Labour Disputes
Texto da decisão
REF. FPSD-9147
Decision of the
Dispute Resolution Chamber
passed on 8 June 2023
regarding an employment-related dispute concerning
the player Jose Kante Martinez
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Khalid AWAD ALTHEBITY (Saudi Arabia), member
Alexandra GOMEZ BRUINEWOUD (Uruguay & The Netherlands), member
CLAIMANT:
Jose Kante Martinez, Spain
Represented by Salvatore Civale
RESPONDENT:
Cangzhou Mighty Lions FC, China PR
Represented by Ruiz-Huerta & Crespo
pg. 2
REF. FPSD-9147
I. Facts of the case
1.
On 20 August 2022, the Spanish Player Jose Kante Martinez (hereinafter: the Claimant or the
Player) and the Chinese club Cangzhou Mighty Lions FC (hereinafter: the Respondent or the
Club) concluded an employment contract (hereinafter: the contract) valid as from 1 August
2022 until 31 December 2023.
2.
In accordance with clause 1 of the contract: “this Contract shall enter into force upon
01/08/2022 (day/month/year) and shall continue until 31/12/2023 (day/month/year). [The
Club] have the sole option to extend the contract for another 12 months with the same financial
conditions of season 2023”.
3.
According to clause 3.1 of the contract, the Respondent undertook to pay the Claimant the
following amounts:
-
-
4.
From 1 August 2022 until 31 December 2022: EUR 970,000 before tax and EUR 550,000
after tax (EUR 200,000 after tax to be paid within 15 days after the signature of the
contract and EUR 350,000 to be paid monthly, i.e., EUR 70,000 after tax per month).
From 1 January 2023 until December 2023: EUR 1,940,000 before tax and EUR
1,100,000 after tax.
If the contract was extended, from 1 January 2024 until 31 December 2024: EUR
1,940,000 before tax and EUR 1,100,000 after tax.
According to clause 3 of the contract, inter alia (quoted verbatim):
[…] 3.2. The annual salaries shall be paid to [the Player] in equal monthly installments.
[the Club] shall pay the salary (choose one of the following two options) for the x last
month/ current month on the 15th of every month. In the event the above-mentioned
payment due date falls on a statutory holiday, the payment due date shall be extended to
the first working day following holiday.
Unless otherwise agreed by the Parties, the method of calculating the average daily salary
is as follows: the amount of monthly salary divided by the number of calendar days in the
month.
[…]
3.5. Before-tax amounts under this Contract refer to amounts including all taxes and fees
that [the Player] shall pay arising from income obtained from [the Club]. Before [the
Club] pays [the Player] each installment of the amounts agreed under this Contract, [the
Club] shall be responsible for the withholding and payment of income tax due from [the
Player] in Mainland China from the before-tax amount payable to [the Player] in
accordance with the relevant laws and regulations pf the People’s Republic of China
(hereinafter referred to as “China”). Any taxes, expenses, levies, etc. that might be
originated in any country or region outside of Mainland China shall be exclusively
declared, paid and borne by [the Player].
pg. 3
REF. FPSD-9147
3.6. The parties understand and agrees that the after-tax amounts under this Contract refer
to amounts after deducting the taxes to be pain in Mainland China and such amounts are
stipulated just for reference. The after-tax amount that [the Player] actually receives shall be
the amount net of taxes to be paid in Mainland China”
5.
In accordance with clause 9.6 of the contract:
“6. [The Player] has the right to terminate this Contract by notifying [the Club] in writing if
any of the following events occurs:
6.1 [The Club] fails to pay salary to [the Player] for two (2) months and fails to remedy such
default within 15 (fifteen) days upon receipt of [the Player]’s written notification.
6.2 [The Club] cheats and/or forces [the Player] to participate in any illegal or unfair training
or matches, or influences training or matches in an illegal manner or other activities in
violation of the law and/or applicable regulations.”
6.
By correspondence dated 9 November 2022, the Claimant put the Respondent in default
of payment of EUR 310,000 corresponding to the remuneration due in August 2022 (EUR
70,000), September 2022 (EUR 70,000) and October 2022 (EUR 70,000) as well as the
balance of the sign on fee bonus (EUR 100,000); setting a 15 days’ time limit in order to
remedy the default.
7.
On 17 November 2022, the Club paid to the Player EUR 70,000 corresponding to the August
2022 salary.
8.
