Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 April 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Jon Newman (USA), member
John Bramhall (England), member
Taku Nomiya (Japan), member
Mario Gallavotti (Italy), member
on the matter between the player,
Player A, country B,
as Claimant / Counter-Respondent I
and the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country F,
as Counter-Respondent II
and the club,
Club G, country F,
as intervening party
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 25 August 2011, the player from country B, Player A (hereinafter: the player or
the Claimant / Counter-Respondent I), born on 21 June 1984, and the club from
country D, Club C (hereinafter: Club C or the Respondent / Counter-Claimant)
concluded an employment contract (hereinafter: the contract), valid as from the
date of signature until 30 June 2016.
2.
According to the contract, the Claimant / Counter-Respondent I was entitled to
receive an annual remuneration of EUR 445,000, broken down as follows:
- EUR 145,000 net as salary payable in ten equal monthly instalments;
- EUR 300,000 net as signing fee payable in four equal instalments on 31 October,
31 December, 31 March and 15 June of the respective seasons (4 x EUR 75,000).
3.
On 30 August 2012, the parties signed another contract (hereinafter: the
amendment) valid as from the date of signature until 30 June 2016. Although the
remuneration remained the same as in the contract, the parties decided to include
the following additional clause 5:
“Si el JUGADOR rescinde unilateralmente el presente contrato, para firmar para
otra club o public limited sports company, sin cause imputable al [CLUB], por
medio de cualquier legislación, laboral o federativa vigente, EL JUGADOR y su
nuevo club, serán responsables directos y subsidiarios, respectivamente del abono
de una indemnización a favor [del CLUB] de QUINCE MILLONES DE EUROS
(15.000.000.-), a tal efecto EL JUGADOR se compromete a manifestar
expresamente esta cláusula a cualquier club o public limited sports company, que
estuviera interesado en contratar sus servicios” (free translation: Should [the
Claimant / Counter-Respondent I] terminate the present contract in order to sign
with another club or public limited sports company, without just cause, in
accordance with any labour or federative law in force, [the Claimant / CounterRespondent I], directly, and his new club, subsidiarily, will be liable to pay a
compensation amounting to EUR 15,000,000 to [the Respondent / CounterClaimant]. In this regard, [the Claimant / Counter-Respondent I] undertakes to
inform every club interested in signing a contract with him of the content of said
clause).
4.
On 20 September 2012, the Respondent / Counter-Claimant and the company
Company H, domiciled in the country I, (hereinafter: the company) concluded a
“Contrato de Asesoramiento Deportivo” (hereinafter: the scouting agreement),
valid for five seasons until 30 June 2016, by means of which the company
undertook to scout the European football market on behalf of the Respondent /
Counter-Claimant.
5.
Pursuant to the scouting agreement, the Respondent / Counter-Claimant
undertook to pay to the company the following amounts:
- 2011-12 season: EUR 417,000, broken down as follows:
o EUR 382,000 payable in four equal instalments on 15 October 2011, 15
December 2011, 15 March 2012 and 15 June 2012;
o EUR 35,000 payable on 1 July 2012.
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 2 of 16
- Following seasons: EUR 426,250, broken down as follows:
o EUR 44,250 payable on 15 September of the respective season;
o EUR 382,000 payable in four equal instalments on 15 October, 15
December, 15 March and 15 June of the respective season.
6.
Art. 5 of the scouting agreement provides that “ambas partes acuerdan someter
cualquier controversia derivada de la interpretación de este contrato al Tribunal
de Arbitraje Deportivo (TAS), con sede en Lausana (Suiza)” (free translation: both
parties agree to submit any dispute arising out of the interpretation of said
agreement to the Court of Abritation for Sport (CAS), in Lausanne (Switzerland)).
7.
In addition, the scouting agreement states that “el presente contrato anula y
sustituye el anterior firmado con fecha 24 de Agosto de 2.011, siendo el único con
validez” (free translation: the present contract cancels and replaces the former
one signed on 24 August 2011, being the only valid one).
8.
