Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2015,
in the following composition:
Geoff Thompson (England), Chairman
Damir Vrbanovic (Croatia), member
Alejandro Marón (Argentina), member
Rinaldo Martorelli (Brazil), member
Johan van Gaalen (South Africa), member
on the matter between the player,
Player A, country B
as Claimant / Counter-Respondent
and the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country F
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 3 February 2011, the player from country B, Player A (hereinafter, the Claimant /
Counter-Respondent), born on 5 April 1983, signed an employment contract
(hereinafter, the contract) with the club from country D, Club C (hereinafter, the
Respondent / Counter-Claimant), valid as from the date of signature until 31 July
2014.
2. According to clause 8 of the contract, the Claimant / Counter-Respondent was
entitled to a monthly salary in the amount of 18,000.
3. In addition, Appendix 1 of the contract included the following clauses:
“1. Since February, 03rd 2011 on July, 31st 2012g. (Inclusive) the Club monthly pays
to the Player on 50 000 euro at a Central Bank rate of the country D at date of
payment.
1.1. Till March, 10th, 2011 it is in addition paid 300 000 (…) euro at a Central Bank
rate of the country D at date of Payment.
2. Since August, 01st 2012 on July, 31st 2013g. (Inclusive) the Club monthly pays to
the Player on 41 666 (…) euro at a Central Bank rate of the country D at date of
payment.
2.1. Till September 01st, 2012 it is in addition paid 300 000 (…) euro at a Central
Bank rate of the country D at date of payment.
3. Since August 01st 2013 on July 31st 2014g. (Inclusive) the Club monthly pays to
the Player on 41 666 euro at a Central Bank rate of the country D at date of
payment.
3.1. Till September, 01st, 2013 it is in addition paid 300 000 (…) euro at a Central
Bank rate of the country D at date of payment.
(…)
6. The club pays to the Football player habitation rent for the command location
monthly at a rate of 300 US dollars at a Central Bank rate of the country D at date
of payment.”
4. On 13 December 2012, the Claimant / Counter-Respondent lodged a claim before
FIFA against the Respondent / Counter-Claimant, and requested his contract to be
declared as terminated with just cause. In addition, he requested the payment of
the following amounts:
- 63,000, representing outstanding half salaries from June 2012 until November
2012, in accordance with the contract;
- 18,000, representing the outstanding salary for December 2012, in accordance
with the contract;
- EUR 145,831, corresponding to outstanding half salaries between June 2012 and
November 2012, in accordance with Appendix 1 of the contract;
- EUR 41,666, corresponding to the outstanding salary for December 2012, in
accordance with Appendix 1 of the contract;
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Player A, country B / Club C, country D / Club E, country F
2
- EUR 300,000 for the additional payment payable on 1 September 2012;
- 342,000 and EUR 1,091,654 for damages for breach of contract, equaling to the
income the Claimant / Counter-Respondent would have earned until the original
date of termination of the contract;
- EUR 35,100 for operation and rehabilitation expenses.
5. In addition, the Claimant / Counter-Respondent requested sanctions to be imposed
on the Respondent / Counter-Claimant.
6. According to the Claimant / Counter-Respondent, from June 2012 until November
2012, “the [Respondent / Counter-Claimant] without any valid reason deducted the
half (50%) of the [Claimant / Counter-Respondent]’s salary and/or benefits, claiming
that the [Claimant / Counter-Respondent] was injured”, and that he complained
about this “immediately and many times”.
7. In this respect, the Claimant / Counter-Respondent declared that he was injured
during a football match of the National Team of country B and that, following this
injury, he went to country G for treatment and was operated on 14 June 2012.
Subsequently, he stated that he had to undergo a recovery treatment in country H.
According to the Claimant / Counter-Respondent, he had to bear all treatment
costs.
8. On 4 December 2012, the Claimant / Counter-Respondent sent a fax via his lawyer
to the Respondent / Counter-Claimant to request the payment of an outstanding
amount of EUR 405,000.
9. Subsequently, the Claimant / Counter-Respondent stated that, on 9 December 2012,
he was forced to sign a statement dated 6 December 2012 by means of which he
renounced to have any financial claim against the Respondent / Counter-Claimant
for the period comprised between 1 March 2012 and 31 October 2012. According to
the Claimant / Counter-Respondent, he was forced to sign this document in the
language of country D following an attack in his flat by unknown persons.
