Official Documents
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 player,
Player A, country B,
as Claimant
against the club,
Club C, country D,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 July 2011, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent) signed an
employment contract (hereinafter contract) valid as from 1 July 2011 until 30
June 2014.
2.
According to art. 7 of the contract entitled “work payment”, the club undertook
to pay the player the following remuneration in its equivalent amount in the
currency of country D:
3.
As from 1 August 2011 until 30 June 2012, USD 38,100 per month (art. 7
par. 1 lit. 1 of the contract);
As from 1 July 2012 until 30 June 2013, USD 50,000 per month (art. 7 par. 1
lit. 1 of the contract);
As from 1 July 2013 until 30 June 2014, USD 50,000 per month (art. 7 par. 1
lit. 1 of the contract);
Upon the club’s decision, the player may receive bonuses “for
achievements in sport in conformity with the provisions regarding
bonuses” (art. 7 par. 2 of the contract).
According to art. 9 of the contract entitled “guarantees and compensations”, the
club undertook to pay the player the following amounts:
A rent-related monthly allowance of 50,000 (art. 9 par. 1 of the contract);
In the English translation submitted by the player, art. 9 par. 2 of the
contract reads :”The Employer undertakes to refund the expenses for
coming to work in the town of a city of country D, amounting to
126,670,00 (one hundred twenty-six thousands six hundred seventy) US
dollars at the exchange rate of the Central Bank from the Federation of
country D in the currency of country D on the payment day, according with
the liquidation schedule: (…)”.
The translation of art. 9 par. 2 submitted by the club reads:” [the club]
shall reimburse for expenses connected with move to a city in country D
for work in the amount of 126,670 (one hundred twenty-six thousand six
hundred and seventy) USD in the currency of country D at the exchange
rate of the Federation of country D Central Bank on the date of payment,
according to the following repayment schedule: 26,670,0 (…) till
15.08.2011” and “100,000,0 (…) till 15.09.2011.”
Player A, country B / Club C, country D
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4.
On 28 March 2012, the player lodged a claim for breach of contract against the
club before FIFA and asked to be awarded the following outstanding
remuneration:
5.
USD 267,916.60 corresponding to outstanding salaries (USD 245,397.60)
and bonuses (USD 22,519) in relation to the period of time between 1
September 2011 and 19 March 2012;
245,645 corresponding to the outstanding amount due to the player by
the club in relation to the rent-related monthly allowance;
Interest on the two previously mentioned amounts.
In addition to the above-mentioned, the player also requested that the club be
ordered to inter alia pay him compensation for breach of contract as follows:
USD 14,748.39 in relation to his salary for the rest of the month of March
2012;
USD 114,300 corresponding to 3 x USD 38,100 for the months of April, May
and June 2012;
USD 1,200,000 corresponding to the player’s yearly salaries, i.e. USD 50,000
per month multiplied by 12 months, this being applied for the sporting
seasons 2012/2013 and 2013/2014;
Sporting sanctions to be imposed upon the club.
6.
The player explained that upon his joining the club in country E for a training
camp on 25 January 2012, the club reportedly orally informed him that he had to
leave and train with the club’s reserve team, without specifying the reason of
said decision.
7.
In continuation, the player asserted that on 16 February 2012, the club informed
him that it did not want him to train with the club’s reserve team. The player
held he therefore returned to country B to have a meeting with his counsel.
8.
Subsequently, the player put the club in default in writing on 27 February 2012 to
pay him within 15 days the amount of USD 242,086, corresponding to 5 monthly
salaries as from September 2011 up and until January 2012 included as well as
USD 51,586 related to the refund of expenses reflected in the above-mentioned
point I.3.
9.
On 2 March 2012 and 8 March 2012, the player sent further default notices to the
club in which he inter alia requested the club once more to pay him by 14 March
2012 and to provide him with the documents he needed to obtain a visa for
country D by 6 March 2012.
