Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 19 April 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Takuy a Yam azaki (Japan), Member
Tom is lav Kas alo (Croatia), Member
Daan de Jong (the Netherlands ), Member
Abu Nay eem S hohag (Banglades h), Member
on the claim presented by the player,
Play er A, Country B
as Claimant / Counter-Respondent
against the club,
Club C, Country D
as Respondent / Counter-Claimant
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 28 July 2015, the club from Country D, Club C (hereinafter: Respondent /
Counter-Claimant or club) and the player from Country B, Player A (hereinafter:
Claimant / Counter-Respondent or player), signed an employment contract
(hereinafter: contract) valid as from its date of signature until 31 May 2017.
2.
According to article 3 of the contract, the player was entitled to receive from the
club:
a)
b)
3.
For the 2015/2016 sporting season: a down payment of EUR 100,000 on 7 July
2015 and 10 monthly instalments of EUR 12,000 each, payable the last day of
each month (i.e. from August 2015 to May 2016);
For the 2016/2017 sporting season: a down payment of EUR 66,000 on 1
August 2016 and 10 monthly instalments of EUR 15,400 each, payable the last
day of each month (i.e. from August 2016 to May 2017).
Furthermore, “If [the club] will take place in Super League for 2016/2017”,
the club would pay the player:
- a down payment of EUR 150,000 as follows: EUR 65,000 on 31 July 2016 and
EUR 85,000 on 31 August 2016;
- 9 monthly instalments of EUR 20,000 each, payable the last day of each
month (i.e. from September 2016 to May 2017).
Article 3 of the contract further established that the player will receive:
- EUR 15,000 in case he has been lined up for 25 matches (or more) of the PTT 1
League or Super League;
- EUR 15,000 in case he has scored 10 goals in the above-mentioned matches
during the season;
- EUR 1,000 for every game he has been lined up;
“If the club participates in the Super League for 2016/2017”, the player will
receive:
- EUR 30,000 in case he has been lined up for 25 matches (or more) in the Super
League;
- EUR 30,000 in case he has scored 10 goals in the above-mentioned matches
during the season.
4.
Pursuant to article 3.4 of the contract, “the club also agrees to buy 3 round trip
flight tickets (Country B-Country D) for the player.”
5.
Article 3.5 of the contract states that the “Player shall be entitled to terminate his
contract with the club unilaterally if the club delays to pay the receivables of the
player for more than 30 days after due time.”
6.
On 3 December 2015, the player sent a first default notice to the club requesting
the latter to pay two monthly salaries (i.e. October and November 2015) in the
Player A, Country B / Club C, Country D
2
amount of EUR 24,000 as well as appearance bonuses within 10 days, referring to
art. 3.5 of the contract.
7.
According to the player, on 10 December 2015, the club proceeded with the
payment of his salary of October 2015 in the amount of EUR 12,000.
8.
On 28 December 2015, the player sent a second default notice to the club asking
for the payment of his salary of November 2015 plus the appearance bonuses,
granting the club a deadline of 2 days within which to pay.
9.
On the same day, the club published news on its website announcing the end of
the cooperation with several players, including Player A, stating that they will not
participate in the mid-term training camp.
10.
After this announcement, the player, via “WhatsApp”, asked the club to clarify his
situation, following which the club’s apparent sports director confirmed that “you
are not camp roster as coachs decision. We want to release, please come to
Country D or tell me a way to handle this situation.”
11.
On 31 December 2015, the player informed the club that he had received most of
the requested remuneration, but that EUR 2,000 in relation to his appearance
bonus was still outstanding. In addition, the player informed the club that he
considered the club’s announcement of the termination of his contract on its
website and social media platforms a unilateral termination of the contract at the
club’s initiative and that unless the club would give an explanation and public
rectification within the following 24 hours, he would consider that the club
confirms and endorses the contractual termination.
12.
On 5 January 2016, the player sent another letter to the club pointing out that he
had received no reply to his previous correspondence and requesting that the club
(i) remove the publication from the website, (ii) pay the appearance bonuses
relating to matches of 2 December and 21 December 2015, (iii) reimburse the
travel expenses according to clause 3.4 of the contract and (iv) let the player train
with the club’s first team instead of an individual training regime.
