Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 February 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Monsen (Norw ay ), member
S téphane Burchkalter (France), member
Philippe Diallo (France), member
Jos eph Bell (Cameroon), member
on the claim presented by the player,
Play er A, Country B
as Claimant / Counter-Respondent
against the club,
Club C, Country D
as Respondent / Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 4 August 2015, the player of Country B, Player A (hereinafter: the
Claimant / Counter-Respondent), and the club of Country D, Club C
(hereinafter: the Respondent / Counter-Claimant), signed an employment
contract valid as from 1 August 2015 until 30 June 2020.
2.
According to art. 2 par. 1 of the employment contract, the Respondent /
Counter-Claimant undertook to pay to the Claimant / Counter-Respondent,
until the 5th day of the month ensuing the month concerned, the following
gross monthly remuneration: EUR 5,000 up to a total amount of EUR
55,000 for the season 2015/2016 and EUR 5,000 up to a total amount of
EUR 60,000 […] for the seasons 2016/2017 until 2019/2020.
3.
According to art. 12 of the employment contract, “le Joueur et
[Respondent / Counter-Claimant], au cas de non accomplissement des
dispositions de ce contrat et avant toute autre initiative, s’engagent à
notifier l’autre partie ayant en vue la solution à l’amiable de la dispute
dans un délai de 30 jours à compter de cette notification et, au cas où cette
notification n’est pas faite, le non accomplissement des dispositions de ce
contrat ne pourra pas être invoqué autant que rupture du contrat par
aucune des parties, les deux parties acceptant que cette clause est
essentielle à la conclusion de ce contrat, et qu’elle a été créée dans l’interêt
des deux parties” (free translation into English: “the Player and [the
Respondent / Counter-Claimant], in case of non-accomplishment of the
provisions of this contract, and before any other initiative, undertake to notify
the other party of the possibility of an amicable resolution of the dispute
within 30 days from that notification and, in case that the notification does
not occur, the non-accomplishment of the provisions of this contract cannot
be invoked as a breach of the contract by any of the parties, the two parties
accept that this clause is essential to the conclusion of this contract, and that
has been created for the interest of the two parties”).
4.
According to art. 14 of the employment contract, ”si le Joueur résilie
unilatéralement et sans cause ce Contrat de Travail Sportif ou si
[Respondent / Counter-Claimant] favorise le congédiement invoquant juste
cause, le Joueur est oblige au payement de l’indemnité correspondante à
la valeur des rémunérations qui seraient dues si le contrat avait abouti à sa
fin et, aussi, au payement, à titre de clause pénale, de la somme de €
30.000.000,00 […] iva non comprise, sans préjudice de l’application de
sanctions sportives par les entités nationales et internationales
compétentes” (free translation into English : “if the Player terminates
unilaterally and without cause this Sport Employment Contract or if [the
club]” terminates with just cause, the Player is obliged to pay an indemnity
corresponding to the value of the remuneration that would have been due if
the contract were executed till the end and, also, to the payment of €
30.000.000,00 as penalty clause […] VAT not included, without prejudice to
Player A, Country B / Club C, Country D
2/13
the application of sporting sanctions by the national and international
competent entities”).
5.
By letter dated 20 March 2017, the Respondent / Counter-Claimant notified
the Claimant / Counter-Respondent that “in face of [his] persistent and
prolonged absence from the training sessions and competition […], [the
Respondent / Counter-Claimant] has no other option than to invoke [his]
abandonment of work”. In said correspondence the Respondent / CounterClaimant recalled art. 53, para. 4 of the Collective Bargaining Agreement
(CBA), which, according to the Respondent / Counter-Claimant, provides
that “the abandonment of work is considered as termination without just
cause”. Consequently, the Respondent / Counter-Claimant informed the
Claimant / Counter-Respondent that he was deemed to be in breach of
contract without just cause in light of his prolonged absence without
notification to the Respondent / Counter-Claimant and warned him about
the consequences in terms of compensation envisaged in the FIFA
Regulations on the Status and Transfer of Players.
6.
On 30 March 2017, the Claimant / Counter-Respondent replied to the
Respondent / Counter-Claimant in writing, rejecting the allegations made
by the latter with the aforementioned correspondence. In this letter, the
Claimant / Counter-Respondent referred to the situation he had allegedly
encountered with the Respondent / Counter-Claimant since the start of the
employment relationship and that given these circumstances he had
decided to return to Country B, which he allegedly communicated to the
Respondent / Counter-Claimant and his agent. The Claimant / CounterRespondent further proposed to find a “peaceful solution to terminate the
contract”, asking the Respondent / Counter-Claimant to reply by 10 April
2017.
