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,
Play er Kev in Cons tant, France
represented by Mr Ludovic Deléchat
as Claimant
against the club,
Tractors azi Tabriz, IR Iran
represented by Mr Koray Akalp
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
The French player, Kevin Constant (hereinafter also referred to as the player or the
Claimant) and the Respondent (hereinafter also referred to as Tractorsazi Tabriz or
The Club) concluded an employment contract on 4 January 2019 (hereinafter: the
contract).
2.
According to art. 2 of the contract, “the contract will be valid for 3 and half season
starting from 5th of Jan 2018 and valid till 30 of June 2022”.
3.
In continuation, art. 2 of the contract provided that the “contract for season 2019/20,
2020/2021 and 2021/22 is optional and can be activated by [the Respondent] at end
of each season based on satisfaction of technical committee from player
performance. Therefore, the [Respondent] has the unilateral right to stop and
terminate contract for season 2019/20, 2020/2021 and 2021/2022 without paying
compensation to the player”, and should the Respondent decide to exercise his right
to the aforementioned termination provision, the Respondent “is obliged to inform
[the Claimant] officially maximum 14 days after the last match of the season,
otherwise contract will be valid for next season”.
4.
The contract foresaw the following payments to be made by the Respondent to the
Claimant:
(1) EUR 80,000 “after signing the contract”;
(2) EUR 30,000 as monthly salary between 15 February 2019 and 15 May 2019 (4
times);
(3) EUR 160,000 “around” 1 July 2019;
(4) EUR 24,000 as monthly salary between 30 August 2019 and 30 May 2019 (10
times);
(5) EUR 160,000 “around” 15 July 2020;
(6) EUR 34,000 as monthly salary between 30 August 2020 and 30 May 2021 (10
times);
(7) EUR 160,000 “around” 15 July 2021;
(8) EUR 34,000 as monthly salary between 30 August 2021 and 30 May 2022 (10
times).
5.
In addition, on 4 January 2019, the parties signed a document titled “Appendix to
the employment contract” (hereinafter: Annexe), which, inter alia, reads as follows:
“2. The Player has entered medical examination in Iran on 4 January 2019 which was
conducted by the Club (…). According to the findings of the medical examination,
which is an integral part of this Appendix, it was established that the Player had Silent
Arrhythmia (“Condition”).
3. The Parties have mutually agreed to sign this Appendix to the Employment
Contract dated 04.01.2019 to stipulate their obligations towards each other in case,
during the term of the Employment Contract the Player is unable to train and/or play
football due to the Condition (…).
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 2 of 12
Claus es
1. The Player irrevocably agrees and accepts the findings of the medical examination
dated 4 January 2019 and accepts that he has a Condition of Silent Arrhythmia that
may prohibit him from playing football in the future.
2. The Player agrees and accepts to play football for the Club pursuant to the
Employment Contract and understands that he will be solely responsible with any
physical/medical consequences he might face and/or suffer in the future due to the
occurring of the Condition of Silent Arrhythmia.
3. The Player agrees and accepts that, in case in the future he is unable to play
football (attend trainings and/or matches) with the Club due to the Condition (…)
and this unavailability of the Player to play football lasts more than 10 (ten) days, the
Player will not be entitled to his remuneration for the whole term of his unavailability
to play football which will be calculated on a pro-rata basis taking into consideration
the total remuneration of the Player for the relevant season which the unavailability
takes place.
4. The Player agrees and accepts that, during the term of the Employment Contract,
should his unavailability of more than 10 (ten) days to play football (attend training
and/or matches) for the Club occur more than 2 (two) times (per season), the Player
will not be entitled to any of his remuneration from the Employment Contract for
the term starting from the first date of Player’s third unavailability to play football
due to the Condition (…) until the full recovery of the Player from the Condition (…),
which will be established by the Club’s Physician.
5. Finally, the Player also agrees and accepts that, during the term of the Employment
contract, should he becomes unavailable to play football (attend trainings and/or
matches) for the Club for any length of time (more or less than 10 days) due to the
Condition (…) and this unavailability occurs more than 5 (five) times (per season), the
Player will not be entitled to any of his remuneration from the Employment Contract
for the term starting from the first date of Player’s sixth unavailability to play football
due to the Condition (…) until the full recovery of the Player from the Condition (…),
which will be established by the Club’s Physician.
