Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theodore Giannikos (Greece), member
Mario Gallavotti (Italy), member
Jon Newman (USA), member
Eirik Monsen (Norway), member
on the claim presented by the player,
Player S, from country A
as Claimant
against the club,
Club Z, from country C
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 25 June 2008, Player S, from country A (hereinafter: the Claimant), and the Club Z,
from country C (hereinafter: the Respondent), concluded an employment contract
(hereinafter: the contract) valid from the date of signature until 30 June 2013.
2.
According to art. 4 of the contract, the annual remuneration of the Claimant for his
services was of EUR 257,200 gross, payable in monthly instalments of EUR 21,400 gross
each. The salaries would be paid out in currency of country C in accordance with the
exchange rate of the country C National Bank on the payday. Furthermore, “for each
year of the contract, the salary of the [Claimant] in the above-mentioned gross amount
is increased by 10%”.
3.
Art. 7 of the contract established inter alia the following: “7.4) The [Respondent]
undertakes to organize the professional development of the [Claimant] and hire
experts during the pre-season, trainings and matches.” [...] “7.8) The [Respondent]
undertakes to provide the [Claimant] with two flight tickets per year of contract.”
4.
Art. 9 of the contract established that “The [Respondent] shall not discriminate the
[Claimant] in any way regarding other players”.
5.
According to art. 11 of the contract, the Respondent has the right to impose sanctions
on the Claimant in case he infringes the contract terms, in accordance with the internal
regulations of the Respondent. Hence, by signing this contract, the Claimant
acknowledges the validity of the disciplinary regulations of the Respondent and
accepts to compensate the Respondent with the relevant sum or allow the Respondent
to reduce the relevant sum from his remuneration.
6.
On 3 August 2010, the Claimant lodged a claim before FIFA against the Respondent,
alleging breach of contract without just cause and requesting, after amending his
claim, the payment of the total amount of EUR 1,269,925.35 (plus interest at the rate
of 5% from the date of the breach), as follows:
a. EUR 977,546 gross as compensation for breach of contract composed of:
I. EUR 259,160 corresponding to 11 monthly salaries of EUR 23,560 each for
the period from August 2010 until July 2011;
II. EUR 342,089 corresponding to the total salary for the season 2011/2012;
III. EUR 376,297 corresponding to the total salary for the season 2012/2013.
b. EUR 94,240.90 gross corresponding to outstanding salaries, as follows:
I. EUR 70,680 corresponding to three outstanding salaries for the months
of April, May and June of the season 2009/2010;
II. EUR 25,915.80 corresponding to one outstanding salary for the month of
July 2010 of the season 2010/2011;
c. EUR 2,130.90 corresponding to an airplane ticket to country C for early July
2010;
d. EUR 8,763.55 corresponding to five airplane tickets for the flight route country
A-country C–country A corresponding to the remaining flight tickets the
Claimant was entitled to receive until the end of the contract;
e. EUR 167,244 corresponding to “an indemnity amounting to at least six
average months of the remaining contract”;
f. EUR 20,000 corresponding to legal fees.
Player S, from country A / Club Z, from country C
2/12
Equally, the Claimant also requested the imposition of sporting sanctions on the
Respondent.
7.
In this respect, the Claimant explained that during the contractual period, after having
been loaned to the Argentinean club, Club T, from country A, from January 2009 until
January 2010, he was loaned to the Club N, for the second half of the season
2009/2010. At the end of the loan periods, the Claimant returned to country A for
holidays. Since he allegedly did not receive any information from the Respondent with
regard to the start of the new season, he booked his own air ticket and returned to
country C on 29 June 2010. Upon his return to the Respondent in early July 2010, the
Respondent allegedly banned the Claimant from the training sessions and assigned
him to individual training.
8.
According to the Claimant, he was told that the Sports Director of the Respondent
would contact him to discuss his sportive situation, which never happened. Instead, on
27 July 2010, he was handed over a termination letter dated 7 July 2010, informing
him that the Respondent would terminate the contract with just cause, with
retroactive effect as of 30 June 2010, due to his lack of discipline, in particular, his
absence at training on 7 June 2010.
9.
