Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 January 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Zola Percival Majavu (South Africa), member
on the matter between the player,
Player A, country B
as Claimant / Counter-Respondent
and the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country F
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 25 July 2012, the player from country B, Player A (hereinafter: the player),
and the club from country D, Club C (hereinafter: the club), concluded an
employment contract (hereinafter: the contract), valid as from 25 July 2012 until
24 July 2014.
2.
According to the contract, the player was entitled to a monthly salary of EUR
70,000. Equally, the player was entitled to EUR 360,000 upon signing the
contract and a payment of EUR 360,000 on 24 July 2013.
3.
Furthermore, the player was entitled to an “annual housing allowance of an
amount of (provided) unless the player is provided with the suitable housing”
as well as to a “monthly transportation allowance of an amount of (provided),
along with his monthly salary, unless player is provided with suitable
transportation”.
4.
On 14 August 2013, the player lodged a claim against the club in front of FIFA
explaining that the club had not complied with its contractual obligations. In
particular, the club had:
a) Initially not paid the salary for May and June 2013 (EUR 140,000);
b) Not paid the amount due on 24 July 2013 (EUR 360,000);
c) Not provided the air tickets to go to pre-season although requested by
him.
5.
The player explained that on 2 July 2013, the club sent a fax to the player by
means of which it indicated that it “would like to open a discussion with the
player’s agent regarding the offers of the Player Player A in Country D. Such
meeting shall be in Country D before July, 4 2013”.
6.
On 3 July 2013, the player’s lawyer replied that such a meeting was impossible
since the player and his agent were with the team in Country G for the preseason, that he would fulfil his contract and that if the club did not want him
anymore, “it must be said clearly and solved amicably with the payment of his
full contract”.
7.
Then, “on July 2013” the player returned to country D, only to discover that the
accommodation he was living in was no longer his. As a result, he had to live
with a friend and was later “put in a hotel”. Also, the player alleges that his car
was taken away from him, that he was moved to the club’s B team and that he
was left in country D while the team travelled to Country D for pre-season.
Player A, country B / Club C, country D / Club E, country F
2/20
8.
Only thereafter, the player received his salary for May and June 2013, however,
the amount of EUR 360,000 still remained outstanding.
9.
On account of the above, the player holds that the club breached the contract
without just cause. In particular, the player holds that the salary for May and
June 2013 had only been paid on 24 July 2013 after several reminders and that
the amount of EUR 360,000 has still not been paid, although the club had
promised in an e-mail dated 2 August 2013 that it would pay the amount “very
soon”.
10.
As a result, the player requests the following:
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11.
EUR 360,000 as outstanding salary plus 5% interest as from 24 July 2013;
EUR 140,000 as outstanding salary for the months July and August 2013,
plus 5% interest as from 7 August 2013;
EUR 770,000 as residual value of the contract;
Indemnity for the specificity of sport amounting to six monthly salaries (EUR
420,000);
Legal fees;
Sporting sanctions to be imposed on the club.
To his claim, the player enclosed the following documentation:
i)
A letter sent to the club on 19 July 2013, explaining that his accommodation
and car had been taken away as well as that the club had neither paid the
wages for April, May and June 2013 nor his flight tickets. In said letter, the
player indicated that he wanted to fulfil his contract and that the club must
pay the outstanding debt within 5 days and reinstate the accommodation
and the car.
ii) A letter sent to the club on 29 July 2013, explaining that the salary of April
2013 had been paid, but that the salaries of May and June 2013 and the
flight tickets were still outstanding. Also, the player indicated that the
amount of EUR 360,000 was due on 24 July 2013, and thus outstanding and
pointed out that he was sent to the B team, that he was not requested to
go to the pre-season in country D, that the club had already signed 4 foreign
players and that his accommodation and car had been taken away. The
player warned the club that if the breaches would not be solved within 48
hours, he would terminate the contract with just cause.
iii) E-mail exchange between the lawyer of the player and the club between 30
July 2013 and 7 August 2013:
- 30 July 2013: club’s e-mail addressed to the lawyer stating that it was
not aware that the latter was the lawyer of the player and therefore
asked for an official authorization that he was representing the player.
Player A, country B / Club C, country D / Club E, country F
3/20
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31 July 2013: the lawyer provided the club with a power of attorney.
2 August 2013: the club wrote the player that the salaries of May and
June had been deposited on 22 May 2013 and 30 July 2013 respectively
and that the EUR 360,000 would be paid “very soon”. Also, the flight
ticket had been paid on 30 July 2013. Furthermore, the club stated that
the training of the player with the B team as well as his nonparticipation in the training camp in country D was a decision of the
coach only and that the signing of 4 foreign players is an internal
matter which will not cause any problem to the registration of the
player or his rights under the contract. Also, the club indicated that the
player was provided with a 5-star villa, which he rejected as his new
residence, and that the transportation of the player was arranged.
