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 matter between the player,
Player G, from country P
as Claimant/Counter-Respondent
and the club,
Club B, from country T
as Respondent/Counter-Claimant
and
Club O, form country P
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 2 July 2010, Player G, from country P (hereinafter: the Claimant/CounterRespondent) and Club B, from country T (hereinafter: the Respondent/CounterClaimant) concluded an employment contract (hereinafter: the contract) valid
as from the date of signature until 31 May 2012.
2.
According to clause 9 of the contract the “Conflict Settlement Board is
exclusively authorized for the settlement of conflicts emerging from this
Agreement. The Parties may only apply to the country T Football Federation
Arbitration Board within the due term against the decisions to be taken by the
country T Football Federation Arbitration Board”.
3.
Moreover, according to the Claimant/Counter-Respondent, also on 2 July 2010,
the parties concluded a second contract (hereinafter: the agreement), which
“constituted a crucial prerequisite for the Player to sign the Contract, because
the club did not give to the Player the exact translation of [the contract]” and
which was also valid from 2 July 2010 until 31 May 2012.
4.
In this respect, the Claimant/Counter-Respondent argues that the
Respondent/Counter-Claimant told him that “the principles and terms
expressed under the Contract would be the same under the Agreement, and
that other clauses would be secondary and mere impositions of Regulations”.
5.
The agreement further states that “…both parties accept that they will sign
the official country T Football Federation Contract, [in case] of a dispute FIFA
and CAS will have the jurisdiction…”.
6.
According to both the contract and the agreement, the Claimant/CounterRespondent was entitled to receive, inter alia, the following:
a. For the season 2010/2011 the total remuneration of EUR 450,000 as
follows:
i.
ii.
iii.
iv.
EUR 50,000 as “first advance payment” on 2 July 2010;
EUR 50,000 as “second advance payment” on 25 August 2010;
EUR 50,000 as “third advance payment” on 25 September 2010;
EUR 300,000 as salary payable in 10 monthly instalments of EUR
30,000 on the 25th of each month from August 2010 until May
2011.
b. For the season 2011/2012 the total remuneration of EUR 550,000.
Player G, from country P / Club B, from country T / Club O, from country P
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7.
In this framework, on 7 January 2011, the Claimant/Counter-Respondent
lodged a claim against the Respondent/Counter-Claimant in front of FIFA,
asking as follows:
a. EUR 250,000 as outstanding remuneration due until 30 December 2010;
b. EUR 2,564.45 “of default interests calculated over each of the (…)
remunerations, at a rate of 5% from the date of the respective due date,
until 6th January 2011”;
c. EUR 34.25 “per each day of delay, also as default interests at a rate of 5%,
from 7th January 2011 until effective and integral payment of the referred
€250,000.00”;
d. EUR 670,000 as compensation for breach of contract plus 5% interest.
8.
In particular, the Claimant/Counter-Respondent explained that the
Respondent/Counter-Claimant did not comply with its payment obligations. In
this respect, the Claimant/Counter-Respondent argues that on 30 December
2010, the Respondent/Counter-Claimant had only paid to him the first advance
payment due on 2 July 2010 and his salary of “July 2010”. Therefore, the
Respondent/Counter-Claimant owed him the second and third advance
payments due on 25 August 2010 and 25 September 2010 respectively in the
amount of EUR 100,000 and his salaries of August, September, October,
November and December 2010 in the total amount of EUR 150,000.
9.
The Claimant/Counter-Respondent further argued that by means of three
letters dated 10, 14 and 20 December 2010, he put the Respondent/CounterClaimant in default for the outstanding payments, all of which remained
unanswered.
10.
Consequently, on 28 December 2010, the Claimant/Counter-Respondent sent
to the Respondent/Counter-Claimant a termination letter, by means of which
he “terminated unilaterally the labour sportive contract with [the
Respondent/Counter-Claimant], invoking just cause…”.
11.
On 15 February 2011, the Respondent/Counter-Claimant replied to the claim
firstly questioning FIFA’s competence to deal with the present matter.
According to the Respondent/Counter-Claimant, “the competent authority in
the dispute in question is the country T Football Association and country T
Football Association’s Dispute Resolution Board (DRB) and country T Football
Association’s Arbitration Tribunal”.
