Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2014,
in the following composition:
Geoff Thompson (England), Chairman
Todd Durbin (USA), member
Mohamed Al Saikhan (Saudi Arabia), member
Joaquim Evangelista (Portugal), member
Leonardo Grosso (Italy), member
on the claim presented by the player,
Player N, from country B
as Claimant / Counter-Respondent
against the club,
Club H, from country I
as Respondent / Counter-Claimant
with the club,
Club A, from country B
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 17 July 2007, Player N, from country B (hereinafter: player or Claimant/CounterRespondent), and Club H, from country I (hereinafter: club or Respondent/CounterClaimant), concluded an employment contract (hereinafter: contract) valid as from
the date of signature until 30 June 2011, i.e. for the four seasons 2007/08 until
2010/2011.
2.
The contract established the following remuneration payable by the club to the
player:
Currency of country I 172,450 as signing-on fee, due each season, payable until
15th day of August;
Currency of country I 117,110 as monthly salary (12 x per season).
3.
Furthermore, the contract determined that the player was entitled to a return flight
ticket for himself and his family to country B twice per season. In addition, the player
was entitled to a residential apartment and a car.
4.
Additionally, art. 17 par. 5 of the contract stipulates that “in the event of the Club
being relegated during the period of this contract, from the premier league to the
national league and in the event of the club having foreign players in excess of
amount permitted in the national league as shall be stipulated, the Club shall loan a
foreign player in accordance with the regulations to another club in the premier
league or the national league and/or shall release him. For the avoidance of doubt it
is hereby clarified that the club may, at its sole discretion, decide that the player
should be loaned or released as specified above.”
5.
As from January 2008 until December 2008, the player was loaned from the club to
Club R, from country B (hereinafter: Club R).
6.
On 27 November 2008, through a fax addressed to Club R, the club acknowledged
that the player suffered an injury in country B and agreed that the player would
undergo a surgery.
7.
On 20 March 2009, Club R requested an extension of the loan of the player until 30
June 2009, since the player was in recovery. Club R also requested that, assuming
Club R’s interest to continue making use of the player’s services, the loan be renewed
until 31 December 2009 without costs.
Player N, from country B / Club H, from country I / Club A, from country B
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8.
On 29 October 2009, the player lodged a claim before FIFA requesting that the club
be ordered to comply with its contractual obligations emphasising that he wished to
continue the employment relation with the club and that the club be asked to
declare whether it intends to comply with the contract.
9.
In this connection, the player claimed the following outstanding remuneration:
Currency of country I 813,340 as outstanding salaries (signing-on fees for the
seasons 2007/08 and 2008/09 in the amount of currency of country I 172,450 each
as well as four monthly salaries for July, August, September and October 2009, in
the amount of currency of country I 117,110 each);
Reimbursement of an air ticket country B – country I – country B: Currency of
country B 2,474;
Apartment and a car.
10.
Alternatively and the default not being remedied by the club, the player asked that
the club be held liable for breach of the contract without just cause. In this regard,
the player requested the payment of the following additional amounts:
Currency of country B 3,155,540 as compensation for breach of contract,
corresponding to the remaining value of the contract (signing-on fees and
salaries for the seasons 2009/10 and 2010/11);
USD 100,000 “to indemnify the financial and moral damages”;
USD 20,000 for legal expenses.
On 11 November 2013, after the closure of the investigation-phase of the
matter, the player added a claim for 5% interest as of the day on which all
amounts fell due.
11.
According to the player, during his loan at Club R in 2008 he suffered an injury. As a
consequence, the loan was renewed and he remained at Club R until his full
recovery. In this regard, the player affirmed that Club R requested the renewal of the
loan until 30 June 2009 and that the club authorized the surgery and the renewal of
the loan.
12.
The player affirmed that in accordance with a letter sent by Club R to the club, the
player’s treatment was successful and he was considered fully fit to return to the
club. After the end of the aforementioned renewed loan period, he requested the
club to send the air ticket for him to fly back to country I, upon which the club
informed him that he no longer had a position in the team and should look for a
team in country B. Additionally, the player held that he could not find a club in
country B, in particular considering the amounts allegedly requested by the club for
his loan and the fact that he had a valid employment contract with the club until
2011.
