Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 8 March 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (South Africa), member
Muzam m il bin Moham ed (Singapore), 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 F
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 23 July 2015, the Player of Country B, Player A (hereinafter: the Claimant /
Counter-Respondent) concluded an employment contract with the Club of Country
D, Club C (hereinafter: the Respondent / Counter-Claimant), valid as from the date
of signature until 22 July 2018.
2.
According to the contract, the Claimant / Counter-Respondent was entitled to the
following remuneration:
EUR 3,310,000 for the season 2015/2016, payable as follows:
- EUR 1,470,000, payable by 31 July 2015 (“Advanced payment”);
- EUR 153,333.33, as monthly salary and payable in 12 instalments (i.e. EUR
1,839,999.96 in total);
EUR 3,060,000 for the season 2016/2017, payable as follows:
- EUR 1,220,000, payable by 31 July 2016 (“Advanced payment”);
- EUR 153,333.33, as monthly salary and payable in 12 instalments (i.e. EUR
1,839,999.96 in total);
EUR 3,060,000 for the season 2017/2018, payable as follows:
- EUR 1,220,000, payable by 31 July 2017 (“Advanced payment”);
- EUR 153,333.33, as monthly salary and payable in 12 instalments (i.e. EUR
1,839,999.96 in total).
3.
In addition, and following clause 4 of the contract, the Claimant / CounterRespondent was entitled to “accommodation at the Beach upon availability with a
maximum 10,000 Euros per month)”.
4.
Furthermore, the contract stipulated the following clauses:
“5.2. The [Claimant / Counter-Respondent] shall also be entitled to the following
bonuses:
(…) 5) (…)
5.1. 15 Goals: 175,000 Euros (…) and in case the [Claimant / Counter-Respondent]
scored 20 goals then the [Claimant / Counter-Respondent] will be entitled to collect
75,000 Euros (…) then the total will be 250,000 Euro only” (…).
5.2. if the [Claimant / Counter-Respondent] assisted directly for scoring 15 goals then
he will be entitled for 90.000 Euros (…) and in case the [Claimant / CounterRespondent] assisted directly in scoring 20 goals then he will be entitled to collect
35,000 Euros (…) then total will be 125,000 Euro (…) These bonuses are paid at the
end of each season and are not cumulative”
(…) 5.3. The [Claimant / Counter-Respondent] will be entitled to get 8 Business class
air tickets per year/season, Capital G-Capital H-Capital G (…)
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Player A, Country B / Club C, Country D / Club E, Country F
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“5.7 [the Respondent / Counter-Claimant] shall pay the [Claimant / CounterRespondent] after the signing of this agreement an additional payment to the
amount of 1,140,000 Euros of which 570.000 euros will be paid within 30 days after
the signing of this agreement and 570,000 euros will be paid in December 15, 2015.
This amount will be sent directly by [the Respondent / Counter-Claimant] to Bank J
(Country K) in order to pay the outstanding loan the [Claimant / CounterRespondent] has with such Bank. The Bank will provide the respective invoice."
(…)
9.2. ”Leave is primarily to be taken during match free periods and must be used for
relaxing purpose.
Specific leave dates must be agreed upon with [the Respondent / Counter-Claimant]
in writing.”
(…)
“11.5 Notwithstanding anything to the contrary, the [Claimant / CounterRespondent] hereby expressly and irrevocably agree that in the event that [the
Respondent / Counter-Claimant] terminates this Contract with just cause (in
accordance with FIFA Regulations governing the matter) and/or the [Claimant /
Counter-Respondent] terminates this Contract without just cause (in accordance
with FIFA Regulations governing this matter) the [Claimant / Counter-Respondent]
shall promptly pay to [the Respondent / Counter-Claimant], as compensation for the
breach, the amount of Euro 15,000,000 (fifteen million Euros) (“Breach
Compensation’).”
5.
On 17 March 2016, the Claimant / Counter-Respondent and the Respondent /
Counter-Claimant concluded an “Addendum” to the contract which, inter alia,
stipulated the following:
“II. The [Claimant / Counter-Respondent] to date has always performed his duties
with the [Respondent / Counter-Claimant] according to the employment contract.
III. The [Respondent / Counter-Claimant] currently has an outstanding plus an
amount to be received until 30 June 2016 of € 1,501,668 towards to the [Claimant /
Counter-Respondent] (. . .)
VI. The parties have agreed to settle the matters regarding the outstanding amounts
plus the salaries up to the end of June 2016 to be paid to the [Claimant / CounterRespondent], subject to the conditions of this addendum (...)
VII. This addendum is considered as a part and integrant to the employment contract
signed between the parties on the 23 July 2015 (..)”.
6.
