Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 December 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Damir Vrbanovic (Croatia), member
Philippe Piat (France), 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 arisen between the parties
I.
Facts of the case
1.
On 29 August 2013, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract) valid as of the date of signature
until 31 May 2016. On the same day, both parties also signed a private contract
(hereinafter: the agreement), valid as of the date of signature until 30 June 2016.
2.
According to the contract, the Claimant was entitled to receive the official
minimum wage. However, pursuant to clause 3.A of the agreement, the Claimant
was entitled to the following remuneration:
- 2013/2014 season: EUR 500,000 net payable as follows:
o EUR 125,000 payable on 1 January 2014;
o EUR 125,000 payable on 1 February 2014;
o EUR 62,500 payable on 1 March 2014;
o EUR 62,500 payable on 1 April 2014;
o EUR 62,500 payable on 1 May 2014;
o EUR 62,500 payable on 1 June 2014;
- 2014/2015 season: EUR 600,000 net payable in twelve equal monthly instalments;
- 2015/2016 season: EUR 600,000 net payable in twelve equal monthly instalments.
3.
In addition, clause 3.B of the agreement provides for further bonus payment.
4.
Furthermore, clause 3.A contains a stipulation which reads as follows: “
“In case of non-payment of two consecutives salaries in full or in part, the Player
should notify the club in writing. If the club should not pay the notified amount in
30 days starting from the date of the second unpaid salary, then the Player shall
have the right to unilaterally terminate the contract with just cause.
In this case, the player shall have the right to keep any and all amount received
from the club until the termination date.
In case of termination by the Player due to delay in payment by the Club, the
Player shall be entitled to receive as an indemnity due to the breach by the Club of
its payment obligations, all the amounts established in this Contract including the
payments due before and after the termination date, with this situation being
treated, as regards its consequences, as the same as that of the unilateral
termination without just cause on the part of the Club (…)”.
5.
The foregoing clause has to be read in combination with clause 3.F and provides
that “Pursuant to Article 17 of Regulations on Status and Transfer of Players of the
FIFA, if the Club decides to terminate this Contract unilaterally before the
Player A, country B / Club C, country D
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termination of its duration, the Club shall pay the Player all the salaries and
bonuses pending at the date of termination until 30 of June 2016. Under no
circumstance, the amount of the salaries resulting from the anticipated
termination of this Contract shall be under the figure that results from subtracting
from ONE MILLION AND SEVEN HUNDRED THOUSAND EUROS (1,700,000.00 €) net,
the net amount paid by the Club for salary, excluding bonuses; until the date of
this hypothetical termination. The amount to be paid resulting from the
anticipated termination shall be paid taken into consideration the tax residence of
the Player at the moment of termination. Upon termination by the Player this
Agreement as mention above and if the Player is employed by a new Club after
termination, then the salary and bones earned by the Player from the new club for
the period between the termination date and expiry date of this Agreement
(Reduction amount) will be deducted from the compensation to be paid by the
Club as calculated above and Club has right to claim back this Reduction Amount
from the Player before the judicial bodies. The player shall not be entitled to
receive any other compensation from the club.”
6.
The Claimant declared that on many occasions, as from 13 January 2014 until 7
February 2014, he put the Respondent in default of complying with its obligations.
7.
After the default notices having allegedly remained unanswered, on 8 February
2014, the Claimant terminated the contract in writing.
8.
On 27 February 2014, the Claimant lodged a claim before FIFA against the
Respondent for breach of contract requesting to be awarded the amount of EUR
3,541,666.66, plus 5% interest p.a. as of 8 February 2014 until the effective date of
payment, in accordance with clause 3.A in combination with clause 3.F of the
agreement.
9.
In his claim, the Claimant explains that on 6 January 2014, the Respondent
informed him of its economic distress and proposed him to hold a meeting to
discuss the issue. However, the Claimant sustains that in spite of having expressed
his willingness to discuss the issue, the Respondent did not follow up.
10.
According to the Claimant, both parties agreed that the first salary would be
delayed until the 2014 fiscal year, i.e. January 2014, for tax reasons. Therefore, the
Claimant stresses that since the Respondent failed to pay the salary provided for
January and February 2014, he remained unpaid for almost 6 months.
11.
Additionally, the Claimant asserts that as of 14 January 2014, i.e. the day after the
first default notice, the Respondent relegated him to the second team for
disciplinary reasons in violation of his right to be heard.
Player A, country B / Club C, country D
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12.
Subsequently, the Claimant maintains that the Respondent obliged him to return
the training clothes and that in several occasions, he was imposed to train alone.
Finally, the Claimant mentions that the Respondent intentionally failed to inform
him of the changes in the training schedule.
13.
Furthermore, the Claimant acknowledged that in order to comply with the
requirements provided by clause 3.A of the agreement, he should have waited for
at least “30 days starting from the date of the second unpaid salary”, i.e. until 3
March 2014, before terminating the contract, what he did not. Nevertheless, the
Claimant points out that the Respondent “humiliated, harassed and distressed
[him] in such a way that an additional 20 days in this situation was unstainable and
unnecessary.”
14.
Finally, the Claimant requests the Chamber to observe that he is a Tax Resident of
country B for the 2014 fiscal year and that therefore the rate of 52% in country B
should be taken into consideration to gross up the amount set in the clause 3.F.
