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 claim presented by the club,
Club A, country B,
as Claimant
against the player,
Player C, country D,
as 1st Respondent
and the club,
Club E, country B
as 2nd Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 30 August 2011, the player from country D, Player C (hereinafter: the 1st
Respondent), born on 19 March 1987, and the club from country B, Club A
(hereinafter: the Claimant) signed an employment contract (hereinafter: the
contract) valid as of the date of signature until 30 June 2015.
2.
According to the contract, the Claimant had to pay to the 1st Respondent a
monthly salary of EUR 2,000 net as well as different bonuses.
3.
Pursuant to article 7 of the contract, “special conditions are determined in
Appendix No. 1 [hereinafter: the appendix] that is an integral part of the
Employment Contract”.
4.
The appendix stated that the 1st Respondent was to receive an annual salary
amounting to EUR 2,000,000 net “divided in equal instalments on a monthly
basis”.
5.
On 30 May 2014, the 1st Respondent terminated the contract in writing
referring to article 17 paragraph 3 of the FIFA Regulations as well as to the last
match of the championship of country B held on 15 May 2014.
6.
On 10 June 2014, the Claimant replied to the 1st Respondent, stating that such
termination did not comply with FIFA Regulations.
7.
On 3 July 2014, the Claimant lodged a complaint before FIFA against the 1st
Respondent for breach of contract and against Club E (hereinafter: the 2nd
Respondent) for inducement to the breach of contract, requesting the
following:
the payment of EUR 19,578,654 by both the 1st Respondent and the 2nd
Respondent, plus 5% interest p.a. as of 30 May 2014, broken down as
follows:
o EUR 13,980,898 as the value of the 1st Respondent’s services, composed
of the following amounts:
- EUR 4,980,898 corresponding to the remuneration and other
benefits of the 1st Respondent for the residual duration of the
contract;
- EUR 9,000,000 as lucrum cessans for a possible transfer of the 1st
Respondent;
o EUR 3,298,880 as replacement cost in order to acquire an equivalent
player;
o EUR 2,298,876 as damages for specificity of sport.
the imposition of sporting sanctions on the 1st Respondent and 2nd
Respondent;
Club A, country B / Player C, country D & Club E, country B
2/17
the payment of legal costs to be borne by both the 1st Respondent and
2nd Respondent.
In addition, referring to art. 17 par. 5 of the FIFA Regulations, the Claimant
requested to forward the present matter to the FIFA Disciplinary Committee
for the opening of a disciplinary procedure against the player’s agent, Agent F.
8.
As to the substance, the Claimant asserted that the 1st Respondent terminated
the contract without just cause. According to the Claimant, the 1st Respondent
did not adduce evidence in support of his behaviour and never showed the will
to leave the Claimant in these circumstances until the termination of the
contract.
9.
In this context, on 20 June 2014, when the Claimant allegedly called him up in
order to start preseason training at its premises, the 1st Respondent did not
show up. Therefore, on 29 June 2014, the Claimant alleged that it had to start
its preseason camp in country G without the 1st Respondent.
10.
Moreover, the Claimant sustained that the termination of the contract
occurred within the protected period insofar as the contract was signed on 30
August 2011 and the 1st Respondent was 24 years old at that time. In this
respect, the Claimant pointed to the special context of the Premier League of
country B for the season 2011-2012 which was held in two stages, i.e. the first
from spring to autumn 2011 and the second from autumn 2011 to spring 2012.
Since the season 2011-2012 started on 6 March 2011 and that the last match
was on 13 May 2012, the Claimant deemed that the parties signed the contract
at the very end of the second registration period of that season and thus, the
season 2011-2012 shall not be counted as an entire season according to the
definition of the protected period.
11.
With regard to the amount claimed as compensation for breach of contract,
the Claimant first of all referred to the 1st Respondent’s annual remuneration
with the Claimant in order to evaluate the value of his services. According to
the Claimant, considering the tax rate in country B equivalent to 13%, the
total annual salary of the 1st Respondent amounts to EUR 2,298,880 gross. The
Claimant also took into consideration the new salary and benefits of the 1st
Respondent with his new club. Considering the lack of details of any possible
new employment contract of the 1st Respondent at the time it lodged the
claim, the Claimant deemed that the value to be taken into account should at
a very minimum be the said gross salary of the 1st Respondent with the
Claimant, multiplied by a factor of two, inter alia due to the 1st Respondent’s
age and the fact that the new club will not have to pay a transfer fee to the
club. Therefore, the value attributed – in terms of remuneration – to the 1st
Respondent’s services at the moment of the breach of contract for the residual
duration of the contract allegedly amounts to EUR 4,980,898.
