Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 March 2018,
in the following composition:
Thom as Grim m (Switzerland), Deputy Chairman
Roy Verm eer (The Netherlands), member
Alex andra Góm ez Bruinew oud (Uruguay), member
Wouter Lam brecht (Belgium), member
Joel Talav era (Paraguay), member
on the matter between the player,
Play er A, Country B
as Claimant / Counter-Respondent
and the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country D
as Intervening Party
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 20 August 2014, the Player of Country B, (hereinafter: the Claimant / CounterRespondent), born on 23 May 1980, and the Club of Country D, Club C (hereinafter: the
Respondent / Counter-Claimant), signed an agreement named “Professional Football
Player Contract” (hereinafter: contract), valid from the date of the signature until 31
May 2016.
2.
According to article 3 of the contract, the Claimant / Counter-Respondent was entitled
to receive the following remuneration:
a. Season 2014/2015 – EUR 905,000 net as total contract fee payable as detailed
below:
i. EUR 180,000 due on 31 July 2014 as advance payment;
ii. monthly payments: EUR 102,500 on 25 August 2014;
EUR 102,500 on 25 September 2014;
EUR 65,000 on 25 October 2014;
EUR 65,000 on 25 November 2014;
EUR 65,000 on 25 December 2014;
EUR 65,000 on 25 January 2015;
EUR 65,000 on 25 February 2015;
EUR 65,000 on 25 March 2015;
EUR 65,000 on 25 April 2015;
EUR 65,000 on 25 May 2015.
b. Season 2015/2016 – EUR 830,000 net, also with an advance payment of EUR
180,000 and ten monthly instalments of EUR 65,000 each, from 25 August 2015
until 25 May 2016.
3.
On 28 November 2014, the parties signed an amendment to the contract (hereinafter:
the amendment), establishing inter alia bonuses for the 2014/2015 season as follows:
a. EUR 100,000 net for 10 goals scored during the season;
b. EUR 10,000 net per goal, after 10 goals scored;
c. EUR 2,000 net “per assist”;
d. EUR 70,000 net in case the club “stays in League”, payable at the end of the
season;
e. EUR 50,000 net in case the club “directly stays in League UEFA”.
4.
Neither the contract nor the amendment contain a compensation clause.
5.
On 26 March 2015, the Respondent / Counter-Claimant informed the Claimant / CounterRespondent in writing that, based on a report from the head coach, the Claimant /
Counter-Respondent was excluded from the first team squad for the four upcoming
matches (i.e. until the match against Club E, which took place on 4 May 2015). During
this period the Claimant / Counter-Respondent would train with the U21 team. In
particular, the Respondent / Counter-Claimant stated that the head coach had reported
having problems with the Claimant / Counter-Respondent. Moreover, the Respondent /
Player A, Country B / Club C, Country D / Club E, Country D
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Counter-Claimant indicated that it would evaluate the situation at the end of the period
(i.e. after the four upcoming games), in light of the report of the head coach of the first
team.
6.
On the same day, 26 March 2015, the Claimant / Counter-Respondent replied to the
Respondent / Counter-Claimant’s letter, pointing out that he was not aware of any
problems regarding his relationship with the head coach and that he had always fulfilled
his contractual obligations. Furthermore, the Claimant / Counter-Respondent stated
that, considering his high profile and his international career, the Respondent / CounterClaimant’s decision was damaging for his personality and professional reputation. He
therefore invited the Respondent / Counter-Claimant to “act in accordance with the
terms of the employment contract”.
7.
On 27 March 2015, the Respondent / Counter-Claimant replied to the Claimant / CounterRespondent’s letter, stating inter alia the following: “It is not possible for the club to
decide against the coach’s will (…) The head coach reported that because of your low
performance and problems with him that caused damage to the harmony among the
squad, you are not in the first team’s plans for the upcoming weeks (…) Considering your
career, the club had offered a leave on absence for 4 upcoming matches, being allowed
to either leave Country D or benefit from the club’s facilities, which was refused by you
(…) Therefore, the club was left with no other alternative than to put you to train with
the U21 squad.” The letter also stipulated that the club would continue to “perform its
financial obligations in accordance with the contract”.
8.
On 30 March 2015, the Claimant / Counter-Respondent replied to the Respondent /
Counter-Claimant’s letter, and held that:
- For the first time, low performance has been mentioned to the Claimant /
Counter-Respondent and without any evidence or detail in this respect;
- In any case, the contract does not foresee the possibility to exclude the Claimant
/ Counter-Respondent from the first team squad;
- The Respondent / Counter-Claimant’s behaviour constitutes a breach of contract;
- The Respondent / Counter-Claimant is once again invited to fulfil its contractual
obligations.
9.
On 2 April 2015, the Claimant / Counter-Respondent sent another letter to the
Respondent / Counter-Claimant, insisting that there were no grounds to exclude him
from the first team and demote him to the U21 team, and requested to be reinstated to
the first team immediately.
