Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 October 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Wouter Lambrecht (Belgium), member
on the claim presented by the player,
Player A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 July 2012, the Player of Country B Player A (hereinafter: the player or
Claimant) and the Club of Country D Club C (hereinafter: the club or Respondent)
signed an employment contract valid as from 1 July 2012 until 31 May 2016
(hereinafter: the contract).
2.
According to article 3 of the contract, the player was entitled to receive, inter alia,
the following amounts:
3.
Further, article 3 of the contract provides for the 2015/2016 season for the
following clauses:
-
-
-
4.
during the 2012/2013 season, the total amount of EUR 1,000,000;
during the 2013/2014 season, the total amount of EUR 1,000,000;
during the 2014/2015 season, the total amount of EUR 1,200,000;
during the 2015/2016 season, the total amount of EUR 1,200,000, payable in
10 (ten) instalments of EUR 120,000 in the period between August 2015 and
May 2016, due on the 30th day of the respective month, however in February
2016, due on the 28th day of said month.
‘The Professional Football Player will receive 10.000€ (ten thousand euro) per
match salary for every official match he takes part in the first 11 players
squad, net %75 per match salary for every official match he joins the match
later and %50 per match salary for every official match he is placed in the
first 18 players squad but he does not enter the game’;
‘The company will provide housing/rental allowance of up to 2.000 USD
(max) per month. In the event the effective rental fees are higher, The Player
has to cover the difference’;
‘The company will provide 4 business round tickets for the player per season
from Country D to Country B’.
On 12 August 2015, the player lodged a claim before FIFA against the club,
claiming the total amount of EUR 1,539,152, detailed as follows:
Compensation for breach of contract in the amount of EUR 450,000, specified as
follows:
the residual value of the contract in the 2015/2016 season amounting to EUR
1,200,000, minus the value of the new contract the player signed with Club E
in the amount of EUR 750,000, leading to a total amount of EUR 450,000 as
compensation for breach of contract. Further, the player requests interest on
the amount of EUR 450,000 as from 29 July 2015.
Additional ‘indemnity’, based on the Swiss Code of Obligations in the amount of
EUR 720,000, specified as follows:
Player A, Country B / Club C, Country D
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‘employee’s wage for six months’, in the amount of EUR 120,000 each,
leading to the total amount of EUR 720,000, plus interest as from 29 July
2015.
An additional amount of EUR 369,152, specified as follows:
EUR 340,000 as ‘appearance fee’ for the 34 official matches to be played in
the 2015/2016 season, based on the clause in article 3 of the contract.
EUR 20,000 as ‘rental contribution’ for the period between August 2015 and
May 2016, based on the clause in article 3 of the contract.
EUR 9,152 as flight tickets based on the clause in article 3 of the contract.
5.
In particular, the player states that on 29 July 2015, the club unilaterally
terminated the contract, due to ‘squad limitation brought by Football Association
of Country D’. According to the player, said termination was made without just
cause.
6.
In addition, the player states that on 4 August 2015, he signed a new contract
with the Club of Country D Club E, valid as from 4 August 2015 until 31 May 2016,
according to which contract, he was entitled to receive an amount of EUR 750,000
in the period between 4 August 2015 and 31 May 2016.
7.
In its reply to the claim of the player, the club stated that at the beginning of the
2015/2016 season, the Football Association of Country D amended its regulations
and declared ‘that the League F Clubs can only register 28 players’. Further, the
club states that it needed to submit a list of 28 players to the Football Association
of Country D who would be registered for the next season, by no later than 3
September 2015. As a result thereof, the players that were not in said list were not
eligible to play in the 2015/2016 season.
8.
According to the club, it decided not to add the player on the list of 28 players,
‘because of his insufficient performance’. Furthermore, the club asserted that it
was willing to permit the transfer of the player without requesting any transfer
fee, however that this ‘bona fide approach’ however ‘remained inconclusive’ and
that it therefore had no other choice than to unilaterally terminate the contract
on 29 July 2015.
9.
Furthermore, the club holds that already on 4 August 2015, the player signed a
new contract with Club E and that already on 6 August 2015, he lodged a claim
before FIFA.
10.