Club A, country B / Player C, country D & Club E, country B
3/17
12.
The Claimant further referred to the lucrum cessans in order to evaluate the
value of the 1st Respondent’s services. In this regard, the Claimant took into
consideration the costs actually incurred for acquiring such services – apart
from the remuneration and other benefits – and their non-amortised part. In
this particular case, the Claimant stated that in order to obtain the services of
the 1st Respondent, it paid a transfer fee of EUR 12,900,000 to Club G and
provided the transfer agreement dated 29 September 2011 between the
relevant clubs in this respect. The Claimant also alleged having paid the
amount of EUR 1,000,000 to the agent of the 1st Respondent for his activities
which was apparently causal to obtain the services of the 1st Respondent. In
this regard, the Claimant submitted the contract of representation dated 31
August 2011 signed by the Claimant and the alleged agent’s company as well
as a bank statement dated 6 October 2011 evidencing said payment.
Therefore, according to the Claimant’s allegations, the total cost incurred to
acquire the services of the 1st Respondent amounted to EUR 13,900,000.
13.
As for the amortisation of such value, considering the duration of the contract
and the date of termination of the contract by the 1st Respondent, the
Claimant held that the non-amortised period in the dispute at stake is 13
months. Consequently, the non-amortised fees and expenses incurred by the
Claimant are allegedly equivalent to EUR 3,928,261.
14.
Following the same line of reasoning, the Claimant recalled that in July 2013, it
received an offer from the club from country B, Club H, for the envisaged
transfer of the 1st Respondent against payment of a transfer fee amounting to
EUR 9,000,000. In this respect, the Claimant provided an undated letter from
Club H addressed to the Claimant containing such an offer as well as several
press articles. However, since the Claimant considered that the 1st Respondent’s
services had a higher value than the amount offered by Club H, it alleged
having declined the said offer.
15.
Therefore, the Claimant deemed that the offer from Club H compared to the
non-amortised amounts demonstrated the amount of money a club would
have paid in order to obtain the services of the 1st Respondent. Consequently,
the Claimant considered that the minimum amount of EUR 9,000,000 shall be
paid by the 1st Respondent as lucrum cessans and, should it so be concluded by
the DRC, the Claimant was prepared to consider that such lost transfer fee
included the value of the non-amortised fees and expenses.
16.
In view of all the above, the Claimant deemed that the actual value of the 1st
Respondent’s services amounts to EUR 13,980,898 and should be regarded as
the starting point to calculate the compensation payable by the 1st Respondent
to the Claimant.
Club A, country B / Player C, country D & Club E, country B
4/17
17.
In continuation, the Claimant considered that art. 17 par. 2 and 4 of the FIFA
Regulations shall apply to Respondent 2. In this respect, the Claimant referred
to a letter dated 31 July 2014 from 2nd Respondent by means of which the
latter expressed its interest in obtaining the 1st Respondent’s services for an
amount of EUR 4,000,000, setting a deadline by 1 August 2014 in order for the
Claimant to take a decision. In response thereto, on 5 August 2014, the
Claimant informed the 2nd Respondent that the 1st Respondent unilaterally
terminated the contract on 30 May 2014 and therefore, it could not discuss
about any amount as transfer fee. Thereafter, on 25 August 2014, the 2nd
Respondent sent a letter to the Claimant by means of which the 2nd
Respondent informed the Claimant about the possible signing of a contract
with the 1st Respondent and offering the Claimant the amount of EUR
2,200,000 as compensation for the unilateral termination of the contract by
the 1st Respondent.
18.