12.
In continuation, the Respondent/Counter-Claimant argues that “[the
Claimant/Counter-Respondent] has agreed to the provision as to the fact that
country T Football Association is exclusively authorised in the contract between
him and the club…” and that “the power to settle any disputes between the
parties is exclusively granted to the country T Football Association’s DRB and
Player G, from country P / Club B, from country T / Club O, from country P
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country T Football Association’s Arbitration Tribunal pursuant to the Article 9
of the contract…”.
13.
Furthermore, the Respondent/Counter-Claimant challenges the validity of the
agreement and states that “[the agreement] has been issued without
informing [the Respondent/Counter-Claimant] and there is no authorised
signature of the [Respondent/Counter-Claimant] on the document…” and
thus, “the representations as to the fact that CAS and FIFA shall be authorised
in case of dispute as contained in the document is of no importance at all”.
14.
In addition, the Respondent/Counter-Claimant argues that on 12 January 2011
it lodged a claim against the Claimant/Counter-Respondent in front of the
Dispute Resolution Board of the country T Football Federation (country T
Football Federation DRC).
15.
As to the substance, the Respondent/Counter-Claimant alleges having paid to
the Claimant/Counter-Respondent the first advance payment due on 2 July
2010 in the amount of EUR 50,000 and a salary on 1 October 2010 for the
amount of EUR 30,000.
16.
The Respondent/Counter-Claimant claims that the Claimant/CounterRespondent failed to fulfill his obligations contained in the contract since the
latter only played 5 matches and “did not make any contribution for the club
by not even attending the training sessions”. In this respect, the
Respondent/Counter-Claimant argues that after the coach who brought him to
the club left, the Claimant/Counter-Respondent started to “act in an
undisciplined matter, to have improper behaviors, and disturb the harmony.
Therefore, [the Claimant/Counter-Respondent] was left out of the squad for an
indefinite period of time as from 5 November 2010 by the decision of the
board of governors” and thus, he “was not entitled to the salaries of
November and December”.
17.
In
addition,
the
Respondent/Counter-Claimant
argues
that
the
Claimant/Counter-Respondent failed to attend training sessions on 30
November 2010, 13 December 2010, 15 December 2010 and 20 December 2010
without authorization. In this regard, the Respondent/Counter-Claimant
provided documentation in the country T language only.
18.
In view of the foregoing, the Respondent/Counter-Claimant claims that the
Claimant/Counter-Respondent “failed to fulfil his contractual obligations”.
19.
Additionally,
the
Respondent/Counter-Claimant
alleges
that
“[the
Claimant/Counter-Respondent] only has a claim for 120 days corresponding to
the salaries of September 2010, October 2010, November 2010 and December
2010. However, the claim for salaries of the said months was required to be
Player G, from country P / Club B, from country T / Club O, from country P
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paid without allowing the 30-day period, i.e. it was not duly claimed” and
therefore, “the player terminated the contract in an unjust manner”.
20.
Furthermore, the Respondent/Counter-Claimant stresses that the amount
asked by the Claimant/Counter-Respondent is “impertinent”. In this respect,
the Respondent/Counter-Claimant refers to the new contract signed between
the Claimant/Counter-Respondent and the Club O, from country P and argues
that “[the Claimant/Counter-Respondent] (…) shall keep receiving his salaries
from [Club O] for the second half of the 2010-2011 and for the 2011-2012
football season” otherwise “[the Claimant/Counter-Respondent] shall have
received payment from two different clubs for the same period of time” and
therefore, causing his “unjust enrichment”.
21.
On 17 March 2011, in an unsolicited correspondence, the Claimant/CounterRespondent informed FIFA that the country T Football Federation DRC had
issued a decision regarding the claim of the Respondent/Counter-Claimant
against him, in which the members of the country T Football Federation DRC
rejected the claim of the Respondent/Counter-Claimant due to the exception
of lis alibi pendens, since his claim was brought to FIFA’s DRC prior to the
Respondent/Counter-Claimant’s claim to the country T Football Federation
DRC.
22.
On 4 August 2011, the Respondent/Counter-Claimant lodged a counterclaim
against the Claimant/Counter-Respondent for the “unjust termination of the
contract”. In this respect, the Respondent/Counter-Claimant claims that the
termination of the contract is “contrary to the country T Football Federation
instructions”.
