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 claim presented by the player,
Player A, country B
as Claimant/Counter-Respondent
against the club,
Club C, country D
as Respondent/Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 September 2014, the player from country B, Player A (hereinafter: the
Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter:
the Respondent/Counter-Claimant), signed an employment contract and its annexes,
valid as from 1 September 2014 until 31 August 2015.
2.
Articles 1 and 2 of Annex 1 of the contract stipulate that:
a. The Respondent/Counter-Claimant “agreed to pay the Player monthly wage,
allowance and contracts fee such as follows:
i. Fee transfer: USD 90,000 (Ninety thousand dollars us). In case of
liquidation of the player ahead of time to return to club transfer fee
amount equal to the remaining duration of the contract.
ii. Wage of the player are: USD 9,000/month (nine thousand US on
month) [the Respondent] shall pay individual income tax for the
player”.
b. “During the time not playing club, the club will pay a salary for players with
50% of the monthly salary”.
c. the Respondent/Counter-Claimant is responsible for “meals, accommodation
and move for the player” and “the player will eat, in focus with the other
players of the team”. Furthermore, “the club is responsible for providing a
player’s wife (01) Roundtrip air tickets in case of wife player to country D”.
3.
Furthermore, article 2 of the contract inter alia states “during going on tour for
competition the Player shall stay with the team. The Club covers all cost for such
accommodation and foods”. The contract also provides that “in case the player
breaks the regulations of [the Respondent] he will be warned, fired an amount of
money: USD 10,000 or even sacked by the club without any compensation for this
agreement termination”.
4.
Article 1 of Annex 1 of the employment contract also stipulates “during play game of
the season if the club’s expertise assessment council not satisfactory with the player,
the club will liquidate the contract with the player without having to pay
compensation for any expenses”. It further stipulates that “in case of liquidation of
the player ahead of time to return to the club transfer fee amount equal to the
remaining duration of the contract”.
5.
On
12
January
2015,
the
Respondent/Counter-Claimant
notified
the
Claimant/Counter-Respondent of the termination of the employment contract in
writing reminding him and requesting “Player A return completed obligation to
Player A, country B / Club C, country D
Page 2 of 12
repay the transfer fee under the contract signed with the football club and the club
will Club C completing the legal for players to play”.
6.
On 16 January 2015, the Claimant/Counter-Respondent lodged a claim in front of FIFA
against the Respondent/Counter-Claimant asking that he be paid a total of USD
120,000, broken down as follows:
a. Outstanding remuneration in the total amount of USD 57,000, as follows:
i. remaining amount of the alleged sign-on fee (cf. point I.2.a.i. above):
USD 30,000.
ii. salaries of December 2014, January and February 2015 for a total of
EUR 27,000.
b. Compensation for breach of contract, amounting to the residual value of the
contract, i.e. March 2015 until September 2015 for the total amount of USD
63,000.
7.
The Claimant/Counter-Respondent claims that the Respondent/Counter-Claimant
unilaterally terminated the employment contract with him without just cause (cf.
point I.5 above) by asking him, during a meeting on 14 January 2015 to find another
club and to stop participating in any training or club activities. The Respondent
allegedly provided him with a copy of the termination letter (cf. point I.5 above) but
did not give any reason for the premature termination of the contract. The
Claimant/Counter-Respondent submitted a newspaper article dated 15 January 2015,
the title of which states “League of country D teams sack foreign players for poor
performance, health issues”.
8.
The Claimant/Counter-Respondent further claims that the Respondent/CounterClaimant refused to send the release papers to the Football Federation of country D
unless he paid the Respondent back certain sums relating, in particular, to the alleged
“transfer fee” (cf. points I.2.a.i and I.5 above). The Claimant/Counter-Respondent
questions why he would have to pay compensation to the Respondent when it was
the Respondent that terminated the employment contract unilaterally. In addition,
the Claimant/Counter-Respondent claims to have been forced to leave his hotel.
9.
