Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on a matter between the player
Player M, from country B
as Claimant / Counter-Respondent
and the club
Club A, from country G
as Respondent / Counter-Claimant
and the club
Club G, from country B
as intervening party
regarding an employment-related dispute arisen between the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant.
I.
Facts of the case
1.
On 16 January 2008, Player M, from country B (hereinafter: the Claimant / CounterRespondent or the player), born in July 1974, and Club A, from country G (hereinafter:
the Respondent / Counter-Claimant or the country G club), concluded an employment
contract (hereinafter: the contract) in country G and country S language, valid from the
date of its signature until 30 June 2009. Furthermore, on the same date, the parties also
signed an additional contract (hereinafter: the private agreement) in country B
language, referring to the contract.
2.
The contract, in its clause 4.1, provided for a monthly remuneration of EUR 1,735 as well
as a Christmas bonus amounting to a monthly salary, an Easter and a vacation bonus
amounting each to half a monthly salary (cf. clause 4.2 of the contract). According to
clause 4.4 of the contract, the player was entitled to receive an additional amount of
EUR 1,352,969 payable in 13 instalments, as follows:
EUR 228,426 on 18 January 2008,
EUR 74,969.53 on 30 April 2008,
EUR 74,969.53 on 30 May 2008,
EUR 74,969.53 on 30 June 2008,
EUR 74,969.53 on 30 July 2008,
EUR 74,969.53 on 30 August 2008,
EUR 74,969.53 on 30 September 2008,
EUR 74,969.53 on 30 October 2008,
EUR 74,969.53 on 30 November 2008,
EUR 74,969.53 on 30 December 2008,
EUR 149,939.06 on 30 January 2009,
EUR 149,939.06 on 28 February 2009,
EUR 149,939.06 on 30 March 2009.
3.
Clause 4.10 of the contract stipulates that the taxes shall be paid in accordance with the
country G legislation.
4.
According to the private agreement, the player was entitled to receive the net amount
of EUR 1,080,000 whereof an amount of EUR 180,000 was due after the his arrival in
country G and the medical tests; the balance was payable in monthly instalments of
EUR 60,000 each until March 2009, and the player was also entitled to the following
additional bonuses:
Player M, from country B / Club A, from country G / Club G, from country B
2/21
the amount of EUR 100,000 in case of winning the country G championship;
the amount of EUR 75,000 in case the country G club would qualify for the UEFA
Champions League;
the amount of EUR 50,000 in case the player would score more than ten goals;
the amount of EUR 50,000 in case the country G club would qualify for the UEFA
Cup.
5.
Furthermore, the parties agreed that the player should be entitled to a car and a house
for his own use, as well as an air ticket for himself and his family per season (cf.
clause 4.3 of the contract). According to the private agreement, the player should also
receive three return air tickets country G – country B – country G per year.
6.
Moreover, according to clause 4.11 of the contract, the parties agreed that the player
should receive the amount of EUR 1,000,000 in case the country G club would breach
the contract within the protected period. In case the player would breach the contract
within the protected period, he would be obliged to pay an amount of EUR 3,000,000
to the Respondent / Counter-Claimant (cf. clause 5.5 of the contract). The same amount
should be payable in case the player wanted to “buy out” the remaining time of the
contract (cf. clause 5.6 of the contract).
7.
With regard to the decision-making bodies, clause 10 of the contract stipulates that
each dispute should be decided by the “Cámara de Primer Grado de Resolución de
Disputas Económicas” and the “Tribunal Arbitral de la country G Football Federation”
as court of appeal.
8.
On 21 July 2008, the Claimant / Counter-Respondent lodged a complaint, erroneously
dated 29 July 2009, before FIFA claiming that the Respondent / Counter-Claimant did
not fulfil its contractual obligations.
9.
In this respect, the Claimant / Counter-Respondent held that the Respondent / CounterClaimant did not pay the three instalments (provided for in the contract) due in April,
May and June 2008, for a total amount of EUR 224,908.59. Furthermore, the country G
club allegedly also failed to pay the amount of EUR 50,000 as bonus for the
qualification in the UEFA Cup. Moreover, the Claimant / Counter-Respondent stated
that the Respondent / Counter-Claimant did not provide him with the scheduled air
tickets. Therefore, the Claimant / Counter-Respondent asked for the termination of the
contract, and for the payment of a total amount of EUR 1,274,908.59 as set out below:
the sum of EUR 1,000,000 as compensation for breach of contract (cf. clause 4.11 of
the contract);
the sum of EUR 224,908.59 corresponding to the instalments for April, May and
June 2008;
Player M, from country B / Club A, from country G / Club G, from country B
3/21
the amount of EUR 50,000 corresponding to the bonus due to the qualification for
the UEFA Cup.