13.
Furthermore, according to the player, he insisted on his request for the flight tickets
to go back to country I in order to render his services to the club. Also, in order to
Player N, from country B / Club H, from country I / Club A, from country B
Page 3 of 19
show that he wanted to fulfil the agreement, he stated having paid for the tickets to
return to country I. Once in country I, the club allegedly failed to provide him with
accommodation and a vehicle, prevented him from taking part in the training
sessions and told him that he was no longer part of the team. Also, the club did not
pay the amounts outstanding until that time, in spite of his default notice dated 13
August 2009.
14.
Moreover, the player stated that, although he insisted on the continuation of the
contract and attempts to reach an amicable solution were made, the club did not
fulfil its contractual obligations and, as a consequence, he had to return to country B.
In this respect, the player presented a copy of his correspondence dated 2 September
2009, in which he informed the club of his forced return to country B and claimed
that the club had breached the employment contract.
15.
On 8 August 2011, the club lodged a claim against the player for breach of contract
without just cause and compensation emphasising that its claim was lodged within
the relevant time limit, in the light of the fact that the player had suddenly left the
club between 10 August 2009 and 2 September 2009 without notification, thus
disrespecting his contractual obligations.
16.
In its claim, apart from its request that sporting sanctions be imposed on the player,
the club asked to be awarded compensation for breach of contract by the player in
the amount of currency of country I 11,095,344 “or the highest amount that should
be considered as more fair and due by the DRC at 5% interest per annum from 2
September 2009”, which was detailed as follows.
17.
First, the club refers to the so-called “positive interest” and the fact that the
employment contract was to run for two more seasons.
18.
The club included the non-amortised amount of fees and expenses incurred for the
acquisition of the player’s services of currency of country I 891,331.50 (USD 235,000,
which is half of the total of USD 470,000). In this respect, the club presented a copy
of an agreement signed in July 2007 by and between Club R, the club and the player
involving a fee of USD 175,000 regarding the early termination of the player’s
contract with Club R, as well as copy of the relevant bank transfer order.
Furthermore, the club presented a copy of the letter of the player’s club of origin,
Club B, addressed to the club, in which Club B confirms the definitive transfer of the
player to the club for the amount of USD 250,000 as well as a copy of the relevant
bank transfer order. In addition, the club presented a non-signed “Commission
agreement” dated 23 July 2007 involving the club and an agent as well as a fee of
USD 45,000 for the transfer of three players including the Claimant/CounterRespondent.
Player N, from country B / Club H, from country I / Club A, from country B
Page 4 of 19
19.
Furthermore, the club included the amount of currency of country I 8,683,136
relating to “lost profit”. In this respect, the club pointed out that it would have sold
another defender if it had known in advance that the Claimant/Counter-Respondent
was going to return to the club. It alleges that it stopped negotiations with a country
G club which offered EUR 1,600,000 for one of its defender players. In this regard,
the club refers to the decision issued by the Court of Arbitration for Sport in the case
“XY”.
20.
Moreover, should the DRC decide not to take this element into consideration, the
club alleged that the player’s market value can be established on the basis of other
objective criteria. The club had received an offer from another club to acquire the
services of the Claimant/Counter-Respondent, which proves that the club suffered
damages by not having been able to sell the player’s services due to his unilateral
breach of contract. In order to estimate the damages, the club refers to a loan fee of
USD 50,000 for the 2008-09 and 2009-10 seasons each. Therefore, it alleged having
been deprived of the possibility to transfer the player on a loan basis for the
remaining two seasons for the total amount of currency of country I 379,290.
21.
Also, the club refers to a remaining remuneration under the existing contract of
currency of country I 1,577,770.
22.
In response to the player’s claim, the club asked that the player’s claim be rejected
and that its claim of 8 August 2011 be accepted.
23.
The club confirmed the loan of the player to Club R until 31 December 2008 as well
as the extension of the loan until 30 June 2009, due to the injury suffered by the
player while playing in country B, so the player could have medical treatment. The
club further alleged that the club and Club R agreed to extend the loan once more
until 31 May 2010.
24.