More specifically, the Addendum established that the amount of EUR 1,501,668
should be paid as follows:
EUR 375,417, at the date of the signature of the Addendum;
EUR 375,417, on 30 April 2016;
EUR 375,417, on 31 May 2016;
EUR 375,417, on 30 June 2016.
7.
Furthermore, and following the Addendum, the parties stipulated the following
clauses:
“2. The Parties agree that €570,000 (…) is to be paid on behalf of the [Claimant /
Counter-Respondent] directly to Bank J according to a separate agreement to be
signed between the [Respondent / Counter-Claimant] and the Bank”
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Player A, Country B / Club C, Country D / Club E, Country F
3
“4. For the payments from July 2016 (advanced payment and monthly salaries), the
[Respondent / Counter-Claimant] hereby agrees that any delay in more than 60 days
(two months), and, if the [Respondent / Counter-Claimant] does not cure its entire
default (the payment of the two months salaries outstanding or the advance
payment) in the following ten days, the [Claimant / Counter-Respondent] has the
option to immediately terminate, without any warning notice, the employment
contract and all the amounts due and all the remaining amounts of such
employment contract must be immediately paid by the [Respondent / CounterClaimant] to the [Claimant / Counter-Respondent].
For the purpose of this Clause, the [Respondent / Counter-Claimant] confirms that
the official payment date is every 15’ date of the month, i.e. in case the [Claimant /
Counter-Respondent] does not go on a permanent or temporary transfer to a third
[Respondent / Counter-Claimant], the first payment from the season 2016/2017 will
be on 31 July 2016 for the advanced payment, and 1 August 2016 for the monthly
salary, meaning that the salary of July 2016 delay “60 days/2 months and the
following ten days after the 60 days/2months” will be calculated from the 2 of
August 2016 for the salary and 1 August 2016 for the advanced payment.”
8.
On 30 January 2017, the Claimant / Counter-Respondent concluded an employment
contract with the Club of Country F, Club E (hereinafter: the Intervening Party), valid
as from 1 February 2017 until 30 June 2018.
9.
In accordance with clause 8.1. of the aforementioned contract, the Claimant /
Counter-Respondent was entitled to a monthly salary in the amount of “not less
than 167 000.
10.
Furthermore, and following the information available in the Transfer Matching
System (TMS), the Claimant / Counter-Respondent and the Intervening Party
concluded, on 30 January 2017, an “Addendum 1”, according to which the Claimant
/ Counter-Respondent was entitled to the following remuneration:
- USD 110,000, as monthly salary, payable in at the exchange rate of the Bank of
Country F, from the starting date of the employment contract until 30 June 2017;
- USD 166,666, as monthly salary, payable in Currency of Country F at the exchange
rate of the Bank of Country F, from 1 July 2017 until 30 June 2018.
11.
In addition, and following art. 3 of the Addendum 1, the Claimant / CounterRespondent was entitled to a monthly payment of USD 2,500 (payable in Currency
of Country F) for housing.
12.
On 7 December 2016, the Claimant / Counter-Respondent lodged a claim before FIFA
against the Respondent / Counter-Claimant, and requested the payment of the total
amount of EUR 7,343,432, detailed as follows:
- EUR 1,220,000, corresponding to the “advanced payment” for the season
2016/2017, plus 5% interest p.a. as from 31 July 2016;
- EUR 570,000, corresponding to the second part of the bank loan, plus 5% interest
p.a. as from 15 December 2015;
- EUR 3,373,332, corresponding to salaries for the seasons 2016/2017 and 2017/2018
(i.e. from October 2016 until July 2017, as well as for the entire season 2017-2018),
plus 5% interest p.a. as from 15 October 2016;
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Player A, Country B / Club C, Country D / Club E, Country F
4
- EUR 210,100, corresponding to “benefits” (flight tickets & housing), plus 5%
interest p.a. as from 15 October 2016. In particular, the Claimant / CounterRespondent considered that the average cost for a business single flight ticket for
the journey Capital H-Capital G is EUR 4,378 (i.e. EUR 4,378*2*8=EUR 70,050 per
season, and EUR 140,100 for two seasons), and that the amount due for housing
corresponds to EUR 70,000, for the season 2017/2018 only;
- EUR 750,000, corresponding to “performance bonuses”, plus 5% interest p.a. as
from 15 October 2016, further detailed as follows:
- EUR 250,000, for scoring 20 goals during the seasons 2016/2017 and 2017/2018;
- EUR 125,000, for 20 assists during the seasons 2016/2017 and 2017/2018.
13.
In addition, the Claimant / Counter-Respondent requested the payment of the legal
and procedural costs.
14.