23.
The Respondent/Counter-Claimant argues that according to clause 5 of the
contract, “the player should obey the FIFA, UEFA and country T Football
Federation [statutes] and regulations”. In this regard, the Respondent/CounterClaimant stresses that according to article 28/1 of the “Instructions on
Professional Football Players’ Status and Transfers” (country T Football
Federation regulations), “players should notify a written warning 30 days prior
for payment of the amounts claimed to be unpaid” and that “in case no
payments are made, (…) the players shall have the right to terminate the
contract within 7 days”.
24.
The Respondent/Counter-Claimant further stresses that since the
Claimant/Counter-Respondent did not comply with the above-mentioned
provision, the termination is “nonprocedural and unjust in terms of manner
(…) because if [the Claimant/Counter-Respondent] had given a time of 30 days
for the payment with a duly written warning, (…) [the Respondent/CounterClaimant] would have paid him his receivables…”.
Player G, from country P / Club B, from country T / Club O, from country P
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25.
On account of the above, the Respondent/Counter-Claimant requested EUR
50,000 due to the “unjust termination of the contract” and requests for
“sportive ban”.
26.
In his reply to the counterclaim, the Claimant/Counter-Respondent stressed
that the Respondent/Counter-Claimant never disputed any of the facts of the
claim and therefore it tacitly accepted them.
27.
In addition, the Claimant/Counter-Respondent argues that the provision
regarding the notification to which the Respondent/Counter-Claimant refers,
was never communicated to him and the latter did not prove its existence.
Moreover, said rule was not part of his contract with the Respondent/CounterClaimant.
28.
Furthermore, the Claimant/Counter-Respondent claims that in any case, the
contract establishes specific dates of payment and that “the respective delay
exceeds much more than 30 days”. What is more, he stresses that he did notify
the Respondent/Counter-Claimant of the overdue salaries.
29.
Finally, the Claimant/Counter-Respondent reiterated all the statements of his
claim.
30.
In its duplica, the Respondent/Counter-Claimant argued that the case brought
by the Respondent/Counter-Claimant against the Claimant/CounterRespondent still continues in the “Arbitration Board which is a higher
authority of the country T Football Federation” and reiterated all its previously
raised arguments.
31.
On 23 November 2011, the Claimant/Counter-Respondent communicated to
FIFA that on 14 January 2011 he entered into a new labor relationship with the
Club O, from country P, valid as from 15 January 2011 until 30 June 2012.
32.
In accordance with the new contract, the Claimant/Counter-Respondent was
entitled, inter alia, to the following:
a. EUR 50,000 for the season 2010/2011 paid in 5 equal, monthly and
consecutive instalments with a value of EUR 10,000 each, payable
between 5 February 2011 and 5 June 2011;
b. EUR 150,000 for the season 2011/2012 paid in 10 equal, monthly and
consecutive instalments with a value of EUR 15,000 each, payable
between 5 September 2011 and 5 June 2012;
Player G, from country P / Club B, from country T / Club O, from country P
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c. EUR 30,000 as “signing premium” to be paid in 5 equal, monthly and
consecutive instalments payable between 1 February 2011 and 1 June
2011.
33.
Having been asked by FIFA to provide evidence that the present matter should
be dealt with by the arbitration bodies of the country T Football Federation,
the Respondent/Counter-Claimant only mentioned that its new administration
wanted to amicable settle the matter and requested for FIFA’s intervention.
34.
Nevertheless, the Claimant/Counter-Respondent reverted to FIFA and informed
that no amicable settlement had been reached.
35.
For its part, Club O claimed that the Claimant/Counter-Respondent confirmed
to it that he “had no bound with any club” since the latter had terminated his
previous contract due to “serious and guilty breach by [the
Respondent/Counter-Claimant]”.
36.
Furthermore, Club O states that it only contacted the Claimant/CounterRespondent in January 2011 i.e. when the Claimant/Counter-Respondent was
already “free” and that it never received nor was notified of any request or
demand from the Respondent/Counter-Claimant.
37.