In this regard, the club held that from the player’s agent’s letters of 25 March 2009
and 12 May 2009, it was clear that the player and Club R wanted to extend the loan
until 31 December 2009. Considering that the player wanted to stay in country R, the
club stated that it informed the player’s agent that it would agree with another loan
extension for the entire 2009/10 season though, since December 2009 would fall in
the middle of the country I season, and for the amount of USD 70,000. In this
context, according to the club, Club R finally offered USD 50,000 for a loan until 31
May 2010, which was instantly accepted by the club and the player’s agent promised
to revert to the club with the relevant draft of a new loan agreement.
25.
Given those circumstances, the club alleges that it was “under the assumption that
[the player] would indeed stay in country B for the 2009/2010 season” and that,
therefore, since the club was forming the team for the qualifying rounds of the
Europa League, it hired another country B defender. In this context, the club alleged
Player N, from country B / Club H, from country I / Club A, from country B
Page 5 of 19
that it was astonished when it received an e-mail from the player’s agent on 10 July
2009 informing that Club R was no longer interested in extending the loan and that
the player could not find any other club in country B.
26.
The club affirmed that the loan agreement having expired on 30 June 2009 and the
player having contacted the club on 10 July 2009 only, the club no longer expected
that the player would return to country I and that in fact the alleged new loan
agreement had been accepted.
27.
Furthermore, the club denied the facts described by the player in the letters he sent
to the club (relating to points I./12. and I./13. above), by means of which, according
to the club, the player initiated “the well-known practise of producing a letter that
intents to establish (false) “grounds” for the submission of a (false) demand for
FIFA.”
28.
According to the club, the player remained in country B until 10 August 2009, when
he suddenly showed up in country I, at a time when the club was already
participating in the Europa League and had already “completed the quota of foreign
players as stipulated by the country I Football Association”.
29.
The club made reference to article 17 par. 5 of the employment contract, while
emphasising that a limitation of the number of foreign players is common practise in
the world of football and that the player was aware of this when he signed the
employment contract, affirming that this situation occurred due to the conduct of
the player. In this context, the club alleged that it offered the player two options to
avoid releasing him:
be loaned as stipulated in the employment contract; or
stay with the club and accept a decrease in his salary in order for the club to
maintain the approved budget.
30.
The club alleged that, after such offer, while it was awaiting the player’s response,
the player disappeared without giving notice, and, later, it discovered that he was in
country B. The club argued that the player breached the contract without just cause
by leaving the country without any notification. Furthermore, the club considered
the player’s return to the club in August 2009 to be an attempt to falsely establish a
situation in which the player could accuse the club from not wanting to comply with
the terms of the employment contract.
31.
Regarding the request of the player for the club to fulfil the contract, the club
affirmed that it did not have a chance to do so or respond to it, since it only received
the claim in August 2011. Also, the club stated that the player signed an employment
contract with Club A (hereinafter: Club A or Intervening Party), so it could neither
consider nor comply with such proposal.
Player N, from country B / Club H, from country I / Club A, from country B
Page 6 of 19
32.
Regarding the player’s request for flight tickets to country I at the beginning of the
2009/2010 season, the club explained that it had no financial obligations towards the
player until January 2009 in accordance with the document signed by the player on
28 February 2008, before the player was transferred on loan to Club R. Also,
considering that the loan was extended until July 2009, the club alleged that it had
no contractual obligations towards the player until that time. In addition, it affirmed
that it is “common practice in the world of football” that the club that receives a
player on loan from another club is the one responsible for the player’s travel
expenses. Should it be considered that the club had the obligation to provide the
player with flight tickets to return at the end of the loan, the club held that not
providing this ticket does not constitute a ground to determine that the club acted in
breach of contract without just cause.
33.
In addition, the club held that since the player suddenly appeared at the club, it
could not be expected that the club immediately provides him with an apartment
and a vehicle and it alleges that it temporarily booked the player a hotel room
instead. The player left soon after his arrival in country I and because of this short
period of time the violation did not “reach such a level that the party suffering the
breach is entitled to terminate the contract unilaterally”.
34.
Moreover, the club denied having prevented the player from taking part in the
training sessions, while emphasising once more that the club no longer relied on the
player’s services for the above-mentioned reasons and pointed out that the player
did not submit any evidence in this regard.
35.
