Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 8 December 2022
regarding an employment-related dispute concerning
the player A
BY:
Lívia SILVA KÄGI (Brazil), Acting Deputy Chairperson
José Luis ANDRADE (Country E), member
Michele COLUCCI (Italy), member
CLAIMANT / COUNTER-RESPONDENT:
Player A, Country A
Represented by
RESPONDENT / COUNTER-CLAIMANT
Club B, Country B
Represented by
INTERVENING PARTY
Club C, Country C
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I. Facts of the case
1. On 4 May 2021, the club of country B, Club B, and the Player A of country A, signed an
employment contract valid as from 1 July 2021 until 30 June 2023 (i.e. 24 months).
2. On 16 August 2021, the parties also signed an employment contract with the letterhead of
the club, with the same financial conditions as the original contract.
3. According to art. 5.1 par and 2 of the contract, the player was entitled to the following
amounts, net of any taxes:
- Monthly salary: EUR 83,333;
- Sign on fees: EUR 200,000 due on 1 July 2021 and EUR 200,000 on 1 January 2022.
4. Art. 12 of the contract (club letterhead version) stipulated the following:
“2. If either Party terminates the Contract with just cause, following amount will have to be paid:
(….) If there is no agreement on the amount, compensation for breach of contract is payable in
accordance with Art. 17 of the FIFA Regulations.
3. The Club shall not terminate the contract due to the Player sustaining an injury during play or
training
4 . The validity of the Contract may not be made subject to a successful medical examination and
/ or grant of a work permit”.
5. On 15 September 2021, the player was injured (“contusion at the level of the outer ribs of the
left knee”)
6. On 18 September 2021, the player was injured once again during a friendly match.
7. The player suffered a new injury on 29 March 2022.
8. On 12 July 2022, the club sent a letter to the player indicating inter alia, the following:
“55 – To sum up, the player was injured several times, and the Club notices that he was treated
greatly by
its professional medical staff , and they always made their efforts towards him to retrieve him well.
56 - However, the player refused all times to be treated by them and he insisted to be treated
outside Country B.
57 - So, he went out to Country D and Country E to benefit medical treatments there.
58 - In all, when he came back, he was relapsed.
(…)
65 - During what was explained above, the player benefited from high salaries from the club, in
which he did not really deserve it, because he played just for few minutes during matches of that
sports season in Club B paid exorbitant costs.
(…)
the Club informs the Player about its intention to terminate the contract with just cause based in
the fact that the player’s medical status is so essential to the employment relationship that it
cannot be expected from the employer to execute the contract.”
9. On 20 July 2022, the player, via his legal representative, sent a letter to the club, requesting
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to confirm within 24 hours whether it had terminated the contract.
10. On 21 July 2022, the legal representative of the player sent a letter expressing that, in view
of the lack of reply from the club, he “must assume for the time being that the Club has indeed
terminated [the contract]”.
11. On 28 July 2022, the club sent a termination letter to the player indicating the following:
“To sum up, the player was injured several times, and the Club notices that he was treated greatly
by its professional medical staff, and they always made their efforts towards him to retrieve him
well.
(…)
However, the player refused all times to be treated by them and he insisted to be treated outside
Country B, which can be considered a violation of the obligations from the player to the club
(…)
the Club is entitled to terminate the contract with the player with just cause, based in the fact that
the player’s medical status is so essential to the employment relationship that it cannot be
expected from the employer to execute the contract.”
12. On 7 September 2022, the player concluded an employment contract with the club of
Country C, Club C, valid as from the date of signature until 31 May 2023 (with an extension
option for one additional year).
13. Accordingly, the player was entitled to EUR 40,000 net for the season 2022-2023.
II. Proceedings before FIFA
14. On 12 August 2022, the player Player A lodged a claim before for outstanding remuneration
and breach of contract without just cause and requested the payment of the following
amounts:
- EUR 1,225,266 net as outstanding remuneration, broken down as follows:
- EUR 749,997 (outstanding salaries in the amount of EUR 83,333 each for the months of
July, August, September, November, December 2021, and January, April, May, June 2022);
- EUR 75,269 (the outstanding salary for 28 days in July 2022, i.e. until the Employment
Contract was terminated by the Club on 28 July 2022);
- sign-on bonus of EUR 200,000 that fell due on 1 July 2021;
- sign-on bonus of EUR 200,00 that fell due on 1 January 2022.