6. The player irrevocably agrees and accepts not to claim any of his remuneration
and/or any compensation from the Club in case any of the conditions under clauses
3, 4 and/or 5 are exercised.”
6.
Between 16 January 2019 and 21 January 2019, the player underwent different
medical examinations in Iran, whereby different medical experts concluded that
“professional sport is dangerous for this player and his cardiac health was not
confirmed”.
7.
On 4 February 2019, a doctor certified that the player showed a “very minor
improvement”, but attested that he could not play football for one year due to a
“high risk of sudden death due to competitive sport activities”.
8.
On 13 February 2019, the team doctor issued an internal report addressed to the
club’s managing director, summarizing the medical reports about the player’s
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 3 of 12
condition and reassuring that “doing professional sports is not recommended to
him”.
9.
On 16 February 2019, the club sent a letter to the player informing him that on the
basis of the medical examinations carried out, the player would not be able to play
football for 3 months and that in accordance with the contract and clause 3 of the
annex he would not be entitled to receive his salary as of this day. Further, the club
pointed out that it would remove the player from the “A List” for the rest of the
season and that he would have an appointment for a further medical examination
on 13 May 2019.
10.
On 14 March 2019, the player underwent a medical examination in France which
confirmed that he does not have any health issue with his heart and that he is able
to play football without restrictions.
11.
On 25 May 2019, the player underwent another medical examination in Iran.
According to the report dated 28 May 2019, the player would still face a “high risk
during football playing” and concluded that the player “cannot play in Iran
Professional League due his heart problem”. Said report also referred to the report
dated 14 March 2019, issued in France and pointed out that said report was carried
out “under rest conditions” and that this “is not the criteria” for a football player.
12.
On 28 May 2019, the club sent a letter to the player terminating the contract due to
his latest medical examination and in accordance with art.2 of the contract.
13.
On 30 July 2019, the player lodged a claim for breach of contract against the club and
requested the payment of the following amounts:
(1) EUR 30,000 as residual amount of the sign-on fee;
(2) EUR 120,000 as outstanding remuneration, corresponding to the salaries of
February until May 2019;
(3) EUR 1,400,000 as compensation for breach of contract, corresponding to the
residual value of the contract.
(4) Further, the player requested 5% interest p.a. as of the respective due dates.
14.
In his arguments, the player maintained that the club violated the contract since it
did not fulfil its financial obligations without a valid reason.
15.
In this regard, he held that the club alleged that he was unable to play as a
professional on the basis of “heart issues”. Said allegation was proven wrong by a
well-known French doctor, who approved that the player is able to perform without
restrictions.
16.
On account of the above, the player argued that the Annex should not be taken into
account since it goes against the spirit of contractual stability, and due to the fact
that a contract cannot depend on medical examination.
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 4 of 12
17.
Further, he pointed out a contract cannot be terminated for medical reasons, as
established by the Chamber’s jurisprudence. It is the club’s obligation to do such
medical examination before signing the contract.
18.
In this regard, the player maintained that the club decided to enter into a contractual
relationship with the player, but then stopped paying him and did not let him
perform as a professional football player due to alleged “heart issues”.
19.
What is more, he brought forward that he remained unemployed up to date, due to
the fact that the club went public with its false allegations.
20.
The player acknowledged having received the amount of EUR 50,000 as a sign-on fee,
but pointed out that ever since the club did not pay him anymore.
21.
In its reply to the claim, the Respondent rejected the player’s claim, while referring
to his “serious health issue”.
22.
The club argued that the medical examination was carried out before entering into
a contractual relationship and that therefore the contract was not dependant on the
medical examination. Therefore, it maintained that the contract and the Annex are
valid.
23.
Furthermore, the club held that the player acknowledged the results of said
examinations when signing the contract and the Annexe thereto.
24.
Moreover, the club argued that the player entered into the contract and the
appendix with his “free will” and that he accepted not being paid in case he would
not be able to perform in connection with his medical condition.
25.
Additionally, the club pointed out that the player never challenged the validity of
the annexe before lodging his claim.
