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 a matter between the player
Player A, country B
as Claimant / Counter-Respondent
and the club
Club C, country D
as Respondent / Counter-Claimant
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 June 2011, Player A (hereinafter: the player or the Claimant / Counter-Respondent),
and the club from country D, Club C (hereinafter: the club or the Respondent / CounterClaimant), concluded an employment contract (hereinafter: the contract) valid as from 6
July 2011 until 30 June 2014.
2.
In accordance with art. 7 par. 1 of the contract, the player was entitled to a “monthly
salary, excluding compensation, incentive, and welfare payments” as follows:
- from 6 July 2011 until 30 June 2012, USD 25,336 “according to the National Bank of
country D on the day of accrual”,
- from 1 July 2012 until 30 June 2013, USD 28,571 “according to the National Bank of
country D on the day of accrual”,
- from 1 July 2013 until 30 June 2014, USD 32,143 “according to the National Bank of
country D on the day of accrual”.
3.
In addition, and in accordance with art. 9 of the contract, the player was entitled to the
following amounts:
- (art. 9.1) a compensation for the costs of renting an apartment in the amount of
50,000 per month,
- (art. 9.2) an “indemnification” for the travel costs to work in country D in the
amount of USD 720,000 payable “according to the National Bank of country D on
the day of accrual, with the amortization schedule”:
o from 6 July 2011 until 30 June 2012, USD17,500 per month “according to
the National Bank of country D on the day of accrual”,
o from 1 July 2012 until 30 June 2013, USD 20,000 per month “according to
the National Bank of country D on the day of accrual”,
o from 1 July 2013 until 30 June 2014, USD 22,500 per month “according to
the National Bank of country D on the day of accrual”.
4.
Moreover, as per art. 4 par. 1.6 of the contract, the club shall provide the player with the
necessary sports equipment and other logistical support necessary to carry out his work.
5.
Furthermore, art. 8 of the contract, inter alia, stipulates that the player is subject to social
insurance, life and health insurance and medical insurance. In this respect, art. 4 par. 1 of
the contract provides, inter alia, that the club has to provide life insurance and
employee’s health and medical insurance for workers in addition to the mandatory
health insurance program.
6.
On 13 December 2012, the player lodged a claim against the club in front of FIFA for
breach of contract requesting, after amending his claim, the payment of the total
amount of USD 2,291,266, as follows:
- USD 720,000 as “indemnification” for travel costs, as per article 9.2. of the contract
(cf. point I.3 above);
- USD 58,410 as accommodation expenses, as per art. 9.1 of the contract, i.e. 36 x
50,000, as per the exchange rate of March 2013 (cf. point I.3 above);
Player A, country B / Club C, country D
2
-
-
-
USD 700,114 as remuneration, as per art. 7 of the contract, i.e. USD 1,032,600 due
for the entire duration of the contract minus USD 332,486 effectively paid by club
(cf. point I.2 above), plus 5% interest p.a. as “from the day in which the club was in
breach of agreement”. Alternatively, in case the DRC deems that the tax rate of
13% should be applied, the player requests the amount of USD 565,876 (USD
1,032,600 - 13% - USD 332,486);
USD 750,000 for “damaging the player’s professional ability and reputation”;
USD 13,281 as medical expenses, as follows:
o USD 6,602 for the medical costs of the surgery in country B;
o USD 124 for the physiotherapy costs;
o USD 6,555 for the flights to medical visits;
USD 49,461 as legal fees corresponding to CHF 45,000; and
sporting sanctions on the club.
7.
In his claim, the player alleged that the club constantly failed to pay his financial rights as
per the contract, having made several incomplete payments regarding salaries, travel
expenses, visa and accommodation expenses. In particular, the player claims that until
December 2012, the club had paid him the total amount of 11,319,278.45, corresponding
to USD 332,486. Furthermore, the player claims to have been injured while playing and,
therefore, had to undergo surgery and physiotherapy, the costs of which he fully bore.
8.
In spite of having allegedly put the club in default for the payment of the outstanding
amounts, by means of his letter dated 27 November 2012, the player did not receive his
outstanding monies. Nonetheless, he continued executing the contract signed with the
club, but simultaneously lodged the present claim before FIFA.
9.
In its reply to the player’s claim, the club stated that the amount of USD 720,000 as
“indemnification” for travel costs (cf. point I.3 above) does not constitute wages, but a
reimbursement of the relocation costs effectively incurred by the player in moving to
country D. As per the club, according to the law in country D, these amounts can only be
paid in case the player presents consistent evidence that he indeed incurred such
expenses, which he allegedly failed to do. Therefore, as per the club, he should not be
entitled to any amount in this respect, as it would consist of undue profit.