Equally, the club outlined that the player was given a car worth EUR
150,000 as a gift and a reward of EUR 50,000 outside the contract.
Therefore, the club held that there was no breach of contract.
2 August 2013, the lawyer of the player asked that the payment of EUR
360,000 should be paid before 6 August 2013, equally pointing out the
breaches in relation to the B team, the foreign players as well as the
removal of his house and car. If those issues were not solved before 6
August 2013, the player would consider that the club had breached the
contract.
7 August 2013, the player indicated that no reply had been received
and therefore he considered the contract terminated with just cause.
12.
In reply to the claim lodged against it, the club explained that in the beginning
of the 2012/2013 season the player was provided with accommodation and a
BMW. After a successful start, the club decided to encourage the player to
maintain his level and gave him, in September 2012, a luxury jeep not provided
for in the contract. The player scored 15 goals in the first half of the season, but
from the beginning of 2013 there was a dramatic change in the performance of
the player, scoring only 4 goals in the second half of the season. On 5 March
2013, the club, although not provided for in the contract, made an ex gratia
payment of USD 50,000, as an exceptional step to encourage the player.
However, the player continued to underperform. During the final months of the
2012/2013 season, the player gave a clear impression that he did not want to
stay in country D.
13.
On 14 May 2013, the player’s agent sent an e-mail to the club indicating that he
wanted to travel to country D between 21 May and 27 May 2013 to discuss the
future of the player. The club held that in light of the clear unhappiness of the
player, it reached the obvious conclusion that the agent wanted to explore the
possibility of a transfer of the player. On 15 May 2013, the club confirmed that
Player A, country B / Club C, country D / Club E, country F
4/20
it would meet with the agent on 23 May 2013, however, the latter did not show
up.
14.
Also in May 2013, the player returned the BMW to the club in view of the club’s
policy to return all cars to the leasing company during the off-season to avoid
unnecessary expenses.
15.
On 24 May 2013, the player travelled to Country H for holidays.
16.
In relation to the 2013/2014 season, the club reluctantly resigned itself that it
may needed to find a new club for the player in view of the agent’s e-mail of 14
May 2013 and the player’s comments. In July 2013, a training camp took place
in country G and, considering other clubs’ interest in the player, the latter was
not obliged to attend the training camp. Nevertheless, the player arrived in
country G together with his agent. There, the player was informed by the club
of the interest of another club from country D which was willing to pay EUR
1,000,000 as a transfer compensation and EUR 1,400,000 per season to the player
for a two year contract.
17.
On 1 July 2013, the player’s lawyer wrote the club asking for a clarification until
2 July 2013 regarding the player’s contractual situation, as well as alleging that
the club informed the player in country G that it was prepared to terminate the
contract, this being strongly denied by the club.
18.
On 2 July 2013, the club sent a fax to the agent of the player indicating that it
wished to open discussions regarding the offers for the player and inviting the
agent for a meeting in country D before 4 July 2013. On 3 July 2013, the lawyer
of the player stated that the agent would not travel to country D.
19.
On 5 July 2013, the club received an offer from the club from country D, Club I.
On 6 July 2013, the player left the training camp to return to country B since his
father passed away, the club having arranged the flight tickets. On 7 July 2013,
the club replied to Club I that it agreed with the offer, however the player had
not accepted the proposed terms.
20.
Around 17 or 18 July 2013, the team returned to country D and so did the player.
On 19 July 2013, the lawyer of the player wrote that the salaries of April, May
and June 2013 had not been paid, which was incorrect since the April salary was
paid on 7 May 2013 and the May salary on 22 May 2013 “before it fell due”. The
club acknowledged that indeed a slight delay occurred for the June 2013 salary,
but that this was solved on 30 July 2013.
Player A, country B / Club C, country D / Club E, country F
5/20
21.
As to the transportation, the player knew that the car had been returned, as he
had done so himself in May 2013. Upon his return to country D, the player still
had the luxury jeep at his disposal and he was informed that an additional car
would be leased for him.
22.
As to the accommodation, indeed the accommodation had been changed for
him and the other foreign players. The club had temporarily reserved a hotel for
them while new accommodation was being arranged. This had been formally
communicated to the player on 20 July 2013.
23.