As to the facts, the Claimant / Counter-Respondent explained that, initially, the
Respondent / Counter-Claimant failed to pay him to the following amounts:
The second part of the advanced salary of the contract (i.e. EUR 735,000) and
due on 31 July 2015;
The second instalment of the bank loan (i.e. EUR 570,000) and due by 15
December 2015 (cf. point I. 4 above);
His monthly salary (i.e. EUR 153,333.33), due on 10 February 2016.
15.
In view of the above, the Claimant / Counter-Respondent explained that, on 27
February 2016, he sent a default notice to the Respondent / Counter-Claimant in
relation to the aforementioned amounts and that, on 8 March 2016, he insisted in
his request with a subsequent default notice for the total amount of EUR 1,448,333.
16.
In this regard, the Claimant / Counter-Respondent explained that, on 10 March 2016,
the Respondent / Counter-Claimant proposed to undertake a repayment plan.
17.
In this respect, the Claimant / Counter-Respondent acknowledged that he agreed
with the Respondent / Counter-Claimant to negotiate a repayment plan, which led
to the conclusion of the Addendum to the contract (cf. point I.5 above).
18.
Notwithstanding the above, the Claimant / Counter-Respondent stated that
“eventually, the [Respondent / Counter-Claimant] ignored its debt towards [him]”.
19.
Consequently, the Claimant / Counter-Respondent stated that, on 1 May, 2 May and
3 May 2016, he sent several default notices for the payment of EUR 375,417, due on
30 April 2016, and pursuant to the Addendum.
20.
At a later stage, the Claimant / Counter-Respondent explained that, on 19
September 2016 and “due to the persistent non-fulfilment by the [Respondent /
Counter-Claimant]”, he sent a new default notice to the latter for “the remaining
part of the Bank Loan for EUR 570,000 and the advance payment of season
2016/2017 for EUR 1,200,000”. According to the Claimant / Counter-Respondent, the
Respondent / Counter-Claimant ignored his request.
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Player A, Country B / Club C, Country D / Club E, Country F
5
21.
In view of the above, the Claimant / Counter-Respondent explained that, on 1
October 2016, he sent a final default notice to the Respondent / Counter-Claimant
and granted 10 days to the Respondent / Counter-Claimant to settle the outstanding
amount of EUR “1,200,000”, which was due on 31 July 2016. In this regard, the
Claimant / Counter-Respondent stated that the Respondent / Counter-Claimant
ignored his request.
22.
As a consequence, the Claimant / Counter-Respondent explained that, on 15 October
2016, he sent a termination letter via his lawyer to the Respondent / CounterClaimant in accordance with clause 4 of the addendum (cf. point I. 7 above). The
Claimant / Counter-Respondent further considered that, in accordance with said
clause, no further reduction must be applied to the payable compensation.
23.
More specifically, the termination letter included the following statement:
“4. The [Respondent / Counter-Claimant] has as overdue payments the amount of
EUR 1,200,000 as salaries advanced payment and EUR 570,000 as agreed by the
[Respondent / Counter-Claimant] to pay the [Claimant / Counter-Respondent]’s bank
on his behalf. These amounts corresponds to more than 60% of his payments during
a season.”
24.
On 3 February 2017, the Respondent / Counter-Claimant replied to the claim and
simultaneously lodged a counterclaim against the Claimant / Counter-Respondent
and the Intervening Party (cf. point I. 8 above). More specifically, the Respondent /
Counter-Claimant requested the payment of compensation, plus 5% interest p.a. as
from the date of the termination, as follows:
- EUR 15,000,000, following clause 11 of the contract (cf. point I. 4 above);
- EUR 5,660,000, corresponding to the residual value of the contract and “the
salaries of July, August, and September 2016 which the [Respondent / CounterClaimant duly paid]”;
- “Any other amount that the DRC deems opportune to consider in order to
quantify the compensation.”
25.
In addition, the Respondent / Counter-Claimant requested the imposition of
sporting sanctions against the Claimant / Counter-Respondent and the Intervening
Party.
26.
As to the facts, the Respondent / Counter-Claimant explained that, at the date of
the signature of the contract with the Claimant / Counter-Respondent, who was
previously under contract with the Club of Country K, Club L, he had to repay a
personal loan from the Bank of Country K, Bank J, for the amount of EUR 1,140,000.
Consequently, the Respondent / Counter-Claimant explained that, when concluding
the contract with the Claimant / Counter-Respondent, the latter proposed as one of
the conditions that the Respondent / Counter-Claimant had to pay said amount
directly to the bank. According to the Respondent / Counter-Claimant, this condition
is the rationale existing behind clause 5.7 of the contract (cf. point I. 4 above).
Nevertheless, the Respondent / Counter-Claimant considered that the payment of
the bank loan, following the conclusion of the Addendum, does not correspond to
the employment relationship but is rather “a matter between [the Respondent /
Counter-Claimant] and the Bank” that was to be settled in a different agreement.