10.
As to the allegedly outstanding salaries, the club asserted that every person residing in
country D “for at least 183 days within 12 consecutive months” has to pay 13% of taxes
over their income. This percentage must be withheld by the club and, consequently,
deducted from any amounts stipulated in the contract. Notwithstanding the foregoing,
the club acknowledged that it did not pay the player’s salaries of November and
December 2012, in the amount of 1,831,679.62, corresponding to approx. USD 61,025.56.
11.
As to the alleged accommodation expenses supposedly incurred by the player from 19
July 2011 until 19 June 2012, the club stated that they should not be taken into account
since it provided the player with the “living room, on account of the obligation in
paragraph 9.1. Employment contract”. The club, however, acknowledges owing the
player the amount of 158,726.22 in rent arrears for the period between 24 July 2012 and
31 December 2012.
Player A, country B / Club C, country D
3
12.
With regard to the player’s request for the reimbursement of medical expenses, the club
points out that the player was absent from training on 20 July 2012 and as from 23 July
2012 until 27 July 2012. In this regard, the club alleged that the player justified his
absence by saying that he received medical treatment in country B for an injury, but the
club stated that he did not inform it of such treatment nor visited the club’s doctor. His
behaviour was considered by the club as a “rejection of the training and game play
without good reason” and “a gross violation of the labour contract”.
13.
In light of the foregoing, the club acknowledged a debt in favour of the player in the
total amount of 1,990,405.82, equivalent to USD 66,313.80 on 31 January 2013 (cf. points
I.10 and I.11 above). However, it rejected any other supposedly outstanding amount.
14.
In his replica, the player stated that at the beginning of February 2013, he was informed
by a colleague that the club allegedly terminated his employment contract, since it
removed him from the player’s list in its website and informed the media that their
relationship was terminated. The player stressed that, by that time, the debt of the club
was “very significant” but he always believed that the club would pay him after his
recovery, that being the reason why he did not terminate the employment relationship
“although he had just cause to do so”.
15.
In addition, the player referred to the pre-contract allegedly sent by the club to him via
e-mail on 25 March 2011, and stated that the yearly salary would be EUR 400,000 net, i.e.
EUR 1,200,000 for the entire duration of the contract. However, when the player arrived
at the club, the latter explained him that for tax reasons it wished to split the salary
remuneration in two different articles: one described as “payment of labour” and the
other as “payment of travel costs and apartment”. The player accepted said condition,
unaware that this fact would supposedly be misused by the club to avoid paying the
amount offered in the pre-contract.
16.
In this respect, the player also deems that the wording of art. 9.2 of the contract supports
his position, since it provides for fixed monthly amounts, just as the salary provided for in
art. 7 of the contract. As a result, the player is of the opinion that it is not correct to
allege that he had to justify such costs.
17.
As to the outstanding salaries, the player stated that all amounts stipulated in the
contract should be considered as net and pointed out that the club did not provide any
evidence of their obligation to deduct the indicated percentages as taxes, as per law in
country D. Furthermore, he stated that it is the club’s duty to prove that it transferred the
money to him. In particular, the player alleged that the calculations of the club’s
accountant (cf. point I.13 above) cannot be deemed as evidence of any payment to the
player and that the only valid evidence in this respect is his bank account statements (cf.
point I.7 above). As a result, the player insists on his claim.
18.
As to his alleged absences, he assessed that on 20, 23, 24, 25, 26, 27 and 31 July 2012 he
trained with the club. In this respect, the player stated that the documents provided by
the club are not signed by him and that he never received any notice or complaint. In this
respect, the player alleged that, according to his passport, he was in country D from 7
Player A, country B / Club C, country D
4
July 2012 to 1 September 2012, date on which he travelled to country B to receive
medical treatment, following the club’s instructions.
19.
In this regard, the player further stated that the only notice of absence he ever received
from the club was sent on 14 February 2013, related to an alleged absence on 10 January
2013, i.e. more than one month after his alleged absence and probably in reaction to his
claim. In this regard, he further claims to have followed the instructions of the club’s
medical staff and that they were always informed of his condition.
20.
In its duplica, the club rejected the player’s interpretation of the pre-contract and insisted
that the travel costs are only payable upon presentation of proof of expenses by the
player. Furthermore, the club insisted on its obligation to retain 13% as income taxes
over the player’s remuneration.