Bearing in mind the above, the Claimant considered that the 2nd Respondent
“tried to cover up” the fact that negotiations were conducted for “quite long
time” with the 1st Respondent, by firstly creating a “fake” request of transfer
by the 2nd Respondent to the Claimant, i.e. letter dated 31 July 2014; and then,
by deciding to “wait until the last days of August 2014 to officially finalise the
deal”.
19.
Finally, the Claimant deemed that art. 17 par. 5 of the FIFA Regulations shall
be enforced to any third party that induced such breach of contract, i.e. the 1st
Respondent’s agent. In particular, the Claimant pointed to an e-mail dated 19
May 2014 from the 1st Respondent’s agent, relating a meeting held the
previous day between the agent and an alleged representative of the Claimant
and by means of which the agent informed the Claimant that in the event the
1st Respondent decided to leave the Claimant, it would be for a transfer fee
amounting to EUR 3,000,000, setting a deadline by 22 May 2014 in order for
the Claimant to take a decision.
20.
In his reply to the Claimant’s claim, the 1st Respondent acknowledged having
terminated the contract without specifying any reason in the termination
notice. However, in order to substantiate his decision, the 1st Respondent
underlined that in his third season with the Claimant, the latter did not show
as much interest as during the two previous seasons since he was apparently
regularly substituted in championship matches or kept on the bench. In this
respect, the 1st Respondent demonstrated that in the season 2013-2014, he
played in less than 50% of the total championship matches played by the
Claimant’s first team.
21.
In addition, the 1st Respondent justified his decision based on the Claimant’s
sporting situation. In particular, the descent of the Claimant’s first team to the
10th position in the Premier League of country B at the end of the season 2013-
Club A, country B / Player C, country D & Club E, country B
5/17
2014, which left the Claimant out of the UEFA competitions for the season
2014-2015 is stressed by the 1st Respondent. 1st Respondent emphasised that he
was also driven by the fact that 2nd Respondent became champion of country B
in the season 2013-2014 and was thus participating in the UEFA Champions
League 2014-2015.
22.
The 1st Respondent further held that in May 2014, the Claimant started to
pressure him into extending the contractual relationship and allegedly
threatened to keep him on the side-lines in the final season of his contract
should he not accept the extension of the contract.
23.
Furthermore, the 1st Respondent stated having been unaware of the alleged
offer of Club H and never consented to go to said club. The Respondent 1 also
stated that it is not clear how such offer was transmitted to the Claimant and
even more, that it was created by the Claimant in order to serve its own
interest. The 1st Respondent pointed to the lack of evidence from the Claimant
in order to demonstrate that the relevant offer was genuine and true. In
particular, according to the 1st Respondent, the press articles adduced by the
Claimant are pure speculations.
24.
As to the calculation of the compensation, the 1st Respondent rejected all of
the criteria used by the Claimant and was of the opinion that the FIFA Dispute
Resolution Chamber (DRC) should use its well-established jurisprudence based
inter alia on the average between the remuneration due until the expiry of
the former contract and the remuneration due under the new contract for the
same period of time which allegedly amounted to EUR 2,063,000 for the
period from 18 August 2014 until 30 June 2015.
25.
The 1st Respondent also rejected the Claimant’s calculation of taking “grossedup amounts by adding 13%” since he moved to another club from country B
and thus, there was no change of his tax residency that required further
consideration. He also asserted that the Claimant did not substantiate its
allegation in this regard.
26.
Concerning the fees and expenses paid or incurred by the Claimant, the 1st
Respondent deemed that there was no tangible evidence on file proving that
the Claimant had borne the burden to pay the transfer fee of EUR 12,900,000
or that such amount has ever been paid at all. Moreover, the 1st Respondent
was of the opinion that said amount cannot be considered due to the fact that
the Claimant signed the relevant transfer contract with a company, in spite of
the prohibition laid down in article 17 par. 2 sent. 1 of the FIFA Regulations for
clubs to pay transfer compensation to companies that are not registered as
football clubs. In this respect, the 1st Respondent requested FIFA to transfer the
file to the FIFA Disciplinary Committee.
Club A, country B / Player C, country D & Club E, country B
6/17
27.