On 28 July 2010, the Claimant sent a letter to the Respondent denying its accusations
and requesting that the Respondent recognize that the contract was still in force.
Otherwise, the Claimant would deem the contract terminated without just cause by
the Respondent and initiate proceedings against it.
10.
In a letter dated 30 July 2010, the Respondent informed the Claimant that the
termination of the contract was due to the serious violation of his contractual
obligations. Therefore, he was suspended and excluded from the team. Finally, the
Respondent suggested an immediate meeting with the Claimant. In a letter dated
2 August 2010, the Claimant acknowledged the receipt of the Respondent's
communication and informed it that he would lodge a claim in front of FIFA for
breach of contract without just cause during the protected period.
11.
On account of all the above, the Claimant explained that to date the Respondent
failed to pay him salaries and bonuses which have been overdue since April 2010, since
allegedly it was also the Respondent's obligation to pay his salaries during his loan
with Club N. With respect to the outstanding payments, the Claimant stated that he
never officially requested the payment of such amounts but only claimed them
verbally.
12.
The Claimant further rejects the Respondent’s accusations of lack of discipline and
insists on the fact that he was not informed of the date of the first training session. In
this respect, he referred to CAS´s jurisprudence, according to which if the employment
contract does not contain the date on which the training sessions are to begin, a
notification should be sent to the player informing him of that date and the club
should be able to prove such notification. Equally, the Claimant also held that
according to CAS, short absences do not amount to a serious breach of contract and
not all violations of contractual terms of an employment contract justify the
termination of contract for just cause. According to the Claimant, an appropriate
sanction would have been the issuance of a fine, not the termination of the contract.
Finally, the Claimant emphasized that he did not receive an air ticket from the
Respondent in order to be present at the first training session, contrary to the previous
Player S, from country A / Club Z, from country C
3/12
years where he did receive the flight ticket, clearly showing that the Respondent
wanted to terminate the contract.
13.
On this account, the Claimant pointed out that he did not receive a notification from
the Respondent as to his allegedly unexcused absence and, in this respect, he
explained that if the Respondent had informed him about the training session on
7 June 2010 and that his attendance was mandatory, he would have arranged his trip
to country C immediately.
14.
Moreover, upon the Claimant's return at the beginning of July 2010, he was allegedly
only informed that the Respondent was no longer interested in his services and that he
was no longer allowed to train with his teammates. In this regard, the Claimant stated
that the Respondent had breached the contract by taking this decision and referred to
art. 9 of the contract (cf. point I.4 above). Furthermore, the Respondent allegedly only
mentioned on 27 July 2010 that the Claimant had been absent at the opening training
session of 7 June 2010. In this respect, the Claimant pointed out that Swiss law only
gives the party wanting to invoke a breach of contract for just cause a limited
timeframe to do so, i.e. two or three working days after one becomes aware of facts
that could lead to a termination of the contract. After this period, a party wanting to
invoke a breach of contract will be deemed to have accepted the behaviour of the
other party to the contract, or at least that the party will have accepted that such
behaviour does not amount to a serious breach of contract enabling the termination
for just cause. Thus, the Claimant deems that invoking a just cause after this time
period is not acceptable and accounts for a breach of contract without just cause.
15.
In view of the foregoing, the Claimant deems that the Respondent was no longer
interested in his services and, thus, “set up an unfair scenario” by not inviting him to
the first training session and not providing him the airplane ticket. Finally, he also
referred to art. 7.4 of the contract (cf. point I.3 above).
16.
In its reply, the Respondent rejected the Claimant's claim and explained that the
Claimant attended a meeting with the Sports Director after the expiry of his loan, in
which he was verbally informed that he should attend the first training session on
7 June 2010. In this respect, the Respondent stated that this was the standard
communication within the club. Furthermore, the Respondent declared that the
Claimant was unsatisfied and allegedly asked for permission to find another club, to
which the Respondent agreed, provided that he would return on 7 June 2010 in case
he did not find another club.
17.
According to the Respondent, before leaving country C, the Claimant agreed to leave
his contact details, which he failed to do and, in addition, his “telephone with the
country C number was switched off all the time”.
18.
