Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 March 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player S, from country F
as Claimant / Counter-Respondent
against the club,
Club N, from country C
as Respondent / Counter-Claimant
and the club
Club A, from country L
as Intervening Party
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 22 July 2008, Player S, from country F (hereinafter: the Claimant / CounterRespondent), and Club N, from country C (hereinafter: the Respondent /
Counter-Claimant), signed an employment contract (hereinafter: the contract)
valid as from the date of signature until 31 May 2010. In addition, on 10 July
2009, the parties signed an amendment agreement (hereinafter: the
amendment agreement).
2.
According to the contract - and its further amendment - enclosed by the
Claimant / Counter-Respondent, he was, inter alia, entitled to receive the
following net amounts:
a) Contract:
- EUR 15,000 “will take with the signing of the contract”;
- EUR 45,000 for the season 2008-2009 paid in ten equal installments of EUR
4,500 each;
- EUR 20,000 “will take with the signing of the contract”;
- EUR 65,000 for the season 2009-2010 paid in ten equal installments of EUR
6,500 each;
- EUR 600 per month for accommodation;
- two return plane tickets for the player and his family.
b) Amendment agreement:
- EUR 65,000 for the season 2009-2010 paid in ten equal installments of EUR
6,500 each.
3.
Furthermore, by means of the amendment agreement, the rescission clause of
the contract, which was set at the amount of EUR 50,000, was amended to EUR
20,000.
4.
Clause 3 of the amendment agreement states: “In the case that the Club fail to
pay the Player any installment more than 45 days, then the present
Amendment Agreement is automatically cancelled and it produce no legal
effects. In such case the Original Agreement dated 22/07/2008 shall be the only
valid agreement between the parties”.
5.
Clause 33 of the contract and clause 4 of the amendment agreement state the
following: “This agreement is to be governed by country C Law and/or Rules of
the country C Football Association and country C Football Association’s
committees shall have exclusive jurisdiction to adjudicate on any dispute”.
Player S, from country F / Club N, from country C / Club A, from country L
2/15
6.
On 1 March 2010, the Claimant / Counter-Respondent lodged a claim against
the Respondent / Counter-Claimant in front of FIFA, indicating that the
Respondent / Counter-Claimant had unilaterally terminated the contract on 8
February 2010 without any justified reason. Therefore, the Claimant / CounterRespondent requested to be awarded with the following amounts:
-
EUR 26,000 as outstanding salaries for the months October, November
and December 2009 and January 2010;
EUR 20,000 “that he ought to receive upon renewal of the employment
contract for the football season 2009/2010”;
EUR 26,000 as compensation for the breach of contract, for the months of
February until May 2010;
EUR 1,800 for the accommodation of the months December 2009, January
and February 2010 (600€ per month);
EUR 500 for a plane ticket;
the interest rate on the above amounts and the legal fees of the claim.
7.
The Claimant / Counter-Respondent explained that on 8 February 2010, he
received a letter from the Respondent / Counter-Claimant by means of which it
terminated the contract, arguing that the Claimant / Counter-Respondent had
(i) failed to train and play to the best of his ability, (ii) attempt to induce other
players to stop the association with the Respondent / Counter-Claimant and to
not play to the best of their abilities and (iii) been found guilty of serious
misconduct and breach of the internal regulations of the football team. The
Claimant / Counter-Respondent argues that the termination of the contract by
the Respondent / Counter-Claimant was without just cause and he utterly
denies the reasons the Respondent / Counter-Claimant establishes in the letter
of termination, to justify its decision.
8.
In its reply to the Claimant / Counter-Respondent’s claim, the Respondent /
Counter-Claimant firstly challenged FIFA’s competence to deal with the case on
the basis of clauses 33 of the contract and 4 of the amendment agreement.