On 3 February 2014, the Claimant / Counter-Respondent I and the Respondent /
Counter-Claimant concluded an agreement by means of which the Claimant /
Counter-Respondent I “presta su total y absoluta conformidad a la anulación de
todos y cada uno de los compromisos económicos concertados con [el club] para la
temporada 2.013-2.014, reflejados en contrato de trabajo de jugador y declara
expresamente no tener cantidad alguna pendiente de percibir para la temporada
2013/2014, otorgando finiquito de la forma más amplia que en derecho se
requiere, y por todos los conceptos, a favor del [club] dando por extinguidas las
relaciones laborales y económicas entre las partes, para la temporada 2013/2014”
(free translation: [the Claimant / Counter-Respondent I] fully agrees on the
cancellation of the financial obligations agreed with [the Respondent / CounterClaimant] for the 2013-14 season in the employment contract, and expressly states
that there is no outstanding amount for the 2013-14 season, granting therefore
the broadest acquittance, and for any concept, in favour of [the Respondent /
Counter-Claimant] and extinguishing the labour and economic relationships
between the parties for the 2013-14 season).
9.
On the same day, the Respondent / Counter-Claimant and the club from country F,
Club G (hereinafter: Club G) concluded an agreement (hereinafter: the loan
agreement), free of charge, for the loan of the Claimant / Counter-Respondent I
until 30 June 2014. The Spanish version of the loan agreement specifies that “el
CLUB TURCO deberá hacerse cargo del sueldo del JUGADOR para la temporada
deportiva 2013-14, de acuerdo al contrato official entre el CLUB TURCO y EL
JUGADOR a parte estipulado” (free translation: the club from country F
undertakes to pay [the Claimant / Counter-Respondent I]’s salary for the 2013-14
season, in accordance with the separate contract concluded between the club
from country F and [the Claimant / Counter-Respondent I]) while the English one
only stipulates that “the club from country F takes the responsibility to reach an
agreement with the [Claimant / Counter-Respondent I] and to undersign with him
a separate employment contract for the football season 2013/2014”.
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 3 of 16
10.
On 4 July, 8 July and 16 July 2014, the Respondent / Counter-Claimant extended
the Claimant / Counter-Respondent I’s holidays, eventually granting him an
extension until 23 July 2014.
11.
By a letter dated 28 July 2014, apparently received on 31 July 2014, the Claimant /
Counter-Respondent I, making reference to his outstanding remuneration
corresponding to his signing fee due on 31 December 2013 as well as three
instalments due in accordance with the scouting agreement, terminated his
contract.
12.
On 5 August 2014, the Claimant / Counter-Respondent I lodged a claim in front of
FIFA against the Respondent / Counter-Claimant for breach of contract requesting
to be awarded with the amount of EUR 2,104,000, broken down as follows:
- EUR 361,500 as outstanding remuneration:
o EUR 75,000 corresponding to his signing fee due on 31 December 2013;
o EUR 286,500 corresponding to three instalments due in accordance with
the scouting agreement;
- EUR 1,742,500 as compensation:
o EUR 890,000 as residual value of the contract;
o EUR 852,500 as residual value of the scouting agreement.
13.
In his claim, the Claimant / Counter-Respondent I asserts that as of October 2013,
and due to financial difficulties to pay his remuneration, the Respondent /
Counter-Claimant informed him that it would stop paying him until he left the
club. According to the Claimant / Counter-Respondent I, in January 2014, the
signing fee due on 31 December 2013 as well as two instalments due in
accordance with the scouting agreement, payable on 15 October and 15
December 2013, were outstanding. Regarding said outstanding amounts due in
accordance with the scouting agreement, the Claimant / Counter-Respondent I
explains that on 31 January 2014, the Respondent / Counter-Claimant undertook
to pay the company an amount of EUR 115,500 by 15 April 2014 as final
settlement for the 2013-14 season. Nevertheless, the Claimant / CounterRespondent I points out that since the Respondent / Counter-Claimant failed to
comply with its obligations by 15 April 2014, the settlement agreement became
null and void and therefore an amount of EUR 361,500 was outstanding (cf. point
12 above). In addition, the Claimant / Counter-Respondent I underlines that the
Respondent / Counter-Claimant prevented him from resuming trainings by
extending his holidays, side-lined him from the professional team and refused to
meet his agent in order to discuss the issue. In light of the foregoing, the Claimant
/ Counter-Respondent I concludes that the Respondent / Counter-Claimant was no
longer interested in his services and thus that he had just cause to terminate the
contract.
14.
On 13 August 2014, the Respondent / Counter-Claimant contacted Club E
(hereinafter: Club E or the Counter-Respondent II) requesting the latter not to
conduct negotiations with the Claimant / Counter-Respondent I without its
consent.
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 4 of 16
15.