13.
Following negotiations between the player’s lawyer and the club via “WhatsApp”
and a final default notice dated 10 January 2016, on 12 January 2016, the player
informed the club that he considered his contract terminated at the initiative of
the club without just cause.
14.
On 14 January 2016, the club replied to the player’s notice of termination, denying
that it terminated the contract and pointing out that there was no official decision
in this regard. The club further asked the player to return to the club by 16 January
2016.
On 14 January 2016, the club paid the player the amount of EUR 2,000
corresponding to his appearance bonuses.
15.
Player A, Country B / Club C, Country D
3
16.
On 1 February 2016, the player signed an employment contract with the club from
Country B, Club E, valid as from its signature date until 15 June 2016, providing a
total salary of EUR 20,000. The player pointed out that he did not receive any
salary from this new club as it went bankrupt and was disaffiliated from the
Football Federation of Country B.
17.
On 17 July 2016, the player entered into an employment contract with the club
from Country B, Club F, valid as from its signature date until 30 June 2017,
providing for a total remuneration of 352,000 in the currency of Country B.
18.
On 19 January 2016, the player lodged a claim against the club before FIFA
maintaining that the club is liable for breach of contract without just cause
requesting to be awarded the following :
- Payment of salary in the amount of EUR 4,645 corresponding to 12 days of
January 2016 plus 5% interest p.a. as of 12 January 2016 until the date of
effective payment;
- Compensation for breach of contract in the amount of EUR 275,355 plus 5%
interest p.a. as of 28 December 2015 or, alternatively, as of 12 January 2016,
until the date of effective payment;
- In the alternative, in case the club is promoted to the first tier, compensation for
breach of contract in the amount of EUR 405,355 plus 5% interest p.a. as of 28
December 2015 or, alternatively, as of 12 January 2016, until the date of
effective payment;
- Payment of the amount of EUR 194.95 corresponding to a flight ticket from
Country B to Country D as well as the amount of 1,120.42 in the currency of
Country D corresponding to flight tickets from Country D to Country B for 2
persons.
The player further asked that a ban on registering new players, either nationally or
internationally, for two registration periods be imposed on the club.
19.
More in particular, the player considered that the public announcement published
on the club’s website and social media platforms, which the club never removed or
rectified in spite of his request, demonstrated its clear intention to terminate the
contract and its explicit non-interest in his services.
20.
In continuation, the player argued that despite his will to fulfil his contractual
obligations, the club excluded him from the team without valid reason and,
consequently, denied his right to an effective employment and to being occupied
by exercising the activity he had been hired for.
21.
The player further indicated that, following his refusal to accept the club’s
proposal to terminate the contract with no compensation, the club handed him an
unclear individual training programme with no indication of the place nor hours
of the training sessions. In this regard, the player submitted a video and some
Player A, Country B / Club C, Country D
4
pictures allegedly showing that the player was abandoned and alone at the club’s
facilities.
22.
In particular, the player stressed that when he requested an explanation following
his exclusion, the club informed him that it is subjected to a limitation in the
registration of the number of foreign players with the Football Federation of
Country D.
23.
The player also pointed out that the club attempted to intimidate him to accept to
waive any right to financial compensation following the termination of the
contract.
24.
Finally, the player argued that, according to article 3.5 of the contract, he had the
right to terminate the contract, because the club was in delay of the fulfilment of
its financial obligations towards him for more than 30 days and, in any way, he
could not be held responsible for the termination considering that he had just
cause to do so.
25.
On 22 March 2016, in its reply to the claim, the club rejected the player’s
arguments and lodged a counterclaim against him as well as against his new club
for breach of contract without just cause requesting compensation for breach of
contract in the amount of EUR 268,000, or, alternatively, EUR 378,000.
26.
The club further asked that appropriate sporting sanctions be imposed on the
player and his new club.
27.