Finally, on 4 April 2014, the Respondent/Counter-Claimant requested the
suspension of the present proceedings due to some political issues in country T.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
DRC or the Chamber) analysed whether it was competent to deal with the
matter at stake. In this respect, it took note that the present matter was
submitted to FIFA on 7 January 2011. Consequently, the 2008 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to
the matter at hand (cf. art. 21 of the 2008 and 2012 edition 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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2012), the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
Player G, from country P / Club B, from country T / Club O, from country P
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3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation involving a country P player and
a country T club regarding an alleged breach of the employment contract
concluded between the aforementioned parties.
4.
However, the Chamber acknowledged that the Respondent/Counter-Claimant
contested the competence of FIFA’s deciding bodies on the basis of clause 9 of
the contract, which, according to the Respondent/Counter-Claimant, excludes
the competence of the Dispute Resolution Chamber to adjudicate on the
present matter.
5.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and
Transfer of Players it is competent to deal with a matter such as the one at
hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players
and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20
December 2005. Equally, the members of the Chamber referred to the
principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations, which came into force on 1 January 2008.
6.
Having said this, the DRC turned its attention to the principles of fair
proceedings and equal representation of players and clubs and underlined that
these principles are fundamental elements to be fulfilled, in order for a
national dispute resolution chamber to be recognised as such.
7.
In this respect, the Chamber noted that, despite having been asked to do so by
letter dated 22 January 2014, the Respondent/Counter-Claimant failed to
provide the DRC with any documentary evidence which could prove that the
“Conflict Settlement Board” or the “country T Football Federation Arbitration
Board” of the country T Football Federation meet the requirements
established in art. 22 lit. b) of the Regulations on the Status and Transfer of
Players.
8.
On account of all the above and referring to the principle of the burden of
proof contained in art. 12 par. 3 of the Procedural Rules, the Chamber
established that the Respondent/Counter-Claimant’s objection towards the
competence of FIFA to deal with the present matter has to be rejected, and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit.
b) of the Regulations on the Status and Transfer of Players, to consider the
present matter as to the substance.
Player G, from country P / Club B, from country T / Club O, from country P
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9.
In continuation, the Chamber analysed which edition of the 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 par. 2 of the Regulations
on the Status and Transfer of Players (editions 2010 and 2012) and considering
that the present claim was lodged on 7 January 2011, the 2010 edition of said
Regulations is applicable to the present matter as to the substance.
10.
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.
11.
First of all, the members of the Chamber acknowledged that, on 2 July 2010,
the Claimant/Counter-Respondent and the Respondent/Counter-Claimant
concluded an employment contract as well as an agreement both valid as from
2 July 2010 until 31 May 2012. As to the financial terms of both the contract
and the agreement, the Chamber took note that it had been agreed upon
between the parties that for the season 2010-2011 the Respondent/CounterClaimant would remunerate the Claimant/Counter-Respondent as follows:
i.
ii.
iii.
iv.
EUR 50,000 as “first advance payment” on 2 July 2010;
EUR 50,000 as “second advance payment” on 25 August 2010;
EUR 50,000 as “third advance payment” on 25 September 2010;
EUR 300,000 as salary payable in 10 monthly instalments of EUR
30,000 on the 25th of each month from August 2010 until May
2011.
12.
In continuation, the members of the Chamber noted that it was undisputed
that, on 28 December 2010, the Claimant/Counter-Respondent terminated the
contract entered into by the parties on the basis of outstanding remuneration
in the total amount of EUR 250,000.
13.
In this respect, the Chamber acknowledged that according to the
Claimant/Counter-Respondent, at the time of the termination of the contract
on 28 December 2010, the total amount of EUR 150,000, corresponding to
salaries as from August 2010 until December 2010, as well as EUR 100,000
relating to the first and second advance payments due on 25 August 2010 and
25 September 2010 respectively, were yet to be paid by the
Respondent/Counter-Claimant.
Player G, from country P / Club B, from country T / Club O, from country P
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14.
Conversely, the Chamber noted that the Respondent/Counter-Claimant is of
the opinion that the Claimant/Counter-Respondent had no just cause to
terminate the contract.
15.