10. On 6 April 2015, the Respondent / Counter-Claimant notified the Claimant / CounterRespondent in writing, making reference to its correspondence dated 27 March and
stated that the Claimant / Counter-Respondent has not attended the training sessions of
the U21 team in accordance with the training schedule notified. The Respondent /
Counter-Claimant pointed out that the Claimant / Counter-Respondent, despite the fact
that he was excluded from the first team, continues to present himself at the Respondent
Player A, Country B / Club C, Country D / Club E, Country D
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/ Counter-Claimant’s administrative building, thereby “giving the impression to the
other players that he cannot be excluded from the first team”. This damages the
authority and reputation of the head coach and has a negative effect on the squad.
Finally, the Respondent / Counter-Claimant requested the Claimant / CounterRespondent to comply with its decision.
11. On 15 April 2015, the Claimant / Counter-Respondent again requested the Respondent /
Counter-Claimant to reinstate him to the first team, to allow him to enter the training
sessions of the first team, and to give him the possibility to be included in the selection
for the first team’s official matches in the Super League. The letter established a deadline
of 17 April 2015 in order for the Respondent / Counter-Claimant to fulfil the Claimant /
Counter-Respondent’s requests. Should the Respondent / Counter-Claimant fail to meet
the deadline, the Claimant / Counter-Respondent would terminate the contract. In
particular, the Claimant / Counter-Respondent stated having been hindered to
participate in training sessions with the first team on 14 and 15 April 2015 against the
terms of the contract.
12. On 16 April 2015, the Respondent / Counter-Claimant notified the Claimant / CounterRespondent, making reference to its previous letters, and stated that the decision to
exclude him from the first team for four matches did not constitute a breach of contract.
In fact, the absence of the Claimant / Counter-Respondent for the U21 training sessions
does constitute a breach of the Claimant / Counter-Respondent’s contractual obligations.
Finally, the Respondent / Counter-Claimant stated that, unless the Claimant / CounterRespondent puts an end to his unprofessional behavior and starts complying with the
decision of the Head Coach and the Respondent / Counter-Claimant’s Board, it would
have no other choice but to terminate the contract with just cause.
13. On 21 April 2015, the Claimant / Counter-Respondent again wrote to the Respondent /
Counter-Claimant. This time he requested that the Respondent / Counter-Claimant either
terminate the suspension imposed illegally on the Claimant / Counter-Respondent, or
inform him in writing when he would be reinstated to the first team. In particular, the
Claimant / Counter-Respondent rejected the allegations regarding his performance and
alleged problems with the coach and highlighted that there is no provision in the
contract that enables the Respondent / Counter-Claimant to exclude him from the first
team for such reasons. Finally, the Claimant / Counter-Respondent affirmed that his
“intention and wish is to take part in the training sessions of the first squad of [the] club
in accordance with the arranged training schedule, complying at the same time with his
contractual obligations”.
14. On 4 May 2015, the Claimant / Counter-Respondent put the Respondent / CounterClaimant in default, asking for payment of the instalment of EUR 65,000 due on 25 April
2015, as well as asking to be reinstated to the first team “within ten days of receipt of
the present notice”.
Player A, Country B / Club C, Country D / Club E, Country D
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15. On 18 May 2015, the Claimant / Counter-Respondent terminated the contract in writing,
alleging the following reasons:
a. The failure to pay the monthly instalment for April 2015 in the amount of EUR
65,000;
b. The fact that the Respondent / Counter-Claimant excluded the Claimant /
Counter-Respondent from the first squad;
c. Two statements in the news which indicate that the Respondent / CounterClaimant intended to terminate the contract.
16. On 22 May 2015, the Respondent / Counter-Claimant informed the Claimant / CounterRespondent in writing that the contract was already terminated with just cause on 27
April 2015 by the Respondent / Counter-Claimant. The letter further stipulated that a
termination letter (dated 27 April 2015) was sent to the official address of the Claimant
/ Counter-Respondent and to the Football Federation of Country D via notary, as well as
that the termination of the contract was registered by the Football Federation of
Country D.
17. On 10 June 2015, the Claimant / Counter-Respondent lodged a claim before FIFA against
the Respondent / Counter-Claimant for breach of contract, requesting the following:
a. EUR 209,000 as outstanding remuneration, composed as follows:
i. EUR 65,000 as monthly salary for April 2015;
ii. EUR 70,000 as bonus due since the Respondent / Counter-Claimant remained
in the first division;
iii. EUR 4,000 as bonus for the 2 assists of the player during the season
2014/2015;
iv. EUR 70,000 as bonus for 13 goals scored (the Claimant / Counter-Respondent
claims that only EUR 60,000 of the EUR 130,000 due was paid);
b. EUR 895,000 as compensation for breach of contract, composed as follows:
i. EUR 65,000 as monthly salary for May 2015;
ii. EUR 830,000 as the remuneration for the season 2015/2016.
c. 5% interest p.a.;
d. Imposition of sporting sanctions on the Respondent / Counter-Claimant.
Subsidiarity;
e. take a decision deemed appropriate by the DRC;
f. Order the Respondent / Counter-Claimant to pay any procedural costs and
reimburse any costs incurred by him.