Before entering into the substance of the reply of the Respondent/Counter-Claimant,
it must first be noted that the Respondent/Counter-Claimant initially sent an
incomplete copy of its reply within the timeframe given by FIFA to respond to the
claim, i.e. 24 February 2015. In reply to FIFA’s pertinent request that FIFA be provided
with a complete copy of the Respondent/Counter-Claimant’s position regarding the
claim, the Respondent/Counter-Claimant provided FIFA with a different submission,
which included a counterclaim dated 3 July 2015.
Player A, country B / Club C, country D
Page 3 of 12
10.
In its reply, the Respondent/Counter-Claimant stated that the reason for the
termination was the multiple violations of the terms of the employment contract.
Indeed, the Respondent/Counter-Claimant claims that the Claimant/CounterRespondent, by deciding to live in a hotel without the authorisation of the
Respondent, violated article 2 of the first annex to the employment contract, which
stipulates “the player will eat, in focus with the other players of the team” (cf. point
I.2.c above).
11.
The Respondent/Counter-Claimant continues by asserting that the Claimant/CounterRespondent showed poor performance in both physical and professional aspects, and
upon a decision by the members of the Respondent it was decided on 12 January
2015 that the Claimant/Counter-Respondent did not satisfy the requirements of the
Respondent/Counter-Claimant.
12.
Furthermore, the Respondent/Counter-Claimant claims that in relation to article 1 of
Annex 1 of the contract (cf. point I.4 above), the Claimant/Counter-Respondent is not
entitled to receive the remainder of the sign-on bonus (i.e. USD 30,000) and should
have to pay the Respondent/Counter-Claimant USD 26,250. The Respondent/CounterClaimant claims that the Claimant/Counter-Respondent was entitled to USD 33, 750 of
the sign-on fee for the four and a half months he was registered with it, and asserts
that because it paid the Claimant/Counter-Respondent USD 60,000 of the sign-on fee,
he should pay back USD 60,000 – USD 33,750 = USD 26,250 to the
Respondent/Counter-Claimant, and is not entitled to the remaining USD 30,000.
13.
The Respondent/Counter-Claimant claims it is entitled to fine the Claimant/CounterRespondent USD 10,000 as disciplinary sanction for violating the employment contract
(cf. point I.3 above). It therefore claims to be entitled to USD 10,000 from the
Claimant/Counter-Respondent. It further asserts that it should not have to pay for any
flight tickets in relation to article 2 of Annex 1 of the employment contract, on the
basis that the Claimant/Counter-Respondent’s wife never travelled to country D.
14.
Based on the foregoing, on 10 July 2015 the Respondent/Counter-Claimant lodged a
counterclaim against the player requesting that “Player A refund a part of transfer
fee to Club C and pay the penalty due to his breach of the Labour Contract” for the
amount of USD 26,250 plus a fine of USD 10,000.
15.
In his reply to the counterclaim, the Claimant/Counter-Respondent requests that the
Respondent/Counter-Claimant’s response which includes the counterclaim (cf. point
I.9 above) be disregarded pursuant to article 9.3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber as it
was allegedly received after the given deadline.
Player A, country B / Club C, country D
Page 4 of 12
16.
Subsidiarily, the Claimant/Counter-Respondent contests the validity of the document
submitted as “Minutes of the board meetings expertise” (cf. point I.11 above) on the
basis that the document purports that Mr E was Chairman of the board on 12 January
2015. The Claimant/Counter-Respondent alleges that Mr F, the initial signatory to the
employment contract, was the Chairman of the board until May 2015. He asserts that
the document in question is a forgery, as it is simply not conceivable that Mr E was
Chairman on 12 January 2015.
17.
The Claimant/Counter-Respondent claims that between 23 October 2014 and 12
January 2015 he had not received any verbal or written warning regarding his
accommodation situation. In addition, he notes that article 2 of the contract (cf. point
I.2.d. above) provides that the Respondent/Counter-Claimant will pay for
accommodation during competitions, and that it is in light of the club’s request he
stay in a particular hotel which it was paying for, that the Respondent was able to
have the Claimant/Counter-Respondent discharged so easily. He adds that he never
refused to stay in any accommodation provided for by the Respondent.