When asked by FIFA to provide the relevant national regulations that evidence
that the “country C Football Association Committees” fulfill the requirements
of FIFA in order to be recognized as an independent arbitration tribunal, the
Respondent / Counter-Claimant provided FIFA with the “Regulations for the
registration and transfer of football players country C Football Association
(2005)” (hereinafter: the country C Regulations; that came into force on 15
June 2005). According to the country C Regulations, the Dispute Resolution
Committee (hereinafter: NDRC) is composed of five members, namely the
Chairman, the Vice-Chairman and one member, all appointed by the Executive
Committee of the country C Football Association and two members appointed
by the country C Football Players’ Association (art. 22.1.1 and art. 22.1.3).
Player S, from country F / Club N, from country C / Club A, from country L
3/15
9.
The decisions are taken by simple majority (art. 22.8.1), subsequent to a
summary and written procedure (art. 22.13.1 and art. 22.13.3). Clubs affiliated
to the country C Football Association, football players and other interested
persons are entitled to lodge a claim before the NDRC (art. 22.13.5). Any
decision of the NDRC may be appealed to the Disciplinary Authority of the
country C Football Association, which shall reach a final decision (art. 22.10).
10.
Besides the objection to FIFA’s jurisdiction, the Respondent / Counter-Claimant
also entered into the merits of the claim, indicating firstly that the contract
provided by the Claimant / Counter-Respondent was not the valid contract.
The Respondent / Counter-Claimant accompanied a contract virtually the same
as the one of the Claimant / Counter-Respondent, dated 22 July 2008,
however, without any reference to a rescission clause and as to the
remuneration it only establishes the following:
“The player’s basic wage is:
€ 15,000 for the first year, from 31/08/2008 to 31/05/2009
€ 20,000 for the second year, from 31/08/2009 to 31/05/2010”.
11.
In this respect, the Respondent / Counter-Claimant indicated that it had signed
a contract with the Claimant / Counter-Respondent in July 2008. In
continuation, the Respondent / Counter-Claimant explained that on 22 July
2008 the parties signed a new contract, which in art. 28 stipulates that “all
previous agreements between the club and the player are hereby cancelled”.
Therefore, in the Respondent / Counter-Claimant’s view the contract dated 22
July 2008 presented by it, is the only valid agreement.
12.
Moreover, the Respondent / Counter-Claimant argued that the amendment
agreement is not valid or enforceable on the basis of the aforementioned
clause 3.
13.
Furthermore, the Respondent / Counter-Claimant declared that on 4 February
2010 they invited the Claimant / Counter-Respondent for the next meeting of
the Respondent / Counter-Claimant’s disciplinary committee in order to inform
and hold a hearing about his misconduct, but that he refused to sign the
delivery receipt. The Respondent / Counter-Claimant also stated that on 8
February 2010, the Claimant / Counter-Respondent presented his apologies for
his behavior in front of the Respondent / Counter-Claimant’s disciplinary
committee, but that, following the hearing and taking into account the
Claimant / Counter-Respondent’s defence, the Respondent / Counter-Claimant
decided to terminate the contract with immediate effect, in this regard
Player S, from country F / Club N, from country C / Club A, from country L
4/15
referring to clauses 21 and 22 of the contract which contain provisions about
serious and/or persistent misconduct.
14.
In addition, the Respondent / Counter-Claimant stressed that in the contract
they provided, the basic wage of the Claimant / Counter-Respondent was EUR
20,000 and that there is no allowance for accommodation and/or airplane
tickets, or any other kind of allowance. Therefore, it stated that in case it were
to pay something to the Claimant / Counter-Respondent, the amount would be
EUR 10,000 for the loss of salary until the end of the season, as they had
already paid the Claimant / Counter-Respondent EUR 10,000 for the period
between 31 August 2009 and 8 February 2010.
15.
Additionally, in its response, the Respondent / Counter-Claimant lodged a
counterclaim indicating that the Claimant / Counter-Respondent failed to
fulfill his obligations according to the contract and that the Respondent /
Counter-Claimant terminated the contract with just cause, requesting a
compensation of EUR 10,000 plus damages and legal expenses.