The club contested the player’s argumentation, considering that the
announcement published on 28 December 2015 only stated that some players
would not be attending the club’s training camp in Country D due to a decision of
the coach, who considered that the players concerned were lacking performance.
The club insisted on the fact that it was perfectly aware that, despite the
announcement, it had to fulfil its contractual obligations towards said players.
28.
In addition, the club indicated that it informed the player orally about his
returning date to prepare the second part of the 2015/2016 season.
29.
The club considered that the player had accepted to train apart from the club’s
first team, but stressed that he was not present at the club until 4 January 2016.
30.
As regards the appearance bonuses, the club presented documents demonstrating
that the player was entitled to receive bonuses for matches played on 23
September, 18 October, 2 December and 21 December 2015.
31.
In addition, regarding the requested flight tickets, the club considered that the
player already used his contractual three round trip tickets and that, consequently,
the club has no obligation towards the player in this regard.
Player A, Country B / Club C, Country D
5
32.
Moreover, the club asserted that the player violated his contractual obligations, as
he left the country without the club’s permission and he did not attend the
training sessions on 12, 13 and 14 January 2016.
33.
The club emphasized that, on 20 January 2016, a letter was sent to the player
informing him that the employment contract was still in force and asking him to
return to the club by no later than 23 January 2016.
34.
Finally, in support of its allegation that it considered the contract still binding on
the parties, the club submitted a letter it sent to the Football Federation of
Country D, in which the club rejected the issuance of the International Transfer
Certificate (ITC) for the player.
35.
In his reply to the counterclaim, the player rejected the club’s assertion regarding
the decision of the coach to dismiss players from the first team. In fact, the player
considered that, in any case, the player’s performance does not constitute a just
cause in the sense of article 14 of the Regulations on the Status and Transfer of
Players for a club to terminate a contract.
36.
The player also pointed out that the club’s position confirmed that it had violated
his fundamental rights, especially by not giving him the possibility to train properly
and consequently to compete with his fellow teammates in official matches.
37.
Furthermore, the player denied having been informed by the club to return and
resume his contractual obligations before 4 January 2016.
38.
Regarding the flight ticket benefits, the player rejected the club’s submission,
considering that it is acting in bad faith, especially by presenting flight reservation
confirmations, which, according to the player, explicitly show that he was still
entitled to flight tickets according to the contract.
39.
In continuation, the player underlined that the club’s late payment of bonuses, on
14 January 2016, constituted another evidence that he was entitled to terminate
the contract with just cause according to article 3.5 of the contract.
40.
The player emphasized that the club maintained its abusive behaviour towards
him by refusing the issuance of the ITC by the Football Federation of Country D
and, consequently, forced him and his new club to request the assistance of FIFA
for provisional measures.
41.
The player’s new club, Club E, was invited to present its reply to the claim of the
club, but it has in the interim been disaffiliated from the Football Federation of
Country B.
42.
After the closure of the investigation in the present matter, the player informed
FIFA that the club had proposed to settle the dispute amicably by paying the
amount of EUR 200,000 in four instalments.
Player A, Country B / Club C, Country D
6
43.
Subsequently, the player informed FIFA that the club had failed to formalize the
settlement agreement and asked that the proceedings continue. In particular, the
player requested to take into account the EUR 200,000 settlement amount
proposed by the club as a minimum in the calculation of the compensation
potentially awarded.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 19 January 2016. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 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 2018), 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 Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2018), and considering that the present claim was lodged on 19 January
2016, the 2015 edition of the Regulations on the Status and Transfer of Players
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation
contained in the file. 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.
Furthermore, in this context, the members of the Chamber recalled art. 9 par. 4 of
the Procedural Rules, which provides inter alia for the following: ‘The parties shall
not be authorised to supplement or amend their requests or their arguments, to
produce new exhibits or to specify further evidence on which they intend to rely,
after notification of the closure of the investigation.’ In this respect, the members
of the Chamber decided to not take into account the unsolicited comments of the
Player A, Country B / Club C, Country D
7
Claimant / Counter-Respondent, which were submitted after the closure of the
investigation phase.
