Labour Disputes
Texto da decisão
REF. FPSD-8770
Decision of the
Dispute Resolution Chamber
passed on 12 April 2023
regarding an employment-related dispute concerning
the player Raoul Cedric Loe
BY:
HENDEL Clifford J. (USA & France), Deputy Chairperson
DOS SANTOS MEGALE Andre (Brazil), member
GAUCI Sihon (Malta), member
CLAIMANT:
Raoul Cedric Loe, France
RESPONDENT:
Shaanxi Chang'an Athletic FC, China PR
pg. 2
REF. FPSD-8770
I. Facts of the case
1.
On 1 March 2021, the French player Raoul Cedric Loe (hereinafter: the Player or the
Claimant) and the Chinese club Shaanxi Chang'an Athletic FC (hereinafter: the Club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid as from the
date of signature until 28 February 2023.
2.
In accordance with clause 3 of the contract, the Respondent undertook to pay the Claimant
the following amounts, inter alia:
-
3.
From 1 March 2021 until 31 December 2021: CNY 2,138,000 gross / CNY 1,350,000 net.
Form 1 January 2022 until 31 December 2022 CNY 2,565,600 gross / CNY 1,620,000 net.
From 1 January 2023 until 28 February 2023 CNY 427,600 gross / CNY 270,000 net.
In accordance with clause 3.2 of the contract, the Player was entitled to the following
bonuses:
“3.2.1. Goal bonus: CNY 13,000.00/goal (2 assists equals 1 goal).
3.2.2. If during the contract period, [the Respondent] have been promoted to Chinese Super
League C replacement is invalid), [the Player] will be paid bonus CNY520000. 00 after tax.
If during the contract period, [the Respondent] have been reached to top 6 place (including the
6th place) in Chinese League 1, [the Player] will be paid bonus CNY 400000. 00 after tax.
If during the contract period, [the Respondent] have been reached to top 6 place (including the
10th place) in Chinese League 1, [the Player] will be paid bonus CNY 250000.00 after tax.
If during the contract period, [the Respondent] have been avoid relegation from Chinese
League 1 (replacement is invalid), [the Player] will be paid bonus CNY 130000.00 after tax.
3.2.3. Playing time of total games time bonus (the ban and injury due to personal reason and
flagrant foul are NOT included in the time calculation)
If the playing time of [the Player] have Reached 80% of the total league playing time of first
team in any season, [the Player] will be paid bonus CNY 650000.00 after tax.
If the playing time of [the Player] have Reached 70% of the total league playing time of first
team in any season, [the Player] will be paid bonus CNY 520000.00 after tax. And the basic
salary will raise 20°/o from the first matchday of the following season.
If the playing time of [the Player] have Reached 60% of the total playing time in any season,
Part B will be paid bonus CNY 400000.00 after tax.
If the playing time of Part B have Reached 50% of the total league playing time of first team in
any season, [the Player] will be paid bonus CNY 250000.00 after tax. And the basic salary will
raise 15% from the first matchday of the following season.
If the playing time of [the Player] have Reached 40% of the total league playing time of first
team in any season, [the Player] will be paid bonus CNY 130000.00 after tax.
pg. 3
REF. FPSD-8770
The final number of these above bonuses in 2) and 3) shall be paid with the highest standard
reached by [the Player] and shall not be accumulated”.
4.
In accordance with clause 3.6 of the contract:
“Before-tax amounts under this Contract refer to amounts including all taxes and fees that Party
B shall pay arising from the income obtained from [the Respondent]. Before [the Respondent]
pays [the Player] each installment of the amounts agreed under this Contract, [the
Respondent] 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 of the People's Republic of China (hereinafter referred to
as "China11). 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]”.
5.
In accordance with the contract, the salary would be paid in equal monthly instalments “for
the last month on the 15th day of every month”.
6.
On an unspecified date, the Respondent provided the Claimant with a payment schedule
(hereinafter: the payment schedule). According to it, the Respondent stated that until 13 May
2022 the net amount due by the Club to the Claimant was CNY 1,590,487.50:
-
“Salaries (Month 12 of 2021; Month 1,2,3,4 of 2022): RMB 675,000
Bonuses (Goals and achievements of 2021): RMB 813,000
Match Bonuses (after whole year ratepaying of 2020): RMB 77,590
Match Bonuses (after whole year rate paying of 2021): RMB 24,897.5”
7.