16.
The Claimant / Counter-Respondent responded to the counterclaim presented
by the Respondent / Counter-Claimant, rejecting and denying all its allegations
and reaffirming himself in his initial petition. Moreover, the Claimant /
Counter-Respondent insisted in the competence of FIFA, and particularly of the
DRC, to deal with his claim and to give a ruling in the matter.
17.
Finally, the Claimant / Counter-Respondent, upon request of FIFA, declared
that during the period from 1 February 2010 to 31 May 2010 he did not enter
into any new employment relationship with any other club. The Claimant /
Counter-Respondent affirmed that it was only in September 2010 when he
signed a new employment contract with Club A, from country L.
18.
Despite having been invited by FIFA to do so, Club A did not provide any
comments in relation to the present matter.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with
the case at hand. In this respect, he took note that the present matter was
submitted to FIFA on 1 March 2010. 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 par. 2 and par. 3 of the Procedural Rules).
Player S, from country F / Club N, from country C / Club A, from country L
5/15
2.
With regard to the competence of the DRC judge, the latter referred to art. 3
par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance
with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. (b) of the
Regulations on the Status and Transfer of Players (edition 2012) he is, in
principle, competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a
country F player, a country C club, with a country L club as the Intervening
Party.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on
the Status and Transfer of Players, the DRC judge confirmed that, in principle,
he may adjudicate in the present dispute which value does not exceed currency
of country H 100,000.
4.
However, the DRC judge acknowledged that the Respondent / CounterClaimant contested the competence of FIFA’s deciding bodies on the basis of
art. 33 of the employment contract and art. 4 of the amendment agreement
highlighting that the country C Football Association has an independent
deciding body to deal with the matter, i.e. the Dispute Resolution Chamber of
the country C Football Association and that this deciding body was appointed
as the only one having jurisdiction.
5.
In this regard, the DRC judge noted that the Claimant / Counter-Respondent
rejected such position and insisted that FIFA has jurisdiction to deal with the
present matter.
6.
Taking into account the above, the DRC judge emphasised that in accordance
with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and
Transfer of Players he is competent to deal with a matter such as the one at
hand, 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 DRC judge referred to FIFA Circular no. 1010 dated 20
December 2005. In this regard, the DRC judge further referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
7.
For the sake of good order, the DRC judge first turned to art. 33 of the
employment contract and art. 4 of the amendment agreement, on the basis of
which the Respondent / Counter-Claimant contested FIFA’s jurisdiction.
According to said articles “this agreement is to be governed by c Law and/or
Player S, from country F / Club N, from country C / Club A, from country L
6/15
Rules of country C Football Association and country C Football Association’s
committees shall have exclusive jurisdiction to adjudicate on any dispute”.
Hence, the aforementioned articles clearly do not refer to a specific national
dispute resolution chamber or any similar arbitration body in the sense of art.
22 lit. b) of the aforementioned Regulations. What is more, the DRC judge
stressed that the employment contract or the amendment agreement do not
make explicit reference to any collective agreement or regulations that would
provide for an arbitration clause.
8.
In continuation, the DRC judge wished to stress that, even if any of the
contracts at the basis of the present dispute would have included such
arbitration clause in favour of a national dispute resolution body, the
Respondent / Counter-Claimant was unable to prove that, in fact, the country
C Football Association “Dispute Resolution Committee” meets the minimum
procedural standards for independent arbitration tribunals as laid down in art.
22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA
Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations.
9.
In this respect, the DRC judge referred to the jurisprudence of the Dispute
Resolution Chamber, which, already on several occasions, established that the
country C Football Association “Dispute Resolution Committee” does not meet
the minimum procedural standards for independent arbitration tribunals as
laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of
Players. In this regard, the DRC judge, as previously done by the DRC, referred
to the principle of equal representation of players and clubs and underlined
that this principle was one of the very fundamental elements to be fulfilled, in
order for a national dispute resolution chamber to be recognised as such.
