Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 May 2014,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player H, from country E
as Claimant/Counter-Respondent 1
against the club,
Club Z, from country E
as Respondent/Counter-Claimant
and the club,
Club K, from country B
as Counter-Respondent 2
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 27 January 2010, Player H, from country E (hereinafter: the Claimant/CounterRespondent 1 or the player), and Club Z, from country E (hereinafter: the
Respondent/Counter-Claimant or Club Z), signed an employment contract
(hereinafter: the contract) valid as from the date of signature until the end of the
2012/2013 season.
2.
According to art. 2 and 4 of the contract, the Respondent/Counter-Claimant
undertakes to provide the Claimant/Counter-Respondent 1 with:
- 2009/2010 season: currency of country E 625,000 gross (currency of country E
500,000 net), payable in four equal instalments of currency of country E 156,250
gross (currency of country E 125,000 net) each, on 27 January, 1 February, 1
April and 1 June 2010;
- 2010/2011 season: currency of country E 1,250,000 gross (currency of country E
1,000,000 net), payable in four equal instalments of currency of country E
312,500 gross (currency of country E 250,000 net) each, on 1 August 2010, 1
January, 1 April, 1 June 2011;
- 2011/2012 season: currency of country E 1,375,000 gross (currency of country E
1,100,000 net), payable in four equal instalments of currency of country E
343,750 gross (currency of country E 275,000 net) each, on 1 August 2011, 1
January, 1 April, 1 June 2012;
- 2012/2013 season: currency of country E 1,437,500 gross (currency of country E
1,150,000 net), payable in four equal instalments of currency of country E
359,375 gross (currency of country E 287,500 net) each, on 1 August 2012, 1
January, 1 April, 1 June 2013;
- Currency of country E 3,750 per month as rent expenses.
3.
The contract further establishes under the section “Preliminary” that “The two
parties declare their capacity to contract and they have read the regulation of
player affairs which is valid during the signing of this contract and this regulation
supersedes any other consideration as part of this contract and complement for it”.
4.
As per the translation of the contract provided by the Claimant/CounterRespondent 1, art. 4 par. 9 stipulates that “the club has to pay the instalments on
the settled dates as per the contract otherwise the player has the rights to
terminate his contract and force the club his dues according to the decision Dispute
Resolution Chamber and committee of players affaires”.
5.
In Club Z’s translation of the contract, art. 4 par. 9 reads as follows: “[…] if the
player does not receive his due instalment, the player has the right to request the
cancellation of the contract and paying his dues by submitting the issue to the
committee of player affairs to consider if the contract will be cancelled and force
the club to pay the player his dues which the committee determines”.
Player H, from country E / Club Z, from country E / Club K, from country B
2/19
6.
By means of a correspondence dated 25 July 2011, the Claimant/CounterRespondent 1 terminated the contract with the Respondent/Counter-Claimant,
invoking outstanding debts towards him in the total amount of currency of country
E 542,750, made up of currency of country E 486,500 regarding outstanding
instalments for the season 2010/2011 (currency of country E 236,500 as part of the
instalment due on 1 April 2011 + currency of country E 250,000 as the instalment
due on 1 June 2011 in full) and currency of country E 56,250 regarding outstanding
rent payments from May 2010 until July 2011 (15 months x currency of country E
3,750).
7.
On 8 August 2011, the Claimant/Counter-Respondent 1 signed a new employment
contract with Club K, from country B (hereinafter: the Counter-Respondent 2 or
Club K), and on 12 August 2011 the country B Football Association requested from
the country E Football Association the player’s International Transfer Certificate
(ITC) on behalf of its affiliate. On 17 August 2011, however, the country E Football
Association refused to issue the player’s ITC, invoking the fact that he was still
contractually bound to Club Z. On 14 October 2011, the Single Judge of the Player
Status Committee provisionally authorized the registration of the player with the
Counter-Respondent 2.
8.
On 16 September 2011, the Claimant/Counter-Respondent 1 lodged a claim for
breach of contract against the Respondent/Counter-Claimant in front of FIFA,
requesting, after amending his claim, the payment of the total amount of currency
of country E 2,568,000 and EUR 20,000, made up of:
- Currency of country E 228,000 net, corresponding to the total amount due by
the time of the termination, i.e. currency of country E 542,750 (cf. point I.6.
above) minus currency of country E 314,750 paid by the Respondent/CounterClaimant to the Claimant/Counter-Respondent 1 on 25 August 2011, plus
interest of 5% p.a. as from 25 July 2011;
- Currency of country E 2,340,000 as compensation for breach of contract,
corresponding to the amounts due to the Claimant/Counter-Respondent 1 for
the seasons 2011/2012 and 2012/2013 (Currency of country E 1,100,000 +
currency of country E 1,150,000), plus the relevant rent expenses (currency of
country E 90,000), plus unspecified interest;
- outstanding collective match bonuses plus interest of 5% p.a. as from 25 July
2011;
- EUR 20,000 as attorney fees;
- procedural costs;
- sporting sanctions on the Respondent/Counter-Claimant.
9.
The Claimant/Counter-Respondent 1 argues that, even though he had always
complied with his contractual obligations, Club Z had, since the beginning of the
contract, made several late payments. During the 2010/2011 season, Club Z only
paid the Claimant/Counter-Respondent 1 the amount of currency of country E
Player H, from country E / Club Z, from country E / Club K, from country B
3/19
513,500 out of currency of country E 1,000,000. In addition, Club Z allegedly paid
rent expenses only from February to April 2010.