21.
As to the alleged absence of the player in July 2012, the club insisted that it was unaware
of the player’s whereabouts. In this respect, the club stated that memos, reports and
statements were drawn up, but since the player was absent for a short period of time it
did not send him any notice. Equally, as to the alleged departure of the player to country
B in order to have surgery, the latter stressed that the only person authorised to make
final decisions regarding a player’s treatment is the General Director of the club, and not
the medical staff. Thus, the club is of the opinion that the player violated the contract as
well as the “Regulation on sporting schedule”, when he supposedly decided on his own
for the medical treatment of his injury. In this context, the club further stated that the
injury of the player still allowed him to perform his duties and to participate in individual
training. However, the player allegedly ignored his duties by being absent at training as
from 10 January 2013, which the club considers as “a good reason for the club to
terminate the contract unilaterally”.
22.
With his unsolicited correspondence dated 15 October 2013, the player, among others,
informed FIFA that the club “specifically informed the player that it will put an end to his
professional career if he does not waive all his claims at FIFA in this matter”.
23.
In reply to the player’s unsolicited correspondence, the club maintained its previous
argumentation and provided a copy of a report of the Country D Tax Authorities, stating
that any reimbursement of travel costs should be supported by documentary evidence.
24.
The club lastly requested the DRC to reject the amendment of the player’s claim and to
condemn him to pay “a compensation” to the club for breach of the contract, plus the
administration, “Panel” and defence costs.
25.
In his final position, the player rejected the club’s counter-claim and reiterated his
previous allegations. As to the alleged breach of contract on his part, he asserted that
even if the club would have been able to prove it, such breach would only have
happened when the club was already in breach for the non-payment of his financial
rights. The player further stressed that according to Annex 1 of the club’s reply, the law
in country D obliges the party applying for the tax reimbursement (i.e. the club), and not
the player, to provide evidence of the travel expenses.
Player A, country B / Club C, country D
5
26.
Finally, the player stated that he did not conclude any new employment agreement.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the matter at stake. In this
respect, it took note that the present matter was submitted to FIFA on 13 December
2012. Consequently, the 2012 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2012 and 2014
edition 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 a club from country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2010, 2012 and 2014), and considering that the claim was lodged on 13 December 2012,
the 2012 edition of the aforementioned 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 emphasized that in the following consideration it will refer only to the
facts, arguments and documentary evidence which it considered pertinent for the
assessment of the matter at hand.
5.
First of all, the members of the Chamber acknowledged that, on 1 June 2011, the
Claimant / Counter-Respondent and the Respondent / Counter-Claimant had concluded
an employment contract valid as from 6 July 2011 until 30 June 2014.
6.
The Chamber further observed that, on 13 December 2012, the Claimant / CounterRespondent lodged a claim in front of FIFA against the Respondent / Counter-Claimant
seeking payment of the total amount of USD 2,291,266, asserting that it had not fulfilled
its contractual obligations towards him. More specifically, the Claimant / CounterRespondent indicated that the Respondent / Counter-Claimant had failed to pay his
remuneration and, in particular, that he had only received for the period between 6 July
2011 and 13 December 2012 a remuneration in the amount of USD 332,486, whereas he
Player A, country B / Club C, country D
6
should have received USD 446,887, the travel expenses in the amount of USD 350,000, the
accommodation in the amount of USD 58,410 and the medical expenses incurred after he
injured himself, in the amount of USD 13,281.
7.
In continuation, the DRC noted that the Respondent / Counter-Claimant admitted that
the player’s salaries of November and December 2012, in the amount of 1,831,679.62
(approx. USD 61,025.56, cf. I.10 above) remained outstanding. However, income taxes at
a rate of 13% are due in country D and travel costs can only be reimbursed against
presentation of evidence of costs incurred.
8.
Furthermore, the Chamber observed that the Respondent / Counter-Claimant claimed
that the player left the club without authorisation and underwent surgery without the
club’s approval, which was understood as a “rejection of the training and game play
without good reason” and “a gross violation of the labour contract”. Thus, it lodged a
counterclaim against the Claimant / Counter-Respondent for breach of contract, as
detailed in point I.24 above.
9.
In continuation, the DRC noted that the Claimant / Counter-Respondent rejected the
counter-claim lodged by the Respondent / Counter-Claimant by stating that the latter
could not prove the alleged breach of contract on his part and that, even in case the
player had breached the contract, such breach would only have happened when the club
was already in breach due to the non-fulfilment of its financial obligations towards the
player.