Between 20 and 27 July 2013, the player recommenced his involvement in preseason training with the first team, and during this time, efforts were made to
discuss with the player the possible transfer to Club I, which were rejected by
the player. In view of the rejection, the club made the preparations for the
complete involvement of the player in the 2013/2014 season.
24.
On 28 July 2013, the first team went on training camp to the United Arab
Emirates and the club’s coach deemed that, since the player had already missed
the majority of the pre-season, the player’s progress would better be served by
remaining in country D and training with the club’s Olympic/B team. Also on 28
July 2013, the player moved into a hotel which was available to him since 19 July
2013.
25.
On 29 July 2013, the club received the letter of the player’s lawyer after which
it informed the player directly of the details of the 5-star villa which had been
arranged for him and the other foreign players. However, he allegedly refused
to move there.
26.
On 31 July 2013, the player was provided with the details of the car that had
been arranged for him and on 2 August 2013 the club replied to the player’s
lawyer that it had not breached the contract.
27.
On 6 August 2013, the club returned to country D and on 7 August 2013 the
player trained with the first team and duly signed the official attendance sheet.
After said training, the player, via his lawyer, terminated the contract with
immediate effect.
28.
In view of all the above, the club denies the claim of the player, indicating that
the only party in breach of the contract is the player, since:
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The contract does not provide payment dates. However, the club’s policy is
to make the payments shortly after the month in question (February, paid
on 11 March / March paid on 10 April / April paid on 7 May).
Player A, country B / Club C, country D / Club E, country F
6/20
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The May salary was paid on 22 May 2013. The salary was paid early as a
gesture of good will since this was the week in which the 2012/2013 season
concluded and the players were departing for their annual leave.
The June salary was indeed paid with a delay. The club was experiencing
significant cash flow problems like any other club in the June/July period
when there is increased transfer activity. However, the payment was made
on 30 July 2013, and the player was directly informed of this on 2 August
2013.
The payment of EUR 360,000; within 5 days of falling due, the player wrote
the club asking for the payment and on 2 August 2013 the club confirmed
it would make the payment very soon. However, following the termination
on 7 August 2013, the club correctly and sensibly instructed its accounts
department to mark this payment as “pending”.
All in all, the club holds that the marginal delay in the payment of EUR
360,000 of a mere 2 weeks does not constitute a breach of the contract and
certainly this slight delay would never entitle a player to terminate the
contract, in particular not when the player already received a confirmation
on 2 August 2013 that it would pay.
The club had the utmost good faith, which can be proven by the additional
ex gratia payment of USD 50,000 in March 2013.
As to the transportation, the contract merely provides that the player is
entitled to “suitable transportation”; the player was provided with a BMW
and he received a luxury Mercedes jeep ex gratia. Also, upon return in
country D, he was informed that a car would again be leased for him and
that the car was left at the end of July 2013 at his hotel, however, the player
refused to take possession of it.
As to the accommodation, the contract merely provides that the player is
entitled to “suitable accommodation”; the player was provided with a
leased villa in a compound for the duration of the 2012/2013 season,
however in the 2013/2014 season the club chose a different compound.
Upon return, the player was informed that new accommodation was
arranged and that a hotel had been arranged for him on a temporary basis
as from 19 July 2013, however the player refused to move into the hotel
until 28 July 2013. Then, on 31 July 2013, the player was informed of the
new compound, but the player refused to move in.
As to the registration, the player was informed on 2 August 2013 that the
signing of foreign players would not cause any problem to the registration
of the player or his rights under the contract. Given the clear confirmation,
it was entirely inappropriate for the player to claim that he was not or
would not remain registered for the upcoming season. At the time the
player terminated the contract, i.e. 7 August 2013, the player was already
registered, which can be demonstrated by the fact that the club wrote to
the Football Association of country D on 16 August 2013 to deregister the
Player A, country B / Club C, country D / Club E, country F
7/20
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player for the coming season in light of the termination by the player.
Equally, the club pointed out that the registration period for the Saudi
League runs until 11 September 2013. Finally, the club does not dispute that
it entered into contracts with 4 foreign players, however, it did not have an
impact “on the club’s clear confirmation that the Claimant would be
registered”.
Finally, the player was never excluded from the team; the coach was merely
of the opinion that it was better for the player to train in country D since
he had not completed the pre-season training schedule. Also, the player
was immediately re-integrated in the first team’s training on 7 August 2013,
when the club returned.
29.
Finally, the club lodged a counter-claim against the player claiming EUR
“2,000,000”, calculated as follows:
- EUR 1,000,000 as the unamortized transfer compensation paid to Club J for
acquiring the player;
- EUR 1,000,000 on the basis of the lost transfer value regarding the offer of
Club I;
- EUR 420,000 regarding the specificity for sport.
