Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 6 December 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Eirik Mons en (Norway), member
Jérôm e Perlem uter (France) member
on the matter between the player,
Play er A, Country B
as Claimant / Counter-Respondent
and the club,
Club C, Country D
as Respondent / Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 26 January 2018, the Player of Country B, Player A (hereinafter: the Claimant / CounterRespondent), concluded an employment contract (hereinafter: the contract) with the Club of
Country D, Club C (hereinafter: the Respondent / Counter-Claimant), valid as from the date
of signature until 31 May 2019.
2.
In this regard, the contract stipulated that the Claimant / Counter-Respondent was entitled
to the following remuneration:
USD 70,000, as “down payment”, payable on 26 January 2018;
USD 200,000, payable in monthly instalments of USD 13,333 on the 30th day of each month,
from February 2018 until May 2019, except for the month of June 2018 (i.e. 15 instalments
in total).
3.
Moreover, according to the contract, the Claimant / Counter-Respondent was entitled to the
following “fringe benefits”:
“The [Respondent / Counter-Claimant] shall provide the [Claimant / Counter-Respondent] two
return Country D Country B Economy class tickets subject to the condition that the [Claimant
/ Counter-Respondent] requested such tickets timely.
The payments of the house and the payments of the rental car that the [Claimant / CounterRespondent] will benefit throughout the period of the (…) contract is paid and included
within the above mentioned monthly salaries and therefore the [Claimant / CounterRespondent] cannot demand these fringe benefit payments from the [Respondent / CounterClaimant at any time].”
4.
In addition, the contract stipulated the following:
“2. The procedures and principles of the Regulations of the Football Federation of Country D
the Status and Transfer of the Player will be applicable in case of the termination of this
Agreement”.
5.
On 27 June 2018, the Claimant / Counter-Respondent lodged a claim before FIFA against the
Respondent / Counter-Claimant and requested the payment of a total amount of USD
280,000, detailed as follows:
USD 53,332, as outstanding salaries;
USD 146,666.63, as residual value of the contract;
USD 79,999.98 as “additional compensation”, corresponding to six months of salaries and
in accordance with the jurisprudence of the Court of Arbitration for Sport (CAS).
6.
Moreover, the Claimant / Counter-Respondent stated that he had to pay “the attorney’s fees”
for an amount of “10% of the sum herein claimed”, and that this should be taken into
consideration for the amount of due compensation.
7.
According to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant failed
to pay him his salaries between February 2018 until 30 May 2018 (i.e. 4 months). In addition,
the Claimant / Counter-Respondent explained that he only received the amount of USD
70,000, corresponding to the “down payment” stipulated in the contract (cf. point I. 2 above).
8.
In this respect, the Claimant / Counter-Respondent explained that he sent default notices to
the Respondent / Counter-Claimant on 5 May 2018 and 1 June 2018.
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Player A, Country B / Club C, Country D
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9.
More specifically, the Claimant / Counter-Respondent requested the amount of USD 39,999
in his default notice of 5 May 2018 and granted 48 hours to the Respondent / CounterClaimant “to cure its default”, and subsequently requested the amount of USD 53,332 in his
default notice dated 1 June 2018, granting a deadline of 24 hours to settle its debt.
10. Within this context, the Claimant / Counter-Respondent explained that he did not receive any
reply from the Respondent / Counter-Claimant in relation to the default notices.
11. As a result, the Claimant / Counter-Respondent explained that, on 4 June 2018, he sent a
termination letter to the Respondent / Counter-Claimant and to the Football Federation of
Country D.
12. Furthermore, the Claimant / Counter-Respondent detailed that he “stayed full time at an
hotel room because the [Respondent / Counter-Claimant] did not rent the house (…); never
received the car from the [Respondent / Counter-Claimant] (and never received the refund
regarding the tax expenses)” and that he ”paid from his own money the return ticket to
Country B” for the amount of USD 1,453.39.
13. On 27 August 2018, the Respondent / Counter-Claimant replied to the claim and
simultaneously lodged a counterclaim against the Claimant / Counter-Respondent.
14. In this respect, the Respondent / Counter-Claimant acknowledged that it did not pay the
Claimant / Counter-Respondent’s salaries, but considered that he “was not totally suffering
from any kind of economic harm since the down payment amount (i.e. USD 70.000) was
higher than the sum of the non-paid salaries (i.e. USD 53.332)”.
