Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 January 2014,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player S, from country B
as Claimant / Counter-Respondent
against the club,
Club B, from country P
as Respondent / Counter-Claimant
with the club,
Club C, from country B
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
Facts relating to the preliminary issue on the competence of the DRC:
1.
On 31 July 2009, the Player S, from country B (hereinafter: player or
Claimant/Counter-Respondent), and Club B, from country P (hereinafter: club or
Respondent/Counter-Claimant), signed an employment contract, valid as from 1
August 2009 until 30 June 2014, which contains the following final clause: ”The
cases and situations that are not in this contract are subject to CCT [Note: collective
bargaining agreement] Regulation, signed by the country P Professional Football
League and the National Syndicate of Professional Football Players, regardless
players are syndicated or not”.
2.
On 19 August 2010, the player lodged a claim against Club B in front of FIFA
maintaining that the latter terminated the employment contract without just cause
and asking inter alia to be awarded compensation for breach of contract.
3.
The club contests FIFA’s competence to deal with the present matter and, in this
regard, invokes:
i. art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of
Players;
ii. articles 54 and 55 and annex II of the collective bargaining
agreement (country C Football Association) between the country P
professional football league and union of professional football
players.
4.
According to Club B, the collective bargaining agreement provides for a Joint
Arbitration Committee (JAC), which purportedly meets the requirements laid down
by FIFA. In this respect, the club refers to a decision passed by FIFA’s Dispute
Resolution Chamber (DRC) on 23 March 2008, by means of which the DRC declared
itself not competent.
5.
The club presented the following documents in support of its position:
a. Collective bargaining agreement between the country P Professional
Football League and the National Syndicate of Professional Football Players,
which entered into force on 8 September 1999 along with the annexes;
b. Copy of the aforementioned DRC decision denying FIFA’s competence.
6.
Therefore, the club holds that, besides the ordinary courts, the JAC is the only
competent deciding authority in the matter at stake.
Player S, from country B / Club B, from country P / Club C, from country B
Page 2 of 19
7.
The player, for his part, insists that FIFA’s Dispute Resolution Chamber (DRC) is
competent to deal with the present matter highlighting that the employment
contract at the basis of the present matter lacks an arbitration clause. The player
deems that in order to invoke the competence of the JAC such competence should
have been explicitly included in the employment contract. In this respect, the player
refers to art. 9 of annex II of the country B Football Association which reads as
follows: “The competence of the Joint Arbitration Committee for the purpose of
article 3 paragraph c) depends on the arbitration clause”. According to art. 3 par. c)
of annex II “It falls to the Joint Arbitration Committee to: (…) c) settle disputes
arising from contract of employments which, in accordance with the law, fall
outside the scope of voluntary arbitration”.
Facts relating to the substance of the matter:
8.
In accordance with the employment contract signed between the parties on 31 July
2009, the player was entitled to receive from Club B 11 monthly salaries of EUR
16,670 each for the 2009-10 season (total of EUR 183,370) and 12 monthly salaries of
EUR 16,670 each as from the 2010-11 until and including the 2013-14 season (total
of EUR 200,040 per season).
9.
In addition, the player was entitled to receive, “according to the club’s monetary
availability”, match bonuses related to the player’s degree of participation in
specified matches.
10.
Art. 12 of the employment contract stipulates that the parties agree that in the
event of any violation of the contract and prior to any action, the other party shall
be notified in order to find a consensual solution within 30 days, failure of which
neither party will be able to invoke the termination of the contract.
11.
Art. 13 of the contract refers to the FIFA Regulations on the Status and Transfer of
Players, in particular to articles 13, 16, and 17, which are considered essential “for
the formation of will and the celebration of this contract”.
12.
Art. 14 of the contract stipulates that in the event of the player unilaterally
terminating the contract without just cause or of the club dismissing the player with
just cause, the player shall pay compensation corresponding to the payments that
would have been made during the original term of the contract as well as a penalty
of EUR 20,000,000.