10.
Lastly, the Chamber noticed that the Claimant / Counter-Respondent further rejected the
counter-claim by stating that, according to the law in country D, the party applying for
the tax reimbursement (i.e. the club) shall provide evidence of the expenses.
11.
Bearing in mind the foregoing, the DRC underscored that the underlying issue in this
dispute, considering the claim of the Claimant / Counter-Respondent, the counterclaim of
the Respondent / Counter-Claimant and the allegations of both parties, was to determine
whether the employment contract had been unilaterally terminated with or without just
cause by one of the parties, and which party was responsible for the early termination of
the contractual relationship in question. The DRC also underlined that, subsequently, it
would be necessary to determine the consequences for the party that caused the unjust
breach of the relevant employment contract.
12.
In view of the above, the Chamber first deemed necessary to establish the exact date of
termination of the contract, in view of the absence of a written termination document
issued by any of the parties. In this context, the DRC noted that, despite the allegedly
outstanding remuneration and the claim lodged before FIFA against the club, the
Claimant / Counter-Respondent did not terminate the employment contract. At the
beginning of February 2013, he was informed by a colleague that the club had removed
him from the players’ list in its website and informed the media that the employment
relationship with him was terminated. In view of the player’s arguments in this respect,
which remained uncontested by the club, and in the absence of a formal termination
Player A, country B / Club C, country D
7
document, the Chamber could conclude that the employment relationship between the
parties was discontinued on an unspecified date in the course of February 2013 and
terminated for sure on 1 March 2013.
13.
Having established the foregoing, the DRC subsequently went on to deliberate as to
whether the reasons given by the Claimant / Counter-Respondent for considering the
contract as unilaterally terminated as from 1 March 2013, namely the alleged existence of
outstanding contractual amounts, could in fact be considered as a just cause for
premature termination.
14.
At this point and for the sake of good order, the DRC deemed it appropriate to remind
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 from an alleged fact shall
carry the respective burden of proof. Bearing in mind the aforementioned principle, the
DRC noted that in the present case the Respondent / Counter-Claimant bore the burden
of proof regarding the payment of the Claimant / Counter-Respondent’s remuneration.
15.
In this respect, the DRC first took note of the arguments brought up by the Respondent /
Counter-Claimant for the non-payment of the Claimant / Counter-Respondent’s
remuneration and, in particular, regarding the taxes regime on personal income in
country D. Subsequently, the Chamber noted that the Respondent/Counter-Claimant
deemed that the amounts provided for in art. 9.2 of the contract (cf. point I.3 above),
described as “indemnification” for the travel costs to work in country D, were not part of
the Claimant / Counter-Respondent’s wages and were only payable upon presentation of
proof by the latter that he indeed incurred such expenses. In this context, the
Respondent / Counter-Claimant further stated this pre-requisite for payment is
established in the law in country D. Furthermore, the DRC noted that the Respondent /
Counter-Claimant deemed that it did not have to pay for the accommodation of the
player for the period between 19 July 2011 and 19 June 2012 as a tenancy contract had
been signed by the club on behalf of the player for such period. Finally, the DRC
acknowledged that, in the Respondent / Counter-Claimant’s opinion, the medical
expenses incurred should be borne by the player as they were not agreed upon by the
club.
16.
Having said that, the Chamber observed that, according to the employment contract, the
Respondent / Counter-Claimant should have paid the Claimant / Counter-Respondent the
total amount of USD 504,029 as a salary until the date of termination, i.e. on 1 March
2013. Furthermore, the DRC noted that the player claims to have received from the club
only the amount of USD 332,486 for the entire duration of the contract. At this point, the
Chamber deemed it appropriate to explain that, due to the unspecified date of the
discontinuation of the contract in February 2013, the amounts due as per the contract for
this month will not be taken into account in establishing the outstanding amount until
the termination.
17.
In light of the above, the Chamber noted that the amount of USD 171,543 corresponding
to approximately six monthly salaries appears to have been outstanding at the moment
Player A, country B / Club C, country D
8
the contract was considered terminated, i.e. on 1 March 2013. In continuation, and
bearing in mind the principle of the burden of proof, the DRC noted that the club not
only failed to provide consistent evidence that it in fact paid the player the allegedly
outstanding salaries, but it even acknowledged not having paid his salaries for the
months of November and December 2012 (cf. point I.10 above).