Furthermore, regarding the player’s claim relating to the signing-on fee for the
2007/08 season that fell due on 15 August 2008, the club held that such claim should
be rejected on the basis of the document that he signed on 28 February 2008 (cf.
point I./33. above).
36.
Regarding the salary for July 2009, the club pointed out that the player only arrived
in country I on 10 August 2009 and was, thus, not even present at the club in July
2009.
37.
The club held that the player had no just cause to terminate the employment
contract. Even if it is considered that the club did not comply with one or more minor
obligations, these breaches could not lead to the conclusion that the club unilaterally
breached the contract without just cause. In addition, the club points out that even if
it is considered that it terminated the employment contract, it was entitled to do so
under art. 17 par.5 of the employment contract.
38.
In case the Dispute Resolution Chamber considers that the club must pay
compensation, the club held that overdue payments should be limited to the salaries
Player N, from country B / Club H, from country I / Club A, from country B
Page 7 of 19
and signing-on fees outstanding until the moment of the alleged breach, i.e. midAugust 2009, and thus shall exclude September and October 2009.
39.
In addition, according to the club, the amount of compensation must be reduced by
the amounts received under the player’s contract with Club A.
40.
The club held that the player’s request for USD 100,000 for moral damages shall be
rejected as it does not constitute an objective criterion according to art. 17 par. 1 of
the FIFA regulations.
41.
The club further requested that the player bears the legal expenses of the club in the
amount of currency of country H 25,000.
42.
In reply to the club’s claim, the player pointed out that such claim is inadmissible, as
it is time-barred given that the event giving rise to the dispute arose on 14 July 2009
and the club’s claim was lodged on 8 August 2011. The player deemed that the club’s
reply of 14 July 2009 to his e-mail clearly indicated that the club no longer wanted to
make use of his services and refused to provide him with the relevant air ticket in
accordance with the terms of the employment contract in order for him to return to
the club after the expiry of the loan.
43.
Should the club’s claim be considered admissible, the player asked that it be rejected
and his claim be accepted.
44.
The player pointed out that the club was well aware of the fact that the loan
agreement with Club R would end by the end of June 2009 and that his contract with
the club was still in force, as a result of which he needed to return to the club at the
end of the loan period.
45.
According to the player, when he returned to the club, the club tried to discharge
themselves of their obligations towards him invoking art. 17 par.5 of the
employment contract. In this respect, the player emphasised that the two
simultaneous conditions contained in this article were not fulfilled, i.e. the club did
not get relegated and the limit of foreign players in the national league is, thus,
irrelevant. In addition, the player considered this article to be abusive.
46.
Furthermore, the player held that the club failed to prove that it was Club R’s
obligation to provide him with an air ticket in order to return to the club.
47.
In addition, when the player returned to the club at his own expense, the club failed
to fulfil its contractual obligations; that is, it did not pay his salary for July and
August 2009 nor the signing-on fee that fell due on 15 August 2009, nor did it
provide him with a house or allow him to train.
Player N, from country B / Club H, from country I / Club A, from country B
Page 8 of 19
48.
The player further deemed that the club had had sufficient time to remedy the
breach between his arrival on 10 August 2009 and his departure in September 2009.
49.
In addition, the player pointed out that during the period of time between his
departure in September 2009 and the club’s claim of 8 August 2011, which it lodged
after it had taken note that the player had lodged a claim against it, the club had
not undertaken any action in order to enforce the terms of the contract, which,
according to the player, indicates that the club was not interested in his services any
longer. According to the player, another indication in this respect is that the club
never replied/objected to the request for the international transfer certificate made
by the association of his new club in February 2010.
50.
Should his claim be rejected and the DRC hold him liable for breach of contract, he
rejects the amount of compensation claimed by the club.
51.
The player informed FIFA that between September 2009 and January 2010 he
remained unemployed and that as from 6 January 2010 until 30 November 2010 he
was contractually bound to Club A earning a monthly salary of currency of country B
10,000. He signed a second employment contract with Club A valid as from 1 January
2011 until 10 December 2012, in accordance with which he received a monthly salary
of currency of country B 17,500.
52.