As for the amount of EUR 1,000,000 paid to his alleged agent, the 1st
Respondent sustained that such amount could not be considered since the
payment had been made in violation of art. 27 par. 2 of the FIFA Players’
Agents Regulations. The 1st Respondent maintained that the payment had
been made to an Agency – and not to a licensed players’ agent. Alternatively,
only if this argument was rejected, the non-amortised portion of the amount
of EUR 1,000,000 should be EUR 282,608.70.
28.
Moreover, the 1st Respondent alleged that, on 15 August 2014, the Claimant
acquired the services of a player from country J, Player I, on a two-year
contract, as a “free agent”. Since the said player from country J apparently
played in the same position as him, the 1st Respondent considered that the
amount claimed by the Claimant should be mitigated taking into consideration
the market value of the said player from country J which amounted to EUR
1,500,000.
29.
Regarding the alleged breach within the protected period, the 1st Respondent
sustained that the DRC shall apply the Football Union of country B match
calendar of the season 2014-2015 according to which the sporting season starts
in August and ends in May of the following year. Thus, the 1st Respondent
concluded having terminated the contract outside the protected period.
30.
Alternatively, only in the event the above was rejected, the 1st Respondent
emphasised that the Football Union of country B’s decision to reverse the
scheme of the championship could not and should not be held to his detriment
and his right to freedom of movement. The 1st Respondent further maintained
that the season “spring-autumn 2011” in the championship of country B ended
with the 30th championship match which was held on 5 November 2011, i.e.
after he joined the Claimant in August 2011, and that therefrom, the season
“autumn 2011 – spring 2012” started. Consequently, the 1st Respondent
deemed having played for the Claimant throughout the entire season 20112012 and thus, when he terminated the contract with the Claimant, considered
having competed for the Claimant during three entire consecutive seasons.
Therefore, the termination should be considered as falling outside the
protected period.
31.
In this context, the 1st Respondent held that sporting sanctions shall not apply
considering the termination outside the protected period and the specific
circumstances of the present matter. The 1st Respondent deemed that the
contrary would be unfair and disproportionate.
32.
Subsequently, the 1st Respondent acknowledged having signed a contract with
2nd Respondent on 18 August 2014. According to the 1st Respondent, he left
the Claimant without any offers or contracts from 2nd Respondent or any other
clubs beforehand. In this respect, the 1st Respondent pointed to the fact that
Club A, country B / Player C, country D & Club E, country B
7/17
he remained unemployed for more than two months after the termination of
the contract with the Claimant and before signing an employment contract
with 2nd Respondent.
33.
As to the letters exchanged between the Claimant and the 2nd Respondent as
from 31 July 2014 onwards, the 1st Respondent underlined that he has never
been notified of such offers by any of the parties. In particular, the 1st
Respondent affirmed that he never gave his consent to be transferred from
the Claimant to the 2nd Respondent for a fixed transfer fee of EUR 4,000,000 or
agreed to pay EUR 2,250,000 as compensation to the Claimant. The 1st
Respondent further pointed out that, in any event, such offers were rejected
by the Claimant and are irrelevant with regard to the determination of the
level of compensation due to the Claimant.
34.
As a result, the 1st Respondent alleged that the only amounts the Claimant
might claim for compensation based on the breach of contract without just
cause should be the following:
Primary, EUR 614,833.50 corresponding to:
o EUR 2,114,833.50 as the average salary due to the 1st Respondent
under the contract with the Claimant and under the contract with
the 2nd Respondent for the remaining period of the contract, i.e.
EUR 2,166,667 + EUR 2,063,000 / 2;
o minus EUR 1,500,000 as the amount the Claimant managed to
mitigate its damage through the hiring of an equivalent player as a
“free agent”.
Alternatively, EUR 897,442.20 corresponding to:
o EUR 2,114,833.50 as the average salary;
o EUR 282,608.70 as the non-amortised portion of the fee paid to the
alleged agent to obtain the services of the 1st Respondent;
o minus EUR 1,500,000 as mitigation.
The 1st Respondent also deemed that an interest of 5% p.a. should apply
as of the day following the date of claim, i.e. as of 4 July 2014.
The 1st Respondent further requested to submit the file to the FIFA
Disciplinary Committee in order to start disciplinary proceedings against
the Claimant for breach of art. 17 par. 2 of the FIFA Regulations and art.