15. As to the default notices, the Respondent / Counter-Claimant considered that the default
notices provided by the Claimant / Counter-Respondent do not satisfy the requirements of
either FIFA or the Football Federation of Country D. In particular, the Respondent / CounterClaimant argued that the Claimant / Counter-Respondent failed to give a deadline of 15 days
to settle the outstanding amounts. In relation to said requirements, the Respondent /
Counter-Claimant referred to art. 2 of the contract, according to which the “procedures and
principles of the Regulations of the Football Federation of Country D the Status and Transfer
of the Claimant / Counter-Respondent” must be taken into account for the termination of
the contract (cf. point I. 4 above).
16. As a result, the Respondent / Counter-Claimant considered that the termination of the
contract was without just cause, and requested the payment of compensation from the
Claimant / Counter-Respondent. In particular, the Respondent / Counter-Claimant requested
the payment of the amount of USD 146,663, corresponding to the residual value of the
contract, as well as USD 39,999 as “additional compensation” and corresponding to three
months of salaries.
17. In his replica, the Claimant / Counter-Respondent underlined that the Respondent / CounterClaimant did not deny the existence of the claimed outstanding salaries, and considered that
the Respondent / Counter-Claimant’s counterclaim is only based on the deadlines established
in his default notices. In this respect, the Claimant / Counter-Respondent explained that the
contract does not stipulate particular deadlines in relation to its termination.
18. As a result, the Claimant / Counter-Respondent understood that he had no alternative than
complying with the “general rules”, according to which “if the club unlawfully failing to pay
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Player A, Country B / Club C, Country D
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a player for at least two monthly salaries on their due dates, the player is entitled to request
the early termination by just cause.”
19. In this respect, the Claimant / Counter-Respondent explained that he sent his first default
notice on 5 May 2018, “after 4 months of overdue payments” and that, as a proof of good
faith, he sent an additional notice on 1 June 2018. Thus, the Claimant / Counter-Respondent
considered that it is “unquestionable” that he granted more than 15 days to the Respondent
/ Counter-Claimant before terminating the contract.
20. As final comments, the Respondent / Counter-Claimant confirmed its previous arguments and
insisted that the Claimant / Counter-Respondent terminated the contract without just cause.
21. In this respect, the Respondent / Counter-Claimant insisted that the Claimant / CounterRespondent failed to meet the Regulations of the Football Federation of Country D or FIFA,
as he did not grant a sufficient deadline in his default notices. In articular, the Respondent /
Counter-Claimant referred to art. 2 of the “Regulations of the Football Federation of Country
D”, according to which, in case of default in the payment of his remuneration, a player “must
notify the club via public notary and grant a deadline of 30 days for the club to pay”, and
that “the player may only terminate his Contract following 7 days as of from the end of the
deadline”.
22. Finally, and after being invited to do so, the Claimant / Counter-Respondent informed FIFA
that he did not conclude any new contract following the termination of the contract.
II. Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber)
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 June 2018. Consequently, the 2018
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at
hand (cf. art. 21 of the 2018 edition 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 2 in combination with art. 22 lit. b
of the Regulations on the Status and Transfer of Players, (edition June 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.
The competence of the Chamber having been established, the Chamber analysed which
edition of the Regulations on the Status and Transfer of Players 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 June 2018), and
considering that the present matter was submitted to FIFA on 27 June 2018, the June 2018
edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
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Player A, Country B / Club C, Country D
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4.
Having established the foregoing, and entering into the substance of the matter, the
Chamber continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter. 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 Chamber acknowledged that, on 26 January 2018, the parties to the
dispute concluded an employment contract valid as from the date of signature until 31 May
2019 and that, according to said contract, the Claimant / Counter-Respondent was entitled to
the following remuneration:
USD 70,000, as “down payment”, payable on 26 January 2018;
USD 200,000, payable in monthly instalments of USD 13,333 on the 30 th day of each
month, from February 2018 until May 2019, except for the month of June 2018 (i.e. 15
instalments in total).
6.
