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 claim presented by the player,
Player A, from country B
as Claimant / Counter-Respondent
against the club,
Club C, from country D
as Respondent / Counter-Claimant
with the club,
Club E, from country F
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
In January 2014, the player from country B, Player A (hereinafter: player or
Claimant / Counter-Respondent) and the club from country D, Club C (hereinafter:
Club C or Respondent / Counter-Claimant) signed an employment contract valid as
from January 2014 until 31 May 2018.
2.
In accordance with the employment contract, the player was entitled to receive
the following remuneration:
a. 2013-14 season:
i. Signing-on fee of EUR 200,000;
ii. EUR 350,000 payable in 4 equal instalments of EUR 87,500 each on
28 February, 31 March, 30 April, and 31 May 2014;
iii. Match bonuses: EUR 10,000 per match in which he was fielded (1
out of 11 players); EUR 5,000 per match in which he enters the field
as substitute; EUR 2,500 if he was included in 18 players’ match list.
b. 2014-15 season:
i. Yearly remuneration of EUR 1,100,000
ii. Same match bonuses as those for 2013-14 season.
c. 2015-16 season:
i. Yearly remuneration of EUR 1,100,000
ii. Same match bonuses as those for 2013-14 season.
d. 2016-17 season:
i. Yearly remuneration of EUR 1,200,000
ii. Same match bonuses as those for 2013-14 season.
e. 2017-18 season:
i. Yearly remuneration of EUR 1,200,000
ii. Same match bonuses as those for 2013-14 season.
3.
In addition, the player was entitled to receive the following fringe benefits:
a. Car;
b. 4 business class round trip flight tickets country D-country B per season;
c. Housing benefit of up to EUR 2,500 per month.
4.
Articles 4 c) and 5 c) of the contract, dealing with the obligations of the club and
the player, respectively, stipulate that the parties shall be obliged “To respect the
Statutes, Regulations, including the Code of Ethics and Decisions of FIFA, UEFA
and Football Federation from country D … .”.
5.
According to art. 9 of the contract all disputes will be submitted exclusively to the
FIFA DRC and resolved in accordance with the FIFA Regulations on the Status and
Transfer of Players in first instance.
Player A, from country B / Club C, from country D / Club E, from country F
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6.
On 5 May 2014, the player put Club C in default in writing of payment of the total
amount of EUR 370,000, which amount includes the first 3 instalments of EUR
87,500 falling due on 28 February, 31 March, and 30 April 2014, respectively, as
well as EUR 100,000 in match bonuses and EUR 7,500 relating to rent, setting 12
May 2014 as deadline to pay. The default notice further includes the mention that
the player “herewith reserves all his rights”.
7.
On 14 May 2014, having received no reaction to his default notice, the player
terminated the employment contract in writing.
8.
On 10 July 2014, the player signed an employment contract with the club from
country F, Club E, valid as from 1 July 2014 until 30 June 2018, in accordance with
which the player was entitled to receive, inter alia, a monthly salary of EUR
150,000, to be increased by EUR 25,000 or EUR 10,000 retroactively as per 1 July in
the event of the club having entered the UEFA Champions League group stage or
UEFA Europa League group stage, respectively.
9.
In addition, according to the new employment contract, the player is entitled to
the guaranteed amount of EUR 420,000 as match bonuses and the guaranteed
amount of EUR 400,000 as seasonal performance bonus for each of the 2014-15
and 2015-16 seasons, on condition that on the respective due dates (June and July
of respective seasons) the player is still contractually bound to the club and was
not transferred on a loan basis.
Claim of the player
10.
On 13 June 2014, the player lodged a claim against Club C in front of FIFA asking
that it be established that he terminated the employment with just cause due to
the persistent failure of Club C to comply with its contractual obligations, whereas
he always duly complied with his obligations and no complaints had been
received from Club C.
11.
The player explains that after he terminated the contract, Club C paid him the
amount of EUR 362,301 in several payments throughout the month of May 2014,
in particular, as of 15 May 2014.
12.
Therefore, the player asks to be awarded payment of outstanding remuneration
and compensation for Club C’s breach of contract as follows:
a. EUR 39,715.13 in outstanding salary and match bonus payments (i.e. EUR
402,016.13 due until 14 May 2014, minus EUR 362,301 received) plus 5%
interest;
Player A, from country B / Club C, from country D / Club E, from country F
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b. EUR 8,750 in outstanding housing benefits (until 14 May 2014) plus 5%
interest as of 14 May 2014;
c. EUR 4,647,983.87 as compensation for breach plus 5% interest as of 14
May 2014 (residual value as of 15 May 2014 until 31 May 2018).