27 par. 2 of the FIFA Players’ Agent Regulations.
35.
As regards the 2nd Respondent, it acknowledged having approached the
Claimant in late July, offering the amount of EUR 4,000,000, allegedly to
“secure his services before any potential rival clubs”. The 2nd Respondent
asserted having contacted the 1st Respondent only after the Claimant’s reply
on 5 August 2014 – rejecting the offer of EUR 4,000,000 due to the early
termination of the contract by the 1st Respondent– and alleged that only
“after tough and long-lasting negotiations for several weeks, [the 2nd
Respondent] finally entered into an employment contract with him on 18
Club A, country B / Player C, country D & Club E, country B
8/17
August 2014”, valid as from the date of signature until 30 June 2017. The 2nd
Respondent also sustained that the offer of EUR 2,250,000 dated on 25 August
2014 was made after having evaluated the documents submitted by the FIFA
administration on 12 August 2014, with the intent to settle the matter
amicably.
36.
With regard to the application of art. 17 par. 1 of the FIFA Regulations, the 2nd
Respondent recalled that it is not disputed by the 1st Respondent that he did
not have just cause to unilaterally terminate the contract with the Claimant.
However, the 2nd Respondent concurred with the 1st Respondent as to the
calculation of the compensation of which the Claimant is entitled to and thus,
rejected all of the Claimant’s arguments as to the said calculation.
37.
The 2nd Respondent also concurred with the 1st Respondent as regards the
termination of the contract outside the protected period.
38.
Regarding the application of art. 17 par. 2 of the FIFA Regulations, the 2nd
Respondent stated that, in principle, it could be held jointly and severally liable
for the payment of the compensation due by the 1st Respondent to the
Claimant. However, the 2nd Respondent recalled that, as a general rule, the
main and primary debtor for the payment of compensation due to the
contractual breach of contract remains being the player and therefore, the
request for compensation against the new club is de facto accessory to the
request for compensation to the player.
39.
In addition, the 2nd Respondent emphasised that it did not induce the 1st
Respondent to terminate his contract with the Claimant and stressed the lack
of evidence from the Claimant in this respect. The 2nd Respondent recalled that
prior to the signing of the employment contract with the 1st Respondent on 18
August 2014, the 2nd Respondent first of all contacted the Claimant in late July.
Moreover, the 2nd Respondent stressed that from the day of termination of the
contract, i.e. 30 May 2014, until the signing of the contract, i.e. 18 August
2014, more than two months elapsed. Therefore, the 2nd Respondent deemed
that its responsibility should be limited to being jointly and severally liable
with the 1st Respondent for the payment of compensation to the Claimant.
40.
In this context, the 2nd Respondent reiterated the 1st Respondent’s proposal
and requested the DRC to conclude that:
The 1st Respondent has to pay to the Claimant compensation for breach
of contract in the amount of EUR 614,833.5 or, alternatively EUR
897,442.2, plus 5% interest p.a. as from 4 July 2014;
The 2nd Respondent is jointly and severally liable with the 1st Respondent
for the payment of the aforementioned compensation to the Claimant;
All further claims from the Claimant are rejected.
Club A, country B / Player C, country D & Club E, country B
9/17
Pursuant to the contract signed with the 2nd Respondent, the 1st Respondent
was entitled to the following fixed-remuneration from 18 August 2014 until 30
June 2015:
From 18 August 2014 until 31 August 2014
EUR 61,442.01 net as salary;
EUR 26,327.94 net as additional remuneration.
From 1 September 2014 until 30 June 2015
EUR 140,155.26 net as monthly salary;
EUR 49,998.90 net as monthly additional remuneration.
41.
42.
Upon its own request, the Claimant submitted additional comments and
documentation pertaining to the matter at stake. First of all, the Claimant
provided the FIFA administration with a bank statement dated 31 August 2011
corroborating the payment of the transfer fee of EUR 12,900,000 to Club G.
43.
As regards the company which was party to the transfer agreement with the
Claimant and Club G, the Claimant asserted that said company acted as a mere
receiver of the transfer fee of Club G and that, in any event, FIFA recognised
the said company in transfer matters. In this respect, the Claimant referred to
the CAS award 2012/XXXXX Club K v. Club G.
