Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), member
on the matter involving the player,
Player A, country B,
as Claimant / Counter-Respondent
and the club,
Club C, country D,
as Respondent / Counter-Claimant
and the club,
Club E, country D,
as Intervening party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 7 January 2013, the player from country B, Player A (hereinafter: the Claimant /
Counter-Respondent or player), and the club from country D, Club C (hereinafter:
the Respondent / Counter-Claimant), concluded an employment contract
(hereinafter: the contract) valid as from 15 January 2013 until 31 May 2016.
2.
The contract specifies inter alia that the Claimant / Counter-Respondent is entitled
to the following fixed-remuneration:
Season 2012-2013:
- EUR 100,000 as sign-on fee;
- EUR 100,000 payable “when the player turns back from Africa Nations Cup”;
- EUR 200,000 net payable in 5 instalments of EUR 40,000 each, the first one due the
last day of the month from February through to June 2013.
Season 2013-2014:
- EUR 500,000 net payable in 10 instalments of EUR 50,000 each, the first one due on
30 August 2013 and then, the last day of the month from September 2013 through
to May 2014.
Season 2014-2015:
- EUR 500,000 net payable in 10 instalments of EUR 50,000 each, the first one due on
30 August 2014 and then, the last day of the month from September 2014 through
to May 2015.
Season 2015-2016:
- EUR 500,000 net payable in 10 instalments of EUR 50,000 each, the first one due on
30 August 2015 and then, the last day of the month from September 2015 through
to May 2016.
3.
The contract also stipulates that “in the event that the [Respondent / CounterClaimant] fails to comply with a part of its payment obligation at least 60 days the
player shall notify the [Respondent / Counter-Claimant] in writing. If the
[Respondent / Counter-Claimant] does not pay the outstanding amounts within 30
days upon the receipt of the written notice, the [the Claimant / CounterRespondent] will be entitled to terminate the employment contract with Cause.
For purposes of this Contract, “Cause” shall mean:
(…) (B) Non-payment of salaries, benefits and any other monetary obligations of the
Company in the amount of at least two instalments.
(…) The [Claimant / Counter-Respondent] shall not be entitled to any compensation
if he terminates the Contract before the lapse of the term of sixty days mentioned
above”.
Player A, country B / Club C, country D / Club E, country D
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4.
On 2 August 2013, the parties signed a first protocol (hereinafter: the first protocol).
5.
According to article 3 lit. a) of the first protocol, “the [Claimant / CounterRespondent] hereby agrees and declares that the obligations of the [Respondent /
Counter-Claimant] (such as monthly salaries (…)) derived from the employment
contract are created as fulfilled and the [Claimant / Counter-Respondent] discharges
the [Respondent / Counter-Claimant] from all of its further obligations. For the
avoidance of doubt, the release shall include any and all claims, which were or could
have been asserted in the proceedings before the football association of country D,
FIFA, CAS, UEFA or national courts”.
6.
Article 3 lit. b) of the first protocol provides that “the [Claimant / CounterRespondent] hereby declares that a total amount of EUR 200,000 will be paid to the
[Respondent / Counter-Claimant] by no later than 10.08.2013. (…) The employment
contract will be terminated mutually, following the payment of the above mentioned
amount to the [Respondent / Counter-Claimant]”.
7.
As per article 3 lit. c) of the first protocol, “In case the employment contract is
terminated mutually, the [Claimant / Counter-Respondent] hereby declares and
accepts that he will not be transferred to any other club from country D for the
2013/2014 Season. The [Claimant / Counter-Respondent] hereby accepts that in case
he is transferred to any other club from country D for the 2013/2014 Season, he will
be obliged to pay EUR 225,000 as penalty within 5 days following the registration
date to the third Club”.
8.
On 19 December 2013, the parties signed a second protocol (hereinafter: the second
protocol).
9.
The second protocol foresees inter alia that the fine of EUR 225,000 imposed on the
Claimant / Counter-Respondent on 15 July 2013 is called off and the Respondent /
Counter-Claimant is to pay the Claimant / Counter-Respondent the outstanding
amount of EUR 400,000 by no later than 31 January 2014.
10. On 30 January 2014, the parties signed a settlement agreement (hereinafter: the
settlement agreement) in order to set a new deadline for the payment of the
outstanding amount foreseen in the second protocol.