18. According to the Claimant / Counter-Respondent, the contractual relationship between
him and the Respondent / Counter-Claimant had been normal, even after a new head
coach was hired in January 2015. However, on 26 March 2015, the Claimant / CounterRespondent was informed via a letter that he was excluded from the first team for the
four upcoming matches and that he should train with the U21 team during this period.
The Claimant / Counter-Respondent rejected the exclusion and asked to be reinstated to
the first team on different occasions. Nonetheless, the Respondent / Counter-Claimant
refused to do so and did not provide any valid grounds.
Player A, Country B / Club C, Country D / Club E, Country D
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19. The Claimant / Counter-Respondent held that he was hired to provide his services as a
professional football player in the Respondent / Counter-Claimant’s team that competed
in the League of Country D and that it was not entitled to exclude him from the first
squad. Moreover, the Claimant / Counter-Respondent highlighted that the Respondent
/ Counter-Claimant never warned him or complained about his performance before
imposing the measure.
20. Moreover, the Claimant / Counter-Respondent stated that the Respondent / CounterClaimant failed to address his question regarding when he would be reinstated to the
first team and further, failed to pay his remuneration for April 2015.
21. Finally, the Claimant / Counter-Respondent affirmed that the statements of the
Respondent / Counter-Claimant to the press made clear that his exclusion was definitive
and that the Respondent / Counter-Claimant’s intention was to terminate the contract.
22. Considering all the above, the Claimant / Counter-Respondent believes that he had no
other option but to terminate the contract on 18 May 2015.
23. However, the Respondent / Counter-Claimant informed him that it had already
terminated the contract on 27 April 2015 “on the basis of the player’s unprofessional
conduct after 26 March 2015, which was allegedly damaging to the club”.
24. The Claimant / Counter-Respondent referred to CAS and the Swiss Federal Tribunal
jurisprudence, which, according to him, established that the permanent exclusion from
the first team can seriously damage his career and that, as a consequence, he had a just
cause to terminate the contract.
25. In this context, the Claimant / Counter-Respondent affirmed that he is a recognized toplevel professional, that represented Country B in international competitions and that he
has played for several Clubs in Country F (League H). Furthermore, the exclusion was not
temporary, considering that he was not reinstated even after the expiry of the exclusion
period set on 26 March 2015, which according to the Claimant / Counter-Respondent,
elapsed on 4 May 2015 (cf. point 5). In other words, the Respondent / Counter-Claimant
never showed any intention to restore the Claimant / Counter-Respondent to the first
team.
26. Moreover, the Claimant / Counter-Respondent held that the Respondent / CounterClaimant failed to pay several bonus amounts, including bonuses for goals scored and
assists made.
27. Finally, according to the Claimant / Counter-Respondent, he did everything possible to
fulfil his contractual obligations and tried to attend the training sessions of the first team
several times, but without success.
Player A, Country B / Club C, Country D / Club E, Country D
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28. The Respondent / Counter-Claimant submitted its response together with a counterclaim
against the Claimant / Counter-Respondent on 25 July 2015.
29. According to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent’s
performance started to decrease at the end of the first half of the 2014/2015 season, and
that the bad performance continued during the second half of that season. Although
being the “goal-scorer of the club”, the Claimant / Counter-Respondent only scored one
goal in 13 official matches between 21 December 2014 and 22 March 2015.
30. Moreover, after hiring a new head coach in January 2015, the Claimant / CounterRespondent started having problems with him.
31. The coach reported to the Respondent / Counter-Claimant’s board of directors that “the
player was not in his first team plans for the upcoming four matches and during that
period the player should have train with the U21 team, keeping the long term interests
of the Club and the Player”. As a result, the Respondent / Counter-Claimant sent the
letter of 26 March 2015 including the training schedule of the U21 team (cf. point 5).
32. However, the Respondent / Counter-Claimant pointed out that the Claimant / CounterRespondent did not attend any trainings of the U21 team until the termination of the
contract, thereby failing to perform his contractual obligations.
33. The Respondent / Counter-Claimant held that this is a standard practice and that the
temporary exclusion of the Claimant / Counter-Respondent for four weeks to train with
the U21 team cannot damage his reputation.
34. Regarding the Claimant / Counter-Respondent’s argument that he was not aware of any
problems with the Head Coach, the Respondent / Counter-Claimant held that the latter
warned the Claimant / Counter-Respondent many times verbally regarding his
unprofessional behaviour. Furthermore, the Head Coach declared to the media that the
Claimant / Counter-Respondent was excluded from the first team due to his low
performance and behaviour.
35. Similarly, the Respondent / Counter-Claimant maintained that the Claimant / CounterRespondent failed to train with the U21 team for an entire month. Instead, the Claimant
/ Counter-Respondent kept attending the first team’s training facilities during training
hours, thereby giving the impression to other players that he would not comply with the
decision of the Head Coach. The behaviour of the Claimant / Counter-Respondent
disrupted the concentration and motivation of the other players. In this context, on 6
April 2015 the Respondent / Counter-Claimant once again confronted the Claimant /
Counter-Respondent regarding his absence from practice with the U21 team and his
behaviour.
