Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 March 2015,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamazaki (Japan), member
Santiago Nebot (Spain), member
Mohamed Mecherara (Algeria), member
Guillermo Saltos Guale (Ecuador), member
on the matter involving the player,
Player A, country B,
as Claimant / Counter-Respondent
and the club,
Club C, country D,
as Respondent / Counter-Claimant
and the club,
Club E, country F
as Intervening party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 13 August 2011, the player from country B, Player A (hereinafter: the Claimant /
Counter-Respondent) and the club from country D, Club C (hereinafter: the
Respondent / Counter-Claimant), signed an employment contract (hereinafter the
contract) valid as of the date of signature until 30 June 2015. In addition, on the
same date, the parties concluded an additional agreement relating to additional
payments to the Claimant / Counter-Respondent.
2.
According to article 4.1 of the contract, the Claimant / Counter-Respondent is to
receive a monthly salary of 5,000.
3.
Pursuant to article 4.2 of the contract, “[the Claimant / Counter-Respondent] can
receive bonuses and other rewards according to the results of his activities”.
4.
Article 4.8 of the contract stipulates that “[the Respondent / Counter-Claimant]
carries out the taxes deductions from [the Claimant / Counter-Respondent]’s salary
as well as the allocations for obligatory social insurance and medical insurance
according to the valid legislation of country D”.
5.
As per article 6.6.2 of the contract, “the sanctions in the amount of the currency of
country D equivalent of 5 000 000 (five million) Euros is applied to [the Claimant /
Counter-Respondent] for early termination of the Contract, also the claims are
made for reimbursement to [the Respondent / Counter-Claimant] of the amounts
paid by it to [the Claimant / Counter-Respondent], losses (Art. 22 of the Civil Code of
country D), including those that were carried by [the Respondent / CounterClaimant] for acquisition and payment for services if other footballer, connected
with non-fulfilment by [the Claimant / Counter-Respondent] of his obligations
according to the Contract in result of his termination”.
6.
Article 1 of the additional agreement provides for “the establishing and monthly
payment to [the Claimant / Counter-Respondent] in course of [the Claimant /
Counter-Respondent]’s individual Contract with [the Respondent / CounterClaimant] validity term and under condition of [the Claimant / CounterRespondent]’s play for main squad of Premier League team of country D Club C
(hereafter – Club C) of the personal extras to the salary in the following amounts:
22,600 (twenty two thousand and six hundred) Euro net – in course of the
period starting from the beginning of validity term of this Agreement and till
June 30 2012;
Player A, country B / Club C, country D / Club E, country F
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24,600 (twenty four thousand and six hundred) Euro net – in course of the
period from July 1 2012 till June 30 2013;
26,600 (twenty six thousand and six hundred) Euro net – in course of the
period from July 1 2013 till June 30 2014;
29,600 (twenty nine thousand and six hundred) Euro net – in course of the
period from July 1 2014 till June 30 2015”.
7.
Article 1.1. b) of the additional agreement sets forth a sign-on fee of EUR 100,000
payable by the Respondent / Counter-Claimant to the Claimant / CounterRespondent within 10 working days following the receipt of the International
Transfer Certificate (ITC) by the Football Federation of country D. The said article
also states that “in case of early termination of [the Claimant / CounterRespondent]’s contract with [the Respondent / Counter-Claimant] on [the Claimant /
Counter-Respondent]’s initiative (except the cases when such initiative will be
expressed by [the Claimant / Counter-Respondent] in course of last 6 months of the
term of validity of individual Contract), the amount paid according to this
paragraph is due to be returned on pro rata basis according to the amount of time
played out by [the Claimant / Counter-Respondent], and are withdrawn by [the
Respondent / Counter-Claimant] from the payments due to [the Claimant / CounterRespondent]”.
8.
On 11, 13 and 16 June 2012, the Claimant / Counter-Respondent put the
Respondent / Counter-Claimant in default regarding outstanding payments and
training-related infringements.
9.