Player S, from country B / Club B, from country P / Club C, from country B
Page 3 of 19
13.
On 7 August 2009, the player, Club B, and Club V, from country P (hereinafter: Club
V) signed a loan agreement in accordance with which the player was transferred on
a loan basis to Club V as from 10 August 2009 until 30 June 2010.
14.
On 31 August 2010, Club B notified the player of the termination of the
employment contract invoking just cause due to “abandonment of work” without
justification.
Player’s claim:
15.
On 19 August 2010, the player lodged a claim against the club in front of FIFA
maintaining that the club had acted in breach of contract without just cause and
therefore, he asked to be awarded:
a. Compensation of EUR 800,160;
b. An amount of money relating to match bonuses deemed fit by the DRC,
plus interest;
c. Damages;
d. Procedural costs.
16.
The player further asked that sporting sanctions be imposed on the club.
17.
The player explained that, as of February 2010, the club demonstrated that it was
no longer interested in making use of his services. In this respect, he submitted a
notary record of the verification of 4 sms messages (as from February until June
2010) that were purportedly exchanged between his country B agent, an agent in
country P and the club.
18.
The player stated that, on 7 July 2010, he personally contacted Club B in order to
inquire when he should present himself at the club, as he was allegedly previously
informed by the club that he should wait in country B for further instructions, as
Club B wanted to transfer him on loan to another club.
19.
In support of his position, the player presented a copy of the following
documentation:
a. His e-mail message of 7 July 2010 to the club, in which the player further
explicitly offered his services to the club;
b. The club’s e-mail reply to the player of 9 July 2010, in which it denies having
told the player to wait in country B and in which it points out that the
player had been absent from the club without justification as of 28 June
2010, which it considered to be a just cause for the club to terminate the
contract;
c. Further correspondence exchanged between the player’s lawyer and
country B in July 2010.
Player S, from country B / Club B, from country P / Club C, from country B
Page 4 of 19
20.
The player deemed that the club was to summon him if it would have considered
that he was failing to abide by the contract. The club did not proceed accordingly
and when it was contacted by the player in this respect, the club reacted with the
intention to terminate the contract with just cause, which is why he refrained from
travelling to country P.
Club B’s reply to the claim and counterclaim:
21.
In reply to the claim, Club B held that the player has provided a misrepresentation
of the facts and it thus denied his allegations.
22.
In particular, the club pointed out that the player was released by Club V on 10 May
2010 and informed that he should return to Club B on 1 July 2010 the latest.
23.
In addition, the club held that the notarized sms message reports cannot be
admitted as evidence, as they only show the phone numbers involved and cannot be
linked to Club B. Club B denied that it sent these messages. In this respect, the club
also highlighted that in his e-mail of 7 July 2010 the player did not at all refer to
these alleged sms messages.
24.
The club further denied that it informed the player to wait in country B and pointed
out that the player has not presented any evidence in this respect.
25.
According to the club, the player was well aware that the new season of Club B
started by the end of June 2010 and that he should have presented himself at the
latest after expiry of the loan agreement, i.e on 1 July 2010.
26.
In addition, Club B stressed that in its correspondence of 9 July 2010 it did not
terminate the contract, but merely warned/advised the player of possible
consequences of his absence from work, including disciplinary sanctions such as
dismissal for abandonment of work. The fact that the parties subsequently were
negotiating a settlement agreement proves that the contract was not terminated
on 9 July 2010. The club deemed that the player has contradicted himself during the
exchange of correspondence between the parties.
27.
The club held that after receipt of its reply to the player on 9 July 2010, the player
should have presented himself at the club instead of staying in Club B. According to
the club, the proof that the player knew that he was in violation of his duties can
also be found in his lawyer’s correspondence of 20 July 2010, in which it is indicated
that the player complied with the provision under art. 12 of the employment
contract by having sent his message of 7 July 2010 to the club.
