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 1
and the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country F
as Counter-Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 July 2013, the player from country B, Player A, (hereinafter: the player or the
Claimant / Counter-Respondent 1), and the club from country D, Club C
(hereinafter: the club or the Respondent / Counter-Claimant), entered into an
employment contract valid as from 1 July 2013 until 30 June 2015, i.e. for a period
of two years.
2.
According to the contract, the club agreed to pay the player, inter alia, the
following amounts:
USD 1,008,000 payable in 24 monthly salaries of USD 42,000 “at the end
of each month”;
USD 500,000 payable on 20 August 2013;
USD 246,000 payable on 1 February 2014;
USD 500,000 payable on 1 July 2014;
USD 246,000 payable on 1 February 2015;
5 business class return tickets for the player and his family (Country BCountry D)
3.
Art. 25 of the contract stipulates that: “All correspondences and notification
related to this contract shall be addressed to both parties’ addresses as shown in
this contract, unless otherwise notified by either party in writing of any change in
the address.” In this respect, the “mailing address” indicated in the preamble of
the contract referred only to a postal code XXXXX in country D.
4.
According to the player, he and the club also signed on 1 July 2013 an Annex
which stipulates the following fines if the club “fails to timely execute the signfee payment”:
5.
USD 250,000 for the payment due on 20 August 2013;
USD 125,000 for the payment due on 1 February 2014;
USD 250,000 for the payment due on 1 July 2014;
USD 75,000 for the payment due on 1 February 2015.
On 8 April 2014, the player lodged a claim in front of FIFA against the club,
alleging that he terminated the contract with just cause on 31 March 2014 and
requesting the amount of USD 2,871,500 plus 5% interest as from the due dates,
calculated as follows:
- USD 210,000 as outstanding remuneration for the salaries of November 2013
to March 2014 (5 x USD 42,000);
- USD 317,000 for the “rest value of the compensation” due on 20 August
2013;
- USD 246,000 for the payment due on 1 February 2014;
Player A, Country B / Club C, Country D / Club E, Country F
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- USD 375,000 for the fines regarding the payments due on 20 August 2013
and 1 February 2014 (USD 250,000 + USD 125,000);
- USD 630,000 for the “rest value” of the salaries until June 2015 (15 x USD
42,000);
- USD 746,000 for the payments due on 1 July 2014 and 1 February 2015;
- USD 325,000 for the fines due on 2 July 2014 and 2 February 2015;
- USD 7,500 for one flight ticket Country D- Country B (Invoice for 29,250
dated 27 December 2013 provided by the player);
- USD 15,000 as legal costs.
6.
The player explained that the club, from the very beginning of the contract, was
in default of its payment obligations. On 7 October 2013, the player allegedly sent
an e-mail to the club asking for his outstanding salaries and a second notification
was sent on 11 November 2013 to the Football Federation of country D asking the
latter to “use its rules to ask and push” the club to pay its debts “before the
opening of the new transfer window”. In this respect, the player submitted a copy
of an e-mail in which he requested payment of the amount of USD 651,000 as
well as a letter of 11 November 2013 addressed to the Football Federation of
country D.
7.
Furthermore, the player indicated that in December 2013, he was allowed by the
club to travel to country B since his son was ill. He left the club on 28 December
2013 and was bound to return on 10 January 2014, however, according to the
player, the club then refused to provide him his entry visa. The player submitted
an itinerary for a flight between 28 December 2013 – 10 January 2014 as well as
transcript of a “whatsapp” exchange between a certain Agent G and the player.
8.
On 6 January 2014, the agent of the player allegedly sent an e-mail to the club
asking for the latter’s collaboration to obtain a visa for the player’s family, which
remained unanswered. Another e-mail was allegedly sent on 15 January 2014,
again asking for the permits and tickets for the player’s family, which again
remained unanswered. The player indicated the club remained passive, did not
pay his salaries and that, as a result, he remained in country B and was unable to
carry out his profession.
9.
Then, the club issued a letter on 16 February 2014 signed by Agent G stating that
it was prepared to terminate the contract with the player on the following
conditions:
-
The club will not ask any fee for the player;
The player will not ask for any further compensation.
Said letter also indicated that “this letter is Valid till 28.2014”.
Player A, Country B / Club C, Country D / Club E, Country F
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10.