36. Notwithstanding all the warnings, the Claimant / Counter-Respondent did not change
his behaviour and started bringing the media along to the first team’s training sessions.
Player A, Country B / Club C, Country D / Club E, Country D
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37. Consequently on 16 April 2015, the Respondent / Counter-Claimant notified the
Claimant / Counter-Respondent in writing and stated that the Respondent / CounterClaimant’s decision to exclude the Claimant / Counter-Respondent from the first team
does not constitute a breach of contract. It further read that, should the Claimant /
Counter-Respondent not improve his behavior, the Respondent / Counter-Claimant
would terminate the contract.
38. The Respondent / Counter-Claimant once again highlighted that it was a temporary
exclusion in accordance with the Head Coach’s decision, constituting neither a
suspension nor a ban, as argued by the Claimant / Counter-Respondent.
39. The Respondent / Counter-Claimant further stated that the behaviour of the Claimant /
Counter-Respondent also constitutes a violation in accordance with the internal
disciplinary regulations of the Respondent / Counter-Claimant. Nevertheless, the
Respondent / Counter-Claimant in good faith did not impose any sanction on the
Claimant / Counter-Respondent in order to maintain a good relation and, instead sent
four warning letters to no avail, leaving the Respondent / Counter-Claimant with no
other choice than terminating the contract with just cause.
40. The Respondent / Counter-Claimant confirms that it unilaterally terminated the contract
on 27 April 2015. Furthermore, the Claimant / Counter-Respondent was aware of the
termination by the Respondent / Counter-Claimant, which was notified to him via notary
to the official address written in the contract, and made public by the Football
Federation J on 4 May 2015.
41. The Respondent / Counter-Claimant denies that the exclusion of the Claimant / CounterRespondent from the first team for four matches signified the Respondent / CounterClaimant’s intention of terminating the contract, as the Claimant / Counter-Respondent
insinuates (cf. point 21). The fact that the Respondent / Counter-Claimant invited the
Claimant / Counter-Respondent to comply with the Respondent / Counter-Claimant’s
decision on four different occasions shows that the Respondent / Counter-Claimant tried
all possible ways not to terminate the contract.
42. The Respondent / Counter-Claimant further stated that the jurisprudence mentioned by
the Claimant / Counter-Respondent (cf. point 24) is not applicable, since it is related to
permanent exclusions and to exclusions of coaches.
43. Therefore, the claim of the Claimant / Counter-Respondent shall be rejected or, in case
the DRC would decide otherwise, mitigated, considering the new employment contract
signed by the Claimant / Counter-Respondent after the termination of the contract.
44. The request for outstanding remuneration should also be rejected, considering that the
Claimant / Counter-Respondent stopped rendering his services as of 26 March 2015.
Player A, Country B / Club C, Country D / Club E, Country D
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45. As regards the request for bonus for the team remaining in the League of Country D,
the Respondent / Counter-Claimant believes that the Claimant / Counter-Respondent is
not entitled to receive it, since it was due at the end of the season, i.e. after the Claimant
/ Counter-Respondent left the Respondent / Counter-Claimant.
46. Equally, the Respondent / Counter-Claimant argued that the request for bonus for two
assists should be rejected, because the Claimant / Counter-Respondent did not
substantiate his reasoning and did not present any evidence.
47. Furthermore, after the contract termination, the Claimant / Counter-Respondent
transferred to Club E (hereinafter: the Intervening Party). Therefore, the breach of
contract by the Claimant / Counter-Respondent hindered the Respondent / CounterClaimant to receive a transfer compensation from the Intervening Party. Moreover, due
to the Claimant / Counter-Respondent’s breach of contract, the Respondent / CounterClaimant is now obliged to look for a replacement player. In this context, the Respondent
/ Counter-Claimant noted that the market value of the Claimant / Counter-Respondent
is EUR 800,000.
48. In sum, the Respondent / Counter-Claimant requests:
a. That the Claimant / Counter-Respondent’s claim is rejected;
b. That the Claimant / Counter-Respondent is ordered to pay compensation in the
amount of EUR 800,000 plus 5% as of 27 April 2015;
c. That the Claimant / Counter-Respondent is ordered to pay legal expenses and
procedural costs.
49. The Claimant / Counter-Respondent submitted his reply to the Respondent / CounterClaimant’s counterclaim on 14 October 2015, stating that, contrary to the Respondent /
Counter-Claimant’s argument that it rightfully terminated the contract after the
Claimant / Counter-Respondent refused to follow a “technical decision of the head
coach”, the present dispute is about a severe contractual breach, whereby the
Respondent / Counter-Claimant did not hesitate to exclude the Claimant / CounterRespondent from training and competing with its first team on the basis of untrue and
insufficient allegations.
50. In this respect, the Claimant / Counter-Respondent highlighted that his exclusion was
communicated in writing without any prior warning or indication whatsoever. It was
clearly a conscious choice of the Respondent / Counter-Claimant, which resulted in
hindering the Claimant / Counter-Respondent’s access to training and participation with
the first team, which he considers his fundamental rights.