28.
Departing from this position, the club held that it acted in accordance with art. 12
of the employment contract bearing in mind the 30 days’ time limit as of 7 July
Player S, from country B / Club B, from country P / Club C, from country B
Page 5 of 19
2010. Since no amicable agreement was reached and the player was still absent
from work without justification, the club had no other option but to terminate the
contract on 31 August 2010 with just cause due to the player’s abandonment from
work.
29.
In this context, the club highlighted that according to the country P collective
bargaining agreement, a player’s absence for at least 15 working days is considered
abandonment of work, which, according to said agreement, equals a termination
without just cause.
30.
The club stressed that the legal concept of abandonment of work has also been
recognized by FIFA as a reason for the termination of contract with just cause and it
refers to several DRC decisions in this regard.
31.
For these reasons, Club B rejected the claim of the player and lodged a counterclaim
against the player for breach of contract without just cause due to abandonment of
work asking to be awarded compensation for breach of contract plus 5% interest
p.a. and that sporting sanctions be imposed on the player. The club further asked
that the player’s new club be held jointly and severally liable for the payment of the
compensation.
32.
As regards the amount of compensation claimed, Club B refers to the collective
bargaining agreement, which stipulates that the compensation shall be not less
than the amount which would have been payable if the contract had normally
expired and to art. 14 of the employment contract.
33.
On this basis, Club B asked to be awarded compensation of EUR 800,160 plus EUR
20,000,000 or, alternatively, EUR 800,160 plus EUR 16,000,000 (EUR 20,000,000
minus EUR 4,000,000 amortization of one season).
Player’s replica and reply to the counterclaim:
34.
The player rejected the counterclaim and presented the following comments.
35.
The player highlighted that the club’s intention to terminate the contract was
evident from the fact that, in its reply to his notice of 7 July 2010, it did not even
indicate a date on which the player was to return. He added that a 7 days’ absence
could not be considered a just cause to terminate the contract.
36.
He further insisted that the notary report on the verification of the sms messages
does prove the link between Club B and the relevant intermediaries.
Player S, from country B / Club B, from country P / Club C, from country B
Page 6 of 19
37.
In addition, the player held that any violation of clause 12 of the employment
contract would result in a breach of contract. In this sense, he highlighted that his
notice of 7 July 2010 had the intention to settle a dispute based on his previous
information that the club wanted to terminate the contract. On the basis of said
article 12, the club was thus prohibited from opening a disciplinary process against
the player and terminating the contract as of 9 July 2010. The player held that the
club acted in violation of said art. 12 even when the parties tried to find an
amicable settlement, since the club never desisted from the disciplinary process
against him.
38.
The player insisted that the club’s notification of 9 July 2010 does mention a
unilateral termination of the employment contract, whereas his absence was
justified.
39.
He pointed out that he had no interest in abandoning his employment with Club B,
which was to continue for another 4 years and that he did not even have alternative
offers of employment at that time.
40.
He rejected that the collective bargaining agreement or country P law should be
applicable.
41.
In support of his position, he presented further documents, among which a “public
deed of statement” by his country B contact person. According to the player, this
statement confirms his version of the facts that occurred prior to his notice to the
club on 7 July 2010.
Club’s duplica:
42.
The club rejected the player’s allegations and insisted that it terminated the
employment contract on 31 August 2010 due to the player’s absence for over 2
months and not on 9 July 2010 as alleged by the player. It reiterated that its e-mail
reply of 9 July 2010 only indicated that the player’s absence was susceptible to
constitute a just cause for termination and that the club had the intention to open
disciplinary proceedings against him with the possible consequence that the
contract would be terminated.
43.
The club further held that it did act in accordance with art. 12 of the employment
contract and, referring to the arguments invoked by the player, pointed out that
the player did not resume duty at the club after the attempts to find an amicable
settlement within the 30 days as of 7 July 2010 had failed.
