Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 October 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
S tefano La Porta (Italy ), member
Muzam m il Bin Moham ed (S ingapore), member
Tom is lav Kas alo (Croatia), member
Joaquim Ev angelis ta (Portugal), member
on the matter between the player,
Play er A, from country A
as First Claimant / Respondent
and the club,
Club B, from country B
as Second Claimant / Respondent
and the club,
Club C, from country A
as intervening party
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 31 August 2016, the Player A, from country A (hereinafter: player or First
Claimant / Respondent), born on 8 January 1989, entered into an employment
contract (hereinafter: contract) with Club B, from country B (hereinafter: club
B or Second Claimant / Respondent) valid as from 31 August 2016 until 31 May
2020.
2.
In accordance with the employment contract, the club undertook to pay the
player the following amounts:
a) Season 2016/2017:
- EUR 150,000 as “advancement” 7 days after receiving the ITC;
- EUR 25,000 as monthly salary due between September 2016 and June 2017;
- EUR 6,250 per League Match “the player participated in”.
b) Season 2017/2018:
- EUR 150,000 as “advancement” on 30 August 2017;
- EUR 30,000 as monthly salary due between August 2017 and May 2018;
- EUR 5,882 per League Match “the player participated in”.
c) Season 2018/2019:
- EUR 150,000 as “advancement” on 30 August 2018;
- EUR 35,000 as monthly salary due between August 2018 and May 2019;
- EUR 5,882 per League Match “the player participated in”.
d) Season 2019/2020:
- EUR 150,000 as “advancement” on 30 August 2019;
- EUR 35,000 as monthly due payable between August 2019 and May 2020;
- EUR 5,882 per League Match “the player participated in”.
3.
On 11 January 2017, the player put the club in default for the payment of EUR
206,250, corresponding to a part of the advance payment, the salaries of
November and December 2016 as well as 13 match bonuses.
4.
On 28 August 2017, the club issued a letter allowing the player to negotiate a
loan transfer for the season 2017/2018 without a transfer fee. Said permission
was valid until 6 September 2017.
5.
Also on 28 August 2017, the parties signed a document whereby they agreed
that in case the player would be transferred on loan to another club for the
season 2017/2018, the club would not charge any transfer fee and the player
would waive any remuneration from the club, including the “past
receivables”. Said agreement was valid until 6 September 2017.
Player A, from country A / Club B, from country B / Club C, from country A
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6.
On 22 September 2017, the player put the club in default for the payment of
EUR 180,000, corresponding to a part of the payment payable on 30 August
2017 and the salary of August 2017.
7.
On 27 September 2017, the parties signed a document titled “Protocol”
(hereinafter: Protocol), which “governs and defines the terms and conditions
for the removing of the notification dated 22.09.2017 that send by the player
to the club according the contract between the player and the club starting
31.08.2016 and the end date 31.05.2020”.
8.
Furthermore, said protocol contains the following clauses:
- “Pursuant to this Protocol, the Club shall pay the Soccer Player a total sum of
210,000 […] Euro on 25.11.2017, including the advance payment for 20172018 season and wages for August and September”.
- “In case the Soccer Player terminates the Professional Player’s Contract
signed between him and the Club without just cause or the said Contract is
mutually terminated or the soccer player is transferred to another club until
25.11.2017, the soccer player hereby agrees, represents and undertakes that
he shall waive the above-mentioned receivables, and the Club hereby agrees,
represents and undertakes that it accepts such waiver and it shall not
demand any fee in case the soccer player is transferred to another club until
25.11.2017”.
- “If the club doesn’t full fill the obligations in this protocol on the date of
25.11.2017 player has a special right to terminate the professional football
player contract without giving any notice or warning”.
- “By paying this amount, neither Party shall be entitled to any further right or
receivables from the other Party for these months, retroactively and under
any other name whatsoever, irrespective of whether such rights or claims are
governed in negotiable instruments, and the Parties hereby irrevocably and
definitely release each other”.
9.
On 2 November 2017, the player sent a notification to the club insisting that
the payment of 10,000 (approx. EUR 2,400), was a bonus payment related to
the match against Club D, from country B and not a “payment for contract” as
the receipt indicated.
10.
On 27 November 2017, on 13:05 local time, the player terminated the contract
with the club since no payment was received from the club. In his termination
letter, the player also alleged that “mobbing” against him occurred.
Player A, from country A / Club B, from country B / Club C, from country A
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11.
On 27 November 2017, on 14:07 local time, the club made a payment of EUR
210,000 to the player.
12.
On 28 November 2017, the club sent a letter to the player stating that the
termination was “unfair” since the payment was remitted and it denied any
“mobbing” against the player.