7.
By letter dated 26 April 2017, the Claimant / Counter-Respondent
unilaterally terminated the employment contract. In this correspondence,
the Claimant / Counter-Respondent pointed out that he had not received a
reply to his letter of 30 March 2017.
8.
On 2 May 2017, the Claimant / Counter-Respondent lodged a claim against
the Respondent / Counter-Claimant in front of FIFA, requesting that the
latter be ordered to pay him the amount of EUR 190,000 as residual value
of the contract and EUR 3,000,000 “ex aequo et bono” as compensation
for breach of contract.
9.
With his claim, the Claimant / Counter-Respondent explained that as from
August 2015 until December 2015 he was part of the Respondent /
Counter-Claimant’s B team but, shortly after signing the contract, he had
been suddenly excluded from the squad without having been granted any
playing time. The Claimant / Counter-Respondent further submitted that,
subsequently, he was loaned to the club of Country B, Club E as from
February 2016 until June 2016 and that – when he returned from the loan
Player A, Country B / Club C, Country D
3/13
– he was once again excluded from the Respondent / Counter-Claimant’s B
team.
10.
In continuation, the Claimant / Counter-Respondent argued that, as from
June 2016 until December 2016, the Respondent / Counter-Claimant had
not fielded him at all.
11.
Moreover, the Claimant / Counter-Respondent claimed that, since the
beginning of the employment relationship, the Respondent / CounterClaimant showed a lack of interest in executing the contract and had even
de facto pushed him to terminate it.
12.
In support of his claim, the Claimant / Counter-Respondent argued that the
Respondent / Counter-Claimant had fielded him for only 68 minutes in 18
months. In this respect, the Claimant / Counter-Respondent explained that
during his time at the Respondent / Counter-Claimant, various e-mails were
sent by his mother and his manager to the Respondent / Counter-Claimant,
enquiring about his playing time and showing deep concerns about the
repercussions of this situation on his professional career. The Claimant /
Counter-Respondent pointed out that the Respondent / Counter-Claimant
never replied to any of these emails.
13.
Furthermore, the Claimant / Counter-Respondent highlighted that, while
employed by the Respondent / Counter-Claimant, on top of being allowed
to play for a very limited amount of time, he had to experience (i) the
exclusion from the B team for unknown reasons from July until November
2016, with the consequence of having to train on his own to stay fit, (ii)
the exclusion from the restaurant of the team for unknown reasons, (iii)
the exclusion from all the trainings without justification, (iv) a change of
the number of his jersey without reason and (v) a regular exclusion from
friendly games 5 minutes before the beginning of the match. The Claimant
/ Counter-Respondent argued that all these circumstances ultimately led to
a situation of psychological distress for which he underwent specific
treatment.
14.
On account of the above, the Claimant / Counter-Respondent argued that,
following the advice of his mother, on 5 January 2017 he moved back to
Country B, informing the Respondent / Counter-Claimant accordingly. The
Claimant / Counter-Respondent explained that this decision was the result
of the above-mentioned conditions in which the Respondent / CounterClaimant had put him since the beginning of the employment relationship
and which had culminated in a “total burn out”.
15.
Moreover, the Claimant / Counter-Respondent claimed that the experience
at the Respondent / Counter-Claimant had substantially put an end to his
football career and, for this reason and all the others mentioned above, his
termination of the contract was supported by just cause.
Player A, Country B / Club C, Country D
4/13
16.
On 31 May 2017, the Claimant / Counter-Respondent addressed a
correspondence to the Respondent / Counter-Claimant and to FIFA by
means of which he (i) terminated the contract for sporting just cause in
accordance with art. 15 of the Regulations on the Status and Transfer of
Players, and (ii) amended his claim, adding sporting just cause as a
subsidiary reason for termination.
17.
In reply to the claim, the Respondent / Counter-Claimant asked that the
Claimant / Counter-Respondent’s request be rejected and, on 19 June 2017,
filed a counterclaim against him for breach of contract without just cause.
18.
In order to support its argumentation, the Respondent / Counter-Claimant
recalled that, throughout the duration of the contract, the Claimant /
Counter-Respondent was registered by the Respondent / Counter-Claimant
as a member of the squad and he had been given substantial playing time
in several friendly matches. In this respect, the Respondent / CounterClaimant pointed out that the Claimant / Counter-Respondent’s poor
performance was the reason why he had not been fielded regularly by the
Respondent / Counter-Claimant’s B team and why he was loaned to Club E
in February 2016.