Player S, from country B / Club B, from country P / Club C, from country B
Page 7 of 19
Player’s further footballing career:
44.
On 1 March 2011, the player and Club C, from country B, signed an employment
contract valid as from 1 March 2011 until 30 November 2011. Thereafter, he signed
an employment contract with Club D, from country C, valid for 2012-13 season until
May 2013. On 31 October 2013, the player indicated having remained unemployed
since June 2013.
Comments of Club C:
45.
Club C deemed that it cannot be legally involved in the present matter between the
player and Club B due to procedural reasons and the fact that it signed an
employment contract with the player on 1 March 2011 only, i.e. after Club B lodged
its counterclaim.
46.
The club highlights that it did not and could not have induced the player to breach
of contract due to the fact that the contract with the player was signed on 1 March
2011 only.
47.
As regards art. 17 par. 2 of the aforementioned FIFA regulations, Club C points out
that such article is unsustainable in the event that the new club undoubtedly is not
involved in the breach of contract. It furthermore pointed out that its contract with
the player had already expired since 1,5 years when it was informed of the present
proceedings. This would lead to the unsustainable situation that an employer
suddenly, without previous knowledge, becomes liable for the debt of its exemployee, a considerable time after this employee has left the employer. It
emphasizes that no court would ever support such a situation.
48.
C further highlighted that during the registration procedure via the Transfer
Matching System (TMS) there were no indications with regard to pending
procedures between the player and Club B. What is more, the system indicated that
the player was free to conclude an employment contract with another club.
49.
Due to the particular circumstances of this case, Club C deemed that it cannot be
declared liable, neither jointly nor severally, for any payment of compensation.
50.
Therefore, Club C inter alia asked that the DRC, if it considers itself competent to
deal with the present matter, declare that Club C is not involved in this matter.
Alternatively, it asked that Club C shall be declared not having induced the player to
breach the employment contract with Club B and not being liable with the player
for any payment of compensation.
Player S, from country B / Club B, from country P / Club C, from country B
Page 8 of 19
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 19 August
2010. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2
of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a country B player and a country
P club.
3.
However, the Chamber acknowledged that the Respondent/Counter-Claimant
contested the competence of FIFA’s deciding bodies on the basis of art. 22 lit. b) of
the Regulations on the Status and Transfer of Players as well as articles 54 and 55
and annex II of the collective bargaining agreement between the country P
professional football league and union of professional football players. In
particular, the Respondent/Counter-Claimant alleged that the country P Joint
Arbitration Committee (JAC), which was established within the framework of the
collective bargaining agreement, meets the requirements laid down by FIFA.
4.
In this regard, the Chamber noted that the Claimant/Counter-Respondent rejected
such position and insisted that FIFA has jurisdiction to deal with the present matter.
In particular, the Claimant/Counter-Respondent argued that the relevant
employment contract does not include a jurisdiction clause and he referred to art. 9
of annex II of the collective bargaining agreement.
5.
Having said that, the members of the Chamber proceeded with an analysis of the
relevant documents on file, i.e. the employment contract as well as the collective
bargaining agreement concluded between the country P professional football
league and union of professional football players, which entered into force on 8
September 1999 along with its annexes (hereinafter referred to as country B
Football Association).
6.
First, the Chamber noted that according to the final clause of the employment
contract ”The cases and situations that are not in this contract are subject to CCT
Player S, from country B / Club B, from country P / Club C, from country B
Page 9 of 19
Regulation, signed by the country P Professional Football League and the National
Syndicate of Professional Football Players, regardless players are syndicated or not”.
For the avoidance of doubt, it was clarified that the term “CCT Regulation” refers to
the country B Football Association.
7.
The members of the Chamber deemed that by inserting said final clause in the
employment contract, the parties agreed that the employment contract is
complemented by the country b Football Association and thus the latter constitutes
an integral part of the contractual relation between the parties.