51. In order to fulfill his contractual obligations, the Claimant / Counter-Respondent asked
the Respondent / Counter-Claimant to accept him to the first team’s training sessions.
However, the Respondent / Counter-Claimant refused and failed to provide solid
grounds for its decision, which is why his exclusion remains unfounded and without
contractual basis.
Player A, Country B / Club C, Country D / Club E, Country D
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52. In continuation, the Claimant / Counter-Respondent stated that the Respondent /
Counter-Claimant merely referred to poor performance and problems with the new
coach without providing any evidence. The only document provided by the Respondent
/ Counter-Claimant in its submission is a declaration of the Head Coach that appears to
be dated 5 April 2015, and thus after the decision to exclude him from the first team (i.e.
26 March 2015, c.f. point 5) taken by the Respondent / Counter-Claimant. However, the
document is not translated to one of the official FIFA languages and, consequently, must
be disregarded. In fact, all the other non-translated documents submitted by the
Respondent / Counter-Claimant must be disregarded as well.
53. The Claimant / Counter-Respondent held that the decision to instruct him to train with
the U-21 team does not make any sporting sense, considering his age, his professional
history and his significant market value indicated by the Respondent / Counter-Claimant
itself (c.f. point 47) , as well as his popularity with the fans.
54. Moreover, contrary to the argument of the Respondent / Counter-Claimant that the
exclusion was temporary, the Respondent / Counter-Claimant’s letter indicated the
possibility of a re-evaluation only, although no criteria were indicated. Therefore, there
was no guarantee or assurance that the Claimant / Counter-Respondent would indeed
be reinstated to the first team any time soon.
55. The exclusion would originally be reconsidered in late April 2015, which is just before
the end of the 2014/2015 season. However, instead of reconsidering the exclusion, the
club terminated the contract on 27 April 2015.
56. Therefore, the fact that the Claimant / Counter-Respondent did not attend the trainings
with the U21 team cannot be taken as his intention to breach his employment contract.
The Claimant / Counter-Respondent’s attendance to the training sessions of the first
team, on the other hand, confirms his commitment to fulfil his contract.
57. Thus, the Claimant / Counter-Respondent argued that the Respondent / CounterClaimant is not entitled to any compensation.
58. Moreover, according to the Claimant / Counter-Respondent, the Respondent / CounterClaimant had failed to provide evidence of his alleged unprofessional behaviour as well
as that the reputation of the Respondent / Counter-Claimant and of the head coach was
damaged.
59. The Claimant / Counter-Respondent further stated that the degree of bad faith of the
Respondent / Counter-Claimant must be taken into account for the calculation of
compensation. Indeed, according to the Claimant / Counter-Respondent, the mere fact
that he entered into a new employment contract for the 2015/2016 season “does not
automatically free the [Respondent / Counter-Claimant] from its obligation to pay
compensation for its breach of contract”.
Player A, Country B / Club C, Country D / Club E, Country D
10/19
60. The Claimant / Counter-Respondent informed FIFA, submitting copies of the relevant
contracts, that he concluded the following employment contracts:
a. On 7 July 2015, an employment contract with the Club of Country D, Club E, valid
from the date of signature until 31 May 2016, with a total salary of EUR 425,000
for the season 2015/2016, divided in ten instalments of EUR 42,500 each, from 30
August 2015 until 30 May 2016;
b. On 1 February 2016, an employment contract with the Club of Country L, Club G,
valid from the date of signature until 30 June 2017, with a remuneration of EUR
150,000 from 1 February 2016 until 30 June 2016, divided in six monthly
instalments as well as a signing-on fee of EUR 75,000.
61. Although the Intervening Party was invited to provide its comments to the present
matter, it did not submit any comments.
II. Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 10 June 2015.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. article 21 of the 2015, 2017 and 2018 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 2018) the Dispute
Resolution Chamber shall adjudicate on an employment-related dispute with an
international dimension, between a Player of Country B and two Clubs of Country D.
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 2015, 2016 and
2018), and considering that the present claim was lodged on 10 June 2015, the 2015
edition of said regulations (hereinafter: 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, 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
Player A, Country B / Club C, Country D / Club E, Country D
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and documentary evidence, which it considered pertinent for the assessment of the
matter at hand.
5.
The Chamber first acknowledged that the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant signed an employment contract on 20 August 2014 valid
until 31 May 2016. Moreover, the Chamber recalled that on 26 March 2015, the Claimant
/ Counter-Respondent was excluded from the first team and obliged to train with the U21 team for a period encompassing four games, the last of which took place on 4 May
2015. The Chamber then noted that both the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant claimed to have terminated the contract: the Claimant /
Counter-Respondent argued that he terminated the contract on 18 May 2015, whereas
the Respondent / Counter-Claimant held that it had already terminated the contract on
27 April 2015.
6.
In this context, the Chamber unanimously established that, since 27 April 2015 preceded
18 May 2015, and given that the Claimant / Counter-Respondent later acknowledged
that the Respondent / Counter-Claimant had terminated the contract on 27 April 2015,
the contract was terminated by the Respondent / Counter-Claimant on 27 April 2015.
