Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 28 June 2013,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
Club Z, from country E
as Claimant/Counter-Respondent
against the player,
Player M, from country U and G
as Respondent 1/Counter-Claimant
and the club,
Club A, from country C
as Respondent 2
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 2 July 2008, Player M (hereinafter: the player), born in August 1979, and Club Z, from
country E, concluded an employment contract as well as a supplementary agreement both
valid as from the date of signature until the end of season 2010/2011.
2.
According to the contract, the player was entitled to receive the total amount of EUR
3,400,000, payable as follows:
- for the season 2008/2009: EUR 1,000,000, of which 25% was to be paid as advance
payment on 2 July 2008, 50% in two instalments of EUR 250,000 each, due on 5 July 2008
and 1 January 2009 respectively, and the remaining 25% at the end of the season
according to the player’s participation;
- for the season 2009/2010: EUR 1,000,000;
- for the season 2010/2011: EUR 1,400,000.
3.
According to art. 2.8 of the supplementary agreement “The player can get a home and a
car of a reasonable choice to be paid for by the Club.”
4.
Moreover, the “Financial list” of the contract stipulated the following: “Accommodation
For Overseas Players 1- Married Player currency of country E 3000/monthly; 2- Single Player
currency of country E 2500/monthly”.
5.
According to clause 6 of the contract, the player “attends all the practices and friendly and
official matches of the club whether national or confederation or international […] with
his best effort”. In addition, the same clause provided that “the player should not
participate in any other activity except the activities of the country E Football Association
without a written agreement from the club”.
6.
Moreover, clause 6 par. 8 of the contract stipulates that “any period of suspension imposed
on the player under a decision from the association or the club which the player is
responsible for its reasons after adequate investigation and after the suspension is
approved by the association, the club has the right to deduct proportion from the players
dues equal to the period of suspension to the season”.
7.
In addition, the “Financial list” of the contract stipulated the following: “Absence from
Training – Absence without permission for 1st time deducting currency of country E 3000,
second time currency of country E 4000, third time currency of country E 5000, for the
fourth time currency of country E 10000 and be raised to Club Board for adding any other
penalty.”
Club Z, from country E / Player M, from country U and G, Club A, from country C
2/22
8.
On 28 March 2009, the player sent a letter to Club Z, in which he affirmed that the latter
club breached the contract by not paying him six months of salary as well as his bonus, had
not provided him with accommodation, nor with a car and had failed to protect him from
fans attacking him. Moreover, according to the same letter, Club Z was given a deadline to
comply with its obligations until 31 March 2009, after which the player would start legal
proceedings.
9.
On 1 April 2009, the player terminated the contract in writing with immediate effect, since
“The employment relationship between me and Club Z is disrupted up to the point that a
continuation is possible any longer”.
10.
On 3 May 2009, Club Z replied to the player in writing that it rejected all allegations
mentioned by the player and that it considered the termination by the player a serious
breach within the protected period and informed the player that it would start legal
actions in front of FIFA.
Club Z’s claim:
11.
On 29 May 2009, Club Z filed a claim with FIFA against the player for the unilateral
termination of the employment contract by the latter without just cause during the
protected period and after amending its claim, requested the amount of EUR 3,408,892.40
as compensation, made up of:
- Value of contract: EUR 2,650,000 as from 1 April 2009 until 30 June 20011, plus USD
46,800 for accommodation as from July 2008 until February 2009;
- Fees and expenses: transfer fee of EUR 500,000 was paid by the club to Club N. This
amount should be amortized over the term of the contract (3 years) and multiplied by
2.25 years, amounting to EUR 375,000;
- Any other objective criteria: car rental costs of EUR 51,260.20 if any;
- Sportive and image damages suffered by the club, since the player, being the most
reputable player in the club, breached the contract without just cause before the
decisive phase of the country E Football League started and left the club without any
opportunity to transfer a substitute player due to the transfer window, also causing big
media attention. Therefore an amount of EUR 300,000 could be considered as justified.
12.
Moreover, Club Z requests that sporting sanctions should apply and that the player shall be
banned for six months, alternatively four months, from playing in official matches.
13.
Finally, Club Z requests procedural costs to be paid by the player.
14.
In its arguments, Club Z alleged that the deadline given by the player to it in its letter
dated 28 March 2009 of three days for the club to comply with its obligations was very
Club Z, from country E / Player M, from country U and G, Club A, from country C
3/22
short and that the player used this as an excuse to terminate the contract, allegedly with
just cause, since he had violated the contract himself prior to that date.
15.
Club Z further emphasised that the player had the highest salary in the club’s history and
that the player’s well-being was of importance to the club. Therefore, it always fulfilled its
financial obligations and in this respect provided the following documentary evidence:
a.
b.
c.
d.
e.
f.
g.
h.
i.