On 13 December 2022, the Claimant, the Respondent, the company EBG Finance Pty LtD
and Mr Iván Andrés Cristovinho Kneppers, signed a payment agreement, in which it was
stated that, inter alia, that the Claimant entrusts Mr Iván Andrés Cristovinho Kneppers to
charge and receive from the Respondent the Signing-on Fee of 200,000 Euros (net) on its
behalf, which will be transferred to the player on or before 20 December 2022.
9.
By correspondence dated 2 January 2023, the Claimant put the Respondent in default of
payment of EUR 210,000 corresponding to September (EUR 70,000), October (EUR 70,000)
and November (EUR 70,000) salaries; setting a 15 days’ time limit to remedy the default.
10. On 6 January 2023, the Respondent paid the September 2022 (EUR 70,000) salary to the
Claimant.
11. On 1 February 2023, the Claimant sent a termination notice to the Respondent as the
salaries allegedly remained unpaid.
12. On 7 February 22023, the Respondent paid the October 2022 salary (EUR 70,000) to the
Claimant.
pg. 4
REF. FPSD-9147
13. On 1 March 2023, the Player signed an employment contract with the Japanese club Urawa
Red Diamonds valid from 13 February 2023 until 31 December 2023, including a total salary
of EUR 1,200,000 net. Additionally, the Claimant would receive a sign of fee of EUR 170,000.
II. Proceedings before FIFA
14. On 3 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
15. On 3 February 2023, the Claimant lodged a claim against the Respondent in front of FIFA
for breach of contract.
16. The Claimant lodged a claim for breach of contract and argued that he had just cause to
terminate the contract considering that the conditions of art.14bis of the Regulations on
the Status and Transfer of Players (RSTP) were fulfilled (i.e., more than 2 salaries were due,
a default notice was sent 15 days prior the termination). Additionally, the Claimant stated
that the termination also fulfilled the conditions established in clause 6 [sic, 9.6] of the
contract.
17. In light of the termination, the Claimant requested payment of the overdue salaries and
compensation for breach of contract in accordance with art. 17 RSTP.
18. As to the calculation of the compensation, the Claimant stated that the contract had an
extension option and thus the compensation shall be calculated until December 2024.
19. The Claimant requested the following relief:
“(a) Order the Respondent to pay the Claimant the overdues in the amount of EUR 301,666 NET
calculated as follows:
- Salary of October 2022 of EUR 70,000 – NET of TAXES;
- Salary of November 2022 of EUR 70,000 – NET of TAXES;
- Salary of December 2022 of EUR 70,000 – NET of TAXES;
- Salary of January 2023 of EUR 91,666 – NET of TAXES.
(b) Order the Respondent to pay the Claimant the compensation for breach of contract in the
amount of EUR 2,108,326 – NET of TAXES equals to the remaining value of the contract (23
months) x the monthly salary due of EUR 91,666;
(c) Order the Club to pay an interest of 5% on each of the above amounts due to the Player,
calculated as follows:
Overdues
- starting from 16 November 2022 as for the amount of EUR 70,000;
- starting from 16 December 2022 as for the amount of EUR 70,000;
- starting from 16 January 2023 as for the amount of EUR 70,000;
pg. 5
REF. FPSD-9147
- starting from 16 February 2023 as for the amount of EUR 91,666;
Compensation
- starting from 1 February 2023 as for the amount of EUR 2,108,326.
(d) Apply the measures and sporting sanctions established by the FIFA Regulations on Status
and Transfer of Players, namely the ban of 2 transfer windows”.
b. Position of the Respondent
20. In its reply, the Respondent acknowledged that it paid the August, September, and October
2022 salaries and that the salaries of November, December 2022, and January 2023 were
not paid. Thus, the Club considered that the overdue salaries amount to EUR 231,666.
21. As to the residual value of the contract, the Respondent argued that the term of the
contract is until 2023 and the residual value should be EUR 1,008,326 net. As to the
extension of 12 months, the Respondent stated that this should not be included in the
calculation of the residual value, since: “this extra 12 months will only enter into force if the
Club exercises such sole option. However, by terminating the Contract prematurely, the Player
made sure this option will no longer be possible”.
22. The Respondent requested to mitigate the compensation considering that the Claimant
signed a new contract with the Japanese football club Urawa Red Diamonds.
23. As to the sporting sanctions, the Respondent argued that it should not apply as the
Respondent is not a repeat offender. Additionally, according to the Respondent “it was
never the Club’s intention to delay the payment, it tried its best to act in good faith, however,
the financial situation of the Club couldn’t allow it”.