Indeed, this prerequisite is mentioned in the Regulations on the Status and
Transfer of Players, in the Circular no. 1010 as well as in art. 3 par. 1 of the
NDRC Regulations, which illustrates the aforementioned principle as follows:
“The NDRC shall be composed of the following members, who shall serve a
four-year renewable mandate: a) a chairman and a deputy chairman chosen by
consensus by the player and club representatives (…); b) between three and
ten player representatives who are elected or appointed either on proposal of
the players’ associations affiliated to FIFPro, or, where no such associations
exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between
three and ten club representatives (…).” In this respect, the FIFA Circular no.
1010 states the following: “The parties must have equal influence over the
appointment of arbitrators. This means for example that every party shall have
the right to appoint an arbitrator and the two appointed arbitrators appoint
the chairman of the arbitration tribunal (…). Where arbitrators are to be
selected from a predetermined list, every interest group that is represented
Player S, from country F / Club N, from country C / Club A, from country L
7/15
must be able to exercise equal influence over the compilation of the arbitrator
list.”
10.
The DRC judge, following the established jurisprudence of the Dispute
Resolution Chamber, considered that the “Regulations for the registration and
transfer of football players country C Football Association (2005)”, in
accordance with which, inter alia, the chairman, vice-chairman and one
member are elected by the Executive Committee of the country C Football
Association and two members are elected by the country C Football Players’
Association, do not meet the aforementioned principles.
11.
In view of all the above, the DRC judge established that the Respondent /
Counter-Claimant’s objection to the competence of FIFA to deal with the
present matter has to be rejected and that the DRC judge is competent, on the
basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance.
12.
Subsequently, the DRC judge analysed which edition of the Regulations should
be applicable as to the substance of the matter. In this respect, he confirmed
that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the
Status and Transfer of Players (editions 2009, 2010, 2012) and considering that
the present claim was lodged on 1 March 2010, the 2009 edition of said
Regulations is applicable to the present matter as to the substance.
13.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing
so, he started by acknowledging the abovementioned facts of the matter as
well as the documentation contained in the file.
14.
In this respect, the DRC judge acknowledged that, according to the Claimant /
Counter-Respondent, the parties had signed a valid employment contract on
22 July 2008 in accordance with which the Respondent / Counter-Claimant
would pay the Claimant / Counter-Respondent, for the season 2008-2009, a
sign-on fee of EUR 15,000 as well as a monthly salary of EUR 4,500 for the
period of ten months and for the season 2009-2010, a sign-on fee of EUR
20,000 as well as a monthly salary of EUR 6,500 for the period of ten months.
Furthermore, the DRC judge acknowledged that the parties had signed an
amendment agreement on 10 July 2009 according to which the Respondent /
Counter-Claimant would pay the Claimant / Counter-Respondent, for the
season 2009-2010, a monthly salary of EUR 6,500 for the period of ten months,
and by means of which the rescission clause in the contract was reduced to the
amount of EUR 20,000.
Player S, from country F / Club N, from country C / Club A, from country L
8/15
15.
Equally, the DRC judge noted that the Claimant / Counter-Respondent
maintains that the Respondent / Counter-Claimant is to be held liable for the
early termination of the employment contract towards the beginning of
February 2010.
16.
In this context, the DRC judge took note of the Respondent / CounterClaimant’s letter dated 8 February 2010, by means of which it informed the
Claimant / Counter-Respondent in writing about the termination of the
contract due to an alleged misconduct of the Claimant / Counter-Respondent.
17.
The DRC judge further noted that according to the Respondent / CounterClaimant, who rejects the claim put forward by the Claimant / CounterRespondent, the employment contract was terminated with just cause since
the Claimant / Counter-Respondent had failed to fulfil its obligations as per
the contract and, consequently, lodged a counter-claim against the Claimant /
Counter-Respondent requesting the amount of EUR 10,000 as compensation,
plus damages and legal expenses.