On 16 August 2014, the Counter-Respondent II replied to the Respondent /
Counter-Claimant’s correspondence affirming that it had never been interested in
the Claimant / Counter-Respondent I.
16.
On 10 September 2014, the Respondent / Counter-Claimant replied to the
Claimant / Counter-Respondent I’s claim and lodged a counterclaim against him
for breach of contract and the Counter-Respondent II for inducement to the
breach, requesting:
- EUR 15,000,000 as compensation as per the additional clause 5 of the second
contract;
- Sporting sanctions to be imposed on the Claimant / Counter-Respondent I and
the Counter-Respondent II.
17.
In its submission, the Respondent / Counter-Claimant first of all asserts that the
Claimant / Counter-Respondent I terminated the contract in violation of Swiss law
insofar as he did not put it previously in default.
18.
In continuation, the Respondent / Counter-Claimant asserts that the scouting
agreement cannot be deemed as part of the employment relationship. In support
of its assertions, the Respondent / Counter-Claimant outlines that the parties to
the contract and to the scouting agreement, their dates as well as their objects
are different. In addition, the Respondent / Counter-Claimant underlines that the
scouting agreement does not make any reference to the Claimant / CounterRespondent I and the latter failed to provide a power of attorney authorising him
or his agent to act on behalf of the company before FIFA. In this regard, the
Respondent / Counter-Claimant adds that in case there would be a simulation, the
Claimant / Counter-Respondent I could not claim the lifting of veil in virtue of the
principle “venire contra factum proprium”. Finally, the Respondent / CounterClaimant points out that the scouting agreement contains a jurisdiction clause in
favour of CAS. In view of the above, the Respondent / Counter-Claimant concludes
that FIFA does not have jurisdiction to deal with said scouting agreement.
Subsidiarily, the Respondent / Counter-Claimant sustains that it complied with all
the obligations it had towards the company.
19.
Having stated the above, the Respondent / Counter-Claimant refers to the
agreement concluded on 3 February 2014 by means of which the Claimant /
Counter-Respondent I acknowledged that the Respondent / Counter-Claimant had
no financial obligations towards him, as well as to the loan agreement according
to which Club G undertook to pay the Claimant / Counter-Respondent I’s salary
until 30 June 2014, and concludes that at the time of termination, no amount was
outstanding. In view of the above, the Respondent / Counter-Claimant asserts that
the Claimant / Counter-Respondent I had no just cause to terminate the contract
and should therefore be held liable for the breach.
20.
Moreover, the Respondent / Counter-Claimant emphasises that on 30 August
2012, the parties inserted a compensation clause in their contract. According to
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 5 of 16
the Respondent / Counter-Claimant, such clause constitutes a fundamental
element of the contractual relationship and it should be therefore considered that
the parties entered into a new employment contract. Accordingly, the
Respondent / Counter-Claimant asserts that this day should be taken into
consideration in order to calculate the 2-year protected period and concludes that
the breach occurred within the protected period.
21.
Furthermore, the Respondent / Counter-Claimant stresses that the Claimant /
Counter-Respondent I was induced to breach his contract by the CounterRespondent II. In support of its assertion, the Respondent / Counter-Claimant
underlines that the Counter-Respondent II made him undertake a medical
examination in July 2014. In addition, the Respondent / Counter-Claimant explains
that at the beginning of July 2014, an agent contacted it in order to make two
transfer offers on behalf of the Counter-Respondent II; however, the Respondent /
Counter-Claimant considered them insufficient and rejected them. Finally, the
Respondent / Counter-Claimant highlights that the Claimant / CounterRespondent I declared that he had signed a pre-contract with the CounterRespondent II, the validity of which would depend on the exit of another player.
22.
Regarding the calculation of the compensation, the Respondent / CounterClaimant sustains that should the Dispute Resolution Chamber (DRC) deem the
amount of EUR 15,000,000 disproportionate, it could not reduce it to less than
EUR 4,500,000. In this regard, the Respondent / Counter-Claimant outlines that
this amount corresponds to the transfer fee paid to Club J for the transfer of the
Claimant / Counter-Respondent I and provided a copy of said transfer agreement.
23.
In its response to the counterclaim, the Counter-Respondent II rejects the
Respondent / Counter-Claimant’s assertion alleging that if it had induced the
Claimant / Counter-Respondent I to breach his contract, it would have signed an
employment contract with him. In addition, the Counter-Respondent II outlines
that since no employment contract was signed, the presumption stipulated in art.