11. Pursuant to article 1 of the settlement agreement, “the [Respondent / CounterClaimant] shall make the 50% of the receivables of the [Claimant / CounterRespondent], equal to the amount of net 200,000.00 (Twohundred Thousand Euros)
until 31st of January, 2014 at the latest. This payment is a validity condition for this
Settlement Agreement and in case the [Respondent / Counter-Claimant] does not
make this payment on time, this Settlement Agreement shall be null and void
Player A, country B / Club C, country D / Club E, country D
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without the need of any other notice, notification and/or court verdict and the
[Claimant / Counter-Respondent] shall be free to terminate his professional contract
and to transfer any club in or abroad country D. This termination shall be deemed a
unilateral termination with just cause in accordance with the FIFA rules”.
12. Article 2 of the settlement agreement states that “the [Respondent / CounterClaimant] shall make the rest of the receivables of the [Claimant / CounterRespondent], equal to the amount of net 200,000.00 (Twohundred Thousand Euros)
until 15th of February 2014 at the latest. In case the [Respondent / Counter-Claimant]
breaches this payment obligation in whole or in part and doesn’t redeem the default
until the 28th day of February, 2014 at the latest, the [Respondent / Counter-Claimant]
undertakes to pay to the Player 50,000.00 Euro (Fiftythousand Euros) as penalty for
the breach of this Settlement Agreement in addition to the above mentioned
payment dated 15.02.2014. In order to avoid any misunderstandings, under these
circumstances the [Respondent / Counter-Claimant] shall pay to the Player 250,000.00
Euro (Twohundredandfiftythousand Euros) in total”.
13. On 4 April 2014, the Claimant / Counter-Respondent put the Respondent / CounterClaimant in default requesting the payment, within 30 days, of the second instalment
of EUR 200,000 and the penalty of EUR 50,000 as per the settlement agreement, as
well as his salary for February and March 2014.
14. On 12 May 2014, the Claimant / Counter-Respondent terminated the contract with
the Respondent / Counter-Claimant.
15. On 23 May 2014, the Claimant / Counter-Respondent lodged a complaint before FIFA
against the Respondent / Counter-Claimant for breach of contract, requesting the
amount of EUR 1,550,000, plus 5% interest p.a. “from the date in which the breach
occurred”, broken down as follows:
EUR 219,354.84 as outstanding remuneration corresponding to his salary for
February, March and April 2014, plus the pro-rata salary for May 2014, as well as the
penalty of EUR 50,000 set forth in the settlement agreement.
EUR 1,030,645.16 as compensation corresponding to the residual value of the
contract;
EUR 300,000 for specificity of sport corresponding to 6-month salary;
The Claimant / Counter-Respondent also requests the imposition of sporting sanctions
on the Respondent / Counter-Claimant and the payment of legal costs to be borne by
the Respondent / Counter-Claimant.
16. The Claimant / Counter-Respondent alleges that the Respondent / Counter-Claimant
failed to comply with its obligation of payment as set forth in the contract, hence the
signature of the second protocol and then, the settlement agreement. According to
the Claimant / Counter-Respondent, the second protocol aimed at settling the
Player A, country B / Club C, country D / Club E, country D
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outstanding amount of EUR 400,000, allegedly corresponding to EUR 100,000 from
the season 2012-2013, plus his salary from August 2013 until January 2014. The
Claimant / Counter-Respondent thus underlines that, by the time he received the first
instalment of EUR 200,000 on 31 January 2014 as set forth in article 1 of the
settlement agreement, he had not received his salary since the end of the season
2012-2013.
17. Furthermore, the Claimant / Counter-Respondent holds that by the time he put the
Respondent / Counter-Claimant in default, i.e. 4 April 2014, he had not received his
salary for 2 months, i.e. February and March 2014, or the second instalment of EUR
200,000 due on 15 February 2014. In this regard, the Claimant / Counter-Respondent
refers to the 30-day deadline given to the Respondent / Counter-Claimant in order to
proceed to the payment, in accordance with the contract. The Claimant / CounterRespondent further sustains that even though the Respondent / Counter-Claimant
paid the second instalment of EUR 200,000 on 21 April 2014, the player’s salary for
February, March and April 2014 as well as the penalty of EUR 50,000 remained
unpaid.
18. Consequently, the Claimant / Counter-Respondent deems having duly terminated the
contract on 12 May 2014.