16.
cheque dated 14 July 2008 for the amount of EUR 366,000 net, being the amount of
EUR 500,000 gross made up of the advance payment (EUR 250,000) and first instalment
(EUR 250,000) minus taxes (EUR 100,000) and minus the registration fee (EUR 34,000);
cheque dated 14 December 2008 in the amount of EUR 12,000 net and a cheque dated
19 January 2009 in the amount of EUR 20,000 net;
cheque dated 15 December 2008 for accommodation in the amount of USD 15,000 for
the period of 10 December 2008 until 9 February 2009. According to Club Z, it paid USD
48,750 for the player’s accommodation as of July 2008, whereas the player was only
entitled to receive currency of country E 27,000 equivalent to USD 4,802 according to
the “Financial list” of the contract for the period of July 2008 until March 2009. As to
the car expenses, there is no stipulation according to the contract or the financial
agreement;
cheque dated 12 January 2009 for the second salary instalment due on 1 January 2009
in the net amount of EUR 75,132;
fine of currency of country E 50,000 for unjustified absence from trainings on 12, 13, 14
and 15 October 2008 and currency of country E 25,000 for participation in the friendly
match of the country G national team without the club’s consent on 15 October 2008,
which was deducted from the player’s salary in accordance with the club’s regulations;
fine of currency of country E 20,000 by the country E Football Association for bad
behaviour on 14 November 2008 in a match between club Z and the Club P. Also, the
player was suspended for three matches by the country E Football Association due to
his bad behaviour on 18 November 2008;
fine of EUR 72,202 based on clause 6 lit. 8 of the contract as an additional punishment
for the country E Football Association suspension;
fine of EUR 40,000, because the player failed to demonstrate seriousness, commitment
and directions of Club Z’s staff during the official league match against Club O, equal
to 4% of each player’s annual salary, i.e. 4% of EUR 1,000,000;
absence sheets listing the player’s absences from 24 trainings as from 1 January 2009
until 31 March 2009; therefore the player’s salary was deducted by EUR 120,000
corresponding to EUR 5,000 per day.
Moreover, Club Z stressed that all coaches thought that the player had a bad physical
condition and that it received a letter by the player’s agent on 1 February 2009, in which
the latter had mentioned that the player failed to pay him his agent’s fee.
Club Z, from country E / Player M, from country U and G, Club A, from country C
4/22
Reply of the player and counter-claim:
17.
In his reply to Club Z’s claim, the player stated that he terminated the contract with just
cause due to several breaches committed by the latter club. The player affirmed that by the
end of March 2009 he had only received salary in the amount of EUR 366,000 instead of
EUR 750,000 and that he had been evicted from his accommodation, because the club had
failed to pay his rent. Moreover, the player had to buy his own car since Club Z allegedly
failed to provide him with one and was also in fear of his personal security as a result of
continuous threats against him.
18.
Furthermore, the player alleges that he tried several times to find an amicable settlement
with Club Z, but that the latter told him that it had no money to meet its commitments.
19.
Therefore, the player deemed that he terminated the contract as a last resort after several
months of effort and Club Z’s persistent failure to honour its obligations regarding salary
and housing payments, and that he did not join another club until several months later,
and for a much reduced salary.
20.
As to Club Z’s allegations regarding the payment of his salary, the player stated the
following:
a.
b.
c.
d.
e.
as to the advance payment and first salary instalment in the amount of EUR 366,000,
the player states that the registration fee of EUR 34,000 which was deducted from his
salary was not agreed in the contract and Club Z paid the two instalments 12 days too
late, i.e. on 14 July 2008 instead of 2 July 2008;
as to the alleged cheque payments dated 14 December 2008 (EUR 12,000) and 19
January 2009 (EUR 20,000), the player states that the club did not explain what these
payments were and they are not in accordance with the contract. Even if these
payments were made, which they were not, Club Z knew that it was not up to date
with its contractual instalments by then;
as to the accommodation and car expenses the club alleges that it was not
contractually obliged to pay, the player states that art. 2.8 of the supplementary
agreement clearly states that he is entitled to a car and accommodation;
as to the second salary instalment, the player states that according to the contract he
was to be paid EUR 250,000, but Club Z asserted that the player would receive only
EUR 75,132 since it deducted several amounts – of which the player was never notified.
Moreover, the cheque dated 12 January 2009 in the amount of EUR 75,132 could not
be cashed;
as to the deductions of his salary due to his absence from trainings in the amount of
currency of country E 25,000 and currency of country E 50,000, the player states that,
with the approval of the club, he attended the FIFA World Cup qualifying match
Club Z, from country E / Player M, from country U and G, Club A, from country C
5/22
f.
g.
h.
i.
between country G and country L on 11 October 2008 and states that he was entitled
to 24 hours of travel time after the qualifier, making any fine regarding the training
session of 12 October 2008 groundless in line with the FIFA Regulations. The player
remained in country G until 16 October 2008, in anticipation that he would have been
asked to play, which however, did not occur. In any case, he understood that Club Z
had approved his absence until that time. Therefore, the player argues that if deemed
punishable under the club’s regulations, he would under the contract’s title “Absence
from Training” at most receive a fine of currency of country E 12,000;
as to the deduction of currency of country E 20,000 in application of an country E
Football Association sanction for bad gesture during a match on 14 November 2008,
the player denies these allegations and stresses that he was never notified of the
nature of this sanction and was unable to appeal;
As to the fine of EUR 72,202 as an additional punishment for the country E Football
Association suspension, the player points out that at the time of the country E Football
Association sanction, Club Z actually protested against the fine and suspension of the
player by the country E Football Association. Therefore, it was contradictory that Club
Z added its own, significantly harsher sanction on top of the country E Football
Association’s fine;
as to the fine of EUR 40,000 for alleged poor performance in the match against Club O,
the player states that this fine is purely subjective and excessive amounting to 4% of
his annual salary. Furthermore, there is no justification for Club Z having sanctioned its
entire team over a misplaced perception of lack of effort;
as to the absences from trainings in 2009, the player denies these allegations and
provides a copy of his passport according to which he did not leave country E as from
January until 31 March 2009, except as from 23 March 2009 until 31 March 2009 when
he visited his mother in country U, which was approved by Club Z. In this respect, the
player enclosed a website article dated 6 April 2009, which states that “country E club Z
are still waiting the arrival of striker Player M after the club had allowed the striker to
return to country U to visit his mother”.