10.
In its statement of defence, the Respondent / Counter-Claimant informed FIFA that it
had not been contacted by the Claimant / Counter-Respondent as from May 2008, but
that the latter player had informed it that he was injured and had, therefore, to stay in
country B for his treatment.
11.
As per its own statements, the Respondent / Counter-Claimant reportedly lodged a
claim against the player before the country G Football Federation. Still according to it,
the Claimant / Counter-Respondent reacted by lodging his claim in front of FIFA. Finally,
the Respondent / Counter-Claimant added that the “Committee of the Dispute
Resolution” of the country G Football Federation would also have to decide about the
player’s request to be released.
12.
In his replication, the Claimant / Counter-Respondent stated that he had sent a letter to
the Respondent / Counter-Claimant, informing the latter club about his injuries and
attaching the corresponding confirmation of his doctor.
13.
With regard to the claim lodged by the Respondent / Counter-Claimant in country G,
the player held that he neither received any correspondence from the Respondent /
Counter-Claimant, nor from the country G Football Federation. In addition, the
Claimant / Counter-Respondent stated that his claim in front of FIFA preceded the
country G club’s claim before the country G Football Federation, as proven by the
correspondence sent to the Respondent / Counter-Claimant on 18 June 2008, the
minutes of the hearing sent to the country B Football Confederation on 10 July 2008,
and the claim sent to FIFA on 18 July 2008.
14.
On 10 September 2008, the country G Football Federation informed FIFA that an oral
hearing had taken place on 25 August 2008, and that the Committee was composed of
five members, being the chairman, two clubs representatives and two player or coach’s
representatives.
15.
In its rejoinder, the Respondent / Counter-Claimant repeated its previous comments,
and mentioned that it had agreed with the player to compensate everything as soon as
he would return to country G. As evidence, the Respondent / Counter-Claimant referred
to the player’s correspondence (cf. point I./12.), in which he had informed the
Respondent / Counter-Claimant about his injuries, however, without mentioning any
financial issues. Nevertheless, pursuant to the Respondent / Counter-Claimant, the
player should have returned to country G despite his injuries. In this respect, the
Respondent / Counter-Claimant added that it had reserved a ticket in the name of the
player for 16 June 2008.
Player M, from country B / Club A, from country G / Club G, from country B
4/21
16.
Finally, the Respondent / Counter-Claimant provided FIFA with copies of various media
articles with photos, which show the player surfing and on holiday during the time he
was allegedly injured. Therefore, the Respondent / Counter-Claimant questioned the
injuries of the player.
17.
On 22 September 2008, the Respondent / Counter-Claimant provided FIFA with a copy
of the decision taken on 15 September 2008 by the “Committee of Financial
Resolutions” of the country G Football Federation , which was apparently notified to
the parties on the next day, i.e. on 16 September 2008. Since the claim of the country G
club was only partially accepted, the latter club apparently lodged an appeal before the
country G Football Federation. According to the Respondent / Counter-Claimant, the
main point was that it had already reduced the sum for compensation from
EUR 3,000,000 as stipulated in the contract to EUR 1,000,000 but the Committee still did
not accept such amount of compensation.
18.
Later on, the Claimant / Counter-Respondent stated that, as a reaction to his claim,
members of the country G club removed his stuff from his house. Furthermore, the
Claimant / Counter-Respondent also mentioned that the Respondent / Counter-Claimant
could not prove that it had fulfilled its contractual obligations, and added that he did
not receive any air tickets. According to the Claimant / Counter-Respondent, he did not
return to country G due to the absence of the “requirements” as well as to the
unilateral breach committed by the Respondent / Counter-Claimant.
19.
Moreover, the Claimant / Counter-Respondent referred to the contract, and stated that
the unequal amounts of compensation for the country G club and him would not
correspond to the principle of “equal treatment” of the parties.
20.
On 28 February 2011, the country G Football Federation informed FIFA that the player
did not appear before its Committees, and also provided FIFA with the decisions taken
in front of said committees.
21.
Pursuant to the decision taken by the “First Instance Financial Disputes Resolution
Committee” (hereinafter: the Committee) on 15 September 2008, the player was
neither present, nor represented at the hearing of 25 August 2008, and “did not attend
at the entry of the case”, even though he was allegedly notified with the claim of the
country G club dated 16 July 2008, and also duly summoned.
22.
In order to pass said decision, the aforementioned Committee was composed of a
chairman, a reporting justice and three members. They partially accepted the country G
club’s claim by recognising the termination of the contract by default of the player and
ordering the latter to “the refund of the voucher” to the Respondent / CounterClaimant, as well as to pay the court fees in the amount of EUR 400.