19. In its statement of defence, the Respondent / Counter-Claimant rejects the Claimant /
Counter-Respondent’s claim and alleges that it is him who breached the contract in
the first instance. According to the Respondent / Counter-Claimant, the Claimant /
Counter-Respondent did not join the team on time for the pre-season training of the
season 2013-2014 and did not provide the Respondent / Counter-Claimant with a
“valid excuse”. Consequently, by means of a decision of the Board of Directors on 15
July 2013, the Respondent / Counter-Claimant decided to fine the Claimant / CounterRespondent in the amount of EUR 225,000, in accordance with its internal disciplinary
rules.
20. The Respondent / Counter-Claimant also states that, after having imposed the fine
and upon the player’s alleged consistent request to be released from the Respondent
/ Counter-Claimant, the parties signed the first protocol which, according to the
Respondent / Counter-Claimant, aimed at:
- waiving the outstanding amount of EUR 100,000 for the previous season, in
accordance with art. 3 lit. a) of the first protocol;
- terminating the contract with the Claimant / Counter-Respondent amicably, in order
for him to join a new club, but subject to the payment of the amount of EUR 200,000
and the additional amount of EUR 225,000 in the event the Claimant / CounterRespondent signs a contract with a new club from country D during the season 20132014, pursuant to art. 3 lit. b) and c) of the first protocol.
Player A, country B / Club C, country D / Club E, country D
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21. The Respondent / Counter-Claimant alleges that, since the Claimant / CounterRespondent apparently did not find a new club and as he wished to stay with the
Respondent / Counter-Claimant, he offered a deduction from his remuneration for
the seasons 2012-2013 and 2013-2014 in the amounts of EUR 50,000 and EUR 100,000
respectively. In this respect, the Respondent / Counter-Claimant provides an undated
document named “Discount Declaration” signed by the Claimant / CounterRespondent stating that he “personally discounted 50 000 EUR from my [his] season
2012-2013 season claim and EUR 100 000 EUR from my [his] 2013-2014 season
receivable rights of current contract in respect of 01.09.2013 personally confirm and
declare that about these discounts will not request any type of claim against Club C
in future”.
22. Subsequently, the Respondent / Counter-Claimant acknowledged having faced
financial issues preventing it from paying its players on a regular basis. Yet, the
Respondent / Counter-Claimant asserts that in order to cover the delays of payment
and show its good faith, the Respondent / Counter-Claimant signed the second
protocol. In particular, the Respondent / Counter-Claimant alleges that it disregarded
the “Discount Declaration” signed by the Claimant / Counter-Respondent, lifted the
penalty of EUR 225,000 set forth in art. 3 lit. c) of the first protocol and thus,
calculated the outstanding amount based on the original contract.
23. The Respondent / Counter-Claimant further acknowledged not having paid the
second instalment of EUR 200,000 on the agreed date, i.e. 15 February 2014.
However, the Respondent / Counter-Claimant sustains having proceeded to the
payment of the amount of EUR 200,000 on 18 April 2014 as acknowledged by the
Claimant / Counter-Respondent.
24. In addition, the Respondent / Counter-Claimant states that, subsequently to the
termination notice received on 12 May 2014, the Respondent / Counter-Claimant
contacted the player, inter alia by means of a letter sent on 14 May 2014, in order to
underline that the Claimant / Counter-Respondent did not comply with the
termination procedure foreseen in the contract and also requested a meeting with
the Claimant / Counter-Respondent in order to settle the matter amicably. The
Respondent / Counter-Claimant alleges that the said letter remained unanswered.
25. Referring to the above-mentioned termination procedure foreseen in the contract
(cf. point 3 above), and especially regarding the 60-day period of grace prior to the
termination of the contract, the Respondent / Counter-Claimant maintains that the
Claimant / Counter-Respondent sent the termination notice before the elapsed
deadline of 60 days. In particular, the Respondent / Counter-Claimant explains that by
the time it received the default notice, the payment of the second instalment of EUR
200,000 – corresponding to the Claimant / Counter-Respondent’s salary from October
2013 until January 2014 – was delayed by 47 days. In this regard, the Respondent /
Player A, country B / Club C, country D / Club E, country D
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Counter-Claimant stresses that the due date of 15 February 2014 fell on a Saturday,
therefore the actual due date shall be 17 February 2014.
26. Moreover, in accordance with article 2 of the settlement agreement, the Respondent
/ Counter-Claimant alleges that the penalty of EUR 50,000 fell due on 28 February
2014 and thus, the payment of such amount was delayed by 35 days. As to the
Claimant / Counter-Respondent’s salary for February and March 2014, which fell due
on 28 February 2014 and 31 March 2014 respectively, the delay of payment was by 35
days and 4 days respectively.