6.
Having said that, the Chamber recalled that the parties had signed an employment
contract valid as of 28 July 2015 until 31 May 2017, in accordance with which the
Claimant / Counter-Respondent was entitled to receive, inter alia, for the
2015/2016 sporting season, an advance payment of EUR 100,000 payable on 7 July
2015 and ten monthly salaries of EUR 12,000 each, payable the last day of the
month as from August 2015. In addition, according to the employment contract,
the Claimant / Counter-Respondent was entitled to receive an appearance fee of
EUR 1,000 for each match in which he was lined-up. The members of the Chamber
noted that the employment contract does not include a specific due date for
payment of such appearance fees.
7.
The members of the Chamber further recalled that according to art. 3.5 of the
employment contract, the Claimant / Counter-Respondent was entitled to
terminate the employment contract if the Respondent / Counter-Claimant was in
delay of payment of his receivables for more than 30 days.
8.
In continuation, the Chamber took into account that, on 12 January 2016, the
Claimant / Counter-Respondent notified the Respondent / Counter-Claimant that
he considered the employment contract as having been terminated at the latter’s
initiative without just cause.
9.
The DRC noted that according to the Claimant / Counter-Respondent, the
Respondent / Counter-Claimant is to be held liable for breach of contract without
just cause, by failing to pay remuneration that allegedly had been outstanding for
more than 30 days and by excluding him from the team despite several default
notices, to which the Respondent / Counter-Claimant had not reacted. The
Claimant / Counter-Respondent further considered that by means of a publication
on its website and social media platforms, the Respondent / Counter-Claimant
demonstrated that it wished to terminate the employment relationship and that it
was no longer interested in his services. Therefore, the Claimant / CounterRespondent asked to be awarded, inter alia, payment of EUR 4,645 as salary for
twelve days of January 2016 as well as compensation for breach of contract and
reimbursement of flight tickets.
10.
Subsequently, the DRC noted that the Respondent / Counter-Claimant, for its part,
claimed that the Claimant / Counter-Respondent terminated the contract without
just cause, denying that it had the intention to terminate the contract. According
to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent left the
country without permission and only returned on 4 January 2016. The Respondent
/ Counter-Claimant further held that the Claimant / Counter-Respondent had
accepted to train separately from the club’s first team and that he had left the
country without its authorisation and was absent from training on 12, 13, and 14
January 2016. Therefore, the Respondent / Counter-Claimant rejected the claim of
Player A, Country B / Club C, Country D
8
the Claimant / Counter-Respondent and asked that the latter be ordered to pay
compensation for breach of contract without just cause to it.
11.
Having established the above, the Chamber highlighted that the underlying issue
in this dispute, considering the claim of the Claimant / Counter-Respondent and
the counterclaim of the Respondent / Counter-Claimant, was to determine
whether the employment contract had been unilaterally terminated with or
without just cause and which party was responsible for the early termination of
the contractual relationship in question. The DRC also underlined that,
subsequently, if it were found that the employment contract was breached by one
of the parties without just cause, it would be necessary to determine the
consequences for the party that caused the unjust breach of the relevant
employment contract.
12.
Having said that, the Chamber took note that the Respondent / Counter-Claimant
had remitted the Claimant / Counter-Respondent’s salaries for October and
November 2015 with considerable delay in December 2015, whereas two
appearance bonuses amounting to EUR 2,000 had remained unpaid until 14
January 2016, date on which the Respondent / Counter-Claimant proceeded with
the relevant payment, i.e. after the Claimant / Counter-Respondent had notified
the Respondent / Counter-Claimant of the termination of the employment
contract.
13.
Subsequently, the Chamber turned its attention to the further circumstances
surrounding the termination of the employment contract in the case at hand.
Indeed, the Chamber acknowledged the documentation provided by the Claimant
/ Counter-Respondent in support of his argumentation, which, apart from the
various above-mentioned default notices, includes, inter alia, the aforementioned
public announcement by the Respondent / Counter-Claimant and a print-out of
“WhatsApp” communications between the Claimant / Counter-Respondent and
the Respondent / Counter-Claimant, the existence or contents of which have not
been contested by the latter.