Club A, for its part, maintains that it has always acted bona fide when it hired the
player and that it cannot be held liable for inducement to breach of contract. Club A
adds that Club A obviously was no longer interested in maintaining the player’s
services and that the rules relating to the registration of the player were fully
respected. The player was registered with it provisionally, since the country B
Football Federation never received a reply from the country I Football Association to
its international transfer certificate (ITC) request. Club A deems that Club H
terminated the contract without just cause. However, should the DRC decide that
both Club H and the player are liable for the early termination of the contract, the
joint and several liability to pay compensation (cf. art. 17 par. 2 of the Regulations on
the Status and Transfer of Players) shall be mitigated.
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 29 October
2009. Consequently, the Rules governing the procedures of the Players’ Status
Player N, from country B / Club H, from country I / Club A, from country B
Page 9 of 19
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 in combination with art.
22 lit. b of the Regulations on the Status and Transfer of Players (edition 2012) the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
country B player and an country I club and involving a country B club.
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 2012),
and considering that the present claim was lodged on 29 October 2009, the 2009
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 addition, the Chamber highlighted that the claim of the player Player N against
Club H and the claim of the club, Club H against the player N have been merged into
a single procedure, which is presently in front of this Chamber for its consideration
and decision.
6.
The Chamber, first and foremost, acknowledged that the Claimant/CounterRespondent and the Respondent/Counter-Claimant were contractually bound by an
employment contract, which was signed on 17 July 2007 and valid as from the date
of signature until 30 June 2011, i.e. which was of a four seasons’ duration. It was
further noted that the Claimant/Counter-Respondent was transferred by the
Respondent/Counter-Claimant on a loan basis to the country B club, Club R, for the
period time between January 2008 and December 2008. Moreover, it has remained
uncontested by the parties that the loan of the player to Club R was extended until
30 June 2009.
7.
The Claimant/Counter-Respondent, on the one hand, maintained that the
Respondent/Counter-Claimant is to be held liable for the early termination of the
Player N, from country B / Club H, from country I / Club A, from country B
Page 10 of 19
employment contract without just cause after the expiry of the aforementioned loan
period and shall, thus, be held liable to pay, inter alia, compensation for breach of
contract.
8.
The Chamber noted that the Respondent/Counter-Claimant, on the other hand,
rejected the claim put forward by the Claimant/Counter-Respondent. According to
the Respondent/Counter-Claimant, the Claimant/Counter-Respondent is to be held
liable for breach of contract without just cause arguing inter alia that the player left
country I between 10 August 2009 and 2 September 2009 without any notification
and disrespecting his contractual obligations. The Respondent/Counter-Claimant
claimed that, therefore, the player is to be held liable to pay compensation for
breach of contract.
9.
In continuation, the Chamber took into account that the Claimant/CounterRespondent fully rejected the Respondent/Counter-Claimant’s claim. According to
the Claimant/Counter-Respondent, the Respondent/Counter-Claimant clearly no
longer wanted to make use of his services. Furthermore, the Respondent/CounterClaimant was aware of the fact that the loan agreement with country R would end
by the end of June 2009 and the Respondent/Counter-Claimant failed to fulfil its
contractual obligations as from July 2009.
10.
The members of the Chamber highlighted that the underlying issue in this dispute,
considering the diverging position of the parties, was to determine as to which party
is to be held liable for the early termination of the employment contract signed by
and between the Claimant/Counter-Respondent and the Respondent/CounterClaimant, and as to whether such termination was with or without just cause. The
Chamber also underlined that, subsequently, if it were found that the contract was
terminated without just cause, it would be necessary to determine the consequences
for the party that was responsible for the early termination of the contractual
relation.
11.
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.
12.
In this regard, the members of the Chamber took into consideration that, on 10 July
2009,
the
Claimant/Counter-Respondent
offered
his
services
to
the
Respondent/Counter-Claimant and asked it to issue an air ticket in order for him to
return to the club. In reply, on 14 July 2009, the Respondent/Counter-Claimant
informed the Claimant/Counter-Respondent that it was no longer counting on his
services and that it had hired another player, as the Claimant/Counter-Respondent
allegedly had indicated that he preferred to stay in country B.
Player N, from country B / Club H, from country I / Club A, from country B
Page 11 of 19
13.