Subsequently, the Chamber noted that the Claimant / Counter-Respondent lodged a claim
against the Respondent / Counter-Claimant, maintaining that, after having put the
Respondent on default, he had terminated the employment contract on 4 June 2018, by
means of a termination letter. In particular, the Chamber noted that, according to the
Claimant / Counter-Respondent, the Respondent / Counter-Claimant failed to pay his his
salaries between February 2018 until 30 May 2018 (i.e. 4 months), for a total debt of USD
53,332. Consequently, the Claimant asks to be awarded his outstanding dues as well as the
payment of compensation for breach of the employment contract.
7.
In reply to the Claimant / Counter-Respondent’s request, the Chamber noted that the
Respondent / Counter-Claimant simultaneously lodged a counterclaim against the Claimant /
Counter-Respondent, arguing that that the default notices provided by the Claimant /
Counter-Respondent do not satisfy the requirements of either FIFA or the Football Federation
of Country D. In particular, the Chamber noted that, according to the Respondent / CounterClaimant, the player failed to give a deadline of 15 days to settle the outstanding amounts.
As a result, the Chamber understood that, according to the Respondent / Counter-Claimant,
the “procedures and principles of the Regulations of the Football Federation of Country D
the Status and Transfer of the Player” must be taken into account for the termination of the
contract.
8.
Consequently, the Chamber understood that the main legal issue at stake is to determine
whether the contract had been terminated by the Claimant / Counter-Respondent with or
without just cause.
9.
In reference to the response provided by the Respondent / Counter-Claimant, the Chamber
referred to the facts as acknowledged between the parties, and noted that, on 5 May 2018,
the Claimant / Counter-Respondent requested the payment of an amount corresponding to
three months of salaries, and that he only terminated the contract a month later, on 4 June
2018. Thus, the Chamber concurred that, regardless of any other formality, the Claimant /
Counter-Respondent granted, de facto, an entire month for the Respondent / CounterClaimant to settle its debt.
10. As a result, the Chamber decided to dismiss the Respondent / Counter-Claimant’s allegations
as to the formal aspects of the termination of the contract.
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Player A, Country B / Club C, Country D
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11. Thereafter, the Chamber turned its attention as to the substantive aspects of the termination
of the contract, i.e. as to whether the arguments brought by the Claimant / CounterRespondent could justify a premature termination of the contract.
12. In this respect, the Chamber noted that, at the moment of the termination of the contract,
the Respondent / Counter-Claimant failed to pay him a debt corresponding to at least 4
months of salaries.
13. Moreover, the Chamber noted that the Respondent / Counter-Claimant did not
fundamentally contest the existence of the aforementioned debt, but rather provided a set
of explanations on why it was apparently not settled.
14. In particular, the Chamber observed that the Respondent / Counter-Claimant alleged that the
“was not totally suffering from any kind of economic harm since the down payment amount
(i.e. USD 70.000) was higher than the sum of the non-paid salaries (i.e. USD 53.332)”.
15. In relation to said allegation, the Chamber noted that the Respondent / Counter-Claimant
indeed confirmed its debt, and wished to emphasize that it does not constitute a valid reason
to justify the non-payment of the Claimant / Counter-Respondent’s remuneration, as
contractually agreed. Indeed, the fact that the Claimant / Counter-Respondent was allegedly
in no “economic harm” is irrelevant when determining whether the Respondent / CounterClaimant actually complied with its contractual obligations which, as explained above, it did
not.
16. Therefore, in accordance with its longstanding jurisprudence in this regard, the Chamber
considered that, in principle, the reasons provided by the Claimant / Counter-Respondent are
sufficient to justify an early termination of the contract with just cause.
17. As a result, the Chamber concluded that, as of 9 July 2018, the Respondent / Counter-Claimant
failed to pay without any valid justification the Claimant / Counter-Respondent’s his salaries
between February 2018 until 30 May 2018 (i.e. 4 months), for a total debt of USD 53,332.
18. Therefore, in application of the principle of pacta sunt servanda, the Chamber established
that the Respondent / Counter-Claimant must pay the amount of USD 53,332 to the Claimant
/ Counter-Respondent as outstanding salaries.