On 18 June 2012, the Claimant / Counter-Respondent terminated the contract with
the Respondent / Counter-Claimant in writing.
10.
On 9 July 2012, the Claimant / Counter-Respondent lodged a claim before FIFA
against the Respondent / Counter-Claimant for breach of contract, requesting the
following:
7,000 as balance of salary for April and May 2012;
EUR 83,585 as outstanding “personal extras to the salary” for part of
February 2012 and for March, April and May 2012, plus 5% interest p.a.;
185,000, plus EUR 992,000 as compensation corresponding to the residual
value of the contract as from June 2012 until June 2015, plus 5% interest p.a.;
Sporting sanctions to be imposed on the Respondent / Counter-Claimant;
Legal costs to be borne by the Respondent / Counter-Claimant.
11.
The Claimant / Counter-Respondent first of all alleges that the Respondent /
Counter-Claimant did not comply with its contractual obligation of payment. The
Player A, country B / Club C, country D / Club E, country F
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Claimant / Counter-Respondent states that by the time he terminated the contract,
he should have received the following amounts:
50,000 as total salary from August 2011 until May 2012;
EUR 235,600 corresponding to EUR 100,000 as sign-on fee and EUR 135,600 as
total “personal extras to the salary” from December 2011 until May 2012.
12.
However, the Claimant / Counter-Respondent sustains having only received – “in
cash, with recipes, copy of which [the Respondent / Counter-Claimant] always
refused to provide” – the below listed amounts:
EUR 100,000 corresponding to the sign-on fee, i.e. EUR 24,000 paid in August
2011 and EUR 76,000 paid in December 2011;
35,000 as total salary from August 2011 until February 2012;
EUR 1,460 in September 2011;
EUR 1,428 in October 2011;
EUR 3,570 in November 2011;
EUR 23,000 in December 2011;
EUR 11,363 in January 2012;
EUR 11,194 in February 2012.
13.
Moreover, the Claimant / Counter-Respondent alleges that, from June 2012, he was
compelled to train on his own and was deprived of the minimum conditions in
order to practice professional football. In particular, the Claimant / CounterRespondent states that on 13 June 2012, he had to train alone in the absence of the
coach.
14.
In its statement of defence, the Respondent / Counter-Claimant first of all points to
the Claimant / Counter-Respondent’s insufficient physical condition to play with the
first team. The Respondent / Counter-Claimant provided a medical report dated 19
January 2011 from its doctor and further documentation stressing the Claimant /
Counter-Respondent’s alleged overweight over the first 6 months.
15.
Despite the alleged unsatisfactory physical condition of the Claimant / CounterRespondent, the Respondent / Counter-Claimant underlines that the Claimant /
Counter-Respondent was fielded with the first team for several matches, i.e. on 10
December 2011 against Club G, on 3 March 2012 against Club H, on 11 March 2012
against Club I, on 19 March 2012 against Club J, on 25 March 2012 against Club K
and on 31 March 2012 against Club L.
16.
However, the Respondent / Counter-Claimant states that, after the summer break,
the Claimant / Counter-Respondent was still not fit enough to follow the intensive
training program and consequently, the Respondent / Counter-Claimant decided to
prescribe the Claimant / Counter-Respondent with a specific training program, apart
Player A, country B / Club C, country D / Club E, country F
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from his teammates. In this respect, the Respondent / Counter-Claimant submitted a
correspondence dated 9 June 2012 from the coach to the Respondent / CounterClaimant’s director relating the Claimant / Counter-Respondent’s unsatisfactory
physical condition and the measures to be taken in this respect.
17.
With regard to the outstanding payments, the Respondent / Counter-Claimant
asserts having paid the Claimant / Counter-Respondent the amount of EUR
100,011.47 corresponding to the sign-on fee as well as the Claimant / CounterRespondent’s salary of 5,000 – after deducting taxes and social security as set forth
in art. 4.8 of the contract – in cash since the Claimant / Counter-Respondent
apparently had no Ukrainian bank account.
18.