7.
In continuation, the Chamber established that the primary issue at stake is determining
whether the Respondent / Counter-Claimant had a just cause to terminate the contract
with the Claimant / Counter-Respondent on 27 April 2015. In this respect, the Chamber
deemed it essential to make a brief recollection of the parties’ arguments regarding the
Claimant / Counter-Respondent’s exclusion from the first team and the subsequent
contract termination.
8. In particular, the deciding authority recalled that the Respondent / Counter-Claimant
argued in its letters to the Claimant / Counter-Respondent that he was excluded from
the first team following a decision of the coach for, inter alia, having problems with the
coach, for low performance, and for damaging the team’s harmony (I./5; 7; 10; and 12.
above). The Claimant / Counter-Respondent, on the other hand, held that the
Respondent / Counter-Claimant provided no evidence regarding his bad performance,
and that the contract did not foresee the possibility to exclude him from the first team.
9.
Regarding the contract termination of 27 April 2015, the Chamber took note of the
Respondent / Counter-Claimant’s explanation that the Claimant / Counter-Respondent
had refused to train with the U-21 team, had continued to present himself at the
Respondent / Counter-Claimant’s administrative building as well as the first team’s
training sessions without permission, and had ignored the warning letters sent by the
Respondent / Counter-Claimant on 6 April 2015 and 16 April 2015 respectively. Similarly,
the Chamber noted that the Claimant / Counter-Respondent rejected the allegations
regarding his performance and problems with the coach, and argued that the
Respondent / Counter-Claimant was breaching its contractual obligations by not
allowing him to participate with the first team as well as for not paying him the April
2015 salary.
Player A, Country B / Club C, Country D / Club E, Country D
12/19
10. For the sake of clarity, the DRC recalled that, in his claim lodged on 10 June 2015, the
Claimant / Counter-Respondent requested outstanding remuneration corresponding to
the monthly salary of April 2015, as well as performance bonuses. The Claimant /
Counter-Respondent further requested compensation for termination of contract by the
Respondent / Counter-Claimant without just cause. In a similar vein, the deciding
authority recollected that, in its counterclaim of 25 July 2015, the Respondent / CounterClaimant requested compensation from the Claimant / Counter-Respondent, because it
was of the opinion that it had terminated the contract with just cause.
11. Having recollected the parties’ arguments, the members of the Chamber firstly turned
their attention to the fact that the Claimant / Counter-Respondent was sent to train
with the U-21 team on 26 March 2015. The majority of the deciding authority further
considered that, in principle, a club can send a player to train with the reserve team,
unless the employment contract stipulates otherwise. In this respect, the Chamber noted
that the employment contract did not contain any clause by which the Claimant /
Counter-Respondent can validly claim that he is to exclusively play and train with the
first team.
12. In this sense, the majority of the DRC was of the opinion that the obligation for the
Claimant / Counter-Respondent to train with the U-21 team was temporary, and that the
situation would be evaluated after four matches. Lastly, the Chamber took into
consideration the Respondent / Counter-Claimant’s statement that it would continue to
“perform its financial obligations in accordance with the contract” (I./7. above). As a
result, the majority of the Chamber deemed that the decision of 26 March 2015 to
exclude the Claimant / Counter-Respondent from the first team does not constitute a
breach of contract by the Respondent / Counter-Claimant.
13. The Chamber then proceeded to determine whether the Respondent / Counter-Claimant
had a just cause to terminate the contract on 27 April 2015. In this regard, the deciding
authority emphasized that the Claimant / Counter-Respondent demonstrated his
discontent regarding his exclusion from the first team by refusing to partake in any of
the training sessions with the U-21 team. In continuation, the DRC referred to the
Respondent / Counter-Claimant’s default letters of 6 April and 16 April 2015, and
concluded that it had provided the Claimant / Counter-Respondent the opportunity to
remedy the situation. The default letters also included the clear and unambiguous
warning that, should the Claimant / Counter-Respondent fail to comply with its
instructions, the Respondent / Counter-Claimant would terminate the contract.
14. In this light, the majority of the Chamber noted that the Claimant / Counter-Respondent
undertook no effort whatsoever to remedy the situation and follow the Respondent /
Counter-Claimant’s instructions, even after the default letters were sent, therewith
undermining the authority of the coach. In fact, the Claimant / Counter-Respondent’s
actions, which involved presenting himself at the Respondent / Counter-Claimant’s
administrative buildings against its instructions (I./10 above), as well as bringing the
Player A, Country B / Club C, Country D / Club E, Country D
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media along to the first team’s training session (I./36 above), were interpreted by the
majority of the Chamber as aggravating circumstances.
15. As a result of the above-mentioned considerations, the majority of the Chamber decided
that the Respondent / Counter-Claimant had just cause to prematurely terminate the
relevant employment contract on 27 April 2015 on the basis of the Claimant / CounterRespondent’s behaviour, which persisted for one month despite several notices from the
Respondent / Counter-Claimant, after his exclusion from the first team.
