Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 February 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Mohamed Al-Saikhan (Saudi Arabia), member
on the claim presented by the player,
A, from I
represented by Mr xxxx
as Claimant
against the club,
B, from S
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 16 May 2008, the player country I, A (hereinafter; the Claimant or the player)
and the club from country S, club B (hereinafter; the Respondent) concluded an
employment contract (hereinafter; the contract) valid as from the date of its
signature until 30 June 2012.
2.
According to the contract, the Claimant was entitled to receive from the
Respondent, inter alia, the following amounts:
-
3.
For the season 2007/2008, 3 monthly salaries of EUR 2,300;
For the season 2008/2009, 14 monthly salaries of EUR 2,300;
For the season 2009/2010, 14 monthly salaries of EUR 2,300;
For the season 2010/2011, 14 monthly salaries of EUR 2,300;
For the season 2011/2012, 14 monthly salaries of EUR 2,300.
Moreover, the Claimant was entitled to receive as “prima de contrato” the
following amounts:
-
EUR 344,100 for the season 2007/2008;
EUR 341,800 in each of the seasons 2008/2009 and 2009/2010;
EUR 384,300 in each of the seasons 2010/2011 and 2011/2012.
The “primas de contrato” were payable at the end of each season in 4 equal
monthly instalments due as from September until December.
4.
The additional clause 1° of the contract provided “If the player exercises the
faculty established in art. xx of the xxx, it is fixed by mutual agreement a
compensation of [EUR 30,000,000]” (free translation).
5.
Moreover, the additional clause 5° of the contract stated as follows: “The present
contract will be automatically renovated, by agreement between the parties, for
the season 2012/2013 as long as the player is fielded in twenty five percent of the
total matches with the first team of [the Respondent] during the seasons
2010/2011 and 2011/2012. The player will receive for salaries and sign-on fee
remuneration in the amount of 416,500 €, maintaining the rest of the contract
valid” (free translation).
6.
On 12 August 2009, the Claimant, the Respondent and the club, Z (hereinafter; Z),
signed a loan agreement (hereinafter; the loan agreement), by means of which
the parties agreed to the temporary transfer of the player from the Respondent
to Z as from 12 August 2009 until 31 July 2010. In this respect, on 10 August 2009,
Z sent a letter to the Respondent, in which Z stated that “The transaction will be
made effective after athlete’s wages are settled and medical examination
Player A, country I / Club B, country S
Page 2 of 15
performed, which must occur till August 20, 2009 at the most”. Also on 10 August
2009, Z sent a letter to the Claimant which reads as follows:
“We confirm our interest in contracting you after the confirmation of loan by B,
holder of your federative link, on the following conditions:
- Employment contract until 06/30/2010;
- Monthly salary of xx95.000,00 (ninety and five thousand xx);
- Partial or integral purchase option of economical and/or federative rights
by Z.
We communicate that the proposition presented will be effective after the
medical examinations are performed, which must occur till 08/20/2009 at the
most”.
7.
The loan agreement specified in its clause SEGUNDA the following: “[the
Claimant] will not have anything to claim against [the Respondent] for his salaries
corresponding to the loan period, season 2009/2010 and July 2010, since, for his
own will, he will be loaned for said period to Z, relieving B from every
responsibility that the latter could have in respect of the [Claimant’s] salaries
during said loan period as per his federative contract as well as his image rights
contract. [The Respondent] will be obliged to cover [the Claimant’s] salaries
stipulated in the contract dated 13 August 2007 as from 1 August 2010” (free
translation).
8.
Moreover, clause SEXTA of the loan agreement provided that “The player will
receive from Z whatever is agreed between them” (free translation).
9.
Likewise, clause NOVENA of the loan agreement reads as follows: “The player
signs the present loan agreement as a sign of his full acceptance to all the terms
herein established” (free translation).
10.
On 20 August 2009, the Claimant underwent medical examinations with Z and on
21 August 2009, Z’s medical department issued a report which reads “The Athlete
has a chronic lesion of the right ankle and this department vetoes his admission”.