10.
In view of the Respondent/Counter-Claimant’s delay in paying his remuneration, on
4 April 2011 the Claimant/Counter-Respondent 1 and six of his team mates
addressed a written reminder to the country E Football Association requesting
assistance in order to obtain from Club Z the payment of their late salaries. In this
regard, the Claimant/Counter-Respondent 1 provided a copy of the letter dated 4
April 2011 and of the DHL waybill dated 7 April 2011, forwarding said letter to Club
Z. However, the Claimant/Counter-Respondent allegedly never received an answer
from Club Z.
11.
In its response, the Respondent/Counter-Claimant rejected the player’s claim and
stated that, on 22 January 2011, the season of the country E League was suspended
due to the unstable political situation. As a result, many clubs, amongst which Club
Z, experienced financial difficulties. The Respondent/Counter-Claimant further
claims that the football season was resumed on 14 April 2011 and ended on 10 July
2011, but Club Z only played its last match of the season on 11 October 2011.
12.
The Respondent/Counter-Claimant states to have been informed for the first time
of the existence of alleged outstanding salaries for the 2010/2011 season towards
the Claimant/Counter-Respondent 1 on 25 July 2011, as it received the termination
letter (cf. point I.6. above), without having been previously given the chance to
solve the issue amicably.
13.
In addition, the Respondent/Counter-Claimant states that the amount of currency
of country E 486,500 indicated by the Claimant/Counter-Respondent 1 as
outstanding remuneration is incorrect. The Respondent/Counter-Claimant does not
contest the existence of outstanding remuneration towards the player, but only in
the amount of currency of country E 64,750, i.e. “Currency of country E 28,750”,
corresponding to the third instalment due on 1 April 2011 and currency of country E
36,000 as flat allowance. In this respect, the Respondent/Counter-Claimant provided
a copy of an undated document issued by its financial manager, according to which
the accommodation allowance amounts to currency of country E 3,000 net per
month, which allegedly the Claimant/Counter-Respondent 1 had refused to receive.
14.
The Respondent/Counter-Claimant points out that according to the Regulations of
the country E Football League, by which the Claimant/Counter-Respondent 1
abides, 25% of his remuneration may be withheld until the last match of the season
has been played and the player would only be entitled to receive the
aforementioned amount in case his participation in at least 80% of the matches
played by the club is confirmed. Said regulations, a copy of which is on file,
establish that “Holding 25% of contract value be paid at season end due to player’s
participation. Participation of 80% of matches numbers is the percentage received
Player H, from country E / Club Z, from country E / Club K, from country B
4/19
by player of these outstanding (25%) and listing his name in match list considered
participation”.
15.
According to Club Z, since the Claimant/Counter-Respondent 1 only participated in
26 of the 35 matches disputed by the Respondent/Counter-Claimant, i.e. 76.3%, he
is not entitled to receive the amount of currency of country E 250,000 (25% of
currency of country E 1,000,000), which was withheld by Club Z. In addition, taking
into account the fact that he refused to receive the accommodation allowance (cf.
point I.13. above), the total amount due by Club Z to the Claimant/CounterRespondent 1 corresponded to currency of country E 64,750.
16.
Club Z further indicated that it sent a letter dated 7 August 2011 to the country E
Football Association, requesting that the amount of currency of country E 314,750
(currency of country E 250,000 + currency of country E 64,750) be paid to the player.
In this regard, the Respondent/Counter-Claimant provided a copy of a letter dated 7
August 2011, which mentions the amounts of currency of country E 278,750 as net
income for the 2010/2011 season and currency of country E 36,000 as outstanding
accommodation allowances for the 2010/2011 season, as well as a statement of The
United Bank confirming the transfer of the amount of currency of country E
314,750 to the player on 25 August 2011. According to Club Z, this amount though
was incorrectly paid to the Claimant/Counter-Respondent 1 since, at the time the
payment was made, Club Z had not noticed that it should have withheld the
amount of currency of country E 250,000, as the player participated in less than
80% of the club’s matches in the 2010/2011 season.
17.
Furthermore, the Respondent/Counter-Claimant asserts that, due to his good
performance during the 2010/2011 season, the Claimant/Counter-Respondent 1 was
offered an extension of his contract for a much higher salary.
18.
The Respondent/Counter-Claimant claims that on 8 August 2011 the
Claimant/Counter-Respondent 1 secretly signed a new contract with the CounterRespondent 2, in spite of being aware of Club Z’s intention to pay his outstanding
remuneration and to extend his contract for a higher salary. As per Club Z, on 10
August 2011, the Claimant/Counter-Respondent 1 returned to the club, attended
the first day of training for the following season and reaffirmed his will to continue
his cooperation with Club Z; however, on 11 August 2011 he left again. By means of
its correspondence dated 23 and 27 August 2011, 5 and 10 September 2011, Club Z
warned the Claimant/Counter-Respondent about his absence from training and
requested his return. The Claimant/Counter-Respondent 1, however, did not return
to country E and subsequently, Club Z was informed of the request of the country B
Football Association for the player’s ITC on behalf of Club K (cf. point I.7. above).
19.