The Chamber further duly noted in this context that, according to the
Respondent/Counter-Claimant, the loan of the player to Club R had, once more, been
extended until 31 May 2010 and that therefore, it was under the assumption that the
Claimant/Counter-Respondent would stay in country B. Consequently, the
Respondent/Counter-Claimant hired another player, since at that time it was forming
its team for the qualifying rounds of the Europa League. In this connection, the
Respondent/Counter-Claimant further highlighted that the Claimant/CounterRespondent having contacted the club on 10 July 2009 only, the
Respondent/Counter-Claimant no longer expected that the player would return to it
and deemed that the renewed extension of the player’s loan to Club R until 31 May
2010 had been accepted.
14.
The Claimant/Counter-Respondent, for his part, maintains that his loan to Club R had
been renewed until 30 June 2009 only.
15.
As regards the alleged extension of the loan of the player to Club R until 31 May
2010, bearing in mind the aforementioned art. 12 par. 3 of the Procedural Rules, the
members of the Chamber stressed that there is no convincing documentary evidence
on file demonstrating that, indeed, the Claimant/Counter-Respondent, Club R and
the Respondent/Counter-Claimant had agreed upon the extension of the player’s
loan to Club R for another season until 31 May 2010. For instance, there is no written
agreement signed by the Claimant/Counter-Respondent in this respect.
16.
What is more, the DRC believed that the Respondent/Counter-Claimant itself might
have been uncertain about the alleged agreement on the loan extension until 31
May 2010, in the light of the Respondent/Counter-Claimant’s observation that, since
the player contacted the club on 10 July 2009 only, the Respondent/Counter-Claimant
no longer expected that the player would return and deemed that the renewed
extension of his loan to Club R until 31 May 2010 had been accepted.
17.
On account of the above, in particular, due to the lack of documentary evidence, the
Chamber had to reject the Respondent/Counter-Claimant’s argument that the loan of
the Claimant/Counter-Respondent to Club R, from country B had been extended until
31 May 2010.
18.
In continuation, the DRC recalled that the Claimant/Counter-Respondent first offered
his services to the Respondent/Counter-Claimant on 10 July 2009. It was further
noted that after an exchange of correspondence with the Respondent/CounterClaimant, the Claimant/Counter-Respondent travelled to country I on 9 August 2009
at his own expense. The Respondent/Counter-Claimant confirmed that the player
“showed up” at the club on 10 August 2009, at the time when the foreign player
quota “stipulated by the country I Football Association” allegedly had been
completed already.
Player N, from country B / Club H, from country I / Club A, from country B
Page 12 of 19
19.
The members of the Chamber further took into account that whereas the
Claimant/Counter-Respondent held that in spite of his default notice of 13 August
2009 the Respondent/Counter-Claimant had failed to respect its contractual
obligations towards him, the Respondent/Counter-Claimant argued that it made an
offer to the player in relation with art. 17 par. 5 of the employment contract (cf.
point I./4. above), which article, so the Respondent/Counter-Claimant, was known to
the player when he signed the employment contract and which allegedly finds
application due to the player’s own conduct. According to the Respondent/CounterClaimant, while awaiting the player’s response to its alleged offer, the
Claimant/Counter-Respondent would have left the country without notification and,
thus, acted in breach of contract.
20.
In this regard, the DRC noted from the file that, on 2 September 2009, the
Claimant/Counter-Respondent informed the Respondent/Counter-Claimant in writing
of his return to country B while indicating that the Respondent/Counter-Claimant
had breached the employment contract. In addition, the Chamber observed that the
Claimant/Counter-Respondent left country I on 9 September 2009.
21.
It was further noted that in its correspondence dated 23 September 2009 addressed
to the player, the Respondent/Counter-Claimant informed the Claimant/CounterRespondent that it held the player responsible for breach of contract and payment of
compensation.
22.
The members of the Chamber observed that the Respondent/Counter-Claimant was
of the firm opinion that the Claimant/Counter-Respondent had no just cause to
terminate the employment contract. In addition, the Respondent/Counter-Claimant
maintained that if the club is considered to have terminated the employment
contract, it was entitled to do so in accordance with art. 17 par. 5 of the employment
contract.
23.