30.
In his replica, the player reiterated that the club has persistently and
unjustifiably breached its contractual obligations.
31.
With regard to the USD 50,000 received on 5 March 2013, the player
categorically refutes the reasoning put forward by the club; said amount was in
fact paid as a bonus for winning the “Cup of country D” on 22 February 2013
and not as an incentive to recover his previous season form. In this respect, the
player referred to the match schedule that was submitted by the club.
32.
The player reiterated the numerous occasions he was forced to put the club in
default, referring to the faxes sent on 19 July 2013 and 29 July 2013 respectively.
33.
According to the player, the documents provided for by the club as to sustain
that all payments were satisfied in due time, are just mere instruction orders
carried out by the club to its bank. This said, the documents cannot be
understood as a reliable source of proof for when the payments were actually
carried out by the bank to the player.
34.
In this respect, and in view of all the default letters addressed to the club, the
evident delay in payment, and considering the amounts owed by the latter, is
on its own enough ground to unilaterally terminate the contract with just cause.
Player A, country B / Club C, country D / Club E, country F
8/20
35.
Notwithstanding the above, according to the club itself, the player had a
fantastic first semester, scoring 15 goals for which he was even rewarded with a
brand new car. However, the relationship between the club and the player
deteriorated as a result of the latter´s alleged poor performances during the
second semester. The aforesaid triggered the club´s drastic change of behavior
towards him and, in this respect, the player insisted that “the hiring of a player
can in no manner whatsoever be subject to a particular purpose”, i.e. like scoring
a determined amount of goals.
36.
After taking part in the club´s last game of the season on 22 May 2013, the player
prior to leaving for his summer holidays was allegedly informed by the club that
he would receive, via email, his return tickets and schedule. However, a few days
into his holidays, and yet to receive any news from the club, the player worried
and tried in vain to contact the club.
37.
In this respect, on 21 June 2013, the player formally contacted the club via email
requesting from the latter information on his due date back as well as to be
provided with the flight tickets. In lack of a reply, the player, by getting in touch
with his teammates, found out that pre-season already started in Country G.
Subsequently, the player travelled to Country G on his own expenses together
with his agent.
38.
On 1 July 2013, upon his arrival in country G, the player was apparently informed
by the coach that his services were no longer needed for the next season,
recommending him to get in touch with the club. Thereupon, on the same day,
the player formally contacted the club requesting a clarification on the matter
and whether his services were indeed no longer required.
39.
Whilst still in country G, the player needed to travel to country B as his father
had passed away. In this respect, the club provided the player with a plane ticket
home (Country K – Country B) but again, this was a one way ticket.
40.
Once the ordeal was over, without any news or instructions from the club, and
taking into account that the pre-season in Country G was coming to an end on
17 July 2013, the player was again forced to buy his own ticket back to Country
D, more precisely on 16 and 17 July 2013.
41.
The player then reiterated his aforementioned arguments regarding his house,
his training with the B team and the termination of the contract and further
indicated that, on 27 January 2014, he signed an employment contract with the
club from country F, Club E (hereinafter: Club E), valid until 30 June 2014.
According to this employment contract, the player was to receive a monthly
salary of USD 15,000 net, as well as living expenses (USD 6,500 net per month)
Player A, country B / Club C, country D / Club E, country F
9/20
and transport expenses (USD 1,000 net per month), i.e. the net amount of USD
135,000 for the period between 27 January 2014 and 30 June 2014.
42.
In its duplica, the club referred to the payment of USD 50,000 and stated that
such payment was not a bonus payment for winning the Cup of country D, since
the actual bonus for said achievement amounted to 100,000. Moreover, the club
had doubled said bonus for the player and paid the amount of 200,000 to him
on 25 February 2013.
43.
With regard to the salary payments for April and May 2013, the club reiterated
that such payments were made on time and that only the salary for June 2013
was paid with a delay. Furthermore, the payment orders submitted by the club
do also bear a valid stamp from the bank, which evidences the date that the
money was lodged to the player’s account. In continuation, the club argued that
the player did not submit any evidence to disprove the payment dates. The club
reiterated that the salaries for July and August 2013 were marked as “pending”,
following the player’s termination of the employment contract.
44.
With regard to the alleged breach of contract due to non-payment of airfares,
the club pointed out that there is no such provision in the employment contract
with the player which would oblige the club to pay for any airfares of the player.
However, the club acknowledged that it had, voluntarily, paid or reimbursed at
least 17 flights to the player. The club disputed the “unevidenced claim” of the
player that he had been informed that his airfares and itinerary would be sent
to him via email upon his annual leave.