17 par. 4 of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) is not applicable. Consequently, it would be up to the Respondent /
Counter-Claimant to carry the burden of proof, which it failed to do.
24.
For his part, the Claimant / Counter-Respondent I, in his response to the
counterclaim, sustains that he put the Respondent / Counter-Claimant in default
before terminating his contract by means of a SMS and an e-mail dated 7 July
2014. In said e-mail, the Claimant / Counter-Respondent I explains that he will not
attend the Respondent / Counter-Claimant’s training sessions until the latter pays
the amounts due to him since 15 April 2014.
25.
In continuation, the Claimant / Counter-Respondent I asserts that since the
Respondent / Counter-Claimant did not comply with the agreement concluded
with the company on 31 January 2014, he is entitled to raise the “exceptio non
adimpleti contractus” in order to delay the execution of his own obligations
arising from the agreement signed on 3 February 2014.
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 6 of 16
26.
Furthermore, the Claimant / Counter-Respondent I maintains that the contract
and the scouting agreement are inseparable. First of all, the Claimant / CounterRespondent I outlines that the reference to the “relaciones laborales y económicas
entre las partes” made in the agreement concluded on 3 February 2014 can only
be explained by the parties’ will to refer both to the contract and the scouting
agreement. In addition, the Claimant / Counter-Respondent I states that the
payments made by the Respondent / Counter-Claimant to the company were
addressed to him. He further highlights that the first scouting agreement was
concluded on 24 August 2011, i.e. one day before the signature of the contract,
and that both agreements have the same expiry date. Then, the Claimant /
Counter-Respondent I stresses that if the amount of his remuneration was only
stipulated in the contract, it would mean that his average monthly salary would
be less than EUR 40,000, which would be incoherent considering that he is an
established player. Moreover, the Claimant / Counter-Respondent I sustains that
the Respondent / Counter-Claimant forced him to resort to the simulation and
therefore, in accordance with the principle “nemo auditur propriam turpitudinem
allegans”, it should not be entitled to request the agreement to be disregarded.
Finally, the Claimant / Counter-Respondent I asserts that the jurisdiction clause in
favour of CAS contained in the scouting agreement has to be disregarded since
said agreement cannot be analysed regardless of the labour relationship of which
it is part. In this regard, the Claimant / Counter-Respondent I also adds that in any
case the decisions rendered by FIFA can be appealed at CAS.
27.
As far as the protected period is concerned, the Claimant / Counter-Respondent I
sustains that it cannot be considered that the parties signed a new employment
contract on 30 August 2012 since they did not modify any essential elements of
their contractual relationship.
28.
Regarding the inducement of the Counter-Respondent II, the Claimant / CounterRespondent I outlines that he went for the first time to the Counter-Respondent
II’s headquarters on 5 August 2014, i.e. after the termination of his contract.
29.
Moreover, the Claimant / Counter-Respondent I argues that the additional clause
5 of the amendment is illegal, alleging that the power of establishing the amount
due as compensation rests with the DRC and not with the parties. In addition, the
Claimant / Counter-Respondent I underlines that the excessive amount of the
clause dissuades any club interested in his services from signing him and
consequently, can be assimilated to a ban from playing, whereas only disciplinary
bodies can impose such a type of sanction. In this regard, the Claimant / CounterRespondent I insists on the Respondent / Counter-Claimant’s behaviour, which, by
constantly threatening these interested clubs to sue them in case they would sign
a contract with him, violated art. 57 of the FIFA Disciplinary Code. In view of the
above, the Claimant / Counter-Respondent I claims to be awarded with an amount
of EUR 100,000 as of the termination of the contract until the date of signature of
a new employment contract.
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 7 of 16
30.
Finally, the Claimant / Counter-Respondent I stresses that the contract was
terminated on 1 August 2014.
31.
In its final comments, the Respondent / Counter-Claimant starts by reiterating its
argument as to the alleged inducement of the Counter-Respondent II, adding in
particular that when the second offer was made, the agent mentioned that in
case the latter was refused, the Claimant / Counter-Respondent I would terminate
the contract. In addition, the Respondent / Counter-Claimant stresses that art. 17
par. 4 of the Regulations may apply in case the alleged inducer encouraged the
player to terminate the contract no matter the fact that a contract was actually
signed subsequently.
32.
In continuation, the Respondent / Counter-Claimant acknowledges having
received the SMS and e-mail sent by the Claimant / Counter-Respondent I, but
outlines that they cannot be considered as default notices since these messages
only refer to “amounts that are due” without specifying them.