21.
The player concluded that because of the aforementioned omissions by Club Z, it became
clear by March 2009 that the latter club had no intentions to fulfil its obligations and thus
he had just cause to terminate his contract.
22.
Regarding Club Z’s financial claim of EUR 300,000 regarding image damages caused by the
player, the player argued that the latter club has not provided any evidence nor has it
shown any evidence of actual negotiations or even plans to transfer or sell him.
23.
Consequently, the player lodged a counterclaim against Club Z for breach of contract and
claimed outstanding remuneration and compensation in the total amount of EUR
3,467,460 as follows:
Club Z, from country E / Player M, from country U and G, Club A, from country C
6/22
- EUR 534,000 plus 5% interest on each instalment made up of the registration fee of EUR
34,000 and the second instalment of EUR 250,000 of season 2008/2009 and EUR 250,000
for the final instalment of season 2008/2009;
- EUR 2,400,000 plus 5% interest for season 2009/2010 and 2010/2011;
- USD 49,000 for accommodation;
- EUR 500,000 supplementary compensation according to the Swiss Code of Obligations
being six monthly salaries.
24.
Finally, the player requested sporting sanctions on Club Z consisting in a ban from
registering any new players for the next two registration periods.
Replica of Club Z:
25.
In its replica, Club Z maintained its previous position and rejected the player’s arguments
and counterclaim providing the following arguments:
a.
c.
d.
e.
f.
as to the registration fee of EUR 34,000 which was deducted, Club Z states that it
informed the player that such fee would be payable by the latter and the fact that
the player did not contest the deduction when he received the cheque on 14 July
2008, but only a year later, shows that it fulfilled its obligations for the first and
second instalments;
as to the accommodation expenses, Club Z states that the player confirms with his
signature in a receipt dated 10 August 2008 that he received USD 24,000 net as well
as USD 15,000 net by cheque dated 15 December 2008 for accommodation as from 10
December 2008 until 9 February 2009. As to the alleged receipt provided in the
player’s position in the amount of USD 49,000 for the period of 1 October 2008 until
31 March 2009, Club Z asserts that neither the amount nor the purpose is legible in
the receipt and that the player never requested it to reimburse this amount until
now. Even if the player would have asked it to have this amount reimbursed, the
player was already indebted towards club on 1 April 2009;
as to the cheque dated 12 January 2009 in the amount of EUR 75,132, Club Z asserts
that even if it wouldn’t have been covered, it would be the player that owed monies
to Club Z on 1 April 2009;
as to the player’s unjustified absence in October 2008, Club Z states that the country E
Football Association demanded the country G Football Federation to ensure the
player’s return immediately after 11 October 2008, however, the player only returned
on 16 October 2008. Since Club Z had an important match on 17 October 2008, which
it lost, the player committed a significant violation;
as to the player’s bad behaviour in the match of 14 November 2008, Club Z states that
the country E Football Association’s sanction caused severe harm to Club Z since the
player was suspended for three matches – therefore its additional sanction is justified;
Club Z, from country E / Player M, from country U and G, Club A, from country C
7/22
g.
h.
i.
26.
the fine of EUR 72,202 imposed on the player is based on clause 6 par. 8 of the
contract. During the season 2008/2009 there were 30 matches and the suspension of
three matches by the country E Football Association corresponds to 1/10 of the
number of total matches and thus the amount of the sanction is proportional;
as to the fine of EUR 40,000 resulting from the club’s board decision regarding the
match against Club O, the club reiterated that the player failed to demonstrate
seriousness and commitment, and the player was aware of it;
as to the player’s absence from trainings in 2009, Club Z maintains its position and
objects that it authorised the player to visit his mother in country U. Moreover, Club Z
states that the player failed to provide any proof, since the fact that he was in
country E has no connection between the player’s absence from trainings. As to the
fines, the club emphasises that the player’s assertions that he was not informed are
untrue, since he did not contest them at Club Z or the country E Football Association.
Moreover, the sanctions are based on the club’s regulations which were also signed
by the player.