In addition, the Respondent/Counter-Claimant indicates that fines in the total
amount of currency of country E 186,000 were allegedly imposed on the
Claimant/Counter-Respondent 1, as follows:
Player H, from country E / Club Z, from country E / Club K, from country B
5/19
- Currency of country E 12,500, on 1 August 2010, in the amount of 1% of his
remuneration for the 2010/2011 season, payable to the country E Football
Association as reimbursement of registration fees;
- Currency of country E 71,000 for late arrivals or absences from August to
December 2010, broken down as follows: Currency of country E 25,000 in
August and September, Currency of country E 2,500 in October, Currency of
country E 40,000 in November and Currency of country E 3,500 in December;
- Currency of country E 10,000 on 19 May 2011 for late arrival to an official
match;
- Currency of country E 100,000 on 24 May 2011, for refusing to travel with the
team to country S and country K;
- Currency of country E 5,000 and suspension for 1 match on 5 July 2011,
subsequent to the fourth warning to the player.
20.
Based on the fact that the Claimant/Counter-Respondent 1 did not give the
Respondent/Counter-Claimant a proper warning before terminating the contract
and that country K’s debts towards the player are the result of a force majeure
situation, Club Z lodged a counterclaim against the player and Club K for breach of
contract without just cause and inducement to breach, respectively, requesting the
total amount of USD 11,243,835.61 plus currency of country E 265,875,000, as well
as interest of 5% p.a. as from the date of breach, broken down as follows:
- USD 300,000, corresponding to the transfer fee paid by Club Z to the player’s
former club;
- USD 10,943,835.61 corresponding to the value of the player’s services when the
alleged breach occurred, calculated as follows: USD 100,000 is the amount for
which the player was released to participate with the country Q national team
in the “XY Cup of Nations 2010” in country Y, between 22 and 28 November
2010. Based on this amount, Club Z concluded that the value of the player’s
services per day amounts to USD 14,246.57. Thus, for the period as from 25 July
2011, i.e. date of termination, until 30 June 2013, expiry date of the contract,
the value of the player’s services amounts to USD 10,943,835.61;
- Currency of country E 15,875,000 corresponding to Club Z’s costs for the player’s
replacements, i.e. currency of country E 7,875,000 for the player Player M and
currency of country E 8,000,000 for the player S;
- Currency of country E 250,000 as reimbursement of the amount erroneously
paid to the player, as he participated in less than 80% of Club Z
- ’s matches during the 2010/2011 season;
- “indemnity charges” in the amount of at least 6 monthly salaries of the player
as per the new contract signed with Club K;
- procedural costs.
21.
In addition, Club Z requests that Club K be considered as jointly as severally liable
for the payment of compensation for breach and that sporting sanctions be
imposed on the player and on Club K.
Player H, from country E / Club Z, from country E / Club K, from country B
6/19
22.
Alternatively, Club Z requests that the player and Club K pay at least the amount of
currency of country E 9,500,000 as compensation for breach of contract,
corresponding to the amount Club Z was willing to pay the player for the extension
of his contract for the 2011/2012, 2012/2013 and 2013/2014 seasons.
23.
In his replica, the Claimant/Counter-Respondent 1 maintains his previous arguments
and further states that he never had the intention of extending his contract with
Club Z, and points out that the latter club based its allegations solely on an internet
article. In this regard, the Claimant/Counter-Respondent 1 equally claims that he
returned to Club Z on 9 and 10 August 2010, not to negotiate an extension of his
contract or resume training, but to request the payment of his outstanding
remuneration.
24.
The Claimant/Counter-Respondent 1 insists on the fact that he terminated the
employment contract with just cause, based on the fact that Club Z had always paid
his remuneration with considerable delay and, in this respect, he mentioned the
reminders sent to the Respondent/Counter-Claimant and to the country E Football
Association on 4 April 2011 (cf. point I.10. above). Moreover, the Claimant/CounterRespondent 1 points out that in accordance with art. 4 par. 9 of the contract (cf.
point I.4. above) he was entitled to terminate the contract in case of a delay in
payment. In addition, he denies having ever refused to receive his accommodation
allowances, as Club Z stated.
25.
The Claimant/Counter-Respondent 1 also rejects the application of the internal
regulations of the Respondent/Counter-Claimant, in particular of the clause
authorizing Club Z to withhold 25% of his remuneration (cf. point I.14. above), for
he considers it to be potestative and, consequently, illegal. In this regard, he points
out that the employment contract established specific paydates for his
remuneration and that its specific wording should prevail over the general
provisions of Club Z’s internal regulations. The Claimant/Counter-Respondent 1
further claims that the copy of those internal regulations provided by Club Z does
not bear any date and, thus, is not applicable.
26.
Furthermore, the Claimant/Counter-Respondent 1 points out that, by mentioning
the aforementioned clause, the Respondent/Counter-Claimant does not contest its
failure to pay his remuneration, but only attempts to reduce the amount due to
him.
27.
The Claimant/Counter-Respondent 1 further claims that the Cup of country E might
have ended on 11 October 2011, but the Championship and the season had already
finished on 10 July 2011, as confirmed by the country E Football Association (cf.
point I.11. above). Thus, the Claimant/Counter-Respondent 1 claims that in the
alternative that the DRC considers the internal regulations as applicable, it should
consider that the 2010/2011 season finished on 10 July 2011 and that, by then, the
player had participated in 82.8% of Club Z’s matches, i.e. 26 of the 30 matches of
Player H, from country E / Club Z, from country E / Club K, from country B
7/19
the country E First League and 3 of the 4 matches of the Champions League, thus
being entitled to receive his entire contractual remuneration.