As for “the two months he was fielded with the first squad”, the Respondent /
Counter-Claimant sustains having paid the amount of EUR 45,557 (i.e. EUR 22,600 x
2) corresponding to the “personal extras to his salary for the season 2011/2012” in
accordance with art. 1 of the additional agreement combined with art. 4.2 of the
contract. The Respondent / Counter-Claimant further holds that advance payments
made in January and February 2012 “to encourage [the Claimant / CounterRespondent] to prepare for the last part of the season 2011/2012” were deducted
from the “personal extras to the salary” for March 2012.
19.
Furthermore, in reply to the Claimant / Counter-Respondent’s default notice dated
13 June 2012, the Respondent / Counter-Claimant refers to its correspondence dated
14 June 2012 by means of which it inter alia informed the Claimant / CounterRespondent of his salary for March, April and May 2012 to be collected at the
Respondent / Counter-Claimant’s pay office. The Respondent / Counter-Claimant
also explained the Claimant / Counter-Respondent that the relevant “personal
extras to the salary” are subject to the Claimant / Counter-Respondent taking part
in matches for the first team. Given that the Claimant / Counter-Respondent played
only in December 2011 and March 2012, the Respondent / Counter-Claimant
deemed that he was only entitled to “personal extras to the salary” for these two
months. The Respondent / Counter-Claimant also explained that the alleged
absence of the coach on 13 June 2012 was a “misunderstanding” with regard to the
Claimant / Counter-Respondent’s lack of knowledge of Ukrainian rules according to
which on a day the Claimant / Counter-Respondent undergoes a medical
examination, there is not training session for the latter. Finally, the Respondent /
Counter-Claimant referred to article 6.6.2 of the contract in order to warn the
Claimant / Counter-Respondent of the consequences in case of an early termination
of the contractual relationship by the Claimant / Counter-Respondent.
20.
In addition, according to the Respondent / Counter-Claimant, on 15 June 2012, the
Claimant / Counter-Respondent apparently collected his salary for March and April
Player A, country B / Club C, country D / Club E, country F
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2012 amounting to 8,094. On this occasion, the Respondent / Counter-Claimant
apparently also informed the Claimant / Counter-Respondent of his salary for May
2012 being available the following day; however, the Respondent / CounterClaimant alleges that the Claimant / Counter-Respondent never came to the
Respondent / Counter-Claimant’s pay office to collect his salary for the relevant
month.
21.
Pertaining to the aforementioned payment of the sign-on fee, the Respondent /
Counter-Claimant provided receipts of payment listing the following amounts paid
in this respect:
EUR 20,000 in cash on 13 August 2011;
40,000, corresponding to EUR 3,581.47 according to the Respondent /
Counter-Claimant, in cash on 1 November 2011;
A total amount of “28,365” as payment of “individual extras to salary for
2011”, i.e. 2,500 in September 2011 + 5,000 in October 2011 + 5,000 in
November 2011 + 15,865 in December 2011;
EUR 41,300 by Swift transfer to the Claimant / Counter-Respondent’s German
bank account on 22 December 2011;
EUR 37,130 by Swift transfer to the Claimant / Counter-Respondent’s German
bank account on 20 January 2012; however, according to the Respondent /
Counter-Claimant, only the amount of EUR 25,830 was paid out of EUR
37,130.
A total amount of “31,320” as payment of “individual extra to salary for
2012”, i.e. 15,560 in January 2012 + 15,560 in February 2012 + 200 in March
2012;
22.
With regard to the payment of the Claimant / Counter-Respondent’s salary, the
Respondent / Counter-Claimant provided receipts of payment listing the following
amounts paid in this regard:
2,207.46 as salary for September 2011;
4,047 for November 2011;
3,971.98 as “leave salaries” for December 2011;
3,976.81 as salary for January 2012;
3,468.85 as “deposits” for February 2012;
4,047 as salary for February 2012;
8,094 as “deposits” for March and April 2012.
23.
In view of the foregoing, the Respondent / Counter-Claimant deems that the
Claimant / Counter-Respondent had no just cause to terminate the contract.