The payment schedule also indicated that the amount of CNY 1,050,487.50 would be paid
on 30 May 2022 and the amount of CNY 540,000 would be paid on 30 June 2022. As to the
later payment, it would be increased by CNY 135,000 (May salary) if May salary is not paid
until 30 June 2022.
8.
On 3 August 2022, as acknowledged by the Player, the Respondent paid the amount of CNY
315,146.25 corresponding to a partial payment of the first instalment of the schedule
payment.
9.
On 28 August 2022, as acknowledged by the Player, the Respondent paid January 2022
salary.
10. By correspondence dated 6 December 2022, the Claimant put the Respondent in default
of payment of CNY 2,864,591.25 corresponding to 70% of the 2020/2021 salaries & bonuses
debt, 2022 salaries between February and October and 2022 bonuses, setting a 15 days’
time limit in order to remedy the default.
pg. 4
REF. FPSD-8770
11. On 22 December 2022, the Claimant terminated the contract as the due salaries remained
allegedly unpaid.
12. Following the termination of the contract, the Claimant remained unemployed.
II. Proceedings before FIFA
13. On 28 December 2022, 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
14. The Claimant filed a claim against the Respondent for breach of contract requesting the
payment of the outstanding remuneration, compensation for breach of contract and
compensation for payment of the French taxes.
15. The Claimant argued that he had just cause to terminate the contract in accordance with
the conditions stipulated in art. 14bis of the Regulations on the Status and Transfer of
Players (RSTP).
16. As to the payment of taxes, the Claimant argued that he is no longer a tax resident in China
as from 1 January 2023, he became a French tax resident. The Claimant stated that the
“amounts received during the year 2023 will be taxed at 45% according to French law. I would
like as compensation 1 568 516.06¥ because all the amounts of the contracts that I had to
receive were after taxes”.
17. The requests for relief of the Claimant, were the following:
A)
-
CNY 3,485,591.25 plus 5 % interest per year from the due dates, as follows:
CNY 735,341.25: 70% of 1,050,487.5 – 2021 debt (cf. schedule payment).
CNY 540,000: February 2022 to May 2022.
CNY 1,086,750: June 2022 to December 2022.
CNY 400,000: 60% appearance in matches in the 2022 Chinese league.
CNY 400,000: 6th place in the 2022 Chinese league.
CNY 13,000: 2022 goal bonus.
CNY 311,525: as compensation (2 months).
B) CNY 1,568,516.06 as compensation to pay French taxes.
b. Position of the Respondent
18. In spite of having invited to do so, the Respondent did not submit its position to the claim.
pg. 5
REF. FPSD-8770
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 28 December 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:
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
20. 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) 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 France and a club from China.
21. 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 RSTP (October 2022 edition) and considering that the present claim was lodged on
28 December 2022, 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
22. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
23. 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.
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REF. FPSD-8770
i. Main legal discussion and considerations
24. 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.
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 formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled. 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 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 obligations.
27. The Chamber noted that the Claimant claims not having received his remuneration from
February 2022 until November 2022, plus the remaining amount of the 2021/2022 bonuses
and the remaining amount of 2021 December salary. Furthermore, the Chamber noted
that the Claimant has provided written evidence of having put the Respondent in default
on 6 December 2022 i.e., at least 15 days before unilaterally terminating the contract on 22
December 2022.
28. 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. Nonetheless, no evidence was provided.
29. 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
30. 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.
31. The Chamber first took note of the request of the Player to provide him with CNY
1,568,516.06 as compensation in order to pay his French taxes. In this context, the
pg. 7
REF. FPSD-8770
Chamber observed that the amounts provided in the contract were net amounts. The
Chamber further recalled the wording of clause 3.6 of the contract according to which:
“… 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 Claimant]”.
32. In view of the foregoing, the Chamber concluded that the amounts due to the Claimant are
net in respect of the taxes due in Mainland China, which therefore excluded any amounts
payable to the French tax authorities. As such, and based on the clear contractual
disposition agreed under the contract, this part of the claim was rejected by the DRC.
33. With regards to the outstanding remuneration, the Chamber observed that the Player
recognised that the club paid his salary of January 2022 (CNY 135,000) and the amount of
CNY 315,146.25.