Player A, country B / Club C, country D
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10.
In continuation, the player wrote that he was still willing to execute the contract
but that should the latter fail to reply, and bearing in mind its non-payment of
the his remuneration, he will consider that the club is in breach of its obligations
and would “find [himself] in the situation to terminate the contract.” According
to the player, these two letters remained unanswered by the club.
11.
By means of a letter dated 19 March 2012, the club replied to the player by
asking him to resume his duties and requested him to transmit copies of his
passport so that an invitation to enter the Federation of country D could be sent
to the player. In this respect, the club further asserted that based on the law of
country D, FIFA regulations and the Football Association of country D’s rules, a
players’ non-registration and his failure to comply with his obligations would
entitle the club to unilaterally terminate the employment contract at the player’s
fault.
12.
In continuation, and in connection with the player’s financial claims, the club
wrote that the payment of said amounts “will be made solely on the basis of
documents confirming [the player’s] delivery costs incurred.”
13.
In this context, the player deemed that the club’s letter dated 19 March 2012 was
received after the expiry of the granted time limit and that the club was acting
out of bad faith, as it was asking for the transmission of documents it already had
been provided with in order to process the same formalities in the past.
14.
As a result, on 19 March 2012, the player wrote to the club in order to inform it
that considering inter alia the club’s repeated breaches and lack of cooperation,
he had lost confidence in the club and decided to terminate the contract.
15.
In the player’s opinion, it is clear that the club’s behaviour in relation to the
trainings and the visa formalities, as well as its repeated and serious noncompliance with its financial obligations gave him a just cause to terminate the
contract.
16.
In its reply to the player’s claim, the club asserted that after having been with the
club for a training camp in country E in January 2012, the player was “sent” to a
city in country D to join the club’s youth team trainings but that instead of going
there, he left the club without notice.
17.
The club then acknowledged having received the player’s notifications containing
his requests for payment and the visa issuance.
Player A, country B / Club C, country D
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18.
In this respect, the club stressed that as the player had a visa valid as of 25
October 2011 until 31 July 2012, it does not understand the player’s requests to
the club to ask it to prepare documents in relation to visa questions.
19.
In continuation, the club asserted that on 19 March and 27 March 2012, it had
sent letters to the player in order to ask him to return to the club to resume his
duties and to be provided with a copy of his passport “in order to reclaim the visa
to the Federation of country D”.
20.
As to the player’s financial claim, the club indicated that it replied to the player’s
letter dated 27 February 2012, and indicated in its answer, dated 27 March 2012,
that it had entirely paid the player’s remuneration.
21.
In support of this assertion, the club inter alia attached various payment-related
documents notably consisting of a certificate issued by the club’s bank and listing
the payments remitted to the player as well as an in-house “table” of payments
correlated with the aforementioned certificate.
22.
According to said documents, the club proceeded to the following payments in
favour of the player, who fully confirmed receipt of such payments:
On 26 July 2011, 100,000 in relation to the rent allowance;
On 27 September 2011, 150,000 as salary;
On 30 September 2011, 150,000 as salary and 35,000 in relation to the rent
allowance;
On 3 November 2011, 250,000 as salary;
On 15 November 2011, 450,000 as salary;
On 24 November 2011, 797,371.37 as salary and 370,720 as bonuses;
On 25 November 2011, 185,109.31 as salary and 127,400 as bonuses;
On 9 December 2011, 795,568.63 as salary and 205,800 as bonuses;
On 10 February 2012, 426,982.29 as salary;
On 16 February 2012, 518,474.72 as salary;
On 1 March 2012, 809,826.07 as salary;
23.
According to said table, the club paid the player 4,533,332.39 as salaries (as from
August 2011 until January 2012), 703,920 as bonuses and 135,000 in connection
with the player’s rent-related allowance.
24.