11.
On 26 August 2009, the Claimant addressed a letter to the Respondent in which
he stated, inter alia, that “… I am at the disposal of [the Respondent] and also I
am waiting for directions concerning the procedures that I have to follow in order
to start treating my contusion as soon as possible”.
12.
On 27 August 2009, the Respondent sent its reply to the Claimant’s letter, in
which it reminded the Claimant of the loan agreement, referred him to art. 18.4
of the Regulations on the Status and Transfer of Players which, according to the
Respondent, “prohibit for the transfer agreements to be subject to positive
medical tests” and recommended him to approach Z instead.
Player A, country I / Club B, country S
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13.
On 28 August 2009, Z addressed a letter to the Respondent referring to its letter
dated 10 August 2009 and informing it of the unsuccessful medical results of the
Claimant.
14.
On 31 August 2009, the Respondent replied to Z’s correspondence as follows:
-
-
Z’s statement in its letter of 10 August 2009 is unilateral and the
Respondent did not agree to it. In any case, said letter was sent prior to
the conclusion of the loan agreement and therefore, the latter
superseded and modified any previous agreements;
According to art. 18.4 of the FIFA Regulations, the loan agreement cannot
be subject to positive medical tests;
The Respondent had already requested the xxxxx to issue the player’s ITC
in favour of the xxxxx
15.
On 9 September 2009, the Claimant addressed another letter to the Respondent
in which he stressed, inter alia, that there was no employment contract signed
between Z and him and, therefore, requested the Respondent to pay his salaries
in accordance with the contract as well as to organise the medical treatment
needed for his injury suffered while rendering his services to the Respondent.
16.
On 14 September 2009, the Respondent replied by ratifying its previous position
and informing the Claimant that any claim regarding his salaries had to be
addressed to Z.
17.
On 30 September 2009, the Claimant remitted another notification to the
Respondent requesting for 85 days of outstanding salaries, and setting a 10 day
deadline in order to remedy the default. A similar letter was sent on 27 October
2009.
18.
On 10 November 2009, the Claimant remitted to the Respondent a letter by
means of which he unilaterally terminated the employment contract invoking just
cause in view of the non-payment of his salaries for the last “4 months” and the
refusal of the Respondent to pay for his medical treatment.
19.
On 12 November 2009, the Respondent contacted the Claimant, acknowledging
receipt of the past notices, whilst clearly indicating that it did not accept the
unilateral termination of the employment contract. Moreover, the Respondent
informed the Claimant of the claim it had filed against Z in front of FIFA.
20.
In this framework, on 14 November 2009, the Claimant lodged a claim against the
Respondent in front of FIFA requesting, inter alia, the total amount of EUR
1,307,200 broken down as follows:
Player A, country I / Club B, country S
Page 4 of 15
-
EUR 9,200 as outstanding salaries for the months of August, September,
October and November 2009;
EUR 1,248,000 as “compensation based upon art. 17 of the FIFA RSTP in
combination with art. 97, par. 1 and art. 337 c, par. 1 of the Swiss CO”;
EUR 50,000 as “indemnity for the expenses incurred by [the Claimant] in
view of his medical treatment”;
5% interest on all the amounts claimed;
Sporting sanctions to be imposed on the Respondent.
21.
In particular, the Claimant claimed that for a transfer of a player to be completed,
both a transfer agreement and an employment contract need to be concluded.
Therefore, and in view of the fact that he did not sign an employment contract
with Z, the Respondent was responsible for the payment of his salaries and the
cover of his medical expenses. In this context, the Claimant stressed that it is
impossible for him to file a complaint against Z since no employment contract
between them was signed.
22.
On account of the above, and since the Respondent refused to pay him his salaries
in accordance with the contract as well as refused to cover his medical expenses,
the Claimant held that he had just cause to terminate the employment contract
on 10 November 2009.
23.