27. In this regard, the Respondent / Counter-Claimant holds that since it paid the amount
of EUR 200,000 on 18 April 2014, which is within the 30-day deadline provided for in
the default notice, the Claimant / Counter-Respondent was therefore not entitled to
terminate the contract.
28. Thereafter, according to the Respondent / Counter-Claimant, on 17 June 2014, the
Claimant / Counter-Respondent signed an employment contract with a new club,
Club E (hereinafter: Club E). In this regard, the Respondent / Counter-Claimant
considers that Club E induced the Claimant / Counter-Respondent to reject any
possible amicable settlement offers from the Respondent / Counter-Claimant and
thus, to unilaterally terminate the contract.
29. In this context, on 31 July 2014, the Respondent / Counter-Claimant lodged a
counterclaim before FIFA against the Claimant / Counter-Respondent for termination
of the contract without just cause, and against Club E for inducement to the
contractual breach, requesting the following:
EUR 1,144,930 as compensation to be paid by both the Claimant / CounterRespondent and Club E, broken down as follows:
- EUR 1,030,645 corresponding to the residual value of the contract, i.e. from 12
May 2014 until 31 May 2016;
- EUR 114,285 as the unamortised agent fee;
Sporting sanctions to be imposed on both the Claimant / Counter-Respondent and
Club E.
30. In his replica, the Claimant / Counter-Respondent first of all points to the Respondent
/ Counter-Claimant’s arguments relating to the player’s alleged previous breaches of
contract which, according to the Respondent / Counter-Claimant, led to the signing
of the first protocol, and holds that these previous circumstances are irrelevant to the
matter at stake since the Respondent / Counter-Claimant even decided to disregard
any fine or discount on his salary.
31. The Claimant / Counter-Respondent also emphasises the fact that he stayed with the
Respondent / Counter-Claimant despite the non-payment of his salary since August
Player A, country B / Club C, country D / Club E, country D
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2013. The Claimant / Counter-Respondent thus considers that it is under these given
circumstances that the Respondent / Counter-Claimant decided to call off the fine of
EUR 225,000 imposed on him, not as a proof of good faith but in order to avoid a
possible claim from the player before FIFA.
32. As regards the Respondent / Counter-Claimant’s allegations relating to the Claimant /
Counter-Respondent’s breach of the 60-day period of grace set forth in the contract,
the Claimant / Counter-Respondent first of all deems that such clause is not binding
since “it infringes equal position of football players in the relationship employeremployee”. The Claimant / Counter-Respondent also recalls that by the time he put
the Respondent / Counter-Claimant in default on 4 April 2014, his salary as from
October 2013 as well as the penalty of EUR 50,000 were outstanding and the
Respondent / Counter-Claimant apparently does not contest that after the 30-day
deadline set forth in the aforementioned default notice expired, these amounts were
still not paid. The Claimant / Counter-Respondent also holds that the signature of the
settlement agreement does not change the fact that his salary was due as from
October 2013 and thus, the Respondent / Counter-Claimant’s attempt to establish a
new date of payment shall be disregarded.
33. In any event, the Claimant / Counter-Respondent underlines that by the time he
terminated the contract on 12 May 2014, his salary for February, March and April
2014 as well as the penalty of EUR 50,000 were outstanding. Therefore, the Claimant
/ Counter-Respondent deems that he terminated the contract with just cause.
34. As to the contract signed with Club E, the Claimant / Counter-Respondent sustains
that he had five weeks to look for a new club and thus, explains that it concluded the
said contract more than one month after the termination of the contract. Therefore,
the Claimant / Counter-Respondent considers that he should not be blamed since “it
is enough time to start and conclude a negotiation process”.
35. In view of the foregoing, the Claimant / Counter-Respondent reiterates his entire
claim and rejected the Respondent / Counter-Claimant’s entire counterclaim.
36. As regards Club E’s position, it stresses that the Claimant / Counter-Respondent
terminated the contract with the Respondent / Counter-Claimant due to outstanding
amounts and thus, considers that the Claimant / Counter-Respondent had just cause
to terminate the contract. Club E consequently deems that the Respondent / CounterClaimant is not entitled to any compensation. Club E further states that in any event,
the amount claimed is excessive, groundless and cannot be accepted.