13.
In addition, the player asks that sporting sanctions be imposed on Club C and that
the legal expenses be paid by Club C.
Club C’s response to the claim and counterclaim
14.
Club C fully rejects the player’s claim, which it considers ill-founded and made in
bad faith.
15.
It highlights that it was known to all of its players that the club was suffering
from financial distress due to the strong devaluation of the currency from country
D against the Euro, bearing in mind that most of its debts were in Euro. It stresses
that the player was not treated differently from the other players, who, for their
part, had not brought up any claim. Club C’s position was that all players were
treated equally under such financial circumstances.
16.
Club C further points out that the player might have lost confidence in his
position at the club, as due to restrictions imposed by the Football Federation
from country D the club could only include 6 foreign players in match lists and as
of the new season only 5 foreign players. In this regard, Club C highlights that the
player had been included in the 18 players’ list in 10 out of the 17 super league
matches “only”, which might not have been ideal for a young promising player. In
support of its allegations, Club C presented press articles in which the player
expressed his concern that he may be out of the 18 player list.
17.
Club C further deems that the player cannot claim that he was in a financially
precarious situation, since it had duly paid the EUR 200,000 signing-on fee to the
player.
18.
In addition, Club C points out that the player had not included any warning of
termination of contract in his default notice and that he had not mentioned any
such consequence during his subsequent phone conversation with the Club C’s
administrative manager, in which the player allegedly informed Club C that he
understood the situation.
19.
Club C adds that, at his request, on 12 May 2014, the player was granted 2 days’
leave to deal with “personal affairs in country G”. Contrary to his statements,
Club C then found out via the press that the player got married in country B on 13
Player A, from country B / Club C, from country D / Club E, from country F
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May 2014 without informing anybody about it. According to the club, obviously
the player already knew by then that he would not return to the club after his
wedding.
20.
According to Club C, instead, the player started negotiations with other clubs and
signed on with the club from country F, Club E.
21.
Club C considers that the player must already have been in contact with another
club while he was still under contract with it and that his decision to terminate
the contract must have been motivated by his negotiations with Club E.
22.
Club C adds that it tried to settle the matter amicably in order to “win back” the
player, without success.
23.
According to Club C, apart from the FIFA regulations and Swiss law, the Football
Federation from country D regulations are also applicable to the present matter in
accordance with art. 5 (c) of the employment contract, art. 11 of the Football
Federation from country D Regulations, art. 25 par. 6 of the FIFA regulations and
art. 2 of the FIFA procedural rules.
24.
Club C holds that the player had no just cause to terminate the contract and that
he has not presented sufficient evidence to demonstrate such alleged just cause.
25.
First of all, while referring to decisions issued by the Court of Arbitration for Sport
(CAS) and Swiss law, Club C points out that the player has not demonstrated that
there was a “serious” breach by the club, i.e. a breach to such extent that the
player is entitled to terminate the contract unilaterally. It considers that only 10%
(“EUR 462,301 and USD 39,500”) of the total amount to be paid to the player
during the contractual term (“EUR 5,000,000”) was outstanding.
26.
Secondly, Club C holds that the player has not given an appropriate warning
about his intention to terminate the contract, which is a prerequisite for
terminating a contract with just cause due to non-payment of salaries. Therefore,
the player’s reliance on non-payment as a ground for the termination
demonstrates his bad faith and his notice only asking to proceed with payment
does not satisfy this condition.
27.
In this regard, Club C further highlights that the player had remained silent for a
period exceeding two months and that only on 5 May 2014 did he send his sole
default notice, only asking for payment of outstanding remuneration without
indicating any further consequences. The notice of termination was then sent
within a short time-frame, which, according to Club C, goes against the principle
of good faith.
Player A, from country B / Club C, from country D / Club E, from country F
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28.
In continuation, Club C points out that the player failed to follow the formalities
under the Football Federation from country D regulations. According to Club C,
given that there is no rule at international level regarding the procedural
requirements for terminating a contract, the Football Federation from country D
regulations should be taken into consideration.
29.