Player M, from country B / Club A, from country G / Club G, from country B
5/21
23.
After an appeal of the country G club before the “Court of Arbitration of the country G
Football Federation” (hereinafter: the Court of Arbitration), a further decision was
taken on 26 May 2009. In order to pass said decision, said Court of Arbitration was
composed of a chairman, a reporting justice and a member. According to the minutes
of said decision, the player neither showed up at the hearing on 2 December 2008, nor
was represented, even though he had allegedly been legally and duly summoned. In
particular, the Court of Arbitration rejected “the appeal as inadmissible due to absence
of voucher”.
24.
On 5 October 2011, in its final position, the Respondent / Counter-Claimant alleged that
it did not receive the first claim of the Claimant / Counter-Respondent which was sent
to FIFA around July or August 2008, but only the “second” claim, which was submitted
in July 2009 (cf. point I./8. above). In this respect, the Respondent / Counter-Claimant
referred to the contract, according to which the parties had agreed to the jurisdiction
of the Committee as first instance and to the Court of Arbitration as appeal body. Since
the Committee and the Court of Arbitration allegedly guarantee fair proceedings and
respect the principle of equal representation of players and clubs, FIFA would, so the
Respondent / Counter-Claimant, not be competent. Furthermore, the Respondent /
Counter-Claimant stated that the competent country G deciding bodies already took a
decision. Consequently, the Respondent / Counter-Claimant stated that the DRC is not
competent to deal with the present matter due to the principle of “res judicata”.
25.
The Respondent / Counter-Claimant also provided FIFA with its position as regards the
substance of the matter, in case the DRC would not follow the general legal principle of
“res judicata”.
26.
In this regard, according to the Respondent / Counter-Claimant, the player allegedly left
it, since he was appointed only as a substitute for the last match of the season on
17 May 2008. However, the Respondent / Counter-Claimant made clear that if the
player would not show up at its place on 1 July 2008, it would terminate the contract
retroactively by 16 January 2008 due to default of the player. The Claimant / CounterRespondent repeated in a letter dated 27 June 2008 that he was injured and asked for
the country G club’s authorisation to stay in country B for his treatment. However, the
Claimant / Counter-Respondent allegedly mentioned for the first time in said letter that
there were outstanding payments, and that the Respondent / Counter-Claimant should
also provide him with air tickets.
27.
With regard to the statements of the Claimant / Counter-Respondent that several
salaries were outstanding, the Respondent / Counter-Claimant stated that at the
moment when the player left country G, the mere instalment of April 2008, i.e. the
amount of EUR 59,075.98 was outstanding since two weeks only. Therefore, the
Claimant / Counter-Respondent had allegedly no reason to terminate the contract when
he went to country B. Even in June 2008, at the most two salaries had become due. In
Player M, from country B / Club A, from country G / Club G, from country B
6/21
continuation, the Respondent / Counter-Claimant also pointed out that the Claimant /
Counter-Respondent had allegedly received, following his request, an advance of
payment corresponding to his salary for the first three months, i.e. the amount of EUR
180,000. Moreover, the Respondent / Counter-Claimant underlined that the Claimant /
Counter-Respondent had allegedly never put it in default, and that he was, therefore,
anyway not allowed to terminate the contract.
28.
As a consequence, the Claimant / Counter-Respondent had no valid reason to terminate
the contract of 16 January 2008, and, therefore, the DRC, in case it would consider itself
competent, should reject the Claimant / Counter-Respondent’s claim, and decide that
the latter player had breached the contract.
29.
As to the amounts claimed, the Respondent / Counter-Claimant stated that the amount
of EUR 224,908.59 would correspond to a gross amount, but that the net amount of
April, May and June 2008 would add up to EUR 177,227.97. In addition, the bonus for
the qualification to the UEFA Cup was not yet due at the time when the player
breached the contract, and, finally, a compensation amounting to EUR 1,000,000 should
be rejected, since it was the Claimant / Counter-Respondent who had breached the
contract. In any event, such amount would be disproportionate and would have to be
reduced by any amount earned by the player until 30 June 2009.
30.
Equally, as an alternative motion, in case the DRC would consider itself competent, the
Respondent / Counter-Claimant lodged a counterclaim against the Claimant / CounterRespondent on 5 October 2011. In particular, the country G club requested the DRC to
decide that the Claimant / Counter-Respondent had breached the contract and is liable
to pay compensation for breach of contract. Since the Claimant / Counter-Respondent
has retired from professional football, according to the Respondent / Counter-Claimant,
a decision of the DRC would not be enforceable, and, therefore, the Respondent /
Counter-Claimant claimed a compensation corresponding to the sum, which might have
been due and outstanding to the player until the moment of his breach of contract.