In its reply to the claim, the Respondent firstly questioned FIFA’s competence to
deal with the present matter as allegedly the only competent bodies to adjudicate
on the present dispute are the national courts or the Jurisdictional Committee of
the Federation. In this respect, the Respondent argued that the employment
contract is a “national federative contract” which does not have an international
dimension, since it was concluded in country S and under the scope of the
Federation.
24.
Furthermore and as to the substance of the matter, the Respondent alleged that
since the Claimant was loaned to Z, the employment contract it had with the
player was suspended and thus, it had no obligation to pay the Claimant’s salaries
during the loan period. In this respect, it referred to art. 18.4 of the Regulations
on the Status and Transfer of Payers and claimed that a transfer agreement
cannot be subject to positive medical tests.
25.
In continuation, the Respondent argued that on 16 November 2009, it lodged a
claim against Z in front of FIFA for breach of the loan agreement. According to
the Respondent, the core issue at hand is whether the loan agreement can be
considered valid or not and whether Z had the right or not to terminate it based
on the Claimant´s failure to pass his medical tests. The Respondent asserted that
this decision has to be taken prior to anything else; if the loan agreement signed
by the parties is considered to be valid and legally binding then the Claimant
would not have a claim against the Respondent but against Z instead. Therefore,
Player A, country I / Club B, country S
Page 5 of 15
the Respondent requested the claim to be suspended until the claim against Z was
decided.
26.
On 26 January 2010, the Respondent, by means of an unsolicited correspondence,
informed FIFA, while enclosing certain press releases, that allegedly the Claimant
was being treated by the medical staff of Z and was already training with the
latter. In this respect, the Respondent held that the entire case was a fraud and
was built by Z and the Claimant so the latter could terminate his contract with the
Respondent without paying any kind of compensation.
27.
On 14 April 2010, the Claimant, via an unsolicited correspondence, informed FIFA
that the xxxx had requested the Single Judge of the Players’ Status Committee
(PSC) for the provisional registration of the Claimant to join its affiliated club, Y.
28.
On 9 September 2010, the Claimant, via an unsolicited correspondence, informed
FIFA that he was “astonished” as, on 10 August 2010, the Respondent had lodged
a claim against him before the “xxx” despite being aware of the proceedings
before FIFA. In this respect, the Claimant rejected the competence of any decisionmaking body other than FIFA’s Dispute Resolution Chamber (DRC) and stressed
that the parties did not “indicate the ordinary courts as competent to deal with
any dispute eventually raised from the employment contract”.
29.
On 22 October 2010, the Respondent remitted another correspondence to FIFA,
claiming again that the whole issue was a fraud created by the Claimant in order
to be released from his contract. The Respondent argued that a proof of this is
that after the Single Judge of the PSC granted the player’s provisional registration
for Y, he signed a professional contract with the Brazilian club, X.
30.
On account of the above, according to the Respondent, it lodged a claim against
the Claimant in front of the Courts claiming the amount contained in the buy-out
clause established in the contract i.e. EUR 30,000,000. The Respondent stressed
that since FIFA is not dealing with this particular matter, it can be claimed in front
of the ordinary courts.
31.
On 25 October 2010, the Claimant reverted to FIFA rejecting again the
competence of any decision-making body other than FIFA’s DRC. In this respect,
he stressed that the employment contract does not contain an arbitration clause
in favour of any court in country S, that the Respondent, by answering to his claim
in front of FIFA tacitly accepted FIFA’s competence and that said claim was
brought to the national Courts 8 months after he started proceedings in front of
FIFA.
32.
On 16 March 2011, the Federation informed FIFA that the Respondent had been
put under administration due to its insolvency.
Player A, country I / Club B, country S
Page 6 of 15
33.
On 6 September 2011, FIFA sent a letter to the parties informing them that in
view of the Respondent’s insolvency, it could no longer deal with the case.
34.
On 4 October 2012, and after an appeal submitted by the Claimant, the CAS
rendered an award in which it decided, inter alia, that “The case shall be referred
back to FIFA for a new decision in light of the grounds of the present award”.
