Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 January 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Daan de Jong (The Netherlands ), member
Alex andra Góm ez Bruinew oud (Uruguay ), member
on the claim presented by the player,
As s ani Lukimy a, Germany
represented by Mr Joachim Rain
as Claimant
and the club,
Liaoning FC, China PR
represented by Mr Giandonato Marino and Mr Tomas Pereda
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 13 January 2016, the German player Assani Lukimya (hereinafter: the player or
the Claimant) and the Chinese club Liaoning FC (hereinafter: the club or the
Respondent) signed an employment agreement valid as from the date of signature
until 31 December 2017.
2.
On 14 April 2017, the employment agreement was extended for the period from 1
January 2018 until 31 December 2019 (hereinafter: the contract).
3.
According to art. 10.1 of the contract, the player was entitled to a monthly
remuneration of EUR 100,000, payable by the 15th day of the next month.
4.
According to art. 11.6 of the contract, the player was entitled to six round-trip
business class plane tickets from Germany to Shenyang, China, for himself, his wife
and children.
5.
Furthermore, according to art. 11.7 of the contract, the player was entitled to a
monthly housing allowance of RMB 5,000.
6.
According to art. 22 of the contract, “If [the club] arrears the payment of salary
and bonus to [the player] for over 90 days or more days, [the player] has the right
to ask to terminate the contract”.
7.
Art. 18 of the contract stipulates the following: “if [the player] cancels or
terminates the contract by himself for whatever described reason (including
sporting just cause) without the permission of [the club], [the player] shall pay
2,000,000 USD as the penalty”.
8.
According to the player, by 3 December 2018, the club failed to pay the monthly
salaries of August, September and October 2018, as well as bonuses for winning
two matches in the amount of RMB 176,000.
9.
In this respect, the player explained that the club acknowledged its debt in writing
on 2 October 2018 and committed to pay “at least two salaries before November
15, 2018 and the remaining debt until November 30, 2018”. However, according
to the player, no further payments were made.
10.
As a consequence, by means of a letter dated 3 December 2018 and sent to the
club by email on 4 December 2018, the player put the club in default of payment
of the total amounts of EUR 300,000 and RMB 176,000, granting the club a
deadline to pay until 19 December 2018.
Player Assani Lukimya, Germany / Club Liaoning FC, China PR
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11.
On 21 December 2018, considering that no further payments were made by the
club, the player terminated the contract in writing, invoking just cause in view of
the aforementioned outstanding amounts, and added the outstanding salary for
the month of November 2018 which had fallen due in the meantime.
12.
On 30 January 2019, the player lodged a claim in front of FIFA against the club for
outstanding remuneration and compensation for breach of contract. In particular,
the player requested the following amounts:
-
-
EUR 1,246,499.70 and RMB 60,000 as compensation for breach of contract
plus interest as from 12 January 2019, of which the amount in EUR is
composed of 12 monthly salaries for the year 2019, as well as EUR 46,499.70
for the plane tickets; and the amount in RMB based on housing allowance
for the year 2019;
EUR 300,000 as additional compensation based on the “specificity of sport”.
13.
Furthermore, the player explained that, on 11 January 2019, the player received all
outstanding amounts until 31 December 2018. In this respect, the player argued
that the payment of the outstanding salaries by the club does not cure the breach
and, therefore, he insisted having terminated the contract with just cause.
14.
After the player’s initial claim had been forwarded to the club on 18 February 2019
and no response had been received within the relevant deadline, the player
reverted to FIFA on 2 April 2019, explaining that the parties had concluded a
settlement agreement including a payment plan until August 2019. In this respect,
the player requested FIFA to suspend the proceedings and explained that the
parties agreed that he had the right to resume the proceedings in the event the
club did not comply with the payment plan.
15.
On 3 July 2019, the player explained that the club had failed to pay the first two
instalments that fell due on 31 May 2019 and 30 June 2019 in accordance with the
settlement agreement. Consequently, the player requested FIFA to resume the
proceedings and reiterated his request for relief set out in his initial claim.
16.
After having been invited to comment on the player’s submissions of 2 April 2019
and 3 July 2019, the club stated that it was facing financial difficulties, of which it
had informed the player on 2 October 2018.
17.
Furthermore, the club argued that the termination of the contract was not
properly executed by the player. In this respect, firstly, the club argued that art.
14bis of the FIFA Regulations on the Status and Transfer of Players does not apply
as an alternative provision was established in the contract. Secondly, the club
referred to art. 22 of the contract and maintained that, at the moment that the
Player Assani Lukimya, Germany / Club Liaoning FC, China PR
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player sent his default notice on 4 December 2018, not more than three monthly
salaries were outstanding.
