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
Mario Gallavotti (Italy), member
Taku Nomiya (Japan), member
on the claim presented by the club,
Club A, country B,
as Claimant/Counter-Respondent
against the player,
Player C, country D,
as Respondent/Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 20 August 2013, the Club A from country B (hereinafter: club or
Claimant/Counter-Respondent) and the Player C from country D (hereinafter:
player or Respondent/Counter-Claimant) signed an employment contract
(hereinafter: contract) valid as from 21 August 2013 until 30 June 2017, i.e.
four sporting seasons.
2.
Art. 8.2 of the contract stipulates that “(…) the player has the right to
terminate the present Contract by his own initiative (by his own choice),
informing the Club about it in writing not later than one month (provided that
the present Contract is not concluded for the period, that is less than four
months), in this case the Football Player is obliged to pay to the Club on the
date of dismissal the money payment, at a rate, which is equivalent to
20000000 (twenty million) Euro at a rate of the Central Bank of country B
on the day of termination – if this Contract is terminated before 1st January
2015; 13000000 (thirteen million) Euro at a rate of the Central Bank of
country B on the day of termination – if this contract is terminated after 1st
January 2015. The same payment shall be made by the Football player if he
terminates this Contract without just cause (…).”
3.
Art. 8.3 of the contract stipulates that “if the present Contract is terminated by
the Club by reasons, which relate to disciplinary sanctions, or if the Football
player doesn’t start work on a date, stated in clause 1.2 of the present
Contract, or if the Football player breaches this Contract without just cause,
the Football player is obliged to pay to the Club on the date of dismissal the
money payment at a rate, which is equivalent to 20000000 (twenty million)
Euro at a rate of the Central Bank of country B on the day of termination.”
4.
Art. 8. 4 of the contract further provides that the “Parties have agreed that
payments stipulated in clauses 8.2-8.3 above shall be paid independently of the
factual amount of damages caused to the club (…).”
5.
Art. 8.5 of the contract provides that the “responsibility of the Club for the
damage caused to the Football player (including so-called “positive interest”)
is limited by an amount of 3 average monthly income of the Football player.”
6.
In continuation, the contract contains various provisions inter alia stipulating
that the player shall participate to the club’s activities (art. 2.1.1), that the
player shall remain available to enable the club to contact him (art. 2.1.36 and
2.1.37) or that in case of a disease or an injury, the player mandatorily needs to
inform the club’s medical staff accordingly and needs the club’s consent prior
to consulting third party doctors (art. 2.1.21, 2.1.22 and 2.1.23).
7.
Additionally, and on the same day, the parties signed an annex entitled “wage
conditions of the football player” which stipulates that, subject to proper
performance by the player of his contractual obligations (art. 1.1), the latter is
Club A, country B / Player C, country D
inter alia entitled to the following remuneration, payable in the currency of
country B:
As from the beginning of the contract and until 30 June 2015, EUR
510,825 gross per month, i.e. a guaranteed net amount of EUR
444,417.75, of which 50% is the salary and 50% “additional premium”;
As from 1 July 2015, EUR 560,345 gross per month, i.e. a guaranteed net
amount of EUR 487,500.15, of which 50% is the salary and 50%
“additional premium”.
8.
By means of a termination notice dated 22 August 2014 remitted to the player,
the club unilaterally terminated the contract with immediate effect. In said
termination notice, the club referred to the player’s “numerous contractual
breaches in recent months including in particular [the player’s] failure to
return for training in the months of June, July and early August and [his]
failure to provide a sufficient explanation despite repeated requests.”
9.
On 15 September 2014, the club lodged a claim before FIFA for breach of
contract against the player and requested that:
The FIFA Dispute Resolution Chamber (DRC) considers that the club had
just cause to terminate the contract signed with the player;
That based on art. 8.3 of the contract, the player be ordered to pay to
the club the amount of EUR 20,000,000 as compensation plus interest;
Alternatively, that the player be ordered to pay to the club a reasonable
amount of compensation for breach of contract, bearing in mind the
circumstances of the matter.
10.
In support of its claim, the club gave the following account of the facts leading
up to the termination of the employment contract.
11.
In this regard, the club firstly explained that the player was transferred from
the Club E from country B (hereinafter: Club E) to the club in summer 2013
against the payment of a transfer compensation in the amount of EUR
14,000,000.
12.
Thereafter, in September 2013, the player was suspended for having received
two red cards. On 2 October 2013, the player requested to be granted 9 days
off. In this respect, the player asserted being “fed up being a target for
referees” and wished to train at home and spend some time with his family so
as to come back “mentally fresh”.
13.
On the same day, the club rejected the player’s request, explaining that i) it
deemed that the last red card which the player received was justified, ii) the
Club A, country B / Player C, country D
player needed to train with the rest of the team and not alone and iii) since it
was up to the club’s president to possibly take disciplinary sanctions against
the player in connection with his suspension, it was not the right moment to
ask for days off. As a conclusion, the club invited the player to wait until the
team’s vacations to visit his family.
14.
Thereafter, as the player was reportedly absent from two training sessions
having taken place on 9 October 2013, the club asked him on the following
day to present his explanations in this respect within 48 hours.
15.
In his reply dated 11 October 2013, the player inter alia admitted that he
“stayed away another day in country D” and confessed that he was feeling
homesick and needed to recover from the red cards episode. The player
concluded by asserting that he was sorry if he hurt anyone, that he did not
mean any disrespect towards the club and would accept being sanctioned like
any other player for his behaviour.
16.
As a result of the aforementioned, the club reportedly sanctioned the player
with a fine of 5% of his monthly salary. In this regard, the club maintained
that the player did not object to said sanction.
17.
In continuation, the club explained that the player left the club without any
authorisation on 15 May 2014, i.e. after the last match of the season, and thus
did not attend a club’s event scheduled on 16 May 2014.
18.
According to the club, on 17 May and again on 14 June 2014, it informed the
player in writing that training would resume on Monday 16 June 2014.
19.
On 19 May 2014, the club contacted the player again to ask him to justify his
unauthorised absence at the club’s event on 16 May 2014.
20.
On 20 May 2014, the player’s agent replied to the club that the player had
informed the club that he would miss the event of 16 May 2014 and that his
absence to said event was due to a trip to consult a specialist in country D with
regard to an injury. The player’s agent further held that since this medical
consultation consisted in the continuation of a therapeutic treatment that had
already been agreed upon with the club, there player did not breach his
obligations and that the situation seemed to be a misunderstanding.
21.
On 30 May 2014, the club rejected the player’s agent argumentation and held
that according to its understanding of the situation, the player acted again in
breach of contract, in a three folds way as i) he did not attend the club’s event
of 16 May 2014, ii) he left the club without having been authorised and, finally
iii) received a treatment for an (unreported) injury from a doctor not approved
by the club. Also, the club stressed that the player was now to be seen as a
reoffender.
Club A, country B / Player C, country D
22.
Finally, the club invited the player once more to explain his behaviour and that
in the absence of justification, the club would penalise him.
23.
According to the club, the player failed to answer to its letter dated 30 May
2014, failed to resume the club’s training on 16 June 2014 and remained
unreachable whereas he had only been given holidays until 3 June 2014.
24.
On 9 July 2014, the club wrote to the player and stressed that the latter, who
was still absent on that date, had not been authorised to be absent from the
club. The club pointed out that it deemed that the player was again in breach
of contract and asked him to come back to the club immediately and to justify
his absence as soon as possible.
25.
On 3 August 2014, the club played its first league match of the new season
2014/15 without the player.
