Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 November 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
S tijn Boey kens (Belgium ), member
Mario Gallav otti (Italy ), member
Joel Talav era Zárate (Paraguay ), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 1 July 2015, the Player of Country B, Player A (hereinafter: the Claimant or the
player) and the Club of Country D, Club C (hereinafter: the Respondent or the club)
signed an employment contract (hereinafter: the contract) valid as from the date of
signature until 31 May 2017.
2.
According to the contract, the Claimant was entitled to a salary of USD 280,000 for
season 2015/2016 and of USD 760,000 for season 2016/2017.
3.
Art. 2 of the contract stipulates that: “The remuneration of the Player shall be set
out in the Schedule attached to this Contract and signed by the parties (…). Player’s
salary, housing allowance and the advanced payment will be amended annually and
gradually”. Furthermore, art. 14 par. 2 of the contract provides that “any
amendments, additions or deletions to this Contract must be put in writing”.
4.
On 26 May 2016, the Claimant and the Respondent signed a document named
“Final Clearance” (hereinafter: the clearance) which reads as follows: “I, the
undersigned Player A (…) confirm that I received all my dues from Club C Football
Co. at the date of this clearance. I also confirm that I have no right in future to claim
any physical or moral obligations from Club C Football Co. in any way for the
contract that was entered by the both of us previously and this is a final clearance
and confirmation from me of the above statement”.
5.
On 19 July 2016, the Claimant sent a letter to the Respondent complaining that the
latter prevented him from training with the team on 13 July 2016, based on the
alleged termination of the contract with the club. In the same letter, the Claimant
recalled that his contract with the Respondent was valid until the end of season
2016/2017 “with a value of 280 thousand dollars” and he had not received any
notification of the alleged termination from the Respondent.
6.
On 10 August 2016, the Claimant sent a new letter to the Respondent, requesting a
reply to his previous letter and informing that “a copy of [his] new contract of
2016/2017 which was signed with the club in May 2016” was in his possession.
7.
By means of letter addressed to the Claimant on a not specified date, the
Respondent replied that, by virtue of the clearance, the contract had been
terminated.
8.
On 16 August 2016, the Claimant sent a letter to the Respondent, stating that, on
29 May 2016, the player and the club had signed a new employment contract, dated
1 July 2016 and valid as of such date until 31 May 2017 (hereinafter: the new
contract). Moreover, within the same letter, the Claimant requested the Respondent
to pay the outstanding remuneration for the month of July 2016 as set out in the
new contract and to be allowed “to join the Club’s trainings and facilities”.
Player A, Country B / Club C, Country D
2
9.
According to said new contract, the Claimant would be entitled to a salary of USD
250,000 for season 2016/2017, payable as follows:
a)
USD 17,636.36 as monthly salary for the period between 1 July 2016 and 31
May 2017;
b)
USD 28,000 as sign-on fee payable on 1 October 2016;
c)
USD 28,000 as sign-on fee payable on 30 May 2107.
In addition to the above, the player was entitled to the following benefits:
a)
15,000, “instead of the [flight] tickets”;
b)
8,000, “instead of the car and the house”.
10.
On 17 August 2016, the Respondent sent a letter to the Claimant reaffirming that
the contract had been terminated through the clearance and stating that the new
contract “isn’t issued by Club C and its under investigation”.
11.
On 19 August 2016, the Claimant wrote a letter to the Football Association of
Country D (Football Association E) explaining that he had “no intention to raise a
dispute against a Club of Country D” and requesting Football Association E’s
“immediate assistance and mediation”. The same request to the Football
Association E was reiterated by means of letters dated 25 and 31 August 2016.
12.
On 25 September 2016, a meeting was held at the Football Association E’s
headquarters with the presence of the Claimant and of the representatives of the
Respondent. On 28 September 2016, the player informed the Football Association E
that such meeting “did not lead to a solution in this matter”, as “Club C still
contests the existence of an original employment agreement signed by a player and
an authorized director on behalf of the Club”.
13.
On 3 October 2016, the Claimant put the Respondent in default for the payment of
the total remuneration set out in the new contract for the months of July, August
and September 2016, in the amount of USD 91,619.77, setting a two days’ time limit
in order to remedy the default.
