Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 November 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (Country F), member
Wouter Lam brecht (Belgium ), 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 between the parties
Player A, Country B / Club C, Country D
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I.
Facts of the cas e
1.
On 20 March 2017, the player of Country B, Player A (hereinafter: Claimant), and the
club of Country D, Club C (hereinafter: Respondent), concluded an employment
contract valid as of the date of signature until 31 December 2018 (hereinafter:
contract).
2.
Pursuant to clause 3 of the contract, the Claimant was entitled to a salary of “$”
1,500 per month, payable on the 30th day of each month, “which amount shall be
reviewable as and when the necessity arises taking into account the economic
situation prevailing at each particular time”.
3.
In accordance with clause 4 of the contract, the Claimant was also entitled to receive
the following benefits:
- “$”10,000 signing-on fee for the 2017/2018 season;
- “$”12,000 signing-on fee for the 2018/2019 season, payable before the
beginning of the 2018/2019 season;
- “$”25 per month transport allowance;
- “$”20 bonus for each goal scored;
- “$”100 per month as food allowance.
4.
According to the Claimant, it was orally agreed that the Respondent would
reimburse his flight tickets.
5.
On 19 February 2018, the Claimant put the Respondent in default and requested to
be paid USD 2,750 within seven days in cash or to his specified bank account, which
amount was specified as follows:
a. USD 800 as outstanding salary corresponding to the months of October 2017
until January 2018;
b. USD 500 corresponding to 5 months of food allowance;
c. USD 250 corresponding to 10 months of transport allowance;
d. USD 1,200 corresponding to flight tickets.
6.
In the same default notice, the Claimant mentioned that it was agreed that he would
receive his salaries in cash, instead of “mobile money and bank transfers”.
7.
According to the Claimant, during a meeting with the Respondent on 2 March 2018,
he, inter alia, requested his salary, food and transportation allowance for February
2018, totalling USD 1,625, and that he be paid in USD.
Player A, Country B / Club C, Country D
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8.
On 19 March 2018, the Respondent sent a letter to the Claimant entitled “Payment
Plan for [the Claimant]”. In this letter, the Respondent made reference to the
meeting held on 2 March 2018 and, inter alia, proposed the following payment plan:
a. USD 1,000 “per every home game (…) starting from our first game against Club
E”;
b. USD 2,000 after every high profile match;
c. “Salary will be converted (…) into USD from January 2018 as agreed in our
meeting”;
d. “Work permit to be sorted out urgently”;
e. “[The Respondent] will also reimburse your airfares of USD 1,200”;
f. “We hope our proposal is favourable and we will be able to register him in time”.
9.
On 20 March 2018, the Claimant informed the Respondent in writing that he did not
agree with the Respondent’s proposal of 19 March 2018, since it failed to comply
with his requests as stipulated in his letter of 19 February 2018 and that “in the
meantime the additional amount of USD 13,625 has fallen due”. As a result, the
Claimant requested that the total amount of USD 16,375 be paid to him “within the
following 7 days”.
10.
On 27 March 2018, the Respondent proposed a second “payment plan” to the
Claimant, which included the following:
a. That USD 3,000 was deposited “into [the Claimant’s] account”;
b. That USD 7,000 “will be deposited on 27 March 2018 from our sponsor into your
mobile money. This amount will however be subjected to taxation”;
c. USD 3,000 to be paid on 3 April 2018;
d. “The balance will be paid from our next home match”.
e. “Work permit to be sorted out urgently”;
f. “We hope our proposal is favourable and we will be able to register him in time”.
11.
On that same day, 27 March 2018, the Claimant informed the Respondent in writing
that the USD 3,000 the Respondent alleged to have paid was transferred to the
wrong bank account. According to the Claimant, he cannot use the bank account
the money was transferred to, “since this account does not allow me to withdraw
money in USD”. The Claimant further wrote that he “will transfer the money back
and kindly ask you to pay (…) in the bank account indicated.”
12.
In the same letter, the Claimant disagreed with the Respondent’s plan to pay USD
7,000 to his “mobile money”, and asked that the amount be paid to his regular bank
account instead. The Claimant further argued that the Respondent had still not
provided him with his work permit, “even though the season has already started”.
The Claimant asked that USD 16,375 be paid to him within the next 48 hours.