Moreover, Club Z enclosed an overview of the following outstanding amounts:
Item
Amount
(gross)
Amount (net)
after tax
Deductions
Salary: first and
second
instalment
2008/2009
Salary: third
instalment
2008/2009
EUR 500,000
EUR 400,000
EUR 34,000
(registration fee)
EUR 250,000
EUR 200,000
EUR 112,202 (EUR
72,202 (lit. g) +
EUR 40,000 (lit.
h); plus EUR
12,666 sanctions;
plus EUR 120,000
Accommodation
until 9
November 2009
Accommodation
until 31 March
2009
Unspecified item
I
Not specified
(player claims
USD 49,000)
EUR 15,000
Unspecified item
II
EUR 24,000
Car
Total
Not specified
Payment
(club
to
player)
EUR 366,000
Outstanding
amount
Cheque not
covered EUR
75,132 (lit. d)
EUR 44,868 to be
paid by player to
club
USD 24,000
net or USD
28,800 gross
USD 15,000
net or USD
18,000 gross
EUR 12,000 (lit.
b) (cheque
dated 4
December 2008)
EUR 20,000 (lit.
b) (cheque
dated 19
January 2009)
Club Z, from country E / Player M, from country U and G, Club A, from country C
Max. USD 34,000 to
be paid by club to
player
EUR 12,000 received
by player
EUR 20,000 received
by player
EUR 51,260.20 to be
paid by player to
club
8/22
27.
In view of the above, Club Z held that until 1 April 2009 it paid the player the total amount
of EUR 425,193.50 net and that the player owed it the amount of EUR 51,260.20, from
which car rental costs may be deducted if any shall be granted by the DRC.
28.
As to the player’s allegations about the lack of security, Club Z stated that the player failed
to provide any proof that the club would have not taken care of his security.
29.
Finally, Club Z indicated that the player signed a new employment contract with the Club
A, from country C, where the player was tested positively in a doping control which was
submitted by the country C Anti-Dopoing Commission in April 2010.
Duplica of the player:
30.
In his duplica, the player maintained his previous arguments and counterclaim.
31.
In addition, the player stated that in its replica, Club Z did not deny that it had ailed to pay
accommodation and a car to the player. Club Z’s only defence is that it was entitled to
withhold payment to the player as a form of “setoff” for damages allegedly incurred after
the second instalment was due.
32.
Furthermore, the player elaborated on the following:
a.
c.
d.
e.
h.
33.
as to the deduction of the registration fee, the contract does not have such clause
and Club Z has failed to provide its club’s regulations as evidence;
as to the accommodation, Club Z in its claim states that the contract does not
stipulate any such clause, but that the player received such amounts in any case. In its
replica, however, Club Z acknowledged the supplementary agreement and its clause
that the player is entitled to “a home and a car”;
as to the second salary instalment, Club Z does not deny in its replica that the cheque
bounced for lack of sufficient funds and thus it remains uncontested that no payment
was made for the second instalment due on 1 January 2009. Therefore, by 28 March
2009, Club Z was already three months late in paying the second instalment;
as to the player’s absence in October 2008, the player emphasizes that Club Z did not
provide any evidence to the contrary that the player had been given leave to remain
in country G until 16 October 2008;
as to the fine imposed on the player of EUR 40,000, Club Z failed to provide any
evidence to support that this fine was proportionate and the website article cited by
Club Z confirms that the player had no explanation for the late and failed cheque.
In addition, the player asserted that Club Z appeared to be justifying its breach of contract
in January 2009 with “subsequent events” which allegedly occurred between 15 January
Club Z, from country E / Player M, from country U and G, Club A, from country C
9/22
and 1 April 2009. Moreover, the bad cheque for the amount of EUR 75,132, provided to the
player on 12 January 2009, was produced three days prior to the commencement of these
events for which Club Z claims that the player owes money, and in its replica Club Z
acknowledges that such cheque was not covered.
34.
Finally, the player stated that any alleged on-going anti-doping procedure between
himself and Club A is irrelevant to the dispute and confidential.
35.
Lastly, the player reasoned that in case the DRC decides that he terminated the contract
without just cause, Club Z should only be entitled to compensation in the amount actually
paid to the player, being EUR 366,000 minus USD 49,000 accommodation, this latter
amount having been paid by the player.
Final position of Club Z on the player’s counter-claim:
36.
In its final position as to the player’s counterclaim, Club Z provided a correspondence dated
30 August 2012 from the country E Football Association, confirming that during the season
2008/2009 it was the obligation of a player to pay 1% of the total amount of his contract as
a registration fee and that “This letter have been given upon Club Z request, to whom it
may concern without any responsibility of the country E Football Association.”.
37.
As to the cheque of EUR 75,132, Club Z pointed out that the player did not provide any
proof as to whether he even tried to cash the respective cheque.
38.
As to the player’s absence in trainings, Club Z stated that it cannot think of any means of
proof which would be clearer than the report sheets it submitted by its coach.
39.
Finally, Club Z indicated that in the alternative, it claims compensation in the amount of
EUR 2,288,760.20 against the player and that Club A shall be jointly liable for the payment
of such compensation. The requested amount is made up of:
- Fees and expenses incurred by the former club: transfer fee of EUR 500,000 was paid by
the club to Club N, which should be amortized over the term of the contract (3 years)
and multiplied by 2.25 years amounting to EUR 375,000, plus EUR 62,500 for the first
season which ended on June 2009;
- EUR 1,500,000, since the new contract signed with Club A contains a clause stipulating
that if the player is transferred to a third club, Club A shall receive this amount –
therefore, this should be considered as the player’s market value;
- Any other objective criteria: car rental costs of EUR 51,260.20 if any;
- Sportive and image damages suffered by the club: same as previously (cf. I. 12. above).
40.
Club Z additionally requested that the entire file of the player’s apparent positive doping
test of 14 April 2010 shall be disclosed by FIFA.