18.
He also states that, contrary to the Respondent/Counter-Claimant’s assertion, it is
clear he has never claimed for the reimbursement of flight tickets, even if though
they are contractually provided for (cf. point I.2.c. above). Finally, he reasserts the
illegality of the termination and the lack of just cause.
19.
After the closure of the investigation, the Respondent/Counter-Claimant replied with
unsolicited comments by stating that Mr E did not sign any document as Chairman of
the Board, but did sign as Chairman of the Expertise Board of Club C. It further claims
that the Claimant/Counter-Respondent had left the Respondent/Counter-Claimant
without permission and left the hotel he was staying in on 14 January 2015. It also
states that the document dated 12 January 2015 did not give permission to the
Claimant/Counter-Respondent to resign without permission. In addition, the
Respondent claims it had just cause to terminate the contract as the
Claimant/Counter-Respondent had severely breached national labour law. Finally, the
Respondent/Counter-Claimant claims that in accordance with a clause (cf. point I.2.b.
above) of the contract, the Respondent/Counter-Claimant does not have to pay the
other 50% of the salaries owed to the Claimant/Counter-Respondent because “the
player had not been practicing or competing” and the Respondent/Counter-Claimant
“has not arranged to train and compete during the period of September – October
2014”.
20.
In response to FIFA’s pertinent request, the Claimant/Counter-Respondent stated that
since 12 January 2015 he has not found any form of employment, football-related or
not.
Player A, country B / Club C, country D
Page 5 of 12
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 16 January
2015. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (2014 edition; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2
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 (2015 edition) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated 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 to the
substance of the matter. In this respect, the Chamber 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 claim was lodged in front of
FIFA on 16 January 2015, the 2014 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the substance of the matter at hand.
4.
The competence of the Chamber and the applicable Regulations having been
established, and entering into the substance of the matter, the Chamber started
by acknowledging that aforementioned facts as well as the documentation
contained in the file. 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.
Before addressing the parties’ arguments relating to the substance of the dispute,
the DRC noted that the Claimant/Counter-Respondent deemed that the
Respondent/Counter-Claimant’s second correspondence mentioned in point I.9
above, should not be taken into account as it was submitted after the deadline
granted by FIFA. In this respect, the DRC pointed out that a reply from the
Respondent/Counter-Claimant, although incomplete was in fact received on 13
February 2015, i.e. before the deadline expired on 24 February 2015.
Player A, country B / Club C, country D
Page 6 of 12
Consequently, this correspondence shall be taken into account. As to the second
correspondence dated 3 July 2015 mentioned in point I.9 above, the members of
the Chamber noted that it consists of a counterclaim of the Respondent/CounterClaimant, which was lodged within the timeframe stipulated in art. 25 par. 5 of
the Regulations (2014 edition), i.e. 6 July 2015, therefore it should be taken into
consideration. The Chamber also referred to the final correspondence of the
Respondent/Counter-Claimant mentioned in point I.19 above, noting that it had
been lodged after the closure of the investigation phase. In consequence, the
members of the Chamber decided that this submission should not be considered,
in accordance with art. 9 par. 3 of the Procedural Rules.
6.
Having established the foregoing, the Chamber started the analysis of the parties’
arguments relating to the substance of the dispute. In this respect, the Chamber
acknowledged that on 1 September 2014, the Claimant/Counter-Respondent and
the Respondent signed an employment contract and its annexes valid from 1
September 2014 until 31 August 2015. The Claimant/Counter-Respondent, on the
one hand, maintains that the Respondent/Counter-Claimant terminated the
employment contract without just cause on 12 January 2015 and therefore asks to
be awarded, inter alia, outstanding remuneration and the payment of
compensation for breach of contract. The Respondent/Counter-Claimant, on the
other hand, rejects such a claim and holds that it duly terminated the employment
contract with just cause in light of article 1 of Annex 1 of the employment
contract (cf. point I. 4. above), thereby entitling it to the sums mentioned in point
I.12 above.