8.
In continuation, the Chamber considered it of utmost importance to highlight that
the employment contract which is at the basis of the dispute at stake does not
contain any (specific) arbitration clause or any reference to a national arbitration
body in case of a dispute between the parties.
9.
The Chamber then turned their attention to art. 9 of annex II of the country B
Football Association, which reads as follows: “The competence of the Joint
Arbitration Committee for the purpose of article 3 paragraph c) depends on the
arbitration clause”.
10.
According to art. 3 par. c) of annex II of the country B Football Association “It falls
to the Joint Arbitration Committee to: (…) c) settle disputes arising from contract of
employments which, in accordance with the law, fall outside the scope of voluntary
arbitration”.
11.
In addition, the Chamber acknowledged that according to art. 54 of the country B
Football Association, “In case of a dispute arising from this contract of employment,
it shall be submitted to the Joint Arbitration Committee, formed under the
provisions of the following article, for examination, which shall decide in accordance
with the regulations established in annex II, attaching to and forming part of this
country B Football Association …”.
12.
After careful examination of the aforementioned clauses, the Chamber highlighted
in particular that according to art. 9 of annex II of the country B Football
Association, the competence of the Joint Arbitration Committee “depends on the
arbitration clause”. In other words, the competence of the Joint Arbitration
Committee requires for the parties to include a specific arbitration clause in favour
of the Joint Arbitration Committee in their specific employment contract.
13.
As stated above, in the case at hand, as opposed to the facts of the matter which
was at the basis of the DRC decision dated 28 March 2008 invoked by the
Respondent/Counter-Claimant in its defence, the relevant specific employment
contract concluded between the Claimant/Counter-Respondent and the
Player S, from country B / Club B, from country P / Club C, from country B
Page 10 of 19
Respondent/Counter-Claimant does not include at all any arbitration clause or any
reference to a national arbitration body in case of a dispute between the parties.
14.
For this reason, without addressing the question as to whether said Joint
Arbitration Committee meets the minimum procedural standards for national
independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations
for the Status and Transfer of Players and in FIFA Circular no. 1010 and taking into
account the very specific and particular wording of the country P country B Football
Association, the Chamber established that the objection of the Respondent/CounterClaimant towards the competence of FIFA to deal with the present matter has to be
rejected due to the lack of an applicable arbitration clause. Consequently, the
Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as
to the substance.
15.
In continuation, 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 (2012), and
considering that the present claim was lodged on 19 August 2010, the 2009 edition
of said regulations (hereinafter: Regulations) is applicable to the matter at hand as
to the substance.
16.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
17.
The Chamber, first and foremost, acknowledged that the parties were contractually
bound by an employment contract, which was signed on 31 July 2009 and valid as
from 1 August 2009 until 30 June 2014. It was further noted that shortly after
having entered into said employment contract, i.e. on 10 August 2009, the
Claimant/Counter-Respondent was transferred by the Respondent/Counter-Claimant
on a loan basis to Club V, from country P, until 30 June 2010.
18.
The Claimant/Counter-Respondent, on the one hand, maintained that the
Respondent/Counter-Claimant had terminated the employment contract without
just cause on 9 July 2010 and, thus, shall be held liable to pay, inter alia,
compensation for breach of contract.
Player S, from country B / Club B, from country P / Club C, from country B
Page 11 of 19
19.
The Chamber noted that the Respondent/Counter-Claimant, on the other hand,
rejected the claim put forward by the Claimant/Counter-Respondent and lodged a
counterclaim against the latter. According to the Respondent/Counter-Claimant, the
Claimant/Counter-Respondent is to be held liable for breach of contract without just
cause due to abandonment of work. The Respondent/Counter-Claimant further
maintained that, therefore, it had just cause to terminate the employment contract
on 31 August 2010 and that the player is to be held liable to pay compensation for
breach of contract and his new club shall be held jointly and severally liable for the
payment of such compensation.