45.
In continuation, the club referred to the notices by means of which the player
was informed of his new accommodation and car and argued that the player
refused to receive such notices when they were served to him personally on the
club’s premises.
46.
In connection with the club’s alleged drastic change of behavior during the
second half of the 2012/2013 season, the club argued that, on the contrary, it
had tried to encourage the player by paying him an ex gratia payment of USD
50,000 in March 2013.
47.
With regard to the accommodation, the club emphasized that the player, in his
letter dated 29 July 2013, had confirmed that the club had “put him into a
hotel”. Furthermore, the club submitted a statement from the Courtyard
Marriott hotel, according to which the club had booked a room for the player
for the period as from 19 July 2013 until 28 July 2013 but that the player did not
stay at the hotel during said period.
Player A, country B / Club C, country D / Club E, country F
10/20
48.
Finally, the club argued that the player cannot claim that he had no confidence
in the club paying him the amount that fell due (i.e. EUR 360,000) since the club
had always made full and regular salary payments and had assured the player
that the payment of the lump sum of EUR 360,000 would be made “very soon”.
Furthermore, the club argued that the deadline of 4 days given by the player in
order to pay the amount of EUR 360,000 is not a reasonable time limit.
49.
Upon request of FIFA to provide its comments to the present affair, Club E stated
that, based on the circumstances as described by the player, it had, in good faith,
requested the Players’ Status Committee to grant the ITC for the player and to
be exempted from any responsibility and/or payment of any compensation for
the player’s termination of his employment contract with Club C. Finally, Club E
referred to the case xxxxxxx, according to which it is forbidden for clubs to
require the payment of a sum of money when a player terminates his contract
and joins a new club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter at
stake. In this respect, it took note that the present matter was submitted to FIFA
on 14 August 2013. Consequently, the previous edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2012; hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 of the 2012 and 2014 editions 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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014) 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 country B, a club from country
D and a club from country F.
3.
In continuation, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, it referred, on the one hand, to art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (editions 2012 and 2014),
and, on the other hand, to the fact that the present claim was lodged in front
of FIFA on 14 August 2013. Therefore, the DRC concluded that the 2012 edition
of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations), is applicable to the matter at hand as to the substance.
Player A, country B / Club C, country D / Club E, country F
11/20
4.
The competence of the Chamber and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter. In doing so, the Chamber started by acknowledging all the abovementioned 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.
5.
In this respect, the members of the DRC acknowledged that it was undisputed
by the parties that, on 25 July 2012, the player and the club signed an
employment contract valid as from the date of signature until 24 July 2014, in
accordance with which the player was entitled to receive a monthly salary in the
amount of EUR 70,000 as well as two payments of EUR 360,000 at the beginning
of each contract year.
6.
In continuation, the Chamber acknowledged that it had been uncontested by
the parties that the player prematurely terminated the employment contract on
7 August 2013. The Chamber noted, furthermore, that it was not disputed that
the player had signed a new employment contract with Club E on 27 January
2014, valid until 30 June 2014.
7.
The DRC noted that, on the one hand, the player claims that he had just cause
to unilaterally terminate the contract. In this regard, the player claims that the
club failed to pay the salaries of July and August 2013, as well as the amount of
EUR 360,000 that was due on 24 July 2013. Additionally, the player claims, inter
alia, that his house and his car were not available to him anymore, that he had
to train with the club’s B team, that the club had signed 4 other foreign players
as well as that several air tickets were not provided to him by the club. Thus, the
player deems that he terminated the contract with just cause and consequently
requests the payment of outstanding remuneration in the amount of EUR
500,000 as well as compensation in the total amount of EUR 770,000.
8.
The Chamber further noted that, on the other hand, the club claims that the
player did not have just cause to terminate the contract. In this respect, the club
acknowledged that the amount of EUR 360,000 had not been paid on its due
date. However, the club argued that it informed the player on 2 August 2013
that it would pay the amount “very soon”. Furthermore, the DRC noted that the
club held that no payment dates were provided in the contract, but that the
monthly salaries were always paid shortly after the month in question. As a
consequence, the club argued that the salary of July 2013 was not outstanding
at the moment of the termination of the contract by the player. As to the
transportation and accommodation, the DRC noted that the club argued that at
least one car was available to the player at all times and that, while arranging a
Player A, country B / Club C, country D / Club E, country F
12/20
new compound for the club’s foreign players, a hotel room was reserved for the
player. Finally, the DRC took due note of the club’s argument that it was a
technical decision of the coach to let the player train with the B team and that
the player was reinstated with the A team on 7 August 2013, as well as that,
regardless of having entered into contracts with 4 other foreign players, the
player’s registration for the new season would not be affected.