13.
On 11 December 2017, the player lodged a claim against the club in front of
FIFA maintaining that the club is to be held liable for the early termination of
the contract. Therefore, he requested to be awarded payment of the
following monies:
- EUR 30,000 corresponding to the outstanding salary of October 2017;
- EUR 5,882 as match bonus;
- EUR 1,210,000 as compensation for breach of contract, corresponding to the
residual value of the contract.
Furthermore, the player requested 5% interest p.a. as of the due dates and to
impose sporting sanctions on the club.
14.
In particular, the player held that he terminated the contract with just cause
since the club failed to comply with its financial obligations set out in the
protocol by 25 November 2017. In this regard, he explained having checked his
bank account on 25, 26 and 27 November 2017 and that he did not receive the
relevant payment before he terminated the contract on 27 November 2017,
13:05 local time, with a letter sent via fax. In this regard, he submitted a fax
report dated 27 November 2017, indicating the exact time, i.e. 13:05 local
time, the notice was sent to the club.
15.
In this regard, he maintained that the club remitted the relevant payment one
hour after having received the termination on 27 November 2017 in order to
pretend that the player terminated the contract while receiving the payment
in question. In support of his allegation, the player submitted a printout of his
bank account. showing that the relevant payment was received on 27
November 2017, 14:07 local time.
16.
According to the player and since he and the club use the same bank,
payments could have been done at any time, even on a Saturday.
17.
Moreover, the player held that he was told to find a new club after the club
was relegated at the end of the season 2016/2017 and that he “was exposed
to mobbing” since he did not find a new club. In this regard, he explained that
he was not in the “team-line up” anymore and the club stopped paying his
salaries.
Player A, from country A / Club B, from country B / Club C, from country A
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18.
According to the player, after signing the protocol, he only played in one
match and his salaries for October and November 2017 remained unpaid.
19.
In addition, the player claimed EUR 5,882 as a match bonus related to a game
against Club D, from country B played on 30 October 2017.
20.
On 13 December 2017, the club lodged a separate claim against the player in
front of FIFA, maintaining that the player is to be held liable for the early
termination of the contract, and requesting to be awarded compensation for
breach of contract in the amount of EUR 1,810,000.
21.
In its arguments, the club maintained that the player terminated the contract
without just cause since the due date of the relevant payment fell on a
Saturday and it remitted the payment on the first business day after, i.e. on 27
November 2017. The club argued that the payment was remitted “within the
legally permitted term”.
22.
Moreover, it maintained that if a payment date falls on a holiday or on a nonworking day, the deadline to pay automatically extends to the next working
day.
23.
In this context, the club alleged that the player terminated the contract even
though he knew the payment would arrive on 27 November 2017.
24.
In this regard, the club held that it immediately reacted to the player’s
termination and sent a letter on 28 November 2017, stating that the
termination was “unfair”.
25.
Furthermore, the club held that the player requested to be transferred to
another club after its relegation at the end of the season 2016/2017, which led
the club to give the player permission to enter into negotiations.
Subsequently, the player failed to find a new club.
26.
Moreover, the club alleged having paid all the salaries of the season 2016/2017
on time.
Player A, from country A / Club B, from country B / Club C, from country A
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27.
Regarding compensation, the club asserted that it suffered losses caused by
the player’s termination without just cause as follows:
- EUR 807,048 as remuneration paid to the player;
- EUR 500,000 as transfer fee paid for the player to the former club;
- EUR 265,000 paid to a player’s agent;
- EUR 143,558 as “taxes charged” on payments to the former club and player’s
agent;
- EUR 26,000 paid as solidarity contribution in connection with the player’s
transfer.
In this regard, the club submitted the transfer agreement concluded with the
player’s former club, Club X, from country X confirming the above-mentioned
transfer fee.
28.
Furthermore, the club argued that it lost a valuable player and possible
income from a transfer fee.
29.
Finally, the club requested compensation in the amount of EUR 1,810,000
corresponding to the total “contract price” agreed upon on 31 January 2016.
30.
In his reply to the club’s claim, the player reiterated his position and rejected
the club’s claim.
31.
The player insisted that the club already failed to pay salaries on time during
the season 2016/2017.
32.
Furthermore, the player rejected the club’s argument that a due date for a
payment is automatically extended to the next working day. He maintained
that the club should have remitted the payment on the last working day
before the weekend or on the Saturday itself, since according to him this was
an option as well.
33.
In this regard, the player argued that there is a difference regarding timelimits between written submissions and payments.
34.