33.
Furthermore, the Respondent / Counter-Claimant explains that if the Claimant /
Counter-Respondent I considered the agreements signed on 31 January 2014 and
3 February 2014 null and void, it should have challenged their validity at that
time.
34.
The Respondent / Counter-Claimant further repeats its arguments regarding the
nature of the scouting agreement. In this regard, the Respondent / CounterClaimant emphasises that if there was a simulation, it would only be fiscally
beneficial for the Claimant / Counter-Respondent I. In addition, the Respondent /
Counter-Claimant asserts that the company did not comply with the Tax law of
country D and consequently, no payment could be made to it.
35.
Finally, the Respondent / Counter-Claimant sustains that the amount set in the
additional clause 5 is not excessive considering the transfer fee paid to Club J, i.e.
EUR 4,500,000, the total value of the Claimant / Counter-Respondent I’s contract,
i.e. EUR 4,000,000 gross, the specificity of sport as well as the fact that the breach
occurred during the protected period.
36.
According to the information contained into the Transfer Matching System (TMS),
on 13 January 2015, the Claimant / Counter-Respondent I and Club G concluded
an employment contract, valid as of the date of signature until 31 May 2016 and
according to which the Claimant / Counter-Respondent I is entitled to a monthly
salary of EUR 76,000.
37.
After the closure of the investigation, Club C asserted that Club G had induced the
Claimant / Counter-Respondent I to breach the contract and therefore requested
FIFA to imposed sporting sanctions on it on the basis of art. 17 par. 4 of the
Regulations.
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 8 of 16
38.
Having been invited to provide FIFA with its comments, Club G states that it has
never contacted the Claimant / Counter-Respondent I while he was under contract
with the Respondent / Counter-Claimant. In this respect, Club G stresses that it
signed an employment contract with the Claimant / Counter-Respondent I, at his
initiative, six months after the latter had terminated the contract with the
Respondent / Counter-Claimant due to outstanding remuneration. Finally, Club G
outlines that the Respondent / Counter-Claimant identified the CounterRespondent II as the inducer.
II. Considerations of the Dispute Resolution Chamber
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 5 August 2014. Consequently, the 2014 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at stake (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations (edition 2015), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension
between a player from country B, a club from country D and two clubs from
country F.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations (edition 2015), and considering that the
present claim was lodged in front of FIFA on 5 August 2014, the 2014 edition of
said Regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
4.
In continuation, with regard to the claimed payments in connection to the
scouting agreement, the Chamber also had to verify whether, for formal reasons,
it was competent to deal with this specific component or not. In fact it remains
that this part of the claim could possibly not be considered due to the Chamber
lacking competence to deal with disputes unrelated to employment matters.
5.
As a general rule, if there are separate agreements, the DRC tends to consider the
scouting agreement signed with a company as such and does not have the
competence to deal with it. However, such conclusion might be different if
specific elements of the separate agreement suggest that it was in fact meant to
be part of the actual employment relationship.
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 9 of 16
6.
In this regard, the members of the Chamber duly acknowledged that on 25
August 2011, and amended on 30 August 2012, the Claimant / CounterRespondent I and the Respondent / Counter-Claimant had concluded an
employment contract valid as from 25 August 2011 until 30 June 2016, according
to which the Respondent / Counter-Claimant undertook to pay an annual
remuneration of EUR 445,000 to the Claimant / Counter-Respondent I. Moreover,
the Chamber took note that, the Respondent / Counter-Claimant and a company
named “Company H.”, i.e. the scouting agreement, had signed a “Contrato de
Asesoramiento Deportivo”, by means of which the Respondent / Counter-Claimant
undertook to pay the company an annual amount of EUR 426,250.
7.
First, the Chamber emphasised that the “Contrato de Asesoramiento Deportivo”
has as its object the scouting of the European Football market. In addition, the
DRC noted that the Claimant / Counter-Respondent I is not a signing party to the
scouting agreement. Finally, the members of the Chamber deemed it fit to stress
that the scouting agreement does not make any reference to the employment
contract concluded between the Claimant / Counter-Respondent I and the
Respondent / Counter-Claimant and that the Claimant / Counter-Respondent I
failed to submit any documentary evidence regarding a possible link between the
employment contract and the scouting agreement or between him and the
company.
8.