The Chamber then turned its attention to art. 17 par. 5 of the employment contract
which stipulates that “in the event of the Club being relegated during the period of
this contract, from the premier league to the national league and in the event of the
club having foreign players in excess of amount permitted in the national league as
shall be stipulated, the Club shall loan a foreign player in accordance with the
regulations to another club in the premier league or the national league and/or shall
release him. For the avoidance of doubt it is hereby clarified that the club may, at its
sole discretion, decide that the player should be loaned or released as specified
above.”
24.
The members of the Chamber, however, concurred that due to its unilateral
character, drafted to the benefit and the decision being left at the discretion of the
club only, said art. 17 par. 5 of the employment contract cannot be considered valid.
Player N, from country B / Club H, from country I / Club A, from country B
Page 13 of 19
In addition, in this context, the DRC deemed it of utmost importance to highlight
that the loan of a player from one club to another club mandatorily requires the
player’s consent.
25.
Therefore, the Chamber decided to dismiss the arguments of the
Respondent/Counter-Claimant relating to art. 17 par. 5 of the employment contract.
26.
Reverting to the circumstance that the Claimant/Counter-Respondent had offered his
services to the Respondent/Counter-Claimant 10 days after the end of the loan
period at Club R, for the sake of completeness, the Chamber wished to emphasise
that a 10 days’ absence of a player cannot be considered a just cause to terminate a
contract, particularly without any previous warning. In this regard, the Chamber
highlighted that only a breach or misconduct which is of a certain severity justifies
the termination of a contract without prior warning. A premature termination of an
employment contract can always only be an ultima ratio.
27.
On account of all of the above, having duly taken note of the parties’ arguments as
well as of the documentation on file, the Chamber decided that the
Respondent/Counter-Claimant terminated the employment contract without just
cause on 14 July 2009, date on which the Respondent/Counter-Claimant notified the
Claimant/Counter-Respondent that it was no longer counting on his services.
28.
At the same time, the members of the Chamber rejected the claim of the
Respondent/Counter-Claimant.
29.
In continuation, prior to establishing the consequences of the breach of contract
without just cause by the Respondent/Counter-Claimant 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/Counter-Claimant.
30.
Indeed, in his statement of claim, the Claimant/Counter-Respondent asks to be
awarded the amount of currency of country I 813,340, which includes the signing-on
fees for the seasons 2007/08 and 2008/09 in the amount of currency of country I
172,450 each as well as four salaries regarding the months of July, August,
September and October 2009, in the amount of currency of country I 117,110 each. In
this respect, the members of the Chamber took note of the document signed by the
Claimant/Counter-Respondent on 28 February 2008, prior to his loan to Club R, in
accordance with which the player confirmed that the Respondent/Counter-Claimant
had no financial obligations towards him until January 2009. In addition, the
Chamber took into consideration that during the player’s loan at Club R until 30 June
2009, the effects of his contract with the Respondent/Counter-Claimant must be
considered suspended. Furthermore, the Chamber took into account that the
employment contract was terminated on 14 July 2009. For these reasons, the
Player N, from country B / Club H, from country I / Club A, from country B
Page 14 of 19
members of the Chamber decided to reject the claim of the Claimant/CounterRespondent pertaining to the aforementioned amount of currency of country I
813,340.
31.
Equally, in the absence of any monetary value in the contractual condition relating
to an apartment and a car and of any documentary evidence in this connection (cf.
art. 12 par. 3 of the Procedural Rules), the Chamber had to reject the Claimant’s
unspecified claim relating to said fringe benefits.
32.
Having established the above, the Chamber turned its attention to the question of
the consequences of the unilateral termination of the contract by the
Respondent/Counter-Claimant without just cause on 14 July 2009.
33.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that
the Claimant/Counter-Respondent is entitled to receive compensation from the
Respondent/Counter-Claimant for the termination of the contract without just cause.
34.
The members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including, in particular, the remuneration and
other benefits due to the Claimant under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years,
and depending on whether the contractual breach falls within the protected period.
35.
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.
36.
As a consequence, the members of the Chamber determined that the amount of
compensation
payable
by
the
Respondent/Counter-Claimant
to
the
Claimant/Counter-Respondent had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken 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.
Player N, from country B / Club H, from country I / Club A, from country B
Page 15 of 19
37.