26.
As to the outstanding remuneration claimed by the player, the club argued having
paid the sign-on fee in full and that the player is not entitled to receive the salaries
as of February to May 2019 in accordance with the Annexe, since he was unable to
perform. In this respect, the Respondent provided a receipt apparently signed by the
player and according to which the parties acknowledge the payment of EUR 80,000
in cash on 4 January 2019, corresponding to the signing-on fee.
27.
As to the termination of the contract, the club brought forward having been entitled
to end the contractual relationship in accordance with art. 2 of the contract.
28.
Alternatively, the Respondent requested to substantially reduce the compensation
due to the special circumstances surrounding this case.
29.
Upon FIFA’s request, the Claimant declared that he remained unemployed as from
29 May 2019 onwards.
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 5 of 12
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 30 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 French player and an Iranian 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 30 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
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 player is arguing the club never complied
with its financial obligations in full, and subsequently terminated the contract
without just cause on the basis of wrongful medical reports on 28 May 2019, and the
player is claiming outstanding amounts and compensation for breach of contract.
6.
On the other hand, the DRC observed that the Respondent is of the opinion that it
had fully complied with its financial obligations towards the player and had rightfully
terminated the contract of the player in accordance with the provisions set out in the
Annexe.
7.
The DRC highlighted that the central issue in the matter at stake would be, thus, to
determine the validity of the contract and its Annexe.
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 6 of 12
8.
In this context, the Chamber first focused on the duration of the contract. In fact, the
DRC observed that art. 2 of the contract provided for a validity as from 5 January 2019
until 30 June 2022, whilst also providing for unilateral termination provisions at the
end of each season at the sole benefit of the Respondent. In particular, the DRC duly
noted that the Respondent unilaterally terminated the contract based on the
aforementioned termination provisions on 28 May 2019.
9.
In this respect, the Chamber observed that said unilateral termination provisions
stipulated that the club would be entitled to terminate the contract at the end of
each season by giving the player a 14-day notice and without any compensation
being owed to the player. The DRC remarked that such provision was not reciprocal
to the player.
10.
In view of the above, and in line with its extensive jurisprudence in this respect, the
Chamber concluded that the potestative character of art. 2 of the contract could not
be deemed acceptable, and should therefore be considered invalid, and consequently
determined that the contract was valid as from 5 January 2019 until 30 June 2022.
11.
Therefore, the DRC concurred that art. 2 of the contract does not constitute a reason
that can be validly invoked by the Respondent nor a legal basis to unilaterally
terminate the contract.
12.
Consequently, the Chamber determined that the Respondent did not have just cause
to terminate the contract under the auspices of art. 2 of the contract. As such, the
DRC determined that the Respondent is to be held liable for the early termination of
the employment contract without just cause.
13.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract without just cause
by the Respondent.
14.
In this context, the DRC concurred that the Respondent must fulfil its obligations as
per the employment contract up until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”.
15.
In this respect, the Chamber remarked that the Claimant alleged that he had only
received EUR 50,000 of the EUR 80,000 signing-on fee and that all his salaries as from
4 January 2019 until the unilateral termination had not been paid to him. The DRC
however acknowledged that the Respondent had provided proof that EUR 80,000
representing the full amount of the signing-on fee had been indeed remitted to the
player, and that he acknowledged payment by signing a receipt. Consequently, the
Chamber decided to reject the Claimant’s request for EUR 30,000 corresponding to
the alleged remainder of the signing-on fee.
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 7 of 12
16.
The DRC, however, observed that it was undisputed that the club never paid any of
the player’s monthly salaries until the date of termination, i.e. 28 May 2019, that is
to say the salaries as from February 2019 until May 2019. As such, the Chamber came
to the conclusion that the player shall be awarded EUR 120,000 as outstanding
remuneration.
1.
In addition, and taking into consideration the player’s claim and the jurisprudence of
the Chamber, the DRC decided to award on the aforementioned amounts interest
until the date of effective payment as follows:
a. 5% p.a. as of 16 February 2019 on the amount of EUR 30,000;
b. 5% p.a. as of 16 March 2019 on the amount of EUR 30,000;
c. 5% p.a. as of 16 April 2019 on the amount of EUR 30,000;
d. 5% p.a. as of 16 May 2019 on the amount of EUR 30,000.