As a consequence, bearing in mind the above as well as art. 22 lit. b) of the
Regulations which stipulates that the Chamber is competent to hear employmentrelated disputes, the Chamber concluded that it lacked competence to deal with
the Claimant / Counter-Respondent I’s claim related to the scouting agreement.
9.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so it
started by acknowledging the facts as well as the documentation contained in the
file. However, the Chamber emphasised that in the following considerations it will
refer only to facts, arguments and documentary evidence which it considered
pertinent for the assessment of the matter at hand.
10.
The members of the Chamber recalled that on 25 August 2011, and then
amended on 30 August 2012, the parties concluded an employment contract, valid
as from 25 August 2011 until 30 June 2016 and that the Claimant / CounterRespondent I, unilaterally terminated said contract with the Respondent /
Counter-Claimant on 31 July 2014, i.e. before the ordinary expiry of the
employment contract, after having put the latter in default by e-mail on 7 July
2014. In this respect, the Chamber took note that the default notice makes
reference to outstanding amounts but does not further specify said amounts.
11.
In continuation, the members of the DRC took note of the fact that the
Respondent / Counter-Claimant considers that the Claimant / Counter-Respondent
I terminated the employment contract without just cause after having been
induced by the Counter-Respondent II. On the other hand, the Chamber
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 10 of 16
acknowledged that the Claimant / Counter-Respondent I claims to have had a just
cause for the unilateral termination of the employment contract since the
Respondent / Counter-Claimant failed to pay him the amount of EUR 361,500,
corresponding to the instalment of the signing fee due on 31 December 2013 plus
three instalments due in accordance with the scouting agreement, prevented him
from resuming trainings and side-lined him from the professional team.
12.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant / CounterRespondent I and the counterclaim of the Respondent / Counter-Claimant, was to
determine whether the employment contract had been unilaterally terminated
with or without just cause by the Claimant / Counter-Respondent I, and which
party was responsible for the early termination of the contractual relationship in
question. The DRC also underlined that, subsequently, if it were found that the
employment contract was breached by one of the parties without just cause, it
would be necessary to determine the consequences for the party that caused the
unjust breach of the relevant employment contract.
13.
In order to do so, the Chamber, first and foremost, recalled that, as previously
stated, it had no competence to deal with the scouting agreement and that
therefore, the allegedly outstanding amounts due in accordance with said
agreement could not be taken into consideration in order to determine the
possible Claimant / Counter-Respondent I’s just cause to terminate the contract.
14.
In continuation, the DRC outlined that on 3 February 2014 before going on loan
with Club G for the rest of the 2013-14 season, the Claimant / CounterRespondent I and the Respondent / Counter-Claimant concluded an agreement by
means of which the Claimant / Counter-Respondent I (in free translation) “fully
agrees on the cancellation of the financial obligations agreed with the
[Respondent / Counter-Claimant] for the 2013-14 season in the employment
contract, and expressly states that there is no outstanding amount for the 2013-14
season, granting therefore the broadest acquittance, and for any concept, in
favour of the [Respondent / Counter-Claimant] and extinguishing the labour and
economic relationships between the parties for the 2013-14 season”.
15.
The members of the Chamber agreed that the aforementioned agreement signed
by both the Claimant / Counter-Respondent I and the Respondent / CounterClaimant unambiguously stipulates that the Respondent / Counter-Claimant had
no financial obligations in favour of the Claimant / Counter-Respondent I for the
2013-14 season. In addition, bearing in mind art. 12 par. 3 of the Procedural Rules,
in accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, the Chamber deemed that the Claimant / CounterRespondent I had not presented any documentation, which would demonstrate
the nullity or the unenforceability of said agreement.
16.
In light of the foregoing, the Chamber concluded that the Claimant / CounterRespondent I waived all his financial rights against the Respondent / Counter-
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 11 of 16
Claimant for the 2013-2014 season and that, therefore, no amount was
outstanding on the date of termination of the contract, i.e. on 31 July 2014.
17.
For the sake of completeness, the Chamber deemed it important to stress on the
incoherence of the Claimant / Counter-Respondent I, who, on the one hand, sent
an e-mail on 7 July 2014 to the Respondent / Counter-Claimant informing it that
he would not attend the training sessions until he receives his monies and then,
on the other hand, asserts that the Respondent / Counter-Claimant prevented him
from resuming trainings.
18.
