Labour Disputes
Texto da decisão
REF. FPSD-8345
Decision of the
Dispute Resolution Chamber
passed on 12 April 2023
regarding an employment-related dispute concerning
the player Sam Larsson
BY:
HENDEL Clifford J. (USA & France), Deputy Chairperson
DOS SANTOS MEGALE Andre (Brazil), member
GAUCI Sihon (Malta), member
CLAIMANT:
Sam Larsson, Sweden
Represented by Mr. Santiago Liotta
RESPONDENT:
Dalian Professional FC, China PR
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REF. FPSD-8345
I.
Facts of the case
1.
On 27 February 2020, the Swedish player Sam Larson (hereinafter: the Player or the
Claimant) and the Chinese club Dalian Professional FC (hereinafter: the Club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid from 1
March 2020 until 31 December 2022.
2.
Clause 1.1. the contract provided for an extension which, if used by the Club, would extend
the contract’s term for one additional year, namely until 31 December 2023.
3.
According to clause 7 of the contract, the Respondent undertook to pay the Claimant, inter
alia, the following amounts:
4.
-
2020 pre-payment season: EUR 600,000 net of tax / EUR 1,086,000 before tax, to
be paid within 10 working days following the signature of the contract.
-
2020 season: EUR 1,800,000 net of tax / EUR 3,230,000 before tax, to be paid in
10 equal instalments before the end of each month, from March 2020 to
December 2020.
-
2021 pre-payment season: EUR 600,000 net of tax / EUR 1,086,000 before tax, to
be paid on 15 January 2021.
-
2021 season: EUR 1,800,000 net of tax / EUR 3,230,000 before tax, to be paid in
10 equal instalments before the end of each month, from March 2021 to
December 2021.
-
2022 pre-payment season: EUR 600,000 net of tax / EUR 1,086,000 before tax, to
be paid on 15 January 2022.
-
2022 season: EUR 1,800,000 net of tax / EUR 3,230,000 before tax, to be paid in
10 equal instalments before the end of each month, from March 2022 to
December 2022.
According to clause 11.2(4) of the contract:
“This contract may be terminated by [the Claimant] by notifying [the Respondent]
(…)
(4) If [the Respondent] is in default to pay all or part of salary, other remuneration or
bonuses to [the Claimant] for over three (3) months. The Parties expressly declare that
the delay by [the Respondent] in paying the agreed salary in two three (3) monthly
instalments shall entitle [the Claimant] to automatically terminate this Contract with just
cause, with the right to receive as an indemnity due to the breach by [the Respondent]
the amounts established in clause 12.2 of this Contract, with this situation being treated,
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REF. FPSD-8345
as regards its consequences, as the same as that of the unilateral termination without just
cause on the part of the Club”.
5.
According to clause 11.4 of the contract:
“If [the Respondent] is in default to pay all or part of salary, other remuneration or
bonuses to [the Claimant] for over three (3) months. The Parties expressly declare that
the delay by [the Respondent] in paying the agreed salary in two three (3) monthly
instalments shall entitle [the Respondent] to automatically terminate this Contract with
just cause, with the right to receive as an indemnity due to the breach by [the
Respondent] the amounts established in clause 12.2 of this Contract, with this situation
being treated, as regards its consequences, as the same as that of the unilateral
termination without just cause on the part of the Club”.
6.
According to clause 12.2. of the contract:
“In case the Contract is terminated on expiration, cancelled within the term of contract
through negotiation between both parties and cancelled within the term of contract for
[the Respondent]'s fault, [the Claimant] can transfer to any club in any country and [the
Respondent] has no right to intervene provided that Party B doesn't fall into the range of
the next section, without affecting [the Claimant]'s rights for compensation”.
7.
According to clause 13 of the contract:
“13.1. Either party shall undertake the compensation or remedy to the other party according
to losses and responsibilities caused by the party's breach of the contract and therefore
causing economic losses to the other party. If [the Claimant] repeatedly does not obey [the
Respondent] 's arrange of training and matches, [the Respondent], after 3 written warnings,
can deem that [the Claimant] resigns and [the Respondent] can make the transfer processing
for [the Claimant]and the penalty shall be accord to the above regulation.
13.2.Pursuant to Article 17 of Regulations on the Status and Transfer of Players of the FIFA
and in order to preserve the contractual stability enshrined by FIFA, if [the Respondent]
decides to terminate this Contract unilaterally without cause before the termination of its
duration , excluding the termination caused by the breach of [the Claimant] and the
termination by [the Respondent] according to the Article 10.1 and Article l 0.2 of this
Contract, [the Respondent] shall pay [the Claimant] all the salaries and bonuses pending
at the date of termination and the salaries and bonuses until December 31st, 2022. Under no
circumstance, the amount of the salaries resulting from the anticipated termination of this
Contract shall be under the figure that results from subtracting from € 8,200,000.00 (EIGHT
MILLION and TWO HUNDRED THOUSAND EUROS) net, the net amount paid by [the
Respondent] for salary, excluding bonuses, until the date of this hypothetical termination.