Therefore, the Respondent / Counter-Claimant is of the opinion that the Claimant /
Counter-Respondent’s claim should be dismissed.
Player A, country B / Club C, country D / Club E, country F
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24.
Subsequently, the Respondent / Counter-Claimant underlines the transfer of the
Claimant / Counter-Respondent to the club from country F, Club E (hereinafter: the
Intervening party), on 20 July 2012, i.e. one month following the termination of the
contract by the Claimant / Counter-Respondent. In this regard, the Respondent /
Counter-Claimant considers that the Intervening party induced the Claimant /
Counter-Respondent to unilaterally terminate the contract with the Respondent /
Counter-Claimant. The Respondent / Counter-Claimant further explains that the
transfer of the Claimant / Counter-Respondent back to the Intervening party
indicates that they never stopped their contractual relationship and never intended
to comply with the decision dated 27 September 2011 from the Single Judge of the
Players’ Status Committee (hereinafter: the Single Judge), authorising the
provisional registration of the Claimant / Counter-Respondent with the Respondent
/ Counter-Claimant.
25.
As a result, on 24 August 2012, the Respondent / Counter-Claimant lodged a
counterclaim before FIFA against the Claimant / Counter-Respondent for the
termination of the contract without just cause, and against the Intervening party
for inducement to the termination, thus requesting the following:
EUR 5,078,500 as compensation to be paid by both the Claimant / CounterRespondent and the Intervening party, plus 5% interest p.a. as of 18 June
2012, broken down as follows:
- EUR 5,000,000 as per the compensation clause provided for in the contract
which covers all the losses incurred by the Respondent / Counter-Claimant
in relation to the contractual relationship with the Claimant / CounterRespondent;
- EUR 78,500 representing the sign-on fee on a pro-rata basis, i.e. 36.5
months, pursuant to art.1.1. b) of the additional agreement;
Sporting sanctions to be imposed on both the Claimant / Counter-Respondent
and the Intervening party;
Legal costs to be borne by both the Claimant / Counter-Respondent and the
Intervening party.
26.
In his replica, the Claimant / Counter-Respondent rejects the Respondent / CounterClaimant’s submission and upholds his claim. In particular, the Claimant / CounterRespondent disagrees with the Respondent / Counter-Claimant’s allegation relating
to unsatisfactory physical condition, referring to medical reports carried out in June
2011 and June 2012 evidencing his normal weight. Therefore, the Claimant /
Counter-Respondent affirms that the Respondent / Counter-Claimant’s decision not
to call-up the Claimant / Counter-Respondent from October to December 2011 is not
related to his physical condition.
Player A, country B / Club C, country D / Club E, country F
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27.
In addition, the Claimant / Counter-Respondent disputes the Respondent / CounterClaimant’s interpretation regarding the nature of the “personal extras to the
salary” provided for in art. 1 of the additional agreement. The Claimant / CounterRespondent holds that these additional payments are part of the monthly salary set
forth in the contract and further explains that it is common practice in country D to
conclude two different agreements pertaining to the players’ salary in order to
minimise the clubs’’s tax burden. The Claimant / Counter-Respondent also
underlines that art. 1 of the additional agreement suggests, in fact, that the
Claimant / Counter-Respondent be called-up/registered rather than fielded with the
first team. Therefore, the Claimant / Counter-Respondent deems that the monthly
salary set forth in the contract and the relevant “personal extras to the salary”
provided for in the additional agreement are to be considered as the complete
monthly salary payable to the Claimant / Counter-Respondent. In light of the above,
the Claimant / Counter-Respondent is of the opinion that the Respondent / CounterClaimant’s refusal to pay the relevant “personal extras to the salary” as stated in the
latter’s correspondence dated 14 June 2012 is sufficient to unilaterally terminate the
contract.
28.
Furthermore, the Claimant / Counter-Respondent acknowledges having received the
amount of EUR 98,430 corresponding to the sign-on fee, but exclusively through the
following payments:
EUR 20,000, i.e. EUR 10,000 in January 2011 plus EUR 10,000 on 13 August
2011;
EUR 41,300 via bank transfer;
EUR 37,130.