14.
On 6 October 2016, the Claimant sent a letter to the Respondent by means of which
he “terminated the employment contract with [the] Club with just cause”, with
immediate effect.
15.
On 10 November 2016, the Claimant lodged a claim before FIFA for the breach of
the new contract, requesting the following:
a)
USD 80,909.08 as outstanding salary for the period between 1 July and 6
October 2016 (included a sign-on fee in the amount of USD 28,000), plus 5%
interest p.a. as of 6 October 2016 until the date of payment;
Player A, Country B / Club C, Country D
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b)
USD 8,513.54 as outstanding benefits (i.e. USD 4,119.24 for flight tickets, USD
2,197.15 for car allowance and USD 2,197.15 for house allowance), plus 5%
interest p.a. as of 6 October 2016 until the date of payment;
c)
USD 169,090.88 as compensation for breach of the employment contract
corresponding to the remaining value of the new contract, plus 5% interest as
of the due dates until the date of payment;
d)
sporting sanctions and payment of the legal expenses on the Respondent.
16.
In his claim, the Claimant affirmed that, on 26 May 2016, he negotiated with the
Respondent the payment of his outstanding salaries for season 2015/2016 as well as
a reduction of his remuneration for season 2016/2017, which led to the signature of
the new contract, allegedly on 29 May 2016. In this context, the player submitted
written statements signed by Mr Employee F and Mr Employee G, who were
allegedly the club’s vice-president and secretary at that time. What is more, the
Claimant alleged that the same vice-president had also signed the former contract,
dated 1 July 2015.
17.
In particular, the Claimant stressed that, as he had not received different indication
from the Respondent, he “could understand in good faith” that club’s vicepresident was duly empowered and authorized to sign the new contract on behalf
of the Respondent.
18.
Moreover, the Claimant stated that no termination had been negotiated with the
Respondent and, in any event, the new contract superseded the previous contract.
19.
Furthermore, the Claimant affirmed that the Respondent excluded him, without
notice, from the trainings and did not pay the remuneration provided in the new
contract. In continuation, he argued that, as he did not receive any payment from 1
July to 6 October 2016, he terminated the new contract with just cause.
20.
In its reply, the Respondent stated that the contract had been terminated by means
of the clearance signed on 26 May 2016 and that the new contract was not issued
by the club.
21.
In particular, the Respondent pointed out that the new contract was signed by a
person not authorized: the former vice-president, Mr Employee F. In this context,
the Respondent considered that the latter “was aware of the elections procedures
that started on 27/05/2016 for a new board” and signed the new contract in
violation of art. 98 of the club’s statute, which prohibits the Board of Directors to
conclude contracts exceeding its term in office. Consequently, the Respondent
argued that the new contract was not valid. In this respect, the Respondent stated
that “there is a criminal investigation initiated by the judicial authorities in Country
D in relation to the validity of the [new contract]”.
Player A, Country B / Club C, Country D
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22.
Moreover, the Respondent argued that the Claimant acted in bad faith as, in his
first letter, he referred to the amount set out in the first contract (USD 280,000) and,
only after he received -allegedly on 28 July 2016- the club’s reply, he mentioned
that he was in possession of the new contract (providing a salary of USD 250,000).
23.
Furthermore, the Respondent also held that, should the contract dated 1 July 2015
be not terminated as alleged by the Claimant, the player and the club would not
have signed the new contract but, rather, just an amendment of the appendix of
the contract, containing the economic terms.
24.
In continuation, the Respondent rejected the witness statements submitted by the
Claimant, on the basis of an alleged conflict of interests of the witness invoked by
the latter.
25.
In his replica, the Claimant rejected the club’s arguments and affirmed that the
clearance signed on 26 May 2016 was “just a formality” during the completion of
season 2015/2016 and the parties never discussed the termination of the contract,
nor the Claimant received a termination notice from the Respondent.
26.
As to his letter dated 19 July 2016, the Claimant affirmed that he erroneously
indicated the salary of the contract dated 1 June 2015 instead of the new contract’s.
In continuation, he argued that the parties signed the new contract and not an
appendix because the Regulations of the Football Association E required so for the
purposes of the registration of foreign players’ employment contracts.