7.
First and foremost, in order to be able to establish whether, as claimed by the
Claimant/Counter-Respondent and contested by the Respondent/Counter-Claimant,
the club terminated the employment contract without just cause, the Chamber
turned its attention to article 1 of Annex 1 of the employment contract, which
was invoked by the Respondent in its defence.
8.
As stated above, according to article 1 of Annex 1 of the employment contract
“during play game of the season if the club’s expertise assessment council not
satisfactory with the player, the club will liquidate the contract with the player
without having to pay compensation for any expenses”.
9.
In this respect, the Chamber held that it could not accept said article as being
valid, as it provides for a unilateral termination of the contract by the club based
on its assessment of the player’s performance. In accordance with its well
established jurisprudence, the Chamber indicated that the player’s performance in
itself cannot be considered a valid reason to terminate an employment contract,
as it is the result of a purely subjective perception, not measurable according to
Player A, country B / Club C, country D
Page 7 of 12
objective criteria. Therefore, the Chamber decided that the Respondent/CounterClaimant could not legitimately terminate the contractual relation with the
Claimant/Counter-Respondent by applying article 1 of Annex 1 of the employment
contract. Consequently, as this was the only reason given by the
Respondent/Counter-Claimant for the termination, the Chamber decided that the
Respondent/Counter-Claimant
had terminated the contract with the
Claimant/Counter-Respondent without just cause on 12 January 2015 and that the
Respondent/Counter-Claimant is therefore to be held liable for the early
termination of the employment contract without just cause.
10.
In continuation, the Chamber deemed that in consideration of the fact that the
Respondent/Counter-Claimant had terminated the employment contract without
just cause on 12 January 2015, its counterclaim lodged against the
Claimant/Counter-Respondent had to be rejected.
11.
In this regard, the members of the Chamber unanimously agreed that the
counterclaim of the Respondent/Counter-Claimant had to be rejected.
12.
Bearing in mind the previous considerations, the Chamber then dealt with the
consequences of the early termination of the employment contract without just
cause by the Respondent/Counter-Claimant.
13.
In continuation, prior to establishing the consequences of the breach of contract
without just cause by the Respondent/Counter-Claimant in accordance with art. 17
par. 1 of the Regulations, the Chamber held that it had to address the issue of any
unpaid remuneration at the moment the contract was terminated by the
Respondent/Counter-Claimant.
14.
Indeed, in his statement of claim, the Claimant/Counter-Respondent alleges that
the sign-on fee and salaries of December 2014, January and February 2015 in the
total amount of USD 57,000 had to be considered outstanding. Bearing in mind,
as stated above, that the contract was terminated by the Respondent/CounterClaimant on 12 January 2015 and that in accordance with both the employment
contract and the annexes the Claimant/Counter-Respondent’s sign-on fee was due
on 1 September 2014 and his salary was due each month, the Chamber
established that on 12 January 2015, only the sign-on fee and the salary of the
month of December 2014 had fallen due. The Respondent/Counter-Claimant did
not provide any proof of payment of these amounts or any valid reasons for not
having paid them. The members of the Chamber established that the
Respondent/Counter-Claimant had to pay the Claimant/Counter-Respondent USD
39,000 in outstanding remuneration.
Player A, country B / Club C, country D
Page 8 of 12
15.
Having established the above, the Chamber turned its attention to the question
of the consequences of the unilateral termination of the employment contract
and the supplementary agreement by the Respondent/Counter-Claimant without
just cause on 12 January 2015.
16.
The members of the Chamber first 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.
17.