Player A, Country B / Club C, Country D
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13.
On 5 April 2018, the Claimant informed the Respondent in writing, inter alia, that
he had received no payments nor a work permit, and that, as a consequence, he
terminated the contract.
14.
On 16 April 2018, the Claimant lodged a claim against the Respondent in front of
FIFA for breach of contract and requested:
a. USD 18,055 net as outstanding remuneration, plus 5% interest p.a. as from the
due dates, specified as follows:
i. USD 250 for the transport allowances from May 2017 to February
2018;
ii. USD 100 for the remaining part of the October 2017 salary;
iii. USD 100 for the food allowance of October 2017;
iv. USD 100 for the remaining part of the November 2017 salary;
v. USD 100 for the food allowance of November 2017;
vi. USD 100 for remaining part of the December 2017 salary;
vii. USD 100 for the food allowance of December 2017;
viii. USD 500 for the remaining part of the January 2018 salary;
ix. USD 100 for the food allowance of January 2018;
x. USD 1,500 for the salary of February 2018;
xi. USD 100 for the food allowance of February 2018;
xii. USD 12,000 for the sign-on fee “due in March 2018”;
xiii. USD 1,500 for the salary of March 2018;
xiv. USD 100 for the food allowance of March 2018;
xv. USD 25 for the transportation allowance of March 2018;
xvi. USD 1,200 for the flight tickets;
xvii. USD 180 for goals scored.
b. USD 14,625 net as compensation for breach of contract plus 5% interest p.a. as
from 6 April 2018.
c. USD 2,000 as legal costs;
d. The imposition of sporting sanctions on the Respondent.
15.
According to the Claimant, the first match of the season was played on 17 March
2018 and therefore, the signing-on fee of USD 12,000 was due on that day.
16.
The Claimant further held that on 31 March 2018 his work permit expired.
17.
Moreover, as per the Claimant, the Respondent had failed to register him for the
2018/2019 season prior to the deadline of 31 March 2018.
18.
The Claimant further argued that, given the financial situation in Country D, it was
essential for him to receive his salary on a bank account that would allow him to
withdraw USD. However, the bank account to which the club transferred the USD
Player A, Country B / Club C, Country D
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3,000 to (cf. number I./10.a above) allegedly does not allow for a withdrawal in USD.
Instead, as per the Claimant, the money withdrawn from that account can only be
used in Country D and has no value abroad.
19.
The Claimant held that, therefore, he transferred the USD 3,000 back to the
Respondent.
20.
With regard to his request for USD 1,200 for the flight ticket, the Claimant argued
that the Respondent confirmed in its letter of 19 March 2018 that this was due to
him and he submitted a travel bill for the flight Country D– Country B, valued at USD
1,200.
21.
Finally, with regard to his request for USD 180 for goals scored, the Claimant stated
that the Respondent failed to pay him the corresponding bonus for nine goals
scored. In this regard, the Claimant provided a document demonstrating that until 1
October 2017, he had scored 11 goals.
22.
In its reply, the Respondent firstly held that it was never contractually agreed with
the Claimant that it should bear the cost of flight tickets.
23.
Furthermore, the Respondent stated that the alleged outstanding remuneration as
claimed by the Claimant in his letter of 19 February 2018 is “a derivative of a
miscalculation by [the Claimant]”, given that his earnings were subject to “Pay As
You Earn (tax)” “and any claim based on gross salary before tax is not allowed”.
24.
In continuation, the Respondent argued that Country D has a multicurrency system.
As per the Respondent, the Claimant “was being paid in currency of Country D
(Banknotes of Country D) which arrangement was not at variance with the
employment contract”. According to the Respondent, the problems of foreign
currency is a national problem for Country D “and the whole populace can hardly
withdraw even USD 1”.
25.
In this context, the Respondent maintained that the employment contract does not
mention that the payment is to be made in USD. As per the Respondent, “any
payments in such currency was (…) based on availability through other avenues as
pursued by [the Respondent] and (…) this was not contractual”.
26.
The Respondent argued that it paid the Claimant his salary for January, February and
March 2018, but that he returned the money because he wanted to be paid in USD.
According to the Respondent, the amount returned by the Claimant amounted to
“$” 8,858.34 and that “these returned funds in their local currency form are not
Player A, Country B / Club C, Country D
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disputed by Respondent”. Therefore, as per the Respondent, this is a dispute over
the mode of payment, and not over non-payment, as the Claimant claimed.
