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 Majavu (South Africa), member
on the claim presented by the club,
Club A, from country B
as Claimant/Counter-Respondent
against the player,
Player C, from country D
as Respondent I/Counter-Claimant I
and the club,
Club E, from country F
as Respondent II/Counter-Claimant II
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 July 2011, the player from country D, Player C (hereinafter: the Respondent
I/Counter-Claimant I), born on 30 June 1989, and the club from country F, Club E
(hereinafter: the Respondent II/Counter-Claimant II), signed an employment
contract valid as from 1 July 2011 until 30 June 2015, according to which the
Respondent I/Counter-Claimant I is entitled, inter alia, to the following:
a)
b)
c)
d)
Season 2013/2014: USD 132,000 paid in 11 monthly instalments of USD 12,000,
from July 2013 until May 2014.
Season 2014/2015: USD 132,000 paid in 11 monthly instalments of USD 12,000,
from July 2014 until May 2015.
Annual bonus of USD 30,000 to be paid by 15 July 2014.
Monthly accommodation bonus of USD 400.
2.
On 2 July 2013, the Respondent I/Counter-Claimant I, the Respondent II/CounterClaimant II and the club from country B, Club A (hereinafter: the Claimant/CounterRespondent), signed a loan agreement (hereinafter: the loan) valid as from 15 July
2013 until 15 July 2015 (hereinafter: the loan period).
3.
According to the loan, the parties agreed that “[the Claimant/Counter-Respondent]
will be sole responsible of all expenses and salary payments and others related to
the [Respondent I/Counter-Claimant I]” during the loan period and that the
Claimant/Counter-Respondent had to pay a loan compensation amounting to USD
250,000 net to the Respondent II/Counter-Claimant II.
4.
Following the loan, the Claimant/Counter-Respondent and the Respondent
I/Counter-Claimant I signed an undated employment contract (hereinafter: the
contract), valid as from 15 July 2013 until 30 June 2015.
5.
According to the contract:
a)
Art. 3: “If the [Respondent I/Counter-Claimant I] leave[s] [the
Claimant/Counter-Respondent] before the end of the term of this contract
without the consent of [the Claimant/Counter-Respondent] or laze on its
implementation shall be responsible before the [Claimant/CounterRespondent] for the payment of all expenses incurred by the
[Claimant/Counter-Respondent] either those paid against obtaining the
approval on his transfer to the [Claimant/Counter-Respondent], or those
incurred by the [Claimant/Counter-Respondent] for any other purpose, in
addition to compensation for damage to the [Claimant/Counter-Respondent]
and at the discretion of the [Claimant/Counter-Respondent].”
b)
Art. 4: “[The Claimant/Counter-Respondent] shall pay the [Respondent
I/Counter-Claimant I] total value of the contract a sum of USD 1,150,000 By
USD 575,000 for each season is divided as follows:
Club A, from country B / Player C, from country D / Club E, from country F
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1.
2.
3.
4.
6.
USD 200,000 as advance payment for the first season 2013/2014 paid
when contract is signed.
USD 200,000 as advance payment for the second season paid at the
beginning of the second season 2014/2015 on 1 August 2014.
USD 37,500 as monthly salary for ten months pay at the end of each
month for the first season 2013/2014.
USD 37,500 as monthly salary for ten months pay at the end of each
month for the second season 2014/2015.”
c)
Art. 5: “[The Claimant/Counter-Respondent] undertakes to provide a furnished
accommodation for the [Respondent I/Counter-Claimant I] and his family, the
[Respondent I/Counter-Claimant I] shall not have the right to request the
change of accommodation or furniture.”
d)
Art. 6: “[The Claimant/Counter-Respondent] undertakes to provide a mean of
transport for the [Respondent I/Counter-Claimant I] during the matches and
training or travel allowance.”
e)
Art. 7: “[The Claimant/Counter-Respondent] shall provide the [Respondent
I/Counter-Claimant I] two tickets for business class travel to and from his
country for him and his wife twice, and one economy class ticket for two
members from his family every season.”
f)
Art. 21: “If the [Respondent I/Counter-Claimant I] convicted by preaching the
regulations and laws of the country or this contract provisions, the
[Claimant/Counter-Respondent] may terminate the contract and [the
Claimant/Counter-Respondent] reserves its right to claim compensation
equivalent all the money paid and to the contract advance payment and his
due salaries for the period from the date of termination until the end of this
term.”
On 15 November 2013, the Respondent I/Counter-Claimant I informed the
Claimant/Counter-Respondent, in writing and by fax, that, due to the
Claimant/Counter-Respondent’s alleged failure to comply with its contractual
obligations, he had “no choice but to resolve the dispute by means of legal actions
and I will further claim all indemnifications and the full payment under the contract
concluded, including but not limited to the those arising from art. 4 of the contract,
as well as any legal fees and other expenses, such as accommodation as stipulated
in the art. 5.”