18.
Having taken due note of the above, the DRC judge, first and foremost,
focussed his attention on the question as to which of the employment
contracts respectively provided by the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant was to be considered the legally binding
employment contract.
19.
In this regard, the DRC judge pointed out that the Respondent / CounterClaimant contested the validity of the employment contract provided by the
Claimant / Counter-Respondent and, furthermore, accompanied another
employment contract with a different type of remuneration for the Claimant /
Counter-Respondent. Additionally, the DRC judge noted that the Respondent /
Counter-Claimant acknowledged the validity of the amendment agreement
signed on 10 July 2009.
20.
The DRC judge, in this respect, highlighted that the amendment agreement
signed by the parties, among other modifications, adjusted the rescission
clause to the amount of EUR 20,000, while in the initial employment contract
provided by the Claimant / Counter-Respondent it was agreed to be in the
amount of EUR 50,000. Moreover, the DRC judge acknowledged that the
contract provided by the Respondent / Counter-Claimant does not make any
reference to a rescission clause. Furthermore, and in relation to the
Respondent / Counter-Claimant’s argument that clause 28 of the contract it
had provided stipulated that “All previous Agreements between the Club and
the Player are hereby cancelled”, the DRC judge pointed out that all contracts
provided in the present proceedings, including the one enclosed by the
Player S, from country F / Club N, from country C / Club A, from country L
9/15
Claimant / Counter-Respondent, contained the exact same clause and that,
therefore, no particular weight could be given to this argument of the
Respondent / Counter-Claimant.
21.
On account of all the above and taking into account all particularities of the
present matter, the DRC judge was of the opinion that, although both
employment contracts respectively provided by each of the intervening parties
could be considered valid, it is the duty of the Respondent / Counter-Claimant
to avoid any action that can lead to confusion in the application of an
employment contract. Therefore, the DRC judge considered that the fact that
there existed two different employment contracts dated 22 July 2008, both
duly signed by the parties, could not be held against the Claimant / CounterRespondent. In this respect, the DRC judge concluded that the employment
contract provided by the Claimant / Counter-Respondent should be the one
considered as legal and binding for the parties.
22.
In this context, the DRC judge further observed that the Respondent / CounterClaimant disputed the validity of the amendment agreement, by means of
which the employment contract was amended, on the basis of clause 3 of the
agreement.
23.
Therefore, the DRC judge had to analyse the validity of clause 3 of the
agreement which stipulates: “In the case that the Club fail to pay the Player
any instalment more than 45 days, then the present Amendment Agreement is
automatically cancelled and it produce no legal effects. In such case the
Original Agreement dated 22/07/2008 shall be the only valid agreement
between the parties”. The DRC judge was of the firm opinion that such a
clause could not be considered valid and legally binding as it would basically
reward the Respondent / Counter-Claimant for failing to meet its contractual
obligations. Hence, the DRC judge deemed that the relevant clause could not
be considered.
24.
Having established the above, the DRC judge highlighted that the underlying
issue in this dispute, considering the claim and the counterclaim by the parties,
was to determine whether the employment contract had been unilaterally
terminated with or without just cause and which party was responsible for the
early termination of the contractual relationship in question.
25.
In doing so, the DRC judge took into account that, according to the Claimant /
Counter-Respondent, his salaries as from October 2009 had remained unpaid
and that the Respondent / Counter-Claimant had also failed to pay the signing
fee for the second season, a flight ticket and the accommodation allowance
for three months.
Player S, from country F / Club N, from country C / Club A, from country L
10/15
26.
In continuation, the DRC judge noted that the Respondent / Counter-Claimant,
which merely bases its defence on denying the legal effects of the pertinent
employment contract, has not contested such particular allegations.
27.
On account of the above circumstances, the DRC judge established that the
Respondent / Counter-Claimant had not fulfilled its contractual obligations by
failing to remit the Claimant / Counter-Respondent’s salaries without any valid
reason during four months.
