Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 19 January 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
Wouter Lam brecht (Belgium ), member
on the matter between the player,
Play er A, Country B
as Claimant / Counter-Respondent I
and the club,
Club C , Country D
as Respondent / Counter-Claimant
and the club,
Club E , Country B
as Counter-Respondent II
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On an unknown date, the Player of Country B, Player A (hereinafter:
Claimant/Counter-Respondent I or player), and the Club of Country D, Club C
(hereinafter: Respondent/Counter-Claimant or club) concluded an employment
contract (hereinafter: contract A) valid as of 1 July 2013 until 10 November 2014
“unless earlier terminated pursuance to this contract, or to end of 2014 season”.
2.
According to the information contained in the Transfer Matching System (TMS),
the 2014 season in Country D ended on 2 November 2014.
3.
According to the contract A, the club undertook to pay to the player, inter alia, the
following amounts:
- USD 100,000 when player passes the medical test and signs the contract;
- USD 20,000 as monthly salary as of August to November 2013 and January to June
2014;
- USD 50,000 as payment “When begins the second-half of season 2014”;
- USD 20,000 as monthly salary as of July to November 2014.
4.
Furthermore, contract A establishes that: “Party A [club] shall provide Party B
[player] with clean, healthy, comfortable and convenient accommodation and
nutritious meals, of which, the using cost of water, electronic, gas, management
cost, heat fee, telephone and other communication facilities shall be borne by
Party B [player]. If Party B [player] want to hire accommodation by himself, party A
[club] pay 20000 to party B [player] once. If Party B [player] is a foreign player,
Party A [club] shall give due consideration based on the above said arrangement
(in case the Party B [player] has higher requirements, supplementary agreement
shall otherwise specify expressly and specify the expense responsibility with Party
A’s [club] consent)”.
5.
Clause 11.4 of the contract A stipulates that in case of termination of the contract
upon expiration, both parties shall sign a new contract if both parties agree to
extend the contract.
6.
On an unknown date, the parties signed another contract (hereinafter: contract B)
containing all clauses of Contract A, including the same validity and remuneration
(cf. points I. 2. and 3.), but modifying clause 11.4, which reads as follows: “After
season 2013 end, if Party A [club] want to extend the contract one more year with
Party B [player], the contract will be extended automatically until the end of the
season 2014, if Party A [club] do not want to extend the contract after season 2013,
the contract will be finished.”
7.
On 23 December 2013, the player received from the club a document entitled
“Agreement on the Termination of the Employment contract” (hereinafter:
termination proposal).
Player A, Country B / Club C, Country D / Club E, Country B
Page 2 of 15
8.
On 28 December 2013, the player addressed a letter to the club stating that he
does not agree to terminate the contract and that he would not sign the
termination proposal. In said letter, the player pointed out that he wants to fulfil
his contract until 10 November 2014 and asked the club the date on which he was
required to resume training in Country D.
9.
On 3 January 2014, the player sent an email to the club reiterating his request to
the club to confirm the date on which he was required to go back to Country D to
restart the training.
10.
By email dated 3 January 2014, the club answered the player’s request stating that:
“In accordance with the relevant rules and the articles 11 about the termination of
the contract in the Football Association of Country D League F Football Club
Employment Contract for Players signed between Player A and the club, if Player A
ability can not be accepted by the club in season 2013, the Club can cancel the
contract with Player A at the end of the season 2013, and do not need to make any
compensation. The Club now has the new coach staff, and Player A can not be
accepted by the new coach staff. The club already send the termination of the
Employment Contract letter to Player A’s Agent in Country D …”.
11.
By letter dated 6 January 2014, the player replied to the club pointing out that the
club terminated the contract without just cause and that he had not agreed with
the termination proposal.
12.
On 13 January 2014, the player signed an employment contract with Club E, valid
as from 13 January 2014 until 7 May 2014, including a total salary of 63,013.70.
13.
On 19 May 2014, the player signed another employment contract with the Club of
Country B, Club E, valid as from 1 June 2014 until 31 May 2015, including an annual
salary of 180,000.
14.