26.
According to the club, the player came back on 5 August 2014 and had a
meeting with the club only to ask if the club was willing to loan him to Club F
from country G and, in this context, to share his salary with this club. The club
declined that proposal.
27.
As the club asked again the player to explain his absence, the player allegedly
replied that “he had mental problems and had been undergoing medical
treatment in country D”.
28.
The club then reported that the player left country B immediately after said
meeting, again without information or authorisation.
29.
After the meeting of 5 August 2014, the club asked the player on 6 August
2014 in writing to precisely explain inter alia the reasons of his two-months
absence between 4 June 2014 and 5 August 2014, and specified in said request
that “failure to show a good reason of [his] absence and further behaviour
may cause termination of [the] employment contract by the club with just
cause, as [the player has] already breached [his] contractual obligations
before.”
30.
On 7 August 2014, the player’s agent replied to the club that it had been
agreed during the meeting of 5 August 2014 that the player would stay away
from the club and would return after i) having given explanations as to his
absence and ii) having done some medical tests. The player’s agent concluded
his email to the club stating: “you do not need to lie or to arrange the truth”.
31.
An exchange of emails between the club and the player’s agent continued on
a daily basis. From the contents of the emails, it can inter alia be noted that
the player reportedly did not return to the club, therefore failing to meet the
club’s sport director at a meeting scheduled on 8 August 2014, and did not
answer the club’s calls or emails.
Club A, country B / Player C, country D
32.
Subsequently, the club received from the player’s lawyer a letter dated 8
August 2014 reading: “Mr Player C (…) is able to demonstrate that he has been
the victim of racial harassment from the club. So far, however, he always
decided not to give any publicity regarding these facts while this behavior
caused him a “severe depressive syndrome” for which he is medically required
to respect a sick leave from work. Mr Player C is willing to reach an amicable
settlement with the club (…).”
33.
On 9 August 2014, the player apparently returned to country B. On 11 August
2014, the club and the player held a meeting during which the player was
asked to provide details regarding the accusations of racial harassment he
made but allegedly refused to give any details to the club in this respect.
34.
The exchange of emails between the player’s agent and the club continued. In
particular, the club denied in said emails the player’s allegations of racial
harassment and asked the player to submit a doctor’s certificate in relation to
his alleged “severe depressive syndrome”. It also appears from this exchange
of emails that the player returned to the club on or about 9 August 2014 but
could not restart training with the club as he apparently refused to undergo a
medical test which had to be performed after his return in August. It is also to
be noted that the player’s agent denied the club’s request to provide any
information to the club about the player’s mental condition and argued in this
respect that such medical-related information is confidential under country D’s
law.
35.
On 16 August 2014, the club sent a final request for explanations to the player
and requested him to reply by 19 August 2014. In said request, the club listed
various contractual breaches which the player was allegedly responsible for
and asked to be provided with i) an official medical report in relation to his
“severe depressive syndrome”, ii) a description of the medical treatments the
player received while he was in country D and iii) explanations in relation to
the player’s absence between 6 to 8 August 2014 as well as during the months
of June, July and August 2014.
36.
On 18 August 2014, a meeting was organised by the club during which the
player reportedly refused to answer the questions he was asked by a local
psychotherapist. As a result, the doctor concluded that it was “impossible to
conduct full psychiatric examination”.
37.
On 19 August 2014, the player’s lawyer answered to the club that the player’s
depressive state had been duly established by a medical certificate, which the
player keeps at the club’s disposal should the latter wish to contend the
player’s position.
38.
The player’s lawyer also recalled that the player’s depression was caused by
several acts of discrimination and of harassment by the club.
Club A, country B / Player C, country D
39.
Finally, the player’s lawyer wrote that as the player had never been formally
asked to be present at the club on 6 and 7 August 2014, the club’s reproaches
in this respect show its intentions to exert undue pressure on the player.
40.
On the occasion of another meeting held on 20 August 2014 with a Council of
psychiatrists, the player would have accepted to give explanations regarding
his state under the condition that only the conclusions, i.e. is the player fit to
play football or not, would be communicated to the club.
41.
After said meeting, and on the same date, a report was issued by the
aforementioned psychiatrists, which concludes “The Council’s members are not
entitled to make a decision about the possibility of [the player] to play
professional football.”
42.
On 21 August 2014, the club’s board met to discuss the player’s situation and
decided that the latter had committed a serious breach of his contract without
just cause. Accordingly, it concluded that a continuation of the employment
relationship with the player was impossible in such circumstances.
43.
On 22 August 2014, a termination letter was handed to the player by the club’s
president.
44.
Furthermore, on 22 August 2014, an email was sent to the player, by means of
which the club informed the player that following the above-described
termination of the contract, and based on art. 8.3 of the contract, the latter
had to pay to the club within seven days of his dismissal the equivalent
amount of EUR 20,000,000 to the club or to express his position in this respect.
45.
On 25 August 2014, the player’s lawyer acknowledged receipt and took note
of the club’s termination of contract and once again specified that the player’s
absence as from 15 June 2014 until 5 August 2014 was justified by the player’s
medically certified depression, which was caused by the club’s harassment. The
player concluded by asserting that he remained willing to train with the club
as from 5 August 2014 and that the termination of the contract is unjustified.
46.
In summary, the club insisted that it had no other alternative but to terminate
the contract signed with the player as the latter repeatedly breached his
obligations and was given numerous opportunities to explain the causes of his
behaviour. In this respect, the club stressed that it warned the player of the
possibility of an early termination but that the player persisted in not
cooperating with the club.
47.
Finally, the club argued that the player’s remark in connection with
outstanding monies is i) unspecified and ii) corresponding to a period of time
during which he was absent, which entitles the club, based on art. 11.9 of the
contract, not to proceed to the payments of the sums at stake.
Club A, country B / Player C, country D
48.
In case said amounts were due, although unspecified, the club offered to
offset such sums with the amount of compensation to be paid to it by the
player.
49.
In his reply, the player rejected the club’s claim and its version of the facts.
50.
The player also lodged a counterclaim against the club, the details of which
are hereunder described.
51.
After having briefly summed-up his career records and stressed in this regard
that he always acted in a professional way in all the prestigious clubs he played
for, the player submitted the following argumentation.
52.
The player firstly acknowledged that he indeed was sent off twice in four
league matches and stressed that until then, he only had been sent off three
times over ten years of career. Given that he was suspended and that no
league matches would take place during the next weeks as a result of the
international matches break, the player asked the club to let him take some
days off, which the club refused to do.
53.
In addition to the feeling that the club was not supporting him from a sportive
point of view, the player admitted that he also was missing his family who did
not have any visa for country B.
54.
In continuation, the player acknowledged that he missed the trainings which
took place on 9 October 2013 and referred to the exchanges of communication
he had with the club and by means of which he apologized and reassured the
club of his commitment.
55.
In this respect, the player pointed out though that the fine imposed on him
was of EUR 50,000, which is not 5% but rather 10% of his monthly income,
and that in spite of his requests, the club never gave him any written
justification as to the calculation of said fine.
56.
What is more, the player felt that he was not treated like the other players of
the club.
57.
The player then stressed that no such difficulty ever rose again during the
following seven months and that in addition to having been voted three times
the club’s most valuable player, the team was at the top of the league’s
ranking between the months of October 2013 until March 2014.
58.
However, in February, the player started to feel pain in the sacrum area for
which he needed to consult a specialist that the club was unable to provide.
Club A, country B / Player C, country D
59.