- EUR 924,727 as compensation
- Procedural costs, to the extent that any are payable, by the Respondent.
15. The player requested 5% interest p.a. as from the due dates.
16. The player explained that his claim “is a very straightforward one, as the following principal facts
of the case are not in dispute between the Parties”, particularly as follows:
- the Club only paid three of the owed twelve instalments of his monthly salary of EUR 83,333
and didn’t pay either of the two sign-on bonuses,
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- the Player suffered some injuries during the 2021-22 season,
- the Club terminated the contract for the sole reason that he had been injured for some
matches.
17. In its reply, the Respondent considered that the claim “is based in incorrect facts and legal
grounds.”
18. However, the Respondent acknowledged that it terminated the contract since “the player's
medical status is so essential to the employment relationship that it cannot be expected from the
employer to execute the contract.”
19. The Respondent argued that “the player was injured several times, and [that] he was treated
greatly by (…) [the] professional medical staff [of the club], and they always made their efforts
towards him to retrieve him well.”
20. Yet, according to the Respondent, the player insisted to be treated outside of Country B, and
therefore pursued his treatment in Country D and in Country E.
21. The club considered that the player “benefited from high salaries from the club, in which he did
not really deserve it, because he played just for few minutes.”
22. The club lodged a “counterclaim” against the player and requested the payment of “EUR
924,727, plus interest at 5% rate since 28 July 2022 until effective payment for the termination of
the contract with just cause by the Club, for the residual value of the contract”.
23. In his replica, the Claimant considered that the Counterclaim should be dismissed in its
entirety because the Employment Contract was terminated by Club B without just cause, and
referred to his initial arguments.
24. The player further acknowledged that, on 22 August 2022, he received the outstanding
amount of EUR 899,670, while explained that the club still owes him EUR 325,596.
25. In its duplica, the Respondent insisted in its previous arguments.
26. In view of the above, the club considered that the Player shall be ordered to pav
compensation “for unilateral and premature termination of the Employment Contract” with just
cause in the amount of EUR 924,727, plus interest at 5% rate since 28 July 2022 until the date
of effective payment.
27. Moreover, the club argued that “the Player has a massive Medical Report of Injuries that prevent
him to comply with his contractual obligations towards the Club.”
28. After being invited to do so, the player’s new club, Club C, declared that “negotiations between
the Player and Club C were made after the Player's contract with Club B expired.”
III. Considerations of the Dispute Resolution Chamber
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a. Competence and applicable legal framework
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 presented to FIFA on 12 August 2022 and submitted
for decision on 8 December 2022. Taking into account the wording of art. 34 of the
October 2022 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players October 2022 edition), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
player from Country A and a club from Country B, which also concerns a club from
Country C.
3.
Subsequently, 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 (October 2022 edition),
and considering that the present claim was lodged on 12 August 2022, the October 2022
edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Burden of proof
4.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within the Transfer Matching System (TMS).
c. Merits of the dispute
5.
Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and 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.
i. Main legal discussion and considerations
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6.
The foregoing having been established, the Chamber moved to the substance of the
matter. In particular, the Chamber noted that the parties concluded an employment
contract valid as from 1 July 2021 until 30 June 2023.
7.
Subsequently, the Chamber noted that the player lodged a claim against Club B for breach
of contract without just cause, arguing that, on 28 July 2022, the club unilaterally
terminated the contract.
8.
On the other hand, the Chamber also acknowledged the position of B, which
fundamentally rejected the player’s position. The Chamber also noted that the club
lodged a counterclaim against the player.
9.
Given the dissent between the parties, the Chamber considered that the first legal issue
to be established is to determine which party was in contractual breach, if any, and the
consequences thereof.
10. First of all, the Chamber first noted that the club terminated the contract on 28 July 2022,
although already on 12 July 2022 it sent a letter stating its intention to terminate it due to
the player’s injuries.