On 22 August 2014, the player lodged a claim with FIFA against the club for breach
of contract without just cause and requested payment of the following monies:
- USD 20,000 corresponding to the salary of November 2013;
- USD 32,723 corresponding to accommodation costs incurred for the period
between August 2013 and August 2014;
- USD 184,866 as compensation for breach of contract.
In addition, the player requested interest of 5% p.a. as from the respective due
dates and that a sporting sanction be imposed on the club.
15.
In his arguments, the player stated that the salary of November 2013 remained
outstanding.
16.
Moreover, the player held that the club failed to comply with contract A and did
not reimburse the accommodation costs incurred when renting accommodation
Player A, Country B / Club C, Country D / Club E, Country B
Page 3 of 15
between August 2013 and August 2014. The player stated he needed to pay the
total amount of 200,000, allegedly corresponding to USD 32,723, in advance.
17.
In this context, the player argued that the club sent him contract A while he was
still in Country B and that contract B was only signed after his arrival in Country D.
According to the player, the club told him that contract B would be identical with
contract A. Therefore, the player signed contract B as well.
18.
According to the player, in November 2013, and with the permission of the club,
the player left Country D to spend his holidays in Country B, where he received the
termination proposal of the club.
19.
The player argued that that the club terminated the contract without just cause on
3 January 2014 even though he notified the club that he wished to remain under
contract and that he would not agree to mutually terminate the contractual
relationship.
20.
Furthermore, the player held that the reasoning of the termination of the club, i.e.
the player’s performance, is not a valid reason for a termination.
21.
In this context, the player pointed out that the club did rely on a unilateral
termination clause inserted without the player’s knowledge, i.e. clause 11.4 of
contract B, and that such conduct should not be recognised.
22.
In addition, the player stated having complied with the contract and fulfilled all of
his contractual obligations.
23.
In light of the above, the player concluded that he is entitled to receive
compensation corresponding to the residual value of the contract as follows:
USD 120,000 corresponding to the salaries of January to June 2014;
+ USD 50,000 corresponding to the payment due at the “second-half of season 2014”;
+ USD 100,000 corresponding to the salaries of July to November 2014;
- USD 38,061 corresponding to mitigation of the new contract dated 13 January 2014;
- USD 47,073 corresponding to mitigation of the new contract dated 19 May 2014;
= USD 184,866
24.
In its answer to the claim, the club requested that the claim of the player be
rejected since it is “untrue and unsubstantiated”.
25.
In its arguments, the club held that the parties agreed upon the “initial draft of
the contract” by fax and that the official contract would be signed upon the
player’s arrival in Country D.
Player A, Country B / Club C, Country D / Club E, Country B
Page 4 of 15
26.
Subsequently, the club held that the player signed contract B after his arrival in
Country D, including clause 11.4 and that due to this clause the contract expired at
the end of the season 2013, namely on 3 November 2013, since the club did not
want to extend it.
27.
Furthermore, the club argued that the player signed contract B on every page and
that he knew about the clause in question.
28.
By means of a subsequent submission, the club lodged a counterclaim against the
player and requested to be awarded the following monies from the player:
- USD 40,000 corresponding to overpaid salaries;
- USD 44,000 corresponding to “overspent commission” of the agent;
- USD 650,000 corresponding to compensation for breach of contract.
In addition, the club requested an “economic compensation to the club and
according sanctions”.
29.
In its arguments, the club held that the player breached the employment contract
by entering into an employment relationship “with a Club of Country B” in
January 2014.
30.
The club stressed that the player failed to return to the club in December 2013 and
that a termination proposal, which was never signed, was sent to him. In this
context, the club argued that the employment contract remained valid.
31.
According to the club, it paid the player a total amount of USD 160,000, even
though the player’s entitlement for August until November 2013 was only USD
120,000. In support of this argument, the club submitted a club internal document
entitled “Payment record Player A”, which lists the following payments:
- USD 100,000 as prepaid salary on 27 July 2013;
- USD 20,000 for “month 8”;
- USD 20,000 for “month 9”;
- USD 20,000 for “month 10”.