27.
Furthermore, the Claimant stated that, during the meeting held with Football
Association E on 25 September 2016, “the attendees have established the
authenticity of this original copy of the [new contract]” showed by the player and
argued that the same was validly signed by the club’s vice-president.
28.
What is more, the Claimant stressed that, during such meeting, the club’s
representative reportedly showed other four copies of the new contract. The
Claimant stressed that such circumstance proved that the Respondent was aware of
the content of such new contract.
29.
In its duplica, the Respondent insisted on his previous arguments and affirmed that
is “false and untrue” that Regulations of the Football Association E prohibit to
conclude an appendix in case of amendment of the contract. In particular, the
Respondent argued that art. 4 and art. 14 par. 2 of the contract stipulate the
conclusion of an annex in case of amendment.
30.
Furthermore, the Respondent affirmed that the Football Association E did not
authenticate the new contract and that the four copies showed by the club’s
representative during the meeting before Football Association E had been
previously delivered to the club’s Board of Directors by the former vice-president
within the scope of art. 14 par. 3 of the new contract, according to which “the
Player A, Country B / Club C, Country D
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Contract has been drafted in four (4) original copies”. Nonetheless, the Respondent
emphasised that the club’s Board of Directors refused to sign them “as it is not
willing to maintain Player A within the ranks of the Club”.
31.
Upon request of the FIFA Administration, the Claimant informed that he did not
conclude any other employment contract with other club between 6 October 2016
and 31 May 2017.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the
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
10 November 2016. 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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016 – hereinafter: Regulations), 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 of Country B and a Club
of Country D.
3.
In continuation, 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, and considering that the present claim was
lodged on 10 November 2016, the 2016 edition of the 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, the Chamber noted that the parties entered into an employment contract
valid as from 1 July 2015 until 31 May 2017, which the parties terminated by means
of the clearance they signed on 26 May 2016.
Player A, Country B / Club C, Country D
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6.
Then, the Chamber went to analyse the position of the Claimant, which maintains
that, on 29 May 2016, a new employment contract was concluded between him and
the Respondent, valid as from 1 July 2016 until 31 May 2017. According to said new
contract, the Claimant was entitled to a monthly salary of USD 17,636.36, to two
sign-on fees payable on 1 October 2016 and 30 May 2017 respectively, and to
benefits in the amount of 15,000 for flight tickets and to 8,000 for “the car and the
house”.
7.
In this respect, the DRC took note that the Claimant put the Respondent in default
for the payment of outstanding remuneration, for the last time on 3 October 2016,
and thereafter terminated the new contract on 6 October 2016. Furthermore, the
Chamber noted that the Claimant requested, inter alia, outstanding remuneration
until the date of termination and compensation for breach of contract without just
cause by the Respondent, corresponding to the remaining value of the new
contract.
8.
The Chamber further noted that, conversely, according to the Respondent, the new
contract had been signed by a person not authorised by the club, i.e. the allegedly
former club’s vice-president. In this respect, the Respondent maintained that the
new contract was signed in violation of the club’s statutes, pursuant to which the
club’s board of directors is not entitled to sign contracts whose period of validity
exceed the term in office of the board. In particular, the Respondent argued that,
when the new contract was signed, the procedures for the elections of the new
club’s board had already started and, consequently, concluded that the new
contract was not valid.
9.
In view of the foregoing, the members of the Chamber highlighted that the first
issue to be analysed, considering the diverging position of the parties, was to
determine whether the new contract, provided a term as from 1 July 2016 until 31
May 2017, constituted a valid and binding employment contract.
10.
In this respect, the members of the Chamber decided that the Respondent’s
argumentation, according to which the new contract had no legal effect since it had
been signed on behalf of the Respondent by a non-authorized person, cannot be
upheld due to the fact that, in accordance with the principle of good faith, bona
fide, to be respected by the parties during the conclusion of contracts, the Claimant
could reasonably believe, in good faith, that the person signing the relevant
agreement on behalf of the Respondent was legally authorized to sign it. The
members of the Chamber were comforted with such conclusion also by the fact that
it remained undisputed by the parties that the person who signed the new contract
indeed had been the Vice-President of the club previously.
11.