27.
Regarding further alleged outstanding payments, the Respondent admitted that it
paid the Claimant “3 to 4 days (after) the salary due date, (but) a delay of less than
a week can never be constituted as a gross breach of (…) contract”.
28.
In addition, the Respondent submitted the following four so-called “Club C
Acknowledgement Of Receipt” documents, signed by the Claimant:
a. USD 100, dated 28 August 2017, as “food allowance”;
b. USD 700, dated 14 September 2017, as “sign-on (USD 500) and food allowance
(USD 200)”;
c. USD 140, dated 28 September 2017, as “seven goals allowance”;
d. USD 1,000, dated 5 October 2017, as “outstanding salaries”.
29.
Furthermore, the Respondent argued that “for the period February to April 2018”,
it paid the Claimant an amount of USD 13,732.10, which, as per the Respondent
“puts to finality the assertion that [the Claimant] was not being paid”. In this regard,
the Respondent submitted an in-house excel table showing unspecified financial
transactions allegedly made to the benefit of the Claimant entitled “Statement from
the Sponsor” and dated 26 July 2018.
30.
The Respondent claimed that its sponsor remits salary payments to individual players
through the sponsor’s mobile money transfer system. The Respondent added that it
had “no control whatsoever” on this model of payment and that the Claimant’s
request to propose his own desired manner of payment fell outside the sponsorship
agreement between the Respondent and its Sponsor, “and therefore it could not be
performed”.
31.
As regards the Claimant’s work permit, the Respondent maintained that its
willingness to extend the Claimant’s working permit is evident from its letter dated
27 March 2017, but that this issue was complicated by the Claimant since, as per the
Respondent, a permit application “has to satisfy a number of requirements and key
amongst them is an agreed employment contract which document had now become
a contentious issue because of the issues raised [above]”.
32.
According to the Respondent, the 2018/2019 signing-on fee could not be paid “due
to a myriad of alleged outstanding payments albeit lacking verification and
authenticity”. In this sense, the Respondent argued that a signing-on fee is
“premised on deemed performance value of [the Claimant] (…) during the agreed
contractual period”.
Player A, Country B / Club C, Country D
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33.
Furthermore, according to the Respondent, on 6 April 2018, the Claimant asked the
Respondent to issue his clearance letter for his to return to Country B. As per the
Respondent, the Claimant’s request for a clearance letter is incompatible with his
request for the signing-on fee of USD 12,000.
34.
Given all of the above, the Respondent concluded that the Claimant had no just
cause to terminate the contract and that the claim should be dismissed.
35.
With regards to the Respondent’s position that the employment contract does not
mention that the payment of the salary is to be made in USD, the Claimant argued
that the “USD sign” is clearly indicated in the contract.
36.
Furthermore, the Claimant referred to the payment receipt enclosed in the
Respondent’s response (cf. number I./28. above) and held that these payments were
done in USD.
37.
Regarding the Respondent’s argument that the Claimant’s earnings were subject to
tax, the Claimant stated that the employment contract does not indicate whether
payments were to be made gross or net. According to the Claimant, in such cases it
is established that amounts are net. In any case, as per the Claimant, the Respondent
had not provided any documentary evidence that it had indeed paid taxes to the
authorities in Country D.
38.
With regard to the alleged non-payment of the signing-on fee of USD 12,000, the
Claimant stated this payment was clearly identified in the contract. Moreover,
according to the Claimant, the Respondent’s assertion that the signing-on fee is
based on “performance value” is unfounded.
39.
As regards his request for the clearance letter of 6 April 2018, the Claimant stressed
that such request was made one day after his termination of the contract and
therefore perfectly reasonable.
40.
The Claimant further held that the documents presented by the Respondent (cf.
number I./28. above) are for the most part irrelevant to the core of this matter, since
they do not relate to the payments requested by him.
41.
With regard to the documents presented by the Respondent that are related to
alleged financial USD transactions from the alleged sponsor of the Respondent to
the Claimant, the Claimant held that he never provided this bank information to the
Respondent and that he is considering his legal options in relation to the
Respondent’s behaviour.
Player A, Country B / Club C, Country D
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42.