Claimant/Counter-Respondent’s claim
7.
On 4 December 2013, the Claimant/Counter-Respondent lodged a claim before FIFA
for breach of contract and inducement to breach against the Respondent I/CounterClaimant I and the Respondent II/Counter-Claimant II, requesting, after amending
its claim, the payment of the total amount of USD 1,400,000, plus “legal interests”,
procedural costs and legal fees, corresponding to the total value of the loan and
the contract.
Club A, from country B / Player C, from country D / Club E, from country F
3/17
8.
The Claimant/Counter-Respondent claims that the Respondent I/Counter-Claimant I
breached art. 3 and art. 21 of the contract and art. 16 of the Regulations on the
Status and Transfer of Players, by leaving country B on 16 November 2013 without
permission from it.
9.
The Claimant/Counter-Respondent explains that, according to the Football
Association from country B, the season 2013/2014 started on 30 August 2013 and
ended on 26 April 2014, i.e. 8 months.
10.
The Claimant/Counter-Respondent alleges that the Respondent I/Counter-Claimant I
refused to receive his salaries for September and October 2013.
11.
In this respect, the Claimant/Counter-Respondent submitted a representation
agreement dated 30 June 2013 and signed between the Respondent I/CounterClaimant I and the agent, Mr J, whereby the Respondent I/Counter-Claimant I
declared that the latter “is my agent in the area including country B. This
Authorization letter will be exclusively and valid till 30 August 2015. Mr J
represent[s] me and negotiate[s] with any clubs from countries in the area of
country B on my behalf.”
12.
The Claimant/Counter-Respondent submitted copy of a cheque dated 30 June 2013
in favour of the Respondent I/Counter-Claimant I for 55,000 and another cheque
dated 10 October 2013 also in favour of the Respondent I/Counter-Claimant I for
2,720.
Respondent I/Counter-Claimant I’s claim
13.
On 9 December 2013, the Respondent I/Counter-Claimant I lodged a claim before
FIFA against the Claimant/Counter-Respondent for breach of contract, requesting,
after amending his claim, the payment of the total amount of USD 958,825.64
minus his receivables under the employment contract signed with the Respondent
II/Counter-Claimant II for the period starting when he went back to the Respondent
II/Counter-Claimant II, plus 5% interest p.a. as from the breach of contract, broken
down as follows:
a)
b)
c)
d)
14.
USD 200,000, as advance payment for the second season 2014/2015;
USD 373,232.64, as salary for the first season;
USD 375,000, as salary for the second season;
USD 10,593, for accommodation and air tickets.
In his claim, the Respondent I/Counter-Claimant I acknowledges to have received
57,720 (cf. point I.12. above) but states that the Claimant/Counter-Respondent did
not pay his salaries nor provide accommodation and transport for August,
September, October and November 2013, although he notified the
Claimant/Counter-Respondent, in writing, of its salary arrears towards him, by
means of two telegrams.
Club A, from country B / Player C, from country D / Club E, from country F
4/17
Claimant/Counter-Respondent’s reply
15.
In its reply, the Claimant/Counter-Respondent refers to art. 4, no. 3 of the contract
(cf. point I.5.b) above), to the definition of “season” in the Regulations on the
Status and Transfer of Players and to the certificate issued by the Football
Association from country B (cf. point I.9. above) in order to establish that the first
salary of the player corresponds to September 2013.
16.
The Claimant/Counter-Respondent explains that it did not receive the telegrams the
Respondent I/Counter-Claimant I apparently sent on 21 and 27 October 2013 and,
therefore, the Respondent I/Counter-Claimant I failed to put it in default.
Additionally, by the time the Respondent I/Counter-Claimant I left country B, the
monthly remuneration that was due, according to the Claimant/CounterRespondent, corresponded to September 2013 and October 2013 only. The
foregoing would not constitute a just cause according to the Commentary on the
Regulations on the Status and Transfer of Players.
17.
The Claimant/Counter-Respondent claims that, since it received the fax on the night
of 15 November 2013 and the Respondent I/Counter-Claimant I left country B on 16
November 2013, at 8:30 am, the Respondent I/Counter-Claimant I terminated the
contract without giving it a reasonable time for paying his receivables.
18.
Additionally, the Claimant/Counter-Respondent argues that the Respondent
I/Counter-Claimant I rejected the apartment it offered him and was provided with a
car (cf. point I.32. below).
Respondent I/Counter-Claimant I’s reply
19.
The Respondent I/Counter-Claimant I asserts that the Claimant/Counter-Respondent
breached the contract since the beginning of the employment relationship because
it only paid him 55,000 as advance, which according to him corresponds to USD
193,000, and it did so in a currency different than the one stipulated by the parties
in the contract (cf. point I.5.b) above).