19.
The Respondent / Counter-Claimant explained that, after his return from
Club E, and following a new period of poor performance, the Claimant /
Counter-Respondent requested to be sent for a trial period to Club F from
23 December 2016 to 1 January 2017. The Respondent / Counter-Claimant
stressed that this solution was greatly appreciated by the Claimant /
Counter-Respondent’s agent.
20.
In respect of the above, the Respondent / Counter-Claimant argued that a
confirmation of the Claimant / Counter-Respondent’s poor quality of play
can be found in the fact that neither Club E nor Club F exercised the
option to retain him after, respectively, the loan and the short trial.
21.
Furthermore, the Respondent / Counter-Claimant explained that the
Claimant / Counter-Respondent was supposed to resume training in
Country D on 2 January 2017 but he failed to do so. Consequently, and
given that the Claimant / Counter-Respondent had allegedly disappeared
without a valid reason and without the permission of the Respondent /
Counter-Claimant, the latter notified the Claimant / Counter-Respondent
on 20 March 2017 that it was terminating the contract with just cause.
22.
The Respondent / Counter-Claimant further argued that the emails sent by
the Claimant / Counter-Respondent’s agent and by his mother confirmed
the will of the Claimant / Counter-Respondent to terminate the
employment relationship with the Respondent / Counter-Claimant.
23.
In summary, the Respondent / Counter-Claimant requested that the
Claimant / Counter-Respondent’s claim be rejected and counterclaimed to
be awarded EUR 190,000 as compensation for the termination of contract
Player A, Country B / Club C, Country D
5/13
plus 5% interest p.a. as of 20 March 2017. In this respect, the Respondent /
Counter-Claimant pointed out that the reciprocal will of the parties to not
continue working together was the reason why it was asking said amount
in compensation rather than relying on art. 14 of the employment
contract. Finally, the Respondent / Counter-Claimant asked for the
rejection of the subsidiary request concerning breach of contract for
sporting just cause, because the contract had allegedly already been
terminated on 20 March 2017.
24.
In his replica and reply to the counterclaim, the Claimant / CounterRespondent entirely reiterated the position expressed with his claim and
further explained that, after the trial period at Club F, the Respondent /
Counter-Claimant did not show any interest in him and did not
communicate the dates of the trainings. The Claimant / CounterRespondent pointed out again that the Respondent / Counter-Claimant
remained passive although having been informed by his agent and his
mother of the Claimant / Counter-Respondent’s decision to return to
Country B in January 2017.
25.
In continuation, the Claimant / Counter-Respondent argued once more
that the Respondent / Counter-Claimant‘s stance was aimed at pushing him
to terminate the contract and, basically, it did not let him execute it in the
first place.
26.
Furthermore, with regards to the issue of the termination with sporting
just cause, the Claimant / Counter-Respondent claimed that he could notify
his intention only on 31 May 2017, after the end of the season, in
accordance with art. 15 of the FIFA Regulations on the Status and Transfer
of Players.
27.
In relation to the Respondent / Counter-Claimant’s counterclaim, the
Claimant / Counter-Respondent argued that, with its correspondence of 20
March 2017, the Respondent / Counter-Claimant did not clearly indicate
that it was terminating the contract with just cause.
28.
In its final comments, the Respondent / Counter-Claimant reiterated the
position it had expressed with its reply to the claim and further explained
that the Claimant / Counter-Respondent’s poor performance showed that
he was not ready to play for the Respondent / Counter-Claimant’s B team
in 2015. However, the Respondent / Counter-Claimant argued that, even
though it had loaned the Claimant / Counter-Respondent twice, it was still
interested in continuing to receive his professional services and kept
paying him regularly until April 2017.
29.
Furthermore, the Respondent / Counter-Claimant denied that the Claimant
/ Counter-Respondent received the treatment described in his claim during
his stay in Country D and, in any case, claimed that the Claimant / CounterRespondent failed to meet the burden of proof, as he only produced
exchanges of messages with his agent to this end.
Player A, Country B / Club C, Country D
6/13
30.
In continuation, the Respondent / Counter-Claimant claimed that “no mail
addressed by Player A to the League representative of Club C has been
produced in this process”. The Respondent / Counter-Claimant further
reiterated, invoking DRC jurisprudence and the CBA of Country D, that the
prolonged absence of the Claimant / Counter-Respondent constituted a
material breach of the employment relationship and, therefore, there was
no other option for the Respondent / Counter-Claimant than to terminate
the contract with just cause with the letter of 20 March 2017.
