Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 8 October 2021
regarding an employment-related dispute concerning the player A
BY:
Clifford J. Hendel (USA/France), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Daan de Jong (The Netherlands), member
CLAIMANT:
Player A, Country A
RESPONDENT:
Club B, Country B
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I.
Facts of the case
1.
On 23 July 2019, the player from country A, player A (hereinafter: “the Claimant” or “the
player”), and the club from country B, Club B (hereinafter: “the Respondent” or “the club”)
signed an employment contract (hereinafter: “the contract”) valid as from 23 July 2019 until
10 June 2022.
2.
In accordance with art. III.3 of the contract, the player was entitled to receive from the club
a monthly net salary of EUR 11,666 during the 2019/2020 season and EUR 15,000 during
the 2020/2021 and 2021/2022 season payable until the 20th day of the following month.
3.
In accordance with art. lll.6 of the contract, the player was entitled to the amount of EUR
100,000 as a sign on fee, EUR 60,000 as lump sum payment payable on 30 June 2020 and
EUR 60,000 as lump sum payment payable on 30 June 2021.
4.
By correspondence dated 22 July 2020, the Claimant put the Respondent in default of
payment of the player put the club in default for the salaries of March to June 2020 as well
as the lump sum payment of EUR 60,000, due on 30 June 2020.
5.
By correspondence dated 12 and 26 August 2020, the player again put the club in default.
6.
On 14 December 2020, the player put the club in default for the salaries of September,
October and November 2020 as well as the lump sum payment due on 30 June 2020
granting the club 10 days to remedy its default, to no avail.
7.
On 6 April 2021, the player put the club in default for the salaries of January and February
2021, as well as, the lump sum payment due on 30 June 2020 granting the club 15 days to
remedy its default, to no avail.
8.
On 20 April 2021, the March 2021 salary fell due which was also not paid by the club.
9.
On 26 April 2021, the player terminated the contract with the club invoking just cause.
10.
On 21 July 2021, the Claimant and the club from country A, Club C, valid from 21 July 2021
until31 December 2021, by means of which the player will be entitled to a gross monthly
salaryof Currency Country A 60,000, which corresponds to EUR 5,800 payable at the end
of each month. The new contract includes an option to extend its validity until 31 December
2023. The parties should exercise the option by no later than 30 November 2021. According
to point 7.1 of the new contract an amount of Currency Country A 1,300 (=EUR 127) will
be deducted from his monthly salaries as food. Therefore, at the end, the player would be
entitled to a monthly salary amounting to EUR 5,673 (i.e. EUR 5,800 – EUR 127).
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II.
Proceedings before FIFA
11.
On 17 May 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
12.
According to the Claimant, he did not receive neither his salaries for January, February and
March 2021 nor the lump sum payment due on 30 June 2020 despite having put the club
in default on several occasions, giving the Club more than 15 days to remedy the breaches.
13.
Moreover, the player stated that the club did however not remedy the breaches, which
entitled the player to terminate the contract with just cause based on art. 14 and 14bis of
the FIFA RSTP.
14.
Consequently, the player claimed having just cause to terminate the contract on 26 April
2021 and the club shall therefore be held liable for the payment of outstanding salaries and
compensation for breach of contract.
15.
The requests for relief of the Claimant, were the following:
• EUR 120,000 net as outstanding remuneration (i.e. EUR 60,000 as 4 monthly salaries
[January to April 2021] and EUR 60,000 as lump sum payment due on 30 June 2020) plus
5% annual interest as from the respective due dates until the date of effective payment
and
• EUR 270,000 net (EUR 15,000 x 14 months + EUR 60,000 as lump sum due on June 2021)
as the amount due as compensation for breach of contract plus 5% annual interest from
27 April 2021 until the date of effective payment.
b. Position of the Respondent
16.
Even though the Respondent had the opportunity to present its position in connection to
the present claim, it failed to present any comments.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “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 presented to FIFA on 17 May 2021 and
submitted for decision on 8 October 2021. Taking into account the wording of art. 34 of
the October 2021 edition of the Procedural Rules Governing the Football Tribunal
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(hereinafter: “the Procedural Rules”), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
18.
Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), 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 club from Country B.
19.
Subsequently, 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 Player (August 2021 edition), and
considering that the present claim was lodged on 17 May 2021, the February 2021 edition
of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to
the substance.
b. Burden of proof
20.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not
filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Merits of the dispute
21.
Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on 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.
i. Main legal discussion and considerations
22.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Respondent did not submit its position to the claim lodged
against it by the Claimant, despite having been asked to do so by FIFA. Therefore, the
Chamber concluded that, in this way, the Respondent had renounced to its right of defence
and, thus, it had not formally contested the allegations of the Claimant.