31.
In reply to the Respondent / Counter-Claimant’s counterclaim, the Claimant / CounterRespondent insisted on FIFA’s competence to decide in the present matter. The
documentation presented by the Respondent / Counter-Claimant with delay would not
prove the contrary to the Claimant / Counter-Respondent’s claim.
32.
With regard to FIFA’s request if he had entered into a new labour relationship between
May 2008 and 30 June 2009, the player mentioned that on 15 January 2009, after the
“liberalisation granted by FIFA”, he concluded an employment contract (hereinafter:
the new contract) with the country B club, Club G (hereinafter: the intervening party or
the country B club), valid from the date of its signature until 10 May 2009.
Player M, from country B / Club A, from country G / Club G, from country B
7/21
33.
As agreed in the new contract, the player was entitled to receive a monthly salary of
currency of country B 10,000 for his services. The salary had to be paid on every 5th
working day of the month, starting one month after the signature of the new contract.
34.
The new contract also stipulated that in case of failure in the present matter (i.e. the
dispute between the player and Club A, the Claimant / Counter-Respondent would
exclusively be responsible “for bearing the burden from this litigation [the present
matter], exonerating the employer of the joint liability”.
35.
In continuation, the Claimant / Counter-Respondent stated that the DRC shall revise the
decisions taken in country G, since the Respondent / Counter-Claimant did not provide
any documentary evidence and the decision-making bodies notified their
correspondence to Club A, when the player was no longer living there.
36.
Upon FIFA’s request to provide the pertinent regulations and procedural rules, the
country G Football Federation provided FIFA with a copy of its Statutes (edition 2008)
and the Procedural Rules of the Dispute Resolution Committees (edition 2002;
hereinafter: the Procedural Rules of the country G Football Federation), which were in
force at the time the decision was taken by its tribunal. However, the country G
Football Federation did not provide a copy of the Regulations for the Status and
Transfer of Players of the country G Football Federation (hereinafter: the Regulations of
the country G Football Federation), but informed FIFA that the decision passed by the
Committee was based on the 2008 edition. Therefore, the following information is
based on the edition 2008 of the Regulations of the country G Football Federation,
which was provided to FIFA by the country G Football Federation in other cases.
In particular, the mentioned regulations stated the following:
a)
with regard to the jurisdiction of the Committee:
Art. 41 G. 5. of the country G Football Federation Statutes stipulates that the
Committee is competent to resolve financial disputes between players and
professional clubs.
According to art. 20 par. 2 of the country G Football Federation Regulations, the
latter federation is, inter alia, competent to hear employment-related disputes
between a club and a player. In particular, art. 22 par. 2 of said regulations provides
that the “Appeals Committee for the Resolution of Financial Disputes” (hereinafter:
the Appeals Committee; NB: according to the acronym, the Appeals Committee and
the Committee are identical. The Procedural Rules mention the Committee, while
the Regulations use the term Appeals Committee.) is, inter alia, competent to hear
disputes mentioned in art. 20 par. 2 of the country G Football Federation
Regulations.
Art. 41 G. 2b. of the country G Football Federation Statutes provides that the Court
of Arbitration is competent to “resolve at second degree the disputes settled by the
Player M, from country B / Club A, from country G / Club G, from country B
8/21
Dispute Resolution Committee between player or coaches and Professional Football
Clubs”.
b) with regard to its composition:
In accordance with art. 41 G. 5. of the country G Football Federation Statutes and
art. 22 par. 1 of the country G Football Federation Regulations, the Committee is
composed of five members. In this respect, said article of the Statutes specified the
composition as follows: a chairman, which is a “higher judiciary”, two members
appointed by the Board of Directors of the country G Professional Players
Association, and two members appointed by the Board of Directors of Professional
Associations. “The Committee is legally constituted if all present members thereof,
including the Chairman or his substitute, are more than the ones absent” (cf. art. 4
of the country G Football Federation Procedural Rules).
Art. 41 G. 1. of the country G Football Federation Statutes stipulates that the Court
of Arbitration is composed of three members: the president, which has to be a
“supreme active judiciary” as well as two members, which are “appointed each by
each party”.
c)
with regard to the possibility to lodge an appeal (cf. point 36. a) above):
Art. 22 par. 5 of the Regulations of the country G Football Federation stipulates
that “the rulings of the Appeals Committee for the Resolution of Financial Disputes
(PEEOD) may be appealed before the Court of Arbitration of the country G
Football Federation. (Appeals Division), within 8 days past the notification thereof
[…]”.
d) with regard to the adoption:
The Procedural Rules of the country G Football Federation entered into force on 1
January 2002.