20.
In continuation, the Chamber took into account that the Claimant/CounterRespondent fully rejected the Respondent/Counter-Claimant’s counterclaim.
21.
The members of the Chamber highlighted that the underlying issue in this dispute,
considering the diverging position of the parties, was to determine as to which
party has proceeded with the early termination of the employment contract, and as
to whether such termination was with or without just cause. The Chamber also
underlined that, subsequently, if it were found that the contract was terminated
without just cause, it would be necessary to determine the consequences for the
party that was responsible for the early termination of the contractual relation.
22.
Therefore, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the documentation
on file, bearing in mind 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.
23.
The members of the Chamber noted that the Claimant/Counter-Respondent was
transferred to Club V, on a loan basis as from 10 August 2009 until 30 June 2010.
The Claimant/Counter-Respondent was, thus, immediately transferred to another
club after having entered into an employment contract with the
Respondent/Counter-Claimant.
24.
It has remained undisputed that the Claimant/Counter-Respondent duly rendered
his services to Club V until 10 May 2010 and that he, subsequently, returned to
country B. In this context, the Chamber observed that the Respondent/CounterClaimant did not appear to have objected to the player’s return to country B around
that time, but merely indicated that the player was aware that he should have
returned to the Respondent/Counter-Claimant by 1 July 2010 at the latest.
25.
The members of the Chamber noted that the Claimant/Counter-Respondent acted
under the assumption that the Respondent/Counter-Claimant was no longer
interested in his services on the basis of sms messages allegedly exchanged between
Player S, from country B / Club B, from country P / Club C, from country B
Page 12 of 19
his country B agent, an agent in country P and the Respondent/Counter-Claimant
between February and June 2010.
26.
The Chamber further took into account that the Claimant/Counter-Respondent
contacted the Respondent/Counter-Claimant, on 7 July 2010, to inquire about the
date on which he was to resume duty at the Respondent/Counter-Claimant, while
pointing out that he was instructed to stay in country B as the Respondent/CounterClaimant allegedly wanted to transfer him on loan to another club. The Chamber
observed that in said correspondence the Claimant/Counter-Respondent further
explicitly offered his services to the Respondent/Counter-Claimant.
27.
The members of the Chamber noted that, on 9 July 2010, in reply to the
Claimant/Counter-Respondent’s
correspondence
of
7
July
2010,
the
Respondent/Counter-Claimant, instead of summoning the player to resume duty on
a specific date, informed the player that it considered him to be absent without just
cause, which the Respondent/Counter-Claimant considered to be a just cause for it
to terminate the contract. In this context, the Chamber observed that at no earlier
point in time had the Respondent/Counter-Claimant put the Claimant/CounterRespondent in default of his obligations or communicated any sort of warning.
28.
In continuation, the Chamber noted that the parties disagree on the legal effects of
the Respondent/Counter-Claimant’s correspondence of 9 July 2010. Indeed, whereas
the Claimant/Counter-Respondent considers the club’s reply of 9 July 2010 to be a
termination of the employment contract by the Respondent/Counter-Claimant, the
latter, for its part, insists that said correspondence does not constitute a notice of
termination, but rather a warning or advice to the player relating to the possible
consequences of his absence from work.
29.
To that end, the Chamber acknowledged that the translation of the
Respondent/Counter-Claimant’s correspondence of 9 July 2010, which translation
was presented by the Respondent/Counter-Claimant, includes the mention that the
player’s conduct puts into question the maintenance of the employment contract,
constituting a just case for its termination and that the Claimant/CounterRespondent is “herein notified of the express intention of the application of the …
disciplinary sanction, in other words, to proceed with the termination of the
identified sporting labour contract.”
30.