On account of the above considerations, the members of the Chamber established
that the Claimant / Counter-Respondent I had no just cause to unilaterally
terminate the employment contract on 31 July 2014 and that, consequently, he is
to be held liable for the early termination of the employment contact without just
cause.
19.
In light of the foregoing, the Chamber decided to accept the Respondent /
Counter-Claimant’s counterclaim that the Claimant / Counter-Respondent I had
breached the contract without just cause and rejected the Claimant / CounterRespondent I’s claim.
20.
Having established that the Claimant / Counter-Respondent I is to be held liable
for the early termination of the employment contract as of 31 July 2014, the
Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the
Claimant / Counter-Respondent I is liable to pay compensation to the Respondent
/ Counter-Claimant. Furthermore, in accordance with the unambiguous content of
article 17 par. 2 of the Regulations, the Chamber established that the Claimant /
Counter-Respondent I’s new club, i.e. Club G, shall be jointly and severally liable
for the payment of compensation. In this respect, the Chamber was eager to point
out that the joint liability of the Claimant / Counter-Respondent I’s new club is
independent from the question as to whether the new club has induced the
contractual breach. This conclusion is in line with the well-established
jurisprudence of the Chamber and has been repeatedly confirmed by the CAS.
21.
Taking into account the above-mentioned considerations, the Chamber focused
its attention on the calculation of the amount of compensation for breach of
contract in the case at stake. In doing so, the members of the Chamber firstly
reiterated that, in accordance with art. 17 par. 1 of the Regulations, the amount
of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria,
including in particular the remuneration and other benefits due to the Claimant /
Counter-Respondent I under the existing contract and/or the new contract(s), the
time remaining on the existing contract up to a maximum of five years as well as
the fees and expenses paid or incurred by the former club (amortised over the
term of the contract) and whether the contractual breach falls within a protected
period. The DRC recalled that the list of objective criteria is not exhaustive and
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 12 of 16
that the broad scope of criteria indicated tends to ensure that a just and fair
amount of compensation is awarded to the prejudiced party.
22.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the relevant employment contract between the Claimant /
Counter-Respondent I and the Respondent / Counter-Claimant contains a
provision by means of which the parties had beforehand agreed upon an amount
of compensation for breach of contract. The members of the Chamber recalled
the content of the additional clause 5 of the contract, included on 30 August
2012, which provides, that (in free translation) “should the [Claimant / CounterRespondent I] terminate the present contract in order to sign with another club or
public limited sports company, without just cause, in accordance with any labour
or federative law in force, the [Claimant / Counter-Respondent I], directly, and his
new club, subsidiarily, will be liable to pay a compensation amounting to EUR
15,000,000 to the club. In this regard, the [Claimant / Counter-Respondent I]
undertakes to inform every club interested in signing a contract with him of the
content of said clause”.
23.
In this respect the members of the Chamber agreed that this clause is to the
benefit of the Respondent / Counter-Claimant only, as it does not grant the same
rights to the Respondent I / Counter-Claimant, and that, therefore, said clause
cannot be taken into consideration in the determination of the amount of
compensation.
24.
In addition, and for the sake of completeness, the Chamber emphasised that
should it have been considered valid, quod non, the clause sets an amount to be
paid in case of breach of contract by the Claimant / Counter-Respondent I which is
clearly disproportionate considering the remaining period of the contract and the
Claimant’s annual salary.
25.
As a consequence, the members of the Chamber determined that the prejudice
suffered by the Respondent / Counter-Claimant in the present matter had to be
assessed in application of the other parameters set out in art. 17 par. 1 of the
Regulations. In this regard, the DRC emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a
case-by-case basis taking into account all specific circumstances of the respective
matter, as well as the Chamber’s specific knowledge of the world of football and
its experience gained throughout the years.
26.
Consequently, in order to estimate the amount of compensation due to the
Respondent / Counter-Claimant in the present case, the Chamber firstly turned its
attention to the remuneration and other benefits due to the Claimant / CounterRespondent I under the existing contract and the new contract(s), which criterion
was considered by the Chamber to be essential. In this context, the members of
the Chamber deemed it important to emphasise that the wording of art. 17 par. 1
of the Regulations allows the DRC to take into consideration both the existing
contract and the new contract(s) in the calculation of the amount of
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 13 of 16
compensation, thus enabling the Chamber to gather indications as to the
economic value attributed to a player by both his former and his new club(s).
27.