The Regulations of the country G Football Federation were amended, codified and
approved by the resolution of the “General Assembly of the Member Associations”
of the HFF on 4 June 2008 (cf. art. 27 par. 2 of the country G Football Federation
Regulations)
The Statutes of the HFF are dated 4 June 2008.
37.
Furthermore, the country G Football Federation also informed FIFA about the taxation
applicable to professional football players in country G during the season 2008/09. In
this respect, the country G explained that in accordance with the pertinent legislation
(art. 14 par. 2 of the Law 2238/1994 and its amendments), “the funds paid to football
players from professional football clubs (“Football Societés Anonymes”) are taxed
separately at a tax rate of 20% and the resulting tax is withheld in payment”.
Player M, from country B / Club A, from country G / Club G, from country B
9/21
38.
Despite having been requested to do so, the intervening party did not provide FIFA
with any comments.
*****
Player M, from country B / Club A, from country G / Club G, from country B
10/21
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 in hand. In this
respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber. The present matter
was submitted to FIFA on 21 July 2008, thus, after the aforementioned Rules entered
into force on 1 July 2008. Therefore, the Chamber concluded that the edition 2008 of
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC) (hereinafter: the Procedural Rules) is applicable to the
matter at stake.
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 b) of the Regulations on the Status and Transfer of Players (editions 2010, 2009
and 2008; hereinafter: the FIFA Regulations), the Dispute Resolution Chamber shall
adjudicate on employment-related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be the
competent body to decide on the present litigation between a country B player and a
country G club, involving a country B club regarding the alleged breach of an
employment contract.
4.
Notwithstanding the above, the Chamber acknowledged that the Respondent /
Counter-Claimant contested the competence of FIFA to hear the present matter due to
the fact that the latter had already been dealt with as to the substance first by the
“First Instance Financial Disputes Resolution Committee” (hereinafter: the Committee)
and then by its appeal body, i.e. the “Court of Arbitration of the country G Football
Federation” (hereinafter: the Court of Arbitration).
5.
In this regard, the Chamber observed that the player argued that he has never been
notified of the on-going proceedings before the respective deciding bodies of the
country G Football Federation, and, therefore, did not enter an appearance, neither
before the Committee, nor before the Court of Arbitration. In fact, the pertinent
decisions had been passed in the absence of the player. In addition, the DRC noted that,
by referring the matter to FIFA prior to the national bodies passing their decision, and
following the Claimant / Counter-Respondent’s statements during the present
proceedings, the latter player has clearly expressed his objection to the jurisdiction of
the national bodies.
Player M, from country B / Club A, from country G / Club G, from country B
11/21
6.
Taking into account the foregoing, the DRC emphasized that it was necessary to
determine which is the competent body within the system of dispute resolution related
to football able to decide on the present matter; in other words, the competence of a
national deciding body on the one hand, and of FIFA, on the other hand, has to be
determined.
7.
In this respect, the Dispute Resolution Chamber referred to art. 22 lit. b) of the FIFA
Regulations, according to which it is competent to hear a matter such as the one at
stake (cf. points II./2. and 3. above), unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal representation of
players and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the standards to
be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the
Chamber referred to FIFA Circular no. 1010 dated 20 December 2005.
8.
Subsequently, the Chamber acknowledged that, even though pursuant to the
documentation presented by the country G Football Federation, it would appear that
the relevant national deciding bodies may formally be composed of an equal number of
players and clubs representatives, the documents provided by the country G Football
Federation have shown, that the matter at stake was actually decided by three
members of the Committee and one member of the Court of Arbitration; this is, an
obviously unequal representation of players and clubs.
9.
In conclusion, the Dispute Resolution Chamber recalled that the Respondent / CounterClaimant could not prove that both national bodies, i.e. the Committee and the Court
of Arbitration, comply with the minimal procedural standards in order to be recognised
as an independent arbitration tribunal, as established in art. 22 lit. b) of the FIFA
Regulations as well as in the FIFA Circular no. 1010, and, consequently, considered that
neither the Committee nor the Court of Arbitration can be recognised.
10.
Furthermore, the members of the Chamber observed that the employment contract at
the basis of the dispute contains an arbitration clause in favour of the Committee and
of the Court of Arbitration. However, the DRC recalled again that the Claimant /
Counter-Respondent has not even been informed about the proceedings before said
national bodies, and has contested their competence during the present proceeding.
11.