10. On 12 December 2012, the Claimant / Counter-Respondent left country D,
according to him “for his own safety” and sent a termination letter to the
Respondent / Counter-Claimant on 13 December 2012.
11. Furthermore, on 10 January 2013, the Claimant / Counter-Respondent sent an
information request to FIFA, in which he asked if, following his claim, he could start
negotiations with another club.
12. On 17 January 2013, the Respondent / Counter-Claimant wrote to FIFA and stated
that “after the vacation” the Claimant / Counter-Respondent did not report to the
Respondent / Counter-Claimant’s mandatory training camp in country I, nor
returned to its location in place J, country D. According to the Respondent /
Counter-Claimant, this unilateral decision is a “gross breach of sporting and labor
discipline”.
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Player A, country B / Club C, country D / Club E, country F
3
13. On 28 January 2013, the Claimant / Counter-Respondent apparently sent an email,
with copy to FIFA, in which he expressed that “the signing of the appendix no. 2 to
the labor contract and statement dated 06/12/2012 (…) was against his will”.
14. On 11 February 2013, the Respondent / Counter-Claimant replied to the claim.
According to the Respondent / Counter-Claimant, at all times during the
employment of the Claimant / Counter-Respondent it has performed its payment
obligations. In this regard, the Respondent / Counter-Claimant stated that, on 1
March 2012, the parties concluded an Appendix 2 to the contract due to the
Claimant / Counter-Respondent’s injury. In accordance with this Appendix 2, the
Claimant / Counter-Respondent’s salary had been established in the following
manner:
“1. (…) clauses of Appendix #1 is redrafted to read as follows:
- clause 1 of Appendix #1 to the Labour contract # _/11 of February 03, 2011:
“From March 01, 2012 till July 31, 2012 (inclusive) the Club pays monthly to the
Football player 25.000 (…) Euro in accordance with the exchange rate of the
Central Bank of country D on the date of payment”
“From August 01, 2012 till October 31, 2012 (inclusive) the Club pays monthly to
the Football player 20.833 (…) Euro in accordance with the exchange rate of the
Central Bank of country D on the date of payment”
-clause 2.1 of Appendix #1 to the Labour contract # _/11 of February 03.2011 is
cancelled”
15. According to the Respondent / Counter-Claimant, the Claimant / CounterRespondent left the Respondent / Counter-Claimant in June 2012 without giving
any preliminary notice or explanation to the latter, although it assumed that it was
due to medical reasons. In this regard, the Respondent / Counter-Claimant stated
that medical assistance was performed independently from the Respondent /
Counter-Claimant’s preferences. More specifically, the Respondent / CounterClaimant highlighted that the Claimant / Counter-Respondent never requested the
Respondent / Counter-Claimant to be involved in his rehabilitation. The Respondent
/ Counter-Claimant acknowledged that the Claimant / Counter-Respondent rejoined the Respondent / Counter-Claimant’s squad in November 2012.
16. In addition, the Respondent / Counter-Claimant lodged a counterclaim both against
the Claimant / Counter-Respondent on 11 February 2013 and against his new club,
Club E (hereinafter: the Intervening Party) on 14 October 2013. In this respect, the
Respondent / Counter-Claimant requested the DRC to establish that the Claimant /
Counter-Respondent unlawfully, unilaterally and prematurely terminated the
contract, and to determine an amount for the compensation that the Claimant /
Counter-Respondent should pay in joint liability with the Intervening Party to the
Respondent / Counter-Claimant as well as to impose sporting sanctions on both.
17. In reference to the document dated 6 December 2012 and apparently signed by the
Claimant / Counter-Repondent, the Respondent / Counter-Claimant stated that it is
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Player A, country B / Club C, country D / Club E, country F
4
a standard practice that, before the winter break, all players are requested to sign a
declaration of the Respondent / Counter-Claimant’s compliance with financial
obligations, and that by signing it, the Claimant / Counter-Respondent declared
that he has no financial claims towards the respondent for the period comprised
between 1 March 2012 and 31 October of the same year.
18. In relation to the allegations about the document apparently signed on 6
December 2012, the Respondent / Counter-Claimant attached a witness statement
signed by another player of the team, who apparently stayed in the same hotel
room as the Claimant / Counter-Respondent, which reads as follows:
“I stayed in same room with [Claimant / Counter-Respondent] and during that stay
nothing happened to him.