17.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1
of the Regulations on the Status and Transfer of Players, the Claimant is entitled to
receive from the Respondent compensation for breach of contract in addition to any
outstanding salaries on the basis of the relevant employment contract.
18.
In this context, 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 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.
19.
In application of the relevant provision, the DRC 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 Chamber established
that the contract contained provisions with regards to the termination of the contract
by the parties. In fact, the DRC remarked that the contract contained clauses
regarding the unilateral termination by the Respondent only. Therefore, the
Chamber concluded that there was no valid compensation clause that could be taken
into account.
20.
Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the Chamber took into account the remuneration due to the Claimant
in accordance with the employment contract as well as the time remaining on the
same contract, along with the professional situation of the Claimant after the early
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 8 of 12
termination occurred. At the time of the termination of the employment contract on
28 May 2019, the contract would run until 30 June 2022, i.e. for another 36 months.
Consequently, the Chamber concluded that the remaining value of the contract as
from its early termination by the club until the natural expiry of the contract amounts
to EUR 1,400,000 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
21.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute the Claimant did not find
any employment.
22.
As such, the DRC emphasised that, in principle, the player should be awarded EUR
1,400,000 as compensation for breach of contract without just cause by the club.
23.
Notwithstanding the fact that the club terminated the contract without just cause,
the members of the DRC paid particular attention to the contents of the Annexe
signed by the parties. In particular, it appeared that the club offered the player the
contract in good faith and knowing that the player had a pre-existing medical
condition that may affect his availability, and that the player agreed to enter into
such agreement knowing the consequences that his unavailability due to said medical
condition.
24.
What is more, the Chamber was keen to highlight that the Respondent had publicly
revealed that the Claimant had a medical condition that may hinder his future
professional opportunities.
25.
After thoroughly debating the particulars of the above matter, and in view of the
irreconcilable position of the clubs’ and players’ representatives, the chairman took
the casting vote and the majority of the DRC decided to reduce the compensation
to EUR 700,000, plus 5% interest p.a. as of 30 July 2019 until the date of effective
payment.
26.
In addition, the DRC established that any further claim lodged by the Claimant is
rejected.
27.
Furthermore, the DRC 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.
28.
In this regard, the DRC 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.
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 9 of 12
29. Therefore, bearing in mind the above, the DRC decided that, in the event that
Tractorsazi Tabriz does not pay the amount due to the player within 45 days as from
the moment in which the player, following the notification of the present decision,
communicates the relevant bank details to Tractorsazi Tabriz, 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
Tractorsazi Tabriz in accordance with art. 24bis par. 2 and 4 of the Regulations.
30.
Finally, the DRC recalled that the above-mentioned ban will be lifted immediately
and prior to its complete serving upon payment of the due amount, in accordance
with art. 24bis par. 3 of the Regulations.
*****
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 10 of 12
III.
Decision of the Dis pute Res olution Cham ber
2.
The claim of the Claimant, Kevin Constant, is partially accepted.
3.
The Respondent, Tractorsazi Tabriz, has to pay to the Claimant the amount of
EUR 120,000 as outstanding remuneration, plus interest until the date of effective
payment as follows:
a. 5% p.a. as of 16 February 2019 on the amount of EUR 30,000;
b. 5% p.a. as of 16 March 2019 on the amount of EUR 30,000;
c. 5% p.a. as of 16 April 2019 on the amount of EUR 30,000;
d. 5% p.a. as of 16 May 2019 on the amount of EUR 30,000.
4.
The Respondent has to pay to the Claimant the amount of EUR 700,000 as
compensation for breach of contract, plus interest of 5% p.a. as of 30 July 2019
until the date of effective payment.
5.
Any further claim lodged by the Claimant is rejected.
6.
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 points 2. and 3. above.
7.
The Respondent shall provide evidence of payment of the due amount 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).
8.
In the event that the amounts due plus interest in accordance with points 2. and
3. above are 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).
9.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 11 of 12
10.
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 Player Kevin Constant, France / Club Tractorsazi Tabriz, IR Iran
Page 12 of 12