9.
In view of the foregoing, the club deems that the player’s claim should be
entirely rejected and that it is entitled to compensation for breach of contract
in the total amount of EUR 2,000,000 as well as EUR 420,000 regarding the
specificity of sport.
10.
Finally, the DRC noted that Club E argued that it had acted in good faith at all
times, based on the circumstances as described by the player.
11.
Having established the aforementioned, the Chamber deemed that the
underlying issue in the present dispute, considering the claim of the player, the
counterclaim of the club and the allegations of both parties, was to determine
whether the player had just cause to terminate the relevant employment
contract on 7 August 2013. The DRC also underlined that, subsequently, it would
be necessary to determine the consequences of the termination of the relevant
employment contract.
12.
In this regard, the Chamber recalled that the player considers having had just
cause to terminate the contract, based essentially on the allegation that the club
had failed to pay him two salaries for the months of July and August 2013, as
well as the amount of EUR 360,000 that was due on 24 July 2013.
13.
Regarding the previous allegation, the members of the Chamber recalled the
club’s position, which was of the opinion that the contract did not stipulate due
dates for the monthly salaries. However, the club argued that its policy is to pay
the salaries shortly after the month in question.
14.
At this stage, the members of the Chamber deemed pertinent to point out that
the club acknowledged the non-payment of the amount of EUR 360,000, which
was due on 24 July 2013, but that it informed the player on 2 August 2013 that
the payment would be made “very soon”. Therefore, the club held that the
player had no just cause to prematurely terminate the contract, as by the time
of the termination there was only one payment outstanding.
15.
Following the above, the Chamber deemed it necessary to analyse when the
salary payments fell due. In this context, and after a thorough examination of
the contract as well as the relevant arguments of the parties, the Chamber came
Player A, country B / Club C, country D / Club E, country F
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to the conclusion that indeed no due dates for the payment of the monthly
salaries to the player were stipulated in the employment contract. Furthermore,
the Chamber concurred that the club had demonstrated with documentary
evidence that it indeed paid the salaries shortly after the month in question,
which remained uncontested by the player. Consequently, the Chamber
concluded that, on 7 August 2013, the player could not have reached a point
where he could not reasonable expect that the club would pay the salary for
July 2013 in the next days.
16.
With regard to the salary for the month of August 2013, the Chamber concluded
that said payment had clearly not fallen due yet on the date of the termination,
i.e. 7 August 2013.
17.
At this stage, the members of the Dispute Resolution Chamber wished to
emphasize that, according to the principle of contractual stability, the unilateral
termination of a contract must be considered as an absolute last resort, where,
given the particularities of the situation at stake, it could not be expected that
one of the parties could reasonably continue to be bound by the contractual
relationship. In what concerns financial obligations, one of the consequences of
the aforementioned principle is that only a persistent and substantial noncompliance of these obligations could justify the unilateral termination of a
contract.
18.
In this regard, the Chamber acknowledged that, according to clause 19d of the
employment contract, the payment to the player in the amount of EUR 360,000
was due on 24 July 2013.
19.
Consequently, the members of the Chamber considered that, by the time the
player terminated the contract on 7 August 2013, only one payment was
effectively outstanding, i.e. the payment of EUR 360,000 which was to be paid
on 24 July 2013.
20.
In light of the above, the Chamber came to the unanimous conclusion that the
non-payment of one amount for a relatively short period of time can under the
given circumstances of this particular matter not be considered a persistent and
material non-fulfilment of the club’s contractual obligations, justifying the early
unilateral termination of the contract by the player. Again, the Chamber
concluded that, on 7 August 2013, the player could not have reached a point
where he could not reasonable expect that the club would pay the amount of
EUR 360,000 in the next days.
21.
Furthermore, the DRC referred to the player’s claim that, upon his return to
country D in July 2013, his house and his car were not available to him anymore.
Player A, country B / Club C, country D / Club E, country F
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In this regard, the members of the Chamber emphasized that the club asserted
that it provided the player with accommodation and a car at all times.
22.
In this respect, first of all, the Chamber referred to clause 19b of the contract,
according to which the club was obliged to provide the player with “suitable
housing”. Subsequently, the Chamber referred to the argument of the club that
it had decided to change the compound for the foreign players for the
2013/2014 season and that, in the meantime, a hotel room had been booked for
the player as from 19 July 2013. The club argued that it had duly informed the
player but that he had only moved into the hotel on 28 July 2013. In this regard,
the Chamber took note of the statement of the hotel, according to which a room
had been booked for the player for the indicated period, as well as the player’s
letter to the club dated 29 July 2013 in which he stated that he had been “put
into a hotel” by the club, therewith acknowledging that accommodation had
been made available to him. Therefore, the Chamber concluded that the player
had accommodation at his disposal at all times and decided to reject the player’s
argumentation in this respect.