14.
With respect to the aforementioned public announcement, the Chamber noted
that, on 28 December 2015, the Respondent / Counter-Claimant announced, inter
alia, that “Considering that we have ended cooperation with our players … and
Player A, they will not be included in our mid-term training camp.”
15.
The members of the Chamber further took note of the communication exchanged
between the Claimant / Counter-Respondent and the Respondent / CounterClaimant via “WhatsApp”, in particular, that in reply to the Claimant / CounterRespondent’s request for a clarification of his situation with the club, the
Respondent / Counter-Claimant replied that he is “… not camp roster as coachs
decision. We want to release, please come to Country D or tell me a way to handle
this situation.”
Player A, Country B / Club C, Country D
9
16.
In continuation, the Chamber took into account that in his third default notice,
dated 31 December 2015, the Claimant / Counter-Respondent inter alia referred to
the Respondent / Counter-Claimant’s public announcement and its alleged
subsequent confirmation that it wanted to release the player from his duties,
which he considered to constitute a unilateral termination of the employment
contract by the Respondent / Counter-Claimant without just cause. In such notice,
the Claimant / Counter-Respondent requested the club to provide him with a
reasonable explanation along with a public statement denying the termination of
his contract within 24 hours or he would consider that the Respondent / CounterClaimant confirms and endorses the contractual termination.
17.
In addition, the DRC noted that in the absence of a reaction from the Respondent /
Counter-Claimant to his notice of 31 December 2015, on 5 January 2016, in an
attempt to solve the matter amicably, the Claimant / Counter-Respondent once
more asked the Respondent / Counter-Claimant to rectify the termination
announcement, to pay the outstanding bonuses and travel expenses and
furthermore to allow him to join the first team programme within 24 hours or he
would consider the employment contract as terminated by the club without just
cause. In his notice of 5 January 2016, the Claimant / Counter-Respondent further
highlighted that he was not allowed to join the team at the training camp and
that he was asked to undertake an individual training programme, having been
given as a reason that there was a limited number of foreigners in the first 25
player list, of which he was no part.
18.
Moreover, the members of the Chamber noted from the ensuing “WhatsApp”
conversation between the lawyer of the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant that the latter confirmed that the player was not
included in the limited number of foreigners in the first 25 players list and that he
would be given an individual training programme. In addition, it was noted that
the parties had not been able to find an amicable agreement and that the
Respondent / Counter-Claimant indicated that the player can “stay and practice”,
which was not acceptable to the Claimant / Counter-Respondent.
19.
On 10 January 2016, the Claimant / Counter-Respondent once more wrote to the
Respondent / Counter-Claimant referring to his previous notices, pointing out that
the Respondent / Counter-Claimant had still not rectified or denied the
information in its public statements. He further highlighted that he was informed
by the Respondent / Counter-Claimant that he can keep practicing at the club’s
premises or leave without compensation. In addition, the Claimant / CounterRespondent indicated that he was training with a non-qualified coach with whom
he could not communicate in English. In this notice, the Claimant / CounterRespondent asked that the Respondent / Counter-Claimant immediately remedy
this situation or he would conclude that the Respondent / Counter-Claimant has
terminated the contract being no longer interested in continuing the employment
relationship with him. Subsequently, on 12 January 2016, the Claimant / CounterRespondent confirmed that he considered the employment contract terminated at
the initiative of the Respondent / Counter-Claimant without just cause.
Player A, Country B / Club C, Country D
10
20.
In continuation, the DRC recalled that the Respondent / Counter-Claimant alleged
that it had no intention to terminate the employment contract and that, in fact, it
was the Claimant / Counter-Respondent who is to be held liable for the
termination of the employment contract without just cause due to his departure
without permission and by not participating in training on 12, 13, and 14 January
2016.
21.