24. The Respondent requested the following relief:
-
-
To reduce the overdue salaries and the residual value of the contract:
Overdue salaries: EUR 231,666 net (EUR 70,000 November 2022, EUR 70,000
December 2022 and EUR 91,666 January salary).
Residual value: EUR 1,008,326 net
To reduce the mitigated compensation from EUR 1,008,326 net based on the
new contract signed.
To dismiss other requests of the Player.
c. Additional comments of the Claimant
pg. 6
REF. FPSD-9147
25. The Claimant confirmed that he received October 2022 salary (EUR 70,000) after the
opening of the proceedings and that the remaining overdue salaries are November (EUR
70,000), December (EUR 70,000), and January (EUR 91,666).
26. As to the new employment contract, the Player confirmed that he signed a new contract,
however, he requested to add 6 monthly salaries as additional compensation.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 3 February 2023 and submitted
for decision on 8 June 2023. Taking into account the wording of art. 34 of the March 2023
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.
28. Subsequently, 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 (May 2023 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 Spain and a club from
China PR.
29. 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 (May 2023 edition) and
considering that the present claim was lodged on 3 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
30. 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 based on 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).
pg. 7
REF. FPSD-9147
c. Merits of the dispute
31. 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
32. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the main dispute is the justice of the early termination
of the contract by the Claimant, based on the alleged non-payment of certain financial
obligations by the Respondent as per the contract, in accordance with art. 14bis of the
Regulations.
33. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
34. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
35. The Chamber noted that by the time the default notice was sent more than 2 salaries were
due. The Chamber further noted that the Claimant has provided written evidence of having
put the Respondent in default on 2 January 2023, i.e., at least 15 days before unilaterally
terminating the contract on 1 February 2023.
36. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties. However, the Respondent does not dispute that it owed more than 2 salaries
to the Claimant.
37. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
pg. 8
REF. FPSD-9147
38. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
39. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, amounts to EUR 231,666 net (EUR
70,000 + EUR 70,000 + EUR 91,666)
40. 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
231,666 net.
41. 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 EUR 70,000 net as from 16 December 2022 until the date of effective payment.
On EUR 70,000 net as from 16 January 2023 until the date of effective payment.
On EUR 91,666 net as from 16 February 2023 until the date of effective payment.
42. 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
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.
43. 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.
44. As a consequence, 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.
pg. 9
REF. FPSD-9147
45. 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 1,008,333.33 (i.e., 11 times EUR 91,666,67) serves as the
basis for the determination of the amount of compensation for breach of contract.
46. The Chamber took note that the Claimant requested as residual value in addition to the
value of EUR 1,008,333.33; the salaries (EUR 1,100,000) mentioned in the unilateral
extension’s clause of the contract from 1 January 2024 until 31 December 2024. The
Chamber stated that said amount (EUR 1,100,000) has not been added considering that it
cannot be established that the contract would be indeed renewed, and the calculation has
been made on the basis of the original terms of the contract.
47. 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.
48. Indeed, the player found employment with Urawa Red Diamonds. In accordance with the
pertinent employment contract, the player was entitled to a salary of EUR 1,200,000 net
from 13 February 2023 to 31 December 2023 and a signature bonus of EUR 170,000. The
Chamber concluded that the player mitigated his damages in the total amount of EUR
1,370,000. Therefore, the Chamber concluded that the Player mitigated his damages
entirely.
49. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a Player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e., overdue payables by the Club, and therefore
decided that the Player shall receive additional compensation.
50. In this respect, the DRC decided to award the amount of additional compensation of EUR
275,000 net, i.e., three times the monthly remuneration of the Player.
51. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR
275,000 net to the Player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
pg. 10
REF. FPSD-9147
52. 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
compensation at the rate of 5% p.a. as of 1 February 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
53. 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.
54. 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.
55. 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.
56. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
57. 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
58. 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.
pg. 11
REF. FPSD-9147
59. 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.
60. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-9147
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jose Kante Martinez, is partially accepted.
2.
The Respondent, Cangzhou Mighty Lions FC, must pay to the Claimant the following
amounts:
- EUR 70,000 net as outstanding remuneration plus 5% interest p.a. as from 16
December 2022 until the date of effective payment;
- EUR 70,000 net as outstanding remuneration plus 5% interest p.a. as from 16 January
2023 until the date of effective payment;
- EUR 91,666 net as outstanding remuneration plus 5% interest p.a. as from 16 February
2023 until the date of effective payment;
- EUR 275,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 1 February 2023 until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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. The Respondent 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.
2. 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-9147
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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pg. 14