28.
In addition, the Claimant/Counter-Respondent 1 claims never having been informed
of the existence of any pending fines against him. As such fines are the result of a
unilateral procedure, they cannot be applied. In addition the player individually
denies all the accusations upon which the Respondent/Counter-Claimant bases the
imposition of such fines:
- Currency of country E 12,500, on 1 August 2010: according to his contract, he
was not responsible for the payment of his registration fees;
- Currency of country E 71,000 from August to December 2010: the
Respondent/Counter-Claimant does not provide any proof of or detailed
information on said fines;
- Currency of country E 10,000 on 19 May 2011: no official match took place on
such date;
- Currency of country E 100,000 on 24 May 2011: he did not refuse to travel with
Club Z, but was injured at that time;
- Currency of country E 5,000 and suspension for 1 match on 5 July 2011: such a
sanction is not stipulated in Club Z’s internal regulations and, thus, is not
applicable.
29.
The Claimant/Counter-Respondent 1 further rejects the existence of force majeure
in the present case. He deems that the civil unrest in country E neither justifies the
non-payment of his salary nor the fact that such salary was always paid with delay
by the Respondent/Counter-Claimant, since the beginning of the contract and even
before the start of the turmoil in Spring 2011.
30.
In spite of having been invited to do so, Club K, from country B, failed to present its
position on the counterclaim of Club Z.
31.
In its duplica, Club Z maintains its previous argumentation and insists that the
player’s claim be rejected. In particular, Club Z claims having duly fulfilled all of its
financial obligations towards the Claimant/Counter-Respondent and, in this regard,
it provides FIFA with a copy of an undated statement of The United Bank, according
to which “To Club Z, at the request of your part we hereby certify that we added
this sum to the player: Player H, account no. 1055364898, as the following”:
- Currency of country E 83,300, on 15 August 2010;
- Currency of country E 83,350, on 19 October 2010;
- Currency of country E 83,350, on 14 November 2010;
- Currency of country E 81,250, on 11 January 2011;
- Currency of country E 10,250, on 14 April 2011;
- Currency of country E 81,250, on 15 June 2011;
- Currency of country E 100,000, on 14 July 2011;
- Currency of country E 314,750, on 25 August 2011.
Player H, from country E / Club Z, from country E / Club K, from country B
8/19
32.
Based on the aforementioned, the Respondent/Counter-Claimant claims that, on 14
July 2011, after deducting the amount of Currency of country E 186,000
corresponding to the fines imposed on the Claimant/Counter-Respondent 1, the
latter had received Currency of country E 731,250 out of the Currency of country E
750,000 due at the time. Club Z also insists on its right to withhold 25% of the
player’s remuneration for the 2010/2011 season.
33.
Furthermore, the Respondent/Counter-Claimant insists that it never received any
warnings from the Claimant/Counter-Respondent 1 or from the country E Football
Association regarding outstanding salaries. In addition, according to the country E
Football Association, the letter dated 4 April 2011 sent by several team members
and the player failed to comply with specific formal pre-requisites of admission and
could not be processed. In addition, the Respondent/Counter-Claimant claims that,
by the time the aforementioned letter was sent, the only amount due was the
instalment of 1 January 2011, which was fully paid before the termination of the
contract.
34.
Based on the aforementioned, the Respondent/Counter-Claimant claims that the
Claimant/Counter-Respondent 1 illegally terminated the contract on 25 July 2011.
Club Z states that the player probably already intended to leave the club and sign a
new contract with the Counter-Respondent 2. Nevertheless, after receiving the
termination letter, Club Z claims to have acted in good faith, by proceeding to the
payment of the amounts requested, via the country E Football Association (cf. point
I.16. above), and by proposing the resumption of the renegotiation of his contract.
The Claimant/Counter-Respondent 1 allegedly refused to receive the amount of
Currency of country E 314,750 from the country E Football Association, as he
deemed to be entitled to a higher sum. In view of his refusal and of the
unsuccessful contract renegotiation, the Respondent/Counter-Claimant deposited
the aforementioned amount in the player’s bank account on 25 August 2011 (cf.
point I.31. above).
35.
Club Z states that the Claimant/Counter-Respondent 1 was aware of the existence
of the fines imposed on him, as they were directly communicated to him by the
club’s manager. In this context, Club Z refers to its internal regulations, according to
which violations such as absence from training can be sanctioned with financial
penalties or any “penalty not stated in the regulations”. According to the
Respondent/Counter-Claimant, the player’s misbehaviour can be demonstrated by
the several press articles published in this regard.
36.
Furthermore, the Respondent/Counter-Claimant claims that the correct translation
of art. 4 par. 9 of the contract (cf. point I.5. above) by no means establishes that the
Claimant/Counter-Respondent 1 is allowed to terminate the contract without
previous warning, but that he has the right to submit a complaint to the country E
Football Association, which then will decide upon the cancellation of the contract
and the amounts due.
Player H, from country E / Club Z, from country E / Club K, from country B
9/19
37.
Finally, the Respondent/Counter-Claimant deems that the FIFA DRC shall not be
competent to hear the player’s claim, since it lacks international dimension.