20.
In continuation, the Respondent I/Counter-Claimant I claims that he was paid 2,720
on 10 October 2013, which corresponds to approx. USD 9,500 and clearly not the
USD 37,500 established as monthly remuneration. Therefore, his advance payment
was actually paid in full on 10 October 2013 and not on 15 July 2013.
21.
In connection with the payment of salaries, the Respondent I/Counter-Claimant I
claims that the first monthly salary was due on 30 July 2013 because the contract
was signed on 30 June 2013.
22.
Additionally, the Respondent I/Counter-Claimant I alleges that the season 2013/2014
in country B lasted only 8 months so it was impossible for the Claimant/CounterRespondent to pay him 10 monthly salaries according to the contract, if the season
were to be followed. In this sense, the Respondent I/Counter-Claimant I claims that
the first salary fell due in July 2013 when he started rendering his services.
Club A, from country B / Player C, from country D / Club E, from country F
5/17
23.
As to the representation agreement, the Respondent I/Counter-Claimant I asserts
that it was signed only for the purpose of negotiating his transfer to the area
including country B. Moreover, the Respondent I/Counter-Claimant I rejects having
been contacted by his agent in relation to the payment of his receivables.
24.
In this respect, the Respondent I/Counter-Claimant I affirms that it does not make
sense to contact him through his agent rather than directly at any training session.
Respondent II/Counter-Claimant II’s reply
25.
In its reply, the Respondent II/Counter-Claimant II claims that the Claimant/CounterRespondent breached the loan and, on 21 January 2014, the Respondent II/CounterClaimant II requested the international transfer certificate (ITC) of the Respondent
I/Counter-Claimant I back from the loan.
26.
In this sense, the Respondent II/Counter-Claimant II argues that the Respondent
I/Counter-Claimant I terminated the contract with just cause based on unpaid
salaries and, therefore, the Respondent II/Counter-Claimant II did not induce the
Respondent I/Counter-Claimant I to do so.
27.
Additionally, the Respondent II/Counter-Claimant II explains that, since the loan
ended in advance because of the breach of the Claimant/Counter-Respondent, the
former employment contract with the Respondent I/Counter-Claimant I came into
force again, although the position of the Respondent I/Counter-Claimant I was
being occupied by another foreign player. Hence, the Respondent II/CounterClaimant II requested the ITC of the Respondent I/Counter-Claimant I due to its
obligation to pay salaries to the Respondent I/Counter-Claimant I well in advance of
the end of the loan.
28.
Moreover, the Respondent II/Counter-Claimant II affirms that it is willing to send
the Respondent I/Counter-Claimant I back to the Claimant/Counter-Respondent, if
the latter and the Respondent I/Counter-Claimant I agree to do so.
29.
Finally, the Respondent II/Counter-Claimant II requests to order the
Claimant/Counter-Respondent to reimburse to it the total amount of USD 244,000,
corresponding to salaries and expenses it had to pay to the Respondent I/CounterClaimant I due to the reactivation of their employment contract after the
Claimant/Counter-Respondent’s breach of the loan and its premature termination
(cf. point I.1. above).
30.
In this respect, the Respondent II/Counter-Claimant II submitted a copy of the
employment contract referred to in point I.1. above.
Claimant/Counter-Respondent’s replica
31.
In continuation, the Claimant/Counter-Respondent argues that the Respondent
I/Counter-Claimant I did not complain about receiving the currency of country B
instead USD as advance payment.
Club A, from country B / Player C, from country D / Club E, from country F
6/17
32.
Additionally, the Claimant/Counter-Respondent submitted a letter addressed to the
Football Association from country B dated 1 August 2013, informing that the
Respondent I/Counter-Claimant I rejected the apartment it offered him and a
statement signed by the Respondent I/Counter-Claimant I acknowledging receipt of
a car.
Respondent I/Counter-Claimant I’s replica
33.
The Respondent I/Counter-Claimant I claims that he put the Claimant/CounterRespondent in default twice, by means of his telegrams dated 21 and 27 October
2013 and that the termination letter of 15 November 2013 (cf. point I.6. above) was
validly sent after the Claimant/Counter-Respondent failed to comply with his two
previous requests, without any need for establishing a new deadline for payment of
his receivables.
34.
Moreover, the Respondent I/Counter-Claimant I highlights that three unpaid
salaries are not the only just cause for terminating an employment contract based
on outstanding remuneration but also the persistence or repetition of the nonpayment of the salary.
35.
In this respect, the Respondent I/Counter-Claimant I argues that the
Claimant/Counter-Respondent owed him part of his advance payment and the
monthly salaries corresponding to September, October and more than half of
November 2013 and, therefore, the breach of the Claimant/Counter-Respondent is a
persistent and repetitive one.