11. Moreover, in relation to the termination letter of 28 July 2022, the Chamber observed
that in said correspondence club argued that the player refused all times to be
treated by them and he insisted to be treated outside Country B.
12. However, in relation to said remark, the Chamber observed that it contradicts the
contents of the correspondence of 12 July 2022. Under any circumstance, the Chamber
also understood that in any case, the club did not prove that the player was not allowed
to continue with his treatment abroad.
13. In fact, the Chamber observed that, in this same letter, the club expressed what can be
understood as an abusive behaviour towards the player, as it stated the following: “the
player benefited from high salaries from the club, in which he did not really deserve
it, because he played just for few minutes during matches of that sports season in Club B
paid exorbitant costs.” (cf. point I. 8 above).
14. On this note, the Chamber deemed to be pertinent to refer to the contents of art. 18 par.
4 of the Regulations, which establish that a club cannot terminate a contract due to a
player’s injury. In addition, the Chamber also observed that this provision is also
replicated in the employment contract (art. 12 par. 4).
15. Thereby, by unilaterally terminating the contract on 28 July 2022 fundamentally due to
the player’s injury, the Chamber established that the club did not only breach art. 12 par.
4 of the contract, but also the mandatory provisions of art. 19 par. 4 of the Regulations.
16. Given the above, the Chamber established that the player is entitled to compensation.
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ii. Consequences
17. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
18. However, before entering into the calculation of any payable compensation, the Chamber
underlined that the player is entitled to his outstanding remuneration up until the date
of termination of the contract.
19. In establishing the amount of outstanding remuneration, the Chamber took note of the
claim of the player, while also observed that the club did not provide any evidence
supporting any partial payment.
20. The Chamber observed that the outstanding remuneration at the time of termination (i.e.
until 28 July 2022), are equivalent to the following amounts:
- EUR 749,997 (outstanding salaries in the amount of EUR 83,333 each for the
months of July, August, September, November, December 2021, and January, April,
May, June 2022);
- sign-on bonus of EUR 200,000 that fell due on 1 July 2021;
- sign-on bonus of EUR 200,00 that fell due on 1 January 2022
Total: EUR 1,149,997
21. In relation to said amounts, the Chamber further observed that they were payable net of
any taxes.
22. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination,
i.e. EUR 1,149,997 net, as explained in the previous paragraph.
23. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from the due dates until the date of
effective payment.
24. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, 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 player under the existing
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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.
25. 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.
26. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
27. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 999,996 net (i.e. salaries from July 2022 until 30 June
2023 = 83,333*12) serves as the basis for the determination of the amount of
compensation for breach of contract.
28. 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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
29. Indeed, the player found employment with Club C. In accordance with the pertinent
employment contract, which was in principle valid as from 7 September 2022 until 31 May
2023 the player was entitled to approximately EUR 40,000 net per season. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of EUR
40,000 net.
30. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 959,996 net to the player (i.e. EUR 999,996 net minus EUR 40,000), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
31. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
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compensation at the rate of 5% p.a. as of 12 August 2022 until the date of effective
payment.
32. In addition, as a logical consequence of all of the above, the Chamber rejected the
“counterclaim” of Club B.
iii. Compliance with monetary decisions
33. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24
par. 1 and 2 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.
34. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
35. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the 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 immediately
effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
36. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form.
37. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
38. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were
to be imposed on the parties.
39. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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40. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the player, Player A, is partially accepted.
2.
The club, Club B, has to pay to the player, the following amounts:
- EUR 1,149,997 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount EUR 83,333 of as from 1 August 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 83,333 of as from 1 September 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 83,333 of as from 1 October 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 83,333 of as from 1 November 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 83,333 of as from 1 December 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 83,333 of as from 1 January 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 83,333 of as from 1 May 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 83,333 of as from 1 June 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 83,333 of as from 1 July 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 200,000 of as from 2 July 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 200,000 of as from 2 January 2022 until the date of effective payment;
- EUR 959,996 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 12 August 2022 until the date of effective payment.
3.
Any further claims of the player are rejected.
4.
The counterclaim of Club B is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1.
2.
Club B shall be banned from registering any new players, either nationally or internationally, up until the due amount
is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.
The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment
(including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the player in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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