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Player A, Country B / Club C, Country D / Club E, Country F
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Consequently, the Respondent / Counter-Claimant argued that the Claimant /
Counter-Respondent had no right to claim the related amount in his notice dated
19 September 2016 (cf. point I. 20 above).
27.
In addition, the Respondent / Counter-Claimant considered that, since the signature
of the contract, the Claimant / Counter-Respondent had an unprofessional behavior
on and off the pitch. More specifically, the Respondent / Counter-Claimant stated
that the Claimant / Counter-Respondent “was reiterated seeing drinking in a public
place and doing actions which did not contribute to keep him fit” and that “many
facts of his private life were made public creating a serious embarassment in Country
D”. In this regard, the Respondent / Counter-Claimant considered that it expected
the Claimant / Counter-Respondent to act as a “role model” in order to preserve its
image.
28.
Subsequently, the Respondent / Counter-Claimant explained that, on 9 December
2015 the Claimant / Counter-Respondent left Country D with the purpose to recover
from an injury for a short term (60 days in total), but that he returned only on 2 May
2016, i.e. after more than 5 months since he left. In this respect, the Respondent /
Counter-Claimant explained that it put the Claimant / Counter-Respondent on
notice three times requesting him to ”immediately return to Capital H”, on 10 April
2016, on 20 April 2016 and on 21 April 2016. In this respect, the Respondent /
Counter-Claimant explained that it received several replies from the Claimant /
Counter-Respondent, but that it never justified or accepted his arguments.
29.
Moreover, the Respondent / Counter-Claimant acknowledged that it went through
a period of financial difficulties, which led to the conclusion of the debt
acknowledgement agreement.
30.
Nevertheless, the Respondent / Counter-Claimant stated that it paid to the Claimant
/ Counter-Respondent all the amounts due for the first sporting season of the
contract (2015/2016), i.e. EUR 3,310,000 and that, consequently, any event prior to
the Addendum to the contract is irrelevant to the case.
31.
Furthermore, the Respondent / Counter-Claimant explained that the Claimant /
Counter-Respondent left the country without permission on 30 September 2016 and
returned on 9 October 2016 and, consequently missed an official match on 5 October
2016. In view of the above, the Respondent / Counter-Claimant stated that “upon
due investigation on the Claimant / Counter-Respondent’s reiterated breaches of
Contract”, it decided to temporarily suspend the payment of the “advanced
amount” for the season 2016/2017, while continuing to pay the regular monthly
salary. However, the Respondent / Counter-Claimant acknowledged that, on 9
October 2016, the Claimant / Counter-Respondent returned and participated in its
activities and, in consideration of his “good approach”, it “reinserted in its financial
system the payment of the advanced amount due for the sporting season
2016/2017.“
32.
In addition, the Respondent / Counter-Claimant stated that, on 15 November 2016,
it sent a default notice to the Claimant / Counter-Respondent asking him to report
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Player A, Country B / Club C, Country D / Club E, Country F
7
within 48 hours and that failure to do so would imply taking disciplinary measures.
The Respondent / Counter-Claimant further disclosed that it sent a new default
notice on 4 December 2016 and on 9 December 2016 before sending a termination
letter on 18 December 2016. The Respondent / Counter-Claimant considered in this
regard that the contract was valid until this last date, and that the termination letter
sent by the Claimant / Counter-Respondent must be deemed as invalid.
33.
In his replica and reply to the counterclaim, the Claimant / Counter-Respondent
considered that the facts as explained by the Respondent / Counter-Claimant are
“artificial and contradictory”.
34.
In this regard, the Claimant / Counter-Respondent was of the opinion that the
Respondent / Counter-Claimant did not provide any substantial proof of the
allegations made in relation to his alleged unprofessional behavior, and that said
argument was only brought for the first time before FIFA.
35.
In addition, the Claimant / Counter-Respondent rejected the Respondent / CounterClaimant’s assertions related to a supposed unauthorized leave from 9 December
2015 to 2 May 2016, and explained that it was constantly updated in relation to his
injury.
36.
In relation to the notices sent by the Respondent / Counter-Claimant requesting his
return (cf. point I. 28 above), the Claimant / Counter-Respondent acknowledged that
he indeed received them, but explained that he always replied to said notices.
37.
Furthermore, the Claimant / Counter-Respondent considered that the letters sent by
the Respondent / Counter-Claimant after his termination of the contract on 15
October 2016 are irrelevant to the case.
38.
In reference to the bank loan, the Claimant / Counter-Respondent considered that,
in legal terms, he “remained the only debtor of the Bank Loan towards the Bank
and that, in turn, [he] was the only creditor of the [Respondent / Counter-Claimant]
for the same amount.”