What is more, the player held that the club made the payment only after
receiving the player’s termination and it is now trying to justify it, in bad faith.
In this context, the player argued that the club would need to prove that it
issued the payment before receiving the termination.
35.
Finally, the player purported that he terminated the contract on 27 November
2017 in good faith due to the outstanding amount at the moment of
termination in combination with the “mobbing”.
Player A, from country A / Club B, from country B / Club C, from country A
Page 6 of 13
36.
In addition, the player alleged that the club’s claim for compensation is “not
understandable”.
37.
In the club’s reply to the player’s claim, it reiterated its position and rejected
the player’s claim.
38.
The club referred to the protocol and argued that the player could have been
transferred until 25 November 2017, in which case he would have waived the
payment in question, which is why no further payments were issued in
between.
39.
Furthermore, the club denied any “mobbing” and argued that the player
wanted to leave the club.
40.
Regarding the possibility of remitting the payment on the weekend, the club
argued that it does “not execute banking transactions by using mobile or
Internet banking” , since it needs the approval of the board and subsequently
places a written order with the bank, which needs to be open for business.
41.
On 30 January 2018, the player signed a new employment contract with the
Club C, from country A, valid as from 30 January 2018 until 31 May 2021,
including the following salaries, paid 14 times per calendar year:
- EUR 8,200 during the remainder of the season 2017/2018;
- EUR 14,000 as of 1 July 2018 until 31 May 2021.
42.
After being informed about the dispute at stake, the player’s new club, Club
C, from country A submitted its comments and held that it was informed by
the player about a dispute in front of FIFA, but that it is not in a position to
submit any comments as to the substance.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 11 December 2017 by the player, and on 13 December 2017 by the
club, respectively. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
Player A, from country A / Club B, from country B / Club C, from country A
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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 June 2018) 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 A and a
country B club.
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 June 2018), and considering that the present claim was lodged
on 11 December 2017 by the player and on 13 December 2017 by the club, the
2016 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 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 recalled that, on 31 August 2016, the
parties concluded an employment contract, valid as of 31 August 2016 until 31
May 2020.
6.
In continuation, the DRC noted that the player lodged a claim against the club
maintaining that he had terminated said employment contract with just cause
on 27 November 2017, on 13:05 local time, since the club failed to remit
remuneration in the total amount of EUR 210,000, as agreed upon in the
protocol. What is more, the player argued that the club only remitted the
amount in question as a reaction to his termination, submitted one hour
before the transaction. Consequently, the Claimant asks to be awarded his
outstanding dues as well as the payment of compensation for breach of the
employment contract.
7.
The Respondent, for its part, lodged a separate claim against the player,
maintaining that he terminated the contract without just cause since it paid
the amount agreed upon in the protocol on time, since 25 November 2017 was
a Saturday and it remitted the payment on the first working day thereafter,
on 27 November 2017. In this respect, the Respondent requested to be
awarded compensation for breach of contract.
Player A, from country A / Club B, from country B / Club C, from country A
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8.
On account of the above, 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 player had just cause to terminate
the employment contract on 27 November 2017 and to decide on the
consequences thereof.
9.
In this context, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules,
in accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof.
10.
In so doing, the DRC took note that before terminating the contract on 27
November 2017, the player had sent a default notice to the club on 22
September 2017 requesting payment of EUR 180,000, corresponding to a part
of the payment payable on 30 August 2017 and the salary of August 2017. The
Chamber further established, that the parties signed the protocol on 27
September 2017 in order to “remove” said default notice.
11.
In continuation, the Chamber turned its attention to the content of said
protocol (cf. point I.8. above), which is at the basis of the player’s termination
of the employment relationship.
12.
For the sake of good order, the Chamber wished to recall the content of said
protocol, which establishes, inter alia, that “the Club shall pay the Soccer
Player a total sum of 210,000 […] Euro on 25.11.2017”.
13.
Considering the wording of the protocol, which clearly refers to 25 November
2017 as due date of the payment, established by both parties in agreement,
the Chamber determined that the club failed to remit the payment on time
and rejected the club’s argumentation.
14.
In continuation, the DRC turned its attention again to the wording of the
protocol, which reads, inter alia: “If the club doesn’t full fill the obligations in
this protocol on the date of 25.11.2017 player has a special right to terminate
the professional football player contract without giving any notice or
warning”.
15.
In this regard, the Chamber noted that it remained undisputed that the player
terminated the contract before the Respondent remitted the amount in
question on 27 November 2017. In other words, at the moment of
termination, the amount resulting from the protocol, i.e. EUR 210,000
remained outstanding.
Player A, from country A / Club B, from country B / Club C, from country A
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16.