On this account, and after having allegedly tried to contact the Claimant via his
manager without success, the Respondent provisionally suspended the Claimant on
8 June 2010, until the pronouncement of a final decision. In view of the Claimant's
continued unjustified absence, the Respondent's management imposed on him a fine
of EUR 30,000. As the Claimant returned to the Respondent on 8 July 2010, he was
informed that he was suspended until further notice and that a new disciplinary
procedure was pending due to his unjustified absence for one month. In particular, the
Respondent emphasized that, by then, it offered the Claimant an amicable
termination of the contract upon the payment of compensation. Subsequently, the
Player S, from country A / Club Z, from country C
4/12
Claimant allegedly stated he would consult with his manager, but contacted the
Respondent again on 27 July 2010 without a proposal and without the intention of
amicably solving the dispute. Subsequently, the Respondent terminated the contract
on the basis of art. 11 of the contract due to the Claimant's further absences for one
month.
19.
With regard to the air ticket, the Respondent pointed out that it is common practice
that the players buy the air ticket and that the Respondent refunds the complete
amount upon arrival to country C. Thus, the Respondent never sends air tickets to
players in advance.
20.
In conclusion, the Respondent deems to have had a just cause to terminate the
contract with the Claimant, emphasizing that it was the Claimant's obligation to
contact the Respondent immediately after the end of his loan.
21.
In his replica, the Claimant rejected the Respondent's position and pointed out that
the alleged meeting with the Sports Director never took place. In particular, he
indicated that he never requested the Respondent's permission to negotiate with third
clubs and was also never informed about the date of the first training session.
22.
With regard to the termination of the contract, the Claimant stated that as of 8 July
2010 he trained by himself, waiting for further news about his future until 27 July
2010, when he was handed the termination letter. Furthermore, he referred to the
Respondent's alleged proposal of a mutual agreement and stated that he had no
obligation to agree to it.
23.
Furthermore, the Claimant noted that only after reading the Respondent's reply to his
claim he became aware of the fine of EUR 30,000 allegedly imposed on him, which he
considered as disproportionate.
24.
In its final position, the Respondent maintained its previous arguments, insisting on
the fact that the Claimant was aware of the start of the training on 7 June 2010. In this
respect, the Respondent provided a statement of the General Manager of Club N,
confirming that the Claimant had been duly informed about the first training session
on 7 June 2010 and requested to leave his contact details during his stay in country A.
25.
In addition, the Respondent emphasized that the overall behaviour of the Claimant
underscores his insulting attitude towards the Respondent and other players and
justifies the imposition of the sanctions.
26.
Furthermore, the Respondent wished to clarify that the suspension pronounced on
8 June 2010 was not formally imposed because it was convinced that the Claimant
would eventually return and explain the reasons for his absence. The sanction was
imposed on 20 June 2010 “as the first step of sanction” in accordance with the rules of
the club. However, and due to the Claimant's continuous absence for a period of
23 days, the Respondent deemed that this behaviour implicated a drastic violation of
his contractual obligations which, ultimately, resulted in the termination of the
contract. Despite this fact, said decision was postponed in order to give the Claimant
the opportunity to justify his absence.
27.
Finally, the Respondent offered to pay to the Claimant an amount of EUR 40,620,
which corresponds to his salaries for the months of April, May and June 2010 minus
Player S, from country A / Club Z, from country C
5/12
the penalty of EUR 30,000 and additional financial compensation up to the moment of
termination.
28.
With regard to his contractual situation as from the year 2010 until 30 June 2013, the
Claimant informed FIFA about the conclusion of the following employment contracts:
a) Club H, from country D, from 6 January 2011 until 31 December 2011 for a salary
of USD 6,000 per month;
b) Club M, from country A, from 30 July 2012 until 30 June 2013, for a salary of
currency of country A 8,000 per month.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. 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 (hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 3 August 2010.
Therefore, the Chamber concluded that the edition 2008 of the Procedural Rules was
applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition 2009), it is competent to
decide on the present litigation, which concerns an employment-related dispute with
an international dimension, between an country A player and a country C club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26
par. 1 and par. 2 of the Regulations (editions 2009, 2010 and 2012), and considering
that the present claim was lodged on 3 August 2010, the 2009 edition of said
regulations is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
However, the Chamber emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence which it considered pertinent
for the assessment of the matter at hand.