37. Moreover, Club E sustains that it did not induce the Claimant / Counter-Respondent
to terminate the contract. In particular, Club E emphasises that it entered into a
contractual relationship with the Claimant / Counter-Respondent only after the
Player A, country B / Club C, country D / Club E, country D
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player sent the last default notice dated 4 April 2014 and after the termination of the
contract on 12 May 2014, endorsed by the football association of country D on 4 June
2014. Club E further holds that it did not enter into negotiation with the Claimant /
Counter-Respondent prior to the termination of the contract.
38. Therefore, Club E rejects the Respondent / Counter-Claimant’s entire counterclaim.
39. In its duplica, the Respondent / Counter-Claimant holds that the whole factual
background given at the beginning of its statement of defence aimed at explaining
that, despite the difficulties between the parties, which according to it, occurred
because of the Claimant / Counter-Respondent, it always tried to keep the
contractual relationship “alive”.
40. Regarding the termination procedure foreseen in the contract, the Respondent /
Counter-Claimant maintains that it is a valid procedure since it is the law of the
parties and it is not in contradiction with FIFA or the football association of country D
Regulations. As to the contract signed with Club E, the Respondent / CounterClaimant alleges that the Claimant / Counter-Respondent intentionally disregarded
the termination procedure aiming at becoming a free agent.
41. In view of the above, the Respondent / Counter-Claimant reiterates its entire
counterclaim.
42. Upon FIFA’s request, Club E and the Claimant / Counter-Respondent confirmed that
they signed a contract on 17 June 2014, valid as of the date of signature until 31 May
2017. The contract states that the Claimant / Counter-Respondent is entitled to the
following fixed remuneration:
Season 2014-2015:
- EUR 300,000 payable in 2 instalments of EUR 150,000 each, due by 16 June 2014 and
by 16 July 2014;
- EUR 550,000 payable in 10 instalments of EUR 55,000 each, due from August 2014
through to May 2015.
Season 2015-2016:
- EUR 300,000 payable in 2 instalments of EUR 150,000 each, due by 1 June 2015 and
by 1 July 2015;
- EUR 550,000 payable in 10 instalments of EUR 55,000 each, due from August 2015
through to May 2016.
Season 2016-2017:
- EUR 300,000 payable in 2 instalments of EUR 150,000 each, due by 1 June 2016 and
by 1 July 2016;
- EUR 550,000 payable in 10 instalments of EUR 55,000 each, due from August 2016
through to May 2017.
Player A, country B / Club C, country D / Club E, country D
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 23 May 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 stake (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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between an player from country B and two clubs from
country D.
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
2014), and considering that the present claim was lodged in front of FIFA on 23 May
2014, the 2012 edition of said Regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered the substance of the present matter. In doing so, it started by
acknowledging the abovementioned facts of the matter 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.
In this respect, the Chamber acknowledged that the Claimant / Counter-Respondent
and the Respondent / Counter-Claimant entered into a contractual relationship,
which was to run from 15 January 2013 until 31 May 2016, according to which the
Claimant / Counter-Respondent was to receive a fixed-remuneration of EUR 400,000
for the season 2012-2013 and of EUR 500,000 for the seasons 2013-2014, 2014-2015
and 2015-2016 respectively. The DRC also observed that, on 30 January 2014, the
parties signed a settlement agreement, subsequently to the second protocol which
set the payment by the Respondent / Counter-Claimant of the outstanding amount
of EUR 400,000, by means of which the Respondent / Counter-Claimant undertook
Player A, country B / Club C, country D / Club E, country D
10/16
to pay the said EUR 400,000 in two instalments of EUR 200,000 each on 31 January
2014 and 15 February 2014 respectively. The said settlement agreement also
provided a penalty of EUR 50,000 in the event the Respondent / Counter-Claimant
failed to pay the second instalment of EUR 200,000 by 28 February 2014.
6.
In continuation, the Chamber also took note that it is uncontested by both parties
that the Claimant / Counter-Respondent terminated in writing the contractual
relationship on 12 May 2014, after having put the Respondent / Counter-Claimant in
default on 4 April 2014.
7.