31.
In light of the above, the Respondent / Counter-Claimant entirely recalled
the conclusions made with its reply to the claim and, additionally, asked
the application of sporting sanctions on the Claimant / CounterRespondent. With regards to the issue of the sporting just cause, the
Respondent / Counter-Claimant reiterated that the Claimant / CounterRespondent’s request should be rejected since the contract had been
already terminated with just cause in March 2017 and further specified
that the Claimant / Counter-Respondent is not in any case an “established
professional” for the purposes of art. 15 of the Regulations.
32.
In his final comments, the Claimant / Counter-Respondent substantially
restated the position he had expressed with his previous briefs and added
that the Respondent / Counter-Claimant had acted in violation of art. 12 of
the employment contract, given that it had not communicated with him
prior to taking the ultimate measure of terminating the contract.
Therefore, according to the Claimant / Counter-Respondent, the
Respondent / Counter-Claimant had not validly terminated the contract on
20 March 2017.
33.
Since the termination of the contract with the Respondent / CounterClaimant, the Claimant / Counter-Respondent has not entered into any
new employment relationship.
34.
After the closure of the investigation, by letter dated 27 November 2017,
the Respondent / Counter-Claimant asked that the Claimant / CounterRespondent’s last submission not be taken into account, alleging that with
it the latter had introduced new arguments to which the Respondent /
Counter-Claimant had not been given the possibility to reply.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the
matter at stake. In this respect, the DRC took note that the present matter
was submitted to FIFA on 2 May 2017. Consequently, the DRC concluded
that the 2017 edition of the Rules Governing the Procedures of the Players’
Player A, Country B / Club C, Country D
7/13
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 in
combination with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2018) the DRC is competent to deal with the
matter at stake, which concerns an employment–related dispute with an
international dimension between a player of Country B and a club of
Country D.
3.
Furthermore, the DRC analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of
the matter. In this respect, the DRC confirmed that in accordance with art.
26 par. 1 and par. 2 of the aforementioned Regulations (edition 2018) and
considering that the present claim was lodged in front of FIFA on 2 May
2017, the 2016 edition of the Regulations on the Status and Transfer of
Players (hereinafter: the 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 members of 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.
With respect to the Respondent / Counter-Claimant’s request not to take
into consideration the final submission of the Claimant / CounterRespondent in which the latter allegedly brought forward new arguments,
the Chamber wished to highlight that the parties have had ample
opportunity to defend their case and present documentation. In any case,
recalling the Claimant / Counter-Respondent’s argument regarding art. 12
of the employment contract (cf. number I./32. above), the Chamber wished
to point out that, in general, the existence of a written warning or default
notice prior to the termination of an employment contract is examined ex
officio by the members of the deciding body.
6.
Having said that, the DRC firstly acknowledged that, on 4 August 2015, the
Claimant / Counter-Respondent and the Respondent / Counter-Claimant
signed and employment contract valid as from 1 August 2015 until 30 June
2020.
7.
In continuation, the DRC noted that, according to the Claimant / CounterRespondent, the Respondent / Counter-Claimant breached the contract
without just cause, allegedly having put him in a condition of intense
Player A, Country B / Club C, Country D
8/13
unease throughout the employment relationship, which, ultimately,
allegedly led to a situation of extreme psychological distress and put an
end to his football career. Namely, according to the Claimant / CounterRespondent, the unlawful behaviour of the Respondent / CounterClaimant consisted in that (i) he had been allowed to play for a very
limited amount of time during his stay at the Respondent / CounterClaimant, (ii) he had been excluded from the Respondent / CounterClaimant’s B team for unknown reasons from July until November 2016,
with the consequence of having to train on his own to stay fit, (iii) he had
been excluded from the restaurant of the team for unknown reasons, (iv)
he had been excluded from all the trainings without justification, (v) he
had to accept a change of the number of his jersey without reason and (vi)
he had been regularly excluded from friendly games 5 minutes before the
beginning of the match. In brief, the DRC noted that the Claimant /
Counter-Respondent claimed that the Respondent / Counter-Claimant‘s
stance was aimed at pushing him to terminate the contract and, basically,
not letting him execute it in the first place.
8.
On the other hand, the members of the Chamber noted that the
Respondent / Counter-Claimant, for its part, explained that the Claimant /
Counter-Respondent had not been fielded regularly due to his poor
performances, which was the reason why he had been sent on loan twice.