32.
Furthermore, the club alleged that the player “faked” the contract submitted with
his claim and argued that the club’s corporate seal was different from the real one
and that the club’s representative’s signature does not appear on every page, but
only on the last one. In addition, the club submitted the allegedly correct
employment contract.
33.
Moreover, the club stated that the alleged termination of the contract via email
did not have “legal effect” since the email-address was “neither the club’s official
email nor was authorized by the club”.
Player A, Country B / Club C, Country D / Club E, Country B
Page 5 of 15
34.
The club further argued having paid USD 60,000 as commission to an agent and
deemed it appropriate to reclaim USD 44,000 from the player since he terminated
the contract prematurely.
35.
In addition, the club held that it needed to recruit a new foreign striker, which
reportedly cost the club a total amount of USD 320,000.
36.
Finally, the club claimed compensation for breach of contract in the amount of
USD 650,000, i.e. USD 320,000 corresponding to the costs of the new striker and
USD 330,000 corresponding to the residual value of the contract.
37.
In his reply to the counterclaim, the player held that the club’s counterclaim, which
amends the club’s arguments presented in reply to his claim, cannot be taken into
account since the investigation phase was already closed.
38.
Furthermore, the player reiterated his position and requested to reject the
counterclaim.
39.
In his arguments, the player denied having “faked” a contract and he pointed out
that the club in its reply to the claim admitted having sent a contract to Country B
before the player arrived in Country D.
40.
The Club of Country B, Club E, endorsed in its position the player’s arguments and
pointed out that the counterclaim of the club was only lodged after the closure of
the investigation phase and shall be considered inadmissible.
41.
Furthermore, Club E held that the Club of Country D unilaterally terminated the
contract with the player with its correspondence on 3 January 2014. The Club of
Country B refers to a TMS extract generated during the ITC process in January
2014, which shows that the player was “out of contract”. Club E concludes, that
these facts proof that there was no inducement for breach of contract.
42.
Moreover, the Club of Country B points out that the ITC was delivered on 29
January 2014, without objection of the Club of Country D.
43.
In addition, the Club of Country B highlights that it obtained its licence to
participate in the League of Country B, League G only in May 2015 and that “as
part of the licence, Club E was granted the right to use the Club E brand, colours
and trade marks owned by the Football Federation of Country B”.
44.
Furthermore, Club E held that prior to May 2015, “an entity known as Club E
Football Operations XXX (Old Club) participated in the League G competition as
Club E”.
Player A, Country B / Club C, Country D / Club E, Country B
Page 6 of 15
45.
In view of the above, Club E argued that if the Dispute Resolution Chamber would
decide that the player breached his contract, the “new club” in the sense of the
FIFA Regulations would be Club E Football Operations XXX.
II.
Cons iderations of the Dis pute Res olution Cham ber
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
22 August 2014. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter:
Procedural Rules) are 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
Players (edition 2016) 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 of Country B, a Club of Country D and a
Club of Country B.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2016), and considering that the present claim was lodged on 22 August
2014, the 2014 edition of said regulations (hereinafter: 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.
In this respect, the DRC recalled that, on unknown date, the parties signed contract
A, valid as from 1 July 2013 until 10 November 2014 “unless earlier terminated
pursuance to this contract, or to end of 2014 season”.
Player A, Country B / Club C, Country D / Club E, Country B
Page 7 of 15
6.
Furthermore, the Chamber acknowledged that, on an unknown date, the parties
entered into contract B with the same duration as contract A. According to
contract B, the Claimant/Counter-Respondent I was entitled to receive a monthly
salary of USD 20,000 between August and November 2013 as well as between
January 2014 and November 2014. Furthermore, the parties agreed upon a single
payment of USD 50,000 “when begins the second-half of season 2014”.
7.