15.
In spite of having been invited by FIFA to do so, the Respondent did not present
any reply to the Claimant’s claim.
16.
On 20 June 2014, the Claimant and the Spanish club, CD Tenerife, signed an
employment contract valid as of 1 July 2014 until 30 June 2016, according to which
the Claimant is entitled to a yearly remuneration of EUR 150,000.
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 27 February 2014. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 2014), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
Player A, country B / Club C, country D
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international dimension between a player from country B and a club from country
D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2012 and 2014), and considering that the present claim was lodged on 27
February 2014, the 2012 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 doing so it
started by acknowledging the facts as well as the documentation contained in the
file. However, the Chamber emphasised that in the following considerations it will
refer only to facts, arguments and documentary evidence which it considered
pertinent for the assessment of the matter at hand. In this regard, the members of
the Chamber acknowledged that on 29 August 2013, the parties concluded an
employment contract as well as an additional agreement, valid as from the date of
signature until 30 June 2016.
5.
In continuation, the members of the Chamber observed that the Claimant lodged
a claim against the Respondent maintaining that he had terminated the
employment contract with just cause on 8 February 2014, after having put the
Respondent in default on several occasions between 13 January 2014 and 7
February 2014, insofar as the Respondent allegedly failed to pay his remuneration
since the beginning of the contract.
6.
The DRC further noted that the Respondent, for its part, failed to present its
response to the claim of the Claimant, in spite of having been invited to do so.
Consequently, the Chamber deemed that the Respondent had renounced to its
right of defence and, thus, had accepted the allegations of the Claimant.
7.
As a consequence of the aforementioned consideration, the members of the
Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a
decision shall be taken upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
8.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute was to determine whether the contract had been terminated
by the Claimant on 8 February 2014 with or without just cause. The DRC also
underlined that, subsequently, it would be necessary to determine the financial
Player A, country B / Club C, country D
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consequences for the party that is to be held liable for the early termination of the
pertinent employment contract.
9.
In order to do so, the Chamber, first and foremost, recalled the content of clause
3.A of the agreement, which stipulates that “in case of non-payment of two
consecutives salaries in full or in part, the Player should notify the club in writing.
If the club should not pay the notified amount in 30 days starting from the date of
the second unpaid salary, then the Player shall have the right to unilaterally
terminate the contract with just cause”. In this respect, the members of Chamber
deemed it fit to outline that said clause was included in the contract as a result of
mutual consent of the parties and, therefore its legal consequences were accepted
by the Claimant.
10.
Subsequently, the DRC observed that the parties mutually agreed in the contract
that the first payment of salary would be delayed to the fiscal year 2014, i.e.
January 2014. In addition, the Chamber took note that it is uncontested that when
the Claimant terminated the contract, two consecutive salaries, i.e. January and
February 2014, were outstanding. However, in this regard, the Chamber stressed
that the salary for February 2014 had only fallen due on 1 February 2014, i.e. 7
days prior to the termination. In view of the foregoing, the members of the
Chamber concurred that the Claimant did not respect the 30-day grace period
granted to the Respondent by means of the agreement and therefore did not
terminate the contract in accordance with clause 3.A of the agreement.
11.
In addition, whilst referring to art. 12 par. 3 of the Procedural Rules, according to
which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof, the Chamber deemed necessary to highlight that the Claimant
had not presented substantial evidence proving that he had been “humiliated,
harassed and distressed”.
12.
Consequently, the DRC concluded that clause 3.A of the agreement, as a valid
clause established by the free will of the parties, is applicable to the matter at
hand and, therefore, the allegations of the Claimant cannot be considered as a
valid cause to justify the unilateral termination of the contract by the Claimant on
8 February 2014.
13.
Having established the above, the DRC focussed its attention on the consequences
resulting from the early termination of the employment contract by the Claimant.
Taking into consideration art. 17 par. 1 of the Regulations, the Dispute Resolution
Chamber decided that the Claimant is not entitled to receive from the Respondent
any compensation for breach of contract.
Player A, country B / Club C, country D
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14.
The members of the Chamber then reverted to the Claimant’s financial claim for
outstanding salaries. In this regard, the DRC recalled that it is uncontested that at
the time of the termination, the salaries for January and February 2014 in the
amount of EUR 250,000 had remained outstanding and therefore, in accordance
with the principle of pacta sunt servanda, held that the Respondent should be
responsible to pay them to the Claimant.
15.
Regarding the Claimant’s claim to be awarded with gross amounts in accordance
with the Spanish tax law, the Chamber highlighted that the Claimant failed to
submit evidence in this regard and referring one more time to art. 12 par. 3 of the
Procedural Rules, decided to reject this petition.
16.
Consequently and taking into account all the above-mentioned facts and
considerations, the Chamber concluded that the Respondent is liable to pay to the
Claimant an amount of EUR 250,000 as outstanding salaries.
17.
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 EUR
250,000 as from 8 February 2014 until the date of effective payment.
18.
Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
*****
III.
Decision of the 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, the amount of EUR 250,000 plus 5% interest
p.a. on said amount as from 8 February 2014 until the date of effective payment.
3.
In the event that the abovementioned amount plus interest is not paid 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 art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS, a
copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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