The player deems that the above-mentioned letter corroborates that, in February
2014, he was still under contract with the club and thus still entitled to
remuneration.
11.
Furthermore, the player indicated that he had been informed by a 3 rd party that
he had not been registered “to play during this season” and thus, de facto, had
been blocked to carry out his profession.
12.
On 20 March 2014, the player allegedly sent another notification to the club,
giving a deadline to comply with its contractual obligations until 27 March 2014.
Since no answer had been received, the player reminded the club on 29 March
2014 of the potential consequences, after which on 31 March 2014 he terminated
the contract in writing invoking just cause.
13.
In its reply to the claim, the club indicated that the player abandoned a “training
camp” on 24 November 2013 and missed an important match on 25 November
2013, reason for which he was fined with 50% of his November 2013 salary.
14.
In the last week of December 2013, and according to the club upon the request of
the official agent of the player and with the player’s consent, another agent
(Agent H), travelled to country D where a verbal agreement was made to transfer
the player to country B due to “some familiar player problems”. As a result, the
agreement dated 16 February 2014 was drafted for the agent who would
thereafter sent it to the official agent of the player for acceptance. However, the
club never heard back from the parties.
15.
Furthermore, the club pointed out that it had paid the salaries of July to October
2013 as well as USD 183,000 concerning the instalment due on 20 August 2013
and insisted it was not notified “with any notice of the players allegation. The
club only received one notice from the Football Federation of country D on the
date of 13th November 2013 in which he has notified the club concerning delay of
the payment of the first instalment in section 12.2 hereof.”
16.
Moreover, the club held that:
- The employment contract and agreement were not approved by the
Football Federation of country D;
- The “whatsapp” messages cannot be regarded as valid proof “because it
is without sense to write paragraph without date and without a source of
a legal transmission (email or fax)”;
- The email of 6 January 2014 was sent to “unknown people which has no
relation with the Club”;
- The player has a residence permit which is valid until “23 November
2014”;
Player A, Country B / Club C, Country D / Club E, Country F
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- To obtain the visa for his family, the player must be in country D to make
the application. Therefore, his allegations that the club “did not make the
visa for his family is without sense.”
17.
On 3 August 2014, the club reverted to FIFA and lodged a counter-claim against
the player and his new club, Club E, requesting compensation for breach of
contract in the amount of USD 2,295,163 plus interest, calculated as follows:
-
-
USD 187,500 as the non-amortised part of the commission of USD 250,000
paid to the agent Agent H, USD 50,000 in cash and USD 200,000 by bank
transfer;
USD 50,000 since the replacement of the player earned USD 50,000 more;
USD 1,166,667 as the transfer fee paid for the replacement of the player;
USD 231,338 as the agent fees for the replacement of the player;
USD 34,685 for damages to the player’s villa;
USD 625,000 as extra compensation corresponding to 6 monthly salaries.
18.
The club stated that it had been very generous to the player as to the salary,
accommodation and transport and clarified that it had arranged the player’s
residence permit until 24 October 2014.
19.
Also, since the player had not opened his bank account yet, it paid to him the
following amounts in cash:
-
USD 42,000 on 28 August 2013, corresponding to the salary of July 2013;
USD 183,000 on 28 August 2013, corresponding to part of the USD
500,000 due on 20 August 2013.
20.
Furthermore, it paid USD 36,800 to the bank account of the player’s wife and,
after the player opened a bank account, the club paid him the following amounts:
USD 42,000 on 10 December 2013;
USD 84,000 on 22 December 2013.
21.
The club explained that on 25 November 2013 it played an important game, but
that on the evening before the game, the player left the training camp and
refused to partake. As a consequence, the club fined the player with 50% of his
November 2013 salary in accordance with art. 1.7 of the club’s internal
regulations. The club indicated that it only learned at a later stage that the reason
the player did not want to partake was because of the delay in his salaries and, to
this end, he had sent a notification dated 11 November 2013 to the Football
Federation of country D requesting payment “before the opening of the new
transfer window”. Such notification was received by the club on 13 November
2013 only, to its big surprise since the player had not contacted the club before.
Being well aware that some amounts were outstanding, the club planned to make
Player A, Country B / Club C, Country D / Club E, Country F
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the payment prior to the opening of the transfer window in country D, which was
on 16 December 2013.
22.