In this regard, the Chamber, first of all, pointed out that the Respondent /
Counter-Claimant has not presented any documentation in support of its
allegation that the Claimant / Counter-Respondent was to return to the club prior
to 4 January 2016. What is more, the members of the Chamber took into account
that the absence from training of the player as from 12 January to 14 January 2016
invoked by the Respondent / Counter-Claimant and in relation with which it
presented public notary reports coincides with the period of time as of which the
Claimant / Counter-Respondent considered the employment contract as having
been terminated by the Respondent / Counter-Claimant without just cause as per
his notice dated 12 January 2016.
22.
Furthermore, the Chamber equally noted that the Respondent / Counter-Claimant
did not contest the allegations of the Claimant / Counter-Respondent regarding his
exclusion from the first team and his assignment to individual trainings. What is
more, the Respondent / Counter-Claimant even explained to the Claimant /
Counter-Respondent that he was not included in the limited number of foreigners
in the first 25 players list and that he would be given an individual training
programme.
23.
With regard to the Respondent / Counter-Claimant’s position that it had no
intention to terminate the employment contract, the Chamber wished to point out
that the Respondent / Counter-Claimant had announced as reason for the
exclusion of the Claimant / Counter-Respondent from the training camp that
“Considering that we have ended cooperation with … Player A … ” and that it
added that We want to release, please come to Country D or tell me a way to
handle this situation” when it referred to the player’s exclusion from the team in
the “WhatsApp” communication (emphasis added). The members of the Chamber
deemed that such statements in contradiction with to the position expressed by
the Respondent / Counter-Claimant during the proceedings that it had no
intention to terminate the employment contract. Indeed, the Chamber considered
that such statements indicate that the Respondent / Counter-Claimant had decided
to end the employment relationship with the Claimant / Counter-Respondent.
24.
In addition, the Chamber emphasised that the Respondent / Counter-Claimant has
not replied to the Claimant / Counter-Respondent’s various default notices, in
particular, it had not provided the Claimant / Counter-Respondent with a
clarification on his contractual situation in spite of his specific requests in this
sense. In this regard, the members of the Chamber noted that, in fact, only on 14
January 2016 did the Respondent / Counter-Claimant reply to the Claimant /
Player A, Country B / Club C, Country D
11
Counter-Respondent with a clear written statement that it had not decided to
terminate the contract, i.e. after the Claimant / Counter-Respondent’s notice dated
12 January 2016.
25.
On account of the above, the Chamber concluded that it could not uphold the
argumentation of the Respondent / Counter-Claimant and decided to reject the
Respondent / Counter-Claimant’s counterclaim.
26.
Furthermore, in view of the aforementioned facts, the DRC was of the firm
opinion that the Claimant / Counter-Respondent had well-founded reasons to
believe that the Respondent / Counter-Claimant was no longer interested in
maintaining an employment relationship with him and to continue making use of
his services for the remainder of the contractual duration.
27.
As a consequence of all of the above, the Chamber decided that the Claimant /
Counter-Respondent had just cause to notify the Respondent / Counter-Claimant
of the termination of the employment contract on 12 January 2016 and that the
Respondent / Counter-Claimant is to be held liable for the early termination of the
employment contract with just cause by the Claimant / Counter-Respondent on 12
January 2016.
28.
Having established that the Respondent / Counter-Claimant is to be held liable for
the early termination of the employment contract with just cause by the Claimant /
Counter-Respondent, the Chamber focussed its attention on the consequences of
such termination.
29.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant / Counter-Respondent is entitled to receive compensation from
the Respondent / Counter-Claimant.
30.
Prior to establishing the amount of compensation, recalling the Claimant /
Counter-Respondent’s request to be awarded salary on a pro rata temporis basis
for January 2016, the Chamber wished to underline that given that the January
salary fell due on 31 January 2016 and that the employment contract is considered
terminated on 12 January 2016, the January 2016 salary will be included in the
calculation of the amount of compensation for breach of contract.
31.
Having said that, 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 / Counter-Respondent under
the existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
Player A, Country B / Club C, Country D
12
32.
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.
33.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant /
Counter-Respondent had to be assessed in application of the other parameters set
out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable. Therefore,
other objective criteria may be taken into account at the discretion of the deciding
body. 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.
