Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 November 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Takuya Yamazaki (Japan), 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 15 March 2015, the player from country B, Player A (hereinafter: player
or Claimant), and the club from country D, Club C (hereinafter: club or
Respondent), signed an employment contract (hereinafter: contract) valid as
from 15 March 2015 until 30 November 2015.
2.
According to the contract, the club undertook to pay the player a monthly
salary “based on Category I (first), as provided in the staff list”, which
corresponds to the net amount of 4,250,000.
3.
Furthermore, according to Art. 7.1 of the contract, the club undertook to
pay the player a signing-on fee of 160,000,000 in two instalments as
follows:
- 80,000,000 during the first round of the Championship 2015 of country D;
- 80,000,000 until the beginning of the second round of the Championship
2015 of country D.
4.
Art. 9.2 of the contract reads as follows: “For systematic infringement by
5.
The contract refers to the club regulations as an integral part of the
contract.
6.
According to the club regulations, the monthly payments are due “until the
tenth day of the next month”.
7.
On 6 July 2015, the player put the club in default of outstanding
remuneration in relation to salary, the signing-on fee and a bonus pointing
out that as from April 2015 he had received no further payments.
Furthermore, in his default notice, the player held that he would not return
to the team’s training camp starting on 7 July 2015 due to the debt of the
club and since the club’s new managers and coach allegedly informed him
that they were not counting on him anymore and had decided to terminate
the contract.
8.
On 10 July 2015, the club sent a letter to the player requesting him to
return to the club until 14 July 2015 and stating that “the issue of your
the player of his duties […], the management of the club has the right
unilaterally to revise or cancel the art. 7.1 [“financial remuneration for
signing the contract”, cf. point I./3. above] hereof”.
future stay at the club is currently considered and directly connected to
Player A, country B / Club C, country D
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your participation in the training camp”. Furthermore, the club held that the
matter of the existing debt would be discussed upon the player’s return.
9.
In further exchanges of correspondence between the parties, the player
held that he would not return to the club, unless his outstanding
remuneration would be paid. The club, for its part, insisted that the player
needed to return to the club in order to receive his receivables.
10. On 14 August 2015, the club sent a letter to the player, whereby it stated
that the player breached his contractual obligations and requested him to
return to the club until 17 August 2015 and to hand in an explanation for
his absence since 6 July 2015. In said letter, the club informed the player
that it would terminate the contract in case the player would not return and
that it would issue a fine for the violation of the contract.
11. On 18 August 2015, the club terminated the employment contract with
effect as of 6 July 2015, on the basis of the player’s absence. In said letter,
the club referred to the “imposition of penalties” and that it would retain
the “cost of the equipment out of the salary”.
12. On 18 August 2015, due to the player’s absence, the club imposed a fine of
90% of the signing-on fee on the player, leaving the club with the
obligation to pay 16,000,000, which, in fact, it already paid.
13. On 9 September 2015, the player lodged a claim with FIFA against the club
arguing that the club is to be held liable for the early termination of the
contract without just cause. Therefore, he requested to be awarded
payment of the following monies:
a. 64,000,000 corresponding to the remaining outstanding portion of the
first instalment of the signing-on fee;
b. 750,000 corresponding to the remaining part of the salaries of May and
June 2015;
c. 101,250,000 as compensation for breach of contract corresponding to the
residual value of the contract;
Additionally, the player requested 5% interest p.a. on the aforementioned
amounts.
14. In his arguments, the player held that he left country D after the first round
of the championship on 2 July 2015 for holidays, but also due to the fact
that the new management of the club had made it clear that they did no
longer count on his services.
Player A, country B / Club C, country D
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15. Furthermore, the player stated that his contractual situation remained
unclear and that, on 2 July 2015, two monthly salaries, i.e. May and June
2015, plus a portion of the first instalment of the signing-on fee, i.e.
64,000,000 remained outstanding. The player specified having only
received 1,5 month of salary payments and the amount of 16,000,000 as
part of his signing-on fee as from the beginning of his contract.
16. Moreover, the player argued that along with the termination of the contract
by the club on 18 August 2015, a fine corresponding to 90% of his signingon fee was imposed on him and the amounts of 4,925,875 and 2,811,465,
allegedly corresponding to two monthly salaries, were paid to him.
17. Additionally, the player highlighted that a fine cannot be used to set off
against a debt.
18. Further, the player held that the fine represents more than half of his
remuneration and that it therefore must be considered disproportionate.
The player emphasized that a fine imposed for the absence of a player after
the player put the club in default, “cannot be justified”.
19. Regarding article 9.2 of the contract, the player pointed out, that “without
entering into the subject of the validity such clause”, there was no
“systematic infringement” of the player as required in said article, and that
the club therefore breached the contract without just cause, since it failed
to fulfil its financial obligations.