28.
Furthermore, the DRC judge took note that the Respondent / CounterClaimant terminated the employment contract by means of a letter sent to the
Claimant / Counter-Respondent on 8 February 2010, in which it alleged a
serious misconduct of the Claimant / Counter-Respondent as the reason of the
termination. The DRC judge noted, in this regard, that the Respondent /
Counter-Claimant held that it had invited the Claimant / Counter-Respondent
for the hearing of the disciplinary committee that would deal with his alleged
misconduct, however, the Claimant / Counter-Respondent refused to sign the
delivery receipt of the notification. In this context, the DRC judge noted that
the Respondent / Counter-Claimant acknowledged it had held the meeting of
the disciplinary committee and, although taking into account the player’s
apparent apologies, it had decided to terminate the contract.
29.
In this regard, the DRC judge, referring to the principle of the burden of proof
contained in art. 12 par. 3 of the Procedural Rules, considered that the
Respondent / Counter-Claimant did not proof sufficiently that the internal
process of the disciplinary committee was held in presence of the Claimant /
Counter-Respondent and that it could not be established that the Claimant /
Counter-Respondent was indeed duly notified of said process. Therefore, the
DRC judge recalled that such process was not a fair and equal process as it did
not give the Claimant / Counter-Respondent the opportunity to contend the
accusations brought against him by the Respondent / Counter-Claimant. What
is more, the DRC judge observed that the reasons put forward by the
disciplinary committee of the Respondent / Counter-Claimant to justify the
termination, i.e. the alleged misconduct, had not been substantiated by any
documentary evidence, and, therefore, the DRC judge decided that such
reasons could not be considered as a valid reason to unilaterally terminate the
contract with just cause.
30.
Accordingly, and taking into account the particularities of the present matter,
in particular, the unpaid salaries of four months, the unpaid accommodation
and other allowances as well as the reasons invoked by the Respondent /
Counter-Claimant to terminate the employment contract, the DRC judge
Player S, from country F / Club N, from country C / Club A, from country L
11/15
decided that the Respondent / Counter-Claimant did not have just cause to
unilaterally terminate the employment contract on 8 February 2010 and that,
consequently, the Respondent / Counter-Claimant is to be held liable for the
early termination of the employment contact without just cause.
31.
Consequently, the DRC judge determined that the counter-claim lodged by the
Respondent / Counter-Claimant should be fully rejected.
32.
Having established that the Respondent / Counter-Claimant is to be held liable
for the early termination of the employment contract without just cause, the
DRC judge focussed its attention on the consequences of such termination.
Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge
decided that the Claimant is entitled to receive from the Respondent /
Counter-Claimant an amount of money as compensation for breach of contract
in addition to any outstanding payments on the basis of the relevant contract.
33.
First of all, the DRC judge reverted to the Claimant / Counter-Respondent’s
financial claim, which includes outstanding remuneration of EUR 26,000 for
the months of October, November and December 2009 and January 2010, i.e.
EUR 6,500 per month in accordance with the amendment agreement. In
addition, the Claimant / Counter-Respondent asked to be awarded with the
outstanding signing fee provided in the employment contract in the amount
of EUR 20,000 as well as with the accommodation allowance for the months of
December 2009, January and February 2010 in the total amount of EUR 1,800.
The DRC judge recalled that the Respondent / Counter-Claimant failed to
demonstrate that it had in fact paid such remunerations. Furthermore, the
Claimant / Counter-Respondent requested the amount of EUR 500 for an
unpaid flight ticket. The DRC judge noted, however, that the claim for this
concept was not accompanied by a detailed breakdown and that neither the
contract specified any amount for this concept. In this respect and considering
that the Claimant / Counter-Respondent requested one plane ticket, the DRC
judge determined that the amount to which the Claimant / CounterRespondent was entitled to for this concept, is the equivalent to a one-way
flight ticket in economy class for the route country C – country F, resulting in
an amount of EUR 185 as established by the travel department of FIFA.