44.
With regard to the acquisition of the player from country J, Player I, by the
Claimant on 15 August 2014, it acknowledged having hired the player as a
“free-agent” but only with the intent to replace the midfielder of country B,
Player L, who was on loan with the Claimant until 30 August 2014, as
evidenced by the loan agreement between Club M and the Claimant. In fact,
the Claimant alleged that in order to replace the Respondent 1, it concluded
an agreement with Club H on 16 July 2014 for the loan of the player from
country B, Player N, as indicated in the loan agreement provided by the
Claimant.
45.
Consequently, on 23 February 2015, the Claimant amended its claim pertaining
to the replacement costs in order to acquire an equivalent player, requesting
the amount of EUR 2,700,500. Therefore, the total amount requested by the
Claimant as compensation for breach of contract amounts to EUR 18,980,274.
46.
In reply to the Claimant’s additional comments and documentation, the 1st
Respondent entirely rejected the Claimant’s further submission. In particular,
the 1st Respondent reiterated his position as to the calculation of
compensation for breach of contract. In this regard, the 1st Respondent
sustained that Player I was indeed hired by the Claimant as his replacement
since the said player has exactly the same field position as him. The 1st
Respondent further held that, on the other hand, there was no nexus between
the termination of the contract between the Claimant and the 1st Respondent
and the hiring of Player N by the Claimant.
Club A, country B / Player C, country D & Club E, country B
10/17
47.
The 1st Respondent also underlined that the proofs of payment of the transfer
fee of EUR 12,900,000 submitted by the Claimant evidence that such payment
was made into the bank account of the relevant company as stated in point 26
above. Therefore, such amount could not be qualified as transfer fee and
consequently could not be taken into account for the assessment of the
compensation for breach of contract.
48.
In view of the above, the 1st Respondent considered that the Claimant did not
prove the existence of any unamortised expenses. As a result, the 1st
Respondent reiterated all of his requests for relief put forward previously.
49.
Likewise, the 2nd Respondent entirely rejected the Claimant’s further
allegations and motions in its latest submission since, according to the 2nd
Respondent, the Claimant did not adduce any conclusive evidence. Therefore,
the 2nd Respondent adhered to its previous requests for relief.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to
FIFA on 3 July 2014. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf.
art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2015) the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute
between a club from country B and a player from country D as well as another
club from country B.
3.
In continuation, the Chamber analysed which regulations should be applicable
as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2015), and considering that the original claim in
the present matter was lodged on 3 July 2014, the 2012 edition of said
Regulations is applicable to the matter at hand as to the substance.
Club A, country B / Player C, country D & Club E, country B
11/17
4.
The competence of the Chamber and the applicable regulations having been
established, entering into the substance of the matter, the members of the
Chamber started by acknowledging the facts as well as the documentation
contained in the file. However, the Chamber emphasised that in the following
considerations it will refer only to facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
5.
In this respect, the DRC acknowledged that the parties signed an employment
contract, valid as from 30 August 2011 until 30 June 2015. Furthermore, the
Chamber also took note that it is uncontested by the parties that on 30 May
2014, and referring to art. 17 par. 3 of the Regulations as well as the last match
of the championship allegedly held on 15 May 2014, the 1st Respondent
terminated in writing the contractual relationship with the Claimant.
6.
In this regard, the Chamber took note of the 1st Respondent’s argumentation
as to his unilateral termination of the contract. In particular, the members of
the Chamber noted that the 1st Respondent considered that the Claimant did
not show him as much interest as during the two previous seasons and, unlike
the 2nd Respondent, the Claimant was left out of the UEFA Champions League
2014-2015. The DRC further observed that the 1st Respondent acknowledged
that the Claimant was entitled to receive compensation, but based on the
criteria established by the jurisprudence of the DRC.
7.
In continuation, the Chamber observed that, according to the Claimant, the 1st
Respondent terminated the contract without just cause since the 1st
Respondent did not adduce evidence in support of his behaviour and never
showed the will to leave the Claimant until the termination.
8.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant and the
allegations of the 1st Respondent, was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the 1st
Respondent, and which party was responsible for the early termination of the
contractual relationship in question.
9.