The Claimant further argued that the payment through Banknotes of Country D and
through the “Sponsors mobile money transfer system” are two ways of payment that
had neither been included in the contract, nor had been explicitly agreed upon by
the Claimant. The Claimant added that he had a binding employment contract with
the Respondent, and not with the Respondent’s sponsor. According to the Claimant,
an agreement between the Respondent and its sponsor is irrelevant to the matter at
hand. Therefore, as per the Claimant, he had all rights to request payment via bank
transfer on his bank account.
43.
As to the flight tickets, the Claimant referred to the Respondent’s letter of 19 March
2018 and argued that there is a clear commitment of the Respondent to pay this fee.
Moreover, the Claimant stated that the Respondent paid various tickets for him to
go on trial in Country F, “which is another clear indication that the [Respondent]
would pay the [Claimant] his air fares”.
44.
With regard to the work permit, the Claimant held that the Respondent never
notified him that it needed further documentation from him. In this context, the
Claimant referred to the Respondent’s letter of 27 March 2018, which stipulates that
the Respondent would “sort out the work permit urgently”, without requesting any
further documentation.
45.
As per the Claimant, the Respondent’s argument that the employment contract had
become “a contentious issue because of the issues raised” cannot stand, because
nothing prevented the Respondent from using the employment contract to obtain
the work permit.
46.
In its duplica, the Respondent firstly held that the “currency of Country D has the
same purchasing power with the USD. Therefor the insignia $ and USD is used
interchangeably. (If not), how come [the Claimant] worked the whole of season 2017
being paid in the currency of Country D (?)”.
47.
The Respondent further stated that any salary above USD 300 per month is taxable
and attached a number of in-house salary payment lists of the team in support of
this statement.
48.
According to the Respondent, the Claimant admitted that the 2017 payments are
not in dispute. Therefore, as per the Respondent, there is no claim as to the 2017
season.
49.
Furthermore, the Respondent reiterated that the contract does not expressly specify
how the payments are to be done. According to the Respondent, the only issue in
dispute is determining whether or not the relevant payments were made to the
Player A, Country B / Club C, Country D
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Claimant. The Respondent deemed that it paid all his dues to the Claimant and that
therefore there is no dispute in that regard.
50.
With regard to the flight tickets, the Respondent disagreed with the Claimant that,
simply because it paid air fares for the Claimant to go on trial, flight tickets were a
contractual obligation.
51.
Regarding the work permit, the Respondent reiterated that once an employment
contract becomes an issue in dispute, its validity, force and effect are rendered
incapable of performance.
52.
The Claimant informed FIFA that, on 25 July 2018, he signed an employment contract
with the club of Country G, Club H, valid as from 1 July 2018 until 30 June 2020.
According to this employment contract, the Claimant is to receive within the relevant
period of time a signing-on fee of 150,000 in the currency of Country G by 1 August
2018 and a net salary of 17,000 in the currency of Country G per month, payable on
the 30th day of each month.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 16 April 2018.
Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (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
2018) 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 this respect, the Chamber was eager to emphasize that contrary to the information
contained in FIFA’s letter dated 8 November 2018 by means of which the parties were
informed of the composition of the Chamber, the member, Mr. J, and the member,
Mr. L, refrained from participating in the deliberations in the case at hand, due to
the fact that the member, Mr. J, refrained from participating due to certain personal
circumstances and that, in order to comply with the prerequisite of equal
representation of club and player representatives, also the member, Mr. L, refrained
Player A, Country B / Club C, Country D
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from participating and thus the Dispute Resolution Chamber adjudicated the case in
presence of three members in accordance with art. 24 par. 2 of the Regulations.
4.
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 on the Status and Transfer of Players (edition 2018)
and considering that the present claim was lodged on 16 April 2018, the 2018 edition
of the said regulations (hereinafter: Regulations) is applicable to the matter at hand
as to the substance.
5.
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 and
arguments as well as the documentation on file. However, the Chamber emphasised
that in the following considerations it will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the
matter at hand. In particular, the Chamber recalled that in accordance with art. 6
par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence
generated or contained in the Transfer Matching System (TMS).
6.