In this regard, according to the Respondent/Counter-Claimant, the
Claimant/Counter-Respondent failed to fulfill his obligations as per the
employment contract since i) he “did not make any contribution for [the
Respondent/Counter-Claimant] by not even attending the training sessions”, ii)
he started “to act in an undisciplined manner, to have improper behaviors”
and iii) he was “left out of the squad for an indefinite period of time” by a
decision of the Respondent/Counter-Claimant’s board of directors. Therefore,
the members of the Chamber acknowledged that the Respondent/CounterClaimant stressed that the Claimant/Counter-Respondent was not entitled to
his salaries of November and December 2010.
16.
Furthermore, the DRC took note that the Respondent/Counter-Claimant
argued that “the claim for salaries of the said months was required to be paid
without allowing the 30-day period, i.e. was not duly claimed”. In this respect,
the members of the Chamber acknowledged that, according to the
Respondent/Counter-Claimant, art. 28/1 of the country T Football Federation
Regulations stipulates that: “the player should notify a written warning 30
days prior for payment of the amounts claimed to be unpaid..”.
17.
On account of the above, the DRC noted that the Respondent/CounterClaimant lodged a counterclaim against the Claimant/Counter-Respondent,
maintaining that the termination done by the latter was “nonprocedural and
unjust in terms of manner (…) because if the player had given a time of 30
days for the payment with a duly written warning (…) the club would have
paid him his receivables”. Thus, the Claimant/Counter-Respondent must be
ordered to pay EUR 50,000 to the Respondent/Counter-Claimant.
18.
The Chamber further took note of the argumentation of the
Claimant/Counter-Respondent who rejected the Respondent/CounterClaimant’s claim sustaining that the above-mentioned provision was never
notified to him and the Respondent/Counter-Claimant did not prove its
existence. What is more, said provision was not part of the contract concluded
between the parties.
19.
In view of the foregoing considerations and the opposite positions of the
parties, the Chamber deemed that the underlying issue in this dispute,
considering the claim and counterclaim lodged by the parties, was to
determine whether the employment contract had been unilaterally terminated
with or without just cause by the Claimant/Counter-Respondent, and which
party was responsible for the early termination of the contractual relationship
in question.
Player G, from country P / Club B, from country T / Club O, from country P
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20.
Having said this, the DRC turned its attention to the Respondent/CounterClaimant allegations in respect that the Claimant/Counter-Respondent would
not be entitled to his salaries of November and December 2010 due to his
alleged misbehavior and absences from trainings with the team on several
occasions.
21.
At this point, the DRC wished to recall that according to the legal principle of
the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any
party claiming a right on the basis of an alleged fact carries the burden of
proof.
22.
With those considerations in mind, the members of the DRC were of the
unanimous opinion that the documentary evidence presented by the
Respondent/Counter-Claimant is not sufficient in order to prove the alleged
absences of the Claimant/Counter-Respondent. In this regard, the Chamber
emphasized, while referring to art. 9 par. 1 of the Procedural Rules, which
stipulates that petitions to FIFA shall be submitted in one of the four official
FIFA languages of FIFA (English, Spanish, French and German), that the
Respondent/Counter-Claimant had not indicated any further details regarding
the alleged absences and that the documentation supposedly proving such
absences were only presented in the country T language without any
translation into an official FIFA language, despite the fact that the FIFA
administration informed the Respondent/Counter-Claimant of the abovementioned provision on several occasions.
23.
Therefore, the allegation of the Respondent/Counter-Claimant in respect that,
due to the misbehavior and absences of the Claimant/Counter-Respondent, he
was not entitled to his salaries of November and December 2010 needs to be
rejected. What is more, the Chamber stressed that it remained uncontested
that the salary for September and October 2010 as well as the advance
payments due on 25 August and 25 September 2010 had not been paid.
24.
In continuation, the Chamber acknowledged the position of the
Respondent/Counter-Claimant in respect that the termination of the contract
by the Claimant/Counter-Respondent was not made in accordance with article
28/1 of the country T Football Federation regulations, which, allegedly, obliged
the Claimant/Counter-Respondent to provide a written warning to the
Respondent/Counter-Claimant of any outstanding payment with a grace
period of 30 days.
25.