As to the substance, the club argues that it had only two options: either to (a)
continue the contractual relationship with the player, having as a consequence
that the player would not be able to play official matches, or (b) to permit the
player to transfer to another club, in order to keep playing ‘competitive football’.
In this respect, the club holds that the player wanted to stay at the club, but that
Player A, Country B / Club C, Country D
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he did not improve his performance. The club argues that as a result thereof, it
had no other option than to unilaterally terminate the contract, even more
because it allegedly concluded a settlement agreement with UEFA, in order to
balance its incomes and expenses in respect of the Financial Fair Play Regulations.
11.
In addition, the club argues that the real intention of the player was to terminate
his contract, to transfer to another club and to request for compensation. The club
holds that the player was the only player who did not agree ‘to terminate his
contract mutually or to transfer another Club (without any transfer fee)’.
12.
With respect to the amounts claimed by the player, the club asks for the rejection
of the entire claim. In relation to the amounts claimed as compensation for breach
of contract and indemnity, the club argues that the player cannot request for
both amounts and that the request for indemnity in the amount of EUR 720,000,
has to be rejected. The request of EUR 450,000 as compensation for breach of
contract also needs to be rejected, because the player ‘could have signed a higher
amounted contract but he did not even search for it’.
13.
Moreover, the club argues that regarding the appearance fees, the player could
never have been entitled to these amounts, because he was not eligible to play in
the 2015/2016 season. Further, in the club’s view, the claim for rental contribution
and flight tickets also needs to be rejected, because these amounts were only due
if the contractual relation would have continued. Subsequently, the club holds
that the new contract with Club E also provides for appearance fees, flight tickets
and rental contribution. Finally, the club states that since the termination of the
contract did not occur in the protected period, no sporting sanctions can be
imposed.
14.
In conclusion, the club requests for the rejection of the entire claim of the player,
as well as for the legal expenses of the club and procedural costs to be paid by the
player.
15.
In his replica, the player holds that the club unilaterally terminated the contract
without just cause, since the alleged poor performance of a player cannot be
considered as a valid reason to terminate the contract. Furthermore, the player
maintains that he tried to mitigate his damages as much as possible and that his
calculation of the amount requested as compensation for breach of contract, is
correct, because Swiss law should be applied in the matter at hand.
16.
In its duplica, the club argues that it terminated the contract with just cause, and
that it took into account both the interests of the player as well as the interests of
the club.
17.
Furthermore, the club denies to have terminated the contract with the player
because of his alleged poor performance. In this respect, the club explains that the
Player A, Country B / Club C, Country D
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player did not perform his regular sporting performance, in order to force the
club to terminate his contract. As a result, the player was not added to the list of
28 players being eligible to play for the club in the 2015/2016 season. In order to
avoid negative consequences for the player’s sporting career, the club holds that it
had no other choice than to terminate the contract.
18.
Furthermore, the club emphasized that the player did not suffer any damages or
losses, because on 4 August 2015, he signed a new contract with Club E.
19.
The club further refers to the fact that the transfer window only closed on 1
September 2015 and that until said date, the player could have found another
club that would have paid a higher amount, in order to further mitigate his
damages. Finally, the club states that the player claimed the total amount of EUR
1,519,152, which is higher than the amount he would have received if the contract
would not have been terminated.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 12 August 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a Player of Country B and a Club of 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
(edition 2016), and considering that the present claim was lodged on 12 August
2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to the
Player A, Country B / Club C, Country D
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facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
First of all, the members of the Chamber acknowledged that the parties were
contractually bound by means of an employment contract valid as from 1 July
2012 until 31 May 2016.
6.
In this respect, the player maintained that the club unilaterally terminated the
contract on 29 July 2015 without just cause and therefore, requested the total
amount of EUR 1,539,152 as compensation for breach of contract.
7.
The Chamber noted that the club, on the other hand, rejected the claim put
forward by the player. The club holds that on 29 July 2015, it terminated the
contract with player on the basis of his sporting performance, in combination
with the fact that it was ordered by the Football Association of Country D to limit
its squad for the next season to 28 players and that the performance of the player
was not good enough to stay in the squad. According to the club, based on these
circumstances, it had no other option than to terminate the contract.