35.
On 9 January 2013, the Claimant requested FIFA to continue the proceedings in
view of the CAS award and enclosed a decision of the “xxxxxxxxxxx” which
allegedly, put an end to the Respondent’s administration proceedings.
36.
On 3 April 2013, upon FIFA’s request, the Respondent provided its comments to
the Claimant’s last correspondence, stating, inter alia, that “after the declaration
of insolvency, may not be executed or declared claim which is nor declared before
the Commercial Court itself”, that “who would claim some credit for being
incorporated in the list of creditors, had to do with the Court’s own de lo
xxxxxxxxxx” and that “after [13 june 2012] no creditor could claim prior debts to
the declaration of insolvency (17.01.2011)” and therefore “[the Claimant]
understood that had to claim a credit against (…) B, he should have asserted
before the Commercial Court and that he had been recognized by the insolvency
administrators”.
37.
In addition, the Respondent asserted that its claim against the Claimant in front
of the ordinary courts was still being reviewed by the Superior Court of xxxxxx.
38.
On 13 October 2015, the Single Judge of the PSC issued a legal opinion whereby
he concluded that the loan agreement signed by the Claimant, the Respondent
and Z was valid as there was no provision contained therein that would subject its
validity to a successful result of the players’ medical exams with Z.
39.
After having been asked by FIFA to present his comments in relation to the legal
opinion, the Claimant argued that he was not a party to the loan agreement. In
this context, the Claimant asserted that the loan agreement does not stipulate the
terms of employment with Z and, while referring to clause SEXTA of the loan
agreement, held that by expressly conditioning the remuneration due to him
during the loan period to a subsequent employment agreement to be entered
between Z and him, it is clear that the loan agreement cannot be considered a
tripartite agreement and as such, the Claimant was not bound by its terms and
conditions.
40.
Furthermore, the Claimant asserted that clause NOVENA of the loan agreement
ratifies that he only signed the loan agreement in order to confirm his consent
with the temporary transfer however, it cannot be assumed that by signing it, he
was actually a party to the loan agreement.
Player A, country I / Club B, country S
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41.
As to the fact that the Respondent did not agree to subject the loan agreement to
a positive medical result, the Claimant argued that the Respondent was always
aware that the conclusion of the loan was subject to a positive medical exam. In
this regard, the Claimant alleged that, by not answering Z’s letter of 10 August
2009 “in timely fashion”, the Respondent implicitly accepted its content. In this
respect, the Claimant highlighted that the Respondent only replied on 31 August
2009, i.e. after it was aware of his failure to pass the medical exams.
42.
Finally, the Claimant argued that, in view of the above, even if it can be
concluded that the loan agreement was valid, it is clear that i) he was not a party
of it and thus, he was not bind to the terms therein agreed and ii) the temporary
transfer was never concluded.
43.
In its comments to the legal opinion, the Respondent argued that in view of said
opinion, it is clear that Z was the party responsible for the breach of the loan
agreement and therefore, as the Claimant did not fulfil its obligations under the
contract, he must be “sanctioned”.
44.
Upon request, the Claimant informed FIFA that he signed a new employment
contract with the club X valid as from 17 August 2010 until 19 June 2012,
according to which he was entitled to receive as remuneration a monthly salary of
60,000 xxx.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or
the Chamber) analysed whether it was competent to deal with the matter at
stake. In this respect, it took note that the present matter was submitted to FIFA
on 14 November 2009. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015) (hereinafter; the Regulations), the Dispute Resolution
Chamber shall adjudicate on employment-related disputes between a club and a
player that have an international dimension.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 11 February 2016 by means of which
the parties were informed of the composition of the Chamber, the member D and
the member G refrained from participating in the deliberations in the case at
hand, due to the fact that the member D has the same nationality as the Claimant
Player A, country I / Club B, country S
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and that, in order to comply with the prerequisite of equal representation of club
and player representatives, also the member G refrained from participating and
thus the Dispute Resolution Chamber adjudicated the case in presence of three
members in accordance with art. 24 par. 2 of the Regulations.