Club Z, from country E / Player M, from country U and G, Club A, from country C
10/22
Final position of the player on Club Z’s amended claim:
41.
As to the amended claim, the player argued that the statement provided by the country E
Football Association regarding the registration fee should not be taken into account, since
it was created at the request of Club Z and states that the country E Football Association
does not take any responsibility for it.
42.
Moreover, the player stressed that Club Z is demonstrating its bad faith by unnecessarily
delaying the resolution of the present dispute and making incoherent pleadings.
43.
Finally, the player stressed again that in case the DRC would decide in favour of Club Z, the
latter is at most entitled to compensation actually paid to him in the amount of EUR
366,000 minus USD 49,000 paid by the player for accommodation.
Player’s employment situation after the termination of the contract with Club Z:
44.
On 5 August 2009, the player signed an employment contract as well as a supplementary
agreement with the Club A, from country C, valid as from 4 August 2009 until 31 May 2011.
According to the contract, the player is entitled to receive a total amount of EUR 155,000
gross payable as follows: EUR 70,000 payable in ten instalments of EUR 7,000 as from 31
August 2009 until 31 May 2010 and EUR 85,000 payable in ten instalments of EUR 8,500 as
from 31 August 2010 until 31 May 2011. In addition, the player is entitled to receive
according to the supplementary agreement the amount of EUR 360,000 of which EUR
145,000 as a sign-on fee, EUR 100,000 for the season 2009/2010 and EUR 115,000 for the
season 2010/2011.
45.
On 28 June 2010, the player and Club A allegedly terminated their employment contract by
mutual agreement. Therefore, the player allegedly received a total amount of EUR 240,000
during his employment with Club A.
46.
The player did not find new employment between July 2010 and 30 June 2011.
47.
Despite having been invited by FIFA to do so, Club A did not provide its position as to Club
Z’s claim.
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
Club Z, from country E / Player M, from country U and G, Club A, from country C
11/22
took note that the present matter was submitted to FIFA on 29 May 2009. Consequently,
the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the
matter at hand (cf. article 21 par. 2 and 3 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 2010) the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute of international dimension between an country E club, an country
U/country G player and a country C club.
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 (editions 2008, 2009 and
2010) and considering that the present claim was lodged on 29 May 2009, the 2008 edition
of the said regulations (hereinafter: Regulations) is applicable to the matter at hand as to
the substance.
4.
The competence of the Chamber and the applicable regulations having been established,
the Chamber entered into the substance of the matter. The members of the Chamber
started by acknowledging the above-mentioned facts and documentation contained in the
file.
5.
In this respect, the Chamber firstly noted that Club Z and the player concluded an
employment contract and a supplementary agreement on 2 July 2008, valid until the end
of season 2010/2011. In this regard, Club Z claimed that the player terminated the
employment contract unilaterally and without just cause and that Club A shall be held
jointly liable for the breach of contract by the player. In this regard, Club Z requests EUR
3,408.892.40 from the player or in the alternative EUR 2,288,760.20 from the player and
Club A. Club Z based its claim on the fact that, allegedly, it had always fulfilled its financial
obligations towards the player, and that the deadline given by the player in his letter dated
28 March 2009 of three days for Club Z to comply with its obligations before terminating
the contract was very short, bearing in mind that the player was at the time in debt
towards Club Z due to several fines and salary deductions imposed on him. Therefore, Club
Z equally requested the imposition of sporting sanctions on the player (six months’
suspension, alternatively four months).
6.
The Chamber noted that, on the other hand, the player rejected Club Z’s claim and stressed
that he terminated the contract with just cause due to several breaches committed by Club
Z. In this respect, the player explained that by the end of March 2009 he had only received
EUR 366,000 instead of EUR 750,000 and had been evicted from his accommodation. In
addition, the player argued that he had terminated the contract as a last resort after Club
Club Z, from country E / Player M, from country U and G, Club A, from country C
12/22
Z’s persistent failure to honour its obligations regarding salary and housing payments and
did not join another club until several months later for a reduced salary. The player thus
argued that Club Z breached the contract without just cause and lodged a counter-claim
against Club Z in the amount of EUR 3,467,460 plus 5% interest on the instalments for
outstanding remuneration and compensation. The player also requested sporting sanctions
on Club Z consisting in a ban from registering any new players for the next two registration
periods.
7.
Finally, the Dispute Resolution Chamber noted that despite having been invited by FIFA to
do so, Club A did not provide its position as to Club Z’s claim.
8.
In view of the contents of the parties’ claim, respectively counter-claim, the Chamber firstly
noted that it remains undisputed that on 1 April 2009 the player terminated the
employment contract in writing after having put Club Z in default, on 28 March 2009, of
the payment of six months’ salary as well as a bonus. In this regard and considering the
parties’ divergent positions, the Chamber deemed that the underlying issue in this dispute
was to determine whether the employment contract had been unilaterally terminated by
the player with or without just cause.
In this respect, the members of the DRC turned their attention to the arguments of Club Z,
which deemed that the player had terminated the employment contract without just cause,
because the player was in violation of the contract at the time of his unilateral termination
and owed Club Z outstanding monies. In other words, there was no debt towards the
player, since his salary was to be set off with the fines that had been imposed on him,
which made the player a debtor towards Club Z.