As the club reportedly refused to invite the specialist the player wanted to
meet, the player brought him to country B and paid for the expenses. Yet, the
injury did not heal.
60.
The player then visited two other specialists on his own expenses and felt that
the club was not supporting him. Said specialists confirmed in writing the
player’s injury and asserted that they both were in contact with the club’s
medical staff.
61.
As the player could not follow a proper treatment, his fitness and playing time
diminished and the sporting results of the club were also impacted, to such an
extent that the club finally ranked third of the league.
62.
In relation to his absence at the club’s event of 16 May 2014, the player held
that he did not know that his attendance was mandatory and that as the
league was finished, he thought that he could leave and return to country D to
continue treatment for his injury.
63.
Furthermore, the player stressed that contrary to what the club set forth, he
was not the only player absent at such event and submitted in this regard a
statement issued by one of his teammates who also held that they both went
through the same harassment from the club.
64.
The player then held that as he understood that the club was interested in
transferring him to another club, some negotiations started. In this context,
the club reportedly authorised the player to be absent from the club’s
trainings between 16 June 2014 and 1 July 2014 but, as a counterpart, would
have asked him to renounce to the payment of his salaries during that period
of time.
65.
In this respect, the player submitted a copy of a request for a “leave without
pay” starting on 16 June until 1 July 2014 as well as a copy of text messages
conversations showing that someone apparently in contact with the club
offered to balance the player’s absence during such period of time with an
application for a two weeks leave without pay.
66.
Eventually, the player refused to sign said application as he did not want this
document to be used as a waiver from his side to his yearly bonus of EUR
70,000.
67.
According to the player, the club afterwards proposed to him via the
aforementioned intermediary to stay away from the club for a longer period
of time, i.e. until it would have received a transfer offer.
68.
In this respect, the player highlighted that whereas the club always
immediately reacted when the player was absent before, this time it did not
Club A, country B / Player C, country D
send any notification to the player until 9 July 2014, i.e. three weeks after the
club’s training had resumed.
69.
The player further underlined that during the month of July 2014, he was
treated for anxiety and depression and transmitted in this respect a statement
and a medical certificate by means of which two doctors certified the
aforementioned and in particular that the player was unable to play football.
70.
The player continued by explaining that on 1 August 2014, the club received a
season-loan offer from Club F from country G, the details of which were
discussed during a meeting on 5 August 2014. However, as the financial terms
of the offer would have led to reduce his remuneration by 50%, the player
asserted that he declined Club F’s offer.
71.
Following this meeting, the player’s agent sent an email to the club, reportedly
attaching the above-described medical certificate and underlining that the
player would come back to the club in two days. In this respect, the player held
that whereas the club was in possession of the medical certificate confirming
his incapacity to play football, the club sent him on 6 August 2014 a request
for explanations accompanied by the mention that the club was contemplating
the option to put an end to the contract signed with the player.
72.
In this respect, the player held that the club thereby revealed its real
intentions, i.e. to part ways with him and not to have to pay his salaries any
more. The player then replied to the club via his lawyer who sent the
aforementioned correspondence dated 8 August 2014 (cf. point I.32 above).
73.
In continuation, the player explained that the club repeatedly made him go
through medical tests during training hours and eventually meet a psychiatrist
with whom he was expected to describe the substance of the club’s
harassment in front of representatives of the club, which the player refused to
do. The player also asserted that said consultation was to be filmed and
recorded. As the player did not cooperate, the doctor issued the abovementioned report.
74.
Following the club’s subsequent request for explanations dated 16 August
2014, the player’s agent replied on 19 August 2014 that the club was already in
possession of the player’s medical certificate, issued by an independent doctor
from country D and that he therefore did not have to further specify his
psychological condition.
75.
According to the player, several other attempts of meetings took place, but he
refused to cooperate due to the fact that the conversations were being
recorded or that a club representative insisted on being present at the
meeting. A meeting eventually took place on 20 August 2014 in the conditions
described in the point I.40 above. According to the player, the conclusion of
said Council of doctors that it is not entitled to make a decision about the
Club A, country B / Player C, country D
player’s possibility to play football does not contradict the contents of the
player’s medical certificate.
76.
As a conclusion, the player insisted that the club did not have any just cause to
terminate the contract as the regulatory conditions for the termination of
contract with just cause were not met. In particular, the player stressed that his
absence between the 15 June and 1 July 2014 was agreed upon with the club
in view of the player’s envisaged transfer, whereas his absence between 1 July
2014 until 5 August 2014 is justified by his medical convalescence.
77.
What is more, the player stressed that he was again at the club’s disposal as
from 5 August 2014 and accepted thereafter to go through the medical tests
organised by the club.
78.
In the player’s opinion, the club neither opted for more lenient sanctions nor
did it properly put the player in default of his obligations.
79.
Finally, the player stressed that his absence of 9 October 2013 had already
been sanctioned and cannot be a basis for a second sanction.
80.
Should the player be held liable for having breached the contract without just
cause, he asserted that the amount claimed by the club is disproportionate and
therefore should be reduced to reasonable proportions. The player also
stressed that the Dispute Resolution Chamber is not bound by a lump amount
stipulated in the relevant contract and has the power to make its own
appreciation of the circumstances of the case. In this respect, the player held
that the club did not suffer any prejudice and was even willing to transfer him
so that it would not have to pay his salaries any longer.
81.
Finally, the player requested made the following requests:
An outstanding bonus in the amount of EUR 70,000, corresponding to
the ranking bonus related to the sporting season 2013/2014;
Outstanding salaries in the amount of EUR 1,214,740 and corresponding
to the player’s monthly salaries for the period between 1 June 2014 and
22 August 2014;
EUR 16,707,098 net, corresponding to the residual financial value of the
contract signed with the club (EUR 5,007,098 corresponding to the
sporting season 2014/2015, calculated as from 22 August 2014, i.e. the
termination date, and EUR 5,850,000 for each of the two remaining
sporting seasons, i.e. 2015/2016 and 2016/2017);
An amount of EUR 2,000,000 in connection with the player’s moral
prejudice;
Club A, country B / Player C, country D
Disciplinary proceedings to be opened against the club.
82.
In its reply to the player’s counterclaim, the club maintained its version of the
facts and in particular rejected the player’s accusations of harassment, bad
faith and discrimination. It insisted in this respect that the player’s rights were
respected and that it is him who is acting out of bad faith. As a general
statement, the club asserted that unless explicitly accepted, all the player’s
arguments are challenged.
83.
As a starting point, the club challenged the player’s representation in relation
to the exchanges which the player’s agent had with an individual presented as
acting on behalf of the club and having particularly taken place on or about 15
June 2014 in relation to the extension of the player’s absence from the club
until beginning of July. In this respect, it claimed that said individual is not a
member of the club but an intermediary with which the player’s agent
communicated, as said individual had previously organised the player’s transfer
from Club E to the club. According to the club, the latter individual was thus
not entitled to negotiate or to allow the player’s absence as from mid-June
and 1 July 2014.
84.
The club further denied having ever been interested in transferring the player
and claimed that its priority was to pursue the employment relationship with
him. In this respect, the club held that it is the player and the aforementioned
individual who convinced Club F to send an offer to the club so that the player
would be able to leave the club and have his salary shared between the two
clubs.
85.
In continuation, the club insisted that it did not receive the player’s medical
certificate until it was attached to the player’s counterclaim.
86.
In this respect, the club pointed out that the club’s representatives’ email
addresses are incorrectly written in the player’s agent email and that it never
received any such email.
87.