With specific regard to the amount of USD 126,670 related to the refund of
expenses, the club explained that according to the Federation of country D
Player A, country B / Club C, country D
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labour legislation and the tax Code of country D, said sums are refundable
provided such expenses are justified by documents.
25.
Yet, according to the club, and in spite of having invited in writing the player to
provide documents related to his alleged expenses, the player failed to provide
the club with evidence that he was entitled to ask for the relevant
reimbursements. In this respect, the club stressed that a payment on its behalf of
said expenses without justification could lead it to be prosecuted by the tax
authorities.
26.
Also, the club claimed that in the absence of justification, the player’s request
would consist of realizing an undue profit.
27.
The club hence concluded that said claim has to be rejected.
28.
Finally, the club held that based on the player’s absence from the club, it decided
to dismiss him on 6 April 2012 and notified him said termination of contract on
18 April 2012.
29.
In the club’s opinion, it is the player that acted in breach of contract and his
unjustified financial claims have to be rejected.
30.
In his replica, the player stressed that the club’s submission confirmed that
instead of integrating the player to the team’s gathering in country E, it asked
him to return to country D to train with the club’s youth team. In this respect, the
player stressed that the club asked him to leave country E before the end of said
camp.
31.
In the player’s opinion, the fact that the club did not want him to stay at the first
team’s camp in country E showed that it did not want him in the first team any
longer and that the club’s intention was to terminate the contract.
32.
In this respect, the player also held that in his opinion, having sent a 30 years old
player to train with the youth team amounted to an unilateral termination of
contract in itself as i) it excluded him from the first team and ii) led him to train
with a youth team for which he would not be allowed to play in matches.
33.
In continuation, the player fully acknowledged receipt of the sums the club
asserted it paid him (cf. point. I.22) but maintained that such amount does not
match the entirety of his contractual entitlements.
Player A, country B / Club C, country D
6/17
34.
In particular, and as to the club’s argumentation in relation to the non-payment
of the amount of USD 126,670 stipulated in art. 9 par. 2 of the contract, the
player held that as the only version of the contract presented to him was in the
language of country D, he could only rely on the numbers and figures, i.e. the
dates and the amounts.
35.
Also, the player held that he believed that said clause was a standard signing-on
fee clause and did not think its wording would be referring to a relocation
allowance.
36.
In this regard, the player stressed that an amount of USD 126,670, i.e. about
three monthly salaries, is too important to be analysed as a compensation for
relocation expenses which, according to the player, generally do not exceed USD
5,000.
37.
In this regard the player also underlined that the entire question of his relocation
and transportation costs, such as his rent and his flight tickets, is addressed in art.
9 par. 1 and par. 3 of the contract and that no other clause dealing with these
points was thus necessary.
38.
The player continued by asserting that the fact that said amount is presented as
unconditionally due and payable in installments falling due one and two months
after the signature of the contract, respectively, also shows that said amount is a
signing-on fee. If the sum had corresponded to refunds of expenses, no payment
dates would have been necessary and the reimbursements would have depended
on the presentation of evidence.
39.
In such case, the player also deemed that the club had to remind him to present
evidenced requests for the reimbursement of his expenses when the payment
dates fell due.
40.
Finally, the player mentioned that the club hired him as a free agent and thus did
not have to pay any transfer fee to any club. However, and considering that his
market value at the time was exceeding EUR 1,000,000, it makes sense that the
club stipulated a signing-on fee of USD 126,670 in the contract in order to
convince the player to join it.
41.
In light of the above, the player insisted that said amount constitutes a signingon fee.
42.
What is more, the player concluded that if the clause is drafted in an unclear way,
it has to be interpreted against the party who drafted it, i.e. the club.
Player A, country B / Club C, country D
7/17
43.
In spite of having been invited to present its position, no reply was received from
the club as regard the player’s final submission.
44.
On 22 August 2012, the player signed an employment contract with the club
from country D, Club F, which was mutually terminated on 15 December 2012.