In this respect, the Chamber recalled that the Claimant and the Respondent signed
an employment contract which was valid as from 20 March 2017 until 31 December
2018. The Chamber acknowledged that, in accordance with the employment
contract, the Respondent was obliged to pay to the Claimant, inter alia, a monthly
salary of “$” 1,500 and a signing-on fee of “$” 12,000 for the 2018/2019 season as
well as monthly transport & food allowances and bonuses for goals scored. As
regards the said bonuses, the Chamber took into account that the employment
contract, as opposed to the salary, signing-on fee and the monthly allowances, does
not specify the payment due date of the bonuses.
7.
The DRC further took into consideration that, after having put the Respondent in
default, the Claimant unilaterally terminated the contract on 5 April 2018, invoking
just cause for allegedly not having been paid his contractual receivables, nor having
received a valid work permit.
8.
In continuation, the DRC recalled that the Claimant requested to be awarded inter
alia the amount of USD 18,055 as alleged outstanding remuneration as well as USD
14,625 as compensation for breach of contract.
9.
The members of the DRC noted that the Respondent, for its part, dismissed the claim
and held that the Claimant terminated the contract without just cause. In its defence,
Player A, Country B / Club C, Country D
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the Respondent held, inter alia, that part of the remuneration claimed by the
Claimant as outstanding was duly paid to him, that the Claimant had returned a
payment to the Respondent that its sponsor was responsible for payment of the
Claimant’s remuneration, and that taxes were to be deducted from the Claimant’s
remuneration. With respect to the Claimant’s work permit, the Respondent held that
since the employment contract was the object of a disagreement between the
parties, it no longer satisfied the requirements of the work permit application.
10.
In light of the above, the Chamber established that, considering the diverging
position of the parties, the primary issue at stake is determining as to whether the
Claimant had a just cause to terminate the contract with the Respondent on 5 April
2018 and to determine the consequences thereof. In this respect, the Chamber
deemed it essential to make a brief recollection of the facts as well as the parties’
main arguments and the documentation on file.
11.
Having said that, the DRC firstly noted that, on 19 February 2018, the Claimant put
the Respondent in default of payment of partial salaries as from October 2017 to
January 2018, five monthly food allowances and 10 monthly transport allowances,
as well as USD 1,200 corresponding to flight tickets. Moreover, the Chamber recalled
that the parties held a meeting on 2 March 2018 and that, on 19 March 2018, the
Respondent proposed a payment plan, which included, inter alia, the reimbursement
of USD 1,200 for flight tickets and that the Claimant’s work permit be sorted out.
Furthermore, the DRC highlighted that the Claimant rejected this payment plan
offered by the Respondent.
12.
In continuation, the Chamber noted that with its correspondence of 27 March 2018,
the Respondent made a second offer, which does not appear to have been accepted
by the Claimant, who, in reply on 27 March 2018, requested the Respondent to pay
him USD 16,375 within the next 48 hours and to provide him with a new work permit.
13.
The DRC further took into account that according to the copy of the work permit
submitted by the Claimant, the Claimant’s work permit expired on 31 March 2018.
14.
In this regard, the members of the DRC agreed that it remained undisputed that the
Respondent had not renewed the Claimant’s work permit, even though it had
promised to do so on two occasions (i.e. on 19 March 2018 and on 27 March 2018).
Consequently, the Chamber concluded that as of 1 April 2018 the Claimant no longer
had a valid work permit and that he was consequently prevented from rendering his
services to the Respondent.
15.
In this respect, the DRC placed particular emphasis on the Respondent’s statement
that it had not extended the Claimant’s work permit, because the employment
Player A, Country B / Club C, Country D
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contract had “become a contentious issue because of the issues raised” by the
Claimant and that therefore it no longer fulfilled the requirements of the permit
application. The members of the Chamber could not follow such argument and
deemed that the parties’ apparent disagreement on outstanding payments prior to
the expiry of the Claimant’s work permit could not be validly invoked by the
Respondent as a reason for it not to arrange a new work permit for the Claimant.
What is more, even if such argument could be considered valid, the Chamber
highlighted that the Respondent had not presented documentary evidence
corroborating such allegation.
16.