4.
As a consequence, the Dispute Resolution Chamber considered that it would, in
principle, be competent to decide on the present litigation involving a player
from country I and a club from country S regarding an alleged breach of the
employment contract concluded between the aforementioned parties.
5.
Notwithstanding the above, the Chamber acknowledged that the Respondent
contested the competence of FIFA’s deciding bodies as, according to the
Respondent, the present matter does not have an international dimension since
the contract at the basis of the dispute was concluded in country S and under the
scope of the Federation. Therefore, in the Respondent’s view, the Courts or the
Jurisdictional Committee of the Federation are the only competent bodies.
6.
Having established the above and after having analysed the exception presented
by the Respondent, the Chamber came to the unanimous conclusion that the
argument of the Respondent does not stand. Indeed, it is undisputed that the
Claimant bears the nationality from country I and that the Respondent is a club
affiliated to a federation in country S. In this respect, the members of the
Chamber were eager to emphasise that the DRC’s longstanding and wellestablished jurisprudence dictates that the international dimension of a dispute is
determined by the nationality of the parties involved therein. As a consequence,
the place where, or under which framework, a contract is signed is irrelevant to
establish whether a dispute has an international dimension in the sense of art. 22
lit. b) of the Regulations.
7.
On account of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has to
be rejected and that thus the Dispute Resolution Chamber is, on the basis of art.
22 lit. b) of the Regulations, competent to entertain the claim of the Claimant.
8.
The Chamber then proceeded to analyse which edition of the Regulations should
be applicable as to the substance of the matter. In this respect, it confirmed that
in accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2015) and
considering that the claim was lodged on 14 November 2009, the 2009 edition of
the Regulations is applicable to the present matter as to the substance.
9.
The competence of the Chamber and the applicable Regulations having been
established and entering into the substance of the matter, the Chamber
continued its acknowledgment of the above-mentioned facts as well as of the
documentation contained in the file. However, the Chamber emphasised that in
the following considerations it will refer only to the facts, arguments and
Player A, country I / Club B, country S
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documentary evidence which it considered pertinent for the assessment of the
substance of the matter at hand.
10.
First of all, the DRC acknowledged that on 16 May 2008, the parties concluded an
employment contract valid until 30 June 2012 and according to which, the
Claimant was entitled to receive, inter alia, the following amounts:
a. EUR 32,200 as salaries for the season 2009/2010 (EUR 2,300 X 14);
b. EUR 32,200 as salaries for the season 2010/2011;
c. EUR 32,200 as salaries for the season 2011/2012;
d. EUR 341,800 as “prima de contrato” for the season 2009/2010;
e. EUR 384,300 as “prima de contrato” for the season 2010/2011;
f. EUR 384,300 as “prima de contrato” for the season 2011/2012.
11.
Subsequently, the members of the Chamber took note that on 12 August 2009,
the Claimant, the Respondent and Z concluded a loan agreement valid until 31
July 2010 and that on 21 August 2009, Z’s medical department issued a report
whereby it “vetoes [the Claimant’s] admission” due to an alleged chronic lesion in
his ankle.
12.
Furthermore, the Chamber noted that, after various exchanges of correspondence
between the parties, on 10 November 2009, the Claimant terminated the contract
invoking just cause in view of the non-payment of his salaries for the months of
August, September, October and November 2009 as well as the non-payment of
his medical expenses.
13.
With the aforementioned in mind, the DRC went to analyse the claim of the
Claimant who argues that as he did not conclude an employment contract with Z,
the loan to the latter club was never completed and hence, the Respondent was
obliged to continue paying his salaries in accordance with the contract. By not
doing so, the Respondent breached said contract. In this respect, the Chamber
noted that, according to the Claimant, in order for a loan to be completed, both a
loan agreement and a new employment contract need to be concluded.