As a result, and taking into consideration all of the above circumstances, the Dispute
Resolution Chamber concluded that the argument of the general legal principle of “res
judicata” invoked by the Respondent / Counter-Claimant cannot be applied to the
matter at stake.
Player M, from country B / Club A, from country G / Club G, from country B
12/21
12.
In view of all the above, the Chamber established that the Respondent / CounterClaimant’s objection to the competence of FIFA in order to hear the present dispute has
to be rejected, and that the Dispute Resolution Chamber is therefore competent, on the
basis of art. 22 b) of the FIFA Regulations, to consider the present matter as to the
substance.
13.
In continuation, the Chamber analysed which edition of the FIFA Regulations should be
applicable as to the substance of the matter. In this respect, it referred, on the one
hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2010 and 2009), and, on the other hand, to the fact that the present claim was
lodged in front of FIFA on 21 July 2008, and that the relevant employment contract at
the basis of the dispute was signed on 16 January 2008. The DRC concluded that the
previous version of the regulations; i.e. the 2008 edition of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations), is applicable to the matter
in hand as to the substance.
14.
Subsequently, the Dispute Resolution Chamber turned its attention to art. 25 par. 5 of
the Regulations, according to which the latter shall not hear any case subject to these
regulations if more than two years have elapsed since the event giving rise to the
dispute.
15.
In this respect, the Chamber firstly noted that the Respondent / Counter-Claimant
argued that the claim of the player was time-barred. However, the DRC observed that
the latter’s claim was received by FIFA on 21 July 2008 while the event giving the rise to
the dispute; this is, the termination of the contract, happened at the end of June 2008.
16.
Therefore, the members of the Chamber came to the firm conclusion that, in casu, less
than two years had elapsed between the event giving rise to the dispute and the
submission of the present claim to FIFA by the Claimant / Counter-Respondent, and
that, therefore, the claim of the player can be heard by the Dispute Resolution
Chamber.
17.
Reciprocally, the DRC noted that the Respondent / Counter-Claimant itself lodged its
counterclaim against the Claimant / Counter-Respondent on 5 October 2011 only, i.e.
more than three years after the event giving the rise to the dispute.
18.
Consequently, the Chamber had no other alternative than to declare the counterclaim
of the Respondent / Counter-Claimant time-barred in accordance with art. 25 par. 5 of
the Regulations.
Player M, from country B / Club A, from country G / Club G, from country B
13/21
19.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter by recalling that on
16 January 2008, the parties had concluded an employment contract and a private
agreement with a validity starting as from the date of their signature until 30 June
2009.
20.
First of all, the DRC took into account that, on the one hand, the Claimant / CounterRespondent asserted that the Respondent / Counter-Claimant had breached the
contract by not fulfilling its financial obligations.
21.
On the other hand, however, the Respondent / Counter-Claimant alleged that the
player had breached the contract by not returning to the club.
22.
Bearing in mind these two contradictory positions, the Chamber referred to the
documentation on file and observed that according to the Respondent / CounterClaimant, the player had left the club after the last match of the country G season on
17 May 2008, and did not return on 1 July 2008, when the Respondent / CounterClaimant had apparently asked him to do so. The Claimant / Counter-Respondent, for
his part, did not contest this declaration.
23.
Consequently, the DRC concluded that the Claimant / Counter-Respondent had
terminated the contract by not returning to the club on 1 July 2008.
24.
In line with the above, the members of the Chamber went on to deliberate whether the
facts of the case constitute a just cause for the player to prematurely terminate his
employment relationship.
25.
In this respect, the DRC noted that according to the Claimant / Counter-Respondent, the
country G club had failed to pay him three instalments provided for in the contract, i.e.
from April until June 2008, in a total amount of EUR 224,908.59 as well as the bonus
due to the qualification for the UEFA Cup amounting to EUR 50,000. In particular,
according to the Claimant / Counter-Respondent, a total amount of EUR 274,908.59 was
outstanding at that time.
26.
On the other hand, the Respondent / Counter-Claimant never contested not having paid
the above-mentioned amounts. Consequently, the Chamber concluded that the salaries
of April and May 2008, as well as the bonus for the qualification to the UEFA Cup were
outstanding, and the salary of June 2008 had just become due.
Player M, from country B / Club A, from country G / Club G, from country B
14/21
27.
Moreover, as it appears that even the Respondent / Counter-Claimant, which contested
that the Claimant / Counter-Respondent had put him in default, admitted having
received a letter from said player on 27 June 2008 informing it, inter alia, about the
outstanding payments, the Dispute Resolution Chamber concluded that the Claimant /
Counter-Respondent had put the Respondent / Counter-Claimant in default.
28.
