took into account the
remuneration due to the player in accordance with the employment contract as well
as the time remaining on the same contract, along with the professional situation of
the player after the early termination occurred. In this respect, the Chamber
concluded that the remaining value of the contract as from its early termination by
the Claimant / Counter-Respondent until the regular expiry of the contract
amounted to USD 1,500,000 gross, corresponding to USD 1,200,000 net, after the
20% tax relevant deduction.
Player A, country B / Club C, country D / Club E, country F
20/22
19.
In continuation, the Chamber remarked that the Claimant / Counter-Respondent
had found new employment, where he earned the total amount of USD 550,000 for
the seasons 2013-2014 and 2014-2015.
20.
Consequently, in accordance with the constant practice of the DRC and the general
obligation of the player to mitigate his damages, the remuneration as indicated in
the new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract.
21.
In view of all of the above, the Chamber decided that the Respondent / CounterClaimant had to pay the amount of USD 650,000 to the Claimant / CounterRespondent, which was considered by the Chamber to be a reasonable and justified
amount as compensation for breach of contract.
22.
Finally, the Dispute Resolution Chamber decided not to grant the Claimant /
Counter-Respondent’s request regarding compensation for moral damages in
absence of sufficient documentary evidence. Likewise, the DRC also rejected the
Claimant / Counter-Respondent’s claim pertaining to legal costs in accordance with
art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding
jurisprudence in this regard.
23.
The DRC concluded its deliberations in the present matter by establishing that any
further claim lodged by the player is rejected and that the counter-claim of the club
is rejected in full.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent is partially accepted.
2.
The counter-claim of the Respondent / Counter-Claimant is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent outstanding remuneration amounting to USD 256,500, within 30 days
as from the date of notification of this decision.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent compensation for breach of contract amounting to USD 650,000,
within 30 days as from the date of notification of this decision.
5.
In the event that the amounts foreseen in points 3. and 4. are not paid within the
stated time limits by the Respondent / Counter-Claimant, interest at the rate of 5%
Player A, country B / Club C, country D / Club E, country F
21/22
p.a. will fall due as of expiry of the aforementioned time limits and the present
matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittances
are to be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
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
22/22
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country F
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