Notwithstanding, Respondent/Counter-Claimant insists on its counterclaim.
38.
In his final position, the Claimant/Counter-Respondent 1 insists on the fact that he
terminated the contract with just cause. He points out that the fact that Club Z, by
means of its letter dated 7 August 2011 addressed to the country E Football
Association (cf. point I.16. above), requested the latter to transfer him the amount
of currency of country E 314,750 related to late payments for the 2010/2011 season
proves that, by the time the player terminated the contract, the
Respondent/Counter-Claimant owed him a considerable part of his remuneration.
39.
The Claimant/Counter-Respondent 1 does not contest the fact that, by 25 August
2011, Club Z had paid him the total amount of currency of country E 828,250, of
which currency of country E 792,250 correspond to his remuneration for the
2010/2011 season (currency of country E 513,500 on 14 July 2011 and currency of
country E 278,750 on 25 August 2011) and currency of country E 36,000 (out of
currency of country E 56,250) as accommodation expenses. By making such
payments on 25 August 2011, the Respondent/Counter-Claimant recognized that
the 2010/2011 season finished on 10 July 2011 and that the Claimant/CounterRespondent 1 had indeed participated in more than 80% of the matches for such
season.
40.
The Claimant/Counter-Respondent 1 further claims that, from the bank statement
provided by Club Z (cf. point I.32. above), it is possible to see that the instalment
due on 1 August 2010 was paid with a delay of approximately 5 months, that the
instalment of 1 January 2011 was paid with a delay of approximately 6,5 months
and that the instalments due on 1 April and 1 June 2011 had not been paid on 25
July 2011, i.e. date of termination. In addition, the Claimant/Counter-Respondent 1
maintains that, in spite of having received the amount of currency of country E
83,350 on 15 August 2010, his monthly salary for June 2010 (season 2009/2010)
remained unpaid by Club Z.
41.
The Claimant/Counter-Respondent 1 denies the Respondent/Counter-Claimant’s
allegation, according to which it has not received his reminder of 4 April 2011 and
refers, in this regard, to a DHL waybill dated 7 April 2011 presented as evidence (cf.
point I.10. above).
42.
In spite of having been once again invited to do so, the Counter-Respondent 2 did
not submit its position as to Club Z’s counterclaim.
43.
The Claimant/Counter-Respondent 1 concluded a contract with Club K valid as from
1 August 2011 until 30 June 2013, according to which he was entitled to receive:
- EUR 4,500 gross as monthly salary, payable 12 times a year;
Player H, from country E / Club Z, from country E / Club K, from country B
10/19
-
“double holiday pay”;
EUR 750 per month as housing allowance;
EUR 700 per month as car allowance;
EUR 48,000 as sign on bonus, payable in 4 equal instalments of EUR 12,000 on
15 September, on 15 February 2012, on 15 September 2012 and on 15 February
2013.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect,
the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 16 September 2011.
Therefore, the Chamber concluded that the edition 2008 of the Procedural Rules is
applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, and with regards to its competence, the DRC noted that the
Respondent/Counter-Claimant deemed that the FIFA DRC is not competent to hear
the player’s claim, since it involves an country E player and an country E club and
would, therefore, lack international dimension. The Chamber also noted, however,
that the Respondent/Counter-Claimant had lodged a counterclaim against the
Claimant/Counter-Respondent 1 as well as against the Counter-Respondent 2.
3.
In this regard, the Chamber first noted that, in the present case, the player’s ITC was
issued from country E to country B, following a decision of the Single Judge of the
Players’ Status Committee on 14 October 2011, as detailed in point I.7. above.
4.
Subsequently, the members of the DRC also noted that a counterclaim was lodged
by Club Z against the country E player and the Club K, from country B, on 21 of
December 2011, concerning a dispute related to the maintenance of contractual
stability, arisen in connection with the issuance of the aforementioned ITC from
country E to country B.
5.
Bearing in mind the foregoing, the DRC concluded that the entire dispute at hand,
involving the country E player, Club Z and Club K gravitates around the ITC request
from country B to country E, and therefore based on art. 22 a) of the Regulations,
the Respondent/Counter-Claimant’s objection to the competence of FIFA’s DRC to
deal with the player’s claim had to be rejected. Thus, the DRC is competent to deal
with both the claim of the Claimant/Counter-Respondent 1 and the counterclaim of
the Respondent/Counter-Claimant lodged in the present matter, as to their
substance.
Player H, from country E / Club Z, from country E / Club K, from country B
11/19
6.
Subsequently, the members of the Chamber 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 (editions 2010 and 2012) and considering that the claim in front of FIFA
was lodged on 16 September 2011, the 2010 edition of said Regulations is
applicable to the present matter as to the substance.
7.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, the
Chamber started by acknowledging all the above-mentioned facts as 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.
8.
In this respect, the members of the DRC acknowledged that it was undisputed by
the parties that, on 27 January 2010, the player and Club Z signed an employment
contract, valid until the end of the 2012/2013 season, in accordance with which the
player was to receive the remuneration detailed in point I.2. above.
9.
In addition, the DRC took note of the fact that it is also undisputed by the parties
that said contract was terminated by the Claimant/Counter-Respondent 1 on 25 July
2011, in writing.
10.