As to the amounts stipulated herein and method of payment the Parties declare as fair and
just for the subscription of the Contract and [the Respondent] and [the Claimant] undertake
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REF. FPSD-8345
not to dispute in front of any authority or to attempt to denounce, reduce or annul for no
other reason other than those, and only those, mentioned in the present Contract. In the
event that the Contract is extended until 31 December 2023, [the Respondent] shall pay the
reminder of the Contract in full in the case of unilateral termination without just cause.
This clause constitutes an essential and determining factor of this Contract, without with it
the present document would not have been executed by the Parties
13.3. If [the Respondent] violates the provisions stipulated in the Employment Contract to
terminate Employment Contract or Employment Contract is invalid due to Party A's causes,
Party A shall compensate for [the Claimant]'s losses in accordance with rules of FIFA”.
8.
By correspondence dated 16 April 2022, the Claimant sent a termination notice to the
Respondent as follows:
“(…) according to clause 11.2(4) of the Agreement, states that “This contract may be
terminated by [the Claimant] by notifying [the Respondent]
(4) If [the Respondent] is in default to pay all or part of salary, other remuneration or bonuses
to [the Claimant] for over three (3) months. The Parties expressly declare that the delay by
[the Respondent] in paying the agreed salary in two three (3) monthly instalments shall entitle
[the Claimant] to automatically terminate this Contract with just cause, with the right to
receive as an indemnity due to the breach by [the Respondent] the amounts established in
clause 12.2 of this Contract, with this situation being treated, as regards its consequences, as
the same as that of the unilateral termination without just cause on the part of the Club”.
Also, according to clause 12.2 of the Contract states that we are entitled to claim the full
payment of the Contract.
The final deadline for payment was on 15th April 2022.
We hereby communicate the termination of the contract due to just cause on the part of the
Club (…)”.
9.
On 19 July 2022, the player signed an employment contract with the Turkish club
Antalyspor valid as from 19 July 2022 until 31 May 2024. According to the relevant
employment agreement, the Player will be entitled from 30 August 2022 until 31
December 2022 the total amount of EUR 212,500 net.
II. Proceedings before FIFA
10.
On 24 November 2022 the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
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REF. FPSD-8345
a. Position of the Claimant
11.
The Claimant argued that based on clauses 11. (4) and 13.2 of the contract, he notified the
Club the breach of the contract without just cause considering that the Club failed to pay
the overdue salaries (April 2020 salary (EUR 323,000 gross), the pre-payment salary (EUR
1,086,000 gross) and the 2022 season’s salary EUR 3,230,000 gross).
12.
The Claimant alleged that the club failed to satisfy its financial obligations as stipulated in
the Contract and the Termination Agreement and therefore, violated article 12bis of the
Regulations on the Status and Transfer of Players (RSTP). The Claimant considered that
the Respondent has not yet paid the amount of EUR 4,316,000, that no prima facie has
been met and the Claimant has put the Club in default granting a deadline of at least 10
days.
13.
The requests for relief of the Claimant, were the following:
a) “The Respondent has failed to satisfy any of its financial obligations according to the
Contract.
b) That the Respondent is to pay to the Claimant the total amount of FOUR MILLION SIX
HUNDREED THIRTY NINE THOUSAND EUROS GROSS (€ 4.639.000,00) within 45 days of
the issuance of the award, in satisfaction of the obligations and terms of the Contract.
c) That the Respondent be warned as a sanction in accordance with article 12 Bis (1) (a)
of the FIFA RSTP.
d) Should the Respondent fail to pay the Claimant the full amount within 30 days,
including interest, the cost of the proceedings and the legal fees, that the Panel impose
the most severe sanctions contemplated under article 12 Bis (4) including a fine or a
ban from registering any new players, either nationally or internationally, for two
entire and consecutive registration periods.
e) That the Respondent covers the entire cost of the proceedings”.
b. Position of the Respondent
14.
In spite of having invited to do so, the Respondent did not submit its position to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15.
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 24 November 2022 and
submitted for decision on 12 April 2023. Taking into account the wording of art. 34 of the
March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
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REF. FPSD-8345
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
16.
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 RSTP (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 Sweden and a club from China.
17.
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 RSTP (October 2022 edition), and considering that the present claim was
lodged on 24 November 2022, the October 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Admissibility
18.
