Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 26 November 2015,
by Philippe Diallo (France), DRC judge,
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 9 December 2014, the Player of Country B, Player A (hereinafter: Claimant), and
the Club of Country D, Club C (hereinafter: Respondent), concluded an employment
contract (hereinafter: contract), valid from the date of signature until 9 December
2015.
2.
According to article 4 of the contract, the Claimant was entitled inter alia to the
following remuneration:
a) 845,000,000 as the value of the contract divided as follows:
- 65,000,000 as signing on fee;
- 65,000,000 as monthly salary, payable “the 10th of the next month”;
b) 2,000,000 as “away draw bonus”, payable “3 (three) working days after the
mentioned match”.
3.
According to article 4.4 of the contract, “The value received by the Player is nominal
value exclude taxes”.
4.
Article 6.3 of the contract established that “The club has the duty to give health
insurance in the form of insurance or in the form of other protection to the player”.
5.
On 15 and 23 April 2015 as well as on 14 May 2015, the Claimant put the
Respondent in default asking for the payment of outstanding monthly salaries and
bonuses. In particular, the Claimant requested, through his letter of 14 May 2015,
payment of the aggregate amount of 295,580,000 regarding four monthly salaries
(from January until April 2015), bonuses and reimbursement of medical costs.
6.
On 25 May 2015, the Claimant terminated the contract in writing.
7.
On 3 July 2015, the Claimant lodged a claim before FIFA against the Respondent for
breach of contract, requesting, after amending his claim on 15 September 2015, the
amount of 654,030,000, plus 5% interest as from the due dates, composed as
follows:
a) 199,030,000 as outstanding remuneration composed of:
-
63,950,000 as the balance of the monthly salary for February 2015;
3,080,000 for medical costs (MRI of the player’s knee) due on 31 March 2015;
65,000,000 as monthly salary for March 2015;
2,000,000 as the “away draw bonus” for the match against Club E on 4 April
2015;
- 65,000,000 as monthly salary of April 2015.
b) 455,000,000 as compensation corresponding to the residual monthly salaries (7 x
65,000,000).
Player A, Country B / Club C, Country D
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8.
The Claimant further requested that “all payments above shall be made on a net
basis, free of any taxation, the Respondent being responsible for the filing and
payment of all taxes relating to these payments due to the Claimant”.
9.
According to the Claimant, at the time of the termination of the contract, the
Respondent failed to pay monthly salaries for the period between January and April
2015. However, during the investigation of the present matter, on 2 September
2015, the Respondent paid the monthly salaries of January 2015 and part of
February 2015, which is why the Claimant reduced the amount requested in his
original claim.
10. Moreover, the Claimant held being entitled to receive 2,000,000 as a “draw away
bonus” regarding a match played on 4 April 2015 against the Club E, which
remained unpaid by the Respondent.
11. In addition, the Claimant held that the purpose of article 6.3 of the contract was to
“cover the medical costs incurred by the [Claimant] in relation to his recovery from
illness or injury”. In this regard, the Claimant affirmed having made an MRI on his
knee joint on 31 March 2015, which was not reimbursed by the Respondent “despite
the insurance”.
12. The Respondent replied to the claim stating that, due to the sanction imposed by
FIFA on the Football Association of Country D as a result of disputes in Country D
between the government and the national association, the Football Association of
Country D allegedly declared force majeure, on 2 May 2015, so that all clubs would
terminate the contracts with all players.
13. According to the Respondent, it had a meeting with all the players informing about
the situation and terminating the contracts, which was allegedly accepted by all the
players.
14. The Claimant submitted his replica, stating that the Respondent did not dispute
owing the amounts claimed and thus, implicitly accepted the facts and arguments of
the Claimant. The Claimant denied having had a meeting with the Respondent
regarding the termination of the contract.
15. Moreover, the Claimant held that, on the one hand, the Respondent did not submit
any evidence to support its arguments and, on the other hand, that in any case the
situation with the Football Association of Country D cannot affect the employment
contracts with the players.
16. Finally, the Claimant highlighted that the Respondent failed to answer to any of the
default letters.
17. Although invited to submit its final comments on the present matter, the
Respondent failed to do so.
Player A, Country B / Club C, Country D
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18. The Claimant informed FIFA having remained unemployed since the termination of
the contract, i.e. 25 May 2015. Moreover, he informed having been registered for
the Club of Country B, Club F, on 15 July 2015, as an amateur player and thus,
without an employment contract and without remuneration.
II. Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 3 July 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 DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition
2015) he 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 DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players
(edition 2015), and considering that the present claim was lodged on 3 July 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 DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the DRC
judge emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
5.
The DRC judge took note that the parties concluded an employment contract, valid
from 9 December 2014 until 9 December 2015.
6.
The DRC judge took note that the Claimant lodged a claim against the Respondent
for breach of contract, claiming outstanding remuneration and compensation for
breach of contract.
7.
Subsequently, the DRC judge noted that the Respondent replied alleging that due
to a sanction imposed by FIFA on the Football Association of Country D, the latter
allegedly declared force majeure on 2 May 2015 and, for that reason, the
Player A, Country B / Club C, Country D
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Respondent terminated the employment contracts with all its players. In addition,
the Respondent held that the players accepted the termination after being
informed about the situation.
8.
At this point, and considering the opposing position of the parties, the DRC judge
deemed appropriate to establish the date of the termination of the contract and
which party had proceeded with the termination.
9.
In this regard, the DRC judge recalled that the Claimant held having terminated the
contract on 25 May 2015, after putting the club in default on several occasions,
submitting copies of the relevant notifications.
10. On the other hand, the DRC judge took note that, although the Respondent alleged
having agreed on the termination of the employment contracts with all the players
due the situation of the Football Association of Country D, which was contested by
the Claimant, the Respondent failed to submit any documents in this regard.