The DRC further noted that, on the one hand, the Claimant/Counter-Respondent 1
claims that he had a just cause to terminate the pertinent employment contract,
having received only part of the amounts he was entitled to for the season
2010/2011 as per the contract. Therefore, after having allegedly put the
Respondent/Counter-Claimant in default, but having received no answer or
payment, the Claimant/Counter-Respondent 1 terminated the contract.
11.
Based on the aforementioned, the Claimant/Counter-Respondent 1, after amending
his claim, requested from the Respondent/Counter-Claimant the payment of the
total amount of currency of country E 2,568,000 as outstanding remuneration and
compensation for breach of contract, plus interest, and EUR 20,000 as attorney fees.
12.
Subsequently, the DRC noted that, on the other hand, the Respondent/CounterClaimant rejects the allegations of the Claimant/Counter-Respondent 1 and deems
not to owe him any outstanding amounts as per the contract concluded between
the parties.
13.
In this context, the Respondent/Counter-Claimant states that, according to its
internal regulations, allegedly accepted by the Claimant/Counter-Respondent 1 as
part of the contract, the club had the right to withhold 25% of the player’s
remuneration until the end of the season and this percentage should only be paid
out to him in case he participates in more than 80% of the club’s matches. Since the
Player H, from country E / Club Z, from country E / Club K, from country B
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2010/2011 season only ended in October 2011 for Club Z, the Claimant/CounterRespondent 1 did not play in more than 80% of matches and, thus, should not be
entitled to received 100% of his contractual remuneration.
14.
The Respondent/Counter-Claimant further explains that several fines in the total
amount of currency of country E 186,000 had allegedly been imposed on the
Claimant/Counter-Respondent 1, regarding inter alia the reimbursement of
registration fees, late arrivals, unjustified absences and a refusal to travel with the
team.
15.
Furthermore, the Respondent/Counter-Claimant claims to have never received any
warnings from the Claimant/Counter-Respondent 1 prior to the termination of the
contract on 25 July 2011.
16.
Lastly, the Respondent/Counter-Claimant pointed out that the political unrest in
country E configures a situation of force majeure, which would justify any failure in
payments.
17.
Moreover, the Respondent/Counter-Claimant claims that the Claimant/CounterRespondent 1, without informing Club Z, concluded a new employment contract on
8 August 2011 with Club K, while knowing that the Respondent/Counter-Claimant
had the intention of renewing his contract for an allegedly higher salary. In spite
Club Z’s alleged requests for his return in August and September 2011 (cf. point
I.18. above), the Claimant/Counter-Respondent 1 never resumed his activities with
the Respondent/Counter-Claimant.
18.
Based on the foregoing, the Respondent/Counter-Claimant lodged a counterclaim
against the Claimant/Counter-Respondent 1 and the Counter-Respondent 2, for
breach of contract without just cause and inducement, respectively, requesting the
payment of the total amount of USD 11,243,835.61 and currency of country E
265,875,000, plus interest.
19.
In continuation, the Chamber noted that, in response to Club Z’s counterclaim, the
Claimant/Counter-Respondent 1 stated, firstly, that he never intended to renew his
contract with the Respondent/Counter-Claimant. He further stated that he always
had to cope with several and considerable delays in the payment of his
remuneration.
20.
Furthermore,
the
Claimant/Counter-Respondent
1
rejected
the
Respondent/Counter-Claimant’s argument, according to which it should be entitled
to withhold the payment of 25% of his remuneration until the end of the season
and to proceed with its payment only in case the conditions stipulated in Club Z’s
internal regulations were configured. In this respect, the Claimant/CounterRespondent 1 not only deems the clause to be inapplicable due to its arbitrary
content, but equally claims to have participated in more than 80% of Club Z’s
matches.
Player H, from country E / Club Z, from country E / Club K, from country B
13/19
21.
The
Claimant/Counter-Respondent
1
further
points
out
that
the
Respondent/Counter-Claimant does not explicitly contest the existence of
outstanding remuneration in his favour, but focuses on finding reasons to make
deductions to the amount allegedly due to him, among which the imposition of the
fines detailed in point I.19. above on him. In this respect, he rejects every individual
accusation of Club Z against him. Furthermore, he states never to have been
informed of the existence of such fines, which should therefore be disregarded, as
the result of a unilateral procedure. Based on the foregoing, the Claimant/CounterRespondent 1 rejects the Respondent/Counter-Claimant’s counterclaim and insists
on his claim.
22.
Finally, the members of the DRC noted that, in spite of having been invited twice to
do so, the Counter-Respondent 2 never submitted its comments regarding the
present affair.
23.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant/Counter-Respondent 1,
the counterclaim of the Respondent/Counter-Claimant and the allegations of both
latter parties, was to determine whether the Claimant/Counter-Respondent 1 had a
just cause to terminate the contract on 25 July 2011.
24.
In this respect, the DRC first focused its attention on the Respondent/CounterClaimant’s argument regarding its right to withhold 25% of the player’s
remuneration until the end of the sporting season, as per its internal regulations.
25.
In this context, the DRC deemed it important to recall the wording of the specific
provision of Club Z’s internal regulations, which stipulate the following: “Holding
25% of contract value be paid at season end due to player’s participation.
Participation of 80% of matches numbers is the percentage received by player of
these outstanding (25%) and listing his name in match list considered
participation”.
26.