14.
The members of the Chamber then turned their attention to the position of the
Respondent which, conversely, claims that the loan agreement is, as concluded by
the Single Judge of the PSC, valid since it did not contain any provision making it
subject to a positive result of the Claimant’s medical tests with Z. Moreover, the
Chamber noted that the Respondent stressed that, in any case, according to art.
18.4 of the Regulations, a loan agreement cannot be made subject to a positive
medical result.
15.
Along these lines, the Chamber observed that, according to the Respondent, in
view of the conclusion of the loan agreement, the effects of the contract with the
Claimant were suspended and thus, it was not obliged to cover the Claimant’s
Player A, country I / Club B, country S
Page 10 of 15
salaries during the relevant period. As such, the Respondent is of the opinion that
the Claimant did not have just cause to terminate the employment contract.
16.
In view of the foregoing considerations, the Chamber deemed that the underlying
issue in the dispute at hand, considering the position of the parties, was to
determine whether the relevant employment contract had been unilaterally
terminated with or without just cause by the Claimant, and which party was
responsible for the early termination of the contractual relationship in question.
The DRC also underlined that, subsequently, it would be necessary to determine
the consequences for the party that caused the breach of the relevant
employment contract.
17.
First of all, the members of the Chamber wished to point out that it is undisputed
by the parties that, after the loan agreement was signed, the Claimant did not
conclude an employment contract with Z as, according to the latter’s medical
department, the Claimant had a chronic lesion in his ankle.
18.
Furthermore, the members of the Chamber observed that, after putting the
Respondent in default of payment on 9 September, 30 September and 27 October
2009, on 10 November 2009, the Claimant terminated the contract with the
Respondent invoking just cause.
19.
Subsequently, the Chamber acknowledged that the Single Judge of the PSC was
of the opinion that the loan agreement concluded between the Claimant, the
Respondent and Z was valid as there was no provision contained therein that
would make it subject to a positive result of the Claimant’s medical tests.
20.
With the aforementioned considerations in mind, the members of the Chamber
wished, first and foremost, to emphasise that, in principle, one of the natural
consequences of a loan is that the effects of the player’s original contract are
suspended during the loan period. Indeed, unless provided otherwise either in the
contract or the loan agreement, whilst a player is on loan with a new club, neither
the player nor his club of origin are obliged to comply with the obligations
stipulated in the original contract.
21.
Notwithstanding the above, the Chamber highlighted that one basic condition in
order for an employment contract to be suspended in the context of a loan, is
that the player’s employment conditions with his new club are defined and
agreed whether in the relevant loan agreement or in a new employment contract.
The Chamber underlined that if this is not the case, one could face the scenario in
which a player would be de facto prevented from receiving any salary during the
entire duration of the loan as, in view of the suspension of his original contract,
not only would he not be able to claim his salaries from his original club but he
would not have any contractual basis to claim them from his new club.
Player A, country I / Club B, country S
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22.
In casu, if it would be concluded that the effects of the Claimant’s contract with
the Respondent were suspended in view of the conclusion of only the loan
agreement, the Claimant would be left in a position where he would not receive
any remuneration during a whole year, since indeed no employment contract had
been signed with Z. Even more, when the loan agreement did not provide any
consequences in case of the non-conclusion of an employment contract between
the Claimant and Z. In this context, the members of the Chamber put special
emphasis on the fact that not only did the loan agreement not contain a single
stipulation referring to the conditions of employment that the player would have
had with Z but that its clause SEXTA expressly provided that the player would
receive from Z whatever was agreed between them.
23.
On account of the above, the members of the Chamber were of the unanimous
opinion that, despite the fact that the loan agreement was in principle valid, the
player’s contract with the Respondent was never suspended since no new
employment contract was signed between the Claimant and Z. Therefore, the
parties’ obligations born from the contract dated 16 May 2008 remained in force.
24.