18.
Moreover, the club requested that the DRC reduce the compensation due to the
player. In this respect, the club pointed out that the player signed an employment
contract with the German club, KFC Uerdingen 05 on 31 January 2019.
Furthermore, the club argued that the player did not suffer any damage as a result
of the termination of the contract, considering that the club paid him the
outstanding amounts on 11 January 2019 and offered the player to return to the
club for the remainder of 2019.
19.
In continuation, the club argued that the amounts for flight tickets and housing
claimed by the player shall not be part of the compensation for breach of contract.
In this respect, the club argued that the housing allowance was only due to the
player during his stay in Shenyang. As to the flight tickets, the club contested that
each member of the player’s family was entitled to six round-trip tickets. The club
maintained that no further flight tickets were due to the player, as it had already
provided him with eight round-trip flight tickets, thereby exceeding its obligation
in accordance with the contract.
20.
Upon request of FIFA, the player provided a copy of the employment contract
concluded with the German club, KFC Uerdingen 05, valid as from 30 January 2019
until 30 June 2020. According to the contract, the player is entitled to a monthly
salary of EUR 15,000.
II.
Cons iderations of the DRC
1.
First, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
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 January 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 DRC referred to art. 3 par. 2 and par. 3 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) it is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a German
player and a Chinese club.
Player Assani Lukimya, Germany / Club Liaoning FC, China PR
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3.
Furthermore, the DRC 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 par. 2 of the Regulations on the Status and Transfer of Players (edition
January 2020), and considering that the present claim was lodged on 30 January
2019, the October 2019 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. Subsequently, the
DRC continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter.
However, the DRC 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.
First of all, the DRC acknowledged that on 13 January 2020, the player and the club
signed an employment agreement, valid as from the date of signature until 31
December 2017.
6.
Furthermore, the DRC acknowledged that on 14 April 2017, the parties extended
such employment agreement for the period from 1 January 2018 until 31
December 2019.
7.
The DRC then reviewed the claim of the player, who maintains that he had just
cause to terminate the contract on 21 December 2018, as the club failed to comply
with its financial obligations. Consequently, the Claimant asked to be awarded,
inter alia, payment of his outstanding remuneration as well as compensation for
breach of contract.
8.
The DRC then turned its attention to the arguments of the club and acknowledged
that the latter did argued that the termination of the contract was not properly
executed by the player. In this respect, the DRC took note that the club submitted
that art. 14bis of the FIFA Regulations on the Status and Transfer of Players does
not apply as an alternative provision was established in the contract. Moreover,
the DRC noted that the club maintained that, at the moment that the player sent
his default notice on 4 December 2018, not more than three monthly salaries were
outstanding.
9.
In view of the foregoing, the DRC deemed that the first issue to be solved is
whether the player had just cause to terminate the contract on 21 December 2018.
In so doing, the DRC proceeded with an analysis of the parties’ arguments as well
as of the documentation on file, bearing in mind the wording of art. 12 par. 3 of
the Procedural Rules, in accordance with which any party claiming a right on the
basis of an alleged fact shall carry the burden of proof.
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10.
In continuation, taking into account the consideration under point II.3 above, the
DRC referred to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates
that, in case a club unlawfully fails to pay a player at least two monthly salaries on
their due dates, the player will be deemed to have had a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has
granted it a deadline of at least 15 days to fully comply with its financial
obligations.
11.
Consequently, on account of the above, the DRC observed that when the player
terminated the contract, the amount equivalent to four monthly salaries had fallen
due and remained unpaid, despite the fact that the Claimant had put the
Respondent in default. As such, the DRC concluded that, on 21 December 2019, the
Claimant had a just cause to unilaterally terminate the employment contract.
12.
As a result, the DRC decided that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant.
13.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the DRC focused its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC established that the Claimant is entitled to receive from the
Respondent compensation for breach of contract, in addition to any outstanding
payments on the basis of the relevant employment contracts.
14.
Subsequently, prior to establishing the consequences of the termination of the
employment contract with just cause by the Claimant in accordance with art. 17
par. 1 of the Regulations, the DRC held the Claimant would be entitled to the
unpaid remuneration as established above at the moment when the contract was
terminated by the Claimant. Nevertheless, the DRC noted that the Claimant
recognizes to have received on 11 January 2019 all outstanding amounts until 31
December 2018. The DRC hence concluded that no unpaid remuneration is owed
by the Respondent to the Claimant.
15.
In continuation, the DRC focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the DRC 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 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.
Player Assani Lukimya, Germany / Club Liaoning FC, China PR
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16.