Club C stresses that according to the Football Federation from country D
Regulations, the player should have sent a default notice via public notary giving
the club a 30 days’ time limit to pay, 7 days following which he could have
terminated the contract via public notary, which requirements were not followed
by the player.
30.
Club C further holds that the player has not respected the “notification
procedure” of the contract referring to its art. 8, as a result of which fax
communications allegedly are not valid.
31.
As regards payments made to the player, Club C highlights that in addition to the
amounts acknowledged by the player (cf. point I./11. above), it further paid him
the amounts of EUR 87,500 (salary and/or rent) and EUR 12,500 (bonuses) as well
as out of contract bonuses of USD 39,500 on 9 June 2014.
32.
With respect to the amount of compensation sought by the player, Club C deems
that it cannot correspond to the residual value of the employment contract, since
compensation cannot be used as a tool for enrichment.
33.
Club C considers that the player abused his alleged right to terminate the contract
and acted in bad faith, since his real motive was enrichment and to sign on with
another club without having to compensate for the transfer fee Club C paid for
the player.
34.
For these reasons, Club C lodged a counterclaim against the player for
termination of the employment contract without just cause and asks to be
awarded:
a. Compensation in the amount of EUR 3,500,000;
b. Interest of 5% as of 11 March 2014 over the instalment of EUR 875,000
that was already paid to the player’s former club;
c. Unspecified compensation for the club’s expenses incurred for the
replacement of the player;
d. EUR 250,000 for “non-pecuniary damages”;
e. Legal expenses.
35.
In addition, Club C asks that sporting sanctions be imposed on the player.
Player A, from country B / Club C, from country D / Club E, from country F
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36.
The amount of compensation sought by Club C is based on the amount it has
undertaken to pay to the player’s previous club in order to acquire the player’s
services, i.e. EUR 3,500,000.
37.
Club C further holds that the player’s early and unjustified termination has
severely affected its sporting plans for the next season and that it will have to
incur high costs to replace the player.
38.
It asks to be awarded the additional amount of EUR 250,000 (cf. point I./34.d.
above) for the club’s loss of reputation caused by the player’s actions.
39.
Club C considers that this case should not be regarded as a simple case of a player
not being paid three monthly salaries and having an alleged right to terminate
the contract and insists that the parties’ intentions play a major role in the
resolution of the dispute.
Player’s reply to Club C’s counterclaim
40.
The player maintains all of his claims and rejects all and any allegations and legal
considerations put forward by Club C.
41.
He points out that the present dispute centres on the failure of Club C to fulfil its
contractual obligations during a considerable amount of time.
42.
Referring to art. 9 of the employment contract, he further holds that the FIFA
Regulations on the Status and Transfer of Players are applicable to this matter and
not the Football Federation from country D regulations, which according to the
player may apply only to national disputes between players from country D and
clubs from country D. The player further holds that Swiss law is applicable.
43.
The player denies that due to the payment of the EUR 200,000 signing-on fee he
would not have been in a precarious situation highlighting his personal situation.
He further points out that financial hardship is not a requirement to justify the
termination of an employment contract. Furthermore, Club C’s assertion that the
other players had not received their remuneration either cannot be a justification
for non-payment.
44.
In addition, the player highlights that the club never specifically informed him of
its financial hardship and the reasons thereof and that he was never given any
guarantees or timeline in respect of the payment of his remuneration.
45.
The player asserts that he had preferred to stay with Club C and that he
considered the termination as ultima ratio. He had lost confidence in his future
Player A, from country B / Club C, from country D / Club E, from country F
Page 7 of 19
with Club C and even if he had “threatened” the club with the termination of the
contract many times before, the situation would not have been different in the
light of the club’s liquidity problems.
46.
The player highlights that the outstanding amount was substantial, rejecting Club
C’s percentage calculation, and that he had given the club a warning.
47.
The player denies that he was contacted by Club C after the club received his
default notice of 5 May 2014 and highlights that Club C did not even reply to this
notice.
48.
He further denies that he gave interviews to the Turkish press and points out that
the press articles presented by Club C were published almost one month after he
terminated the contract.
49.
For these reasons, the player rejects Club C’s request for compensation. In this
sense, he reiterates that he terminated the employment contract with just cause
due to Club C’s breach of its contractual obligations, as a result of which Club C is
to be held liable for breach of contract and its counterclaim to be rejected.
Position of the club from country F, Club E
50.