In this respect, the DRC found, while once again recalling the principle of the
burden of proof, that the Respondent/Counter-Claimant had not submitted
any evidence that could corroborate its allegations in this regard. The DRC
wished to point out that the applicable regulations to the matter at hand are
Player G, from country P / Club B, from country T / Club O, from country P
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the FIFA regulations and not those of the country T Football Federation. In any
case, the Respondent/Counter-Claimant had not submitted any evidence that
could corroborate the actual content of art. 28/1 of the directives of the
country T Football Federation. Also, the members of the Chamber wished to
point out that no such termination procedure was stipulated in the
employment contract, reason for which the Chamber deemed that the
aforementioned art. 28/1 was not directly applicable to the contractual
relationship
between
the
Claimant/Counter-Respondent
and
the
Respondent/Counter-Claimant.
26.
Equally, the Chamber emphasized that it is undisputed that the
Claimant/Counter-Respondent put the Respondent/Counter-Claimant in
default of payment on several occasions, mainly, by means of the letters dated
10, 14 and 20 December 2010, all of which remained unanswered.
27.
On account of all the above circumstances, the Chamber decided that it could
be established not only that the Respondent/Counter-Claimant had seriously
neglected its contractual obligations towards the Claimant/CounterRespondent
in
a
continuous
and
constant
manner,
i.e.
the
Respondent/Counter-Claimant had failed to remunerate the Claimant/CounterRespondent for a substantial period of time, but that the Claimant/CounterRespondent had just cause to unilaterally terminate the employment contract
on 28 December 2010, after having previously put the club in default.
Consequently, the Respondent/Counter-Claimant is to be held liable for said
early termination of the employment contract with just cause by the
Claimant/Counter-Respondent.
28.
Bearing in mind the previous considerations, the Chamber went on to deal
with the consequences of the early termination of the employment contract
with just cause by the Claimant/Counter-Respondent.
29.
First of all, the members of the Chamber concurred that the
Respondent/Counter-Claimant must fulfill its obligations as per employment
contract in accordance with the general legal principle of pacta sunt servanda.
Consequently, the Chamber decided that the Respondent/Counter-Claimant is
liable to pay to the Claimant/Counter-Respondent the remuneration that was
outstanding at the time of the termination i.e. EUR 220,000 consisting of EUR
100,000 as per the second and third advance payments due on 25 August 2010
and 25 September 2010 respectively, as well as EUR 120,000 as per his salaries
of September, October, November and December 2010. The Chamber stressed
that, contrary to the Claimant’s opinion, no salary was due for the month of
July 2010, since the contract clearly stipulated that the amount of EUR 300,000
was payable in 10 monthly instalments starting as from August 2010.
Therefore, the Chamber decided that the salary the Claimant/Counter-
Player G, from country P / Club B, from country T / Club O, from country P
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Respondent alleged to have received for July 2010, should in fact be attributed
to the month of August 2010.
30.
In addition, taking into consideration the Claimant/Counter-Respondent’s
claim, the Chamber decided to award the latter interest on said amount at the
rate of 5% p.a. as of the due dates of each amount.
31.
In continuation, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant/Counter-Respondent is entitled to
receive from the Respondent/Counter-Claimant compensation for breach of
contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
32.
In this context, the Chamber outlined that, in accordance with said provision,
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.
33.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
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.
34.
Having recalled the aforementioned, and in order to evaluate the
compensation to be paid by the Respondent/Counter-Claimant, the members
of the Chamber took into account the remuneration due to the
Claimant/Counter-Respondent in accordance with the employment contract as
well as the time remaining on the same contract, along with the professional
situation of the Claimant/Counter-Respondent after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the
termination of the contract, this would run for another seventeen months.
Consequently, the Chamber concluded that the remaining value of the
contract as from its early termination by the Claimant/Counter-Respondent
until its regular expiry amounts to EUR 700,000, i.e. EUR 150,000 for the
salaries as from January 2011 to May 2011 and EUR 550,000 for the season
2011/2012, an amount which shall serve as the basis for the final determination
of the amount of compensation for breach of contract.
Player G, from country P / Club B, from country T / Club O, from country P
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35.
In continuation, the Chamber remarked that the Claimant/CounterRespondent had found new employment with a club from Club O, from
country P, valid “for the second half of the 2010-2011 and for the 2011-2012
football season”. In accordance with the employment contract signed between
the Claimant/Counter-Respondent and Club O, during the validity of the
contract, the Claimant/Counter-Respondent was entitled to a total amount of
EUR 230,000. Consequently, in accordance with the constant practice of the
Dispute Resolution Chamber and the general obligation of the
Claimant/Counter-Respondent to mitigate his damages, such remuneration
under the new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract.