Secondly, the Chamber recalled that, according the Claimant, the Respondent had
failed to fulfil its financial obligations under the relevant employment contract. In
particular, the Chamber recalled that, as per the Claimant, USD 18,055 remained
outstanding on the day of contract termination, including, inter alia, transport
allowances as from May 2017 until March 2018, food allowances as from October
2017 until March 2018, partial salaries as from October 2017 until January 2018, full
salaries of February and March 2018, and the signing-on fee payable before the
beginning of the 2018-2019 season. Similarly, the DRC recalled the various
arguments put forward by the Respondent in its defence.
17.
In this context, the Chamber brought to mind that the Respondent argued that the
Claimant’s claim was based on a gross salary and that taxes were to be deducted
from the Claimant’s remuneration. The DRC noted that the Respondent further
argued that the contract did not mention that the payments had to be made in USD,
explaining in this respect that Country D has a multicurrency system. Moreover, the
DRC evoked that, according to the Respondent, its sponsor was responsible for the
payment of the Claimant’s remuneration and that it had no control on the model of
payment used by its sponsor.
18.
In light of the above, the Chamber firstly analysed as to whether taxes were to be
deducted from the Claimant’s remuneration, as claimed by the Respondent. In this
regard, the DRC noted that the contract did not contain any clause stipulating
whether payments are net nor gross or any clause regarding payment or deduction
of taxes. Furthermore, the Chamber took into account that the Respondent had not
provided credible documentary evidence demonstrating that taxes were to be
deducted from the Claimant’s remuneration as set out in the employment contract.
Consequently, the DRC decided that no amount is to be deducted from the
Claimant’s remuneration as stipulated clauses 3 and 4 of the contract for tax reasons.
19.
In continuation, the DRC scrutinized in which currency payments were to be made
by the Respondent to the Claimant. In this context, the DRC recalled that according
to the employment contract, payments to the Claimant were to be made in “$” and
Player A, Country B / Club C, Country D
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noted that such sign is the sole currency denomination or reference in the contract.
Furthermore, the members of the Chamber took into account the aforementioned
“Club C Acknowledgment Of Receipt” documents submitted by the Respondent,
which show that the Claimant received payments in USD from the Respondent.
Similarly, the DRC noted that in the above-mentioned “payment plans” the
Respondent referred to payments in USD. Taking into account the wording of the
contract as well as previous payments made by the Respondent to the Claimant, the
Chamber decided to reject the Respondent’s argument and established that the
Claimant was entitled to receive his salary in USD.
20.
In addition, with regard to the Respondent’s allegation that its sponsor was
responsible for the payment of the Claimant’s remuneration, the Chamber recalled
that the employment contract did not provide for the possibility for a sponsor to pay
the Claimant’s salary. In any case, the members of the DRC deemed that the
Respondent’s argument that its sponsor was responsible for the payment of the
Claimant’s remuneration cannot be considered valid to justify any outstanding
payment.
21.
Having said that, the Chamber focussed its attention on establishing which
contractual remuneration had remained outstanding, if any, when the Claimant
terminated the employment contract on 5 April 2018. In this respect, the Chamber
took into account that according to the TMS, the Country D 2018-2019 season started
on 3 March 2018 and, thus, concluded that the USD 12,000 signing-on fee had fallen
due prior to the termination of the contract by the Claimant.
22.
However, the Chamber took into account that it was undisputed that the amount of
USD 3,000 had been paid by the Respondent to the Claimant on or about 27 March
2018 and that such amount was returned by the Claimant to the Respondent alleging
that it was paid to the wrong account. In this sense, the DRC underlined that there
is no contractual clause regarding the method of payment of the Claimant’s
remuneration, in particular regarding the relevant bank account.
23.
In continuation, the members of the Chamber took into account that in support of
its position that it paid the Claimant USD 13,732.10 for the period of February to
April 2018, the Respondent only submitted an in-house excel table, dated 26 July
2018, to which it referred to as “statement from the Sponsor”, showing unspecified
financial transactions allegedly made to the Claimant. In this regard, the DRC
referred to the principle of the burden of proof stipulated in art. 12 par. 3 of the
Procedural Rules, and stressed that the Respondent had not submitted convincing
documentary evidence in support of such allegation.
Player A, Country B / Club C, Country D
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24.
Subsequently, the Chamber reverted to the “Club C Acknowledgment Of Receipt”
documents submitted by the Respondent and established that the payments
included therein are not related to the signing-on fee, salaries and food allowance
claimed by the Claimant.
25.