Within the framework of said contract, the player received EUR 22,000 (EUR 5,500
x 4 months). On 1 March 2013, the player signed an employment contract with
the club from country B, Club G, valid until 30 June 2013 and providing for a
global salary of EUR 16,000, i.e. EUR 4,000 per month. According to a separate
agreement valid for the same duration as the above-mentioned contract, the
player was also to receive an additional remuneration of EUR 12,000, i.e. EUR
3,000 per month.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the DRC (hereinafter also referred to as Chamber or DRC) analysed
whether it was competent to deal with the case at hand. In this respect, the
Chamber took note that the present matter was submitted to FIFA on 28 March
2012. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and a club from
country D.
3.
Furthermore, the DRC analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, the Chamber
confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations
(edition 2015) and considering that the present matter was submitted to FIFA on
28 March 2012, the 2010 edition of said Regulations is applicable to the present
matter as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts as
Player A, country B / Club C, country D
8/17
well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it considered
pertinent for the assessment of the matter at hand.
5.
In this respect, the DRC acknowledged that it was undisputed by the parties that
the Claimant and the Respondent had signed an employment contract on 1 July
2011, valid as from 1 July 2011 until 30 June 2014.
6.
In continuation, the Chamber took note that it is undisputed by the parties
involved that the employment relationship was terminated by both the Claimant
and the Respondent, in writing, respectively on 19 March 2012 and 18 April 2012.
7.
In particular, the DRC noted that, on the one hand, the Claimant claims that the
Respondent has breached the contractual relationship without just cause by
failing to pay him his remuneration in full between September 2011 and
December 2011 and not having paid him any remuneration at all between
January 2012 and February 2012.
8.
The DRC also noted the Claimant’s assertion that the Respondent excluded him
from the professional team as from 25 January 2012, i.e. during the professional
team’s pre-season training camp.
9.
The Chamber further observed that, by means of his correspondence of 27
February 2012, 2 March 2012 and 8 March 2012, the Claimant reminded the
Respondent of its financial obligations and granted it a fifteen days’ time limit to
pay him his outstanding remuneration, i.e. until Friday 16 March 2012.
10.
As the Respondent reportedly did not react to such default notices within the
granted deadline, the Claimant terminated the contract on Monday 19 March
2012 and inter alia requested, by means of his claim before FIFA, the payment of
USD 267,916.60 as outstanding salaries and bonuses for the period of time
between 1 September 2011 and 19 March 2012, compensation for breach of
contract in the amount of USD 1,329,048.39, and the imposition of sporting
sanctions on the Respondent.
11.
Subsequently, the DRC noted that, on the other hand, the Respondent claims
that the Claimant terminated the contract without just cause. In this respect, the
Respondent explained that it paid the Claimant all his remuneration, with the
exception of the amount of USD 126,670 which it considers as an expensesrelated amount for which the Claimant did not prove his entitlement.
Player A, country B / Club C, country D
9/17
12.
In addition, the Respondent asserted that whereas it had asked the Claimant to
return to a city in country D to train with the club’s youth team, the Claimant
refused to do so and left country D without any authorisation.
13.
In continuation, the Chamber observed that the Respondent set forth that it is in
on the basis of the Claimant’s unpermitted absence from the club that it decided
to dismiss him and notified the Claimant the termination of contract on 18 April
2012.
14.
Finally the DRC noted that the Respondent did not submit any final comments to
the present matter.
15.
Having recalled the aforementioned, and bearing in mind the chronology of the
parties’ respective terminations of the contract, the Chamber first established
that it was the Claimant who was the first to put an end to the employment
relationship.
16.
Thus, the Chamber deemed that the underlying issue in this dispute, considering
the claim of the Claimant and the Respondent’s stance, was to determine
whether the employment contract had been unilaterally terminated with or
without just cause by the Claimant.
17.