In continuation, the members of the Chamber noted that the Claimant/CounterRespondent I, on the one hand, lodged a claim against the Respondent/CounterClaimant maintaining that the Respondent/Counter-Claimant had terminated the
employment contract without just cause on 3 January 2014, since the player’s
performance is not a valid reason to terminate the employment contract. In this
respect, the Claimant/Counter-Respondent I submits that a total amount of USD
50,723, corresponding to the salary of November 2013 and accommodation costs
between August 2013 and August 2014, remained outstanding at the time of the
termination of the contract. Consequently, the Claimant/Counter-Respondent I asks
to be awarded his outstanding dues as well as payment of compensation for
breach of the employment contract.
8.
The Chamber further noted that the Respondent/Counter-Claimant, for its part,
rejected the player’s claim and argued that according to clause 11.4 of contract B
the contractual relationship ended due to natural expiration at the end of the
2013 season, i.e. on 3 November 2013.
9.
Moreover, the DRC took note that the Respondent/Counter-Claimant, at a later
stage, with a separate submission, lodged a counterclaim against the
Claimant/Counter-Respondent I and the Counter-Respondent II, arguing that the
player had breached the employment contract by signing a contract with the
Counter-Respondent II. In this regard, the Respondent/Counter-Claimant held that
the initial employment contract remained valid since the termination proposal was
never signed. Consequently, the Respondent/Counter-Claimant requested to be
awarded with compensation for breach of the employment contract as well as with
“overpaid” salaries and a commission for an agent.
10.
Subsequently, the DRC observed that said counterclaim was rejected by the
Claimant/Counter-Respondent I, who upheld his claim against the
Respondent/Counter-Claimant.
11.
Furthermore, the members of the Chamber took note of the position of the
Counter-Respondent II, endorsing the player’s arguments and rejecting the
counterclaim of the Respondent/Counter-Claimant.
12.
On account of the above, the members of the Chamber highlighted that the
underlying issue in this dispute, considering the diverging position of the parties,
was to determine as to whether the applicable contract had been terminated by
Player A, Country B / Club C, Country D / Club E, Country B
Page 8 of 15
one of the parties, and, in the affirmative, as to whether such termination was
with or without just cause. The Chamber also underlined that, subsequently, if it
was found that the contract was terminated without just cause, it would be
necessary to determine the consequences for the party responsible for the early
termination of the contractual relation.
13.
Subsequently, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the documentation
on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with
which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof.
14.
In this respect and due to the fact that two different versions of contracts were
submitted by the parties, the DRC analysed first which contract should serve as
basis of the present claim.
15.
In this regard, the members of the Chamber took note of the Claimant/CounterRespondent I’s argumentation that the Respondent/Counter-Claimant modified the
previously signed contract A, inserted clause 11.4 and told him upon arrival in
Country D that the contract B would only be a copy of contract A.
16.
Furthermore, the DRC observed that the Respondent/Counter-Claimant held that
the player duly signed contract B upon arrival in Country D after the parties agreed
upon an “initial draft of the contract” by fax.
17.
On account of the above and due to the lack of evidence provided, the
argumentation of the Claimant/Counter-Respondent I must be rejected. In
conclusion and given that contract B was undisputedly concluded at a later stage
than contract A, it can be established that contract B supersedes contract A and
that therefore it is the contract binding the parties.
18. Having concluded the above, the Chamber went on to analyse the content of the
applicable contract, especially clause 11.4 of the contract B, which reads as follows:
“After season 2013 end, if Party A [club] want to extend the contract one more
year with Party B [player], the contract will be extended automatically until the
end of the season 2014, if Party A [club] do not want to extend the contract after
season 2013, the contract will be finished.”
19. The Chamber was of the unanimous opinion that any potential validity or
invalidity of clause 11.4 of contract B as well as the calculation of any potential
compensation would have to be assessed taking into consideration the
Regulations, general principles of law as well as the Chamber’s well-established
jurisprudence.
Player A, Country B / Club C, Country D / Club E, Country B
Page 9 of 15
20. Bearing in mind the above, the Chamber focused its attention on clause 11.4 of
contract B and deemed that, in view of the parties’ stance, the first question that it
needed to address was the nature of clause 11.4 of contract B. In this respect,
contrary to the position of the Respondent, the members of the DRC were of the
unanimous opinion that said clause is evidently a clause granting the Respondent
the right to unilaterally terminate the contract by the end of the season 2013.