In the light of such explicit notice, the members of the Chamber endorsed the
Claimant/Counter-Respondent’s viewpoint that, in fact, by means of its
correspondence of 9 July 2010 the Respondent/Counter-Claimant proceeded with
the termination of the pertinent employment contract on the basis of the
circumstance that the Claimant/Counter-Respondent had not taken up his post at
the Respondent/Counter-Claimant on 1 July 2010.
Player S, from country B / Club B, from country P / Club C, from country B
Page 13 of 19
31.
Having established that the Respondent/Counter-Claimant terminated the
employment contract on 9 July 2010, the Chamber analysed as to whether the club
had just cause to proceed with said contract termination.
32.
In this respect, the Chamber recalled that at the time of the termination of the
employment contract by the Respondent/Counter-Claimant, i.e. 9 July 2010, as well
as the fact that according to the Respondent/Counter-Claimant the player had to
resume duty by 1 July 2010 at the latest, whereas the player offered his services on 7
July 2010, the Claimant/Counter-Respondent had been absent during a period of
time of 6 days without any previous warning.
33.
The Chamber wished to emphasise that a 6 days’ absence of a player cannot be
considered a just cause to terminate a contract, particularly without any previous
warning. In this regard, the Chamber was eager to emphasise that only a breach or
misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which
do not reasonably permit to expect a continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are
more lenient measures which can be taken in order for an employer to assure the
employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment
contract can always only be an ultima ratio.
34.
In addition, the members of the Chamber strongly believed that the
Respondent/Counter-Claimant, in fact, was not genuinely interested in the player’s
services. Indeed, prior to proceeding with the termination of the contract on 9 July
2010 after the Claimant/Counter-Respondent had offered his services to the club on
7 July 2010, no previous warning had been addressed to the player by the
Respondent/Counter-Claimant. In addition, the Chamber recalled that in reaction to
the player’s correspondence of 7 July 2010, the Respondent/Counter-Claimant had
not even asked or summoned the player to return, but instead, as stated above,
terminated the employment contract. Furthermore, the members of the Chamber
wished to emphasise that the Claimant/Counter-Respondent had been immediately
transferred to another club by the Respondent/Counter-Claimant after the parties
involved in the present matter signed an employment contract on 31 July 2009.
35.
On account of all of the above, the members of the Chamber rejected the
Respondent/Counter-Claimant’s
counterclaim
and
decided
that
the
Respondent/Counter-Claimant terminated the employment contract on 9 July 2010
without just cause.
Player S, from country B / Club B, from country P / Club C, from country B
Page 14 of 19
36.
Having established the above, the Chamber turned its attention to the question of
the consequences of the unilateral termination of the contract by the
Respondent/Counter-Claimant without just cause on 9 July 2010.
37.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant/Counter-Respondent is entitled to receive compensation from the
Respondent/Counter-Claimant for the termination of the contract without just
cause.
38.
The members of 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 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.
39.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract 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.
The members of the Chamber recalled that the contract contains a clause stipulating
the following: “In the case the Player decides to unilaterally terminate this contract
(and without just cause) the present sporting labour contract or if Club B dismisses
the Player with just cause, the Player shall pay an indemnification corresponding to
the amount of the payments that would be made during the original term of the
contract, and also a penal clause in the amount of E 20.000.000,00 (twenty million
euros), IVA not included, besides any sanctions of international and national sports
authorities.” The said clause thus sets an amount of compensation as well as a
penalty payable by the player in the event of a termination without just cause by
the player or a termination with just cause by the club. The members of the
Chamber agreed that this clause clearly is unilateral and to the benefit of the club
only and thus, in accordance with the Chamber’s well-established jurisprudence,
shall not be taken into consideration in the determination of the amount of
compensation in the matter at hand.
40.
As a consequence, the members of the Chamber determined that the amount of
compensation
payable
by
the
Respondent/Counter-Claimant
to
the
Claimant/Counter-Respondent 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
Player S, from country B / Club B, from country P / Club C, from country B
Page 15 of 19
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 Dispute Resolution Chamber emphasised
beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter.