Club E refers to the player’s statement of claim and reply to Club C’s counterclaim
and further highlights that after it was publicly known, on 23 May 2014, that one
of its key players would leave Club E, it was informed that the player, Player A,
had terminated his employment contract with just cause.
51.
After having verified the situation and negotiated with the player after his return
from the World Cup in Brazil, it entered into an employment contract with the
player on 10 July 2014.
52.
Club E stresses that the player has not terminated his employment contract with
the club from country D without just cause and holds that it has not induced the
player to a breach of contract.
Player A, from country B / Club C, from country D / Club E, from country F
Page 8 of 19
Extra, unsolicited, position of Club C
53.
In reaction to the player’s reply to the counterclaim, which it had received for
information only, Club C deems that the player rather presented a replica as
regards his own claim, as a result of which Club C holds that it was entitled to
present its duplica allegedly in order to protect its right to be heard, in spite of
FIFA’s indication that there is a second exchange of correspondence in special
cases only. Club C deems that this is a special case. Should the Dispute Resolution
Chamber decide differently, Club C asks that all paragraphs in the player’s last
submission which relate to his own claim be deleted from the case record.
54.
Club C highlights that the player failed to respond to its pecuniary claims as well
as to its non-pecuniary claims regarding sporting damages and its loss of
reputation due to the player’s breach of contract without just cause.
55.
Club C rejects the player’s assertion that it attempts to bring the Chamber’s focus
to irrelevant issues and stresses that it is the player who aims to distort the facts.
56.
It further stresses that it considers that the Football Federation from country D
Regulations apply in addition to CAS jurisprudence and Swiss law. According to
the Football Federation from country D Regulations, a player first has to give a 30
days’ time limit to the club to remedy the breach, upon failure of which he has
the right to terminate the contract with just cause. According to the club, this
procedure was not followed by the player.
57.
In addition, Club C deems that the delay in the payment of the player’s salary
could not have affected the player bearing in mind that he did receive the EUR
200,000 signing-on fee. This, according to Club C, may have been the reason why
the player has not put the club in default prior to 5 May 2014 and, thus, he
apparently “tolerated” the delay and gave the impression to the club that he
would continue to tolerate the late payment by not indicating his intention to
terminate the contract in his letter of 5 May 2014.
58.
Club C further stresses that the player has not given any written warning as
regards his intention to terminate the employment contract in case of nonpayment, which it considers a prerequisite for a valid termination with just cause
due to late payment. The simple statement “Our client herewith reserves his
rights” in his letter of 5 May 2014 is not sufficient to fulfil the condition of prior
written warning. Furthermore, Club C highlights that, whereas the player
indicated that he preferred to stay, he terminated the contract only 2 days after
the time limit he had given to the club to pay.
Player A, from country B / Club C, from country D / Club E, from country F
Page 9 of 19
59.
In addition, Club C stresses that communication via fax is not a valid
communication method according to the contract, which stipulates that any
notice must be sent to the other party by mail.
60.
In addition to a duplica with respect to the player’s claim, Club C presented
further comments as regards its counterclaim.
61.
In this regard, the player asks that Club C’s extra, unsolicited, position be
disregarded by the Chamber considering, in particular, that the parties were duly
granted the right to be heard in relation to the claims and counterclaim and in
the light of art. 9 par. 3 of the FIFA Rules Governing the Procedures of the Players’
Status Committee and Dispute Resolution Chamber.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 13 June
2014. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2012; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 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 2015) 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 and involving a club from country F.
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 2 of the Regulations on the Status and Transfer of Players
(editions 2014 and 2015), and considering that the present claim was lodged on 13
June 2014, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
Player A, from country B / Club C, from country D / Club E, from country F
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4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. 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.
The members of the Chamber deemed it fit to first address the issue of the
aforementioned unsolicited position received from the Respondent/CounterClaimant, who implicitly alleged that if such position were not taken into account
it would consider that its right to be heard would not have been respected. In this
regard, after duly having taken note of the exchange of correspondence and
documents between the parties, the Chamber concluded that the
Respondent/Counter-Claimant’s right to be heard had been duly respected on the
basis of and after one exchange of correspondence only (cf. art. 9 par. 3 of the
Procedural Rules). Consequently, the Chamber agreed that it could not back the
Respondent/Counter-Claimant’s assertions in this regard.
6.