In this respect, the club refuted having ever received the e-mail of 7 October 2013
and, since no signature of date or proof of transmission is shown, it must be
rejected.
23.
Furthermore, the club stated that the Annex submitted by the player is forged
since its president never signed it, the document does not bear the stamp of the
Football Federation of country D, which is a requirement in accordance with
Football Federation of country D Regulations, and it is obvious that the club
would never agree to such high penalties.
24.
Having made several payments after the notification received from the player in
November 2013, the club thought that the relationship had been sorted out.
However, on 25 December 2013, the player requested if he could be absent until 7
January 2014, as he wished to accompany his new born son who apparently
needed medical treatment. As a result, the club granted him permission to leave.
25.
However, after 7 January 2014, the player did not return but instead Agent H
came to country D informing the club that the player did not wish to return.
Disappointed by such notice, the club stated that it did not reply at first. However,
after a short while, it told the agent that the player had to return to country D.
Nevertheless, since the agent insisted, the club agreed to give the player “an
opportunity” as it did not wish to oblige someone to stay against his will. With
this in mind, on 16 February 2014, the club issued a note accepting that the player
could transfer freely to another club on the condition that “the parties are
settled” and it limited this opportunity until the end of February 2014.
26.
As to the alleged missing invitation for the player’s family, the club states that this
story is invented. The person holding the residence permit must himself submit a
request to the competent authorities and the club has no influence on this. Also,
the club reiterated its objections in relation to the “whatsapp” conversation and
added that the arrival of the player’s family was not stipulated in the contract.
27.
As to the e-mails dated 6 and 15 January 2014, these emails were addressed to
Agent I who was contracted as the English translator for the club’s youth teams
and was therefore not entitled to receive official communications with a legal
impact. The club stated that Agent I did not forward the emails to the relevant
person within the club. Instead, all legal notifications should have been sent to
the official postal address in accordance with art. 25 of the contract or to the
official email address or via Football Federation of country D.
Player A, Country B / Club C, Country D / Club E, Country F
Page 6 of 15
28.
Hence, the club deems it is evident that the player wanted to leave and that with
this aim, he contracted a lawyer who “bombarded” the club with 3 e-mails in 11
days in March 2014.
29.
The club argued that at the time the player stopped rendering his services, only
the following payments were outstanding:
-
Half of the salary of November 2013;
The salary of December 2013 (for 7 days only);
Part of the down payment due on 20 August 2013.
30.
Considering the small amount outstanding, the fact that the player already
received a generous amount of USD 351,000 and that the player did not sent a
default letter, the club stressed that the player did not have a just cause to
terminate the contract on 7 January 2014. The club added that the player cannot
request the months of January to April 2014 as outstanding remuneration, since
he did not work during these months. Thus, at the time the player lodged his
claim before FIFA, the club was entitled to terminate the contract with the player
with just cause as the player had not rendered his services for 3 months.
31.
Finally, the club indicated that it had given the player two more changes to settle
all conflicting matter by inviting him to pre-season on 1 and 18 June 2014.
32.
In his reply to the counter-claim, the player reiterated his previous position and
added that:
i)
The amount of salary is not relevant for deciding if there is a just cause or
not.
ii) The club was already 3 months late with the player’s first months of salary
when he received the payments on 10 and 22 December 2013. The player
indicates that he already had a bank account as of 3 October 2013.
iii) The sanction imposed on him should be disregarded; the player was never
given the internal regulations.
iv) All communications have been sent to the correct addressees; Agent I was
present as a translator and “part of the team” when negotiating the
contract. He was identified as the contact person of the club. Agent I also
had the task to arrange the “Residence permit” for the foreign players,
which needed to be done in collaboration with the club’s chairman.
v) All communications were sent to address/fax of the club as found on its
website or the address as mentioned in the employment contract or to
the e-mail addresses of employees of which it could be legitimately relied
upon that they represented the club. If the club did not receive these
messages, it was due to their own negligence. In any case, should the club
not have received documentation outside their responsibility, it cannot
Player A, Country B / Club C, Country D / Club E, Country F
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deny that it received the letter of 31 March 2014, sent by fax and
registered mail, which remained unanswered by the club.
vi) The “whatsapp” conversations are genuine.
vii) Agent H is not the agent of the player but of the club, there is no
mandate allowing him to represent the player.
viii) The Annex is genuine. The stamp has faded due to the copies made, but is
clearly seen on the original. In any case, a stamp is not a pre-condition to
establish the validity of a contract.
ix) The player questioned why he was never informed by the club how to
proceed with the visa of his family. In any case, the club’s statement is
incorrect since the player needed the collaboration of his employer to get
a “residence permit” for his family.