In this respect, the DRC firstly recalled that in support of his claim that he
terminated the contract with just cause, the Claimant firstly held that the
Respondent had orally asked him to leave the club’s first team training camp
located in country E on 25 January 2012 and requested him to start training with
the Respondent’s reserve team.
18.
In particular, the Chamber took due note that according to the Claimant, this
Respondent’s request amounted to a unilateral termination of the contract as, in
addition to be excluded from the club’s first team, and considering his age, i.e.
thirty years old, the Claimant would not be allowed to play in the competitions in
which the club’s youth team would take part.
19.
On the other hand, the Chamber noted that the Respondent confirmed such
assertion as it explained in its reply to the player’s claim that the Claimant was
indeed asked to join the trainings of the club’s youth team in country D but that
instead of doing so, the player breached the contract as he decided to leave the
country without any authorisation.
20.
However, the Chamber wished to underline that in spite of the above-described
situation, the Claimant informed the club on 2 and 8 March 2012 that if some
conditions were met, he was still willing to execute the contract signed between
Player A, country B / Club C, country D
10/17
the parties. Furthermore, the members of the Chamber noted that for its part, on
19 March 2012, the Respondent had asked the Claimant to resume his duties.
21.
In view of the parties’ respective above-mentioned positions in connection with
the player’s demotion out of the club’s first team, the Chamber reached the
conclusion that it appeared that the Claimant’s termination of the contract was
not primarily based on the Respondent’s decision at stake to prevent him from
training with the club’s first team.
22.
Having so found, the DRC decided to turn its attention on the second reason
given by the Claimant to terminate his contract with the Respondent, namely the
Respondent’s alleged breach of its contractual financial obligations.
23.
In this respect, the Chamber firstly wished to recall that according to the
Claimant, the club failed to pay him various salaries and bonuses adding up to an
amount of USD 267,916.60 as well as a contractual rent-related allowance in the
amount of 245,645.
24.
Furthermore, the DRC particularly noted the Respondent’s position that it
deemed having paid the Claimant all his dues given that, allegedly, out of the
amount of USD 267,916.60 claimed by the Claimant as outstanding remuneration,
an amount of USD 126,670 actually consists of a maximum amount of expenses to
be reimbursed by the Respondent only upon the presentation of the respective
invoices, which the Claimant did not do.
25.
Against such background, the Chamber wished to recall the basic principle of
burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, and
according to which a party claiming a right from an alleged fact shall carry the
respective burden of proof.
26.
In this context, the Chamber reverted to the contractual terms related to the
payment of the amount of USD 126,670 at stake and carefully analysed the
respective translations of the provision at stake that were presented by the
Claimant and the Respondent.
27.
Having done so, the DRC found that the stipulations of art. 9 par. 2 of the
contract, in either of its translations, were not providing that the Respondent’s
payment of the amount of USD 126,670 to the Claimant was dependent on the
latter’s presentation of any invoices to the Respondent. Indeed, and in either of
the translated versions of said contractual provision, the only specification
provided is that said amount shall be paid in two installments, respectively falling
due on 15 August 2011 and 15 September 2011. Therefore, the Chamber agreed
with the Claimant’s argumentation in this respect, i.e. that the amount of USD
Player A, country B / Club C, country D
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126,670 at stake consisted of an integral and guaranteed part of the Claimant’s
remuneration.
28.
Having so found, the Chamber continued its analysis of the matter at hand by
turning its attention to the questions of the amounts that are claimed as due by
the Claimant but yet allegedly outstanding at the date of the latter’s termination
of the employment contract.
29.
On immediate account of the above-mentioned analysis, the Chamber reached
the first conclusion that at the time of the Claimant’s termination of the contract,
i.e. on 19 March 2012, the Respondent had indeed failed to pay the Claimant the
amount of USD 126,670 as said amount would have had to be paid via two
installments respectively dated 15 August 2011 and 15 September 2011.
30.