36.
In addition to the foregoing, the Respondent I/Counter-Claimant I claims that the
Claimant/Counter-Respondent was in breach of contract since the beginning of the
validity period of the contract because it only paid part of his advance payment.
37.
With regard to the telegrams requesting payment of his receivables and apparently
sent to the Claimant/Counter-Respondent, the Respondent I/Counter-Claimant I
submitted a witness statement dated 23 Abril 2014, whereby Mr. Y, an
acquaintance of the Respondent I/Counter-Claimant I, declares that such telegrams
were sent and received by the Claimant/Counter-Respondent.
Respondent II/Counter-Claimant II’s replica and duplica
38.
In its subsequent submissions, the Respondent II/Counter-Claimant II reiterates its
position.
Claimant/Counter-Respondent’s duplica
39.
In its final comments, the Claimant/Counter-Respondent explains that the
Respondent I/Counter-Claimant I did not communicate his bank account details to it
and all previous payments were done by cheques handed over personally to the
player (cf. point I.12. above). Therefore, the Claimant/Counter-Respondent
reiterates its allegation with regard to the refusal of the Respondent I/CounterClaimant I to receive his salaries for September and October (cf. point I.10. above)
Club A, from country B / Player C, from country D / Club E, from country F
7/17
and the consequent impossibility to pay the Respondent I/Counter-Claimant I’s
remuneration.
40.
Additionally, the Claimant/Counter-Respondent contends the validity of the witness
statement submitted by the Respondent I/Counter-Claimant I (cf. point I.37. above),
arguing that the witness is a friend of the Respondent I/Counter-Claimant I and
that, in any case, such statement does not prove receipt of the telegrams by the
Claimant/Counter-Respondent.
Respondent I/Counter-Claimant I’s duplica
41.
In his final comments, the Respondent I/Counter-Claimant I reiterates his position.
Respondent I/Counter-Claimant I’s contractual situation
42.
According to TMS, the Respondent I/Counter-Claimant I was provisionally registered
for the Respondent II/Counter-Claimant II on 21 February 2014 (cf. contract details
in point I.1. above). However, the passport issued by the Football Federation from
country F indicates that the Respondent I/Counter-Claimant I was registered for the
Respondent II/Counter-Claimant II between 1 February 2014 and 30 June 2014.
43.
On 24 June 2014, the Respondent I/Counter-Claimant I, the Respondent II/CounterClaimant II and the club from country H, Club G, signed a loan agreement valid as
from 1 July 2014 until 30 June 2015, whereby the Respondent II/Counter-Claimant II
transferred the Respondent I/Counter-Claimant I on a loan basis to the club from
country H, for free.
44.
Following the aforesaid loan agreement, the Respondent I/Counter-Claimant I and
Club G signed on 1 July 2014 an employment contract, valid as from 1 July 2014
until 30 June 2015, for a monthly remuneration of USD 12,000 net and a monthly
accommodation bonus of USD 500.
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
4 and 9 December 2013. Consequently, the 2012 edition of the Rules governing the
procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(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 (editions 2012 and 2014), the Dispute Resolution Chamber is competent to
deal with the matter at stake, which concerns an employment-related dispute with
Club A, from country B / Player C, from country D / Club E, from country F
8/17
an international dimension between a club from country B, on one hand, and an
player from country D, on the other.
3.
Furthermore, the Chamber analysed which edition of the 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 (editions 2012 and 2014), and considering that the claim of the
Claimant/Counter-Respondent was lodged on 4 December 2013 and that the claim
of the Respondent I/Counter-Claimant I was lodged on 9 December 2013, the 2012
edition of said Regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
4.
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.
5.
The members of the Chamber acknowledged that it was undisputed by the parties
that they were contractually bound by the loan, valid as from 15 July 2013 until 15
July 2015 –for which the Claimant/Counter-Respondent paid a compensation of USD
250,000 to the Respondent II/Counter-Claimant II–, and that the Claimant/CounterRespondent and the Respondent I/Counter-Claimant I were contractually bound by
means of the contract, valid as from 15 July 2013 until 30 June 2015.
6.
In addition, the DRC noted that the parties did not dispute the fact that the
Respondent I/Counter-Claimant I terminated the contract on 15 November 2013 and
left country B on 16 November 2013, at 8:30 am (cf. point I.17 above).
7.
Finally, the DRC also noted that the parties did not dispute the fact that the
Claimant/Counter-Respondent paid 57,720 to the Respondent I/Counter-Claimant I,
by means of one cheque dated 30 June 2013 amounting 55,000 and another cheque
dated 10 October 2013 amounting 2,720.
8.
The Chamber further noted that the Claimant/Counter-Respondent, on the one
hand, lodged a claim against the Respondent I/Counter-Claimant I and the
Respondent II/Counter-Claimant II for breach of contract and inducement to breach,
arguing that the Respondent I/Counter-Claimant I terminated the contract without
just cause on 15 November 2013.