41.
In order to estimate the amount of compensation due to the Claimant/CounterRespondent in the present case, the members of the Chamber first turned their
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
Chamber to be essential. The members of the Chamber deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber
to take into account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
42.
In accordance with the contract signed by the Claimant/Counter-Respondent and
the Respondent/Counter-Claimant, which was to run for four more seasons, i.e. until
30 June 2014, after the breach of contract occurred, the Claimant/CounterRespondent was to receive remuneration amounting to EUR 800,160. Consequently,
the Chamber concluded that the amount of EUR 800,160 serves as the basis for the
final determination of the amount of compensation for breach of contract.
43.
The Chamber then took due note of the employment situation of the
Claimant/Counter-Respondent after the termination of the contract on the basis of
the case at stake. Bearing in mind art. 17 par. 1 of the Regulations and in
accordance with the constant practice of the Dispute Resolution Chamber as well as
the general obligation of the player to mitigate his damages, such remuneration
under a new employment contract(s) shall be taken into account in the calculation
of the amount of compensation for breach of contract. In this regard, the members
of the Chamber noted that the Claimant/Counter-Respondent, on 1 March 2011,
signed an employment contract with Club C, from country B, valid until 30
November 2011, in accordance with which he was to receive a monthly salary of
currency of country B 5,000. Thereafter, the player signed an employment contract
with Club D, from country C, valid for the 2012-13 season, in accordance with which
the player was to receive the amount of EUR 15,000 as from August 2012 until May
2013. The Chamber further took into account that according to the Transfer
Matching System (TMS) the Claimant/Counter-Respondent has registered with the
Club A, from country B as of January 2014 on the basis of an employment contract
valid until May 2015, where he is to receive a monthly salary of currency of country
B 700.
Player S, from country B / Club B, from country P / Club C, from country B
Page 16 of 19
44.
Hence, the Chamber concluded that on the basis of the aforementioned new
employment contracts the Claimant has received income amounting to
approximately EUR 35,950 as from March 2011 until November 2011, between
August 2012 and the end of May 2013, and as from January 2014 until the original
date of expiry of the employment contract between the parties involved.
45.
The Chamber further took into account that during a fifteen months’ period of time
in total, after the Claimant/Counter-Respondent’s contract with Club C and Club D
had come to an end, the Claimant/Counter-Respondent has been without income.
Such period of time, based on his monthly income at the Respondent/CounterClaimant, equals the total amount of approximately EUR 250,000. The Chamber, on
the other hand, took into consideration that the Claimant/Counter-Respondent
could not be expected to mitigate his damages to the extent of the salary that he
was entitled to receive from the Respondent/Counter-Claimant (i.e. EUR 16,667 per
month).
46.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant/Counter-Respondent’s claim and decided that the Respondent/CounterClaimant must pay the amount of EUR 550,000 as compensation for breach of
contract in the specific case at hand.
47.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant/Counter-Respondent
is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player S, is admissible.
2.
The claim of the Claimant/Counter-Respondent is partially accepted.
3.
The Respondent/Counter-Claimant, Club B, has to pay to the Claimant/CounterRespondent compensation for breach of contract in the amount EUR 550,000 within
30 days as from the date of notification of this decision.
Player S, from country B / Club B, from country P / Club C, from country B
Page 17 of 19
4.
Any further request filed by the Claimant/Counter-Respondent is rejected.
5.
The counterclaim of the Respondent/Counter-Claimant is rejected.
6.
In the event that the amount due to the Claimant/Counter-Respondent is not paid
by the Respondent/Counter-Claimant within the stated time limit, interest at the
rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the
present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
7.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant immediately and directly of the account number to which the remittance
is to be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The
full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Player S, from country B / Club B, from country P / Club C, from country B
Page 18 of 19
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player S, from country B / Club B, from country P / Club C, from country B
Page 19 of 19