9.
10.
In view of the above, the Chamber deemed it appropriate to examine the documentation
on file as well as the submissions of the parties, bearing in mind the contents of 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.
11.
In this context, the Chamber first of all recalled the stipulations of the employment contract
signed by the parties on 2 July 2008 valid until the end of the season 2010/2011. According
to the contract, the player was entitled to receive the total amount of EUR 3,400,000,
payable as follows:
- for the season 2008/2009: EUR 1,000,000, of which 25% was to be paid as advanced
payment on 2 July 2008, 50% in two instalments of EUR 250,000 each, due on 5 July
2008 and 1 January 2009 respectively, and the remaining 25% at the end of the season
according to the player’s participation;
- for the season 2009/2010: EUR 1,000,000;
- for the season 2010/2011: EUR 1,400,000.
12.
In continuation, the Chamber started its analysis of the documentary evidence provided by
the parties with the cheque dated 14 July 2008 in the amount of EUR 366,000 which was
Club Z, from country E / Player M, from country U and G, Club A, from country C
13/22
issued by Club Z to the player in relation to the contractually agreed advance of payment
and first instalment in the total amount of EUR 500,000. In this respect, the DRC pointed
out that, from the amount of EUR 500,000, the player only received EUR 366,000, this is,
according to the parties’ explanations, EUR 100,000 were deducted as taxes while Club Z
deducted the amount of EUR 34,000 as a registration fee.
13.
In view of the above, the Chamber established that the player does not contest that the
amounts due under the contract were gross, since he does not disagree that the amount of
EUR 100,000, corresponding to 20% taxes, was deducted from the aforementioned amount
of EUR 500,000.
14.
Furthermore, the DRC pointed out that the net amounts due according to the contract up
until the termination of the contract, i.e. until 1 April 2009, was of EUR 600,000, made up
of EUR 200,000 net as advance of payment and EUR 200,000 net each due on 5 July 2008
and 1 January 2009, respectively.
15.
Having established the above, the Chamber lent emphasis on Club Z’s justifications as to
why it had not proceeded to the complete payment of the player’s remuneration up until 1
April 2009. The DRC noted that Club Z states having rightfully made some deductions from
the player’s salary, due to several offences allegedly committed by the latter, and thus that
the player was in fact indebted towards them.
16.
In this context, the Chamber firstly turned its attention to the deduction of the registration
fee of EUR 34,000 made by Club Z on the advance payment and first instalment. In this
respect, the Chamber analysed the contents of the employment contract and
supplementary agreement and pointed out that such fee was not contractually stipulated.
However, the DRC noted that Club Z provided a correspondence from the country E
Football Federation dated 30 August 2012, confirming that during the season 2008/2009 it
was the obligation of a player to pay 1% of the total amount of his contract as a
registration fee and that “This letter have been given upon Club Z request, to whom it may
concern without any responsibility of the country E Football Association.” In this context,
the DRC stated that the contents of such letter cannot be considered as evidence that the
player had agreed to the relevant deduction, since the letter was only provided during the
course of the present investigation and for the purpose thereof.
17.
Consequently, the DRC decided that Club Z had no contractual basis to rightfully deduct
said amount the amount of EUR 34,000 and that the said amount had to be considered as
outstanding since 5 July 2008.
18.
In continuation, the Chamber went on to analyse the fines imposed by Club Z on the
player. The first two fines, which appear to be linked, pertain to the alleged unjustified
absence from trainings as from 12 until 15 October 2008 and to the fact that it lost a match
on 17 October 2008 (country E Football Association 50,000), as well as to the player’s
Club Z, from country E / Player M, from country U and G, Club A, from country C
14/22
participation in the friendly match between country G and country L (currency of country E
25,000). In this regard, the members of the Chamber noted that it was undisputed that the
player was absent from trainings, with the authorization of Club Z, as from 12 until 16
October 2008, since he was participating in the friendly match of the country G national
team.
19.
In this regard, the DRC recalled that according to art. 1 par. 7 of Annexe 1 of the
Regulations a player has to resume duty within 24 hours after the end of an international
friendly match. Therefore, the DRC concluded that in absence of any documentary evidence
to the contrary, it is to be concluded that the player was absent from trainings without
Club Z’s authorization for three days as from 12 until 15 October 2008.
20.
In this context, the DRC turned to the “Financial List” of the contract, according to which in
case of a player’s absence from training he is fined country E Football Association 300 for
the first offence. Therefore, applying the aforementioned contractual stipulation, Club Z
was entitled to fine the player, for three days of absence from training, in the maximum of
country E Football Association 900. As a result, the Chamber decided that the fine of
country E Football Association 50,000 imposed by Club Z on the player was clearly
disproportionate and unjustified.
21.
Equally, the DRC saw no justification as to the imposition of the fine in the amount of
country E Football Association 25,000 since the player participated in the friendly match of
his national team against country L in compliance with the call up by the country G Football
Association and that, as such, imposing a fine for the mere fact that the player participated
in said match is clearly in violation of the FIFA Regulations.
22.
Therefore, the DRC concluded that a fine of a maximum amount of country E Football
Association 900, corresponding to EUR 1,200, could be imposed on the player as a fine
regarding his absence from training between 12 and 15 October 2008.
23.
