Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 November 2015,
in the following composition:
Thomas Grimm (Switzerland), Chairman
Mohamed Al-Saikhan (Saudi Arabia), member
Rinaldo Martorelli (Brazil), 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 June 2010, the player from country B, Player A (hereinafter: the Claimant), and the
club from country D, Club C (hereinafter: the Respondent), signed an employment contract
valid as from 1 June 2010 until 31 May 2012 (hereinafter: the first contract).
2.
On 1 July 2011, the Claimant and the Respondent signed a second employment contract
(hereinafter: the second contract) valid as from 1 June 2012 until 31 May 2015. The parties
also signed a supplementary agreement on 2 July 2011 valid for the same period, which
provides for additional remuneration to the second contract.
3.
In accordance with the first contract, the Claimant was inter alia entitled to receive the
following remuneration and benefits:
a. for the 2010/2011 season: a total of EUR 25,000 payable in ten monthly instalments
of EUR 2,500 at the end of each month from 31 August 2010 until 31 May 2011;
b. for the 2011/2012 season: a total of EUR 30,000 payable in ten monthly instalments
of EUR 3,000 at the end of each month from 31 August 2011 until 31 May 2012;
c. “if the team climbs to a superior division, the player shall receive the amount of EUR
5,000”;
d. “accommodation in a flat or a house for a rent of not more than EUR 400 per
month”;
e. “two return air tickets in order for the football player to be able to go to country
E”.
4.
In accordance with the second contract and the supplementary agreement, the Claimant
was inter alia entitled to receive the following remuneration and benefits:
a. EUR 20,000 payable in ten monthly instalments of EUR 2,000 at the end of each
month from 31 August until 31 May, in accordance with the second contract for
each season;
b. EUR 35,000 payable in ten monthly instalments of EUR 3,500 at the end of each
month from 31 August until 31 May, in accordance with the supplementary
agreement for each season;
c. “accommodation in a flat or a house for a rent of not more than EUR 400 per
month” as per the supplementary agreement”;
d. “two return air tickets in order for the Football Player to be able to go to country
E”.
5.
The second contract provides in its article 8 that “in case of gradation of the Football Club
to an inferior Category, the Football Club will have the right to release the Football Player
and the latter will have no right to damages”.
6.
On 8 February 2013, the Claimant lodged a claim in front of FIFA against the Respondent
asking that he be paid a total of EUR 204,000, plus 5% interest from the respective due
dates, as follows:
Player A, country B / Club C, country D
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a. Outstanding remuneration: EUR 14,000 pertaining to the promotion bonus
(cf. point I.3.c above) in the amount of EUR 5,000, and the months of March,
April and May 2012 in the amount of EUR 9,000;
b. Compensation for breach: EUR 165,000 pertaining to the residual value of the
second contract and supplementary agreement from July 2012 until 31 June
2015;
c. Additional compensation in the amount of EUR 25,000. The player claims that
EUR 14,400 of this amount corresponds to the residual value of the
contractually provided rent (cf. points I.3.d and I.4.c. above) as thirty six
months x EUR 400.
7.
The Claimant claims that in spite of the Respondent being promoted to a superior division
after its performances during the 2010/2011 season (cf. point I.19 below), he did not
receive the promotion bonus (cf. point I.3.c above). He also claims that in March 2012 he
suffered an injury requiring surgery and the Respondent failed to remunerate him for the
months of March, April and May 2012.
8.
The Claimant claims that in July 2012, upon his return to the Respondent, it informed him
orally that his services were no longer required. It proceeded to book him a one way ticket
to country B for 24 September 2012 and provided him with three cheques in the total
amount of EUR 17,100 as follows:
a. EUR 5,100 dated 30 October 2012;
b. EUR 6,000 dated 30 November 2012;
c. EUR 6,000 dated 30 December 2012.
The Claimant never cashed these cheques (cf. point I.12 below).
9.
On 29 January 2013, the Claimant formally put the Respondent in default of outstanding
remuneration amounting to EUR 14,000, corresponding to the bonus for promotion (cf.
point I.3.c above) and the outstanding salaries for March, April and May 2012 (cf. point
I.6.a. below). In the same letter, the Claimant contests the unilateral termination of the
Respondent of July 2012 and requests to be compensated for the breach in the amount of
EUR 194,400 corresponding to the residual value of the contract including additional
benefits. When the Respondent did not react to this letter, the Claimant lodged a claim in
front of FIFA.