34. The Chamber concluded that the outstanding remuneration at the time of termination was
2,220,341.25 net in view of the below considerations:
a)
CNY 1,140,341.25 net (CNY 1,590,487.50 less CNY 450,146.25) corresponding to the
remaining amount due by the Club according to the payment schedule:
-
b)
CNY 32,443.75 net corresponding to the remaining salary of February 2022.
CNY 135,000 net corresponding to March 2022 salary.
CNY 135,000 net corresponding to April 2022 salary.
CNY 813,000 net corresponding to 2021 goal and achievements as recognized by the
Club in the payment schedule.
CNY 24,897.50 net corresponding to 2021 match bonuses as recognized by the Club
in in the payment schedule.
CNY 1,080,000 net corresponding to the salaries between May 2022 and December
2022
35. 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., CNY
2,220,341.25.
36. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the following dates:
-
On the amount of CNY 32,443.75 net as from 16 March 2022.
On the amount of CNY 135,000 net as from 16 April 2022.
On the amount of CNY 135,000 net as from 16 May 2022.
pg. 8
REF. FPSD-8770
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On the amount of CNY 813,000 net as from 30 May 2022;
On the amount of CNY 24,897.50 net as from 30 May 2022.
On the amount of CNY 135,000 net as from 16 June 2022.
On the amount of CNY 135,000 net as from 16 July 2022.
On the amount of CNY 135,000 net as from 16 August 2022.
On the amount of CNY 135,000 net as from 16 September 2022.
On the amount of CNY 135,000 net as from 16 October 2022.
On the amount of CNY 135,000 net as from 16 November 2022.
On the amount of CNY 135,000 net as from 16 December 2022.
On the amount of CNY 135,000 net as from 22 December 2022.
37. With regards to the 2022 bonuses requested (i.e., CNY 400,000 related to 60% appearance
in matches in the 2022 Chinese league; CNY 400,000 related to the 6th place in the 2022
Chinese league and CNY 13,000: 2022 goal bonus) as per clause 3.2 of the contract said
amounts are conditional payments. As such, the Claimant bore the burden of proving that
said payments are due and he should have demonstrated that the triggering event for the
bonuses in question had taken place. Nonetheless, no evidence was provided by Claimant.
38. Consequently, the Chamber decided that the Claimant failed to meet his burden of proof
and this part of the claim should be rejected.
39. 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.
40. 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.
41. 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-8770
42. 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 CNY 270,000 net serves as the basis for the determination
of the amount of compensation for breach of contract.
43. 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.
44. In this respect, the Chamber noted that the Player remained unemployed since the
unilateral termination of the contract.
45. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the Player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
46. In this respect, the Chamber decided to award the Player compensation for breach of
contract in the amount of CNY 270,000 net as the residual value of the contract.
47. 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 from 22 December 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
48. 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.
49. 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.
pg. 10
REF. FPSD-8770
50. 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.
51. 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.
52. 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
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-8770
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Raoul Cedric Loe, is partially accepted.
2.
The Respondent, Shaanxi Chang'an Athletic FC, must pay to the Claimant the following
amounts:
CNY 32,443.75 net as outstanding remuneration plus 5% interest p.a. as from 16
March 2022 until the date of effective payment;
b. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16 April
2022 until the date of effective payment;
c. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16 May
2022 until the date of effective payment;
d. CNY 813,000 net as outstanding remuneration plus 5% interest p.a. as from 30 May
2022 until the date of effective payment;
e. CNY 24,897.50 net as outstanding remuneration plus 5% interest p.a. as from 30
May 2022 until the date of effective payment;
f. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16 June
2022 until the date of effective payment;
g. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16 July
2022 until the date of effective payment;
h. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16
August 2022 until the date of effective payment;
i. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16
September 2022 until the date of effective payment;
j. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16
October 2022 until the date of effective payment;
k. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16
November 2022 until the date of effective payment;
l. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 16
December 2022 until the date of effective payment;
m. CNY 135,000 net as outstanding remuneration plus 5% interest p.a. as from 22
December 2022 until the date of effective payment;
n. CNY 270,000 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 22 December 2022 until the date of effective payment;
a.
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:
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REF. FPSD-8770
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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REF. FPSD-8770
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14