16. In continuation and prior to establishing the consequences of the unilateral termination
of the contract with just cause by the Respondent / Counter-Claimant in accordance with
art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue raised
by the Claimant / Counter-Respondent in connection with alleged unpaid remuneration
at the moment the contract was terminated by the Respondent / Counter-Claimant.
17. In this context, based on the documents on file, the Chamber determined that the
Claimant / Counter-Respondent had received his salaries up until March 2015. As regards
the salary for April 2015, the DRC emphasized that by refusing to train with the U-21
team as of 26 March 2015, the Claimant / Counter-Respondent had, in fact, stopped
rendering his services to the Respondent / Counter-Claimant as of this day. Consequently,
the Chamber held that the Claimant / Counter-Respondent is not entitled to any salary
for the period in which he refused to render his services, that is from 26 March 2015 until
27 April 2015. Thus, the Claimant / Counter-Respondent’s request for the salary
corresponding to April 2015 is rejected.
18. The Chamber then scrutinized the Claimant / Counter-Respondent’s claim with regard to
the bonus money he allegedly is still entitled to. The DRC firstly referred to the
amendment to the employment contract and recalled that the Claimant / CounterRespondent was contractually entitled to, inter alia, EUR 100,000 for 10 goals scored;
EUR 10,000 per goal, after 10 goals scored; EUR 70,000 if the club manages to stay in the
league, payable at the end of the season; as well as EUR 2,000 per assist made (I./3.
above). The Chamber also took note of the fact that neither the employment contract
nor the amendment to the employment contract, stipulated the date on which the bonus
money for goals scored became due. Therefore, the DRC agreed that any bonus money
due to the Claimant / Counter-Respondent would be payable at the end of the season.
19. In continuation, the Chamber turned to the evidence provided by the Claimant /
Counter-Respondent, and noted that he had submitted an internet extract that shows
that he had scored 13 goals during the 2014/2015 season (I./17.a. above). In this regard,
the deciding authority was eager to emphasize that the Respondent / Counter-Claimant
never disputed the Claimant / Counter-Respondent’s claim that he had scored 13 goals.
Taking into account the wording of the amendment to the contract, the Chamber thus
concluded that the Claimant / Counter-Respondent was entitled to EUR 130,000 as bonus
for goals scored. Having said this, the DRC also took note of the fact that the Claimant /
Counter-Respondent acknowledged having received EUR 60,000 in relation to the
Player A, Country B / Club C, Country D / Club E, Country D
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mentioned bonus (I./17.a. above). Therefore, the Chamber unanimously agreed that the
Claimant / Counter-Respondent is entitled to EUR 70,000 (130,000 – 60,000) as
outstanding remuneration in the form of bonus for goals scored.
20. Concerning the Claimant / Counter-Respondent’s claim that he is entitled to a bonus of
EUR 70,000 in relation to the club staying in the league at the end of the 2014/2015
season, the DRC noted that the Claimant / Counter-Respondent did not provide any
evidence in that regard. However, based on publicly available information, and
considering that the Respondent / Counter-Claimant never contested this assertion made
by the Claimant / Counter-Respondent, the Chamber deemed it sufficiently proven that
the Respondent / Counter-Claimant managed to stay in the league at the end of the
2014/2015 season. In continuation, the DRC referred to the contract, which stipulated
that this amount was payable at the end of the season. For the sake of clarity, the
Chamber noted that, according to the information in the TMS, the 2014/2015 season of
Country D ended on 10 June 2015.
21. Next, the Chamber took note of the fact that the employment contract was terminated
before the end of the season, in other words, before this bonus payment became due.
Having said this, the Chamber was of the firm opinion that the Claimant / CounterRespondent is entitled to a pro rata of the bonus amount for his contribution to the
Respondent / Counter-Claimant’s performance during that season.
22. Consequently, the DRC recalled that the 2014/2015 ran started in August 2014 and ended
on 10 June 2015, i.e. a period of ten months. Moreover, the Claimant / CounterRespondent had rendered his services in eight out of those ten months (until 26 March
2015). Therefore, the deciding authority established that the Claimant / CounterRespondent was entitled to a bonus amount of EUR 56,000 (8/10 x 70,000).
23. The last part of the Claimant / Counter-Respondent’s request for outstanding
remuneration corresponded to a bonus amount for assists made. In this light, the
Claimant / Counter-Respondent argued that he had made two assists during the
2014/2015, and that he therefore should obtain EUR 4,000, pursuant to the contract.
Nonetheless, taking into account the documentation presented by the Claimant /
Counter-Respondent in support of his petition, the DRC concluded that the Claimant /
Counter-Respondent had not fully substantiated his claim with pertinent documentary
evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no
supporting documentation relating to the Claimant / Counter-Respondent’s claim
pertaining to outstanding bonus for assists made. Consequently, the DRC decided to
reject this part of the Claimant / Counter-Respondent’s claim.