Moreover, in accordance with the principle under 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, the DRC outlined that the Respondent failed to
Player A, Country B / Club C, Country D
7
present documentary evidence demonstrating that the Claimant was aware of the
situation outlined by the Respondent at the moment of signing the new contract,
let alone that the person who signed the new contract, at that time, was not
anymore the Vice-President of the club.
12.
Furthermore, the Chamber recalled its well-established jurisprudence which dictates
that, in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee, it should contain
the essentialia negotii of an employment contract, such as the parties to the
contract and their role, the duration of the employment relationship, the
remuneration and the signature of both parties. In this respect, the members of the
Chamber concurred that it remained undisputed that all the aforementioned
elements were indeed included in the new contract.
13.
On account of the aforementioned considerations, the members of the Chamber
concluded that the new contract, providing a term as from 1 July 2016 until 31 May
2017, was valid and binding.
14.
Having found so, the members of the Chamber concurred that the second issue to
be addressed was to determine if, on 6 October 2016, the Claimant terminated the
new contract with just cause and the consequences thereof.
15.
In view of the above, the DRC first of all took into consideration the content of art.
14 of the Regulations, which provides that “a contract may be terminated by either
party without consequences of any kind (either payment of compensation or
imposition of sporting sanctions) where there is just cause”.
16.
In continuation, the Chamber stressed that the definition of just cause and whether
just cause exists shall be established in accordance with the merits of each particular
case.
17.
In this context, the members of the Chamber took into consideration that it
remained undisputed that, at the time the Claimant terminated the new contract,
the Respondent failed to pay his remuneration in the total amount of USD 80,909,
corresponding to, according to the new contract, his salaries for the months from
July until September 2016 and to a sign-on fee amounting to USD 28,000.
18.
Consequently, considering that the Respondent had for a significant period of time
(i.e. more than three months) been in breach of its contractual obligations towards
the Claimant, the Chamber decided that the Claimant had just cause to unilaterally
terminate the new contract on 6 October 2016 and that, as a result, the Respondent
is to be held liable for the early termination of said employment contact with just
cause by the Claimant.
19.
In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the player, the
Chamber focused its attention on the consequences of such termination. In this
regard, 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 amounts which
Player A, Country B / Club C, Country D
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were outstanding under the new contract at the moment of the termination, i.e.
USD 80,909.
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 members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amount of USD 80,909 as of 6 October 2016, as requested by the
Claimant.
21.
In continuation, the members of the Chamber determined that the Respondent was
not only to pay the amount of USD 80,909 as outstanding remuneration to the
Claimant, but also to pay compensation for breach of contract in conformity with
art. 17 par. 1 of the Regulations.
22.
Having stated the above, the Chamber 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 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 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.
23.
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.
24.
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 consideration when calculating the amount of
compensation payable.
25.
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 until 31
May 2017 and concluded that the player would have received a total remuneration
of USD 169,090, equal to eight monthly salaries – for the period between October
2016 and May 2017 – plus the second instalment of the signing fee, plus 23,000,
corresponding to flight tickets and rent and car allowance, had the contract been
executed until its expiry date (cf. point I.9 above).
Player A, Country B / Club C, Country D
9
26.
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.
27.
However, the members of the Chamber took note that, after the termination of the
employment contract on 6 October 2016, the Claimant did not enter into other
employment contract with any other club.
28.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of USD 169,090 plus 23,000 to the Claimant as compensation for
breach of contract in the case at hand.
29.
In continuation, and with regard to the player's request for interest, the Chamber
decided that the Claimant, in accordance with the long-standing jurisprudence of
the Chamber in this regard, is entitled to 5% interest p.a. on the aforementioned
amounts as of 10 November 2016.
30.
Finally, the members of the Chamber concluded their deliberations on the present
matter by rejecting any further claim lodged by the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
USD 80,909 plus 5% interest p.a. as of 6 October 2016.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount of
USD 169,090 and 23,000, plus 5% interest p.a. as of 10 November 2016.
4.
In the event that the amounts plus interest due to the Claimant in accordance with
the above-mentioned 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.
Player A, Country B / Club C, Country D
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6.
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 m otiv ated decis ion (legal remedy):
According to art. 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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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