9.
The Chamber also noted that the Respondent I/Counter-Claimant I, on the other
hand, lodged a claim against the Claimant/Counter-Respondent for breach of
contract, arguing that he had just cause to unilaterally terminate the contract on 15
November 2013 based on the non-payment of his monthly salaries of September,
October and more than half of November 2013.
10.
Additionally, the DRC noted as well that the Respondent II/Counter-Claimant II
lodged a counterclaim against the Claimant/Counter-Respondent for breach of the
Club A, from country B / Player C, from country D / Club E, from country F
9/17
loan as a consequence of the unilateral termination of the contract by the
Respondent I/Counter-Claimant I allegedly with just cause.
11.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the respective claims of the Claimant/CounterRespondent, the Respondent I/Counter-Claimant I and the Respondent II/CounterClaimant II, was to determine whether the contract had been unilaterally
terminated with or without just cause by the Respondent I/Counter-Claimant I on 15
November 2013.
12.
In view of the above, the DRC first of all took into consideration the content of art.
14 of the Regulations, which provides that “a contract may be terminated by either
party without consequences of any kind (either payment of compensation or
imposition of sporting sanctions) where there is just cause”.
13.
The Chamber stressed that the definition of just cause and whether just cause exists
shall be established in accordance with the merits of each particular case.
14.
In this context, the Chamber took due note that the agreement of the parties to the
contract was for the Respondent I/Counter-Claimant I to receive, inter alia, 10 (ten)
monthly salaries at the end of each month of the season 2013/2014.
15.
The members of the DRC recalled at this point that the Respondent I/CounterClaimant I originally claimed that the first monthly salary of the season 2013/2014
fell due on 30 July 2013 (cf. point I.21. above). However, the Chamber took due
note that he later amended his petition in that regard and argued that, as of the
contract’s termination date, i.e. 15 November 2013, the Claimant/CounterRespondent owed him his monthly salaries of September and October 2013 and
part of his monthly salary of November 2013 (cf. points I.34. and I.35. above).
16.
Therefore, the Chamber concluded that the parties to the contract admitted that
the monthly salaries of the season 2013/2014 fell due as from September 2013,
which is the statement of the Claimant/Counter-Respondent in this respect.
Likewise, the members of the Chamber deemed it appropriate to recall that the
Claimant/Counter-Respondent acknowledged to owe the Respondent I/CounterClaimant I the monthly remuneration corresponding to September 2013 and
October 2013 (cf. point I.16. above) and that the pay dates of the Respondent
I/Counter-Claimant I’s salaries were “the end of each month”.
17.
Based on the aforementioned, the members of the Chamber established that, until
the contract’s termination date, i.e. 15 November 2013, in addition to the advance
payment for the season 2013/2014, two monthly salaries –September and October
2013– had fallen due. In this regard, the DRC made it clear that the salary of
November 2013 was not due by the date the contract was terminated, as it was only
payable on 30 November 2013
18.
The foregoing consideration is in line with the information contained in the
Transfer Matching System (TMS), according to which the season 2013/2014 in
country B started on 3 September 2013 and ended on 31 May 2014, i.e. 9 months,
and with the information provided by the Football Association from country B,
Club A, from country B / Player C, from country D / Club E, from country F
10/17
according to which said season started on 30 August 2013 and ended on 26 April
2014, i.e. 8 months.
19.
In continuation, the DRC noted that, on the one hand, the Respondent I/CounterClaimant I argues that he put the Claimant/Counter-Respondent in default twice, by
means of two telegrams allegedly sent to the Claimant/Counter-Respondent on 21
and 27 October 2013. On the other hand, the Claimant/Counter-Respondent rejects
to have received them.
20.
The members of the Chamber deemed it appropriate to refer the parties to art. 12
par. 3 of the Procedural Rules, which stipulates that “any party claiming a right on
the basis of an alleged fact shall carry the burden of proof”.
21.
Subsequently, the Chamber confirmed that, whereas the Respondent I/CounterClaimant I satisfactorily proved that the Claimant/Counter-Respondent received on
15 November 2013, at 20:00 hrs, a fax sent by him to the fax number of the
Claimant/Counter-Respondent that appears in the contract, he failed to evidence
that the telegrams referred to in paragraph II.21. were actually received by the
Claimant/Counter-Respondent.
22.
In respect of the aforesaid consideration, the DRC noted that the only
documentation provided by the Respondent I/Counter-Claimant I in support of his
allegation was a personal statement apparently issued by a person connected to the
Respondent I/Counter-Claimant I.
23.