In this regard, the members of the DRC considered that the possibility granted to
the Respondent/Counter-Claimant to withhold the payment of 25% of the player’s
remuneration until the end of the season and to pay it only in case his participation
in at least 80% of the club’s matches appeared to be of a highly arbitrary nature,
entailing that, de facto, it is left to the complete and utter discretion of the
Respondent/Counter-Claimant to determine the player’s participation in each match
and, consequently, to indirectly reduce the amount of his contractually agreed
remuneration.
27.
In view of the foregoing, the Chamber was of the opinion that such provision in the
club’s internal regulations, which is invoked by the Respondent/Counter-Claimant in
order to justify the non-payment of part of the remuneration to the
Player H, from country E / Club Z, from country E / Club K, from country B
14/19
Claimant/Counter-Respondent 1 was clearly potestative and that, consequently, the
respective argumentation of Club Z in this respect could not be upheld by the DRC.
28.
In continuation, the Chamber focused its analysis on the Respondent/CounterClaimant’s argument, according to which several fines in the total amount of
currency of country E 186,000 were allegedly imposed on the Claimant/CounterRespondent 1, corresponding to the reimbursement of registration fees, late
arrivals, unjustified absences and a refusal to travel with the team, inter alia.
29.
At this point and for the sake of good order, the Chamber recalled the basic
principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules,
according to which a party claiming a right from an alleged fact shall carry the
respective burden of proof.
30.
In relation to the above-mentioned fines, the DRC noted that the Claimant/CounterRespondent 1 claims never having been informed of the existence of any pending
fines against him and that those penalties were, consequently, the result of a
unilateral procedure. The Chamber further observed that the Respondent/CounterClaimant was unable to provide any type of evidence regarding the player’s due
participation in the proceedings leading to the imposition of said fines or of the
disciplinary infringements allegedly committed by him, which he disputed
individually.
31.
In view of the foregoing, the Chamber deemed that, in the absence of substantial
evidence with regard to the existence of the alleged fines, of the player’s
participation in such proceedings or of any disciplinary infringement on his part, it
could not be taken into account in order to justify the non-payment of part of the
remuneration of the Claimant/Counter-Respondent 1.
32.
In this context, and irrespective of the foregoing consideration, the Chamber was
eager to emphasize that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a means to set off outstanding
financial obligations towards players. Consequently, the Chamber decided to reject
the Respondent/Counter-Claimant’s argument in this regard.
33.
In continuation and bearing in mind the content of art. 12 par. 3 of the Procedural
Rules, the Chamber went on to analyse whether the Respondent/Counter-Claimant
had provided any evidence of the effective payment of the remuneration requested
by the Claimant/Counter-Respondent 1 as outstanding. In this respect, the DRC
deemed that the Respondent/Counter-Claimant bore the burden of proof regarding
the fulfilment of all its financial obligations towards the Claimant/CounterRespondent 1, as per the contract.
34.
In this regard, the Chamber noted that the Respondent/Counter-Claimant, one
month after the termination of the contract by the Claimant/Counter-Respondent,
paid him the amount of currency of country E 314,750, as indicated in the
Player H, from country E / Club Z, from country E / Club K, from country B
15/19
statement of The United Bank, confirming the transfer of the aforementioned
amount to the player, provided by the Respondent/Counter-Claimant as evidence
(cf. point I.16. above). The Chamber further noted that the Claimant/CounterRespondent 1 has equally acknowledged the receipt of such amount and updated
his claim accordingly.
35.
With regard to the remaining outstanding amounts claimed by the
Claimant/Counter-Respondent 1, the Chamber noted that the player, on the one
hand, provided a copy of the letter dated 4 April 2011 sent to the country E
Football Association requesting assistance in order to obtain the payment of the
allegedly late salaries, as well as of the DHL waybill dated 7 April 2011, forwarding
said letter to Club Z (cf. point I. 10. above).
36.
The Chamber also observed that the Respondent/Counter-Claimant, on the other
hand, was not able to provide the DRC with any type of substantial evidence
regarding the alleged payment of the player’s entire remuneration as per the
contract or to justify the failure in complying with its contractual obligations, as
explained above. On the contrary, the receipts submitted by the
Respondent/Counter-Claimant appear to confirm the calculations made by the
Claimant/Counter-Respondent 1, concerning the amount of remuneration claimed
as outstanding by him.
37.
Based on the foregoing, the Chamber concluded that when the Claimant/CounterRespondent 1 terminated the contract on 25 July 2011, the amount of currency of
country E 542,750, corresponding to more than half of the player’s yearly
remuneration, was outstanding. The amount of currency of country E 314,750 was
paid by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 1
only one month after the termination of the contract, i.e. on 25 August 2011.
Consequently, the members of the DRC concluded that the Claimant/CounterRespondent 1 had a just cause to terminate the employment contract with the
Respondent/Counter-Claimant on 25 July 2011 and that the Respondent/CounterClaimant was to be held responsible for the breach of contract at hand.
38.
Having established the aforementioned, the Chamber focused its attention on the
consequences of the breach of contract without just cause on the part of the
Respondent/Counter-Claimant. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant/Counter-Respondent 1 is
entitled to receive from the Respondent/Counter-Claimant an amount of money as
compensation for breach of contract in addition to any outstanding payments on
the basis of the relevant contract.
39.