24. The deciding authority thus concluded that the total amount of outstanding
remuneration due to the Claimant / Counter-Respondent is that of EUR 126,000. In
addition, taking into account the Claimant / Counter-Respondent’s request as well as the
constant practice of the Dispute Resolution Chamber, the DRC decided that the
Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest
Player A, Country B / Club C, Country D / Club E, Country D
15/19
of 5% p.a. on the outstanding remuneration as from 10 June 2015, i.e. the date on which
the bonuses were due to the Claimant / Counter-Respondent (II./20. above).
25. Having established the above, the Chamber turned its attention to the question of the
consequences of the unilateral termination of the contract by the Respondent / CounterClaimant with just cause on 27 April 2015. In doing so, the members of the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, in all cases,
the party in breach shall pay compensation. Furthermore, the DRC recalled that 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 / CounterRespondent 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.
26. The Chamber held that it first of all had to clarify as to whether the pertinent
employment contract contained any clause, by means of which the parties had
beforehand agreed upon a 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.
27. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Claimant / Counter-Respondent to the Respondent /
Counter-Claimant 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 non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective criteria may
be taken into account at the discretion of the deciding body. In this regard, the Chamber
emphasized 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.
28. The Chamber noted that in its calculation of the amount of compensation, the
Respondent / Counter-Claimant had included the amount of EUR 800,000, maintaining
that this was the market value of the Claimant / Counter-Respondent when the contract
was terminated. In this respect, the Chamber decided that such amount could not be
accepted, since it was considered to be speculative.
29. In order to estimate the amount of compensation due to the Respondent / CounterClaimant in the present case, the members of the Chamber first turned their attention
to the remuneration and other benefits due to the Claimant / Counter-Respondent under
the existing contract and/or the new contract, which value constitutes an essential
criterion in the calculation of the amount of compensation in accordance with art. 17
par. 1 of the Regulations. The members of the Chamber deemed it important to
Player A, Country B / Club C, Country D / Club E, Country D
16/19
emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to
take into account both the existing contract and the new contract in the calculation of
the amount of compensation.
30. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant / Counter-Respondent under the terms of both the
employment contract signed with the Respondent / Counter-Claimant, and the one
signed with the Intervening Party.
31. In the case at stake, the remaining value of the contract in question can be established
as follows: EUR 65,000 for May 2015, as well as a net salary of EUR 830,000 for the
2015/2016 season, pursuant to article 3 of the employment contract (I./2. above). Thus,
the total residual value of the contract amounts to EUR 895,000.
32. In continuation, the Chamber took into consideration the value of the contract the
Claimant / Counter-Respondent concluded subsequently with the Intervening Party. In
this light, and based on the information provided by the Claimant / Counter-Respondent,
the DRC noted that the total value of the employment contract between the Claimant /
Counter-Respondent and the Intervening Party amounted to EUR 425,000 (I./60. above).
33. Taking into account the aforementioned elements, the Chamber concluded that the
average remuneration of EUR 660,000 for the time remaining of the relevant contract
was to be considered reasonable and justified as compensation for breach of contract in
the case at hand.
34. In addition, taking into account the Respondent / Counter-Claimant’s request, the
Chamber decided that the Claimant / Counter-Respondent must pay to the Respondent
/ Counter-Claimant interest of 5% p.a. on the amount of compensation as of the date
on which the counterclaim was lodged, i.e. 25 July 2015, until the date of effective
payment.
35. Furthermore, the Chamber decided that, in strict application of art. 17 par. 2 of the
Regulations, the Intervening Party shall be jointly and severally liable for the payment
of the aforementioned amount of compensation.
36. Finally, the DRC decided that the Respondent / Counter-Claimant’s claim pertaining to
legal costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s longstanding respective jurisprudence.
37. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant / Counter-Respondent and
the Respondent / Counter-Claimant are rejected.
Player A, Country B / Club C, Country D / Club E, Country D
17/19
III. Decision of the Dis pute Res olution Cham ber
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, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 126,000, plus 5% interest p.a. on the
said amount as from 10 June 2015 until the date of effective payment.
3.
In the event that the amount due plus interest to the Claimant / Counter-Respondent in
accordance with the above-mentioned point 2. Is not paid by the Respondent / CounterClaimant within the stated time limit, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5.
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.
6.
The counterclaim of the Respondent / Counter-Claimant, Club C, is partially accepted.
7.
The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant,
w ithin 30 day s as from the date of notification of this decision, compensation for
breach of contract in the amount of EUR 660,000, plus 5% interest p.a. on the said
amount as from 25 July 2015 until the date of effective payment.
8.
The Intervening Party, Club E, is jointly and severally liable for the payment of the
aforementioned amount.
9.
In the event that the amount plus interest due to the Respondent / Counter-Claimant is
not paid within the stated time limit, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
10. Any further claim lodged by the Respondent / Counter-Claimant is rejected.
Player A, Country B / Club C, Country D / Club E, Country D
18/19
11. The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent 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 m otiv ated decision (legal remedy):
According to art. 58 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 (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Encl.
CAS directives
Player A, Country B / Club C, Country D / Club E, Country D
19/19