10. In its reply, the Respondent submitted a payment order for EUR 8,000 dated 10 October
2013, stating that the Claimant has “been fully settled and thus the status of the case
should not be considered as pending, but should be categorised as fully settled and hence
finalised”.
Player A, country B / Club C, country D
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11. The Respondent further refers to its contractual right of termination in accordance with
article 8 of the second contract (cf. point I.5 above) to justify the alleged termination of the
contract in July 2012 because it was allegedly relegated during the 2011/2012 season.
12. The Respondent claims that on 10 July 2012 the Claimant signed a “certificate of debts”
which states “I confirm that the name of the Club C has paid all its obligations arising from
contractual agreements as of 31 May 2012”, after having been provided with the three
cheques and the flight ticket (cf. point I.8 above). It acknowledges that the cheques were
never cashed, and notes that certain regulations in place at the time may have meant that
if the cheques were not cashed within three months they would become void.
13. The Respondent further claims that a certain Mr F, allegedly known to the Respondent as
being an associate of the Claimant’s management team, had allegedly decided to act as a
mediator in this dispute. The Respondent claims that the negotiations came to a head with
the alleged signing of a “Settlement Agreement” by Mr F on behalf of the player on 30
September 2013 (cf. point I.17 below) which only provided for the payment of EUR 8,000.
The Respondent states that the EUR 8,000 could not have been paid for rent allowance as
the Claimant suggests, as all amounts relating to rent have been settled.
14. In his replica, the Claimant categorically denies having signed the “certificate of debts” (cf.
point I.12 above). He states that the Respondent was aware of the default notice of
January 2013 (cf. point I.6 above) as well as the claim lodged against it, and expresses his
surprise that the Respondent took so long to produce a document which would, in effect,
absolve it of all responsibility. Furthermore, the Claimant claims that the “certificate of
debts” cannot be considered as a “certificate of proof” of the mutual termination, notably
because “it refers to the first contract”, which at the time would have already come to an
end. The Claimant claims that even if he had signed the document, the three cheques
provided to him would only cover the outstanding remuneration in relation to the first
employment contract.
15. In addition, the Claimant claims that article 8 of the second contract (cf. I.5 above) is illegal
and should not be applicable. In light of this, the termination must be considered to be
without just cause.
16. The Claimant alleges that the fact that the Respondent claims to have approached him to
offer him a settlement of EUR 8,000 after he had lodged his claim in front of FIFA, clearly
demonstrates that no settlement of debt had ever been reached between the parties. He
alleges that he believed the payment of EUR 8,000 was to cover outstanding rent. When he
is allegedly entitled to EUR 204,000, he does not see why he would accept such a small
amount of compensation.
17. Finally, the Claimant notes that he never gave any permission or authorisation to Mr F to
sign any document on his behalf, let alone any settlement agreement. The settlement
agreement is not on the official paper of the Respondent and there is no mention of who
the signatory for the Respondent is. The Claimant states that the settlement agreement can
not have any legal bearing on the basis that the signature on the document reads “F
Player A, country B / Club C, country D
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Manager on behalf Player A 30/9/13”, who was never authorised, mandated or empowered
to represent the player.
18. In reply to the Claimant’s request, the Respondent stated that it had no original copy of
the “certificate of debts” (cf. point I.12 above) because at the time the Respondent
dismissed the Claimant the document was sent to him via fax for him to sign, and once it
was signed he allegedly only sent it via fax to the Respondent and to the Football
Association of country D. In addition, it claims that the EUR 8,000 payment could not have
been paid for rent allowance as the Claimant suggests, because all amounts relating to rent
have allegedly been settled.
19. It concludes by stating that article 8 of the contract (cf. point I.5 above) had to be inserted
into all contracts for foreign players as a result of conditions set by the Football Association
of country D for the validity of a contract for a foreign player. In a letter dated 17
September 2015, the Football Association of country D states that “during the football
period of 2010/2011 and 2011/2012, Football Association of country D issued a direction
which provided that the contract of a player would be automatically terminated in case of
gradation of a team”. Furthermore, the letter explains that “in case of gradation of a club
from the First Division to the Second Division, the contracts of all foreigner professional
players are automatically terminated and the players are released until 1st of June that
follows the ending of the championship”.