5.
In this respect, the DRC acknowledged that it is undisputed by the parties that, on
25 June 2008, they had signed an employment contract valid as from the date of
signature until 30 June 2013, in accordance with which the Claimant was entitled to
receive EUR 257,200 gross, payable in monthly instalments of EUR 21,400 gross each.
Equally, the parties also agreed that “for each year of the contract, the salary of the
player in the above-mentioned gross amount is increased by 10%”.
6.
Furthermore, the DRC took due note that it is also undisputed by the parties that the
Claimant was loaned to the Club N, from country C, for the second half of the season
2009/2010.
Player S, from country A / Club Z, from country C
6/12
7.
In continuation, the Chamber further noticed that it is also undisputed by the parties
involved that the employment relationship had been unilaterally terminated by the
Respondent, in writing, on 27 July 2010 with retroactive effect as of 30 June 2010.
8.
The DRC further noted that, on the one hand, the Claimant claims having returned to
country A at the end of the loan period with Club N and that the Respondent had
failed to inform him about the start date of the new season. Equally, the Claimant
claims that the Respondent had failed to provide him with an air ticket in order to
return to country C after his stay in country A. As a consequence, the Chamber
observed that the Claimant claims to have booked his own air ticket and returned to
country C on 29 June 2010.
9.
Subsequently, the Chamber noted that, upon the Claimant’s return to country C, he
was allegedly told that the Respondent would contact him in order to discuss his
sportive situation which allegedly never happened. The DRC further took due note
that, instead, on 27 July 2010, the Claimant was handed over a termination letter
dated
7 July 2010, informing him that it would terminate the contract with just cause, with
retroactive effect as of 30 June 2010.
10.
Consequently, the Claimant asked to be awarded outstanding monies and
compensation for breach of contract in the total amount of EUR 1,269,925.35, plus
interest, due to the Respondent’s termination of the contract without just cause.
11.
The DRC further noted that, on the other hand, the Respondent alleged that the
Claimant was well aware of the start date of the season since he allegedly attended a
meeting with the Sports Director after the expiry of his loan, in which he was verbally
informed that he should attend the first training session on 7 June 2010, this being the
standard communication within the club. Equally, the Chamber took due note that the
Respondent emphasized that it tried to contact the Claimant via his manager,
however, without success. As a consequence, the Respondent provisionally suspended
the Claimant on 8 June 2010 until the pronouncement of a final decision. In addition,
the Chamber observed that the Respondent imposed a fine of EUR 30,000 on the
Claimant due to his continued unjustified absence. The Chamber also noted that, upon
his return to the club on 8 July 2010, the Claimant was informed that he was
suspended until further notice and that a new disciplinary procedure was pending due
to his unjustified absence for one month.
12.
With regard to the air ticket, the Chamber took due note of the Respondent’s
explanation, by means of which it pointed out that it is common practice that the
players buy the air ticket and that the club refunds the complete amount upon arrival
to country C.
13.
Finally, the DRC further took note that the Respondent claims to have offered the
Claimant an amicable termination of the contract upon the payment of compensation.
However, and due to the fact that the Claimant allegedly did not show his willingness
to solve the dispute amicably, the Respondent terminated the contract on the basis of
art. 11 of the contract (cf. point I.5) due to the Claimant’s further absences for one
month.
14.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant and the allegations of the
Player S, from country A / Club Z, from country C
7/12
Respondent, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the Respondent, and which party
was responsible for the early termination of the contractual relationship in question.
The DRC also underlined that, subsequently, if it were found that the employment
contract was terminated by the Respondent without just cause, it would be necessary
to determine the financial and/or sporting consequences for the party that caused the
unjust breach of the relevant employment contract.
15.
In this context, the Chamber acknowledged that it had to examine whether the
reasons put forward by the Respondent could justify the termination of the contract in
the present matter.
16.
At this point, the Chamber deemed it appropriate to emphasize that only a breach or
misconduct which is of a certain severity justifies the termination of a contract. In
other words, only when there are objective criteria which do not reasonably permit to
expect a continuation of the employment relationship between the parties, a contract
may be terminated prematurely. Hence, if there are more lenient measures which can
be taken in order for an employer to ensure the employee’s fulfillment of his
contractual duties, such measures must be taken before terminating an employment
contract. A premature termination of an employment contract can only ever be an
ultima ratio measure.