In view of the above, the Chamber considered that, in the present matter, it can be
established that the Respondent / Counter-Claimant violated the terms of the
employment contract and of the private agreement, by failing to remit the due
remuneration during a considerable period of time without any valid reason.
29.
In this regard, the Chamber concluded that the Respondent / Counter-Claimant´s
behaviour constitutes a clear breach of contract, which, in accordance with its wellestablished jurisprudence, has reached such a level that the player suffering the breach
was entitled to unilaterally terminate the contractual relationship prematurely and with
immediate effect.
30.
Having stated the above, the DRC turned its attention to the question of the
consequences of such a breach of contract committed by the country G club during the
protected period.
31.
First of all, the Chamber decided that the Respondent / Counter-Claimant has to pay the
outstanding remuneration to the Claimant / Counter-Respondent. In this respect, the
DRC referred to the statement of the Respondent / Counter-Claimant, according to
which the amounts stipulated in the contract were gross, and, therefore, the net
amount of the instalments scheduled in the contract from April until June 2008 would
amount to EUR 177,227.97 and not to EUR 224,908.59 as alleged by the Claimant /
Counter-Respondent (cf. point II./25. above).
32.
In reference to the wording of the contract, in particular of its clause 4.10, the Chamber
observed that the relevant amounts in the contract were indeed indicated as being
gross. On the other hand, the DRC acknowledged that the instalments stipulated in the
private agreement were explicitly called net amounts. Regarding the bonuses, said
private agreement does not mention if the amounts due were net or gross. However,
observing that contrary to the contract, the private agreement does not contain any
reference to the country G tax law, the members of the Chamber concluded that such
bonuses were also meant to be payable net.
Player M, from country B / Club A, from country G / Club G, from country B
15/21
33.
Having stated the above, the DRC turned its attention to the fact that the parties had
concluded two agreements in two/three different languages, i.e. the employment
contract and the private agreement. While the contract stipulates gross amounts, the
private agreement provides for net amounts. However, the total amount due during
the course of the employment relationship between the parties remains the same by
deducting the taxes – as it was confirmed by the country G Football Federation – from
the gross amounts indicated in the contract. Furthermore, the DRC took into account
that neither party alleged that the amounts should be paid double by the country G
club. Therefore, the Chamber unanimously concluded that it was the parties’ intention
to conclude a contract value of EUR 1,352,969 gross and of EUR 1,080,000 net
respectively.
34.
Taking into account the considerations above, the members of the Dispute Resolution
Chamber concluded that the sum of the instalments from April until June 2008 amounts
to EUR 180,000. Additionally, the bonus for the qualification to the UEFA Cup was of
EUR 50,000. After all, the DRC came to the conclusion that the total amount due to the
player as outstanding remuneration is of EUR 230,000.
35.
Turning its attention to the further consequences of the breach of contract committed
by the country G club, the Chamber was eager to point out that the measures provided
for by the Regulations concerning in particular compensation for breach of contract
serve as a deterrent discouraging the early termination of employment contracts by
either contractual party, and that a lack of a firm response by the competent deciding
authorities would represent an inappropriate example towards all the football
stakeholders.
36.
In this respect, awarding compensation in favour of the damaged party (either the
player or the club, as the case may be) has proven to be an efficient means, and has
always found a widespread acceptance since it guarantees that the fundamental
principle of the respect of the contracts is duly taken care of.
37.
Above all, it was emphasised that the criteria contained in art. 17 of the Regulations are
applied with the principle of reciprocity for clubs and players, signifying that both clubs
and professionals, who are seen to have committed a breach of contract without just
cause, will in all cases be subject to pay compensation, and, under specific circumstances,
also subject to the imposition of sporting sanctions.
38.
Having stated the above, the DRC focussed its attention on the calculation of the
amount of compensation for breach of contract in the matter 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
Player M, from country B / Club A, from country G / Club G, from country B
16/21
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 as well as the fees and expenses paid or
incurred by the former club (amortised over the term of the contract) and whether the
contractual breach falls within a protected period. The Dispute Resolution Chamber
recalled that the list of objective criteria is not exhaustive and that the broad scope of
criteria indicated tends to ensure that a just and fair amount of compensation is
awarded to the prejudiced party.
39.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the relevant employment contract between the parties contains a
provision by means of which the parties had beforehand agreed upon an amount of
compensation for breach of contract.
40.
In this respect, the DRC took into account the Claimant / Counter-Respondent’s
argument, according to which, the calculation of the compensation should be based on
clause 4.11 of the employment contract. The Claimant / Counter-Respondent asked,
based on said clause, for the amount of EUR 1,000,000 as compensation for breach of
contract.
41.