36.
In view of all of the above, the Chamber decided that the
Respondent/Counter-Claimant must pay the amount of EUR 470,000 to the
Claimant/Counter-Respondent as compensation for breach of contract, which is
considered by the Chamber to be a reasonable and justified amount, as well as
5% interest p.a. over said amount as from the date of the claim, i.e. 7 January
2011, until the date of effective payment.
37.
In continuation, the Chamber focused on the further consequences of the
breach of contract in question and, in this respect, addressed the question of
sporting sanctions against the Respondent/Counter-Claimant in accordance
with art. 17 par. 4 of the Regulations. The cited provision stipulates that, in
addition to the obligation to pay compensation, sporting sanctions shall be
imposed on any club found to be in breach of contract during the protected
period.
38.
Subsequently, the members of the Chamber referred to item 7 of the
“Definitions” section of the Regulations, which stipulates, inter alia, that the
protected period shall last “for three entire seasons or three years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a
contract, where such contract is concluded after the 28th birthday of the
professional”. In this respect, the Chamber took note that the employment
contract was terminated by the Claimant/Counter-Respondent with just cause
on 28 December 2010, i.e. within 6 months following the entry into force of
the contract at the basis of the dispute. Therefore, and irrespective of the
player’s age, the Chamber concluded that the breach of contract by the
Respondent/Counter-Claimant had occurred within the protected period.
39.
As a result, by virtue of art. 17 par. 4 of the Regulations and also considering
that the Respondent/Counter-Claimant had on a previous occasion been found
in breach of an employment contract without just cause by the Chamber, the
Player G, from country P / Club B, from country T / Club O, from country P
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Chamber decided that the Respondent/Counter-Claimant shall be banned from
registering any new players, either nationally or internationally, for the two
next entire and consecutive registration periods following the notification of
the present decision. In this regard, the Chamber emphasized that apart from
the Respondent/Counter-Claimant having clearly acted in breach of the
contract within the protected period in the present matter, the
Respondent/Counter-Claimant was also found to have breached the contract
with the player J (case ref. nr. 12-00XXX/XXX) and the player F (case ref. nr. 110XXXX/XXX).
40.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further request filed by the Claimant/CounterRespondent is rejected. Equally, and considering that the Respondent/CounterClaimant was, overall, found to be in breach of contract without just cause, the
counterclaim of the Respondent/Counter-Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player G, is admissible.
2.
The claim of the Claimant/Counter-Respondent is partially accepted.
3.
The Respondent/Counter-Claimant, Club B, has to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 220,000 plus 5% interest until
the date of effective payment as follows:
a. 5% p.a. as of 26 August 2010 on the amount of EUR 50,000;
b. 5% p.a. as of 26 September 2010 on the amount of EUR 50,000;
c. 5% p.a. as of 26 September 2010 on the amount of EUR 30,000;
d. 5% p.a. as of 26 October 2010 on the amount of EUR 30,000;
e. 5% p.a. as of 26 November 2010 on the amount of EUR 30,000;
f. 5% p.a. as of 26 December 2010 on the amount of EUR 30,000.
4.
The Respondent/Counter-Claimant has to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 470,000 plus 5%
interest p.a. on said amount as from 7 January 2011 until the date of effective
payment.
Player G, from country P / Club B, from country T / Club O, from country P
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5.
In the event that the amounts due to the Claimant/Counter-Respondent in
accordance with the above-mentioned numbers 3. and 4. are not paid by the
Respondent within the stated time limits, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
6.
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.
7.
Any further claim lodged by the Claimant/Counter-Respondent, is rejected.
8.
The counterclaim of the Respondent/Counter-Claimant, is rejected.
9.
The Respondent/Counter-Claimant shall be banned from registering any new
players, either nationally or internationally, for the two next entire and
consecutive registration periods following the notification of the present
decision.
*****
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
Player G, from country P / Club B, from country T / Club O, from country P
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For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player G, from country P / Club B, from country T / Club O, from country P
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