As regards the claimed signing-on fee of USD 12,000 for the 2018/2019 season, the
DRC recalled that the Respondent purposely did not pay this fee “due to a myriad of
alleged outstanding payments albeit lacking verification and authenticity”. The
Chamber agreed that such argument brought forward by the Respondent does not
justify the non-payment of the signing-on fee to the Claimant, which fell due well
before the termination of the contract by the Claimant.
26.
Having established all of the above, bearing in mind the Claimant’s claim and that
the Respondent had made a payment of USD 3,000 to the Claimant on or about 27
March 2018 (cf. number II./22. above), the DRC concluded that the total amount of
USD 13,675, consisting of the signing-on fee of USD 12,000, part of the entitlements
due until February 2018, and the Claimant’s salary and allowances for March 2018,
had fallen due and remained unpaid when the Claimant terminated the contract.
27.
Finally, the DRC recalled that, on 19 February 2018 and 20 March 2018, the Claimant
had put the Respondent in default of payment prior to proceeding with the
termination of the employment contract.
28.
Taking into account all of the above considerations, in particular the facts that the
Respondent failed to provide the Claimant with a valid working permit following its
expiry on 31 March 2018 and that a considerable amount of contractual entitlements
was still outstanding when the Claimant terminated the contract, the DRC
determined that the Claimant had just cause to terminate the employment contract
on 5 April 2018 in accordance with this Chamber’s constant and well-established
jurisprudence.
29.
That said, the Chamber concluded that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant and
should therefore bear the consequences of its unjustified breach of the employment
contract.
30.
In continuation, prior to entering into the issue of the consequences of the early
termination of the employment contract with just cause by the Claimant, the
Chamber firstly proceeded to determine the amount of outstanding remuneration,
if any, still due to the Claimant by the Respondent to this day.
Player A, Country B / Club C, Country D
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31.
In this light, the Chamber firstly referred to its previous deliberations (cf. number
II./22 above) and highlighted that, whereas the payment of USD 3,000 by the
Respondent to the Claimant was taken into consideration when establishing the
remuneration outstanding at the date of termination of the contract, in light of the
fact that this amount was returned by the Claimant to the Respondent, the USD
3,000 must be included in the amount of remuneration still payable to the Claimant
by the Respondent.
32.
In continuation, the Chamber recalled that the Claimant requested USD 180 for goals
scored, while providing documentation relating to 11 goals scored until 1 October
2017. In this context, the DRC evoked that the Respondent provided evidence of
payment in the amount of USD 140, dated 28 September 2017, for seven goals scored
(cf. number I./28.c above). Thus, the Chamber concluded that a bonus for four goals
scored in the total amount of USD 80 has remained outstanding and shall be paid to
the Claimant.
33.
In addition, with regard to the Claimant’s request for USD 1,200 corresponding to
flight tickets, the DRC firstly established that there was no contractual obligation for
the Respondent to reimburse the Claimant’s flight tickets. On the other hand, the
Chamber acknowledged that as per the first “Payment Plan” sent by the Respondent
on 19 March 2018, the Respondent offered to reimburse the Claimant’s “airfares of
USD 1,200” (cf. number I./8.e above). Having said this, the Chamber similarly recalled
that the Claimant did not accept the Respondent’s first payment plan, while the
Respondent’s second payment plan of 27 March 2018 did not include the offer to
reimburse the Claimant’s flight tickets. Given the above, the DRC decided to reject
the Claimant’s request for USD 1,200 corresponding to flight tickets due to the lack
of a legal basis.
34.
On account of the aforementioned considerations, the DRC decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent
is liable to pay to the Claimant outstanding remuneration in the total amount of
USD 16,755.
35.
In addition, taking into consideration the Claimant’s request, the Chamber decided
to award the Claimant interest at the rate of 5% p.a. on the amount of USD 16,755
as of the day following the day on which each of the respective instalments fell due.
In this context, the Chamber took into account that according to the Claimant the
signing-on fee of USD 12,000 for the 2018/2019 season fell due on 17 March 2018 (cf.
number I./15. above) and recalled that no payment due date for bonuses was
included in the employment contract.
36.
In continuation, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract payable by the Respondent to the Claimant
Player A, Country B / Club C, Country D
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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 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.
37.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of contract.
In this regard, the Chamber established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
38.