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23.
Bearing in mind the aforementioned, the DRC referred to art. 21 par. 1 of the Procedural
Rules and pointed out that in the present matter a decision shall be taken upon the
documents on file. In other words, the documents and allegations submitted by the
Claimant.
24.
To start with, the Chamber acknowledged that the parties concluded the contract, which
was valid until 10 June 2022.
25.
The DRC further noted that it remained uncontested that as from the month of March 2020,
the Respondent started not paying the player´s salaries on time.
26.
What is more, the DRC acknowledged that on 17 May 2021, the Claimant lodged the
present claim against the Respondent, claiming that on 26 April 2021, he terminated the
contract with just cause (cf. art. 14 of the Regulations) and consequently the Respondent
should be held liable to pay the outstanding remuneration and a compensation for breach
of contract.
27.
The Chamber underlined that it remained uncontested that at the moment of the
termination of the contract (i.e. 26 April 2021), the Respondent owed the Claimant three
monthly salaries corresponding to January 2021, February 2021 and March 2021 as well as
the lump sum payment due on 30 June 2020.
28.
In this context, the DRC referred to art. 14 of the Regulations, which, inter alia, stipulates
that, any abusive conduct of a party aiming at forcing the counterparty to terminate a
contract shall entitle the counterparty to terminate the contract with just cause.
29.
The Chamber pointed out that not only, the Respondent persistently failed to pay the
Claimant´s remuneration on time, but also, it did not reply to the several reminders and
communications sent by the Claimant.
30.
Consequently, on account of the above and considering that, when the player terminated
the contract, at least three monthly salaries and a lump sum were due despite the fact that
the player sent several notices to the club, the DRC concluded that, on 26 April 2021, the
player had a just cause to unilaterally terminate the employment contract as per art. 14 of
the Regulations.
31.
As a result, the DRC decided that the club is to be held liable for the early termination of the
employment contract with just cause by the player.
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ii. Consequences
32.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
33.
The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to EUR 105,000 net
which is composed as follows:
• EUR 60,000 net as lump sum which was due on 30 June 2020 and
• EUR 45,000 net as outstanding monthly salaries (from January to March 2021).
34.
As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts,
which were outstanding under the contract at the moment of the termination, i.e. EUR
105,000 net.
35.
In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment. The DRC pointed out that in case of the lump sum the interest applied
from 1 July 2021 and in the case of the monthly salaries from the 21st day of the following
month (cf. art. III.3 and III.6 of the contract).
36.
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
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.
37.
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.
38.
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
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provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
39.
Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 285,000 net (i.e. the residual value of the contract) serves
as the basis for the determination of the amount of compensation for breach of contract.
40.
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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
41.
Indeed, the player found employment with the club C, from country A. In accordance with
the pertinent employment contract, the player was entitled to approximately EUR 5,673 per
month. Therefore, the Chamber concluded that the player mitigated his damages in the
total amount of EUR 30,195, composed by: EUR 1,830 as 10 days of July 2021 and EUR
28,365 as five monthly salaries from August until December 2021.
42.
Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to
overdue payables. In the case at hand, the Chamber confirmed that the contract termination
took place due to said reason i.e. overdue payables by the club, and therefore decided that
the player shall receive additional compensation.
43.
In this respect, the DRC decided to award the amount of EUR 30,195 net as additional
compensation, taking into account that according to art. 17 par. 1 lit. ii) of the Regulations
the overall compensation may never exceed the rest value of the prematurely terminated
contract.
44.
Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR
285,000 net to the player (i.e. EUR 285,000 minus EUR 30,195 plus EUR 30,195), which was
to be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
45.
Lastly, taking into consideration the constant practice of the Chamber in this regard, the
latter decided to award the player interest on said compensation at the rate of 5% p.a. as
of 17 May 2021 (i.e. date of claim) until the date of effective payment.
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iii. Compliance with monetary decisions
46.
Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
47.
In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
48.
Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
49.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
50.
The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8
of the Regulations.
d. Costs
51.
The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were
to be imposed on the parties.
52.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
53.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, the following amounts:
- EUR 105,000 NET as outstanding remuneration plus 5% interest p.a. as follows:
1) on EUR 60,000 from 1 July 2020 until the date of effective payment;
2) on EUR 15,000 from 21 February 2021 until the date of effective payment;
3) on EUR 15,000 from 21 March 2021 until the date of effective payment;
4) on EUR 15,000 from 21 April 2021 until the date of effective payment.
- EUR 285,000 NET as compensation for breach of contract plus 5% interest p.a. from 17
May 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid. The maximum duration the ban
shall be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
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