39.
In reply to the counterclaim lodged by the Claimant / Counter-Respondent, the
Intervening Party explained that, “in the middle of January 2017”, it was
approached by a representative of the Claimant / Counter-Respondent, who
introduced him as a free agent. However, the Intervening Party stated that it was
not informed that the Claimant / Counter-Respondent terminated the contract
unilaterally. Consequently, the Intervening Party requested to reject the
counterclaim lodged against it and to not be cited as “joint defendant”.
40.
As final comments, the Respondent / Counter-Claimant confirmed its previous
position. In particular, the Respondent / Counter-Claimant considered that the
termination notice sent by the Claimant / Counter-Respondent was invalid and that
the lawyer who sent it on his behalf was not empowered to do so.
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Player A, Country B / Club C, Country D / Club E, Country F
8
41.
In addition, the Respondent / Counter-Claimant underlined that the Claimant /
Counter-Respondent did not contest that he was absent, despite never having
received an authorization from it. In this respect, the Respondent / Counter-Claimant
explained that, following art. 9.2. of the contract, all leaves must be authorized in
writing. More specifically, the Respondent / Counter-Claimant highlighted that it
can be established that the Claimant / Counter-Respondent was absent between 9
December 2015 until 2 May 2016, and from 30 September 2016 until 9 October 2016,
and that said absences were not contested by him.
42.
Moreover, the Respondent / Counter-Claimant stated that, following the
termination of the contract on 18 December 2016, it had to hire a replacement for
the Claimant / Counter-Respondent. In this respect, the Respondent / CounterClaimant explained that, on 3 January 2017, it transferred the Player of Country M,
Player N from the Club of Country O, Club P, for the amount of USD 1,500,000 “net
of any solidarity contribution”, and that said player’s salary with the Respondent /
Counter-Claimant amounts to USD 8,100,000. Therefore, the Respondent / CounterClaimant understood that the total costs for the replacement of the Claimant /
Counter-Respondent amounts to USD 9,675,000.
43.
In addition, the Respondent / Counter-Claimant considered that the Claimant /
Counter-Respondent could not justify to terminate the contract on the grounds of
the “Advance payment” and the bank loan, since they do not constitute a salary. In
the opinion of the Respondent / Counter-Claimant, only “salary”, defined as such,
should be taken into account when assessing a possible just cause in the termination
of a contract. The Respondent / Counter-Claimant requested to take the
aforementioned amount, should it be entitled to receive any compensation.
44.
In addition, the Respondent / Counter-Claimant insisted that the matter related to
the bank loan lies out of the competence of FIFA. The Respondent / CounterClaimant considered that the Claimant / Counter-Respondent could have opted to
receive the related amount as an increase in his salary, but that he preferred to
exclude said aspect from his employment relationship with the Respondent /
Counter-Claimant. The Respondent / Counter-Claimant further acknowledged that
“it agreed to pay [the loan] on the [Claimant / Counter-Respondent’s] behalf”, but
that said repayment was subject to an additional agreement with the bank that was
never signed.
45.
Nevertheless, the Respondent / Counter-Claimant further considered that “in the
unlike case that the DRC shall uphold the claim, the DRC should consider that the
amount of the compensation requested is erroneous and out of proportion.”
46.
In respect of the reply provided by the Intervening Party, the Respondent / CounterClaimant underlined that its liability is strict, regardless of whether it induced or not
the Claimant / Counter-Respondent to terminate the contract. Likewise, the
Respondent / Counter-Claimant considered that the Intervening Party was
“negligent” for asserting that the Claimant / Counter-Respondent was a free agent
since, as a professional club, it had a duty to undertake a background check and due
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Player A, Country B / Club C, Country D / Club E, Country F
9
diligence. The Respondent / Counter-Claimant quoted jurisprudence of the DRC and
the Court of Arbitration for Sport (CAS) in this regard.
47.
Moreover, the Respondent / Counter-Claimant considered that the Intervening Party
failed to disclose the entire economic terms of its contract with the Claimant /
Counter-Respondent.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) 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 7 December
2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2015, 2017
and 2018 editions of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 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 is competent to deal with the matter at stake, which
concerns an employment-related dispute between a Player of Country B, a Club of
Country D and a Club of Country F.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 2 March 2018 by means of which the
parties were informed of the composition of the Chamber, the member Stefano
Sartori and the member Pavel Pivovarov refrained from participating in the
deliberations in the case at hand, due to the fact that the member Pavel Pivovarov
has the same nationality as the Intervening Party and that, in order to comply with
the prerequisite of equal representation of club and player representatives, also
the member Stefano Sartori refrained from participating and thus the Dispute
Resolution Chamber adjudicated the case in presence of three members in
accordance with art. 24 par. 2 of the Regulations.