17.
Bearing in mind the above, the Chamber firstly noted that the Respondent bases the
termination of the employment contract on the Claimant’s alleged serious violation of
his contractual obligations.
18.
In this respect, and for the sake of good order, the DRC reminded the parties of the
basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural
Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof.
19.
In this context, the Chamber first noted that the Respondent was not able to provide
any type of documentary evidence of any notification to the Claimant in order to
establish the date of his planned return to country C and the subsequent opening
training session on 7 June 2010. Furthermore, and with regard to the air tickets which
the Respondent did not provide to the Claimant as per its own allegations, the DRC
deemed it appropriate to recall that, in accordance with the contract, the Respondent
was obliged to provide the Claimant with two air tickets for each contract year. In this
regard, the Chamber considered that the Respondent had not provided any evidence
of a stipulation arranging the posterior payment of the air tickets.
20.
In addition, the DRC noted that, in spite of the fact that the Respondent claims that
the Claimant failed to resume training on 7 June 2010, it did not provide any written
evidence of a warning sent to the Claimant in order to request his return.
21.
Subsequently, the Chamber noted that, on the contrary, the Claimant did provide
proof that his return ticket to country C was purchased by himself and that on 29 June
2010 he resumed training with the Respondent.
22.
The DRC further observed that the Respondent, prior to the termination of the
contract, had imposed a fine amounting to EUR 30,000 on the Claimant due to his
alleged continued unjustified absence after a disciplinary procedure. In this respect,
Player S, from country A / Club Z, from country C
8/12
the Chamber took into account that the Claimant alleges not to have been informed
of the imposition of said fine nor of the existence of such procedure. Moreover, the
DRC noted that the Respondent was not able to provide substantial documentation
proving the imposition of such fine or the participation of the Claimant in this
procedure.
23.
Based on the foregoing, the Chamber concluded that the Respondent terminated the
employment contract, without having previously reminded the Claimant of the
consequences of an unauthorized absence, requested his return or used any more
lenient measures to revert the alleged breach.
24.
On account of the above, the Chamber decided that the Respondent had no just cause
to unilaterally terminate the employment relationship between the Claimant and the
Respondent and, therefore, concluded that the Respondent had terminated the
employment contract without just cause on 30 June 2010.
25.
Bearing in mind the previous considerations, and prior to establishing the amount of
compensation for breach of contract due to the Claimant by the Respondent, the DRC
proceeded with the calculation of the outstanding monies payable to the Claimant
under the terms of the employment contract until the date of termination, i.e. on
30 June 2010, in accordance with the general legal principle of “pacta sunt servanda”.
26.
In this regard, the DRC noted that the Claimant alleges that the Respondent had failed
to pay his salaries for the months of April, May and June 2010. In this context, the
Chamber took due note that, according to the Claimant, it was the Respondent’s
obligation to pay his salaries during his loan with Club N.
27.
In this context, the Chamber observed that the Claimant had failed to provide the
relevant contract concluded with Club N in order to establish the payment obligation.
Nevertheless, the DRC noted that the Respondent had proposed the payment of the
Claimant’s salaries for the months of April, May and June 2010 (cf. point I.27 above).
As a consequence, and taking into consideration the Respondent’s recognition of debt,
the DRC decided that the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of EUR 70,620, i.e. EUR 23,540 per month for April,
May and June 2010.
28.
In continuation, the Chamber focused its attention on the Claimant’s request for
reimbursement of the air ticket to country C for early July 2010. In this respect, the
DRC emphasized the stipulation in the contract, by means of which the Respondent
“undertakes to provide the [Claimant] with two flight tickets per year of contract”.
Equally, the DRC highlighted the fact that the Claimant provided proof that his return
ticket to country C was purchased by himself, whereas the Respondent failed to
provide FIFA with any type of evidence proving a stipulation arranging the posterior
payment of the air tickets.
29.