According to the Claimant / Counter-Respondent, the rest of the amounts listed as
payments of the sign-on fee (cf. point I.21. above) are actually amounts
corresponding to “personal extras to the salary” as stated in art. 1 of the additional
agreement. The Claimant / Counter-Respondent also asserts that the
aforementioned receipts of payment evidence that as from December 2011 – i.e.
starting date of the Claimant / Counter-Respondent with the first team – the
Respondent / Counter-Claimant started to pay the relevant “personal extras to the
salary” for 2011 and 2012 in addition to the monthly salary.
29.
With regard to the alleged advance payments made in January and February 2012
“to encourage [the Claimant / Counter-Respondent] to prepare for the last part of
the season 2011/2012”, the Claimant / Counter-Respondent sustains that such
payments represent “personal extras to the salary” for 2012.
30.
The Claimant / Counter-Respondent also denies having ever been informed by the
Respondent / Counter-Claimant of an upcoming payment of his salary for May 2012
and rejects having received the Respondent / Counter-Claimant’s correspondence
Player A, country B / Club C, country D / Club E, country F
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dated 9 June 2012 relating the Claimant / Counter-Respondent’s alleged
unsatisfactory physical condition.
31.
As regards the Intervening party’s position, it stresses that the Claimant / CounterRespondent terminated the contract with the Respondent / Counter-Claimant
mainly due to the latter’s failure to pay his remuneration and thus, considers that
the Claimant / Counter-Respondent had just cause to terminate the contract. In
particular, the Intervening party points to the monthly salary stated in the contract,
i.e. 5,000 which corresponds to EUR 400 approximately, in order to doubt the
Claimant / Counter-Respondent’s will to sign a contract for such a gross monthly
salary.
32.
As to the Claimant / Counter-Respondent’s physical condition, the Intervening party
asserts that the Claimant / Counter-Respondent did not have the said issue while he
was a member of the Intervening party.
33.
Finally, the Intervening party states that it did not contact the Claimant / CounterRespondent during the course of his contractual relation with the Respondent /
Counter-Claimant. It insists on having signed the Claimant / Counter-Respondent
after the latter informed it of the unilateral termination of the contract with the
Respondent / Counter-Claimant. The Intervening party also points to the salary
offered to the Claimant / Counter-Respondent which is lower than the one offered
by the Respondent / Counter-Claimant in order to evidence that there cannot be
inducement from the Intervening party.
34.
In view of the foregoing, the Intervening party rejects the counterclaim lodged by
the Respondent / Counter-Claimant and requests the reimbursement of its legal
costs to be borne by the Respondent / Counter-Claimant.
35.
After the closure of the investigation-phase, the Respondent / Counter-Claimant
provided its duplica in which it reiterated its interpretation pertaining to the
“personal extras to the salary” as being payments which were not guaranteed and
were only due if the condition of “the player playing for main squad” is met.
According to the Respondent / Counter-Claimant, these relevant payments should
be distinct from the monthly salary provided for in the contract hence, the first ones
are set forth in an additional agreement and the second one in the contract. The
Respondent / Counter-Claimant further stresses that the Claimant / CounterRespondent only claimed such payments as from December 2011, i.e. the first month
he was fielded with the team, and did not request the relevant payments prior
thereto. The Respondent / Counter-Claimant deems that it is only as from June 2012
that the Claimant / Counter-Respondent contended that such payments should have
been “automatic”.
Player A, country B / Club C, country D / Club E, country F
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36.
Besides, the Respondent / Counter-Claimant insists on the Claimant / CounterRespondent not being fit to be fielded with the first team between August and
December 2011. The Respondent / Counter-Claimant further holds that the
individual and specific training program imposed on the Claimant / CounterRespondent was not for any other reason than to increase his performance. The
Respondent / Counter-Claimant also alleges that at no time the Claimant / CounterRespondent complained about such training program despite the adverse financial
consequence of not playing for such reason until December 2011.