20. In reply to FIFA’s pertinent request, the Claimant asserts having not found employment
since he signed with the Respondent in 2012.
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 8 February 2013. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2012; 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 in combination with art. 22 lit. b of
the Regulations on the Status and Transfer of Players (edition 2015) the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an 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 as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and
considering that the present claim was lodged on 8 February 2013, the 2012 edition of said
regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
Player A, country B / Club C, country D
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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 aforementioned facts as well as the arguments and the
documentation submitted by the parties. 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.
First, the members of the DRC acknowledged that the Claimant and the Respondent had
concluded a first employment contract valid from 1 June 2010 until 31 May 2012. The
members also noted that a second employment contract was signed and valid between 1
June 2012 and 31 May 2015, as well as a supplementary agreement for the corresponding
period of time.
6.
The DRC further observed that the Claimant lodged a claim in front of FIFA against the
Respondent seeking payment of the amount of EUR 204,000, indicating that the
Respondent had stopped paying the Claimant for the months of March, April and May
2012 as well as the promotion bonus and then terminated the contract orally in July 2012.
In addition, the members of the Chamber noted that the Claimant asserted that in light of
the breach of contract without just cause, the Respondent owed him compensation for
breach corresponding to the residual value of the second contract.
7.
Subsequently, the Dispute Resolution Chamber noted that the Respondent, in its defence,
provided several documents, however, it did not dispute that the payments of March, April
and May 2012 had not been paid. The members of the Chamber further noted that the
Respondent claimed that a waiver had been signed by the Claimant, thereby absolving its
responsibilities towards him, and that the termination was justified and based on article 8
of the second contract (cf. point I.5. above).
8.
Having established the aforementioned, the Chamber deemed that the underlying issue in
the present dispute, considering the claim of the Claimant and the allegations of the
Respondent, was to determine whether the employment contract had been unilaterally
terminated with or without just cause by the Respondent.
9.
In view of the above, the Chamber first deemed it necessary to establish the exact date of
termination of the contract in view of the absence of a specific termination document. In
this regard, it was noted by the members of the Chamber that the Claimant had stated that
the contract had been orally terminated by the Respondentat the end of July 2012 and that
the Respondent had confirmed the termination on this date following its relegation at the
end of the 2011/2012 season. The DRC therefore considered the contract to have been
terminated by the Respondent on 31 July 2012.
10. The Chamber therefore sought to establish whether the contract was terminated by the
Respondent with just cause. In this regard, the DRC noted that the Respondent stated that
the termination should be deemed valid in light of art. 8 of the employment contract (cf.
point I.5 above) which states that in case of relegation, the Respondent may terminate the
employment with the Claimant, who will not be entitled to any compensation.
Player A, country B / Club C, country D
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11. In this context, the Chamber deemed it important to point out that the simple relegation
of a club may not be considered, per se, to be a valid reason for the termination of an
employment contract. Furthermore, the Chamber held that art. 8 of the contract could not
be applicable as it only grants the club the right to unilaterally terminate the employment
contract without paying any compensation to the player in case the club is relegated.
Therefore, the Chamber decided that the Respondent could not legitimately terminate the
contract with the Claimant on the basis of art. 8 of the contract, as such an article
establishes unbalanced rights for the parties and is therefore potestative and invalid.
12. In view of all the above and, in particular, taking into account that the Respondent did not
provide any other justification for the termination of the contract other than the
application of article 8 of the second contract, the DRC decided that the Respondent
terminated the employment relationship without just cause on 31 July 2012. Consequently,
the Respondent is to be held liable for the payment of an amount of money to the
Claimant as compensation for the unjustified breach.
13. Prior to establishing the amount of compensation due to the Claimant for the breach of
contract by the Respondent, the DRC proceeded with the calculation of any outstanding
monies payable to the Claimant under the terms of the employment contract until the date
of termination, i.e. 31 July 2012. In this regard, the DRC referred to the principle of the
burden of proof explicitly stipulated in art. 12 par. 3 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, and noted that the Respondent does not deny that no payments were
made but claims that a waiver had been signed between the parties.