11. In this context, the DRC judge referred to art. 12 par. 3 of the Procedural Rules
which stipulates that any party claiming a right on the basis of an alleged fact shall
carry the burden of proof and concluded that the contract was terminated by the
Claimant on 25 May 2015, as demonstrated by the latter.
12. Subsequently, the DRC judge established that it was necessary to analyse whether or
not the Claimant had just cause to terminate the contract on 25 May 2015.
13. In this respect, the DRC judge considered, on the one hand, that it remained
undisputed that at the time the contract was terminated, i.e. 25 May 2015, the
Respondent had failed to pay the Claimant four monthly salaries from January until
April 2015 (260,000,000) and a “draw away bonus” (2,000,000).
14. Moreover, it also remained undisputed that the Claimant had previously put the
Respondent in default on several occasions, establishing a deadline for the
Respondent to pay the outstanding remuneration, to which the Respondent did not
react.
15. In addition, the DRC judge considered that the reasons put forward by the
Respondent, i.e. that the player allegedly agreed to the termination of the contract
due to the situation of the Football Association of Country D that declared force
majeure on 2 May 2015, cannot be sustained. Moreover, the Respondent has not
presented any documentation in this respect and, in any case, the situation of the
national association cannot possibly serve as a justification for non-compliance with
respect to the timely payment of the Claimant’s remuneration regarding the months
of January, February, March and April 2015.
16. On account of the above, the DRC judge decided that the Claimant had just cause to
unilaterally terminate the contract on 25 May 2015. As a result, the Respondent is to
Player A, Country B / Club C, Country D
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be held liable for the early termination of the contract with just cause by the
Claimant.
17. In continuation, the DRC judge focused his attention on the consequences of such
termination.
18. In this regard, the DRC judge took note that the Claimant had reduced the amount
claimed as outstanding remuneration on 15 September 2015, after the voluntary
payment by the Respondent of the salary of January 2015 and part of the salary of
February 2015.
19. On account of the above, in particular the considerations under numbers II./13. and
II./18. above, and in accordance with the general legal principle of pacta sunt
servanda, the DRC judge decided that the Respondent is liable to pay to the
Claimant the remuneration which was outstanding at the moment of the
termination of the contract, i.e. 195,950,000, composed of part of the monthly
salary of February 2015 (63,950,000), the monthly salaries of March and April 2015
(130,000,000) and the “draw away bonus” (2,000,000).
20. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the DRC judge decided to
award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as of
the day following the respective due dates until the date of effective payment.
21. Subsequently, the DRC judge recalled that the Claimant also requested the
reimbursement of medical costs related to an exam performed on his knee on 31
March 2015.
22. In this respect, the DRC judge took into account that the contract included the
Respondent’s obligation to acquire a health insurance for the Claimant, the
existence of which appears to have been confirmed by the Claimant in his statement
of claim by alleging that the medical costs had not been reimbursed by the
Respondent “despite the insurance”
23. Therefore, the DRC judge considered that the Claimant should refer his request for
reimbursement of medical costs to the health insurance company. For these reasons,
the DRC judge decided to reject the Claimant’s claim pertaining to the
reimbursement of the medical costs.
24. In continuation, having established that the Respondent is to be held liable for the
early termination of the contract with just cause by the Claimant, the DRC judge
decided that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is
also liable to pay compensation to the Claimant.
25. Having stated the above, the DRC judge turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In
doing so, the DRC judge firstly recapitulated that, in accordance with art. 17 par. 1
Player A, Country B / Club C, Country D
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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 Claimant under the existing contract and/or the new contract.
26. In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
27. As a consequence, the DRC judge 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 DRC judge recalled
that said provision provides for a non-exhaustive enumeration of criteria to be
taken into consideration when calculating the amount of compensation payable.
28. Bearing in mind the foregoing as well as the claim of the Claimant, the DRC judge
proceeded with the calculation of the monies payable to the Claimant under the
terms of the employment contract until the original date of its expiry, taking into
account that the Claimant´s remuneration until April 2015 is included in the
calculation of the outstanding remuneration. Consequently, the DRC judge
concluded that the amount of 455,000,000 (i.e. remuneration for the months of May
2015 until and including November 2015) serves as the basis for the determination
of the amount of compensation for breach of contract.
29. In continuation, the DRC judge verified as to 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 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.
30. In this respect, the DRC judge took into account that the Claimant did not conclude
an employment contract with a new club during the relevant contractual period,
being registered as an amateur with Club F and, thus, could not mitigate his
damages.
31. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC judge decided that the Respondent must
pay the amount of 455,000,000 to the Claimant as compensation for breach of
contract in the present matter.
Player A, Country B / Club C, Country D
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32. Furthermore, taking into account the Claimant’s petition and the constant practice
of the Dispute Resolution Chamber, the DRC judge decided to award the Claimant
interest at the rate of 5% p.a. on the amount of 455,000,000 as from the date on
which the claim was lodged until the date of effective payment.
33. The DRC judge concluded his deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III. Decision of the DRC judge
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
195,950,000 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
5% p.a. as of 11 March 2015 on the amount of 63,950,000;
5% p.a. as of 8 April 2015 on the amount of 2,000,000;
5% p.a. as of 11 April 2015 on the amount of 65,000,000;
5% p.a. as of 11 May 2015 on the amount of 65,000,000.
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
455,000,000 plus 5% interest p.a. on said amount as from 3 July 2015 until the date
of effective payment.
4.
In the event that the amounts plus interest due to the Claimant are 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.
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 DRC
judge of every payment received.
*****
Player A, Country B / Club C, Country D
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Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Marco Villiger
Acting Deputy Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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