18.
In continuation, the Chamber turned its attention to the payment of relocation costs
requested by the player in accordance with art. 9.2 of the contract. In this respect, the
DRC noted that, in accordance with the clear wording of art. 9. 2 of the employment
contract, the club was obliged to pay to the player a fixed monthly amount as relocation
costs. In this respect, the Chamber underscored that the employment contract does not
provide for any condition whatsoever for such payments to be concluded. As such, the
Chamber was of the unanimous opinion that the amounts stipulated in art. 9.2 of the
employment contract were part of the Claimant / Counter-Respondent’s salaries and that,
consequently, he was entitled to such amounts without any further requirements.
Bearing in mind the foregoing, the Chamber noted that the player argues that he was
never paid such relocation costs by the club. The latter, for its part, does not dispute the
non-payment, but only maintains that such amounts are only due upon the presentation
of evidence of costs. As explained before, such argument of the club cannot be sustained
and, as a consequence, the amount of USD 350,000 was equally outstanding at the time
of the termination, i.e. on 1 March 2013.
19.
Subsequently, the Chamber focused its attention on the player’s claim for allegedly
outstanding accommodation costs in accordance with art. 9.1 of the contract. In this
context, the DRC noted that the club has provided FIFA with a copy of a tenancy contract
of an apartment for the player for the period between 19 July 2011 and 19 June 2012. In
view of the documentation provided, the DRC concluded that for the aforementioned
period, the Respondent / Counter-Claimant complied with its obligation to pay the
Claimant / Counter Respondent the accommodation costs due to him as per the contract.
In continuation, the DRC, observed that, for the period between 24 July 2012 and 31
December 2012, the club in fact acknowledged a debt in the amount of 158,726.22
regarding the accommodation expenses. In this respect, the Chamber emphasised that,
according to the employment contract, the player was entitled to receive a monthly
compensation for the accommodation costs in the amount of 50,000 and that, by the
time of termination, 350,000 should have been to the player, for the period between 20
July 2012 and February 2013. The club has not presented any consistent evidence that the
non-acknowledged accommodation costs had in fact been acquitted. Thus, it could
conclude that, the accommodation expenses in the amount of 350,000 remained
outstanding at the time of termination.
20.
In continuation, the DRC referred to the player’s allegation that medical expenses borne
by him and allegedly reimbursable by the club had also remained outstanding at the time
of termination. In this regard, the Chamber deemed it appropriate to refer the parties to
the wording of the contract and underscored that there is not a specific provision in the
contract in accordance with which the Respondent / Counter-Claimant shall cover the
medical costs of the Claimant / Counter-Respondent for a treatment carried out abroad
Player A, country B / Club C, country D
9
or, in particular, in country B. As a result, the Chamber, based on its well-established
jurisprudence, formed the belief that the costs related to the surgery of the player in
country B shall not be covered by the Respondent / Counter-Claimant and are, therefore,
not to be considered as outstanding.
21.
Finally, the DRC focused its attention on the club’s allegation that the player had been
responsible for the breach of contract, due to his unauthorized absence on 20 July 2012
and as from 23 July 2012 until 27 July 2012. In this regard, the DRC referred to art. 12 par.
3 of the Procedural Rules, in accordance with which, any party claiming a right on the
basis of an alleged fact shall carry the burden of proof. In this context, the Chamber
noted that the club failed to provide substantial evidence of the absence of the player
and that, on the contrary, the player not only rejected this argumentation, but also
provided a copy of his passport in accordance with which, he was in country D. As a
result, the DRC concluded that the club’s argumentation in this regard cannot be
sustained.
22.
In light of all the foregoing, the Chamber concluded that, on 1 March 2013, a
considerable amount of remuneration, corresponding to USD 171,543 and approximately
6 monthly salaries, as well as the entirety of the relocation costs and the accommodation
costs for the period of 20 July 2012 until February 2013, had remained unpaid by the
Respondent / Counter-Claimant. Consequently, the DRC took the view that the Claimant /
Counter-Respondent had a just cause to consider the contract as terminated on 1 March
2013 and, taking into consideration art. 17 par. 1 of the Regulations, he is consequently
entitled to receive an amount of money as compensation for the breach of contract on
the part of the Respondent / Counter-Claimant, in addition to any outstanding payments
on the basis of the relevant contract.
23.