In this regard, the Chamber was eager to emphasize that the information contained
in a personal statement, not supported by any additional documentation
whatsoever, is of mainly subjective perception and might be affected by diverse
contextual factors; therefore, the credibility of such type of documentation is quite
limited. Bearing in mind the aforementioned, the DRC highlighted that this
personal statement presented by the Respondent I/Counter-Claimant I was not
consistent with the rest of the evidence found on file and, therefore, could not be
considered as substantial evidence of the dispatch and receipt of the telegrams.
24.
Moreover, the Chamber noted that the Respondent I/Counter-Claimant, in spite of
having allegedly sent his two reminders of 21 and 27 October 2013 by telegram,
changed his communication method, faxed his notice to the Claimant/CounterRespondent –instead of sending a third telegram– using the fax number he had
since the beginning of the contractual relationship, and kept the relevant fax
report.
25.
In addition to the foregoing, the DRC observed that, notwithstanding the fact that
the fax sent by the Respondent I/Counter-Claimant I on 15 November 2013, at 20.00
hrs, does not appear to be a default notice because its content is rather vague and
ambiguous and does not mention any clear and specific claim for payment of
outstanding remuneration, he left country B at 8:30 in the morning of the next day.
In this sense, the Chamber concluded that, had the notice of 15 November 2013
been a default notice, still 12 (twelve) hours –especially like in the present dispute
where those corresponded to the night in between– cannot be considered a
Club A, from country B / Player C, from country D / Club E, from country F
11/17
reasonable time limit granted to a party in order to comply with pending
obligations.
26.
Finally, the Chamber took into consideration that the Claimant/Counter-Respondent
paid to the Respondent I/Counter-Claimant I the amount of 57,720, which
corresponds to his advance payment for the season 2013/2014. This amount
represents near 20% of the value of the contract, whereas two monthly salaries
correspond to approx. 5% of its value. Hence, the DRC found that the existence of
two outstanding monthly salaries, although acknowledged by the Respondent
I/Counter-Claimant I (cf. point II.16. above), was not enough in order for the
Respondent I/Counter-Claimant I to terminate the contract without a previous
warning to the Claimant/Counter-Respondent.
27.
In summary and still bearing in mind the wording of art. 12 par. 3 of the Procedural
Rules, the Chamber established that on 15 November 2013 the Respondent
I/Counter-Claimant I terminated the contract without any prior warning to the
Claimant/Counter-Respondent and based on a non-material default.
28.
In view of the foregoing, the DRC concluded that, in accordance with art. 17 par. 1
of the Regulations and its long-standing jurisprudence, the Respondent I/CounterClaimant I is liable for the termination of the contract without just cause on 15
November 2013 and, consequently, must pay an amount of compensation to the
Claimant/Counter-Respondent. Furthermore, in accordance with the unambiguous
contents of article 17 par. 2 of the Regulations, the Chamber established that the
Respondent I/Counter-Claimant I’s new club, i.e. the Respondent II/CounterClaimant II, shall be jointly and severally liable for the payment of compensation.
29.
In continuation, prior to establishing the consequences of the breach of contract
without just cause by the Respondent I/Counter-Claimant I in accordance with art.
17 par. 1 of the Regulations, the Chamber held that it had to address the issue of
any unpaid remuneration at the moment the contract was terminated by the
Respondent I/Counter-Claimant I.
30.
Indeed, after amending his claim, the Respondent I/Counter-Claimant I alleges that
his salaries of September, October and November 2013 were outstanding at the
time he terminated the contract. The Chamber drew its attention, once again, to
the fact that the Respondent I/Counter-Claimant I’s salaries fell due “at the end of
each month”. Thus, considering that he terminated the contract on 15 November
2013, only his salaries of September and October 2013 were due at that time.
Furthermore, the Chamber noted that the Claimant/Counter-Respondent expressly
acknowledged that said salaries were outstanding (cf. point I.16. above).
31.
Consequently, the Chamber took into account that, as of the contract's termination
date, the Claimant/Counter-Respondent had not paid to the Respondent I/CounterClaimant I the total amount of USD 75,000 in salaries.
32.
In accordance with the principle pacta sunt servanda, the Chamber decided that the
Respondent I/Counter-Claimant I is, therefore, entitled to outstanding
remuneration in the total amount of USD 75,000 pursuant to art. 4.3. of the
contract, which corresponds to his monthly salaries of September and October 2013.
Club A, from country B / Player C, from country D / Club E, from country F
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33.
In addition, taking into account the Respondent I/Counter-Claimant I's request as
well as the constant practice of the Dispute Resolution Chamber in this regard, the
members of the Chamber decided to award the Respondent I/Counter-Claimant I
interest at the rate of 5% p.a. on the outstanding amount of USD 75,000 as of 16
November 2013, which is the date following the termination of the contract, until
the date of effective payment.
34.