In this regard, the Chamber took due note that the Claimant / Counter-Respondent,
on the one hand, insisted on the fact that, at the time he put the Respondent /
Counter-Claimant in default, the latter had not paid his salary for February and
March 2014 as well as the instalment of EUR 200,000 due on 15 February 2014 and
the penalty of EUR 50,000 resulting from the non-payment of the said instalment by
28 February 2014. Moreover, the Claimant / Counter-Respondent insisted on the
non-compliance of the Respondent / Counter-Claimant as to its contractual financial
obligations as from the first season and, in this respect, underlined that the amount
of EUR 400,000 foreseen in the settlement agreement referred to outstanding
payments for the season 2012-2013 and from August 2013 up to January 2014. On
this basis, the Claimant / Counter-Respondent considered that he had a just cause to
terminate the contract.
8.
The Chamber further took note of the argumentation of the Respondent / CounterClaimant, which argued that the Claimant / Counter-Respondent had unilaterally
terminated the contractual relationship without just cause and had thus lodged a
counterclaim, inter alia, for compensation. The Respondent / Counter-Claimant
acknowledged having faced financial issues which prevented it from paying its
players on a regular basis. However, the Respondent / Counter-Claimant underlined
having paid the instalment of EUR 200,000 on 18 April 2014. Finally, the Respondent
/ Counter-Claimant maintained that the Claimant / Counter-Respondent did not
comply with the termination procedure foreseen in the contract (cf. point I.3.
above) and, therefore, the amounts claimed were not due when the Claimant /
Counter-Respondent terminated the contract.
9.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim and counterclaim respectively lodged by
the parties, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the Claimant / CounterRespondent, and which party was responsible for the early termination of the
contractual relationship in question.
Player A, country B / Club C, country D / Club E, country D
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10.
In order to do so, the Chamber first and foremost recalled the content of the
contractual clause set forth in point 1.3. above, which stipulates that “in the event
that the [Respondent / Counter-Claimant] fails to comply with a part of its payment
obligation at least 60 days the player shall notify the [Respondent / CounterClaimant] in writing. If the [Respondent / Counter-Claimant] does not pay the
outstanding amounts within 30 days upon the receipt of the written notice, the [the
Claimant / Counter-Respondent] will be entitled to terminate the employment
contract with Cause.
For purposes of this Contract, “Cause” shall mean:
(…) (B) Non-payment of salaries, benefits and any other monetary obligations of the
Company in the amount of at least two instalments.
(…) The [Claimant / Counter-Respondent] shall not be entitled to any compensation
if he terminates the Contract before the lapse of the term of sixty days mentioned
above”.
11.
Thereafter, the DRC conceded that, subsequently to the default notice sent on 4
April 2014 and prior to the termination of the contract on 12 May 2014, the
Respondent / Counter-Respondent had proceeded to the payment of the instalment
of EUR 200,000 due by 15 February 2015. Moreover, the DRC took note that, at the
time the Claimant / Counter-Respondent terminated the contract, the Claimant /
Counter-Respondent’s salary for February, March and April 2014 as well as the
penalty of EUR 50,000 had not been paid.
12.
In this respect, the members of the Chamber analysed the Respondent / CounterClaimant’s argument as to the non-compliance of the Claimant / CounterRespondent with the contractual clause set forth in point I.3. and deemed it fit to
outline that, although the said clause was included in the contract as a result of the
mutual consent of the parties, the fact remains that the application of the relevant
contractual clause with an important grace period of 90 days appears
disproportionate in view of the overall factual situation. The Chamber was of the
view that the Claimant / Counter-Respondent had already conceded important
delays of payment of almost one year salary and nonetheless, the Respondent /
Counter-Claimant continued not to pay the Claimant / Counter-Respondent on time.
Therefore, the DRC determined that it could not be expected by the Claimant /
Counter-Respondent in good faith to continue accepting this considerable delay of
payment.
13.
In view of the foregoing, the DRC concluded that the relevant contractual clause
was not applicable to the matter at hand and, therefore, the allegations of the
Respondent / Counter-Claimant in this respect cannot be considered.
14.
Therefore, the Chamber concluded that the Claimant / Counter-Respondent
terminated the contract with the Respondent / Counter-Claimant with just cause on
Player A, country B / Club C, country D / Club E, country D
12/16
12 May 2014. Consequently, the Respondent / Counter-Claimant is to be held liable
for the early termination of the employment contract with just cause by the
Claimant / Counter-Respondent and, thus, the Respondent / Counter-Claimant’s
counterclaim is rejected.
15.