Furthermore, the club holds that the player’s claim for compensation cannot be
accepted since he should have done more to mitigate his damages.
8.
In this framework, the members of the Chamber highlighted that the underlying
issue in this dispute, considering the diverging position of the parties, was to
determine as to whether the club had terminated the contract with or without
just cause on 29 July 2015 and subsequently, to determine the consequences of
the early termination of the contractual relationship by the club.
9.
First and foremost, the Chamber wished to emphasise that, while referring to art.
12 par. 3 of the Procedural Rules, the club’s argument that the Football
Association of Country D ordered the club to limit its squad to 28 players, is not
supported by any documentary evidence.
10.
In any case, the DRC wished to underline that an alleged change of rules by the
Football Association of Country D cannot be held against the player.
11.
Furthermore, the DRC stressed that it can be noted from the documents on file,
that the main reason for the club at the basis of the termination of the contract in
the matter at hand, was the player’s alleged ‘insufficient performance’.
12.
With the above in mind, the Chamber recalled its longstanding and wellestablished jurisprudence which dictates that the alleged poor performance of a
player, is a purely unilateral and subjective evaluation by the club and therefore
cannot, by any means, be considered as a valid reason to terminate the contract of
a player, as it is the result of a purely subjective perception, not measurable in
objective criteria. Thus, it cannot be considered as just cause for the premature
termination of an employment contract.
Player A, Country B / Club C, Country D
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13.
On account of all of the above, the members of the Chamber decided that the
club terminated the contract on 29 July 2015 without just cause.
14.
In view of the above, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the player is entitled to receive from the club
compensation for breach of contract.
15.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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.
16.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. 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.
17.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
18.
Bearing in mind the foregoing as well as the claim of the player and the fact that
the club terminated the contract on 29 July 2015, the Chamber proceeded with
the calculation of the monies payable to the player under the terms of the
contract until 31 May 2016, taking into account that in the period between 29 July
2015 and 31 May 2016, apart from the monthly salaries, the player was also
entitled to receive 11 monthly payments of housing allowance in the amount of
USD 2,000 each (approximately EUR 1,773) from the club.
19.
What is more, with regard to the player’s claim pertaining to appearance fees in
the total amount of EUR 340,000, the Chamber argued that, in view of its
undeniably variable character and uncertainty from one season to another, it
Player A, Country B / Club C, Country D
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could not establish that the club would have paid the player for the 2015/2016
season ‘appearance fees’, and, if any, in what proportion. Consequently, it had no
other alternative but to refuse to take into consideration said ‘appearance fees’
while assessing the residual value of the contract.
20.
Consequently, the Chamber concluded that the amount of EUR 1,219,500 (i.e. the
monthly salaries for the 2015/2016 season in the amount of EUR 1,200,000, as well
as the housing allowance until and including May 2016 in the amount of EUR
19,500), serves as the basis for the determination of the amount of compensation
for breach of contract.
21.
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.
22.
In this regard, the Chamber recalled that on 4 August 2015, the player signed an
employment contract with the Club of Country D Club E, valid until 31 May 2016,
in accordance with which he was entitled to receive a total amount of EUR
750,000, as well as housing allowances in the total amount of EUR 8,300. This
employment contract enabled the player therefore to earn an income of EUR
758,300 during said period of time. Furthermore, the Chamber decided to not
take into account the reimbursement of flight tickets for the calculation of the
amount of compensation, since both the contract with the club, as well as the
contract with Club E provided for reimbursement of flight tickets.
23.
As a result, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
players’ claim and that the club must pay the amount of EUR 461,200 as
compensation for breach of contract in the case at hand.
24.
In addition, taking into account the player’s request, the Chamber decided that
the club must pay to the player interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 12 August 2015,
until the date of effective payment.
25.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
Player A, Country B / Club C, Country D
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2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, compensation for breach of contract in the
amount of EUR 461,200 plus 5% interest p.a. on said amount as from 12 August
2015 until the date of effective payment.
3.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. is not paid by the Respondent within the stated time limit,
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 is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
****
Note relating to the motivated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives). The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl.: CAS directives
Player A, Country B / Club C, Country D
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