In this context, the Chamber deemed it fit to outline that although the 1st
Respondent seemed to invoke sporting reasons in order to justify the
termination, he expressly based the latter on art. 17 of the Regulations which
is titled “Consequences of terminating a contract without just cause”.
10.
In continuation, whilst referring 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 burden of proof, the Chamber deemed necessary to highlight
that the 1st Respondent had not presented evidence proving that he fell under
the scope of art. 15 of the Regulations.
Club A, country B / Player C, country D & Club E, country B
12/17
11.
Accordingly, and taking into account the above-mentioned considerations,
the Chamber concluded that the 1st Respondent did not have just cause to
unilaterally terminate the employment contract on 30 May 2014 and that,
consequently, the 1st Respondent is to be held liable for the early termination
of the contract without just cause.
12.
In light of the foregoing, the DRC established that, in accordance with art. 17
par. 1 of the Regulations, the 1st Respondent is liable to pay compensation to
the Claimant. Furthermore, in accordance with the unambiguous content of
article 17 par. 2 of the Regulations, the Chamber established that the 1st
Respondent’s new club, i.e. the 2nd Respondent, shall be jointly and severally
liable for the payment of compensation. In this respect, the Chamber was
eager to point out that the joint liability of the 1st Respondent’s new club is
independent from the question as to whether the new club has induced the
contractual breach. This conclusion is in line with the well-established
jurisprudence of the Chamber and has been repeatedly confirmed by the Court
of Arbitration for Sport.
13.
Having stated the above, 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 reiterated that, in accordance
with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at
the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in
particular the remuneration and other benefits due to the Respondent I under
the existing contract and/or 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.
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.
14.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the relevant employment contract between the 1st
Respondent and the Claimant contains a provision by means of which the
parties had beforehand agreed upon an amount of compensation for breach
of contract. In this regard, the Chamber established that no such compensation
clause was included in the said employment contracts at the basis of the
matter at stake.
15.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the 1st Respondent to the Claimant had to be
Club A, country B / Player C, country D & Club E, country B
13/17
assessed in application of the other parameters set out in art. 17 par. 1 of the
Regulations. In this regard, the DRC emphasised beforehand that each request
for compensation for contractual breach has to be assessed by the Chamber on
a case-by-case basis taking into account all specific circumstances of the
respective matter, as well as the Chamber’s specific knowledge of the world of
football and its experience gained throughout the years.
16.
Consequently, in order to estimate the amount of compensation due to the
Claimant in the present case, the Chamber firstly turned its attention to the
remuneration and other benefits due to the 1st Respondent under the existing
contract and the new contract(s), which criterion was considered by the
Chamber to be essential. In this context, the members of the Chamber deemed
it important to emphasise that the wording of art. 17 par. 1 of the Regulations
allows the DRC to take into consideration both the existing contract and the
new contract(s) in the calculation of the amount of compensation, thus
enabling the Chamber to gather indications as to the economic value
attributed to a player by both his former and his new club(s).
17.
In this regard, the DRC established, on the one hand, that the employment
contract between the Claimant and the 1st Respondent, signed on 30 August
2011, had been set to expire on 30 June 2015. Therefore, as of 30 May 2014,
i.e. the date of the breach, the total value of the 1st Respondent’s employment
contract with the Claimant for the remaining contractual period amounted to
EUR 2,166,667.
18.
On the other hand, the members of the Chamber established, based on the
statements of both the 1st Respondent and 2nd Respondent as well as the
documentation provided by the relevant parties, that the value of the new
employment contract concluded between the aforementioned parties
amounted to a total of EUR 2,063,000 net, for the period running until 30 June
2015. On the basis of the aforementioned financial contractual elements, the
Chamber concluded that the average of remuneration between the contracts
concluded by the 1st Respondent respectively with the Claimant and the 2nd
Respondent over the relevant period amounted to EUR 2,114,833.
19.