In continuation, and bearing in mind that the Claimant confirmed having
received all the amounts the Respondent asserted it paid him within the
framework of the contract, the Chamber turned its attention to the question of
the monthly salaries claimed by the Claimant.
31.
In this respect, the Chamber first of all established that the outstanding salaries
claimed amounted to USD 118,727.60, i.e. the total of USD 267,916.60 minus the
amount of USD 126,670 corresponding to the expenses provided in art; 9 par. 2 of
the contract as well as the claimed bonuses in the amount of USD 22,519.
32.
Whilst proceeding to the analysis of any possible outstanding monthly salaries as
claimed by the Claimant and as a starting point, the Chamber considered that, at
the time of the termination of the contract, i.e. on 19 March 2012, the payment
of the Claimant’s monthly remuneration for the month of March 2012 was not
yet due. Thus, the Claimant cannot claim a pro rata amount of his monthly salary
for that month, and such amount, i.e. USD 23,351.60 (or USD 38,100/31x19), must
be deducted from any possible outstanding salaries due to the Claimant at the
time the latter put an end to the contract.
33.
For the sake of the completeness, the Chamber nevertheless wished to stress that
if applicable, the Claimant’s remuneration for the month of March 2012 would
need to be taken into account whilst calculating the amount due to him by the
Respondent as compensation for breach of contract, if any.
34.
Consequently, and also bearing in mind the Respondent’s presentation of the
amounts it paid to the Claimant as salaries (cf. point I.22. above), the Chamber
reached the conclusion at the date of the termination of the contract, the
Claimant’s outstanding monthly salaries could only amount to a maximum of USD
Player A, country B / Club C, country D
12/17
95,376, namely the amount of USD 118,727.60 minus the “pro rata” amount of
USD 23,351.60.
35.
In this context, the Chamber noted that in its argumentation, the Respondent did
not present any valid explanations in connection with its abstention from having
paid any other salary-related amounts with the exception of the aforecited ones.
36.
In the absence of evidence of payment or of any explanation with regard to the
Respondent’s non-payment of the amount of USD 95,376, the Chamber
concluded that said amount was indeed due to the Claimant and outstanding.
37.
Having so found, the Chamber turned its attention to the Claimant’s claim
related to his rent allowance as per the contract in the amount of 245,645.
38.
In this respect, the Chamber noted that such claimed amount consisted of the
Claimant’s addition of seven full installments in the amount of 50,000 each,
related to the month of August 2011 until February 2012, i.e. 350,000, plus an
amount of 30,645 calculated pro rata temporis for nineteen days of the month of
March 2012 (i.e. 50,000/31x19), minus the amount of 135,000 presented as paid
by the Respondent to the Claimant in relation to his monthly rent allowances and
fully acknowledged as such by the Claimant (i.e. 380,645 – 135,000).
39.
The Chamber noted that the Respondent, for its part, only submitted evidence
that it paid the Claimant the amount of 135,000 in connection with said
allowance during the entire duration of the execution of the contract and did
not submit any explanation in connection with its non-payment of the difference
with the amount it had contractually agreed to pay to the Claimant in this
respect.
40.
Accordingly, the Chamber agreed with the Claimant that at the date of the
termination of the contract, the Respondent had failed to pay to the Claimant
the amount of 245,645 calculated pro rata temporis in relation to the monthly
contractual rent-related allowance (380,645-135,000).
41.
In continuation, the DRC turned its attention to the amount of USD 22,519 the
Claimant claimed as outstanding bonuses and noted in this respect that if art. 7.2
of the contract indeed reads that the player “may receive bonuses for
achievements in sport in conformity with the provisions regarding bonuses”, no
copies of the provisions at stake were ever transmitted by the Claimant to this
deciding body.
Player A, country B / Club C, country D
13/17
42.
Additionally, and more generally, the Chamber wished to highlight that the
Claimant did not submit any details or documentary evidence showing the nature
or the composition of the amount(s) claimed as bonuses.