Having said this, the Chamber acknowledged that the Claimant/CounterRespondent and the Respondent/Counter-Claimant were contractually bound by
an employment contract valid as from January 2014 until 31 May 2018, which was
terminated in writing by the Claimant/Counter-Respondent on 14 May 2014.
7.
It was further noted that said contract termination was proceeded with by the
Claimant/Counter-Respondent after he had put the Respondent/Counter-Claimant
in default, on 5 May 2014, of payment of 3 monthly instalments, 3 rent
allowances as well as match bonuses and the Respondent/Counter-Claimant had
not reacted to such default notice.
8.
The Claimant/Counter-Respondent maintained that he terminated the
employment contract with just cause at the fault of the Respondent/CounterClaimant in the light of the latter’s persistent failure to comply with its
contractual obligations and that, therefore, the Respondent/Counter-Claimant is
to be held liable for payment of outstanding remuneration and compensation for
breach of contract.
9.
The Chamber noted that the Respondent/Counter-Claimant, for its part, rejected
the claim put forward by the Claimant/Counter-Respondent. According to the
Respondent/Counter-Claimant, the Claimant/Counter-Respondent is to be held
liable for breach of contract without just cause arguing inter alia that the player
had not included any warning of termination of contract in his default notice,
Player A, from country B / Club C, from country D / Club E, from country F
Page 11 of 19
that he had not acted in accordance with the procedural requirements relating to
contract termination set out in the Football Federation from country D
regulations, which the Respondent/Counter-Claimant deems to be applicable to
the matter at hand, and that there was no “serious” breach of contract allowing
the player to terminate the employment contract. The Respondent/CounterClaimant claimed that, therefore, the player is to be held liable to pay
compensation for breach of contract.
10.
In continuation, the Chamber took into account that the Claimant/CounterRespondent fully rejected the Respondent/Counter-Claimant’s counterclaim and
maintained his claim. The Claimant/Counter-Respondent contested that the
Football Federation from country D Regulations are applicable to the present
matter and stressed inter alia that the Respondent/Counter-Claimant never
replied to his default notice and that the amount of overdue payables is
substantial.
11.
Furthermore, the DRC noted that according to the Intervening Party, it signed an
employment contract with the Claimant/Counter-Respondent on 10 July 2014
after having been informed that the latter had terminated his employment
contract with the Respondent/Counter-Claimant with just cause and after
verification of the situation. In addition, the Intervening Party stresses that it has
not induced the Claimant/Counter-Respondent to a breach of contract.
12.
On account of the above, the members of the Chamber highlighted that the
underlying issue in this dispute, considering the diverging position of the parties,
was to determine as to whether the Claimant/Counter-Respondent had just cause
to terminate the relevant employment contract on 14 May 2014 and to decide on
the consequences thereof.
13.
To begin with, the Chamber addressed the Respondent/Counter-Claimant’s
argumentation relating to the Football Federation from country D Regulations,
which according to the Respondent/Counter-Claimant are applicable to the case
at hand and which contain procedural requirements relating to the termination
of an employment contract, which according to the Respondent/Counter-Claimant
have not been respected by the Claimant/Counter-Respondent.
14.
In this regard, the members of the Chamber highlighted that art. 9 of the relevant
employment contract clearly establishes that disputes between the parties are
exclusively submitted in front of the DRC and shall be resolved in accordance with
the FIFA Regulations on the Status and Transfer of Players.
Player A, from country B / Club C, from country D / Club E, from country F
Page 12 of 19
15.
In the light of the unambiguous contents of this clause, the DRC decided to reject
the argument put forward by the Respondent/Counter-Claimant in this respect
and confirmed that the present matter shall be dealt with taking into account the
FIFA Regulations on the Status and Transfer of Players as well as DRC
jurisprudence.
16.
In this context and for the sake of completeness, the members of the DRC noted
that the employment contract at the basis of the present dispute does not contain
any clause dealing with a procedure to be followed in the event of a party
wishing to terminate the employment contract.
17.
Having said that, the Chamber took into account that the Respondent/CounterClaimant does not contest that the remuneration included in the
Claimant/Counter-Respondent’s default notice remained unpaid at the time when
the player terminated the employment contract in writing. Furthermore, the DRC
highlighted that it was only after the player had terminated the employment
contract on 14 May 2014 that the Respondent/Counter-Claimant proceeded with
transferring payments to the Claimant/Counter-Respondent.
18.