Additionally, the club stressed that the player’s medical certificate is not dated
and does not specify any date(s) as to when the player visited the doctor who
issued said certificate.
88.
What is more, the club insisted that the certificate does not mention any
treatment to be followed and was not issued by a doctor specialised in
psychiatry.
89.
Finally, the club alleged that the urine analysis that was performed on the
player did not show any residual of medication that yet are commonly used for
the treatment of mental disorders.
Club A, country B / Player C, country D
90.
Likewise, the club challenged the second doctor’s statement, pointing out its
lack of precision as to the date on which the player met said second doctor or
as to the precise substance of the harassment the player reported having gone
through.
91.
On the other hand, the club admitted that the player was indeed suffering
from a back injury but stressed that it authorised the player to consult
specialists in this respect in March and April 2014. As to the second specialist
the player referred to, the club held that it never authorised the player to
consult him nor did its medical staff ever have contacts with this doctor.
92.
To conclude in this respect, the club set forth that the treatment which the
player underwent in March/April 2014 produced satisfactory effects and that
the player never complained in this respect after he returned from therapy.
According to the club’s doctor’s statement, the player even played the entire
duration of the last match of the season on 15 May 2014 and did not report
any problem to the club’s staff.
93.
More generally, the club contended all the player’s arguments, for instance be
it in relation to the allegation that the club performed less well in his absence
or that the club harassed him, and pointed out that the player never explained
in what ways he would have been harassed.
94.
In the club’s opinion, there is no doubt that it complied with art. 14 in
combination with art. 17 of the FIFA Regulations on the Status and Transfer of
Players. In particular, it repeatedly wrote to the player in order to collect his
explanations in relation to his repeated misbehaviours and to respect his right
of defence.
95.
As to the financial aspects of the player’s counterclaim, the club held the
amounts claimed by the player are legally unsustainable, referring to art. 8.5
of the contract.
96.
In particular, the club stressed that according to the contract, the player’s
monthly remuneration was guaranteed provided the player would not miss
training and the payment of the bonus part depending on the player’s
fulfilment of his contractual obligations. In this respect, the club held that the
player failed to give reasons why the contractual provisions should not be
applied.
97.
In continuation, the club also stressed the lack of evidence on the player’s part
as to his attempts to mitigate his losses.
98.
Furthermore, and in relation to outstanding remuneration, the club firstly
rejected the players’ claim related to the ranking bonus of EUR 70,000 and
held in this respect that there is no contractual basis for this request.
Club A, country B / Player C, country D
99.
As to the amount of EUR 1,214,740, the club recalled that on 5 August 2014,
the player would have confirmed that he did not wish to be paid any salary for
the period of time during which he was absent from the club.
100. Finally, the club rejected the player’s “arbitrary” claim in the amount of EUR
2,000,000 related to moral damages.
101. Whereas the investigation phase related to the matter at hand had been
concluded, the player insisted on being given the possibility to present his
position on the comments submitted by the club in relation to his
counterclaim. In this respect, the player stressed that all of the club’s points
which are not herein dealt with shall be seen as challenged.
102. In his submission, the player firstly insisted that between 16 June 2014 and the
beginning of July 2014, his absence from the club had been agreed upon.
103. In this respect, the player reiterated that the club was acting via an
agent/intermediary who is well known to the club, since some of the club’s
players were recruited through said agent.
104. The player thus held that the club’s arguments that said intermediary is not an
agent and is not connected to the club are bad faith and that it is clear that as
from 16 June and until beginning of July 2014, the player was absent with the
consent of the club as his transfer was being organised via said intermediary.
105. In this respect, the player stressed that the failure to loan him to Club F is only
due to the absence of an agreement between the club and the player in
relation to the payment of his salary. If the club did not want to transfer the
player at all, as the club states, no meeting would have taken place on 5
August 2014.
106. In continuation, the player addressed the question of his subsequent absence
based on medical reasons and firstly held in this respect that if the club
representatives’ email addresses were incorrectly spelt, the intermediary’s one
was correct and that he could have forwarded it to the club.
107. As to the medical certificate itself, the player stressed that said document was
issued by a general doctor fully able to diagnose anxiety symptoms and that its
date of issuance is the same date as when said doctor deemed that the player
was unable to play football, i.e 4 July 2014.
108. As to the second medical certificate, the player remarked that said document
does specify that the doctor who issued it met the player several times during
the month of July 2014 and that if no residue of medicine wa found in his
urine, it is because he did not take any, as said medication would have been
incompatible with his physical activity.
Club A, country B / Player C, country D
109. In addition, the player explained that as the club knew it did not have just
cause for the termination, and after a change of the club’s head coach, the
club approached the player to sign a new employment contract.
110. The player submitted in this respect screenshots of a conversation between the
intermediary and his agent dated 5 October 2014 in which both are discussing
the terms of a contract and in which the intermediary gave the player’s agent
the club’s new head coach’s phone number so that the player can
communicate directly with him.
111. Finally, the player maintained his financial claims, and in particular stressed
that the club stopped paying him his salary in full as from May 2014 whereas
the contract was only terminated in August 2014.
112. The player held that for the month of June 2014, he only received about 10%
of his salary whereas his alleged unjustified absence only started as from 16
June 2014. Likewise, the player stressed that no salary was paid to him at all
for the month of July 2014 whereas he was absent for medical reasons. Also,
the player pointed out that he did not get any payment for August 2014
whereas he came back to the club on 5 August 2014.
113. In its final comments, the club firstly maintained that whereas the player
confessed in his last submission that he was indeed willing to leave the club,
the club, for its part, neither authorised him to be absent between 16 June and
the beginning of July 2014, nor was it willing to transfer him to another club.
114. In connection with the player’s absence, the club asserted that if it is true that
the intermediary involved in the talks with the player is an agent who, in
particular, had been involved in the player’s transfer from Club E, it is untrue
that the club would have had appointed him to represent it in any talks with
the player. The club therefore does not consider that it is bound by said
intermediary’s stance.
115. On the contrary, according to the club, it is the player who solicited said
intermediary’s intervention on the basis that he acted as an intermediary on
the occasion of the player’s transfer from Club E to the club. Also, the club
stressed that the media platform on which the intermediary spoke is not the
club’s official website or Twitter account but a third party media platform.
116. In continuation, the club held that the player’s position that it had been
agreed with the club that he would stay away during the transfer talks is the
player’s own interpretation of the emails exchanged and that there is no
evidence that the club ever authorised the player to be absent. On the other
hand, the club insisted that its interpreter informed the player twice of the
date on which he had to return to the club, i.e. 16 June 2014.
Club A, country B / Player C, country D
117. As to the question of the player’s transfer, the club pointed out the lack of
evidence on the player’s side and stressed that the aim of the meeting of 5
August 2014 was not only to discuss Club F’s offer but also the player’s
unjustified absence from the club.
118. In relation to the player’s first medical certificate allegedly sent by email to the
club, the club firstly reiterated that the email containing said certificate was
sent to wrong email addresses or to somebody who is not a club-authorised
representative.
119. Likewise, the club maintained that the first certificate at hand does not stand
scrutiny. In this respect, the club stated that the certificate, issued by an
unspecialized doctor, does not only refer to anxiety or depressive syndrome
any doctor could identify, but to a “severe” state of depression.
120. Also, the club deemed that it would have been pointless for the player to
obtain a certificate on 4 July 2014 if it was not to transmit it to his employer or
not to transmit to said employer after having been requested to do so.
121. As to the second medical certificate, the club pointed out that it is not issued
by a qualified doctor and that it does not state any details in relation to the
meetings said psychologist had with the player.