43.
Against such background, and referring once more to the aforementioned legal
principle in accordance with which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof, Chamber agreed that the Claimant’s
claim for outstanding bonuses of USD 22,519 could not be taken into account
whilst assessing the amount of outstanding remuneration lato sensu at the time
of the termination of the contract.
44.
On account of all the aforementioned, the Chamber unanimously considered that
the Respondent substantially and persistently failed to comply with its
contractual obligations towards the Claimant without valid explanations and was
therefore to be considered as having breached the contract signed by and
between the parties without just cause.
45.
Accordingly, the Chamber concluded that the Claimant had valid reasons to
terminate his contractual relationship with the Respondent on 19 March 2012
and that said termination had to be considered as supported by a well-founded
just cause.
46.
Based of the aforementioned, and in accordance with the general legal principle
of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay
to the Claimant the amounts that were due and outstanding under the contract
at the moment of the termination, i.e. USD 222,046 on the one hand (USD
126,670 as expenses as per art. 9 par. 2 of the contract plus USD 95,376 as
outstanding salaries).
47.
Likewise, and on the same basis, the Chamber decided that the Respondent is
liable to pay to the Claimant the amount of 245,645 calculated pro rata temporis
on the basis of the Respondent’s non-compliance with its contractual obligation
to pay the Claimant the rent-related allowance stipulated in art. 9 par. 1 of the
contract.
48.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amounts of USD
222,046 and 245,645 as from 28 March 2012 until the date of effective payment.
49.
Having established the above, the Chamber focussed its attention to the question
of the consequences of the Respondent’s breach of the contract without just
cause.
Player A, country B / Club C, country D
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50.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant is entitled to receive compensation from the Respondent for
breach of contract without just cause.
51.
The members of the Chamber firstly recalled that, in accordance with art. 17 par.
1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
52.
In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract contained a provision
by means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. The members of the Chamber assured themselves that no such
compensation clause was included in the employment contract at the basis of the
matter at stake.
53.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body. In this regard, the
Dispute Resolution Chamber emphasized beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a
case-by-case basis taking into account all specific circumstances of the respective
matter.
54.
In order to estimate the amount of compensation due to the Claimant in the
present case, the members of the Chamber first turned their attention to the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, which criterion was considered by the Chamber to be
essential. The members of the Chamber deemed it important to emphasise that
the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract in the calculation of the
amount of compensation.
Player A, country B / Club C, country D
15/17
55.
In accordance with the contract signed by the Claimant and the Respondent,
which was to run until 30 June 2014, , the Claimant was still to receive, after the
termination of the contract, the total amount of USD 1,352,400, corresponding to
his monthly salaries as from the month of March 2012 until 30 June 2014.
56.
Subsequently, the Chamber took note of the fact that the Claimant claims to
have signed two new employment contracts, one with the club from country D
Club F, valid as from 22 August 2012 until 15 December 2012, on the basis of
which he received EUR 22,000, and one with the club from country B, Club G,
valid as from 1 March 2013 until 30 June 2013, on the basis of which he received
EUR 28,000.
57.
On account of all of the above-mentioned considerations and the specificities of
the matter at hand, the DRC decided that the Respondent must pay the Claimant
the amount of USD 1,288,600 as compensation for breach of contract.
58.
For all the above reasons, the DRC decided to partially accept the claim of the
Claimant and holds the Respondent liable to pay the Claimant the amounts of
USD 222,046 and 245,645 as unpaid remuneration, plus interest as defined in
point II.48., as well as the amount of USD 1,288,600 as compensation for breach
of contract without just cause.
59.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further request filed by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
245,645 and USD 222,046 plus 5% interest p.a. on said amounts as from 28 March
2012 until the date of effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount
of USD 1,288,600.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
Player A, country B / Club C, country D
16/17
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
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
17/17