34.
Consequently, taking into account the documentation remitted by the
Claimant / Counter-Respondent to substantiate his claim and the fact that the
employment contract was considered terminated as of 8 February 2010, the
DRC judge decided that the Respondent / Counter-Claimant is liable to pay to
the Claimant / Counter-Respondent the remuneration that was outstanding at
the time of the termination in the amount of EUR 47,985 relating to payments
Player S, from country F / Club N, from country C / Club A, from country L
12/15
due to him in accordance with the employment contract and amendment
agreement.
35.
In addition, taking into consideration the Claimant / Counter-Respondent’s
claim, the DRC judge decided that the Claimant / Counter-Respondent is
entitled to 5% interest p.a. on said amount as of 1 March 2010 until the date
of effective payment.
36.
Moreover, the DRC judge focussed his attention on the calculation of the
amount of compensation for breach of contract in the matter at stake. In
doing so, the DRC judge firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant / Counter-Respondent
under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years, and depending on
whether the contractual breach falls within the protected period.
37.
In application of the relevant provision, the DRC judge held that he first of all
had to clarify as to whether the pertinent employment contract contains a
provision by means of which the parties had beforehand agreed upon an
amount of compensation payable by the contractual parties in the event of
breach of contract. In this regard, the DRC judge established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
38.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation
of the monies payable to the Claimant / Counter-Respondent under the terms
of the employment contract until 31 May 2010, taking into account that the
player’s remuneration for the period between October 2009 and January 2010
is included in the calculation of the outstanding remuneration (cf. no. II./33.
above). Consequently, the DRC judge concluded that the amount of EUR
26,000 (i.e. salary as from February until May 2010) serves as the basis for the
final determination of the amount of compensation for breach of contract.
39.
In continuation, the DRC judge verified as to whether the Claimant / CounterRespondent had signed an employment contract with another club during the
relevant period of time, by means of which he would have been enabled to
reduce his loss of income. According to the constant practice of the Dispute
Resolution Chamber, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation
Player S, from country F / Club N, from country C / Club A, from country L
13/15
for breach of contract in connection with the player’s general obligation to
mitigate his damages.
40.
The DRC judge noted that the Claimant / Counter-Respondent had not signed
any other employment contract.
41.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the DRC judge decided that the
Respondent / Counter-Claimant must pay the amount of EUR 26,000 to the
Claimant / Counter-Respondent as compensation for breach of contract.
42.
In addition and with regard to the Claimant / Counter-Respondent's request
for interest, the DRC judge decided that the Claimant / Counter-Respondent is
entitled to 5% interest p.a. on said amount as of 6 March 2013 until the date
of effective payment.
43.
Furthermore, the DRC judge held that the Claimant / Counter-Respondent’s
claim for legal costs is rejected in accordance with art. 18 par. 4 of the
Procedural Rules and the Dispute Resolution Chamber’s respective
longstanding jurisprudence.
44.
The DRC judge concluded his deliberations by rejecting any further claim of
the Claimant / Counter-Respondent.
III.
Decision of the DRC judge
1.
The claim of the Claimant / Counter-Respondent, Player S, is admissible.
2.
The claim of the Claimant / Counter-Respondent is partially accepted.
3.
The counter-claim of the Respondent / Counter-Claimant, C, is rejected
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 47,985 plus 5% interest p.a.
on said amount as of 1 March 2010 until the date of effective payment.
5.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 26,000 plus 5%
interest p.a. on said amount as of 6 March 2013 until the date of effective
payment.
Player S, from country F / Club N, from country C / Club A, from country L
14/15
6.
If the aforementioned sums plus interests are not paid by the Respondent /
Counter-Claimant within the stated time limits, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
7.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
8.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant immediately and directly of the account number to which
the remittances are to be made and to notify the DRC judge of every payment
received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player S, from country F / Club N, from country C / Club A, from country L
15/15