34.
In order to establish the amount of compensation due to the Claimant / CounterRespondent in the present case, the members of the Chamber first turned their
attention to the remuneration and other benefits due to the Claimant / CounterRespondent under the existing contract and/or the new contract(s), 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(s) in the calculation of the amount of compensation.
35.
Bearing in in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant / Counter-Respondent under the terms of the
employment contract as from its date of termination on 12 January 2016 until 31
May 2017. In this respect, the Chamber took into account that no evidence was
presented demonstrating that the Respondent / Counter-Claimant had been
promoted to the Super League for the 2016-2017 season. Therefore, the DRC
concluded that the Claimant / Counter-Respondent would have received in total
EUR 280,000 as remuneration had the contract been executed until its expiry date.
Consequently, the Chamber concluded that the amount of EUR 280,000 serves as
the basis for the final determination of the amount of compensation for breach of
contract in the case at hand.
36.
In continuation, the Chamber verified as to whether the Claimant / CounterRespondent had signed an employment contract with another club during the
relevant period of time, by means of which he would have been able to reduce his
loss of income. According to the constant practice of the DRC, such remuneration
under a new employment contract shall be taken into account in the calculation of
Player A, Country B / Club C, Country D
13
the amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
37.
Indeed, the Chamber took note that the Claimant / Counter-Respondent signed
two new employment contracts during the relevant period of time; the first
contract with the club from Country B, Club E, valid as from 1 February 2016 until
15 June 2016, entitling him to a remuneration in the total amount of EUR 20,000.
The Chamber noted that according to the Claimant / Counter-Respondent he did
not receive any salary from Club E as it went bankrupt. However, the Chamber
considered that the amount of EUR 20,000 has to be included in the mitigation, as
the Claimant / Counter-Respondent could have claimed this remuneration in the
relevant bankruptcy proceedings. In addition, the DRC noted that the Claimant /
Counter-Respondent signed an employment contract with the club from Country
B, Club F, valid as of 17 July 2016 until 30 June 2017, and according to which he
was entitled to a total remuneration of 322,667 until 31 May 2017.
38.
Taking into account all the aforementioned objective elements as well as the
specificities in the matter at hand, the Dispute Resolution Chamber decided that
the Respondent / Counter-Claimant must pay compensation for breach of contract
in the amount of EUR 190,000 to the Claimant / Counter-Respondent.
39.
In addition, with regard to the Claimant / Counter-Respondent's request for
interest, in accordance with its constant practice, the Chamber decided that the
Claimant / Counter-Respondent is entitled to 5% interest p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 19 January 2016,
until the date of effective payment.
40.
Equally, as regards the Claimant / Counter-Respondent’s claim pertaining to air
tickets, on the basis of the information provided by FIFA Travel and taking into
account the relevant terms of the employment contract, the Chamber decided that
the Respondent / Counter-Claimant must pay the amount of CHF 320 to the
Claimant / Counter-Respondent for a flight ticket to return home following the
termination of the employment contract.
41.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant / CounterRespondent is rejected.
Player A, Country B / Club C, Country D
14
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent / Counter-Respondent, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 190,000, plus 5% interest p.a. as from 19 January 2016 until the date of
effective payment.
4.
The Respondent / Counter-Claimant is ordered to pay to the Claimant / CounterRespondent / Counter-Respondent the amount of CHF 320 in regard of a flight
ticket w ithin 30 day s as from the date of notification of this decision.
5.
In the event that the aforementioned amount of CHF 320 is not paid by the
Respondent / Counter-Claimant within the stated time limit, interest at the rate of
5% p.a. will fall due on the amount of CHF 320 as of expiry of the aforementioned
time limit until the date of effective payment.
6.
In the event that the aforementioned amounts and interest due to the Claimant /
Counter-Respondent are not paid by the Respondent / Counter-Claimant within
the stated time limits, the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee for consideration and a formal decision.
7.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
8.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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 m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
Player A, Country B / Club C, Country D
15
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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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