In light of such delay in payment, after having put the club in default already
on 22 September 2017 and thereafter having granted a further time-limit to
the club to remedy its default in concluding the protocol, the members of the
Chamber deemed that the player could in good faith believe that, the
Respondent would have persisted in the non-compliance of its financial
obligations.
17.
On account of the considerations above and in particular since the payment to
the player was only remitted after the agreed date in the protocol and after
the player had already terminated the contract on 27 November 2017, the DRC
concluded that the player terminated the contract with just cause and in
accordance with the protocol.
18.
Subsequently, prior to establishing the consequences of the termination of the
employment contract with just cause by the player in accordance with art. 17
par. 1 of the Regulations, the Chamber held that it, in general, had to address
the issue of unpaid remuneration at the moment when the contract was
terminated by the player.
19.
The Chamber took note of the acknowledged payment of the club, i.e. EUR
210,000, after the termination. According to the protocol, said payment
covered “the advance payment for 2017-2018 season and wages for August
and September”. On account of the above, the members of the Chamber
concluded that the player remained entitled to receive his salaries of October
and November 2017, i.e. EUR 60,000.
20.
Furthermore, taking into account the player’s evidence provided regarding the
claimed bonus and the club’s partial payment on 2 November 2017, the player
is entitled to the residual amount of EUR 3,482, related to the match bonus
claimed.
21.
On account of the considerations above, the Chamber partially accepted the
player’s claim for outstanding remuneration and in accordance with the
general legal principle of pacta sunt servanda, the Chamber decided that the
club is liable to pay to the player the amount of EUR 63,482 with regard to the
salaries due to him in October and November 2017 and the match bonus
mentioned above, as well as interest of 5% p.a. as from the respective due
dates.
22.
Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the Claimant is entitled to receive compensation for
breach of contract from the Respondent.
Player A, from country A / Club B, from country B / Club C, from country A
Page 10 of 13
23.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
so, the members of the Chamber firstly recapitulated that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at
the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including, in
particular, the remuneration and other benefits due to the player under the
existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
24.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains a
provision by means of which the parties had beforehand agreed upon an
amount of compensation payable by the contractual parties in the event of
breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
25.
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. 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.
26.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the player under the existing contract 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.
27.
Bearing in mind the foregoing, the Chamber proceeded with the calculation
of the monies payable to the player under the terms of the employment
contract as from the date of termination with just cause by the player until its
natural expiration, bearing in mind that he would have received in total EUR
Player A, from country A / Club B, from country B / Club C, from country A
Page 11 of 13
1,180,000 as remuneration for the period as from 1 December 2017 until 31
May 2020. Consequently, the Chamber concluded that the amount of EUR
1,180,000 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
28.
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.
29.
In this respect, the Chamber recalled that the player had found new
employment with the Club C, from country A as from 30 January 2018 until 31
May 2021, including a remuneration in the total amount EUR 433,000 until 31
May 2020, which shall be deducted, leading to a mitigated compensation in
the amount of EUR 747,000.
30.
Consequently, on account of the above-mentioned considerations, the
Chamber decided to partially accept the player’s claim and that the club must
pay the amount of EUR 747,000 as compensation for breach of contract to the
Claimant, which is considered by the Chamber to be a fair and reasonable
amount.
31.
In addition, taking into consideration the player’s claim, the Chamber decided
to award the player interest at the rate of 5% p.a. as of the date of claim, 11
December 2017, until the date of effective payment.
32.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the club and the
player are rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the First Claimant / Respondent, Player A, is partially accepted.
2.
The Second Claimant / Respondent, Club B, has to pay to the First Claimant /
Respondent, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 63,482 plus interest until the date
of effective payment as follows:
a. 5% p.a. as of 1 November 2017 on the amount of EUR 30,000;
b. 5% p.a. as of 27 November 2017 on the amount of EUR 33,482.
Player A, from country A / Club B, from country B / Club C, from country A
Page 12 of 13
3.
The Second Claimant / Respondent has to pay to the First Claimant / Respondent,
w ithin 30 day s as from the date of notification of this decision, compensation for
breach of contract in the amount of EUR 747,000 plus 5% interest p.a. as of 11
December 2017 until the date of effective payment.
4.
In the event that the aforementioned amounts plus interest are not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the First Claimant / Respondent is rejected.
6.
The claim of the Second Claimant / Respondent is rejected.
7.
The First Claimant / Respondent is directed to inform the Second Claimant /
Respondent, 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 m otiv ated decis ion (legal remedy):
According to article 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl: CAS directives
Player A, from country A / Club B, from country B / Club C, from country A
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