In this regard, the DRC established, on the one hand, that the employment
contract between the Claimant / Counter-Respondent I and the Respondent /
Counter-Claimant provided for an average monthly salary of EUR 37,000. On the
other hand, the Chamber noted that the Claimant I / Counter-Respondent is
entitled to a monthly salary of EUR 76,000 according to the contract signed with
Club G, i.e. the Claimant / Counter-Respondent I’s new club. On the basis of the
aforementioned financial contractual elements, and considering the remaining
period of validity of the contract concluded between the Claimant / CounterRespondent I and the Respondent / Counter-Claimant, i.e. 23 months, the
Chamber concluded that the average remuneration between the contracts
concluded by the Claimant / Counter-Respondent I respectively with the
Respondent / Counter-Claimant and Club G over the relevant period, amounted to
EUR 1,300,000.
28.
The members of the Chamber then turned to the further essential criterion
relating to the fees and expenses paid by the Respondent / Counter-Claimant for
the acquisition of the Claimant / Counter-Respondent I’s services insofar as these
have not been amortised over the term of the relevant contract. The Chamber
recalled that a transfer compensation of EUR 4,500,000 had been paid by the
Respondent / Counter-Claimant to the club from country K, Club J for the
Claimant / Counter-Respondent I‘s transfer, documentation of which has been
presented by the Respondent / Counter-Claimant. According to article 17 par.1 of
the Regulations, this amount shall be amortised over the term of the relevant
employment contract. The Claimant / Counter-Respondent I was still bound to the
Respondent / Counter-Claimant for two further years of contract when he
terminated the relevant employment contract, which was signed by the parties
with a view to remain contractually bound for a total period of five seasons. As a
result of the Claimant / Counter-Respondent I’s breach of contract in July 2014,
the Respondent / Counter-Claimant has thus been prevented from amortising the
amount of EUR 1,800,000, i.e. 2/5 of EUR 4,500,000, relating to the transfer
compensation that it paid in order to acquire the Claimant / CounterRespondent’s services, which the club spent with the intention to benefit from the
player’s services for the period of time that would then be established by means
of the contract of employment.
29.
Consequently, on account of the above-mentioned considerations, the Chamber
decided that the Claimant / Counter-Respondent I must pay the amount of EUR
3,100,000 to the Respondent / Counter-Claimant as compensation for breach of
contract. Furthermore, Club G is jointly and severally liable for the payment of the
relevant compensation (cf. point II.20 above).
30.
For the sake of completeness, the Chamber finally analysed whether the breach of
contract by the Respondent I had occurred within the protected period. In this
regard, the members of the Chamber referred to item 7. of the “Definitions”
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 14 of 16
section of the Regulations, which stipulates inter alia that the protected period
comprises “three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the
28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. Having stated the
following, the DRC recalled its longstanding jurisprudence according to which the
protected period starts again when, while renewing the contract, the previous
contract is extended and pointed out that the contract concluded on 30 August
2012, merely added an (invalid) compensation clause without modifying the
duration or the remuneration payable to the Claimant / Counter-Respondent I.
Therefore, the members of the Chamber concurred that 25 August 2011 was the
date to be deemed as starting point of the protected period. In view of the above,
and considering that the Claimant / Counter-Respondent I was 27 when he signed
the contract and that the breach occurred on 31 July 2014, the Chamber held that
the breach occurred after the expiry of the third season and thus, outside the
protected period. Consequently, the DRC concluded that no sporting sanctions
could be imposed on the Claimant / Counter-Respondent I, on the CounterRespondent II and on Club G.
31.
In conclusion, the DRC decided that the counterclaim of the Respondent /
Counter-Claimant is partially accepted and that the Claimant / CounterRespondent I has to pay to the Respondent / Counter-Claimant EUR 3,100,000.
32.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Respondent / CounterClaimant is rejected.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent I, Player A, is rejected.
2.
The counterclaim of the Respondent / Counter-Claimant, Club C, is partially accepted.
3.
The Claimant / Counter-Respondent I is ordered to pay to the Respondent / CounterClaimant, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 3,100,000.
4.
The intervening party, Club G, is jointly and severally liable for the payment of the
aforementioned compensation.
5.
In the event that the amount due to the Respondent / Counter-Claimant in
accordance with the above-mentioned point 3 is not paid within the abovementioned time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision..
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 15 of 16
6.
The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent I and the intervening party, 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.
Any further claim lodged by Respondent / Counter-Claimant is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne, Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country F / Club G, country F
Page 16 of 16