In view of the aforementioned considerations, the Chamber was of the
unanimous opinion that the Respondent was obliged to continue paying the
Claimant’s salaries and that by not doing so, it neglected its contractual
obligations towards the Claimant. In this regard, the DRC highlighted that from
the exchange of correspondence between the parties, it is evident that the
Respondent did not have any intention to comply with its obligations during the
loan period originally agreed with Z. As a consequence of the above, the Chamber
unanimously decided that the player had just cause to terminate the employment
contract on 10 November 2009 and that thus, the Respondent should be held
liable for the consequences thereof.
25.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract with just
cause by the Claimant.
26.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per the contract in accordance with the general legal
principle of pacta sunt servanda. Consequently, the Chamber decided that the
Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination i.e. EUR 6,900 as per his salaries of
August, September and October 2009.
27.
In addition, taking into consideration the Claimant’s claim, the members of the
DRC decided to award interest on said amount at the rate of 5% p.a. as of 14
November 2009.
Player A, country I / Club B, country S
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28.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to any outstanding salaries on
the basis of the relevant employment contract.
29.
In this context, the Chamber outlined that, in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
player under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years, and depending on whether
the contractual breach falls within the protected period.
30.
In application of the relevant provision, and in order to evaluate the
compensation to be paid by the Respondent, the members of the Chamber took
into account the remuneration due to the Claimant in accordance with the
employment contract, along with the professional situation of the Claimant after
the early termination occurred. In this respect, the Chamber pointed out that at
the time of the termination of the contract, the remaining value of the contract
as from its early termination by the Claimant until its regular expiry amounted to
EUR 1,197,800, comprised of EUR 23,000 as salaries for the season 2009/2010, EUR
64,400 as salaries for the seasons 2010/2011 and 2011/2012, as well as EUR
1,110,400 as per the “primas de contrato” for the seasons 2009/2010, 2010/2011
and 2011/2012. The Chamber concluded that this amount shall serve as the basis
for the final determination of the amount of compensation for breach of
contract.
31.
In this regard, and for the sake of completeness, the Chamber was eager to point
out that the value of the season 2012/2013 could not be taken into account for
the purposes of the calculation of the compensation as the extension of the
contract was subject to certain conditions which were not fulfilled.
32.
In continuation, the Chamber recalled that the player had entered into a new
employment with the club, X, valid as from 17 August 2010 until 19 June 2012,
according to which he was entitled to receive as remuneration a monthly salary of
60,000 xx, which equalled to approximately EUR 25,000 at the moment of its
signing. Therefore, the total value of the player’s new contract amounts to EUR
575,000 (EUR 25,000 X 23). Consequently, in accordance with the constant practice
of the Dispute Resolution Chamber and the general obligation of the Claimant to
mitigate his damages, the above-mentioned amount shall be taken into account
in the calculation of the amount of compensation for breach of contract.
33.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of EUR 622,800 to the Claimant as compensation for breach of
Player A, country I / Club B, country S
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contract, which is considered by the Chamber to be a reasonable and justified
amount. Equally, the Respondent must pay 5% interest p.a. over said amount as
from the date of the claim, i.e. 14 November 2009, until the date of effective
payment.
34.
Finally, the Chamber rejected the claim of the Claimant as “indemnity for the
expenses incurred by [the Claimant] in view of his medical treatment”, as it lacks a
specific contractual basis.
35.
Finally, the Chamber concluded its deliberations by establishing that any further
claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, B, is ordered to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the amount
of EUR 6,900 plus 5% interest p.a. as of 14 November 2009 until the date of
effective payment.
4.
The Respondent is ordered to pay to the Claimant, within 30 days as from the
date of notification of this decision, compensation for breach of contract in the
amount of EUR 622,800 plus 5% interest p.a. as of 14 November 2009 until the
date of effective payment.
5.
In the event that the amounts plus interest due to the Claimant in accordance
with the above-mentioned numbers 3. and 4. are not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent, immediately and directly, of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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
Player A, country I / Club B, country S
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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 I / Club B, country S
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