At this point, the Chamber referred to art. 23 par. 3 of the Regulations, which stipulates
that the decision-making bodies of FIFA shall not hear any dispute if more than two years
have elapsed since the facts leading to the dispute arose. The application of this time limit
shall be examined ex officio in each individual case.
19.
In this context, the Chamber recalled that the present claim was lodged in front of FIFA
on 24 November 2022. Therefore, in line with art. 23 par. 3 of the Regulations, any
amounts fallen due before 24 November 2020 are affected by the statute of limitations.
20.
The Chamber noted that, in the present case, the Claimant inter alia requested the
payment of April 2020 salary. The Chamber thus concluded that the Claimant’s request is
partially time-barred. Consequently, the specific part of the Claimant’s claim related to the
payment of EUR 180,000 net/EUR 323,000 gross is considered inadmissible.
c. Burden of proof
21.
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).
d. Merits of the dispute
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REF. FPSD-8345
22.
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
23.
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.
24.
As a preliminary remark the Chamber wished to point out that the Claimant based his
claim under art. 12bis of the Regulations, however, the case at hand pertains to a case of
breach of contract and the analysis by the Chamber was carried under articles 14 and 17
of the Regulations, since art. 12bis governs only overdue payables.
25.
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 contract was terminated with just cause
by the Claimant. In doing so, the Chamber underlined that the Respondent failed to
present its reply to the claim of the Claimant, and therefore its decision would be made
on the basis of the documentation on file, that is, the argumentation and evidence filed
by the Claimant, in line with article 14 par. 1 of the Procedural Rules.
26.
The Chamber noted that at the moment of the termination of the contract on 16 April
2022, the Claimant claimed not having received his salaries for April 2020 of EUR 180,000
net and the pre-payment season payment of EUR 600,000 due on 15 January 2022, thus
more than two salaries were due at the termination date. The Chamber further noted that
the Respondent did not contest the termination on the basis that it paid any of the
instalments mentioned.
27.
The DRC highlighted in consideration of the foregoing that the Respondent had repeatedly
and for a significant period been in breach of its contractual obligations towards the
Claimant. Consequently, the Chamber concluded that the Claimant had just cause to
unilaterally terminate the employment relationship based on art. 14 of the Regulations.
ii. Consequences
28.
Having stated the above, the Chamber turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
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REF. FPSD-8345
29. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the 2022 prepayment salary (EUR 600,000 net) and the March 2022 instalment (EUR 180,000 net) under
the contract, amounting to EUR 780,000 net.
30. 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
780,000 net (i.e., EUR 600,000 plus EUR 180,000).
31. 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.
32. 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.
33. In this regard, the Chamber took note of the wording of clause 13 of the contract and after
analysing the content of the aforementioned clause, the Chamber concluded that it did not
fulfil the criteria of reciprocity, in line with the longstanding jurisprudence of the Football
Tribunal, and therefore could not be taken into account for establishing the amount of
compensation payable to the Claimant.
34. 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.
35. 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 1,620,000 net (i.e., 9 times EUR 180,000) serves as the
basis for the determination of the amount of compensation for breach of contract.
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REF. FPSD-8345
36. 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.
37. Indeed, the Player found employment with the club Antalyspor. In accordance with the
pertinent employment contract, the Player was entitled to EUR 212,500 from 30 August
2022 until 31 December 2022. Therefore, the Chamber concluded that the player mitigated
his damages in the total amount EUR 212,500.
38. 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.
39. In this respect, the DRC decided to award the amount of additional compensation of EUR
600,000, (i.e. (EUR 1,800,000 plus EUR 600,000) / 12 * 3), which amounts to three times the
monthly average remuneration of the player, especially considering that the received a
substantial portion of his remuneration in a non-monthly fashion. However, the Chamber
recalled that even if awarding such additional compensation and considering the
mitigation, by virtue of art. 17 par. 2 of the Regulations the overall compensation payable
to a player cannot exceed the residual value of the prematurely terminated contract.
40. 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 1,620,000 net which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
41. The Chamber took note that the Claimant did not request interests on the amounts
claimed, thus in line with the principle ne ultra petita it shall not be awarded.
42. Lastly, the DRC was mindful that the Claimant further requested the amounts in gross.
However, the Chamber point out that the amounts granted in this decision are net as
indicated in the contract.
iii. Compliance with monetary decisions
43. 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
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REF. FPSD-8345
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.
44. 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.
45. 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.
46. 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.
47. 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.
e. Costs
48. 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.
49. 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.
50. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8345
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sam Larsson, is partially accepted.
2.
The Respondent, Dalian Professional FC, must pay to the Claimant the following amounts:
- EUR 780,000 net as outstanding remuneration;
- EUR 1,620,000 net as compensation for breach of contract without just cause.
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
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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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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