4.
The competence of the Chamber having been established, the Chamber analysed
which edition of the Regulations on the Status and Transfer of Players should be
applicable as to the substance of the matter. In this respect, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (editions 2016 and 2018), and considering that the present matter was
submitted to FIFA on 7 December 2016, the 2016 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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Player A, Country B / Club C, Country D / Club E, Country F
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5.
Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter.
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.
6.
In continuation, the Chamber duly noted that, on 23 July 2015, the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant concluded an
employment contract, valid as from the date of signature until 22 July 2018, as well as
an “Addendum” to said contract on 17 March 2016.
7.
Subsequently, the Chamber noted that the Claimant / Counter-Respondent lodged
a claim against the Respondent / Counter-Respondent, maintaining that he
terminated the employment contract on 15 October 2016 with just cause, after
having put the Respondent / Counter-Claimant in default.
8.
In particular, the Chamber noted that the Claimant / Counter-Respondent explained
that the Respondent / Counter-Claimant failed to pay him the amount of “EUR
1,200,000”, due on 31 July 2016. In this respect, the Claimant / Counter-Respondent
specified that, according to the addendum to the contract, in case the Respondent /
Counter-Claimant fails to pay within the following 10 days from the 60th day an
amount is outstanding, he can terminate the contract with just cause and claim the
entire remaining amount of the contract.
9.
Conversely, the Chamber observed that the Respondent / Counter-Claimant denied
that the Claimant / Counter-Respondent had any just cause to terminate the contract
in an anticipated manner and that, in view of the above, it lodged a counterclaim
against him. In this respect, the Chamber noted that, according to the Respondent /
Counter-Claimant, the Claimant / Counter-Respondent had an unprofessional
behaviour and was absent in several occasions (cf. point I.27 and I.28 above).
10.
In view of the dissent between the parties, the members of the Chamber went on
to examine the relevant arguments in order to establish whether the Claimant /
Counter-Respondent had just cause to terminate the contract on 15 October 2016.
11.
In this respect, the Chamber noted that, on 17 March 2016, the parties concluded an
“Addendum” to the contract which, inter alia, stipulated the following:
“II. The [Claimant / Counter-Respondent] to date has always performed his duties
with the [Respondent / Counter-Claimant] according to the employment contract.”
12.
In view of the clear contents of the aforementioned clause, the Chamber understood
that the Respondent / Counter-Claimant had no valid reasons to raise any argument
as to the Claimant / Counter-Respondent’s alleged unprofessional behaviour or
absences, since it explicitly acknowledged that he always performed his duties as
contractually agreed.
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Player A, Country B / Club C, Country D / Club E, Country F
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13.
Subsequently, the Chamber turned its attention to the arguments brought up by
the Claimant / Counter-Respondent. In particular, the members of the Chamber
observed that the Claimant / Counter-Respondent terminated the contract on the
grounds of clause 4 of the addendum to the contract (cf. point I. 7 above), which
was drafted as follows:
“4. For the payments from July 2016 (advanced payment and monthly salaries), the
[Respondent / Counter-Claimant] hereby agrees that any delay in more than 60 days
(two months), and, if the [Respondent / Counter-Claimant] does not cure its entire
default (the payment of the two months salaries outstanding or the advance
payment) in the following ten days, the [Claimant / Counter-Respondent] has the
option to immediately terminate, without any warning notice, the employment
contract and all the amounts due and all the remaining amounts of such
employment contract must be immediately paid by the [Respondent / CounterClaimant] to the [Claimant / Counter-Respondent]” (emphasis added).
14.
In this respect, the members of the Chamber noted that the contents of the
aforementioned clause are clear and that, as a result, it appears that, for the specific
matter at stake, the existence of any delay in more than 60 days in the payments
fallen due as from “July 2016 (advanced payment and monthly salaries)” would be
sufficient for the Claimant / Counter-Respondent to terminate the contract with just
cause.
15.
For the sake of completeness, the members of the DRC wished to examine the
validity of the aforementioned clause. In this respect, the DRC observed that said
clause was mutually agreed between the parties within the context of the
conclusion of the Addendum in which a certain debt from the Respondent / CounterClaimant towards the Claimant / Counter-Respondent was recognized and, as a
result, strict deadlines for the payment of certain amounts appear to be justifiable.
Moreover, the DRC noted that the rationale behind this type of clauses derives from
the acknowledgement by a club of the commission of several contractual breaches
in the past. In view of the above, the existence of stricter deadlines or requirements,
as it is the case in the analysed clause, appear to be fully acceptable.
16.