122. What is more, the club deemed that should the player have indeed suffered
from a severe anxiety syndrome and depressive state, he would not have been
able to recover that fast on the sole basis of alleged conversations with a
psychologist and without any medication.
123. In connection with a previous (unauthorised) medical treatment the player
received during the season, the club underlined that whereas it authorised
such process between 27 March and 2 April 2014, the doctor whom the player
consulted indicated having treated him between February and May 2014. It is
therefore clear that the player consulted external doctors without the club’s
authorisation.
124. In relation to the club’s alleged attempt to sign a new contract with the player,
the club denied said representation and held that it is the player who, via the
aforementioned intermediary, took the initiative to contact the club to settle
the matter opposing the parties since, as assumed by the club, he was not
finding any new club and was afraid of the consequences of the club’s
termination of the contract.
125. As to the player’s financial claim, the club denied that any (collective) bonus of
EUR 70,000 was paid to all members of the team and stressed that anyhow, the
player failed to prove this allegation, which shall therefore be rejected.
Club A, country B / Player C, country D
126. In relation to unpaid salaries in the months having preceded the termination
of the contract, the club pointed out that it is telling that the player never
submitted any claim in this regard and that it is the player himself who asked
not to be paid for the period of time during which he was absent from the
club. Also, the club recalled that this particular point, which it had already
raised in its previous submission, was not commented on by the player.
127. Finally, the club challenged the player’s evidence based on the former head
coach’s testimony of February 2015 and held that said testimony was made six
months after the facts and that said coach’s contract ended in “acrimonious
circumstances”, which degenerated into a dispute with the club. On the other
hand, the club recalled that, in August 2014, the same person was testifying in
the media that he would not be able to tell the press what was going on with
the player since the latter had been absent from the club for the last three
months. “For the avoidance of doubt”, the club concluded by denying the
player’s allegation that he had had authorisation to be absent during the
month of June 2014.
128. The club concluded its statement by reiterating that it had grounds and no
other options but to terminate the contract. It also maintained its financial
claims against the player and added that the player’s counterclaim shall be
rejected.
129. The player remained unemployed as from the termination of the contract by
the club until the date of passing the present decision.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 15 September 2014. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2014;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (edition 2015) the DRC is
competent to deal with the matter at stake, which concerns an employment–
related dispute with an international dimension between a Club from country B
and a player from country D.
Club A, country B / Player C, country D
3.
Furthermore, the DRC 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 (edition 2015) and considering that the present claim was lodged in
front of FIFA on 15 September 2014, the 2014 edition of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. The DRC started
by acknowledging the above-mentioned facts of the case as well as the
documentation contained in the file. However, the Chamber emphasized that in
the following considerations it will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the
matter at hand.
5.
First of all, the Chamber acknowledged that, on 20 August 2013, the club and the
player concluded an employment contract valid as from 21 August 2013 until 30
June 2017, i.e. four sporting seasons.
6.
The DRC further observed that on 22 August 2014 the club terminated the
aforementioned contract in writing on the basis of the player’s alleged numerous
breaches of contract and lack of presentation of satisfactory explanations in
relation thereto.
7.
The DRC then noted that in its subsequent claim received on 15 September 2014,
the club requested that the player be ordered to pay it EUR 20,000,000 plus
interest or, alternatively, any other amount the present Chamber deems
reasonable as compensation for the player’s alleged breach of his contractual
obligations.
8.
On the other hand, the DRC members duly noted that the player, in his answer to
the club’s claim, inter alia held that the club’s termination of contract lacks just
cause. The player argued that as it is the club that is in breach of contract, it shall
therefore be liable to compensate him for the unjustified termination of the
contractual relationship.
9.
In this respect, the player inter alia claimed outstanding remuneration and
compensation as specified in point I.81 above.
10.
Considering the above-described antagonist positions of the parties, the Chamber
highlighted that the underlying issue in this dispute was to determine as to
whether the employment contract had been terminated by the Club with or
without just cause. The Chamber also underlined that, subsequently, if it was
Club A, country B / Player C, country D
found that the employment contract was terminated by the Claimant with just
cause, it would be necessary to determine the consequences thereof.
11.
Having stated the above, the Chamber turned its attention to the reasons
invoked by the Claimant/Counter-Respondent for proceeding to the early
termination of the employment contract concluded between the parties.
12.
In this context, the DRC first referred to the reported conflict that arose between
the parties during the execution of the contractual relationship, i.e. the player’s
absence during two trainings which both took place on 9 October 2013.
13.
In this respect, and after having reviewed the parties’ submissions in this regard,
the Chamber was eager to note that the player admitted to having acted in
breach of contract on said occurrence as he recognised having deliberately
ignored the club’s position and did not join the latter in time to participate to the
two training sessions scheduled on said date.
14.
In this regard, the Chamber also duly noted that the Respondent/CounterClaimant had written back to the club to explain himself and apologised in said
correspondence for having disregarded the club’s refusal to grant him additional
days of holidays.
15.
Said breach of contract having led the club to impose a fine upon the player in
the amount of EUR 50,000, and the player having not submitted any specific
request in connection with the imposition of said fine, the Chamber concluded
that this breach of contract by the player had to be considered as having been
dealt with directly by the parties at the time the aforementioned events
occurred.
16.
In continuation, the Chamber moved on to analyse the question of the player’s
non-appearance to a club’s team meeting scheduled on 16 May 2014 and which
amounted, in the club’s opinion, to a second breach of contract by the player.
17.
More precisely, the Chamber noted that according to the club, the player’s
absence to said event actually amounted to a three-fold breach of contract since
the player (i) failed to attend the club’s event, (ii) left the club without
authorisation and did so (iii) in order to receive medical treatment from a doctor
reportedly not approved by the club.
18.
In this respect, the Chamber reverted to the player’s position and noted that in
his explanations, the player had not disputed the fact that he did not attend the
club’s event; he contended however that the club had not made him aware that
his presence at such event was mandatory.
Club A, country B / Player C, country D
19.
In continuation, the Chamber noted that in reply to the club’s request for
explanations, the player’s agent wrote on 20 May 2014 that the player had
informed the club’s staff that he would not be able to attend the team-meeting
scheduled on 16 May 2014 for medical reasons.
20.
Bearing the aforementioned considerations in mind, the Chamber wished to
recall that according to art. 12 par. 3 of the Procedural Rules, any party claiming a
right on the basis of an alleged fact shall carry the burden of proof.
21.
In this context, the Chamber primarily found that the player had not submitted
any evidence showing that the club would have agreed to his absence to the
event at stake.
22.
In continuation, the Chamber analysed the two written submissions that were
provided by the doctors having reportedly worked with the player, i.e. Dr H and
Dr I, and duly noted that both of them inter alia indicated in their respective
statements having had consultations with the player, including during the month
of May; said statements however do not set out any specific date of such
consultations.
23.
In this context, the Chamber was satisfied that the player was well aware of the
event of 16 May 2014 taking place. Equally, the player has not submitted any
evidence showing that his departure from the club before said event was justified
by any specific appointment with any doctor, nor that the club ever agreed to the
player’s absence to the event of 16 May 2014.
24.
Finally, the DRC reverted to article 2.1.1 of the contract, according to which the
player is subject to a general obligation to take part in a specific list of activities
and inter alia reads that the player is obliged “to take part in all events”.
25.
In view of the above, the Chamber decided that the player’s (undisputed)
absence to the club’s team event on 16 May 2014 was deprived of any
authorisation given by the club and therefore constituted a breach by the player
of his contractual obligations towards the club.