33.
Finally, the player amended his claim to “USD 2,901,500” by adding USD 15,000
extra legal costs.
34.
For its part, Club E indicated that in July 2014 it had been informed by the player’s
representative that the player had terminated his contract with Club C in April
2014. For this reason and after having received additional documentation that
would justify the player’s termination, Club E believed it had good reasons to
assume that the player had terminated the contract with the club with just cause.
Therefore, Club E and the player entered into an employment contract on 23 July
2014.
35.
Upon request, a copy of the employment contract between Club E and the player
was provided, which established that the player is entitled to the amount of USD
360,000 for half the season 2014, the amount of USD 660,000 for the 2015 season
of which USD 160,000 shall be paid in January 2014 and the remaining amount in
12 monthly installments. However, according to the player, the terms in the
contract are not the reality as he agreed with Club E to receive only 1/3rd of his
salary after Club C agreed to deregister the player.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to
FIFA on 8 April 2014. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
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 par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Player A, Country B / Club C, Country D / Club E, Country F
Page 8 of 15
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.
Furthermore, 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 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 present claim was lodged in front of FIFA on 8 April
2014, 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, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
5.
First of all, the members of the Chamber acknowledged that, on 1 July 2013, the
player and the club had concluded an employment contract valid as from 1 July
2013 until 30 June 2015 in accordance with which the player was entitled to a
monthly salary of USD 42,000, as well as 4 further lump sum payments in the total
amount of USD 1,492,000, the first one to be paid on 20 August 2013 amounting
to USD 500,000.
6.
The Chamber further observed that the player held that he had unilaterally
terminated the contract in writing on 31 March 2014 invoking just cause, and that
he subsequently lodged a claim in front of FIFA against the Respondent seeking
payment of the amount of USD 2,901,500 plus interest, corresponding to his
alleged outstanding remuneration, fines, compensation for breach of contract as
well as legal fees. On the other hand, the Chamber duly noted that the club held
that the player had terminated the contract without just cause by not returning
to Country D on 7 January 2014, and, as a result, lodged a counter-claim against
the player and his new club for the total amount of USD 2,295,163 plus interest.
7.
As a consequence of the above, the Chamber duly noted that it first had to
examine which is the date to be considered as the date on which the contract was
terminated. Whereas the player held that the relevant date is 31 March 2014, in
particular referring to a letter issued by the club on 16 February 2014, the club
held that the relevant date is 7 January 2014, as the player did not return to the
club on the aforementioned date. After having taken into account all the
circumstances of the present matter, the members of the DRC agreed with the
club and found that the player had indeed terminated the contract on 7 January
Player A, Country B / Club C, Country D / Club E, Country F
Page 9 of 15
2014 by not returning to the club after having travelled to country B in the end of
December 2013. Thus, in the Chamber’s view, as of 7 January 2014 the player had
effectively stopped rendering his services to the club. Therefore, by not returning
to the club on 7 January 2014, the player had de facto terminated the contract.
8.
In continuation, the Chamber underlined that it had to examine whether or not
the decision of the player not to return to country D as from 7 January 2014 was,
under the given circumstances, justified.
9.
In this respect, the Chamber deemed it important to analyse the situation
between the parties as from 1 July 2013 until 7 January 2014. The Chamber
observed that the club recognised that it had not fully complied with its financial
obligations towards the player but, at the same time, indicated that it had already
paid a generous amount of USD 351,000 to the player. What is more, the
Chamber observed that the club stressed that it had not been put in default by
the player prior to his departure from the club.
10.
The Chamber however cannot follow the argumentation of the club; it first
wished to stress that the club acknowledged that it did neither pay the player
part of the lump sum payment of USD 500,000, which fell due on 20 August 2013,
nor half of his salary for November 2013 nor the full salary for December 2013.
The Chamber put particular emphasis on the fact that the amount of USD 317,000
had been outstanding since 21 August 2013 and that thus the club had been
neglecting its contractual obligations from the very beginning of the employment
relationship.
11.