After assessing the scope and the validity of the clause 4 of the addendum to the
contract, the members of the Chamber turned their attention to analysing whether
the developments of the facts in the matter at stake could justify the execution by
the Claimant / Counter-Respondent of the aforementioned clause.
17.
In this respect, the members of the Chamber observed that the Respondent /
Counter-Claimant in fact acknowledged that it suspended the payment of the
“advanced payment” due on 31 July 2016 in a unilateral manner, as a form of
disciplinary sanction, while continuing to pay the Claimant / Counter-Respondent’s
regular monthly salary.
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Player A, Country B / Club C, Country D / Club E, Country F
12
18.
In this context, the Chamber wished to recall its longstanding jurisprudence and
underlined that the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a means to set off outstanding financial
obligations towards players. Consequently, the Chamber decided to reject the
Respondent / Counter-Claimant’s argument in this connection.
19.
Therefore, the Chamber understood that the Respondent / Counter-Claimant had
no valid reason to delay the payment of the “advanced payment” due on 31 July
2016 for more than 60 days and, as a result, clause 4 of the addendum to the contract
was fully applicable on 15 October 2016, i.e. the date of termination of the contract.
20.
In light of the aforementioned, the DRC came to the unanimous conclusion that the
Claimant / Counter-Respondent had terminated the contract with just cause on 15
October 2016.
21.
Subsequently, the Chamber focused its attention on the consequences of the breach
of contract in question and, in this respect, it decided that, taking into consideration
art. 17 par. 1 of the Regulations, the Claimant / Counter-Respondent is entitled to
receive from the Respondent / Counter-Claimant compensation for breach of
contract on the basis of the relevant employment contract.
22.
In continuation, the Chamber outlined that, in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
Claimant / Counter-Respondent under the existing contract and/or the new contract,
the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
23.
In application of the relevant provision, the Chamber held that it first of all had to
clarify 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 members
of the Chamber noted that the contract provided a form of compensation as follows:
“11.5 Notwithstanding anything to the contrary, the [Claimant / CounterRespondent] hereby expressly and irrevocably agree that in the event that [the
Respondent / Counter-Claimant] terminates this Contract with just cause (in
accordance with FIFA Regulations governing the matter) and/or the [Claimant /
Counter-Respondent] terminates this Contract without just cause (in accordance
with FIFA Regulations governing this matter) the [Claimant / Counter-Respondent]
shall promptly pay to [the Respondent / Counter-Claimant], as compensation for the
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Player A, Country B / Club C, Country D / Club E, Country F
13
breach, the amount of Euro 15,000,000 (fifteen million Euros) (“Breach
Compensation’).”
24. However, and after carefully analysing the contents of said clause, the Chamber
observed that the aforementioned clause was not applicable to the matter at stake,
since it is does not cover a scenario as the one existing in the matter at stake, as the
Claimant / Counter-Respondent terminated the contract with just cause.
25. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant /
Counter-Respondent 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.
26. Bearing in mind the foregoing as well as the claim of the Claimant / CounterRespondent, the Chamber proceeded with the calculation of the monies payable to
the Claimant / Counter-Respondent under the terms of the employment contract as
from 15 October 2016 (i.e. the date of termination of the contract until 22 July 2018.
(i.e. the original date of expiration of the contract). In this regard, the members of
the Chamber observed, that under the contract, the Claimant / Counter-Respondent
would have earned the amount of EUR 4,663,333 (i.e. salaries from October 2016
until July 2017, i.e. 10*153,333.33= EUR 1,533,333, as well as for the entire season
2017-2018, the amount of EUR 3,060,000 plus EUR 70,000 for housing) as from the
date of termination of the contract until the original expiration date of the contract.
The members of the Chamber therefore established that the aforementioned
amount shall serve as the basis for the calculation of the payable compensation.
27. In this respect, the Chamber wished to note, however, that it could not include, as
requested by the Claimant / Counter-Claimant, the payment of certain bonuses and
fringe benefits in the basis for the calculation of the payable compensation. In
particular, the Chamber noted that said payments are conditional to their effective
performance, since they rely on whether the Claimant / Counter-Respondent played a
certain number of matches and/or rented a certain type of house (“maximum of EUR
10,000 for rental”, cf. point I. 3 above).
28. 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
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Player A, Country B / Club C, Country D / Club E, Country F
14
the amount of compensation for breach of contract in connection with the Claimant
/ Counter-Respondent’s general obligation to mitigate his damages.
29. In this respect, the DRC noted, subsequently, that, on 30 January 2017, the Claimant
/ Counter-Respondent concluded an employment contract with the Club of Country
F, Club E (hereinafter: the Intervening Party), valid as from 1 February 2017 until 30
June 2018 and that, according to said contract and its addendum, the Claimant /
Counter-Respondent would have earned an approximate amount of EUR 2,420,060,
detailed as follows:
Salary:
- 167,000*17=2,839,000, approx. EUR 44,000.