Having established that the Respondent / Counter-Claimant is to be held liable for
the early termination of the contract, the DRC focussed its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC decided that the Claimant / Counter-Respondent is entitled to
receive an amount of money from the Respondent / Counter-Claimant as
compensation for the termination of the contract with just cause, in addition to any
outstanding payments on the basis of the relevant employment contract.
16.
First of all, in relation to the Claimant / Counter-Respondent’s financial claim
regarding outstanding remuneration, the DRC decided that the Respondent /
Counter-Claimant is liable to pay to the Claimant / Counter-Respondent the
remuneration that was outstanding at the time of the termination, i.e. 12 May
2014.
17.
Consequently, and as mentioned in point II. 11. above, the DRC recalled that the
Respondent / Counter-Claimant did not dispute the non-payment of the Claimant /
Counter-Respondent’s salary for February, March and April 2014 provided in the
contract, as well as the penalty of EUR 50,000 set forth in the settlement agreement.
Therefore, the Chamber decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent / Counter-Claimant is liable to pay to the
Claimant / Counter-Respondent the amount of EUR 200,000 as outstanding salary
for February, March and April 2014 as well as the penalty of EUR 50,000.
18.
In continuation and with regard to the Claimant / Counter-Respondent's request for
interest, as well as the constant practice of the Dispute Resolution Chamber in this
regard, the DRC decided that the Respondent / Counter-Claimant must pay to the
Claimant / Counter-Respondent an interest of 5% p.a. on the amount of EUR
200,000 as of 12 May 2014 until the date of effective payment.
19.
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 under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
Player A, country B / Club C, country D / Club E, country D
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maximum of five years, and depending on whether the contractual breach falls
within the protected period.
20.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contracts contained 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 said employment contract at the basis of the matter at stake.
21.
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.
22.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant / Counter-Respondent under the terms of the
employment contract as from its date of termination with just cause by the
Claimant / Counter-Respondent until its original date of expiry, i.e. 31 May 2016.
The DRC thus concluded that the Claimant / Counter-Respondent would have
received EUR 1,050,000, as salary from May 2014 until May 2016, had the contract
been executed until its expiry date.
23.
In continuation, the Chamber verified as to whether the Claimant / CounterResponent 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.
24.
Indeed, as from 17 June 2014, the Claimant / Counter-Respondent found
employment with Club E. In this respect, the Chamber established that the value of
the new employment contract concluded between the Claimant / CounterRespondent and Club E for the period as from June 2014 until May 2016 amounted
to EUR 1,700,000.
25.
In accordance with the constant practice of the Dispute Resolution Chamber and the
general obligation of the player to mitigate his damages, such remuneration under
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 D
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26.
Consequently, on account of all of the above-mentioned considerations, the Dispute
Resolution Chamber decided that, even though the Respondent / Counter-Claiamnt
is considered liable for the breach of the relevant employment contract, the
Claimant / Counter-Respondent did not suffer any financial loss from the violation
of the contractual obligations by the Respondent / Counter-Claimant and, therefore,
the Chamber decided that there is no amount that should be awarded to the
Claimant / Counter-Respondent / Counter-Claimant as compensation for breach of
contract in the matter at hand.
27.
Subsequently, the DRC analysed the request of the Claimant / Counter-Respondent
corresponding to compensation for “specifity of sport”. In this regard, the Chamber
deemed it appropriate to point out that the request for said compensation
presented by the Claimant / Counter-Respondent had no legal or regulatory basis
and pointed out that no corroborating evidence had been submitted that
demonstrated the damage suffered or its quantity. In this regard, the members of
the Chamber reiterated their previous consideration and outlined that the Claimant
/ Counter-Respondent had not suffered any financial loss from the early termination
of the employment contract. Therefore, the Chamber decided that his request in
this regard shall be rejected.
28.
Moreover, the DRC decided to reject the Claimant / Counter-Respondent’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.
29.
The DRC concluded its deliberations in the present matter by establishing that any
further claims lodged by the Claimant / Counter-Respondent are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent is partially accepted.
2.
The counter-claim of the Respondent / Counter-Claimant is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, the
amount of EUR 200,000 plus 5% interest p.a. as from 12 May 2014 until the date of
effective payment.
5.
In the event that the aforementioned amount is not paid by the Respondent /
Counter-Claimant within the stated time limit, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration and a
formal decision.
Player A, country B / Club C, country D / Club E, country D
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6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
7.
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:
Marco Villiger
Acting Deputy Secretary General
Encl.
CAS Directives
Player A, country B / Club C, country D / Club E, country D
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