Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 January 2020,
in the following composition:
Om ar Ongaro (Italy), Deputy Chairman
S tefano S artori (Italy), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
Jaim en Jav ier Ay ov i Corozo, Ecuador
represented by Mr Jaime Castillo
as Claimant
against the club,
S habab Al Ahli Dubai Club, United Arab Emirates
represented by Mr Rafael Quieroz Botelho
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 18 July 2018, the Ecuadorian player Jaimen Javier Ayovi Corozo (hereinafter:
the player or the Claimant) concluded an employment contract (hereinafter: the
contract) with the Emirati club, Shabab Al Ahli Dubai Club, valid as from 18 July
2018 until 30 June 2020.
2.
According to the contract, the club undertook to pay the player the following
monies:
- EUR 200,000 “after receiving the ITC”;
- EUR 100,000 payable until 31 July 2018;
- EUR 170,000 as monthly salary between August 2018 and May 2019 (10
payments);
- EUR 300,000 payable on 31 July 2019;
- EUR 170,000 as monthly salary between August 2019 and May 2020 (10
payments).
3.
In addition, the contract contains the following clause: “The winning rewards shall
be paid in accordance with the [club’s] rewards regulations”.
4.
Art. 7 of the contract , titled “Information of termination by the parties from
01/04/2019 until 30/04/2019”, establishes, inter alia, the following: “The parties
agreed that each party is entitled to request termination of the contract
individually as from 30/06/2019 by informing the other about the decision from
01/04/2019 up to 30/04/2019 regarding the termination. In this case the party
desired to terminate the contract shall pay to the other party 300,000 Euro. The
two parties acknowledged that this amount will be enough compensation for
termination of the contract before its duration as well as the parties acknowledged
that they will not request additional or reducing the amount legally or financially
for termination of the contract. For avoidance of doubt, in the case that a
notification is presented to one party, the employment relationship must exist up
to 30/06/2019, i.e., the Player and the club must fulfill them contractual obligations
hereby assumed plus compensate the other with the amount of 300,000 Euro. In
case that no notification or communication is delivered until 30/04/2019 this
contract shall remain valid and binding until 30/06/2020.”
5.
Art. 9.15 of the contract reads as follows: “In the event of an unlawful breach by
the Player of this Agreement the Player and the Club acknowledge and agree that
the market value of the Player at the time of such unlawful breach, as determined
by the Dispute Resolution Chamber of FIFA, shall be used (in addition to the
existing criteria as set out at Article 17 of the FIFA regulations to the Status and
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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Transfer of Players) (as amended) when calculation the compensation due and
payable by the Player to the Club for the Player’s unlawful breach of Agreement.
The Player agrees and acknowledges that such market value represents the actual
loss sustained by the Club and the true and fair cost to the Club of replacing the
Player as at the time of his unlawful breach not at the date this Agreement was
entered into. Nothing in this Agreement shall infer or imply an acceptance by the
Club of the Players ability to terminate this Agreement.”
6.
On 29 April 2019, the club sent a letter to the player terminating the contract with
effect as of 30 June 2019 in accordance with art. 7 of the contract.
7.
On 10 July 2019, the player sent a letter to the club rejecting its termination since
the latter failed to comply with one of the conditions, i.e. to pay the compensation
of EUR 300,000. Therefore, the player argued that the contract would run until 30
June 2020 and offered his services to the club. Further, he put the club in default
of EUR 170,000 for the salary of May 2019.
8.
On 15 July 2019, the club sent a letter to the player insisting that the contract was
duly terminated with its correspondence dated 29 April 2019 and that it has not
“denied you the right to be paid the 300,000 euro that should take place as soon
as you duly finalise the logistical needs with the Club in accordance with the
applicable rules and regulations before the UAEFA and the UAE authorities”.
Additionally, the club maintained in said letter having paid the salary for May
2019.
9.
On 17 July 2019, the player sent a letter to the club reiterating his position.