In continuation of the analysis of the relevant evidence provided by the parties, the DRC
observed that the country E Football Association fined the player in the amount of country
E Football Association 20,000 on 14 November 2008 for bad behaviour during a match
between Club Z and Club P and suspended the player for three matches on 18 November
2008.
24.
In this respect, the members of the Chamber decided that the fine imposed directly by the
country E Football Association on the player and not by Club Z may be considered as
objective and proportionate to the offence. However, the Dispute Resolution Chamber
noted that Club Z, in addition to the country E Football Association’s above-mentioned fine
and suspension of three matches, imposed a fine on the player for the same offence in the
amount of EUR 72,202 based on clause 6 par. 8 of the contract.
Club Z, from country E / Player M, from country U and G, Club A, from country C
15/22
25.
In this respect, the DRC recalled the contents of clause 6 par. 8 of the contract, which
stipulates that “any period of suspension imposed on the player under a decision from the
association or the club which the player is responsible for its reasons after adequate
investigation and after the suspension is approved by the association, the club has the right
to deduct proportion from the players dues equal to the period of suspension to the
season”.
26.
The members of the Chamber pointed out that the meaning of said clause was not entirely
clear and that it leaves space for interpretation as to the right of the club to deduct a
certain amount from the player’s salary and the amount of such deduction. This being said,
the DRC deemed it appropriate to compare the sanction imposed by the country E Football
Association in relation to the player’s alleged bad behavior during the mentioned match
with the sanction imposed by Club Z for the same misbehavior. The Chamber noted that
the country E Football Association fined the player in the amount of country E Football
Association 20,000 (or EUR 2,700), together with a suspension of three matches, whereas
Club Z imposed an additional fine of EUR 72,202 for the same misbehavior. The DRC was of
the firm opinion that Club Z’s fine appears to be disproportionate if compared to the
sanction imposed by the country E Football Association and that clause 6 par. 8 of the
contract shall be understood as a right for Club Z to deduct a proportionate amount of the
player’s salary.
27.
In view of the above, the DRC had to establish which amount of Club Z’s fine on the player
would be considered proportionate bearing in mind the country E Football Association’s
fine and match suspension of three days. Taking into account the contractual stipulations,
the Chamber concluded that the player’s monthly net salary amounted to EUR 83,333.
Bearing in mind the player’s three day match suspension of the country E Football
Association, the Chamber concluded that a deduction of the equivalent of three days of the
player’s salary, amounting to a total EUR 8,333, could be considered proportionate and in
accordance with clause 6 par. 8 of the contract.
28.
As a result, the DRC concluded that Club Z’s additional fine of EUR 72,202 was
disproportionate and excessive and not in accordance with the interpretation of clause 6
par. 8 of the contract.
29.
The members of the Chamber went on with its observations of the documents on file and
paid close attention to the undated decision of Club Z’s Board according to which all
players’ annual salary was reduced by 4%, i.e. in the case of the player by EUR 40,000, since
the players failed to demonstrate seriousness, commitment and respect towards the
directives of the club’s staff during the official league match against Club O.
30.
In this respect, the Chamber noted that the relevant fine was of highly subjective nature,
while it is not at all evidenced that the player failed to demonstrate seriousness,
commitment and respect towards Club Z’s directives. In addition, the Chamber highlighted
Club Z, from country E / Player M, from country U and G, Club A, from country C
16/22
that Club Z failed to provide a copy of the club’s regulations as documentary evidence in
order to support its position. Therefore, the Chamber decided that Club Z could not provide
sufficient evidence that the amount of EUR 40,000 should be deducted and that said
deduction was made without just cause.
31.
Finally and referring to the player’s absences from 24 trainings as from 1 January 2009 until
31 March 2009, the DRC turned to the fine imposed by Club Z in the amount of EUR
120,000 corresponding to EUR 5,000 per day. In this regard, the members of the Chamber
noted that said fine was imposed on the player only after the player terminated the
contract. Furthermore, the DRC stressed that the amount of EUR 5,000 per absence day is to
be considered as disproportionate and not in line with the respective contractual
stipulation.
32.
For the sake of good order, the Chamber wished to point out that the imposition of a fine,
or any other available financial sanction in general, shall not be used by clubs as a means to
set off outstanding financial obligations towards players.
33.
In view of the above, the Chamber concurred that the various fines imposed on the player
by Club Z shall be mostly disregarded as being unjustified and/or disproportionate, with the
exception of:
34.
A fine in the maximum amount of currency of country E 900 regarding the
player’s absence from trainings as from 12 until 15 October 2008,
The fine of currency of country E 20,000 imposed by the country E Football
Association for bad behaviour during a match between Club Z and Club P dated 18
November 2008,
A fine in the maximum of EUR 8,333 regarding the player’ bad behavior during
a match between Club Z and Club P, following the country E Football
Association’s sanction.
The aforementioned having been established, the DRC continued its deliberations by
analysing the cheques in the amount of EUR 12,000 dated 14 December 2008 and EUR
20,000 dated 19 January 2009. In this regard, the player insists that this payment is not
related to the contractual financial obligations of Club Z towards him and it could not be
established to what these payments refer to. The DRC established that although Club Z
does not prove precisely to which financial obligations these payments corresponded to,
the player does not contest having received such amounts, whereas it has not been
unambiguously demonstrated that they were not related to Club Z’s financial obligations
under the contract. Consequently, the Chamber must conclude that Club Z had paid the
player EUR 32,000 as part of the remuneration due to the latter and had to acknowledge
that the amount of EUR 32,000 have been duly paid and are not to be considered as
outstanding remuneration towards the player.