37.
Moreover, the Respondent / Counter-Claimant asserts that the Claimant / CounterRespondent did not respect a reasonable deadline before terminating the
contractual relationship insofar as it was given 7 days between the first default
notice and the actual termination.
38.
As to the Intervening party’s liability, the Respondent / Counter-Claimant deems
that in the event the Intervening party avoids sporting sanctions, it still should be
jointly and severally liable with the Claimant / Counter-Respondent for the payment
of compensation.
39.
Upon FIFA’s request, the Intervening party and the Claimant / Counter-Respondent
confirmed that they signed a contract on 20 July 2012, valid as of the date of
signature until 30 June 2015. The contract states that the Claimant / CounterRespondent is entitled to the following fixed remuneration:
EUR 15,000 net as “first installation”;
EUR 16,800 as “3 monthly fees in advance”;
For the season 2012-2013: EUR 5,600 net as monthly salary until 31 December
2012 and EUR 7,000 net from 1 January until 30 June 2013;
For the season 2013-2014: EUR 90,000 as total salary;
For the season 2014-2015: EUR 90,000 as total salary.
40.
Subsequently, on 12 July 2013, the Claimant / Counter-Respondent signed an
employment contract with the club from country F, Club M, valid as of 1 July 2013
until 30 June 2016. According to the said contract, the Claimant / CounterRespondent is to receive a total salary of EUR 96,000 for the season 2013-2014, EUR
108,000 for the season 2014-2015 and EUR 120,000 for the season 2015-2016.
41.
Thereafter, on 8 January 2014, the Claimant / Counter-Respondent signed a
subsequent employment contract with the club from country O, Club N, valid ad of
the date of signature until 30 June 2015. According to the contract, Club N will pay
the Claimant / Counter-Respondent a total fixed remuneration of EUR 900,000 net.
Player A, country B / Club C, country D / Club E, country F
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42.
Finally, on 2 February 2015, the Claimant / Counter-Respondent signed a new
employment contract with Club M, valid as from 1 February 2015 until 30 June 2015.
According to this contract, the Claimant / Counter-Respondent will receive a
monthly salary of EUR 8,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or DRC) analysed whether it was competent to deal with the case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 9 July
2012. Consequently, the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. article 21 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and an club from country
D, with the involvement of a club from country F.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In
this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2015) and reiterating that
the present claim was lodged in front of FIFA on 9 July 2012, the 2010 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as
to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation 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.
Having duly considered all the contracts presented by the parties in the present
matter, the Chamber first of all came to the unanimous conclusion that it was
Player A, country B / Club C, country D / Club E, country F
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obvious that the amounts stipulated in EUR in the additional agreement were to be
considered the genuine salary of the Claimant / Counter-Respondent, contrary to
the amounts in stipulated in the contract. In this regard, the Chamber emphasised
that the Respondent / Counter-Claimant had not provided any plausible explanation
why two different contracts had been signed with the Claimant / Counter-Claimant,
i.e. one containing salary payments in and one containing salary payments in EUR.
6.
In continuation, the Chamber emphasized that art. 1 of the additional agreement is
unilateral and to the benefit of the Respondent / Counter-Claimant only; the
decision to have the Claimant / Counter-Respondent playing for its “main squad” is
left fully to the discretion of the Respondent / Counter-Claimant, a decision on
which the Claimant / Counter-Respondent has no influence whatsoever. In light of
such potestative character of the pertinent contractual clause, the members of the
Chamber agreed that art. 1 of the additional agreement cannot be accepted in
player-club relationships. Indeed, if the Claimant / Counter-Respondent would not
have been selected for the Respondent / Counter-Claimant’s first team for the entire
season or would have been injured during the full season, he would not have been
entitled to his monthly salaries in EUR, which, as mentioned before, were clearly the
Claimant / Counter-Respondent’s genuine salary. Moreover, the Chamber referred
to the receipts of payment submitted by the Respondent / Counter-Claimant and
underlined that the Respondent / Counter-Claimant proceeded to payments named
“individual extras to salary” and that such payments occurred in December 2011, i.e.
when the Claimant / Counter-Respondent was first fielded up with the team, but
also in January and February 2012, i.e. when the Claimant / Counter-Respondent did
not take part in any matches with the first team.