Handwritten on 29.01.2013”
19. Consequently, the Respondent / Counter-Claimant considered that the Claimant /
Counter-Respondent terminated the contract without just cause during the
protected period. In this regard, the Respondent / Counter-Claimant requested the
Claimant / Counter-Respondent to pay the amount of EUR 1,500,000, plus 5%
interest as of 14 December 2012, in joint liability with the Intervening Party, as well
as sporting sanctions against both.
20. In particular, the Respondent / Counter-Claimant made this request on the grounds
that it “lost its key player during the most crucial part of the season 2012/13” and
the “opportunity to negotiate the transfer [of the Claimant / Counter-Respondent]
at the end of the season”. The amount is calculated on the basis of the residual
value of the contract, estimated by the Respondent / Counter-Claimant in the
amount of EUR 1,091,654, as well as the estimated transfer price that under normal
circumstances a club would have to spend to hire the services like the ones of the
Claimant / Counter-Respondent. The Respondent / Counter-Claimant made this
estimation on the basis of the amounts it paid for the Claimant / CounterRespondent to his previous club, Club E, in the amount of USD 2,000,000, minus its
amortization.
21. In addition, the Respondent / Counter-Claimant requested the Claimant / CounterRespondent to refund the amount of EUR 79,177 plus interest for payments
allegedly made in excess during the period covered by Appendix 2, calculated as
follows:
Month
Amount due
Amount actually paid
Amount to be refunded
March 2012
EUR 25,000
EUR 50,000
EUR 25,000
April 2012
EUR 25,000
EUR 50,000
EUR 25,000
May 2012
EUR 25,000
EUR 50,000
EUR 25,000
August 2012
EUR 20,833
EUR 25,000
EUR 4,177
22. In his replica, the Claimant / Counter-Respondent insisted that the document
apparently signed on 9 December 2012 and dated 6 December 2012 shall not be
considered, since it was signed under “threats and physical aggressions”. In this
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Player A, country B / Club C, country D / Club E, country F
5
respect, the Claimant / Counter-Respondent explained that he was threatened in a
hotel by the Respondent / Counter-Claimant’s president and his bodyguards.
Moreover, the Claimant / Counter-Respondent declared that he never signed the
Appendix 2, since at the moment of its signature, on 1 March 2012, he was in
country K.
23. Furthermore, the Claimant / Counter-Respondent referred to the alleged treatment
in country G and stated that he had to assume the costs of this treatment, but he
was authorized to do so by the Respondent / Counter-Claimant.
24. In reference to the salary reduction, the Claimant / Counter-Respondent considered
that the Respondent / Counter-Claimant unilaterally reduced his salary in June
2012, and consequently breached the contract.
25. Furthermore, the Claimant / Counter-Respondent insisted that the document
apparently signed on 9 December 2012 and dated 6 December 2012 was made
under coercion as a reply to the fax sent on 4 December 2012. As a consequence,
the Claimant / Counter-Respondent terminated the contract on 13 December 2012
and lodged a claim before FIFA on the same date.
26. In its final comments, the Respondent / Counter-Claimant reiterated its arguments.
In this respect, the Respondent / Counter-Claimant insisted that the Intervening
Party shall be considered as jointly liable in this case for inducement to the breach
of the contract.
27. In reference to the facts, the Respondent / Counter-Claimant considered the
allegations of the Claimant / Counter-Respondent as defamatory and false, as well
as not supported by any evidence. In this context, the Respondent / CounterClaimant argued that “never any player of Club C’s team complained about facing
any aggression from the management of the team”.
28. In relation to the signature of the Appendix 2, the Respondent / Counter-Claimant
provided a document from its Human Resources Department in order to prove that
the Claimant / Counter-Respondent was “at the disposal of [the Respondent /
Counter-Claimant]”.
29. The Respondent / Counter-Claimant also considered that, from March 2012 until
December 2012, the Claimant / Counter-Respondent never addressed any
complaints or objections with respect to the salary, and that “there is no document
of the case proving any dissatisfaction of the [Claimant / Counter-Respondent] (…)
in the said period”.
30. Regarding the alleged higher amounts paid between March 2012 and August of
the same year, the Respondent / Counter-Claimant admitted that they
corresponded to the Appendix 1, but that they were done “as a gesture of good
will”.