In order to estimate the amount of compensation due to the Claimant/CounterRespondent in the present case, the members of the Chamber first turned their
attention to the remuneration and other benefits due to the Claimant/CounterRespondent 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.
38.
In accordance with the contract signed by the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant, which was to run for two more seasons, i.e. until 30
June 2011, after the breach of contract occurred, the Claimant/Counter-Respondent
was to receive remuneration amounting to currency of country I 3,155,540, i.e. 24
monthly salaries of currency of country I 117,110 each as well as two signing-on fees
of currency of country I 172,450 each. Consequently, the Chamber concluded that the
amount of currency of country I 3,155,540 serves as the basis for the final
determination of the amount of compensation for breach of contract.
39.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 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.
40.
The Chamber recalled that as from 6 January 2010 until 30 November 2010 the
Claimant/Counter-Respondent was contractually bound to Club A earning a monthly
salary of currency of country B 10,000 (approx. currency of country I 21,609). The
Claimant/Counter-Respondent signed a second employment contract with Club A
valid as from 1 January 2011 until 10 December 2012, in accordance with which he
received a monthly salary of currency of country R 17,500 (approx. currency of
country I 36,998). These employment contracts thus enabled the Claimant/CounterRespondent to earn an income of approximately currency of country I 462,000 (i.e. 11
months x currency of country I 21,609 plus 6 months x currency of country I 36,998)
and to mitigate damages accordingly during said period of time.
41.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant/Counter-Respondent’s general
obligation to mitigate his damage, the Chamber decided that the
Respondent/Counter-Claimant must pay the amount of currency of country I
2,693,540 to the Claimant/Counter-Respondent as compensation for breach of
contract in the case at hand.
Player N, from country B / Club H, from country I / Club A, from country B
Page 16 of 19
42.
Furthermore, as regards the Claimant/Counter-Respondent’s claim pertaining to a
flight ticket, on the basis of the documentation presented by the player as well as
the information provided by FIFA Travel and referring to the relevant terms of the
employment contract, the Chamber decided that the Respondent/Counter-Claimant
must pay to the Claimant/Counter-Respondent the amount of currency of country I
2,474 for 1 air ticket after the termination of the employment without just cause by
the Respondent/Counter-Claimant.
43.
Subsequently, the DRC analysed the request of the Claimant/Counter-Respondent
corresponding to compensation for moral and financial damages in the amount of
USD 100,000. In this regard, the Chamber deemed it appropriate to point out that
the request for said compensation presented by the Claimant/Counter-Respondent
has no legal or regulatory basis and pointed out that no corroborating evidence had
been submitted that demonstrated the damage suffered or its quantity.
44.
In addition, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently,
the Chamber decided to reject the Claimant/Counter-Respondent’s request relating
to legal expenses.
45.
The members of the Chamber further decided to reject the Claimant/CounterRespondent’s claim for 5% interest as of the day on which all claimed amounts fell
due, since this particular claim was lodged after the closure of the investigation into
the present matter.
46.
In
conclusion,
the
Dispute
Resolution
Chamber
decided
that
the
Respondent/Counter-Claimant has to pay the amount of currency of country I
2,693,540 to the Claimant/Counter-Respondent as compensation for the unjustified
breach of the contract by the Respondent/Counter-Claimant as well as the amount of
currency of country B 2,474 related to 1 flight ticket.
47.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant/Counter-Respondent is
rejected.
*****
Player N, from country B / Club H, from country I / Club A, from country B
Page 17 of 19
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player N, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club H, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent
compensation for breach of contract in the amount of currency of country I 2,693,540
and the amount of currency of country R 2,474 within 30 days as from the date of
notification of this decision.
4.
Any further request filed by the Claimant/Counter-Respondent is rejected.
5.
In the event that the amounts due to the Claimant/Counter-Respondent are not paid
by the Respondent/Counter-Claimant within the stated time limit, interest at the rate
of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
Player N, from country B / Club H, from country I / Club A, from country B
Page 18 of 19
6.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant immediately and directly of the account number to which the remittance is
to be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit for
filing the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full
address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player N, from country B / Club H, from country I / Club A, from country B
Page 19 of 19