In view of the above-mentioned facts, the documentary evidence and the principle of
burden of proof, the Chamber concluded that the Respondent is liable to reimburse to
the Claimant the air ticket in the amount of EUR 2,130.90.
30.
Furthermore, as to the Respondent’s argumentation that the fine of EUR 30,000
(cf. point I.18 above) has to be deducted from any amount due to the Claimant, the
DRC noted that the Respondent failed to provide any evidence as to the existence of
Player S, from country A / Club Z, from country C
9/12
said fine. Equally, the Chamber also underlined that no evidence was provided with
regard to the Claimant’s participation in any procedure involving this sanction.
31.
In this context, and irrespective of the foregoing consideration, the Chamber was
eager to emphasize that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a means to set off outstanding
financial obligations towards players. Consequently, the Chamber decided to reject the
Respondent’s argument in this regard.
32.
Consequently, the Chamber decided that the Respondent is liable to pay to the
Claimant the remuneration that was outstanding at the time of the termination i.e.
the amount of EUR 72,750.90, consisting of three monthly salary of EUR 23,540 each
for April, May and June 2010, as well as EUR 2,130.90 corresponding to the flight ticket
to country C in July 2010, plus 5% interest p.a. as from 1 July 2010, in accordance with
the Claimant’s request.
33.
Furthermore, taking into consideration art. 17 par. 1 of the Regulations, the DRC
decided that the Claimant is entitled to receive compensation from the Respondent for
the termination of the employment contract without just cause.
34.
The Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and further
objective criteria, including, in particular, the remuneration and other benefits due to
the Claimant 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
35.
In application of the relevant provision, the DRC held that it first of all had to clarify as
to whether the pertinent 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. The Chamber assured itself that no such
compensation clause was included in the contract at the basis of the matter at stake.
36.
As a consequence, Chamber determined that the amount of compensation payable by
the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The DRC recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body. In
this regard, the DRC emphasised 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.
37.
In order to estimate the amount of compensation due to the Claimant in the present
case, the Chamber first turned its attention to the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract, which
criterion was considered by the Chamber to be essential. The DRC deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to
take into account both the existing contract and the new contract in the calculation of
the amount of compensation.
Player S, from country A / Club Z, from country C
10/12
38.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract and
concluded that the Claimant would have received in total EUR 1,030,111 as
remuneration had the contract been executed until its expiry date, i.e. EUR 311,212 for
the season 2010/2011, EUR 342,333 for the season 2011/2012 and EUR 376,566 for the
season 2012/2013.
39.
The DRC then took due note of the employment situation of the Claimant after the
termination of the contract with the Respondent and of the relevant new employment
contract(s) that he had entered into. It was duly noted that the Claimant and the Club
H,
from
country
D,
signed
an
employment
contract
valid
from
6 January 2011 until 31 December 2011, in accordance with which the Claimant was to
receive a monthly salary of USD 6,000. Equally, the DRC duly noted that, on 30 July
2012, the Claimant signed an employment contract with Club M, from country A, valid
from 30 July 2012 until 30 June 2013 in accordance with which the Claimant was to
receive a monthly salary of currency of country A 8,000.
40.
Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance with
the constant practice of the Dispute Resolution Chamber as well as the general
obligation of the player to mitigate his damages, such remuneration under the new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract.
41.
Thus, the Chamber decided that the Respondent is to be held liable to pay
compensation for breach of contract in the amount of EUR 960,111 to the Claimant as
well as 5% interest p.a. on said amount as from 3 August 2010 until the date of
effective payment.
42.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player S, is partially accepted.
2.
The Respondent, Club Z, is ordered to pay to the Claimant outstanding remuneration
in the amount of EUR 72,750.90 plus 5% interest p.a. as from
1 July 2010 until the date of effective payment, within 30 days as from the date of
notification of this decision.
3.
The Respondent is ordered to pay to the Claimant compensation for breach of contract
in the amount of EUR 960,111 plus 5% interest p.a. as from 3 August 2010 until the
date of effective payment, within 30 days as from the date of notification of this
decision.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. plus interest are not paid by the Respondent within the
stated time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
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5.
Any further claims lodged by the Claimant are rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the
CAS directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS, a copy of which we
enclose hereto. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal arguments
giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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