As a consequence, the 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 DRC recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable. Therefore,
other objective criteria may be taken into account at the discretion of the deciding
body. In this regard, the DRC emphasized beforehand that each request for
compensation for contractual breach has to be assessed on a case-by-case basis
taking into account all specific circumstances of the respective matter.
39.
In order to estimate the amount of compensation due to the Claimant in the present
case, the Chamber first turned its attention to the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract(s), which
criterion was considered to be essential. The DRC deemed it important to emphasise
that the wording of art. 17 par. 1 of the Regulations allows it to take into account
both the existing contract and the new contract, if any, in the calculation of the
amount of compensation.
40.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as from
its date of termination with just cause by the Claimant, i.e. 5 April 2018, until 31
December 2018, and concluded that the Claimant would have received USD 14,625
in total as remuneration had the contract been executed until its expiry date.
Consequently, the Chamber concluded that the amount of USD 14,625 serves as the
Player A, Country B / Club C, Country D
Page 16 of 19
basis for the final determination of the amount of compensation for breach of
contract in the case at hand.
41.
In continuation, the Chamber 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 able 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
termination of contract with just cause in connection with the player’s general
obligation to mitigate his damages.
42.
The Chamber recalled that, on 25 July 2018, the Claimant signed an employment
contract with the club of Country G, Club H, valid as from 1 July 2018 until 31 June
2020. According to this employment contract, the Claimant was to receive within the
relevant period of time a signing-on fee of 150,000 in the currency of Country G by
1 August 2018 and a net salary of 17,000 in the currency of Country G per month
payable on the 30th day of each month.
43.
The Chamber thus established that between 5 April 2018 and 30 June 2018, during
which the Claimant would have been entitled to receive contractual payments in the
amount of USD 4,875 from the Respondent, the Claimant was unemployed.
Consequently, the DRC determined that for the period between 5 April 2018 and 30
June 2018, the Claimant is entitled to compensation in the amount of USD 4,875.
44.
In continuation, the DRC established that between 1 July 2018 and 31 December
2018, the Claimant was able to earn an income of approx. USD 23,053 at his new
club.
45.
Consequently, the Dispute Resolution Chamber decided that, even though the
Respondent is considered liable for the breach of the relevant employment contract,
the Claimant did not suffer any financial loss from the violation of the contractual
obligations by the Respondent for the period as from 1 July 2018 to 31 December
2018. Therefore, the Chamber decided that compensation for breach of contract in
the matter should only be awarded to the Claimant as from 5 April 2018 until 30
June 2018. Consequently, the Dispute Resolution Chamber determined that the total
amount of compensation due to the Claimant is USD 4,875.
46.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to
mitigate his damage, the Chamber decided that the Respondent must pay the
amount of USD 4,875 to the Claimant as compensation for breach of contract.
Player A, Country B / Club C, Country D
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47.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 16 April 2018, until
the date of effective payment.
48.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
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
16,755 plus interest at the rate of 5% p.a. until the date of effective payment as
follows:
a. 5 % p.a. on the amount of USD 25 as from 31 May 2017;
b. 5 % p.a. on the amount of USD 25 as from 1 July 2017;
c. 5 % p.a. on the amount of USD 25 as from 31 July 2017;
d. 5 % p.a. on the amount of USD 25 as from 31 August 2017;
e. 5 % p.a. on the amount of USD 25 as from 1 October 2017;
f. 5% p.a. on the amount of USD 225 as from 31 October 2017;
g. 5% p.a. on the amount of USD 225 as from 1 December 2017;
h. 5% p.a. on the amount of USD 225 as from 31 December 2017;
i. 5% p.a. on the amount of USD 625 as from 31 January 2018;
j. 5% p.a. on the amount of USD 1,625 as from 1 March 2018;
k. 5% p.a. on the amount of USD 12,000 as from 18 March 2018;
l. 5% p.a. on the amount of USD 1,625 as from 31 March 2018;
m. 5% p.a. on the amount of USD 80 as from 16 April 2018.
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 4,875 plus 5% interest p.a. as from 16 April 2018 until the date of effective
payment.
4.
In the event that the amounts plus interest due to the Claimant in accordance with
the above-mentioned points 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.
Player A, Country B / Club C, Country D
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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 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 (CAS)
Avenue de Beaumont 2
CH-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:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
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