In addition, the DRC noted that, according to the Respondent / CounterClaimant, the Claimant / Counter-Respondent had been given substantial
playing time in several friendly matches.
9.
In continuation, the DRC observed that, according to the Respondent /
Counter-Claimant, after his last short period of trial at the club of Country
G, Club F, ending on 1 January 2017, the Claimant / Counter-Respondent
did not resume his duties in Country D at the Respondent / CounterClaimant’s premises without having been given the permission to do so.
The members of the Chamber noted that the Respondent / CounterClaimant indicated such circumstance as the reason to send the Claimant /
Counter-Respondent the correspondence dated 20 March 2017 in which it
declared that the latter’s abandonment of work had to be considered as a
termination without just cause.
10.
Furthermore, the DRC deemed worthwhile to point out that, with its
counterclaim, the Respondent / Counter-Claimant declared it was asking
EUR 190,000 as compensation for breach of contract rather than the higher
amount provided for in art. 14 of the employment contract, given the
reciprocal will of the parties to not continue working together.
11.
Having established the above, the DRC took note that the Respondent /
Counter-Claimant argued that it terminated the contract with its letter of
20 March 2017, in which it informed the Claimant / Counter-Respondent
that “in face of [his] persistent and prolonged absence from the training
sessions and competition […], [it] has no other option than to invoke [his]
abandonment of work”. The members of the Chamber further noted that,
Player A, Country B / Club C, Country D
9/13
in said correspondence, the Respondent / Counter-Claimant recalled art.
53, para. 4 of the Collective Bargaining Agreement (CBA), which, according
to the Respondent / Counter-Claimant, provides that “the abandonment of
work is considered as termination without just cause”.
12.
In this respect, the members of the Chamber deemed important to
underline that it was rather questionable whether the above-mentioned
correspondence could be considered a formal termination letter. To begin
with, the members of the Chamber deemed important to highlight that, in
that letter, the Respondent / Counter-Claimant did not explicitly state that
it was terminating the contract, but rather referred to the CBA of Country
D, reminding the Claimant / Counter-Respondent that according to said
collective bargaining agreement his abandonment of work had to be
considered a termination without just cause. In this regard, the DRC
considered important to add that the employment contract does not make
any reference to the CBA of Country D and that the Respondent / CounterClaimant did not submit any document regarding the invoked provisions.
Consequently, the DRC concluded that the Respondent / Counter-Claimant
did not terminate the contract on 20 March 2017 by means of its letter of
the same date.
13.
Having established that, the members of the DRC turned their attention to
the events at the core of the matter and noted, first and foremost, that it
remained uncontested that the Claimant / Counter-Respondent returned
to Country B in the beginning of January 2017 at the end of his short trial
period with Club F instead of returning to the Respondent / CounterClaimant.
14.
In this context, the Chamber noted that the Claimant / CounterRespondent blamed the Respondent / Counter-Claimant, and the
conditions the latter had allegedly put him in, for the psychological distress
he allegedly suffered and which was behind the decision to make his way
back home after his trial period in Country G. In this respect, the DRC
observed that the Claimant / Counter-Respondent himself acknowledged
having returned to Country B on 5 January 2017, following the advice of
his mother. In addition, the Chamber took note that the Claimant /
Counter-Respondent terminated the employment contract on 26 April
2017 invoking the situation he allegedly had encountered with the
Respondent / Counter-Claimant as described in his statement of claim.
15.
The members of the Chamber recalled that the Respondent / CounterClaimant contested the allegations of the Claimant / Counter-Respondent
relating to the alleged treatment he received from the Respondent /
Counter-Claimant and that the latter had explained that the poor
performance of the Claimant / Counter-Respondent was the reason why he
had not been fielded regularly.
16.
With regards to the Claimant / Counter-Respondent’s allegations relating
to his alleged treatment by the Respondent / Counter-Claimant, bearing in
Player A, Country B / Club C, Country D
10/13
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, the DRC concurred in the conclusion that the Claimant / CounterRespondent did not provide sufficient evidence corroborating the
allegations on the basis of which he terminated the employment contract.
More in particular, the members of the Chamber observed that the
Claimant / Counter-Respondent was not able to prove that he had been
excluded from the B team and substantially forced to train on his own.