20. In its reply, the club rejected the claim and held that the player did not
return to the club on 6 July 2015, after holidays granted to the whole team,
i.e. as from 2 July 2015 until 5 July 2015.
21. Further, the club acknowledged that it did delay certain salary payments
due to financial difficulties and that the salary of May 2015 remained
unpaid on 1 July 2015, whereas the salaries for March and April 2015 were
paid. Furthermore, the club held that the salary of June 2015 was not yet
due on 1 July 2015.
22. Regarding the signing-on fee, the club argued that 16,000,000 were paid
and that the remaining part of the first instalment, i.e. 64,000,000 was to
be paid as soon as the player would have returned to the club. The second
instalment of the signing-on fee, i.e. 80,000,000, was not yet due and was
to be remitted to the player on 1 August 2015.
23. The club concluded that at the moment of the player’s departure for
holidays, it was indebted towards him with the salary of 1 month with a
Player A, country B / Club C, country D
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twenty-day delay and the signing-on fee “in the amount of 40% of the total
sum with one-day delay”.
24. Moreover, the club held that on 18 August 2015 all outstanding dues, i.e.
the amounts of 4,925,875 and 2,811,465, corresponding to the salaries of
May to July 2015, were remitted to the player.
25. On 26 August 2015, the player signed a new employment contract with the
club from country B, Club E, valid as from 26 August 2015 until 31 May
2016, including a monthly salary of 1,900.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the
matter at hand. In this respect, it took note that the present matter was
submitted to FIFA on 9 September 2015. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and
par. 2 in combination with art. 22 lit. b of the Regulations on the Status and
Transfer of Players (edition 2016) the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a
player 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 par. 2 of the Regulations on the Status
and Transfer of Players (edition 2016), and considering that the present
claim was lodged on 9 September 2015, the 2015 edition of said
regulations (hereinafter: Regulations) is applicable to the matter at hand as
to the substance.
4.
The competence of the Chamber and the applicable regulations having
been established, the Chamber entered into the substance of the matter. In
this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation
Player A, country B / Club C, country D
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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.
In this respect, the members of the Chamber acknowledged that, on 15
March 2015, the Claimant and the Respondent had concluded an
employment agreement valid as from 15 March 2015 until 30 November
2015, on the basis of which the Claimant was entitled to receive a monthly
salary of 4,250,000, payable until the 10th day of the following month, and
a signing-on fee in the amount of 160,000,000, payable in two instalments
of 80,000,000 each, the first one due “during the first round of
Championship 2015 of country D” and the second one “until the beginning
of the second round of country D’s Championship”.
6.
In continuation, the Chamber noted that the Claimant lodged a claim
against the Respondent maintaining that the Respondent had terminated
the contract without just cause, since he considers having had valid reasons
to be absent, in particular, due to the outstanding remuneration and the
unclarity about his contractual situation. Consequently, the Claimant asked
to be awarded his outstanding receivables as well as payment of
compensation for breach of contract.
7.
Subsequently, the DRC observed that the Respondent rejected the
Claimant’s claim and held that the Claimant was absent without a valid
reason as of 6 July 2015. Further, the Chamber noted that the Respondent
acknowledged that it was in delay with certain payments but sustained that,
at the moment of the player’s departure for holidays on 2 July 2015, the
club’s debt towards the player amounted to only one salary and part of the
signing-on fee.
8.
Having said that, the members of the Chamber highlighted that the
underlying issue in this dispute was to establish as to whether the
Respondent has terminated the employment contract with or without just
cause and to determine the consequences thereof. In this context, the
Chamber acknowledged that it had to examine whether the reasons put
forward by the Respondent in its defence could justify the termination of
the contract in the present matter.
9.
Having stated the above, the DRC turned its attention to the reasons
invoked by the Respondent for proceeding to the early termination of the
employment contract concluded between the parties.
Player A, country B / Club C, country D
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10. The members of the Chamber took into account that the Respondent
terminated the contract on 18 August 2015 invoking the Claimant’s
undisputed absence as of 6 July 2015, i.e. the moment when the player
should have returned to the club from his holidays in order to resume his
duties.
11. Furthermore, the DRC took notice that, on two occasions, i.e. on 10 July
2015 and on 14 August 2015, the Respondent sent notifications to the
Claimant instructing him to resume work. In its letter of 14 August 2015,
the Respondent granted the Claimant a final time limit until 17 August
2015 to explain his absence as of 6 July 2015 and to resume work. In
addition, the Respondent warned the Claimant that it would terminate the
contract in case the player would not return.
12. The DRC then took due note that according to the Claimant, his absence
from the club as of 6 July 2015 was justified by the fact that his contractual
situation remained unclear at the moment of his departure for holidays on
2 July 2015, since the club’s new management allegedly had indicated that
they did not wish to continue making use of his services and since his
salary for May and June 2015 plus a portion of the signing-on fee remained
unpaid.