7.
As a result, the Chamber rejected the Respondent / Counter-Claimant’s argument in
this respect and decided that the Claimant / Counter-Respondent was entitled to his
monthly salary in EUR as per the additional agreement, in addition to a monthly
salary in as per the contract.
8.
In due consideration of the above, and in particular in view of the ungrounded
refusal of the Respondent / Counter-Claimant to pay the monthly salaries in EUR to
the Claimant / Counter-Respondent, the DRC acknowledged that, at the time the
Claimant / Counter-Respondent terminated the contract, the Claimant / CounterClaimant had received part of his salary in for April 2012 and had not received his
salary in for May 2012, as well as his salary in EUR for March, April and May 2012.
9.
Consequently, the Chamber considered that the Respondent / Counter-Claimant had
seriously neglected its contractual obligations towards the Claimant / CounterRespondent in a continuous and repeated manner, reason for which the Claimant /
Counter-Respondent had a just cause to terminate the contract on 18 June 2012,
Player A, country B / Club C, country D / Club E, country F
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having previously put the Respondent / Counter-Claimant in default of its financial
obligations on three occasions. Consequently, the Chamber decided that the
Respondent / Counter-Claimant is to be held liable for the early termination of the
employment contact with just cause by the Claimant / Counter-Respondent.
10.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract with just cause
by the Claimant / Counter-Respondent.
11.
First of all, the Chamber, whilst reiterating that the Respondent / Counter-Claimant
was responsible for the termination of the contract with just cause by the Claimant /
Counter-Respondent, decided to reject the counter-claim lodged by the Respondent
/ Counter-Claimant against the Claimant / Counter-Respondent and the Intervening
party.
12.
In continuation, the members of the Chamber concurred that the Respondent /
Counter-Claimant must fulfill its obligations as per the employment contract in
accordance with the general legal principle of pacta sunt servanda. Consequently,
the Chamber 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, i.e. 7,000 in accordance with the contract, consisting of the
balance of salary in for April 2012 and his full salary for May 2012, as well as the
amount of EUR 135,600 as per the additional agreement, composed of his salary in
EUR from December 2011 until May 2012. The Chamber further underlined that the
Claimant / Counter-Respondent acknowledged having received the amount of EUR
52,015 as salary in EUR as per the additional agreement (cf. point I.12 above). The
DRC also took note that the Respondent / Counter-Claimant did not provide
sufficient evidence regarding any further payment. Therefore, the Chamber decided
that the Respondent / Counter-Claimant was liable for the payment of the amount
of 7,000 as balance of salary in for April and full salary for May 2012, plus the
amount of EUR 83,585 as balance of salary in EUR for March, April and May 2012.
13.
Furthermore, considering the Claimant / Counter-Respondent’s claim for interest as
well as the constant practice of the Dispute Resolution Chamber in this regard, the
Chamber ruled that the Respondent / Counter-Claimant must pay 5% interest p.a.
on the amount of EUR 83,585 as from the date on which the Claimant / CounterRespondent lodged his claim, i.e. 9 July 2012, until the date of effective payment.
14.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1
of the Regulations, the Claimant / Counter-Respondent is in principle entitled to
receive from the Respondent / Counter-Claimant compensation for breach of
Player A, country B / Club C, country D / Club E, country F
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contract in addition to the aforementioned outstanding remuneration on the basis
of the relevant employment contract and additional agreement.
15.
In this context, the Chamber outlined that in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
player under the existing contract and additional agreement 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.