19. Subsequently, the Chamber observed that, taking into consideration art. 17 par. 1 of the
Regulations, in addition to his outstanding dues, the Claimant / Counter-Respondent is
entitled to receive from the Respondent / Counter-Claimant compensation for breach of
contract on the basis of the relevant employment contract.
20. In continuation, the Chamber outlined that, in accordance with said provision, 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 / Counter-Respondent 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.
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Player A, Country B / Club C, Country D
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21. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in
the event of breach of contract. In this regard, the members of the Chamber noted that no
such clause appeared in the present matter.
22. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant / CounterRespondent 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. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body.
23. Bearing in mind the foregoing as well as the claim of the Claimant / Counter-Respondent, the
Chamber proceeded with the calculation of the monies payable to the Claimant / CounterRespondent under the terms of the employment contract until 31 May 2019 (i.e. the original
date of termination of the contract). In this regard, the members of the Chamber observed,
as detailed above, that under the contract, as from the date of termination of the contract
until its original expiration date, the Claimant / Counter-Respondent would have received the
total amount of USD 146,663 (i.e. July 2018 until May 2019, 11*13,333)
24. Consequently, the Chamber concluded that the amount of USD 146,663 serves as the basis for
the determination of the amount of compensation for breach of contract.
25. In continuation, the Chamber verified as to whether the Claimant / Counter-Respondent 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 a player’s general obligation to mitigate his damages.
26. As a result, the members of the Chamber established that the amount due by the Respondent
/ Counter-Claimant as compensation corresponds to USD 146,663.
27. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant
/ Counter-Respondent’s request and that the Respondent / Counter Claimant must pay to the
Claimant / Counter-Respondent the amount of USD 146,663 as compensation for breach of
contract without just cause, which is considered by the Chamber to be a reasonable and
justified amount as compensation.
28. Moreover, the Dispute Resolution Chamber decided to reject the Claimant / CounterRespondent’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
29. Furthermore, taking into account the aforementioned considerations, the Chamber referred
to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the
pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of
the concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
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Player A, Country B / Club C, Country D
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30. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the Respondent / Counter-Claimant. More in particular,
the DRC pointed out that, against clubs, the sanction shall consist in a ban from registering
any new players, either nationally or internationally, up until the due amount is paid and for
the maximum duration of three entire and consecutive registration periods.
31. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
/ Counter Claimant does not pay the amount due to the Claimant / Counter-Respondent
within 45 days as from the moment in which the Claimant / Counter-Respondent, following
the notification of the present decision, communicates the relevant bank details to the
Respondent / Counter Claimant, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration
periods shall become effective on the Respondent / Counter-Claimant in accordance with art.
24bis par. 2 and 4 of the Regulations.
32. Finally, the Chamber recalled that the above-mentioned sanction will be lifted immediately
and prior to its complete serving upon payment of the due amounts, in accordance with art.
24bis par. 3 of the Regulations.
33. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant / Counter-Respondent are
rejected.
34. Moreover, as a logical consequence of the above-mentioned considerations, the Chamber
further established that the counterclaim of the Respondent / Counter-Claimant is rejected.
III. Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2. The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / Counter-Respondent,
outstanding remuneration in the amount of USD 53,332.
3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent,
compensation for breach of contract in the amount of USD 146,663.
4. Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant,
immediately and directly, preferably to the e-mail address as indicated on the cover letter of
the present decision, of the relevant bank account to which the Respondent / CounterClaimant must pay the amounts mentioned under points 2 and 3 above.
6. The Respondent / Counter-Claimant shall provide evidence of payment of the due amounts in
accordance with points 2 and 3 above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French, German,
Spanish).
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Player A, Country B / Club C, Country D
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7. In the event that the amounts due in accordance with points 2 and 3 above are not paid by
the Respondent / Counter-Claimant w ithin 45 day s as from the notification by the Claimant
/ Counter-Respondent of his bank details to the Respondent / Counter-Claimant, the
Respondent / Counter-Claimant shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the
Status and Transfer of Players).
8. The ban mentioned in point 7 above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
9. In the event that the aforementioned sums are still not paid by the end of the ban of three
entire and consecutive registration periods, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
10. The counterclaim of the Respondent / Counter-Claimant is rejected.
*****
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
Enclosed: CAS directives
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Player A, Country B / Club C, Country D
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