26.
Having so found, the Chamber continued its analysis of the matter at hand and
turned its attention to the question of the player’s absence from the club as from
4 June 2014 until 4 August 2014.
27.
In this respect, the Chamber firstly wished to recall that on the basis of the
documents on file, it could be verified that the player had been granted holidays
until 3 June 2014 and that, subsequently, training was to resume on 16 June
2014. According to the club however, the player did not return to the club until 5
August 2014.
Club A, country B / Player C, country D
28.
The Chamber also noted that in this context, on 9 July 2014, the club sent an
email to the player requesting that the latter comes back to the club and to
explain the reason(s) of his absence.
29.
What is more, the Chamber noted that according to the club, the player missed
the team’s first league match of the season 2014/2015 and which took place on 3
August 2014.
30.
The DRC then took due note that according to the player, his absence from the
club until the beginning of the month of July 2014 is justified by the fact that the
club had decided to transfer him to another club. The club would have therefore
asked the player to stay away and not to take part in the club’s training sessions
until the latter would be able to present a transfer offer to the player.
31.
In this respect, the DRC also took due note of the player’s statements in
accordance with which negotiations therefore started via an intermediary, Mr J,
and that the latter had authorised the player to be absent as from 16 June and 1
July 2014 on the basis of a leave without pay. In this respect, the Chamber also
noted that eventually, the player refused to sign a document confirming the said
leave without pay as he became apprehensive that his signing such document
could be interpreted by the club as a waiver of a bonus which he deemed being
entitled to.
32.
On the other hand, the Chamber noted that for its part, the club had repeatedly
denied having ever been interested in transferring the player to any club or that
it had been represented by said intermediary who, therefore, would not have
been in a position to negotiate or make decisions on the club’s behalf.
33.
In this context, the DRC once more referred to art. 12 par. 3 of the Procedural
Rules, and considered, from the content of the documentation on file, that the
aforementioned intermediary appears to have intervened in the player’s transfer
from Club E to the club, and that he had been in contact with the player and his
agent during the time of the player’s absence in summer 2014.
34.
The DRC wished to stress, however, that at no point did the player submit any
document proving that said intermediary was authorised to represent the club
after his transfer from Club E.
35.
For the sake of completeness, the Chamber wished to specify that it did not agree
with the player’s interpretation of the messages exchanged between his agent
and Mr J, as said messages do not indicate in any way the existence of a clear and
firm agreement on the club’s side to authorise the player to be absent from the
Club A, country B / Player C, country D
club between 16 June 2014 and 1 July 2014 but rather consists of hypothesis and
reported speeches.
36.
For the above-mentioned reason, the DRC decided that the player’s allegations
that the club, via said intermediary, authorised the player to be absent from the
club as of 16 June 2014 and during the developments of alleged transfer talks
was absolutely unproven and therefore had to be rejected.
37.
In this respect, the Chamber further wished to underline that it did not share the
player’s view that the club was interested in transferring him to another club
during the summer 2014 since, notwithstanding the club’s repeated denials in
this regard, no evidence on file permitted the Chamber to corroborate this
hypothesis. In particular, the Chamber deemed it worth specifying that ad
minima, it cannot be interpreted from the contents of the offer which the club
received from Club F that negotiations had been ongoing between said clubs.
38.
Consequently, the Chamber found no reason to believe that the player’s absence
during the summer 2014 could be justified by the fact that the club had the
intention to loan him, either to Club F or to any other club.
39.
What is more, and for the sake of completeness, the Chamber pointed out that
the player had indicated having refused to sign a document consenting to his
leave without pay.
40.
Thus, the player’s absence as from 16 June 2014 can only qualify as unauthorised
by the club and therefore constitutes a breach of contract on the player’s side.
41.
In light of the above, the Chamber reached the conclusion that by having been
absent without any authorisation from the club as of 4 June 2014, date of the
end of the player’s holidays, until 1 July 2014, date until which the player asserts
having been allowed by the club not to return to the club’s premises, the player
acted for the third time in breach of his contractual obligations towards the club.
42.
The Chamber continued its analysis of the matter at hand and, at this stage,
contemplated the period of the player’s absence from the club as from 1 July
2014 until 5 August 2014, date on which the player finally returned to the club
and on which a meeting was held between the parties.
43.
In this respect, the Chamber noted that in his statements, the player explained
that his absence during the month of July 2014 was caused by a severe anxiety
syndrome and that he repeatedly met psychologists in this regard during that
month.
Club A, country B / Player C, country D
44.
In continuation, the Chamber further noted that according to the player, the
cause of his medical condition was rooted in the club’s behaviour towards him, as
he inter alia felt pressured, disrespected and racially discriminated against.
45.
In this regard, the DRC was mindful to underline that in order to justify the
reality of his medical state and his correlated incapacity to play football, the
player explained that his agent sent a medical certificate via email (hereinafter:
the medical certificate) to the club on 5 August 2014, i.e. shortly after the
aforementioned meeting with the club.
46.
Additionally, the Chamber also noticed that following the club’s request for
explanations on 6 August 2015, which inter alia reads that “(…) failure to show a
good reason of your absence and further behavior may cause termination of your
employment contract by the Club with just cause, as you have already breached
your contractual obligations several times before”, the player replied to the club
via his legal representative by inter alia asserting having been victim of racial
harassment by the club, which caused him to suffer from a severe depression
syndrome that prevented him from coming back to the club.
47.
In continuation, the DRC recalled that the club organised several meetings
between 11 August and 20 August 2014 during which the player was expected to
provide more explanations as to the causes of his anxiety and with the purpose of
assessing as to whether the player was able to resume work.
48.
Whilst analysing the above-described elements, the DRC firstly found that
although the player repeatedly brought forward having been the victim of acts
of harassment of a racist nature by the club, such allegations were not
corroborated by any elements of any kind, be it, for instance, documented
evidence or reported situations and/or declarations.
49.
The Chamber thus deemed that the player’s accusations that he suffered from
racial harassment from the club had to be set aside as unproven.
50.
In continuation, the DRC turned its attention to the medical certificate which the
player’s agent reportedly sent to the club on 5 August 2014.
51.
In this respect, and after having reviewed the evidence at hand, the DRC found
that it could not ascertain with certainty that said email and been sent to the
correct email address. The Chamber held that the player could not discharge his
burden of proof that the club had indeed received the email containing the
relevant medical certificate at the time his agent allegedly sent such email to the
club.
Club A, country B / Player C, country D
52.
Notwithstanding the above, the DRC further took note that surprisingly, and
although the club repeatedly asserted that it had not received any medical
certificate in relation to the player’s absence, the player did not attempt to send
such certificate again to the club, or at least there are no records on file of him
having done so. In particular, the Chamber noted that on 16 August 2014, the
club sent to the player a “Final request about granting of a written explanation”
which inter alia reads that the club requested to immediately be provided with
an official medical report and that the mere allegations of the player’s lawyer, as
the latter had not attached any copy of medical certificate to his answer dated 8
August 2014, were not satisfactory justifications.
53.
More generally, whilst analysing the above-described situation, the Chamber was
first of all incredulous as to why the player appeared to have waited until 5
August 2014 to inform the club of his anxiety syndrome for the first time.
54.
In this respect, the DRC considered that the player’s behaviour was, from a
general standpoint, lacking in professionalism and transparency as would be
expected during a normal professional course of action, and that he should have
forwarded his medical certificate to the club as soon as possible, i.e. already
during the month of July 2014.
55.