Having stated the above, the Chamber focused its attention on the calculation of
the amount of compensation for breach of contract in the case at stake. In doing so,
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 Respondent I/Counter-Claimant I under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years as well as the fees and expenses paid or incurred by the
former club (amortised over the term of the contract) and whether the contractual
breach falls within the protected period. The DRC recalled that the list of objective
criteria is not exhaustive and that the broad scope of the indicated criteria tends to
ensure that a just and fair amount of compensation is awarded to the party which
suffered the damage.
35.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the contract contains any provision by means of which the parties to
it had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the DRC noted
that the contract contained the following provisions:
Art. 3: “If the [Respondent I/Counter-Claimant I] leave[s] [the Claimant/CounterRespondent] before the end of the term of this contract without the consent of [the
Claimant/Counter-Respondent] or laze on its implementation shall be responsible
before the [Claimant/Counter-Respondent] for the payment of all expenses incurred
by the [Claimant/Counter-Respondent] either those paid against obtaining the
approval on his transfer to the [Claimant/Counter-Respondent], or those incurred by
the [Claimant/Counter-Respondent] for any other purpose, in addition to
compensation for damage to the [Claimant/Counter-Respondent] and at the
discretion of the [Claimant/Counter-Respondent].”
Art. 21: “If the [Respondent I/Counter-Claimant I] convicted by preaching the
regulations and laws of the country or this contract provisions, the
[Claimant/Counter-Respondent] may terminate the contract and [the
Claimant/Counter-Respondent] reserves its right to claim compensation equivalent
all the money paid and to the contract advance payment and his due salaries for
the period from the date of termination until the end of this term.”
36.
The members of the Chamber agreed that these clauses are not clear and are, in
any case, to the benefit of the Claimant/Counter-Respondent only. Therefore, they
Club A, from country B / Player C, from country D / Club E, from country F
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cannot be taken into consideration in the determination of the amount of
compensation.
37.
As a consequence, the members of the Chamber determined that such amount of
compensation payable by the Respondent I/Counter-Claimant I 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. In this regard, the DRC
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.
38.
Consequently, in order to estimate the amount of compensation due to the
Claimant/Counter-Respondent in the present case, the Chamber turned its attention
to the remuneration and other benefits due to the Respondent I/Counter-Claimant I
under the contract and the new contract, which criterion was considered by the
Chamber to be essential. In this context, the members of the Chamber deemed it
important to emphasise that the wording of art. 17 par. 1 of the Regulations allows
the DRC to take into consideration both the contract and the new contract 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.
39.
In this regard, the DRC established, on the one hand, that the employment contract
between the Claimant/Counter-Respondent and the Respondent I/Counter-Claimant
I had been set to run as from 15 July 2013 until 30 June 2015. Since the breach
occurred on 15 November 2013, i.e. the contract’s termination date, the total value
of his employment agreement with the Claimant/Counter-Respondent for the
remaining contractual period amounts to USD 875,000 (cf. point I.5.b) above). On
the other hand, the members of the Chamber established that the value of the
employment contract concluded between the Respondent I/Counter-Claimant I and
the Respondent II/Counter-Claimant II amounts to a total of USD 254,000 for the
period starting from the unilateral termination of the contract by the Respondent
I/Counter-Claimant I until its contractual expiry, i.e. from 16 November 2013 until 30
June 2015 (cf. point I.1. above). On the basis of the aforementioned financial
contractual elements, the Chamber concluded that the average of remuneration
between the contracts concluded by the Respondent I/Counter-Claimant I
respectively with the Claimant/Counter-Respondent and the Respondent II/CounterClaimant II over the relevant period amounted to USD 564,500.
40.
The members of the Chamber then turned to the further essential criterion relating
to the fees and expenses paid by the Claimant/Counter-Respondent for the
acquisition of the Respondent I/Counter-Claimant I’s services insofar as these have
not been amortised over the term of the relevant contract. The Chamber recalled
that a loan compensation of USD 250,000 had been paid by the Claimant/CounterRespondent to the Respondent II/Counter-Claimant II for the Respondent I/CounterClaimant I’s transfer on loan (cf. point I.3. above). According to article 17 par.1 of
the Regulations, this amount shall be amortised over the term of the relevant
employment contract. As stated above, the Respondent I/Counter-Claimant I was
still bound to the Claimant/Counter-Respondent for twenty further months of
contract when he terminated the 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
Club A, from country B / Player C, from country D / Club E, from country F
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the Respondent I/Counter-Claimant I’s breach of contract on 15 November 2013, the
Claimant/Counter-Respondent has thus been prevented from amortising the
amount of approx. USD 208,000, i.e. 5/6 of USD 250,000, relating to the loan
compensation that it paid in order to acquire the Respondent I/Counter-Claimant I’s
services, which the Claimant/Counter-Respondent spent with the intention to
benefit from the Respondent I/Counter-Claimant I’s services for the period of time
that would then be established by means of the contract.