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Player A, country B / Club C, country D / Club E, country F
6
31. Concerning the alleged “attack” on 9 December 2012, the Respondent / CounterClaimant pointed out that there are some inconsistencies in the Claimant / CounterRespondent’s description of the facts, specifically in relation to the individuals who
took part and its location. In addition, the Respondent / Counter-Claimant declared
that if the allegations of the Claimant / Counter-Respondent were true, he would
have referred to the medical institutions and to the police authorities, instead of
leaving country D and repudiating and terminating the employment relationship
without just cause.
32. In relation to the Claimant / Counter-Respondent’s treatment, the Respondent /
Counter-Claimant insisted that the Claimant / Counter-Respondent “voluntarily and
without authorization” preferred to leave for medical care to country G, and that
“no corroborating evidence was ever produced” in this respect. The Respondent /
Counter-Claimant declared that the Claimant / Counter-Respondent had at all times
at his disposal its professional medical staff.
33. Moreover, and despite being invited to do so, the Intervening Party, did not
provide any comments during the course of the investigation to the counterclaim
lodged by the Respondent / Counter-Claimant.
34. Lastly, and after being requested to do so, the Respondent / Counter-Claimant
provided the alleged original copy of the Appendix 2.
35. Finally, the Claimant / Counter-Respondent confirmed that, on 1 July 2013, he
concluded a new employment contract with the Intervening Party, and that said
contract was mutually terminated on 31 October 2013. In addition, the Claimant /
Counter-Respondent informed that, on 24 December 2014, he concluded an
employment contract with the club from country K, Club L.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 13
December 2012. Consequently, the 2012 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 2012, 2014 and 2015 editions of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players, edition 2015, the Dispute Resolution Chamber is competent to deal with
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Player A, country B / Club C, country D / Club E, country F
7
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B, a club from country D
and a club from country F.
3. The competence of the Chamber having been established, the Chamber analysed
which edition of the Regulations on the Status and Transfer of Players should be
applicable as to the substance of the matter. In this respect, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (editions 2012 and 2014), and considering that the present matter was
submitted to FIFA on 13 December 2012, the 2012 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
4. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence which it considered
for the assessment of the matter at hand.
5. In this respect, the members of the DRC took note that on 3 February 2011, an
employment contract was concluded between the Claimant / Counter-Respondent
and the Respondent / Counter-Claimant for the period from 3 February 2011 until
31 July 2014.
6. In continuation, the Chamber acknowledged that it had been uncontested by the
parties that the Claimant / Counter-Respondent prematurely terminated the
employment contract on 13 December 2012 via a termination letter.
7. Within this context, the members of the DRC took note that the Claimant /
Counter-Respondent considered the contract as terminated with just cause as from
13 December 2012, on the grounds that the Respondent / Counter-Claimant
apparently had a debt of EUR 405,000 towards the Claimant / CounterRespondent, corresponding to outstanding salaries.
8. On the other hand, the Chamber acknowledged the Respondent / CounterClaimant’s argument, according to which the Claimant / Counter-Respondent
prematurely terminated the contract without just cause.
9. In this regard, the members of the Chamber noted that the Respondent / CounterClaimant confronted the Claimant / Counter-Respondent’s argument on the
existence of the aforementioned debt in the amount of EUR 405,000 since,
according to the Respondent / Counter-Claimant, the Claimant’s remuneration was
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Player A, country B / Club C, country D / Club E, country F
8
reduced during the period comprised between 1 March 2012 until 31 October 2012
due to the signature of an “Appendix 2” to the contract.
10. Moreover, the DRC also observed the Claimant / Counter-Respondent’s allegation,
according to which he never signed the “Appendix 2”, since at the moment of its
signature, on 1 March 2012, he was in country K.
11. In view of aforementioned dissent between the parties in respect of the basic
question as to whether or not the “Appendix 2” had been properly concluded, the
members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. The application of the said principle in the
present matter led the members of the Chamber to conclude that it was up to the
Claimant / Counter-Respondent to prove that he did not sign the “Appendix 2”.
12. At this stage, the DRC considered it appropriate to remark that, as a general rule,
FIFA’s deciding bodies are not competent to decide upon matters of criminal law,
such as the ones related to the possible forgery of a document, and that such
affairs fall into the jurisdiction of the competent national criminal authority.