16.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract and additional agreement
contained 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 Chamber focussed its attention on art. 6.6.2 of
the contract which stipulates that “the sanctions in the amount of currency of
country Ds equivalent of 5 000 000 (five million) Euros is applied to [the Claimant /
Counter-Respondent] for early termination of the Contract, also the claims are
made for reimbursement to [the Respondent / Counter-Claimant] of the amounts
paid by it to [the Claimant / Counter-Respondent], losses (Art. 22 of the Civil Code of
country D), including those that were carried by [the Respondent / CounterClaimant] for acquisition and payment for services if other footballer, connected
with non-fulfilment by [the Claimant / Counter-Respondent] of his obligations
according to the Contract in result of his termination”.
17.
In this regard, the Chamber took into account that article 6.6.2 of the contract
appears to be unilateral and to the benefit of the Respondent / Counter-Claimant
only. In the light of such unilateral character of the pertinent contractual clause, the
members of the Chamber concluded that it cannot be taken into consideration.
18.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant had to be assessed in
application of the parameters set out in art. 17 par. 1 of the FIFA Regulations. In this
regard, the Dispute Resolution Chamber 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.
Player A, country B / Club C, country D / Club E, country F
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19.
In casu, and in accordance with the Claimant / Counter-Respondent’s claim, the
Chamber highlighted that the residual value of the contract went from June 2012
through June 2015 and amounted to 185,000, equivalent to approximately EUR
18,224, and the residual value of the additional agreement amounted to EUR
992,000. Therefore, and considering the claim of the Claimant / CounterRespondent, the Chamber established that the amount of EUR 1,010,224 shall serve
as the basis for the final determination of the amount of compensation for breach
of contract.
20.
In continuation, the Chamber 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 DRC, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection
with the player’s general obligation to mitigate his damages.
21.
Indeed, the Claimant / Counter-Respondent found employment with the
Intervening party, where, from 20 July 2012 to 30 June 2013, he received a total
fixed-remuneration amounting to EUR 90,600. Subsequently, as per the
employment contract signed with Club M, he received the total amount of EUR
48,000 from July 2013 to December 2013. Thereafter, the Claimant / CounterRespondent was entitled to EUR 650,000 with Club N for the period as from January
2014 until January 2015. Finally, on 2 February 2015, the Claimant / CounterRespondent signed a new employment contract with Club M, according to which
the Claimant / Counter-Respondent was to receive a total salary of EUR 40,000 from
February 2015 to June 2015.
22.
On account of the above, the DRC determined that the Respondent / CounterClaimant must pay the amount of EUR 181,624 as compensation for breach of
contract in the case at hand.
23.
In addition, taking into account the Claimant / Counter-Respondent’s request as
well as the constant practice of the Dispute Resolution Chamber in this regard, the
Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant
/ Counter-Respondent interest of 5% p.a. on the amount of EUR 181,624 as of 9 July
2012 until the date of effective payment.
24.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant /
Counter-Respondent’s claim pertaining to procedural costs in accordance with art.
18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding
jurisprudence in this regard.
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25.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant / Counter-Respondent
is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent is partially accepted.
2.
The counter-claim of the Respondent / Counter-Claimant is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent,
within 30 days as from the date of notification of this decision, outstanding
remuneration in the amount of 7,000.
4.
In the event that the amount set forth in point 3. is not paid by the Respondent /
Counter-Claimant within the stated time limit, interest at the rate of 5% p.a. will fall
due as of expiry of the aforementioned time limit and the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration and a
formal decision.
5.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent,
within 30 days as from the date of notification of this decision, outstanding
remuneration in the amount of EUR 83,585 plus 5% interest p.a. as from 9 July 2012
until the date of effective payment.
6.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent,
within 30 days as from the date of notification of this decision, compensation for
breach of contract in the amount of EUR 181,624 plus 5% interest p.a. as from 9 July
2012 until the date of effective payment.
7.
In the event that the amounts foreseen in points 5. and 6. plus interest are not paid
within the stated time limit by the Respondent / Counter-Claimant, the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
8.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
9.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant 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.
Player A, country B / Club C, country D / Club E, country F
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*****
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 Dispute Resolution Chamber:
Marco Villiger
Acting Deputy Secretary General
Encl. CAS directives
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