Addendum:
- USD 110,000*5 (February to June)= USD 550,000, approx. EUR 512,500
- USD 166,666*12 (July 2017- June 2018)= USD 1,999,992, approx. EUR 1,863,560
Total:
44,000+512,500+1,863,560= EUR 2,420,060
30. As a result of the difference between the two aforementioned amounts, the DRC
concluded that the amount of payable compensation would correspond to EUR
2,243,273 (i.e. EUR 4,663,333 - EUR 2,420,060).
31. Therefore, the Chamber decided to partially accept the Claimant / CounterRespondent’s request and held that the Respondent / Counter-Claimant must pay to
the Claimant / Counter-Respondent the amount of EUR 2,243,273 as compensation
for breach of contract without just cause, which is considered by the Chamber to be
a reasonable and justified amount as compensation.
32. 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 of 5% p.a. on the compensation as of from the date of the claim.
33. Moreover, the Chamber observed that, the Claimant / Counter-Respondent is
entitled to receive from the Respondent / Counter-Claimant any possible
outstanding salaries in addition to his compensation for breach of contract on the
basis of the relevant employment contract.
34. Consequently, the members of the Chamber pointed out that, according to the claim
of the Claimant / Counter-Respondent and, as noted in the previous considerations,
he did not receive the advance payment for the season 2016/2017, in the amount of
EUR 1,220,000.
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Player A, Country B / Club C, Country D / Club E, Country F
15
35. Within this context, the DRC recalled that the Claimant / Counter-Respondent was
entitled to an advance payment for the season 2016/2017 in the amount of EUR
1,220,000, and that the Respondent / Counter-Claimant did not deny that said
amount due to the Claimant / Counter-Respondent remained unpaid.
36. In view of all the above, the DRC decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent / Counter-Claimant as to the
outstanding salaries, and is to be held liable to pay the Claimant / CounterRespondent the amount of EUR 1,220,000, as stated above.
37. In this regard, and 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 / CounterRespondent interest of 5% p.a. on the outstanding amount as from the relevant due
date.
38. Subsequently, the Chamber turned its attention to the other requests formulated
by the Claimant / Counter-Respondent.
39. In particular, the Chamber noted that the Claimant / Counter-Respondent requested
the payment of EUR 570,000 by the Respondent / Counter-Claimant, corresponding
to the second part of a bank loan apparently concluded with the Bank of Country
K, Bank J (hereinafter: the bank). More specifically, the DRC noted that said request
was apparently grounded on the basis of art. 5.7 of the contract (cf. point I. 4) above,
which was drafted as follows:
“5.7 [the Respondent / Counter-Claimant] shall pay the [Claimant / CounterRespondent after the signing of this agreement an additional payment to the
amount of 1,140,000 Euros of which 570.000 euros will be paid within 30 days after
the signing of this agreement and 570,000 euros will be paid in December 15, 2015.
This amount will be sent directly by [the Respondent / Counter-Claimant] to Bank J
(Country K) in order to pay the outstanding loan the [Claimant / CounterRespondent] has with such Bank. The Bank will provide the respective invoice."
40. In addition, the Chamber further noted that the Addendum to the contract
stipulated the following:
“2. The Parties agree that €570,000 (…) is to be paid on behalf of the [Claimant /
Counter-Respondent] directly to Bank J according to a separate agreement to be
signed between the [Respondent / Counter-Claimant] and the Bank”
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Player A, Country B / Club C, Country D / Club E, Country F
16
41. In this respect, the Chamber observed the contents of the aforementioned clauses
and reached the conclusion by majority of its members, that the repayment of the
relevant loan appears to be a matter between the Bank of Country K and the
Respondent / Counter-Claimant and thus, the Claimant / Counter-Respondent does
not have standing to claim said amount and therefore his request in this regard must
be rejected.
42. Moreover, the DRC decided to reject the Claimant / Counter-Respondent’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
43. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the parties.
III. Decis ion of the Dispute 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 1,220,000, plus 5% interest p.a. as
from 1 August 2016 until the date of effective payment.
3. The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 2,243,273, plus 5%
interest p.a. as from 7 December 2016 until the date of effective payment.
4. In the event that the amounts plus interest due to the Claimant / CounterRespondent are not paid by the Respondent / Counter-Claimant within the stated
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5. Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6. 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.
7. The counterclaim of the Respondent / Counter-Claimant is rejected.
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Player A, Country B / Club C, Country D / Club E, Country F
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*****
Note relating to the m otiv ated decis ion (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
Enclosed: CAS directives
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Player A, Country B / Club C, Country D / Club E, Country F
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