13. In this respect, the Chamber recalled the basic principle of the burden of
proof, as 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.
14. With this in mind, regardless of the question as to whether an unclear
contractual situation as described by the Claimant could be considered a
valid reason not to resume duty at the club, the Chamber took into account
that the Claimant had not presented convincing evidence in support of his
allegation regarding the alleged uncertainty of his contractual situation. In
addition, the Chamber noted that the Respondent, in reply to the
Claimant’s notice of 6 July 2015, had replied to this specific part of the
Claimant’s communication and made it clear to the Claimant that he was
expected back at the club to resume work. Therefore, the members of the
Chamber could not uphold the Claimant’s argumentation with respect to
the alleged uncertainty in his contractual situation.
15. In continuation, the members of the Chamber turned their attention to the
financial aspect surrounding the present matter, in particular, the
remuneration that remained outstanding on 6 July 2015, date on which the
Player A, country B / Club C, country D
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Claimant undisputedly had to be back with the Respondent in order to
resume work. According to the Claimant, part of the first instalment of the
signing-on fee as well as his salary for May and June 2015 had remained
outstanding. In this respect, the Chamber recalled that according to the
contract and the club regulations, which form an integral part of the
contract, monthly payments were due until the 10th day of the following
month. In addition, according to the employment contract, the first
instalment of the signing-on fee was due during the first round of the
Championship 2015 of country D, without a specific date being specified.
However, it has remained undisputed by the parties that the first round of
said Championship ended on or about 2 July 2015 and that the Respondent
had paid 16,000,000 out of the first instalment of 80,000,000 to the
Claimant.
16. Consequently, the Chamber concluded that, as at 6 July 2015, part of the
first instalment of the signing-on fee had fallen due since a few days as
well as 1 monthly salary, i.e. May 2015, and highlighted that the salary for
June 2015 had not yet fallen due.
17. In light of the above, the members of the Chamber agreed that the
Claimant’s argumentation could not be upheld and established that the
Claimant had no valid reasons not to return to the Respondent on 6 July
2015 in order to resume work.
18. On account of the above, and bearing in mind that the Respondent sent two
notifications of default to the Claimant, requesting him to resume work and
warning him that it would proceed with the termination of the contract in
case of failure to comply, the Chamber established that the Respondent
terminated the employment contract with just cause on 18 August 2015.
19. Therefore, the Chamber decided that the Claimant’s
compensation for breach of contract must be rejected.
claim
for
20. Having established the above, the Chamber reverted to the Claimant’s claim
relating to outstanding remuneration and focussed its attention on the
remuneration that had remained unpaid for services rendered by the
Claimant, in particular, until the date on which he had been instructed to
return to the Respondent and as of which the Claimant was considered to
have been absent without valid reasons.
21. In this regard, the DRC acknowledged that it had to address the question as
to whether the deduction made by the Respondent from the Claimant’s
receivables on the basis of the fine it imposed on the Claimant on 18
Player A, country B / Club C, country D
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August 2015, i.e. the day on which it had terminated the employment
contract, can be accepted.
22. In this respect, the Chamber concurred that the fine imposed on the
Claimant by the Respondent must be considered disproportionate and shall
thus be disregarded, since the total amount of the fine, i.e. 64,000,000,
corresponds to 80% of the first instalment of the signing-on fee that had
fallen due.
23. Furthermore, and irrespective of the foregoing consideration, the Chamber
wished to point out that the imposition of a fine, or any other available
financial sanction in general, shall not be used by clubs as a means to set
off outstanding financial obligations towards players.
24. In this regard and taking into account the partial payments remitted by the
Respondent to the Claimant on 18 August 2015 totalling 7,737,340, receipt
of which was acknowledged by the Claimant, the Chamber decided that in
accordance with the general legal principle of pacta sunt servanda, the
Respondent is liable to pay to the Claimant the amount of 65,435,484 as
remuneration due to the Claimant in accordance with the employment
contract for services rendered until 6 July 2015, i.e. the date as of which
the Claimant stopped rendering his services to the Respondent without
valid reasons. This amount includes the outstanding 64,000,000 of the first
instalment of the signing-on fee as well as the claimed 750,000 for May
and June 2015 plus 685,484 for 5 days of July 2015.
25. In addition, taking into consideration the Claimant’s claim, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. on the amount
of 65,435,484 as of the date of the claim, i.e. 9 September 2015.
26. The members of the Chamber concluded their deliberations on 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
Player A, country B / Club C, country D
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amount of 65,435,484 plus 5% interest p.a. as from 9 September 2015 until
the date of effective payment.
3.
In the event that the amount plus interest due to the Claimant is not paid
by the Respondent within the stated time limit, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player A, country B / Club C, country D
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5.
The Claimant is directed to inform the Respondent immediately and directly
of the account number to which the remittance is to be made and to notify
the Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to 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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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