Prior to establishing the amount of compensation for breach of contract due to the
Claimant / Counter-Respondent by the Respondent / Counter-Claimant, the DRC
proceeded with the calculation of the outstanding monies payable to the Claimant /
Counter-Respondent under the terms of the employment contract until the date of
termination, i.e. 1 March 2013.
24.
In this regard, and taking into consideration the general legal principle of pacta sunt
servanda, as well as the extensive considerations made in points II. 13 to II. 20 above, the
Chamber concluded that the Respondent / Counter-Claimant must fulfil its obligations as
per the employment contract concluded with the Claimant / Counter-Respondent and,
consequently, is to be held liable to pay the outstanding remuneration due to the latter
in the total amount of USD 171,543, which corresponds to outstanding monthly salaries,
plus USD 350,000 as relocation costs as well as 350,000 as accommodation costs.
25.
The Chamber further established that an interest rate of 5% p.a. would apply over each
of the aforementioned amounts, as from 1 March 2013, as per the Claimant / CounterRespondent’s claim.
Player A, country B / Club C, country D
10
26.
Having stated the above, the Chamber turned its attention to the calculation of the
amount of compensation payable to the Claimant / Counter-Respondent by the
Respondent / Counter-Claimant in the case at stake. In doing so, the members of the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and 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.
27.
In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract 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
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
28.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant / CounterRespondent had to be assessed in application of the other parameters set out in art. 17
par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
29.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant / Counter-Respondent under the terms of the
employment contract as from the date of termination, i.e. on 1 March 2013, until 30 June
2014. The Chamber concluded that the amount of USD 911,947, corresponding to the
salaries, the travel expenses as well as the accommodation costs, serves as the basis for
the final determination of the amount of compensation for breach of contract.
30.
In continuation, the Chamber verified as to whether the Claimant / Counter-Respondent
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 for breach of contract in connection with the
player’s general obligation to mitigate his damages.
31.
In this regard, the Chamber noted that, as informed by the Claimant / CounterRespondent, no new employment contract was signed by the latter between 1 March
2013, i.e. the date of termination, and 30 June 2014, i.e. the expiry date of the contract.
Notwithstanding the foregoing, considering the Claimant / Counter-Respondent’s
obligation to try to mitigate his damages, as well as the fact that between the
Player A, country B / Club C, country D
11
termination and the original expiry of the contract the player had two registration
periods in which he could have found new employment, the Chamber concluded that the
Respondent / Counter-Claimant shall pay the Claimant / Counter Respondent the amount
of USD 630,000 as compensation for breach of contract without just cause, which the DRC
considered to be a reasonable and justified amount of compensation.
32.
Furthermore, taking into account the Claimant / Counter-Respondent’s petition and the
constant practice of the DRC, the members of the Chamber decided to award the
Claimant / Counter Respondent interest at the rate of 5% p.a. as from 1 March 2013 until
the date of effective payment.
33.
For all the above-reasons, the DRC decided to partially accept the Claimant / CounterRespondent’s claim and to hold the Respondent / Counter-Claimant liable to pay the
Claimant / Counter-Respondent the amount of USD 521,543 plus 350,000, plus 5%
interest p.a. as from 1 March 2013 until the date of effective payment, as outstanding
remuneration, relocation expenses and accommodation costs, as well as the amount of
USD 630,000, plus 5% interest p.a. as from 1 March 2013 until the date of effective
payment, as compensation for breach of contract without just cause.
34.
Moreover, the Chamber rejected any claim for legal expenses and procedural
compensation in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s respective longstanding jurisprudence in this regard.
35.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant / Counter-Respondent as well
as the counterclaim of the Respondent / Counter-Claimant are rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, the
outstanding remuneration in the amount of USD 521,543, plus 5% interest per year on
said amount as from 1 March 2013 until the date of effective payment.
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, the outstanding
amount of 350,000, plus 5% interest per year on said amount as from 1 March 2013 until
the date of effective payment.
4.
Equally, the Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, the
amount of USD 630,000 as compensation for breach of contract, as well as 5% interest
per year on the said amount as from 1 March 2013 until the date of effective payment.
Player A, country B / Club C, country D
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5.
In the event that the above-mentioned amounts due to the Claimant / CounterRespondent, are not paid by the Respondent / Counter-Claimant within the stated time
limits, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and decision.
6.
Any further request filed by the Claimant / Counter-Respondent is rejected.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittance is to
be made and to notify the Dispute Resolution Chamber of every payment received.
8.
The counterclaim of the Respondent / Counter-Claimant is rejected.
*****
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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
13