In application of the relevant provision, the Chamber held that it first had to
clarify as to whether the contract at the basis of the present dispute contain 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. The members of the Chamber recalled that according to art. 1 of Annex
1 to the contract “during play game of the season if the club’s expertise
assessment council not satisfactory with the player, the club will liquidate the
contract with the player without having to pay compensation for any expenses”
and stipulates that “in case of liquidation of the player ahead of time to return to
the club transfer fee amount equal to the remaining duration of the contract”.
18.
The members of the Chamber agreed that this clause is to the benefit of the club
only. Not only does it allow the Respondent/Counter-Claimant to terminate the
contract at any time, based on non-objective criteria (cf. point II. 9 above), but
also to do so without having to pay any compensation to the Claimant/CounterRespondent for such an arbitrary termination. Article 1 of Annex 1 also stipulates
that in case the Claimant/Counter-Respondent terminates the contract – without
or without just cause – he must pay the Respondent/Counter-Claimant the nonamortised transfer fee paid by the club. In view of the foregoing, the DRC
concluded that such a clause establishes non-reciprocal and extremely unbalanced
conditions for the termination for the player and the club. Thus, it cannot be
taken into consideration for the calculation of the amount of compensation for
breach of contract due by the Respondent/Counter-Claimant to the
Claimant/Counter-Respondent.
19.
As a consequence, the members of the Chamber determined that the amount of
compensation
payable
by
the
Respondent/Counter-Claimant
to
the
Player A, country B / Club C, country D
Page 9 of 12
Claimant/Counter-Respondent had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken
into consideration when calculating the amount of compensation payable.
Therefore, other objective criteria may be taken into account at the discretion of
the deciding body. In this regard, the Dispute Resolution Chamber emphasised
beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter.
20.
In order to estimate the amount of compensation due to the Claimant/CounterRespondent in the present case, the members of the Chamber first turned their
attention to the remuneration and other benefits due to the Claimant/CounterRespondent under the existing contracts and/or the new contract, which criterion
was considered by the Chamber to be essential. The members of the Chamber
deemed it important to emphasise that the wording of art. 17 par. 1 of the
Regulations allows the Chamber to take into account both the existing contract
and the new contract, if any, in the calculation of the amount of compensation.
21.
On the basis of the contract signed by the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant, which was valid until the end of the season that
was running at the time of termination, i.e. until 31 August 2015, as well as the
claim of the Claimant/Counter-Respondent, the the residual value of the employment
contract serves as the basis for the final determination of the amount of
compensation for breach of contract. This amount corresponds to the
Claimant/Counter-Respondent’s salaries from January to August 2015, i.e. a total
of EUR 72,000.
22.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 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,
remuneration earned 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.
23.
The Chamber noted that the Claimant/Counter-Respondent had remained
unemployed during the relevant period of time.
24.
Consequently, on account of all of the aforementioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant/Counter-Respondent’s claim and that the Respondent/Counter-Claimant
Player A, country B / Club C, country D
Page 10 of 12
must pay the amount of EUR 72,000 to the Claimant/Counter-Respondent, which
was considered reasonable and proportionate as compensation for breach of
contract in the case at hand.
25.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant/Counter-Respondent
are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.
2.
The Respondent/Counter-Claimant, Club C, has to pay to the Claimant/CounterRespondent outstanding remuneration in the amount of USD 39,000, within 30 days
as from the date of notification of this decision.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent
compensation for breach of contract in the amount of USD 72,000, within 30 days
as from the date of notification of this decision.
4.
In the event that the amounts due to the Claimant/Counter-Respondent in
accordance with the aforementioned numbers 2. and 3. are not paid by the
Respondent/Counter-Claimant within the stated time limits, interest at the rate of 5%
p.a. will fall due as of expiry of the aforementioned time limits and the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
5.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
6.
The counterclaim of the Respondent/Counter-Claimant is rejected.
7.
The Claimant/Counter-Respondent 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.
Player A, country B / Club C, country D
Page 11 of 12
8.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant directly and immediately of the account number to which the remittance
is to be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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
Encl. CAS directives
Player A, country B / Club C, country D
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