13. In this regard, the Chamber recalled that all documentation remitted shall be
considered with free discretion and, therefore, it focused its attention on the other
documents containing the Claimant / Counter-Respondent’s signature, provided by
the parties in the context of the present dispute. In this regard, the Chamber
pointed out that the alleged original version of Appendix 2 was provided by the
Respondent / Counter-Claimant.
14. After a thorough analysis of the aforementioned documents, in particular,
comparing the relevant signatures of the Claimant / Counter-Respondent in the
various documents provided in the present affair, the members of the Chamber
had no other option but to conclude that, for a layman, the signatures on such
documents appear to be the same.
15. Furthermore, the Chamber concurred that the Claimant / Counter-Respondent did
not provide any evidence in support of his allegation that he was in country K at
the moment the Appendix 2 was apparently signed, and that the Claimant /
Counter-Respondent had been unable to provide sufficient evidence in order to
prove his lack of consent in relation to the signature of the "Appendix 2".
16. In view of the above, the members of the Chamber unanimously agreed that they
had no other option than to consider that the aforementioned “Appendix 2” was
properly concluded by the parties.
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Player A, country B / Club C, country D / Club E, country F
9
17. Subsequently, the Chamber took note that the Respondent / Counter-Claimant
claimed that the Claimant / Counter-Respondent signed a document, dated 6
December 2012, by means of which he acknowledged that he had no financial
claims against the Respondent / Counter-Claimant for the period comprised
between 1 March 2012 to 31 October 2012.
18. In view of the above, the members of the Chamber took note of the Claimant /
Counter-Respondent’s allegation, stating that said document was signed under
coercion and against his will.
19. In this regard, referring to art. 12 par. 3 of the Procedural Rules, in accordance
with which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof, the DRC took into account that the Claimant / CounterRespondent failed to present documentary evidence in support of his allegation
that he had been coerced, by the Respondent / Counter-Claimant, into signing the
above-mentioned document. Thus, the DRC decided that the Claimant / CounterRespondent’s allegations in this regard cannot be accepted.
20. In addition, the Chamber wished to highlight the contradicting declarations of the
Claimant / Counter-Respondent, according to which, firstly, he was attacked in his
flat by unknown persons, whereas later on, he declared that he was attacked in a
hotel by the president of the club and his bodyguards.
21. Consequently, the members of the Chamber had no other possibility than to deem
that the document dated 6 December 2012 was validly signed by the Claimant /
Counter-Respondent.
22. Having determined the validity of the document dated 6 December 2012, the
members of the Chamber took note that, according to said document, the
Claimant / Counter-Respondent abdicated from any financial claim against the
Respondent / Counter-Claimant for the period comprised between 1 March 2012
and 31 October 2012.
23. In view of the foregoing, the members of the Chamber concluded that the
Claimant / Counter-claimant cannot make any claim for salaries that fell due
during said period.
24. In this context, the members of the Chamber then turned their attention to the
Claimant / Counter-Respondent’s argument, who maintains that the Respondent /
Counter-Claimant is to be held liable for breach of contract for having, inter alia,
outstanding salaries towards the Claimant / Counter-Respondent during the period
comprised between June and December 2012.
25. In consideration of the fact that the Claimant / Counter-Claimant was not entitled
to make any claim for salaries that fell due between 1 March 2012 and 31 October
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Player A, country B / Club C, country D / Club E, country F
10
2012, the Chamber highlighted that the Claimant / Counter-Respondent
terminated the contract on 13 December 2012. In this regard, the Chamber
concluded that the payment for the month of December 2012 had clearly not
fallen due yet on the date of the termination, i.e. 13 December 2012. At this stage,
considering the lack of evidence to the contrary, the Chamber concluded that the
Respondent / Counter-Claimant had failed to pay the salary for the month of
November 2012, i.e. EUR 41,666 and 18,000, in accordance with Appendix 1.
26. In this respect, the members of the Dispute Resolution Chamber wished to
emphasize that, according to the principle of contractual stability, the unilateral
termination of a contract must be considered as an absolute last resort, where,
given the particularities of the situation at stake, it could not be expected that one
of the parties could reasonably continue to be bound by the contractual
relationship. In what concerns financial obligations, one of the consequences of
the aforementioned principle is that only a persistent and substantial noncompliance of these obligations could justify the unilateral termination of a
contract.