Indeed, it is clearly established in the contract that its period of validity would run
until 10 November 2014.
21. Consequently, the Chamber’s conclusion in this disputed point was that, by means
of its email of 3 January 2015, the Respondent did not refuse to extend the
contract concluded between the parties but rather unilaterally terminated it.
22. In continuation, the Chamber went to analyse the validity of the aforementioned
clause 11.4 of contract and, in this respect, unanimously decided that said clause is
to be considered invalid in view of its potestative nature. In this context, the
members of the Chamber wished to highlight that, in general, potestative clauses,
i.e. clauses that contain obligations which fulfilment are conditional upon an event
that one party entirely controls, cannot be considered since they limit the rights of
the other contractual party in an excessive manner and lead to an unjustified
disadvantage of the latter towards the other. In casu, the Respondent was the only
party which could decide to terminate the contract depending on its wish to either
continue until 10 November 2014 or terminate the contract after the season 2013.
23. What is more, the DRC considered that said clause is in direct opposition with the
general legal principle of balance of rights of the parties since it provides benefits
towards the Respondent/Counter-Claimant with no equivalent right in favour of
the Claimant/Counter-Respondent I. In this respect, taking into account the
duration of the contract as of 1 July 2013 until 10 November 2014, the Chamber
underlined that it could not recognise said clause as it provides for a unilateral
termination right to the club only. Therefore, the Chamber decided that the
Respondent/Counter-Claimant could not legitimately terminate the contract with
the Claimant/Counter-Respondent I making use of clause 11.4 of the contract.
24. On account of the above, the members of the Chamber concluded that clause 11.4
of contract B is to be deemed invalid and therefore, inapplicable. In this regard,
the DRC rejected the Respondent/Counter-Claimant’s argument that the contract
expired on 3 November 2013.
25. Subsequently, the DRC analysed the Respondent/Counter-Claimant’s counterclaim,
where, in contradiction to its previous submission, alleged that the contract
remained valid after 3 November 2013, that the alleged termination via email had
“no legal effect” and that the player breached the contract by signing a new
contract in Country B on 13 January 2014.
Player A, Country B / Club C, Country D / Club E, Country B
Page 10 of 15
26. In this regard, the members of the Chamber deemed that the club’s behaviour was
completely contradictory since it submitted two different positions on the same
matter stating the diametrically opposite arguments. In this respect, the members
of the Chamber decided to reject the Respondent/Counter-Claimant’s arguments
raised in its counterclaim.
27. Having taken into account the previous considerations, the Chamber recalled that
clause 11.4 of the contract does not constitute a reason that can be validly invoked
to unilaterally terminate the contract. As a result of the foregoing, the members of
the Chamber came to the conclusion that, by means of its email dated 3 January
2014, the club terminated the contract with the player without just cause.
28. Subsequently, prior to establishing the consequences of the termination of the
employment contract without just cause by the Respondent/Counter-Claimant in
accordance with art. 17 par. 1 of the Regulations, the Chamber held that it, in
general, had to address the issue of unpaid remuneration at the moment when the
contract was terminated by the Respondent/Counter-Claimant.
29. In this regard, the DRC noted that the Claimant/Counter-Respondent I alleged that
the Respondent/Counter-Claimant had failed to pay the outstanding amount of USD
20,000, corresponding to the salary of November 2013 as well as USD 32,723,
corresponding to accommodation costs.
30. In this context, the Chamber acknowledged that the contract foresees a payment
of the Respondent/Counter-Claimant in the amount of 20,000 once, in case the
Claimant/Counter-Respondent I decides to rent accommodation on his own.
31. In view of the above, recalling the basic principle of burden of proof, the DRC
concluded that the Respondent has not provided corroborating evidence of
payments corresponding to the salary of November 2013 or any accommodation
costs. Therefore, it could be established that the Respondent/Counter-Claimant had
failed to pay to the Claimant/Counter-Respondent I the salary of November 2013 as
well as the payment of 20,000 as accommodation costs.
32. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent/Counter-Claimant must fulfil its obligations as per
contract concluded with the Claimant/Counter-Respondent I and, consequently, is
to be held liable to pay the outstanding amount of USD 20,000 and 20,000 to the
Claimant/Counter-Respondent I.
33. In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent/Counter-Claimant must pay to the Claimant/Counter-Respondent I
Player A, Country B / Club C, Country D / Club E, Country B
Page 11 of 15
interest of 5% p.a. on the amount of compensation as of the date on which the
contract was terminated, i.e. 3 January 2014, until the date of effective payment.
34. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant/Counter-Respondent I is entitled to receive compensation for
breach of contract from the Respondent.
35. In continuation, 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 recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant/Counter-Respondent I 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.
36. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. 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.
37. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of
compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body. In this regard, the Dispute
Resolution Chamber emphasised beforehand that each request for compensation
for contractual breach has to be assessed by the Chamber on a case-by-case basis
taking into account all specific circumstances of the respective matter.
38. The members of the Chamber then turned their attention to the remuneration and
other benefits due to the Claimant/Counter-Respondent I under the existing
contract and/or the new contract, which criterion was considered by the Chamber
to be essential. The members of the Chamber deemed it important to emphasise
that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
Player A, Country B / Club C, Country D / Club E, Country B
Page 12 of 15
39. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from
the date of termination without just cause by the Respondent/Counter-Claimant
until its natural expiry, i.e. 10 November 2014. In this regard, the DRC determined
that he would have received in total USD 250,000 as remuneration for the period
as from 2 January 2014 until 10 November 2014. Consequently, the Chamber
concluded that the amount of USD 250,000 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at
hand.
40. In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount
of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
41. In this respect, the Chamber recalled that the Claimant/Counter-Respondent I had
found new employment with the Club of Country B, Club E, as from 13 January
until 7 May 2014. In accordance with the employment contract signed between the
player and Club E, the Claimant/Counter-Respondent I was entitled to a total salary
of 63,013.70.
42. Furthermore, the DRC acknowledged that the Claimant/Counter-Respondent I
signed a second contract with the Club of Country B, Club E, valid as from 1 June
2014 until 31 May 2015. In accordance with said employment contract, the
Claimant/Counter-Respondent I was entitled to a total salary of 180,000.
43. Consequently, on account of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant/Counter-Respondent I’s
general obligation to mitigate his damage, the Chamber decided to partially
accept
the
Claimant/Counter-Respondent
I’s
claim
and
that
the
Respondent/Counter-Claimant must pay the amount of USD 121,000 as
compensation for breach of contract to the player, which is considered by the
Chamber to be a fair and reasonable amount.
44. In addition, taking into account the Claimant/Counter-Respondent I’s request, the
Chamber decided that the Respondent/Counter-Claimant must pay to the
Claimant/Counter-Respondent I interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 22 August 2014,
until the date of effective payment.
Player A, Country B / Club C, Country D / Club E, Country B
Page 13 of 15
45. The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant/Counter-Respondent I.
46. The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that the claim lodged by the Respondent/Counter-Claimant is
rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent I, Player A, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant is ordered to pay to the Claimant / CounterRespondent I, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amounts of USD 20,000 and 20,000 plus 5%
interest p.a. as from 3 January 2014 until the date of effective payment.
4.
The Respondent / Counter-Claimant is ordered to pay to the Claimant / CounterRespondent I, w ithin 30 day s as from the date of notification of this decision,
compensation for breach of contract in the amount of USD 121,000 plus 5% interest
p.a. as from 22 August 2014 until the date of effective payment.
5.
In the event that the aforementioned sums are not paid by the Respondent /
Counter-Claimant within the stated time limits, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
6.
Any further claim lodged by the Claimant / Counter-Respondent I is rejected.
7. The Claimant / Counter-Respondent I is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittance is
to be made and to notify the Dispute Resolution Chamber of every payment
received.
Player A, Country B / Club C, Country D / Club E, Country B
Page 14 of 15
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS, 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
Deputy Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D / Club E, Country B
Page 15 of 15