In this context, the members of the Chamber agreed that the reasons put forward
by the Respondent/Counter-Claimant for the uncontested fact that salaries of the
Claimant/Counter-Respondent remained unpaid, i.e. the player allegedly was not
in a precarious financial situation since he had duly received the signing-on fee
and all players of the team were treated equally in the light of the club’s alleged
financial distress, cannot be accepted as valid. Even if the argument of financial
distress should be considered valid, the Respondent/Counter-Claimant has not
presented any documentation demonstrating that the Claimant/CounterRespondent at least was informed by the club of such reasons for non-payment of
his remuneration. Equally, the fact that the player was, allegedly, not in a
precarious situation cannot possibly serve as a justification for non-compliance by
the Respondent/Counter-Claimant of its contractually agreed obligations with
respect to the timely payment of the Claimant/Counter-Respondent’s salary.
19.
Furthermore, the members of the Chamber took into account that the
Respondent/Counter-Claimant has not reacted to the default notice of the
Claimant/Counter-Respondent within the time limit set by the latter.
20.
As regards the argument of the Respondent/Counter-Claimant relating to the
alleged necessity of including a warning of termination of contract in the default
notice, the Chamber established that such position is not backed by DRC
jurisprudence. More specifically, the DRC requires the party suffering from the
counterparty’s breach of contract to, at the least, provide said counterparty with
Player A, from country B / Club C, from country D / Club E, from country F
Page 13 of 19
an opportunity to remedy such breach. Should the breach be remedied
accordingly within the deadline set in the relevant default notice, the termination
of the contract would likely not occur. Hence it is, in the Chamber’s view, not
compulsory to include a warning of termination of the contract in a default
notice.
21.
On account of the above, in particular the fact that 3 monthly instalments, 3 rent
allowances as well as match bonuses were outstanding at the time of the
termination of the contract by the Claimant/Counter-Respondent, and taking into
consideration the Chamber’s pertinent longstanding and constant jurisprudence,
the Chamber decided that the Claimant/Counter-Respondent had just cause to
unilaterally terminate the employment contract on 14 May 2014 and that the
Respondent/Counter-Claimant is to be held liable for the early termination of the
contract with just cause by the player.
22.
Consequently, the Chamber decided to reject the counterclaim of the
Respondent/Counter-Claimant.
23.
In continuation, prior to establishing the consequences of the termination of the
employment contract with just cause by the Claimant/Counter-Respondent in
accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to
address the issue of any unpaid remuneration at the moment the contract was
terminated by the Claimant/Counter-Respondent.
24.
In this regard, the members of the Chamber took into account that until the date
of termination of the contract, i.e. 14 May 2014, contractual payments totalling
EUR 370,000 had fallen due, of which the Respondent/Counter-Claimant was put
in default by the player and the composition of which, i.e. 3 monthly instalments,
3 rent allowances as well as match bonuses, remained uncontested by the
Respondent/Counter-Claimant. Furthermore, the Claimant/Counter-Respondent
acknowledged that he received the total amount of EUR 362,301 from the
Respondent/Counter-Claimant after he had terminated the employment contract.
Subsequently, the Chamber recalled that according to the Respondent/CounterClaimant, in addition to the amounts acknowledged as received by the player, it
further paid the amounts of EUR 87,500 (salary and/or rent) and EUR 12,500
(bonuses) as well as out of contract bonuses of USD 39,500 to the
Claimant/Counter-Respondent on 9 June 2014. In this respect, the Chamber noted
that the Respondent/Counter-Claimant had not presented any documentation
demonstrating that these additional amounts indeed had been paid to the
Claimant/Counter-Respondent (cf. art. 12 par 3 of the Procedural Rules).
Regardless of such observation, the Chamber deemed that any “out of contract
Player A, from country B / Club C, from country D / Club E, from country F
Page 14 of 19
bonus” payments could not be considered to be in lieu of any contractual
payment.
25.
Having said this, the Chamber decided that, in virtue of the general legal principle
pacta sunt servanda the Respondent/Counter-Claimant is liable to pay to the
Claimant/Counter-Respondent outstanding remuneration in the amount of EUR
7,699.
26.
In addition, taking into consideration the Claimant/Counter-Respondent’s
petition, the Chamber decided to award the Claimant/Counter-Respondent
interest at the rate of 5% p.a. on the amount of EUR 7,699 as of the day on which
the employment relation between the parties had ended until the date of
effective payment.