In application of the relevant provision, the DRC held that he first of all had to
clarify as to whether the pertinent employment contracts contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of contract.
In this regard, the DRC established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
17.
As a consequence, the members of the DRC determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
DRC recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of
compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body. In this regard, the DRC emphasised
beforehand that each request for compensation for contractual breach has to be
assessed by the DRC on a case-by-case basis taking into account all specific
circumstances of the respective matter.
18.
The DRC then turned his attention to the remuneration and other benefits due to
the Claimant under the existing contract and/or the new contract, which criterion
was considered by the DRC to be essential. The DRC deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to
take into account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
19.
Bearing in mind the foregoing, the DRC proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from
the date of termination with just cause by the Claimant until its natural expiration.
As such, the DRC observed that the player would be entitled to a remuneration of
EUR 1,200,000 and RMB 60,000 for the period as from January 2019 until December
2019. Consequently, the DRC concluded that such amounts serve as the basis for
the final determination of the amount of compensation for breach of contract in
the case at hand.
20.
To this extent, the DRC wished to highlight that the player was contractually
entitled to 6 business-class plane tickets. However, the DRC took note of the fact
that the club had provided him with 8 business-class plane tickets, therefore
complying with the contract’s stipulations. Consequently, the DRC concluded that
such request by the player had to be rejected and therefore not included in the
calculation of compensation.
21.
In continuation, the DRC verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
Player Assani Lukimya, Germany / Club Liaoning FC, China PR
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means of which he would have been enabled to reduce his loss of income.
According to art. 17 par. 1 lit. ii) of the Regulations as well as the constant practice
of the DRC, 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.
22.
In this respect, the DRC recalled that the Claimant had found new employment
with the German club, KFC Uerdingen 05, as from 30 January 2019 until 30 June
2020, leading to total value for the period corresponding to the time remaining on
the prematurely terminated contract of EUR 165,000, which shall be deducted from
the above-mentioned residual value. As a result, the DRC established that the
“Mitigated Compensation” amounts to EUR 1,035,000 and RMB 60,000.
23.
Subsequently, the DRC turned its attention once more to art. 17 par. 1 lit. ii) of the
Regulations, according to which a player is entitled to an “Additional
Compensation” of three monthly salaries on top of the “Mitigated
Compensation”, subject to the early termination of the contract being due to
overdue payables. Furthermore, said provision established that the overall
compensation may never exceed the rest value of the prematurely terminated
contract.
24.
Therefore, taking into consideration both the player’s monthly salary under the
prematurely terminated contract, which the DRC deemed to be EUR 100,000, and
the aforementioned provision of the Regulations that the overall compensation
may never exceed the rest value of the prematurely terminated contract, the DRC
decided to award the Claimant additional compensation in the amount of EUR
165,000.
25.
Consequently, on account of the above-mentioned considerations, the DRC
decided to partially accept the Claimant’s claim and held that the Respondent must
pay the amount of EUR 1,200,000 and RMB 60,000 as compensation for breach of
contract to the Claimant, which is considered by the DRC to be a fair and
reasonable amount.
26.
In addition, taking into account the player’s request and the DRC’s well-established
jurisprudence, the DRC decided that the club must pay to the player interest of 5%
p.a. on the amounts of EUR 1,200,000 and RMB 60,000 as of the date on which the
claim was lodged, i.e. 30 January 2019, until the date of effective payment.
27.
The DRC concluded its deliberations by rejecting any further claim of the Claimant.
28.
Furthermore, taking into account the consideration under number II./3. above, the
DRC referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that,
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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.
29.
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.
30.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become
effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
31.
Finally, the DRC recalled that the above-mentioned sanction will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Assani Lukimya, is partially accepted.
2.
The Respondent, Liaoning FC, has to pay the Claimant compensation for breach of
contract in the amount of EUR 1,200,000 and RMB 60,000, plus 5% interest p.a. as
from 30 January 2019 until the date of effective payment.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under point III./2. above.
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5.
The Respondent shall provide evidence of payment of the due amounts in
accordance with point III./2. above to FIFA to the e-mail address [email protected],
duly translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).
6.
In the event that the amounts due plus interest in accordance with point III./2.
above are not paid by the Respondent within 45 days 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 amounts are paid and for the maximum duration of three entire
and consecutive registration periods (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
7.
The ban mentioned in point III./6. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
8.
In the event that the aforementioned sums 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 relating to the m otiv ated decis ion (legal remedy):
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
Player Assani Lukimya, Germany / Club Liaoning FC, China PR
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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 (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Assani Lukimya, Germany / Club Liaoning FC, China PR
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