Secondly, the Chamber outlined that various e-mails had been sent to the club
and that the club had recognized that it had, at the very minimum, been notified
of a debt by means of a letter dated 11 November 2013. As such, the club had
been notified by the player that he was not willing to accept the non-payment of
his salaries. Equally, the club recognized that it was well aware that certain
payments were outstanding and that, following the fine imposed on the player, it
had even learned that the reason for which the player did not want to play was
the delay in his salaries. Therefore, the Chamber does not accept the statement of
the club that it had never been put in default and found it proven that the player,
on more than one occasion, had clearly stated his disagreement with the nonpayment of his salaries.
12.
In addition, while the club may consider a payment of USD 351,000 generous, the
Chamber outlined that it was not even half of the amount the player should have
received until 7 January 2014. Indeed, the amount of USD 317,000 was still
outstanding regarding the lump sum payment as well as the amount of USD
84,000 regarding the salaries for November and December 2013. Hence, the
amount of USD 317,000 had been outstanding for more than 4 months and
although having been notified of such debt, the club failed to pay the relevant
Player A, Country B / Club C, Country D / Club E, Country F
Page 10 of 15
amount without any valid reason. What is more, the Chamber underlined that the
club had been late with all its payments. Indeed, the July 2013 salary had only
been paid in August 2013 whereas the August, September and October 2013
salaries had only been paid in December 2013.
13.
As to the fine imposed on the player in November 2013, the Chamber determined
that such fine must be disregarded. The Chamber emphasised that the player was
fined for not partaking in a match on 25 November 2013 and that the club,
apparently only at a later stage, found out that the reason the player did not
wanted to play was because of the delay in his salaries. The Chamber points out
that by 25 November 2013, the player’s salary of August, September and October
2013 had not been paid and that, as mentioned previously, also the amount of
USD 317,000 was still outstanding. The Chamber does not find it reasonable and
proportionate that a player is fined for not complying with his contractual
obligations, when the club, at that very moment, is itself seriously in default of its
own contractual obligations. As such, the Chamber determined that the relevant
fine should be disregarded and that the player was entitled to the full salary for
November 2013.
14.
The Chamber deemed it important to point out that, thus, until 7 January 2014,
the player should have received the amount of USD 752,000 from the club
corresponding to 6 monthly salaries of USD 42,000 and the lump sum payment of
USD 500,000. Yet, the club recognized having only paid the player the amount of
USD 351,000, not even half of the amount due to the player in accordance with
the contract. Taking into consideration all previous deliberations, the Chamber
concluded that the foregoing situation legitimately caused the player’s
confidence in the club respecting its future duties under the contract to be lost.
15.
In this context, the Chamber concluded that the club had seriously neglected its
contractual obligations towards the player in a continuous and constant manner,
i.e. the club had failed to remunerate the player for a substantial period of time
regarding a significant amount of money. As a consequence, the Chamber was of
the unanimous opinion that the player had a justified reason not to return to the
club after 7 January 2014.
16.
On account of all the above, the Chamber established that the player had
terminated the employment contract with just cause on 7 January 2014 and that,
consequently, the club is to be held liable for the early termination of the
employment contact with just cause by the player.
17.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract with just
cause by the player.
Player A, Country B / Club C, Country D / Club E, Country F
Page 11 of 15
18.
First of all, the members of the Chamber concurred that the club must fulfill its
obligations as per employment contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the Chamber decided that the
club is liable to pay to the player the remuneration that was outstanding at the
time of the termination i.e. the amount of USD 401,000, consisting of the monthly
salaries of November and December 2013 (USD 84,000) as well as the remaining
amount of the lump sum payment payable on 20 August 2013 (USD 317,000).
19.
Equally, the Chamber noted that in accordance with the contract, the player was
entitled to flight tickets and concluded that he had provided sufficient evidence
that he indeed had bought flight tickets in the amount of 29,250. Therefore, the
Chamber decided to award the amount of 29,250 for flight tickets.
20.
As a result, the Chamber determined that the club has to pay the player the
amounts of USD 401,000 and 29,250 as outstanding remuneration. Considering
the player’s claim for interest, the Chamber also ruled that the club must pay 5%
interest on the aforementioned amounts as from the respective due dates.
21.
In continuation, the Chamber took note of the player’s claims related to the
“Annex”, which contained various fines in case the club failed to timely execute
the relevant payments under the contract, and observed that the club disputed
the authenticity of said document.