27. In view of the above, the Chamber was of the opinion that the Claimant / CounterRespondent did not have just cause to prematurely terminate the employment
contract with the Claimant, since there would have been other measures to be
taken, in order to find a remedy to the situation which is at the basis of the
termination of the employment contract by the Claimant / Counter-Respondent.
28. Overall, the Chamber decided that the Claimant / Counter-Respondent was no just
cause to unilaterally terminate the employment relationship between him and the
Respondent / Counter-Claimant and that, therefore, the Claimant / CounterRespondent had breached the employment contract without just cause.
29. Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract without
just cause by the Claimant / Counter-Respondent.
30. In doing so, the DRC first of all established that, in accordance with art. 17 par. 1
of the Regulations, the Claimant / Counter-Respondent is liable to pay
compensation to the Respondent / Counter-Claimant. Furthermore, in accordance
with art. 17 par. 2 of the Regulations, the Chamber established that the Claimant /
Counter-Respondent’s new club, i.e. the Intervening Party, shall be jointly and
severally liable for the payment of compensation.
31. Subsequently, the members of the Chamber 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 benefits due to a player under an existing contract and/or
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Player A, country B / Club C, country D / Club E, country F
11
the new contract(s), the time remaining on the existing contract up to a maximum
of five years as well as the fees and expenses paid or incurred by the former club
(amortised over the term of the contract) and whether the contractual breach falls
within a protected period. In addition, the DRC recalled that the list of objective
criteria is not exhaustive and that the broad scope of criteria indicated tends to
ensure that a just and fair amount of compensation is awarded to the prejudiced
party.
32. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party in the event of breach of contract. Upon
careful examination of said contract, the members of the Chamber assured
themselves that this was not the case in the matter at stake.
33. The Chamber further recalled that the Respondent / Counter-Claimant had claimed
compensation in the amount of “USD 2,000,000 minus its amortization”,
calculated on the basis of the residual value of the contract, as well as the
estimated transfer price that under normal circumstances a club would have to
spend to hire the services like the ones of the Claimant / Counter-Respondent.
34. In the calculation of the amount of compensation due by the Claimant / CounterRespondent, the Chamber firstly turned its attention to the remuneration and
other benefits due to the Claimant / Counter-Respondent under the existing
contract and/or any new contract(s), a criterion which was considered by the
Chamber to be essential. The members of the Chamber deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows the
Chamber to take into account both the existing contract and any new contract(s)
in the calculation of the amount of compensation.
35. Following the documentation provided by the parties, it appears that in
accordance with the contract, which was to run for nineteen more months at the
moment when the breach of contract occurred, the Claimant / CounterRespondent was to receive a total remuneration equalling to EUR 1,105,904. On
the other hand, the value of the new employment contract, concluded between
the Claimant / Counter-Respondent and the Intervening Party, over the
aforementioned period of time, appears to amount to EUR 190,000. On the basis
of the aforementioned financial contractual elements at its disposal, the Chamber
concluded that the remuneration of the Claimant / Counter-Respondent during
the remaining contractual period of time amounted to the average of sum of EUR
647,952.
36. The members of the Chamber then turned to the essential criterion relating to the
fees and expenses paid by the Respondent / Counter-Claimant for the acquisition
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Player A, country B / Club C, country D / Club E, country F
12
of the Claimant / Counter-Respondent’s services in so far as these have not yet
been amortised over the term of the relevant contract. The Chamber recalled that
a transfer compensation of USD 2,000,000 had been paid by the Respondent /
Counter-Claimant to the club from country F, Club E, for the Claimant / CounterRespondent‘s transfer, documentation of which has been presented by the
Respondent / Counter-Claimant. According to article 17 par. 1 of the Regulations,
this amount shall be amortised over the term of the relevant employment
contract. As stated above, the Claimant / Counter-Respondent was still bound to
the Respondent / Counter-claimant by nineteen further months of contract when
he terminated the relevant contract, which was signed by the parties to remain
contractually bound to each other during a total of forty-two months (i.e. 3.5
years). As a result of the Claimant / Counter-Respondent’s breach of contract on 13
December 2012, the Respondent / Counter-Claimant has thus been prevented from
amortising the amount of USD 905,000, approximately EUR 692,000, relating to
the transfer compensation that it paid in order to acquire the Claimant / CounterRespondent’s services, which, at that time, the Respondent / Counter-Claimant
counted to be able to make use of during forty-two months. This part of the
compensation is not contested by the Claimant / Counter-Respondent.