23.
In continuation, the Chamber referred to clause 19c of the contract, according
to which the club was obliged to provide the player with “suitable
transportation”. Subsequently, the Chamber referred to the argument of the
club that the player had returned his lease car to the club in May 2013 for the
off-season period and he was informed by the club that a new car was leased
for him as of 31 July 2013. Moreover, the members of the Chamber were eager
to point out that it was undisputed between the parties that the club had
provided the player with a “jeep” during the 2012/2013 season, in addition to
the car that was being leased for him. Therefore, the Chamber concluded that
the player had transportation at his disposal at all times and decided to reject
the player’s argumentation in this respect.
24.
In addition, the Chamber addressed the player’s claim with regard to his training
with the club’s B team. In this respect, the Chamber referred to clause 3 of the
contract, according to which “the player is committed to participate and devote
all of his efforts and capabilities during training sessions and matches as
required by the club any where any time as determined by the club (…)”. Taking
into consideration the foregoing, the Chamber held that it had been established
that, upon return of the club on 6 August 2013, the player was reinstated with
the A team on 7 August 2013. Consequently, the Chamber decided to reject the
player’s argumentation in this respect.
25.
Furthermore, the Chamber turned its attention to the player’s claim regarding
the signing of 4 other foreign players by the club which would affect the player’s
registration for the 2013/2014 season. In this respect, the Chamber took due
Player A, country B / Club C, country D / Club E, country F
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note that the club acknowledged having signed 4 other foreign players, but that
it confirmed to the player on 2 August 2013 that his registration would not be
affected. Moreover, the Chamber took due note of the documentation
submitted by the club, particularly the letter dated 19 August 2013 sent by the
Football Federation of country D to the club, by means of which the Football
Federation of country D confirmed the deregistration of the player for the
2013/2014 season. Based on the foregoing, the Chamber concluded that the
player had been registered for said season and, therefore, decided to reject the
player’s argumentation in this respect.
26.
Finally, the Chamber addressed the player’s claim regarding flight tickets that
were allegedly not provided to him. In this respect, the Chamber, once again,
referred to the contract, which does not contain any provision with regard to
flight tickets to be provided by the club to the player. Consequently, the
Chamber decided to reject the player’s argumentation in this respect.
27.
Accordingly, and taking into account the above-mentioned considerations, the
members of the Chamber decided that under the given circumstances the player
did not have just cause to unilaterally terminate the employment contract on 7
August 2013 and that, consequently, the player is to be held liable for the early
termination of the employment contract without just cause.
28.
Having established that the player is to be held liable for the early termination
of the employment contract without just cause, the Chamber focused its
attention on the consequences of such termination. Taking into consideration
art. 17 par. 1 of the Regulations, the Chamber decided that the club is entitled
to receive from the player an amount of money as compensation for breach of
contract. Furthermore, in accordance with the unambiguous contents of article
17 par. 2 of the Regulations, the Chamber established that Club E shall be jointly
and severally liable for the payment of compensation.
29.
Turning to the calculation of the amount of compensation for breach of contract
in the case at stake, the members of the Chamber firstly reiterated 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(s), the time remaining on
the existing contract up to a maximum of five years and whether the contractual
breach falls within a protected period. The DRC recalled that the list of objective
criteria is not exhaustive and that the broad scope of criteria indicated tends to
Player A, country B / Club C, country D / Club E, country F
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ensure that a just and fair amount of compensation is awarded to the prejudiced
party.
30.
In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the relevant employment contract between the club and
the player contains a provision by means of which the parties had beforehand
agreed upon an amount of compensation for 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.
31.
Bearing in mind the foregoing, in order to calculate the amount of
compensation due to the club in the present case, the Chamber firstly turned its
attention to the remuneration and other benefits due to the player under the
existing contract and the new contract(s), which criterion was considered by the
Chamber to be essential. In this context, the members of the Chamber deemed
it important to emphasize that the wording of art. 17 par. 1 of the Regulations
allows the DRC to take into consideration both the existing contract and the
new contract(s) in the calculation of the amount of compensation, thus enabling
the Chamber to gather indications as to the economic value attributed to a
player by both his former and his new club(s).
32.
In this regard, the DRC recalled, on the one hand, that the employment contract
between the player and the club provided for a monthly salary of EUR 70,000.