27.
Having established the above, the Chamber turned its attention to the question
of the consequences of the termination of the employment contract by the
Claimant/Counter-Respondent with just cause on 14 May 2014.
28.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant/Counter-Respondent is entitled to receive compensation for
breach of contract from the Respondent/Counter-Claimant.
29.
Subsequently, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract 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 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.
30.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. In this regard, the Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
Player A, from country B / Club C, from country D / Club E, from country F
Page 15 of 19
31.
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 until 31 May 2018 and concluded that the
Claimant/Counter-Respondent would have received a total remuneration of EUR
4,827,500 plus potential match bonuses had the contract been executed until its
expiry date.
32.
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.
33.
Indeed, on 10 July 2014, the Claimant/Counter-Respondent found employment
with the club from country F, Club E. In accordance with the pertinent
employment contract, valid as from 1 July 2014 until 30 June 2018, the
Claimant/Counter-Respondent is entitled to receive, inter alia, a monthly salary of
EUR 150,000, to be increased by EUR 25,000 or EUR 10,000 retroactively as per 1
July in the event of the club having entered the UEFA Champions League group
stage or UEFA Europa League group stage, respectively.
34.
In addition, according to the new employment contract, the Claimant/CounterRespondent is entitled to the guaranteed amount of EUR 420,000 as match
bonuses and the guaranteed amount of EUR 400,000 as seasonal performance
bonus for each of the 2014-15 and 2015-16 seasons, on condition that on the
respective due dates (June and July of respective seasons) the player is still
contractually bound to Club E and not transferred on a loan basis.
35.
Consequently, the Chamber established that the value of the new employment
contract concluded between the Claimant/Counter-Respondent and the new club
for the period as from 10 July 2014 until and including May 2018 largely exceeds
the residual value of the employment contract with the Respondent/CounterClaimant for the same period of time. Therefore, the Chamber decided that, even
though the Respondent/Counter-Claimant is liable for the early termination of the
employment contract with just cause by the Claimant/Counter-Respondent, there
is no amount that should be awarded to the Claimant/Counter-Respondent as
compensation for breach of contract for the period as from 10 July 2014 until 31
May 2018, since the Claimant/Counter-Respondent has been able to fully mitigate
his damages for said time period.
Player A, from country B / Club C, from country D / Club E, from country F
Page 16 of 19
36.
However, the members of the Chamber noted that as from the termination of the
employment contract on 14 May 2014 until the signature of his new employment
contract on 10 July 2014 with Club E, the Claimant/Counter-Respondent remained
unemployed and, therefore, decided that he should be entitled to receive
compensation for this specific period of time.
37.
In accordance with the employment contract at the basis of the present dispute,
as from 14 May 2014 until 10 July 2014, the Claimant/Counter-Respondent was
entitled to receive the instalment of EUR 87,500 that fell due on 31 May 2014 as
well as 2 monthly rent allowances of EUR 2,500 each, which all add up to the
amount of EUR 92,500.
38.
Consequently, the Chamber decided that the Respondent/Counter-Claimant is
liable to pay compensation for breach of contract in the amount of EUR 92,500 to
the Claimant/Counter-Respondent.
39.
In addition, taking into account the Claimant/Counter-Respondent’s request, the
Chamber decided that the Respondent/Counter-Claimant must pay to the
Claimant/Counter-Respondent interest of 5% p.a. on the amount of compensation
as of the date on which the claim was lodged, i.e. 13 June 2014, until the date of
effective payment.
40.
In addition, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant/Counter-Respondent’s
request relating to legal expenses.
41.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant/Counter-Respondent.
*****
Player A, from country B / Club C, from country D / Club E, from country F
Page 17 of 19
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 7,699 plus 5% interest p.a. as
from 14 May 2014 until the date of effective payment.
4.
The Respondent/Counter-Claimant has to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 92,500 plus 5% interest
p.a. as from 13 June 2014 until the date of effective payment.
5.
In the event that the amounts due to the Claimant/Counter-Respondent are not
paid by the Respondent/Counter-Claimant within the stated time limit, the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
Player A, from country B / Club C, from country D / Club E, from country F
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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.
*****
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:
Jérôme Valcke
Secretary General
Encl. (CAS directives)
Player A, from country B / Club C, from country D / Club E, from country F
Page 19 of 19