Prior to establishing the amount of compensation for breach of contract due to the
Claimant/Counter-Respondent 1 by the Respondent/Counter-Claimant, the DRC
proceeded with the calculation of the outstanding monies payable to the
Claimant/Counter-Respondent 1 under the terms of the employment contract until
the date of termination, i.e. on 25 July 2011.
Player H, from country E / Club Z, from country E / Club K, from country B
16/19
40.
In this regard, the Chamber noted that for the season 2010/2011 the
Claimant/Counter-Respondent should have received the total amount of currency of
country E 1,000,000 as remuneration. In addition, the DRC noted that he should also
have received the total amount of currency of country E 56,250 as rent expenses for
the period of May 2010 to July 2011, i.e. 15 months.
41.
Subsequently, the members of the Chamber noted that the Claimant/CounterRespondent 1 acknowledged having received from the Respondent/CounterClaimant the amount of currency of country E 513,500 during the course of the
contract as well as currency of country E 314,750 on 25 August 2011, i.e. after the
termination. In accordance with the letter dated 7 August 2011, provided by the
Respondent/Counter-Claimant and mentioned in point I.16. above, these currency
of country E 314,750 corresponded to currency of country E 278,750 as net income
for the season 2010/2011 and currency of country E 36,000 as outstanding
accommodation allowances for said season. Thus, the DRC concluded that the
amount of currency of country E 207,750 as remuneration and currency of country E
20,250 as rent expenses had remained unpaid by the Respondent/Counter-Claimant
to the Claimant/Counter-Respondent 1.
42.
As per the player’s claim for the payment of allegedly outstanding collective match
bonuses, the DRC observed that the Claimant/Counter-Respondent 1 failed to
specify his request and to provide proof of his entitlement to receive such amounts
from the Respondent/Counter-Claimant. Thus, such request
of the
Claimant/Counter-Respondent 1 for outstanding collective match bonuses had to be
rejected.
43.
Taking into consideration the player’s claim as well as the reasons previously
exposed, the DRC concluded that, in accordance with the general legal principle of
pacta sunt servanda, the Respondent/Counter-Claimant must fulfill its obligations as
per the employment contract concluded with the Claimant/Counter-Respondent 1
and, consequently, is to be held liable to pay the total amount of currency of
country E 228,000, in remuneration and rent expenses. The bonus payments,
procedural costs and legal fees are to be rejected.
44.
The Chamber further established that an interest rate of 5% p.a. would apply over
the aforementioned amount, as from 25 July 2011, as per the claim of the
Claimant/Counter-Respondent 1.
45.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber firstly 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 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
Player H, from country E / Club Z, from country E / Club K, from country B
17/19
benefits due to the Claimant/Counter-Respondent 1 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.
46.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains 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.
In this regard, the Chamber established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
47.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract until the
end of the 2012/2013 season. The Chamber concluded that the amount of currency
of country E 2,340,000 serves as the basis for the final determination of the amount
of compensation for breach of contract.
48.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 1 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
the amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
49.
Indeed, the Claimant/Counter-Respondent 1 signed a new employment contract
with the Counter-Respondent 2, Club K. In accordance with the pertinent
employment contract, which has been made available by the Claimant/CounterRespondent 1, valid as from 1 August 2011 until 30 June 2013, the
Claimant/Counter-Respondent 1 was entitled to receive the amounts detailed in
point I.43. above.
50.
Consequently, the Chamber established that the value of the new employment
contract concluded between the Claimant/Counter-Respondent 1 and the CounterRespondent 2 for the period as from 25 August 2011 until and including May 2013,
i.e. the end of the sporting season in country E, amounted to approximately
currency of country E 1,720,000, after the conversion.
51.
In this respect and bearing in mind all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the
Respondent/Counter-Claimant must pay the amount of currency of country E
620,000 to the Claimant/Counter-Respondent 1, plus 5% interest p.a. as of 16
September 2011, i.e. the date of the claim, which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present matter,
Player H, from country E / Club Z, from country E / Club K, from country B
18/19
in addition to the amount of currency of country E 228,000 as outstanding
payments.
52.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim filed by the Claimant is rejected and that the
counterclaim of the Respondent/Counter-Claimant is also rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent 1, Player H, is admissible.
2.
The claim of the Claimant/Counter-Respondent 1 is partially accepted.
3.
The Respondent/Counter-Claimant, Club Z, is ordered to pay to the
Claimant/Counter-Respondent 1 outstanding remuneration in the amount of
currency of country E 228,000, plus 5% interest p.a. as of 25 July 2011 until the date
of effective payment, within 30 days as from the date of notification of this
decision.
4.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent 1
compensation for breach of contract in the amount of currency of country E 620,000,
plus 5% interest p.a. as of 16 September 2011 until the date of effective payment,
within 30 days as from the date of notification of this decision.
5.
If the aforementioned amounts plus interest are not paid within the abovementioned time limits, the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee for its consideration and a formal decision.
6.
Any further claims lodged by the Claimant/Counter-Respondent 1 are rejected.
7.
The Claimant/Counter-Respondent 1 is directed to inform the Respondent/CounterClaimant 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.
8.
The counterclaim of the Respondent/Counter-Claimant is rejected.
*****
Player H, from country E / Club Z, from country E / Club K, from country B
19/19
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
Deputy Secretary General
Encl.
CAS directives
Player H, from country E / Club Z, from country E / Club K, from country B
20/19