On the other hand, the Chamber noted that the player was entitled to a monthly
remuneration of USD 22,500, corresponding to approximately EUR 16,333,
according to the contract signed with Club E, i.e. the player’s new club. On the
basis of the aforementioned financial contractual elements, and considering the
remaining period of validity of the contract concluded between the player and
the club, i.e. 12 months, the Chamber concluded that the average remuneration
between the contracts concluded by the player respectively with the club and
Club E over the relevant period, amounted to EUR 518,000.
33.
The members of the Chamber then turned to the further essential criterion
relating to the fees and expenses paid by the club for the acquisition of the
player’s services insofar as these have not been amortised over the term of the
relevant contract. The Chamber recalled that a transfer compensation of EUR
2,000,000 had been paid by the club to the club from country H, Club J for the
player‘s transfer, documentation of which has been presented by the club.
According to article 17 par.1 of the Regulations, this amount shall be amortised
over the term of the relevant employment contract. The player was still bound
to the club for one further year of contract when he terminated the relevant
employment contract, which was signed by the parties with a view to remain
contractually bound for a total period of two seasons. As a result of the player’s
Player A, country B / Club C, country D / Club E, country F
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breach of contract in August 2013, the club has thus been prevented from
amortising the amount of EUR 1,000,000, i.e. 1/2 of EUR 2,000,000, relating to
the transfer compensation that it paid in order to acquire the player’s services,
which the club spent with the intention to benefit from the player’s services for
the period of time established by means of the contract of employment.
34.
However, the members of the Chamber considered it important to recall that,
although it had considered that the player was to be held responsible for having
terminated the contract without just cause, one should not omit the fact that
the club had an outstanding amount with the player at the moment of the
termination of the contract. What is more, the Chamber recalled that the club
acknowledged having paid the salary of June 2013 only on 30 July 2013. The
Chamber found that the foregoing consideration was a reason to reduce the
amount of compensation payable by the player to the club.
35.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC decided that the player must pay the
amount of EUR 1,400,000 to the club as compensation for breach of contract.
Moreover, in strict application of art. 17 par. 2 of the Regulations, Club E is
jointly and severally liable for the payment of the relevant compensation.
36.
In continuation, the members of the Chamber reiterated that the club had not
yet paid the player his salary for the month of July 2013, corresponding to the
amount of EUR 70,000, as well as the payment of EUR 360,000 due on 24 July
2013. The Chamber decided that, in accordance with the general legal principle
of “pacta sunt servanda”, the player is entitled to those aforementioned
payments. The Chamber concurred that, therefore, the club shall pay the
amount of EUR 430,000 to the player.
37.
In addition and with regard to the player's request for interest, the Chamber
decided that the player is entitled to 5% interest p.a. over the amount of EUR
360,000 as from 25 July 2013 until the date of effective payment and over the
amount of EUR 70,000 as from 7 August 2013 until the date of effective
payment.
38.
The Chamber concluded its deliberations by rejecting any further claims of the
player and the club.
Player A, country B / Club C, country D / Club E, country F
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The Respondent / Counter-Claimant, Club C, has to pay to the Claimant /
Counter-Respondent, within 30 days as from the date of notification of the
present decision, outstanding remuneration in the amount of EUR 430,000.
3.
Within the same deadline, the Respondent / Counter-Claimant has to pay to the
Claimant / Counter-Respondent interest as follows:
- 5% p.a. over the amount of EUR 360,000 as from 25 July 2013 until the date
of effective payment;
- 5% p.a. over the amount of EUR 70,000 as from 7 August 2013 until the date
of effective payment.
4.
In the event that the amount plus interest due to the Claimant / CounterRespondent is not paid within the stated time limit, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
5.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant immediately and directly of the account number to which the
remittances under points 2. and 3. above are to be made and to notify the
Dispute Resolution Chamber of every payment received.
7.
The counter-claim of the Respondent / Counter-Claimant is partially accepted.
8.
The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant, within 30 days as from the date of notification of the present
decision, compensation for breach of contract in the amount of EUR 1,400,000.
9.
The Intervening Party, Club E, is jointly and severally liable for the payment of
the aforementioned amount.
10.
In the event that the amount due to the Respondent / Counter-Claimant is not
paid within the stated time limit, interest at the rate of 5% will fall due as of
the date of expiry of the stipulated time limit and the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
11.
12.
Any further claim lodged by the Respondent / Counter-Claimant is rejected.
The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent and the Intervening Party immediately and directly of the account
Player A, country B / Club C, country D / Club E, country F
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number to which the remittance under point 8. above 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:
Marco Villiger
Acting Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country F
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