14. In continuation, the members of the Chamber acknowledged the documentation provided
by each party and noted that the alleged waiver, which was contested by the Claimant,
was not signed by the latter but by a third party allegedly on behalf of the Claimant.
Consequently, the DRC noted that from the documentary evidence presented, it was not
possible to establish that the Claimant had given explicit authorisation to the
aforementioned third party to act on his behalf. The Chamber considered that the
Respondent had not sufficiently substantiated its defence, as it did not present any
conclusive documentary evidence which could corroborate that the Claimant had waived
its right to payment. Therefore, the members of the Chamber established that there is not
sufficient evidence to consider the waiver to be valid, and consequently the relevant
amounts are indeed due.
15. Consequently, in accordance with the general legal principle of pacta sunt servanda, the
Respondent must fulfil its contractual obligations towards the Claimant and would be held
liable to pay the Claimant the amount of EUR 14,000, corresponding to three monthly
salaries of EUR 3,000 each and the contractually provided bonus (cf. point I.3.c. above) of
EUR 5,000. The members of the Chamber noted however that after the claim was lodged in
front of FIFA, the Respondent paid the Claimant EUR 8,000 (as acknowledged by the
player), and as such, the DRC decided that the Claimant was entitled to receive from the
Respondent the payment of EUR 6,000.
Player A, country B / Club C, country D
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16. In continuation and with regard to the Claimant's request for interest, the DRC decided
that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of
EUR 6,000 until the date of effective payment as follows:
a. 5% p.a. as of 1 May 2012 on the amount of EUR 3,000;
b. 5% p.a. as of 1 June 2012 on the amount of EUR 3,000.
17. Furthermore, 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 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 contracts 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 Claimant 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.
18. In application of the relevant provision, the Chamber held that it first had to clarify
whether the pertinent contract contains a provision by means of which the parties had
beforehand agreed on 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 contracts at the basis of the matter
at stake.
19. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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
account when calculating the amount of compensation payable. Therefore, other objective
criteria may be taken into account at the discretion of the deciding body.
20. The members of the Chamber then turned their attention to the remuneration and other
benefits due to the Claimant 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
in the calculation of the amount of compensation.
21. Bearing the foregoing in mind, the Chamber recalled that with regard to the relevant
employment contract, the player was entitled to receive EUR 179,400 between 31 July 2012
and 31 May 2015. Consequently, the Chamber concluded that the amount of EUR 179,400
serves as the basis for the final determination of the amount of compensation for breach
of contract.
Player A, country B / Club C, country D
Page 8 of 10
22. In continuation, the Chamber verified whether the Claimant 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
Dispute Resolution Chamber, 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.
23. The Chamber noted that according to the Claimant’s declaration, he had not been able to
sign an employment contract with another club during the relevant period of time. The
Chamber however, and regarding the matter at hand, deemed it important to point out
that after the premature termination of the employment relationship, the Claimant had
multiple opportunities to find a new club given that at least two transfer periods had been
open until today and thus had the opportunity to mitigate his loss to some extent.
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’s claim and that
the Respondent must pay the Claimant compensation for breach of contract in the amount
of EUR 119,600, which was considered to be reasonable and proportionate as
compensation for breach of contract in the case at hand.
25. In continuation and with regard to the Claimant's request for interest, the DRC decided
that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of
EUR 119,600 as from 8 February 2013.
26. The Dispute Resolution Chamber concluded its deliberations in the present matter by
rejecting any further claim of the Claimant.
*****
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, outstanding remuneration in the amount of EUR 6,000
plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 1 May 2012 on the amount of EUR 3,000;
b. 5% p.a. as of 1 June 2012 on the amount of EUR 3,000.
3. The Respondent 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
119,600 plus 5% interest p.a. on said amount from 8 February 2013 until the date of
effective payment.
Player A, country B / Club C, country D
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4. In the event that the amounts due to the Claimant in accordance with the
aforementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limits, 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 is rejected.
6. The Claimant is directed to inform the 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 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 fmerile 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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