The members of the Chamber then turned to the further essential criterion
relating to the fees and expenses paid by the Claimant for the acquisition of
the 1st Respondent’s services insofar as these have not been amortised over the
term of the relevant contract. The Chamber recalled that a transfer
compensation of EUR 12,900,000 had been paid by the Claimant to the Club G
for the 1st Respondent‘s transfer on 31 August 2011, documentation of which
has been presented by the 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 1st Respondent was still bound to
the Claimant for one further year of contract when he terminated the relevant
Club A, country B / Player C, country D & Club E, country B
14/17
employment contract, which was signed by the parties with a view to remain
contractually bound for a total period of four seasons. As a result of the 1st
Respondent’s breach of contract on 30 May 2014, the Claimant has thus been
prevented from amortising the amount of EUR 3,225,000, relating to the
transfer compensation that it paid in order to acquire the 1st Respondent’s
services, which the Claimant spent with the intention to benefit from the 1st
Respondent’s services for the period of time that would then be established by
means of the contract of employment.
20.
The Chamber then focused on the agent fee of EUR 1,000,000 that the
Claimant alleged having incurred in connection with the signing of the 1st
Respondent. In this regard, the members of the Chamber pointed out that
according to article 17 par. 1 of the Regulations, agent fees may be included as
one of the criteria to be taken into account in the calculation of compensation.
In this respect, the members of the Chamber referred to the bank statement
submitted by the Claimant in relation to the payment of the amount of EUR
1,000,000 as agent fee on 6 October 2011 and concluded that the amount of
EUR 250,000 shall be taken into account as unamortised agent fee for the
remaining year.
21.
Moreover, the Chamber wished to point out that, in accordance with its
longstanding jurisprudence and due to a lack of legal basis, it did not take into
account the amount claimed for the loss of a possible transfer fee with Club H,
as well as the amount claimed for the replacement of the 1st Respondent and
for the specificity of sport.
22.
Consequently, on account of the above-mentioned considerations, the
Chamber decided that the 1st Respondent must pay the amount of EUR
5,589,833 to the Claimant as compensation for breach of contract.
Furthermore, the 2nd Respondent is jointly and severally liable for the payment
of the relevant compensation (cf. point II.12. above).
23.
In addition, with regard to the Claimant’s request for interest and as per the
well-established jurisprudence of the DRC, the Chamber decided that the
Claimant is entitled to 5% interest p.a. on said amount as of 3 July 2014 until
the date of effective payment.
24.
For the sake of completeness, the Chamber finally analysed whether the
breach of contract by the 1st Respondent had occurred within the protected
period. In this regard, the members of the Chamber referred to item 7. of the
“Definitions” section of the Regulations, which stipulates inter alia that the
protected period comprises “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
Club A, country B / Player C, country D & Club E, country B
15/17
contract, where such contract is concluded after the 28 th birthday of the
professional”. Having stated the above, the DRC recalled the specificity of the
sporting season in country B which was held in two stages in 2011-2012. In
view of the above, and in particular, with due consideration to the special
circumstances of the sporting seasons in country B in casu, as well as
considering that the player was 24 years old when he signed the contract and
that he breached the contract on 30 May 2014, the Chamber concluded that
the breach occurred outside the protected period.
25.
In conclusion, the DRC decided that the claim of the Claimant is partially
accepted and that the Respondent 1 has to pay to the Claimant EUR 5,589,833,
plus 5% interest p.a. on said amount as from 3 July 2014 until the date of
effective payment, as compensation for the unilateral termination of the
contract without just cause. In this respect, the DRC also determined that the
2nd Respondent is jointly and severally responsible for the payment of the
above-mentioned amount of compensation to the Claimant.
26.
Furthermore, the Chamber held that the Claimant’s claim pertaining to legal
costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules and
the Chamber’s respective longstanding jurisprudence.
27.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The 1st Respondent has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 5,589,833 plus 5%
interest p.a. on said amount as of 3 July 2014 until the date of effective
payment.
3.
The 2nd Respondent is jointly and severally liable for the payment of the
aforementioned amount (cf. point III.2 above).
4.
If the aforementioned sum plus interest 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.
5.
Any further claim lodged by the Claimant is rejected.
Club A, country B / Player C, country D & Club E, country B
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6.
The Claimant is directed to inform the 1st Respondent and the 2nd Respondent
immediately and directly of the account number to which the remittance is to
be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Acting Deputy Secretary General
Encl. CAS directives
Club A, country B / Player C, country D & Club E, country B
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