What is more, the DRC held that by having waited for about one month to orally
inform the club of his state of health, and by not (re)submitting any
documentation in relation thereto in spite of the contractual provisions and the
club’s requests, the player had obviously breached the provisions of art. 2.1.22
and 2.1.23 of the employment contract signed by the parties and in accordance
with which, inter alia, the player shall immediately inform the club’s medical staff
about health-related issues.
56.
In particular, and after careful analysis of the medical certificate submitted by the
player and relating to his depressive state, the members of the Chamber first
noticed that the certificate at hand was neither dated, nor signed by a doctor
specialised in mental illness.
57.
Also, the DRC noticed that said certificate was extremely short and general as to
its contents, its author having limited himself to state the nature of the player’s
disease, i.e. a severe anxiety/depressive syndrome, and that consequently, the
player was incapable to play football as from 4 July 2014.
58.
Hence, it appears that said doctor did not provide any explanations as to how
and when the player and himself had met before rendering such a diagnosis and
does not contain any mention of past and/or future consultations/treatment(s),
whereas one could reasonably expect such important information to be specified.
Club A, country B / Player C, country D
59.
Having stated the above, the members of the Chamber reasoned that,
considering the circumstances of the matter at hand, i.e. the player’s absence for
more than two months as from 3 June until 5 August 2014, and the implications
of such a lengthy absence from a professional point of view, the medical
certificate submitted by the player in support of his argumentation that he was
suffering from a severe state of depression and thus could not perform his
services towards the club was inconclusive and insufficient.
60.
In light of the foregoing considerations, the Chamber unanimously agreed that
the player had acted in breach of contract stricto sensu, and more generally
lacked professionalism and transparency in the process of communicating with
the club in connection with his medical state.
61.
Bearing in mind the aforementioned, the Chamber agreed with the club’s
opinion that, following the meeting of 5 August 2014 and in the subsequent
days, the link of trust between the parties was exhausted and that consistent
continuation of the contractual relationship with the player under these
circumstances appeared unrealistic.
62.
In this respect, the Chamber deemed that the player’s last absence from the club
on 6 and 7 August 2014, for which the player simply replied that the club did not
formally ask him to be available during that time, is a supplementary illustration
of the aforementioned reasoning.
63.
What is more, the DRC could verify that as of mid-May 2014 until the termination
of the contract, i.e. on 22 August 2014, the club communicated with the player
on repeated occasions, explaining in detail its analysis of the situation while
offering the player to explain his position. The Chamber therefore deemed that
the club had followed a constant and transparent approach before it finally took
the decision to put an end to the employment contract signed with the player.
64.
As a result of the above-mentioned considerations, the Chamber decided that the
club had just cause to prematurely terminate the relevant employment contract
on 22 August 2014 on the basis of the repeated breaches by the player of his
contractual obligations during the months between May and August 2014.
65.
In continuation and prior to establishing the consequences of the unilateral
termination of the contract with just cause by the club in accordance with art. 17
par. 1 of the Regulations, the Chamber held that it had to address the issue raised
by the player in connection with alleged unpaid remuneration at the moment
the contract was terminated by the club.
66.
In this regard, the members of the Chamber recalled that the player’s claim
relating to outstanding remuneration is composed of an amount of EUR
Club A, country B / Player C, country D
1,214,740 related to the player’s monthly salaries for the months of June, July
and August 2014 as well as of an amount of EUR 70,000 related to a “ranking
bonus”.
67.
In this respect, the Chamber firstly held that in the absence of explanations and
of a clear contractual basis in connection with the player’s claim for the payment
of said “ranking bonus” in the amount of EUR 70,000, the Chamber decided to
reject the player’s claim relating to said bonus.
68.
In continuation, the Chamber held that considering that the player was absent
from the club without any authorisation during the entire months of June and
July 2014, he was not entitled to receive the monthly remuneration
corresponding to said two months.
69.
Finally, and as to the player’s claim relating to his monthly remuneration payable
in connection with the month of August 2014, the Chamber was eager to note
that first, the player had been absent from the club without any authorisation
during the first four days of August 2014, i.e. until 5 August 2014, and was then
absent again without any authorisation on 6 and 7 August 2014, representing 6
days of unauthorised absence.
70.
What is more, the Chamber noted that in the contractual documents it received
from the parties, the annex related to the player’s remuneration did not contain
any specific payment date for the player’s monthly salaries. On account of the
above, the Chamber had to assume that according to the general practice, the
player’s salaries were to be paid at the end of the month.
71.
The contract having been unilaterally terminated by the club with just cause on
22 August 2014, the Chamber therefore found that at the date of termination,
the player’s monthly salary of August 2014 was not yet outstanding. The player’s
claim in this respect was therefore rejected.
72.
Having established the above, the Chamber turned its attention to the question
of the consequences of the unilateral termination of the contract by the club
with just cause on 22 August 2014.
73.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the club is entitled to receive compensation from the player for the
termination of the contract with just cause based on the player’s repeated
breaches of contract.
74.
The members of the Chamber then firstly recapitulated that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated,
in particular and unless otherwise provided for in the contract on the basis of the
Club A, country B / Player C, country D
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 player under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, the fees and expenses paid or incurred by the former club
and depending on whether the contractual breach falls within the protected
period.
75.
In application of the relevant provision, the Chamber held that it first of all had
to clarify whether the pertinent contract contains a provision by means of which
the parties had previously agreed on an amount of compensation payable by the
contractual parties in the event of breach of contract.
76.
The members of the Chamber recalled that according to art. 8.3 of the contract,
i.e. in the hypothesis that the club would have terminated the contract signed
with the player based on disciplinary-related grounds, or if the player failed to
resume work or breached the contract without just cause, the player is liable to
pay to the club the equivalent amount of EUR 20,000,000.
77.
On the other hand, the Chamber noted that according to art. 8.5 of the contract,
the maximum amount of compensation payable by the club to the player is
limited to “3 average monthly income of the Football player”, i.e. three monthly
salaries.
78.
On account of the above, the members of the Chamber referred to its wellestablished jurisprudence, according to which a compensation clause must be
reciprocal, in the sense that it must grant both parties to the employment
contract, if not equal rights, at least proportionate rights. Applying this principle
to the case at hand, the Chamber concluded that the rights of each party are
clearly disproportionate and thus the application of the said clause must be set
aside.
79.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the player to the club had to be assessed in application
of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber
recalled that said provision provides for a non-exhaustive enumeration of criteria
to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body. In this regard, the Dispute Resolution Chamber
emphasised beforehand that each amount of 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.
Club A, country B / Player C, country D
80.
In this context, the Chamber considered the first of the objectives criteria
provided for under art. 17 of the Regulations, i.e. the remuneration and other
benefits under the contract which has been breached.
81.
In this regard, it was ascertained that the amounts paid by the club to the player
for the period during which the player duly provided his services to the club up
until the termination of the employment relationship on 22 August 2014, cannot
be considered within the scope of the assessment of the amount of compensation
due for breach of contract. In fact, the relevant remuneration constitutes the
legitimate income of the player which was paid to him in exchange for his
services.
82.
Yet, the deciding authority was eager to emphasise that it is widely undisputed
that within the criterion of remuneration and other benefits under the existing
contract, the remaining value of the employment contract breached by the player
must be taken into consideration for the calculation of the compensation payable
by the player to his former club due to the unjustified breach of contract. This
was confirmed also by the Court of Arbitration for Sport in several of its
decisions. In the case at stake, the remaining value of the contract in question can
be established at EUR 16,588,600, corresponding to the salaries due to the player
as per the contract as from August 2014 until 30 June 2017.