37. Thus, the Chamber considered that the basis for the amount of compensation for
breach of contract without just cause to be paid by the Claimant / CounterRespondent to the Respondent / Counter-Claimant is composed of the amount of
EUR 692,000 related to non-amortised expenses incurred by the Respondent /
Counter-Claimant when engaging the services of the Claimant / CounterRespondent and EUR 647,952 being the reflection of the remuneration and other
benefits due to the Claimant / Counter-Respondent under the previous and the
new contract, leading to a total amount of EUR 1,339,952.
38. Notwithstanding the above, the members of the Chamber considered on the basis
of the documentation on file and as uncontested by any of the parties, that the
Claimant / Counter-Respondent was injured after the breach of the contract, and
that it appears that he was able to fully come back to the practice of football only
in January 2015.
39. In consideration of the fact that, due to his injury, the Respondent / CounterClaimant would have been unable to make use of the services of the Claimant /
Counter-Claimant, the members of the Chamber unanimously agreed to reduce
the amount of the compensation to a final amount of EUR 900,000.
40. In sum, the Chamber decided that the Claimant / Counter-Claimant should pay
compensation in the amount of EUR 900,000, plus 5% interest p.a. as of the date
of the termination of the contract, until the effective date of payment to the
Respondent / Counter-Claimant, as compensation for breach of contract without
just cause. Moreover, in strict application of art. 17 of the Regulations, the
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Player A, country B / Club C, country D / Club E, country F
13
Intervening Party is jointly and severally liable for the payment of the relevant
compensation.
41. In continuation, the members of the Chamber noted that that the Respondent /
Counter-Claimant had not yet paid the Claimant / Counter-Respondent his salary
for the month of November 2012, corresponding to the amounts of EUR 41,666
and 18,000, as established by the parties in the contract. The Chamber decided
that, in accordance with the general legal principle of “pacta sunt servanda”, the
Claimant / Counter-Respondent is entitled to those aforementioned payments. The
Chamber concurred that, therefore, the Respondent / Counter-Claimant shall pay
the amounts of EUR 41,666 and 18,000 to the Claimant / Counter-Respondent.
42. In view of the above, the DRC concluded that the Respondent / Counter-Claimant
failed to pay to the Claimant / Counter-Respondent the amounts corresponding to
the month of November 2012 as agreed upon between the parties in the
“Appendix 1” to the contract. As a consequence, and in accordance with the
general legal principle of pacta sunt servanda, the Respondent / Counter-Claimant
must fulfil its obligations as per private agreement concluded with the Claimant /
Counter-Respondent and, consequently, is to be held liable to pay the outstanding
amounts of EUR 41,666 and 18,000 to the Claimant in relation to the referred
salary of November 2012.
43. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the parties.
III. Decision of the Dispute Resolution Chamber
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Player A, country B / Club C, country D / Club E, country F
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1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2. The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / CounterRespondent within 30 days as from the date of notification of the present
decision, outstanding remuneration in the amounts of EUR 41,666 and 18,000.
3. In the event that the aforementioned sums are not paid within the stated time
limit, interest of 5% p.a. will fall due as of expiry of the stipulated time limit and
the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4. Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5. The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant immediately and directly of the account number to which the
remittances under point 2. are to be made and to notify the Dispute Resolution
Chamber of every payment received.
6. The counter-claim of the Respondent / Counter-Claimant is partially accepted.
7. The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant, within 30 days as from the date of notification of the present decision,
compensation for breach of contract without just cause in the amount of EUR
900,000, plus 5% interest p.a. as from 13 December 2012 until the date of effective
payment.
8. The Intervening Party, Club E, is jointly and severally liable for the payment of the
aforementioned amount.
9. In the event that the amount plus interest due to the Respondent / CounterClaimant is not paid within the stated time limit, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration and
a formal decision.
10. Any further claim lodged by the Respondent / Counter-Claimant is rejected.
11. The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent immediately and directly of the account number to which the
remittance under point 7. is to be made and to notify the Dispute Resolution
Chamber of every payment received.
Note relating to the motivated decision (legal remedy):
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Player A, country B / Club C, country D / Club E, country F
15
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 (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Enclosed: CAS directives
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Player A, country B / Club C, country D / Club E, country F
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