41.
Thus, the Chamber concluded that the amount of approx. USD 772,500 serves as the
basis for the final determination of the amount of compensation for breach of
contract that the Respondent I/Counter-Claimant I has to pay to the
Claimant/Counter-Respondent.
42.
At this point, the DRC highlighted that, notwithstanding the fact that it appears to
be clear that the first monthly salary of the Respondent I/Counter-Claimant I fell
due on 30 September 2013 (cf. point II.16. above), the Chamber was eager to
emphasise that the payment of 10 (ten) monthly salaries at the end of each month
of the season 2013/2014 could not be complied with by the Claimant/CounterRespondent because if TMS were to be followed, the tenth salary would have been
paid after the end of said season and if the information provided by the Football
Association from country B were to be followed, the ninth and tenth salaries would
have been paid after the end of the aforementioned season (cf. point II.18. above).
43.
At this point, the DRC highlighted that since the contract was drafted in both
English and the language of country B and bears the letterhead of the
Claimant/Counter-Respondent, it seems that the Claimant/Counter-Respondent was
the party who drafted it.
44.
The members of the Chamber agreed that, given the particularities of the matter at
hand, attenuating circumstances are applicable taking into consideration the
principle in dubio contra proferentem. For these reasons, the Chamber decided to
reduce the compensation for breach of contract at the total amount of USD
650,000.
45.
All in all, on account of the aforementioned considerations, the Chamber decided
that the claim of the Claimant/Counter-Respondent is partially accepted and that
the Respondent I/Counter-Claimant I must pay the amount of USD 650,000 to the
Claimant/Counter-Respondent as compensation for breach of contract.
Furthermore, the Respondent II/Counter-Claimant II is jointly and severally liable for
the payment of the relevant compensation (cf. point II.28. above).
46.
Taking into account the Claimant/Counter-Respondent’s request and considering
that its claim was lodged on 4 December 2013, the Chamber concluded that the
Respondent I/Counter-Claimant I must pay interest of 5% p.a. on the amount of
USD 650,000 as from 4 December 2013 until the date of effective payment.
47.
With regard to the Claimant/Counter-Respondent’s claim for legal fees and
procedural costs, the Chamber recalled the contents of art. 18 par. 4 of the
Procedural Rules as well as to its long-standing and well-established jurisprudence,
which clearly stipulates that no procedural compensation is awarded in proceedings
Club A, from country B / Player C, from country D / Club E, from country F
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in front of the Dispute Resolution Chamber. Therefore, the members of the
Chamber had no other alternative than to reject this part of the claim.
48.
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, that the claim of the Respondent I/Counter-Claimant I is partially
accepted and the Claimant/Counter-Respondent must pay to him the amount of
USD 75,000 as outstanding remuneration –as decided in points II.32. and II.33.
above–, however any further request filed by the Respondent I/Counter-Claimant I
is rejected, and that the counter-claim of the Respondent II/Counter-Claimant II is
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club A, is partially accepted.
2.
The Respondent I/Counter-Claimant I, Player C, is ordered to pay to the
Claimant/Counter-Respondent compensation for breach of contract in the amount
of USD 650,000, plus 5% interest p.a. as from 4 December 2013 until the date of
effective payment, within 30 days as from the date of notification of this decision.
3.
The Respondent II/Counter-Claimant II, Club E, is jointly and severally liable for the
payment of the aforementioned amount.
4.
In the event that the amount due to the Claimant/Counter-Respondent in
accordance with numbers 2. and 3. above, plus interest, 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 claims lodged by the Claimant/Counter-Respondent are rejected.
6.
The Claimant/Counter-Respondent is directed to inform the Respondent I/CounterClaimant I and the Respondent II/Counter-Claimant II 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.
7.
The claim of the Respondent I/Counter-Claimant I is partially accepted.
8.
The Claimant/Counter-Respondent is ordered to pay to the Respondent I/CounterClaimant I outstanding remuneration in the amount of USD 75,000, plus 5% interest
p.a. as from 16 November 2013 until the date of effective payment, within 30
days as from the date of notification of this decision.
9.
In the event that the amount due to the Respondent I/Counter-Claimant I in
accordance with the above-mentioned number 8., plus interest, is not paid by the
Club A, from country B / Player C, from country D / Club E, from country F
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Claimant/Counter-Respondent within the stated time limit, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
10.
Any further claims lodged by the Respondent I/Counter-Claimant I are rejected.
11.
The Respondent I/Counter-Claimant I is directed to inform the Claimant/CounterRespondent 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.
12.
The counter-claim of the Respondent II/Counter-Claimant II is rejected.
*****
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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Club A, from country B / Player C, from country D / Club E, from country F
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