10. On 22 July 2019, the player lodged a claim for breach of contract against the club
and requested payment of the following monies:
- EUR 170,000 corresponding to the salary of May 2019;
- United Arab Emirates Dirham (AED) 400,000 corresponding to alleged bonuses;
- EUR 2,000,000 as compensation for breach of contract.
In addition, the player requested interest of 5% p.a. as of “the date the contract
was terminated” and that sporting sanctions are imposed on the club.
11. In his claim the player argued that the club did not act in accordance with art. 7 of
the contract and therefore terminated the contract without just cause.
12. Referring to art. 7 of the contract, the player held that two conditions had to be
met in order to terminate the contract in accordance with such clause, i.e. the
termination notice and the payment of the compensation until 30 April 2019.
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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13. According to the player, the club failed to duly exercise the early termination since
it did not remit the compensation agreed upon.
14. Notwithstanding his argumentation above, the player argued that the clause as
such should be deemed invalid by the DRC, since it is “unequitable, unfair and
abusive”.
15. The player held that the clause was designed in the club’s interest and would grant
favorable conditions to the club. In this regard, he pointed out that the
compensation defined in such clause amounts to “less than 1/6th” of the amount
he would have earned during the residual value of the contract.
16. Furthermore, the player referred to art. 9.15 of the contract in order to
demonstrate the “unfair manner” the contract was drafted. According to such
clause, the player would have needed to reimburse the actual “market value”
instead of the pre-defined compensation.
17. On account of the above, the player argued that the club terminated the contract
without just cause and he requested to be awarded with his outstanding dues as
well as compensation in the amount of the residual value of the contract.
18. Regarding the outstanding salary for May 2019, the player held that the club
provided a payment slip dated 28 May 2019 in its correspondence dated 15 July
2019, but that such payment corresponded to a late payment of April and not May
2019.
19. Regarding the claimed bonuses, the player held that he would be entitled to a
reward in connection with the victory of the “UAE’s Presidents Cup 2018/2019”,
i.e. AED 100,000 (approx. EUR 24,000), and the “Arabian Gulf Cup 2018/2019”, i.e.
AED 300,000 (approx. EUR 73,000), according to the club’s regulations.
20. In its reply, the club rejected the player’s argumentation and held that the contract
was duly terminated in accordance with its art. 7 since only one condition, the
termination notice, is mentioned in the article and the payment of the EUR 300,000
as compensation is a result thereof.
21. Furthermore, the club pointed out that such clause is “more than equitable,
proportional and fair” and therefore perfectly valid.
22. In this regard, the club stated never having refused to make such payment, but
held the player, “has refused to collect it”.
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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23. Moreover, regarding the claimed outstanding remuneration, the club maintained
having complied with its financial obligations. In this regard, the club submitted
bank statements for all ten salary payments due between August 2018 and May
2019, indicating that the amounts were paid.
24. Regarding the claimed bonuses, the club denied that it owes any amounts in
connection with said achievements. Additionally, the club pointed out that the
player did not submit the regulations on which he bases said part of the claim.
25. The player informed FIFA that he remained unemployed as of 1 July 2019 until
today.
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 22 July 2019. Taking into account the wording of art. 21 of the 2019 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (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. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2
in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition January 2020), 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 Ecuadorian player and an Emirati
club.
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, and
considering that the present claim was lodged on 22 July 2019, the June 2019
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. The members
of the Chamber started by acknowledging the facts of the case, as well as the
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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documentation contained in the 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.
5.
In this respect, the Chamber noted that the parties concluded an employment
contract on 18 July 2018, valid as from 18 July 2018 until 30 June 2020.
Furthermore, the DRC took notice of the Respondent’s unilateral termination of
said contract on 29 April 2019.
6.
In this framework, the members of the Chamber noted duly noted the Claimant’s
argumentation that the requirements of art. 7 of the contract regarding such
termination were not met, since the club failed to make payment of the
compensation during April 2019. Alternatively, the player held that the clause
should not be taken into account since it is “unequitable, unfair and abusive” and
was drafted in the club’s favour. Therefore, the player claims one outstanding
salary, i.e. from May 2019, outstanding bonuses and compensation for breach of
contract corresponding to the residual value of the contract.