83.
In accordance with of art. 17 par. 1 of the Regulations, another objective criterion
to consider is the amount of unamortised costs of acquiring the services of the
player.
84.
In this respect, it was noted that the club paid the player’s former club, Club E,
transfer compensation amounting to EUR 14,000,000. Taking into account the
fact that the employment contract in question was to run for four years and that
the breach occurred about thirteen months into the contract, the unamortised
costs of acquiring the services of the player would amount to EUR 10,500,000 (for
the remaining 34 months of the contract, i.e. as from September 2014 until 30
June 2017).
85.
In view of the above, and in the absence of evidence provided with regard to any
further damage which the club would have suffered, and in particular as to any
amounts which the club would have spent in relation to the player’s recruitment,
the Chamber decided that the amount of compensation in favour of the club
calculated on the grounds of the aforementioned objective criteria would
therefore total EUR 27,088,600.
86.
Subsequently, the Chamber recalled that within its competence to assess the
amount of compensation to be paid by a party (club or player) breaching an
Club A, country B / Player C, country D
employment contract to its counter party, as provided for by art. 17 of the
Regulations, it had to also consider the specificity of sport.
87.
The notion of the specificity of sport permits the reassessment of the amount of
compensation payable by a player to his former club in case of an unjustified
breach of contract not only on the basis of a strict application of civil or common
law, but also on the basis of considerations that players are an asset of a club in
terms of their sporting value and also from an economic point of view. Therefore,
the assessment of compensation that is higher than compensation calculated only
on the basis of the objective criteria of art. 17 of the Regulations is not, in every
case, to be considered as a punitive measure, but may be the result of
consideration based on the specificity of sport. In particular, taking into account
the value attributed to the services of a player when assessing the compensation
payable for an unjustified breach of contract by the player is in line with the
notion of the specificity of sport. In other words, the notion of specificity of sport
allows to assess the compensation payable to a club in case of an unjustified
breach of contract by a player not only on the basis of the objective criteria. Such
an understanding of the notion of the specificity of sport allows for the
calculation of amounts of compensation that are appropriate, fair and acceptable
for all stakeholders within the world of football, and which take into
consideration the interest of both the players and the clubs.
88.
In this respect, the Chamber stated that, bearing in mind the concept of
specificity of sport and the list of objective criteria contained in art. 17 of the
Regulations, the DRC has established, inter alia, guidelines for the calculation of
compensation payable for the unjustified breach of contract by a player. In
particular, as a general rule, the compensation payable to the former club shall
be the result of an addition of the amount of the fees paid or incurred by the
former club, amortised over the term of the contract, plus the amount of
remuneration due to the player under the contract that was breached until the
ordinary expiry of the former contract. Moreover, in case of breach of contract
during the protected period, thus under circumstances like in the case at hand,
this amount needs to be increased accordingly subject to particular circumstances.
By means of this formula for the calculation of the compensation, the DRC aims,
on the one hand, to take into account objective criteria such as the amount of
the fees paid or incurred by the former club, the remuneration due to the player
under the existing contract and the time remaining on the existing contract. On
the other hand, the possibility to increase the relevant amount of compensation
accordingly subject to particular circumstances allows the DRC to take into
consideration the specificity of sport and other criteria that are not explicitly
listed in art. 17 if the Regulations on a case-by-case basis. Obviously, in case it
deems it necessary, the DRC is always free to deviate from these guidelines.
Club A, country B / Player C, country D
89.
Bearing in mind the above, the Chamber took note of the club’s compensation
request of EUR 20,000,000 and declared that, in order not to go ultra petitum,
the amount of compensation in any case may not exceed such amount.
90.
Once the objective criteria along with the relevant figures were thus established,
and the central role of the specificity of sport having been recalled, the Chamber
went on to consider the specificities of the case at hand.
91.
In this regard, the Chamber underlined the noticeable financial investment made
by the club in order to secure the services of the player in terms of transfer
compensation paid to the player’s former club. Equally, the DRC recalled the
player’s contractual remuneration due under the contract as well as the
remaining value of the relevant contract concluded between the club and the
player in terms of salary and other benefits due to the player under said contract
as from the termination of the contract by the club until its ordinary expiration.
92.
Notwithstanding the above, whilst confirming once again that from the legal
point of view the contract at stake was repeatedly breached by the player, the
members could not help pointing out that the club de facto notified the
termination letter to the player with immediate effect.
93.
By doing so, the club complied with a general legal principle and was able to
mitigate the financial loss which it could have incurred had it kept paying the
player’s salary after the termination date.
94.
It is this very last consideration which made the Chamber wonder whether or not,
under the exceptional circumstances surrounding this case, the remaining value
of the contract should be taken into account among the criteria to assess the
compensation for breach of contract.
95.
In this regard, while referring to the longstanding jurisprudence whereby this
deciding-body has always applied the criteria to assess the compensation for
breach of contract provided for in the applicable Regulations and having given
necessary consideration to the specificity of sport, the Chamber concluded that,
in the specific case at hand, by handing out the termination notice with
immediate effect to the player at the end of the month of August 2014, the club
had indeed mitigated the damage it suffered as far as the remaining value of the
contract that was breached is concerned.
96.
In light of the above, and after extensive deliberation, the members of the
Chamber came to the unanimous conclusion that in light of the specific
circumstances of the matter at hand, the remaining value of the contract at
stake, i.e. the contract concluded between the club and the player on 20 August
Club A, country B / Player C, country D
2013, shall not be taken into account amongst the criteria applied to assess the
compensation for breach of contract due to the club by the player.
97.
The Dispute Resolution Chamber therefore decided that the player has to pay the
amount of EUR 10,500,000 to the club for having repeatedly breached the
contact signed on 20 August 2013.
98.
The Chamber then paid due consideration to art. 17 par. 2 of the Regulations, in
accordance with which the player’s new club is jointly and severally liable for the
payment of compensation. In this context, the Chamber recalled that, following
the termination of the contract, the player did not find a new club, and still
remains unemployed at the time of passing the present decision. Thus, in
principle, art. 17 par. 2 of the Regulations cannot be applied in casu.
99.
Notwithstanding the above, and considering the time which elapsed between the
date of the termination of the contract and the date on which the present
decision was passed, and whilst taking into account the principle of legal
certainty, according to which, after the passing of a decision, all parties to a
dispute should be aware of the consequences of their behaviour, the DRC wished
to stress that since as at the time this decision is made there is no club with which
the player has registered, art. 17 par. 2 of the Regulations should also not apply
in future, should the player find a new club.
100. The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the club and the player
are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club A, is partially accepted.
2.
The claim of the Respondent/Counter-Claimant, Player C, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/CounterRespondent EUR 10,500,000 within 30 days as from the date of notification
of this decision.
4.
In the event that the amount due to the Claimant/Counter-Respondent in
accordance with the above-mentioned number 3. is not paid by the
Respondent/Counter-Claimant within the stated 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.
Club A, country B / Player C, country D
5.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
6.
The
Claimant/Counter-Respondent
is
directed
to
inform
the
Respondent/Counter-Claimant immediately and directly of the account number
to which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision and
shall contain all the elements in accordance with point 2 of the directives issued by the
CAS, a copy of which we enclose hereto. Within another 10 days following the expiry
of the time limit for filing the statement of appeal, the appellant shall file a brief
stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4
of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
______________________
Jérôme Valcke
Secretary General
Encl. CAS Directives
Club A, country B / Player C, country D