22.
In this respect, the Chamber wished to underline that, upon request, the player
provided the alleged original version of the “Annex”. At this stage, the DRC
considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies
are not competent to decide upon matters of criminal law, such as the ones of
alleged falsified signatures or documents, and that such affairs fall into the
jurisdiction of the competent national criminal authority.
23.
In this regard, the DRC recalled that all documentation remitted shall be
considered with free discretion and, therefore, it focused its attention on the
alleged original document, provided by the player in the present dispute.
However, after a thorough analysis of the relevant document, the Chamber came
to the conclusion that it appeared that the “original” provided by the player was
in fact not the original version of the “Annex”, but rather a copy. As such, and in
accordance with its practice, the DRC had no other option but to conclude that
the relevant document could not be considered. As a result, the Chamber
determined not to award the player any amounts on the basis of the “Annex”.
24.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the player is entitled to receive from the club compensation
for breach of contract in addition to any outstanding remuneration on the basis
of the relevant employment contract.
Player A, Country B / Club C, Country D / Club E, Country F
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25.
In this context, the Chamber outlined that, in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
player under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years, and depending on whether
the contractual breach falls within the protected period.
26.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation payable
by the contractual parties in the event of breach of contract. In this regard, the
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
27.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by the club, the members of the Chamber took into account the
remuneration due to the player in accordance with the employment contract as
well as the time remaining on the same contract, along with the professional
situation of the player after the early termination occurred. In this respect, the
Chamber concluded that the remaining value of the contract as from its early
termination by the player until the regular expiry of the contract amounts to USD
1,748,000 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
28.
In continuation, the Chamber remarked that the player had found new
employment with Club E, where he would earn the amount of USD 770,000 for
the period between July 2014 and 30 June 2015.
29.
In relation to the statement of the player that, according to him, the terms in the
contract were not the reality as he agreed with Club E to receive only 1/3rd of his
salary, the Chamber referred to art. 12 par. 3 of the Procedural Rules, which states
that any party claiming a right on the basis of an alleged fact shall carry the
burden of proof. The Chamber was unanimous in its opinion that the player had
not been able to prove such statement and therefore decided not to accept the
argument of the player.
30.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the player to mitigate his damages, the
remuneration as indicated in the new employment contract shall be taken into
account in the calculation of the amount of compensation for breach of contract.
Player A, Country B / Club C, Country D / Club E, Country F
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31.
In view of all of the above, the Chamber decided that the club must pay the
amount of USD 978,000 to the player, which is considered by the Chamber to be a
reasonable and justified amount as compensation for breach of contract.
32.
In addition, taking into account the player’s request, the Chamber decided that
the club must pay to the player interest of 5% p.a. on the amount of
compensation for breach of contract as of the date on which the claim was
lodged, i.e., 8 April 2014, until the date of effective payment.
33.
Moreover, the Dispute Resolution Chamber decided to reject the player’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
34.
The DRC concluded its deliberations in the present matter by establishing that any
further claim lodged by the player is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent 1, Player A, is partially accepted.
2.
The claim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent 1, within 30 days as from the date of notification of the present
decision, outstanding remuneration in the amounts of USD 401,000 and 29,250
plus 5% interest p.a. until the date of effective payment as follows:
-
5% p.a. as of 21 August 2013 on the amount of USD 317,000;
5% p.a. as of 1 December 2013 on the amount of USD 42,000;
5% p.a. as of 1 January 2014 on the amount of USD 42,000;
5% p.a. as of 28 December 2013 on the amount of 29,250.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent 1, within 30 days as from the date of notification of the present
decision, compensation for breach of contract in the amount of USD 978,000 plus
5% interest p.a. on said amount as from 8 April 2014 until the date of effective
payment.
5.
In the event that the amounts due to the Claimant / Counter-Respondent 1 in
accordance with the above-mentioned numbers 3. and 4. are not paid by the
Respondent / Counter-Claimant within the stated time limits, the present matter
Player A, Country B / Club C, Country D / Club E, Country F
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shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
6.
Any further claim lodged by the Claimant / Counter-Respondent 1 is rejected.
7.
The Claimant / Counter-Respondent 1 is directed to inform the Respondent /
Counter-Claimant immediately and directly of the account number to which the
remittances are 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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D / Club E, Country F
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