7.
Moreover, the DRC acknowledged that the Respondent rejected the player’s
claim and insisted that it terminated the contract in accordance with the relevant
clause, since the only requirement was to give notice. In this regard, the club
maintained that payment of compensation was only a result of the termination,
but not a requirement for its validity. The club held having paid regarding the
salary of May 2019 and held that the Claimant did not substantiate his claim
regarding the bonuses.
8.
On account of the above, the DRC acknowledged that the central issue in the
matter at stake was to determine as to whether the contract was terminated with
or without just cause and to decide on the consequences thereof.
9.
With the above in mind, the Chamber proceeded with an analysis of the
circumstances surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
10.
In doing so, the DRC turned its attention to art. 7 of the contract, which defined
the possibility to terminate the contract.
11.
The Chamber recalled that said clause reads as follows: “The parties agreed that
each party is entitled to request termination of the contract individually as from
30/06/2019 by informing the other about the decision from 01/04/2019 up to
30/04/2019 regarding the termination. In this case the party desired to terminate
the contract shall pay to the other party 300,000 Euro. The two parties
acknowledged that this amount will be enough compensation for termination of
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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the contract before its duration as well as the parties acknowledged that they
will not request additional or reducing the amount legally or financially for
termination of the contract. For avoidance of doubt, in the case that a
notification is presented to one party, the employment relationship must exist up
to 30/06/2019, i.e., the Player and the club must fulfill them contractual
obligations hereby assumed plus compensate the other with the amount of
300,000 Euro. In case that no notification or communication is delivered until
30/04/2019 this contract shall remain valid and binding until 30/06/2020.”
12.
In this respect the DRC noted that the termination notice of the Respondent was
undisputedly delivered during the period defined in art. 7 of the contract.
Furthermore, the Chamber analysed the content of the clause in question and
considered that the clause provides for equal rights for both parties and that
the payment of the amount was not a condition, but was to be considered a
consequence of triggering the clause on time.
13.
Therefore, the members of the Chamber had to reject the Claimant’s
argumentation regarding the application as well as to the validity of the clause,
and concluded that the Respondent had validly terminated the contractual
relationship as foreseen in art. 7 of the contract.
14.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract by the
Respondent.
15.
In application of art. 7 of the contract, since the pertinent employment contract
contains 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 an
early termination, the Chamber established that the Respondent has to pay
compensation in the amount of EUR 300,000 to the Claimant.
16.
In addition, and taking into consideration the player’s claim and the jurisprudence
of the Chamber, the DRC decided to award on the aforementioned amount
interest of 5% p.a. as of 1 July 2019 until the date of effective payment .
17.
Furthermore, as to the outstanding remuneration claimed by the player, the
Chamber established that the Claimant failed to substantiate his claim regarding
bonuses. What is more, from the documentation on file it can be established that
the club remitted the salary payments due between August 2018 and May 2019.
18.
In conclusion, the DRC maintained that no outstanding remuneration shall be
granted.
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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19.
In addition, the DRC established that any further claim lodged by the Claimant is
rejected.
20.
Furthermore, taking into account the consideration under number II./3. above,
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.
21.
In this regard, the Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
22.
Therefore, bearing in mind the above, the DRC decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days as
from the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, 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 in accordance with art. 24bis par. 2 and 4 of the
Regulations.
23.
Finally, the Chamber 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. 24bis par. 3 of the Regulations.
*****
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Jaimen Javier Ayovi Corozo, is partially accepted.
2.
The Respondent, Shabab Al Ahli Dubai Club, has to pay to the Claimant the
amount of EUR 300,000 as compensation, plus interest of 5% p.a. as of 1 July 2019
until the date of effective payment.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, 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 must pay the
amount mentioned under point 2 above.
5.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2 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).
6.
In the event that the amount due plus interest in accordance with point 2 above
is not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent 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).
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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8.
In the event that the aforementioned sum plus interest is 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.
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
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.
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.
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:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Jaimen Javier Ayovi Corozo, Ecuador / Club Shabab Al Ahli Dubai Club, United Arab Emirates
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