In fact, clause 4.11 stipulates the amount due, i.e. EUR 1,000,000 in case of breach of
contract by the club. Should the player breach the contract, the compensation would
amount to EUR 3,000,000 (cf. clause 5.5 of the contract).
42.
With regard to the point above, the Chamber deemed it important to highlight that
said clauses are not reciprocal. Consequently, the Dispute Resolution Chamber
unanimously concluded that both clauses are invalid, i.e. that the calculation of the
compensation due to the Claimant / Counter-Respondent cannot be based on clause
4.11 and/or 5.5 of the contract.
43.
As a consequence, the members of the Chamber determined that the prejudice suffered
by the player in the present matter had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. In this regard, the Dispute
Resolution Chamber emphasized beforehand that each request for compensation for
contractual breach has to be assessed by the Chamber on a case-by-case basis taking
into account all specific circumstances of the respective matter, as well as the Chamber’s
specific knowledge of the world of football and its experience gained throughout the
years.
Player M, from country B / Club A, from country G / Club G, from country B
17/21
44.
In the calculation of the amount of compensation due by the Respondent / CounterClaimant, the Chamber then turned its attention to the remuneration and other
benefits due to the player under the existing contract and/or the new contract, criterion
which was considered to be essential by the Chamber. The members of the Chamber
deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations
allows the Chamber to take into account both, the existing and the new contract, in the
calculation of the amount of compensation.
45.
On this basis, and in order to evaluate the compensation to be paid by the Respondent /
Counter-Claimant, the members of the Chamber took into account the remuneration
due to the player in accordance with the contract, as well as the time remaining on the
same contract and the professional situation of the Claimant / Counter-Respondent
after the early termination occurred until 30 June 2009, date on which the contract had
been set to expire.
46.
Based on the documentation on file, the DRC established that the remaining value of
the employment contract can be calculated as corresponding to the net amount of
EUR 720,000 net.
47.
On the other hand, the members of the Chamber took into account the position of the
player, according to which, on 15 January 2009, he had concluded a new contract with
the intervening party valid until 10 May 2009. The Claimant / Counter-Respondent and
the country B club had agreed upon a monthly salary of currency of country B 10,000
apparently to be paid between February and May 2009.
48.
In sum, the Chamber concluded that the amount of compensation for breach of
contract to be paid by the country G club to the player is firstly composed of the
amount of EUR 720,000 being the reflection of the remuneration due to the Claimant /
Counter-Respondent under the previous contract. On the other hand, the DRC deducted
the remuneration of currency of country B 40,000 with the country B club. However, the
Chamber questioned if the difference of EUR 707,000 was an appropriate and justified
amount of compensation to be awarded to the Claimant / Counter-Respondent.
49.
In this respect, the members of the Chamber finally deemed it imperative to emphasise
that, on the one side, the sanctioning nature of the provisions contained in art. 17 of
the Regulations cannot be disregarded.
50.
However, on the other side, the DRC deemed it also important to consider the
particularity of the present matter. In this respect, the Chamber recalled that the player
had put the club in default only three days before he should have returned to the
country G club.
Player M, from country B / Club A, from country G / Club G, from country B
18/21
51.
Furthermore, the members of the Chamber also wished to highlight that the player
instead of returning to the country G club for medical examination, as requested by the
latter club, preferred not to return to the latter club at all.
52.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the matter at hand, the Chamber decided that the Respondent / CounterClaimant must pay to the Claimant / Counter-Respondent the amount of EUR 350,000 as
compensation for breach of contract.
53.
In conclusion, the Dispute Resolution Chamber decided to partially accept the complaint
of the Claimant / Counter-Respondent by obliging the Respondent / Counter-Claimant
to pay outstanding remuneration in the amount of EUR 230,000 and the amount of
EUR 350,000 as compensation for breach of contract.
*****
Player M, from country B / Club A, from country G / Club G, from country B
19/21
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Player M, is partially accepted.
2.
The Respondent / Counter-Claimant, Club A, has to pay to the Claimant / CounterRespondent, Player M, the amount of EUR 580,000 within 30 days as from the date of
notification of this decision.
3.
Any further requests filed by the Claimant / Counter-Respondent, Player M, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an interest
rate of 5% per annum will apply as of expiry of the fixed time limit until the date of
effective payment, and the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for its consideration and a formal decision.
5.
The Claimant / Counter-Respondent, Player M, is directed to inform the Respondent /
Counter-Claimant, Club A, 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.
6.
The counterclaim of the Respondent / Counter-Claimant, Club A, is not admissible.
*****
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).
Player M, from country B / Club A, from country G / Club G, from country B
20/21
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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player M, from country B / Club A, from country G / Club G, from country B
21/21