Equally, the DRC observed that the Claimant / Counter-Respondent had
not provided evidence of his alleged exclusion from the restaurant of the
team or from the trainings, nor that he had been regularly excluded from
friendly games right before the beginning of the match. In other words,
the Chamber concluded that the Claimant / Counter-Respondent did not
provide sufficient evidence that, throughout the employment relationship,
the Respondent / Counter-Claimant had put in place a conduct
substantially aimed at alienating him from the rest of the team.
17.
In relation to the above, the members of the DRC agreed that the
exchange of messages with his former agent and the messages sent by his
mother and his new agent to the Respondent / Counter-Claimant in
December 2015 and in January 2017 presented by the Claimant / CounterRespondent in support of his position did not constitute enough evidence.
Furthermore, the members of the Chamber deemed important to mention
that the Claimant / Counter-Respondent informed the Respondent /
Counter-Claimant of his decision not to go back to Country D only a week
after having returned to Country B, via an e-mail sent on 13 January 2017
by his agent, who communicated that “it would be better for [the
Claimant / Counter-Respondent] to stay in Country B till the end of
January”. Moreover, the Chamber took into account that it has remained
undisputed that the Respondent / Counter-Claimant has regularly paid the
Claimant / Counter-Respondent’s salaries until April 2017.
18.
With all the foregoing in mind, the members of the Chamber had no other
option than to conclude that the Claimant / Counter-Respondent’s
behaviour was in breach of his contractual obligations and that he had no
just cause to terminate the employment contract.
19.
Furthermore, bearing in mind that the employment contract was already
terminated by the Claimant / Counter-Respondent prior to his further
correspondence of 31 May 2017 invoking sporting just cause for the
termination of the contract, the Chamber agreed that it was not necessary
to further analyse and discuss as to whether the Claimant / CounterRespondent may have had sporting just cause to terminate the contract.
20.
Consequently, the Chamber decided to reject the Claimant / CounterRespondent’s claim in its entirety.
21.
Having established the above, the members of the DRC turned their
attention to the Respondent / Counter-Claimant’s counterclaim. In this
Player A, Country B / Club C, Country D
11/13
respect, they found of utmost importance to analyse the Respondent /
Counter-Claimant’s stance throughout the employment relationship with
the Claimant / Counter-Respondent.
22.
First of all, the DRC highlighted that it was undisputed that, since the
beginning of the employment relationship, the Claimant / CounterRespondent had been assigned to the B team and that the Respondent /
Counter-Claimant had only occasionally fielded him in official matches. In
this respect, the members of the Chamber noted that the Respondent /
Counter-Claimant itself, in reply to the Claimant / Counter-Respondent
who raised this point in his claim, declared that it had fielded him on
various occasions during friendly matches.
23.
Furthermore, the Chamber noted that the Respondent / Counter-Claimant
declared it had sent the Claimant / Counter-Respondent initially on loan to
the club of Country B, Club E, and then on trial to the club of Country G,
Club F, because it was not satisfied with his performance. The Chamber
further noted that, in order to make its point even stronger, the
Respondent / Counter-Claimant added that the footballing skills displayed
by the Claimant / Counter-Respondent were so poor that none of the
above-mentioned clubs exercised the option to retain him. In other words,
the Respondent / Counter-Claimant appears to have shown an utter
dissatisfaction with the Claimant / Counter-Respondent’ services.
24.
Most importantly, the Chamber was eager to emphasise that the
Respondent / Counter-Claimant itself, in order to justify a request for
compensation in an amount different from the one provided for in the
contract, quite unequivocally stated that the parties had a reciprocal will
not to continue working together. In other words, the Respondent /
Counter-Claimant confirmed in its own submissions what it had practically
shown during the contractual relationship with the Claimant / CounterRespondent, namely that, for its part, it was not really interested in the
latter’s services.
25.
In addition, the members of the DRC observed that the Respondent /
Counter-Claimant did not put the Claimant / Counter-Respondent in
default of his absence. In this respect, the Chamber recalled that the first
notice that was sent by the Respondent / Counter-Claimant to the Claimant
/ Counter-Respondent was that of 20 March 2017, when the latter had
been unquestionably absent as of 5 January 2017.
26.
On account of all the above-described circumstances, the Chamber
concluded that the Respondent / Counter-Claimant was no longer
interested in pursuing its contractual relationship with the Claimant /
Counter-Respondent.
27.
Consequently, the Chamber decided to reject the Respondent / CounterClaimant’s counterclaim for payment of compensation in its entirety.
Player A, Country B / Club C, Country D
12/13
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is rejected.
2.
The counterclaim of the Respondent / Counter-Claimant, Club C, is
rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another
10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise
to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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