Club Z, from country E / Player M, from country U and G, Club A, from country C
17/22
35.
In continuation, the DRC noted that Club Z provided a copy of a cheque in the amount of
EUR 75,132 dated 12 January 2009, which was allegedly paid in accordance with the second
salary installment due on 1 January 2009. After a thorough analysis of the parties’ positions
in this respect, the Chamber noted that the player argued that said cheque could not be
cashed and provided an insufficient funds notice as documentary evidence. Moreover, the
Chamber noted that Club Z in its replica provided an overview chart with the outstanding
amounts, in which it stated “Cheque not covered EUR 75,132”. Bearing in mind art. 12 par.
3 of the Procedural Rules, the Chamber was convinced that Club Z failed to pay the amount
of EUR 75,132 to the player and that consequently such amount has to be considered as
part of the outstanding amount due to the player.
36.
Finally, turning its attention to the accommodation fees allegedly paid by Club Z, the DRC
noted that in accordance with the contract’s “Financial list”, the player was entitled to
receive a maximum amount of currency of country E 3,000 corresponding to USD 530 per
month. In this context, the DRC took into account that Club Z provided two cheques dated
10 August 2008 and 15 December 2008 in the total amount of USD 39,000, signed by the
player, the validity of which was not contested by the latter. Moreover, the Chamber noted
that the player in his counterclaim requests the amount of USD 49,000 for accommodation
as from October 2008 until end of March 2009, an amount which is considerably higher
than the contractually stipulated amount. Furthermore, Club Z provided documentary
evidence that it paid the player USD 39,000 for accommodation fees, and thus sufficiently
demonstrated that it has fulfilled its contractual obligation regarding payment of the
player’s accommodation fees.
37.
In view of all of the above, the Dispute Resolution Chamber gathered an overview of the
outstanding amounts at the moment when the player terminated the contract. In this
respect, the Chamber recalled that EUR 600,000 gross were to be paid by Club Z until
1 January 2009 to the player. Of said amount it is undisputed that the player received
EUR 366,000, and thus EUR 234,000 were to be considered as outstanding at the moment
the player terminated the contract. From such amount, EUR 32,000 was to be established as
paid by Club Z via two cheques and consequently EUR 202,000 was to be considered
outstanding. Furthermore and as established above, the fine imposed on the player by the
country E Football Association in the amount of currency of country E 20,000 (or EUR 2,700)
was to be considered justified (cf. II. 22. above) and thus can be deducted from any
outstanding amounts, equaling to EUR 199,300 being outstanding. Finally and after
analyzing the several fines imposed by Club Z on the player, the DRC established that such
fines were excessive and concluded that the total amount of EUR 9,533 only was to be
considered proportionate and could be imposed on the player, and equaling to a total
amount of EUR 189,767 being outstanding.
38.
On account of the above circumstances, the Chamber established that Club Z had
repeatedly sanctioned the player without justification while failing to remit a substantial
part of his salary without a just cause during a considerable amount of time (as of July
Club Z, from country E / Player M, from country U and G, Club A, from country C
18/22
2008) which conduct constitutes, in line with the long-lasting jurisprudence of the
Chamber, a clear breach of contract. Accordingly, the Chamber concurred that the player
had just cause to unilaterally terminate the employment contract on 1 April 2009 and thus,
that Club Z is to be held liable for the early termination of the employment contract
with just cause by the player.
39.
Having established that Club Z is to be held liable for the early termination of the
employment contract with just cause by the player, the Chamber focussed its attention on
the consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant is entitled to receive from the
Claimant/Counter-Respondent an amount of money as compensation for breach of
contract in addition to any outstanding payments on the basis of the relevant contract.
40.
First of all the Chamber reverted to the player’s financial claim and decided that the total
amount of EUR 189,767 made up of outstanding salaries for the period between July 2008
until January 2009 (cf. point II. 37. above) was to be paid by Club Z to the player.
41.
In addition, taking into consideration the player’s respective request, the Chamber decided
to award the player interest at the rate of 5% p.a. as of the day following the day on
which each of the salary payments included in the global amount of EUR 189,767 fell due
in accordance with the pertinent employment contract. In this regard, the Chamber
decided to award 5% interest p.a. over the amount of EUR 34,000 as of 6 July 2008 until 1
January 2009 and 5% interest p.a. over the amount of EUR 155,767 as of 2 January 2009
until the date of effective payment.
42.
In continuation, the Chamber focussed its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including, in
particular, the remuneration and other benefits due to the Claimant 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.
43.
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. The Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at
stake.
Club Z, from country E / Player M, from country U and G, Club A, from country C
19/22
44.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by Club Z to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that the
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body.
45.
On this basis, and in order to evaluate the amount of compensation for breach of contract,
the members of the Chamber took into account the remuneration due to the player in
accordance with the contract as well as the time remaining on the same contract, as well as
the professional situation of Club Z after the early termination occurred until the present
moment.
46.
In accordance with the employment contract signed by the parties, which was to run for
more than two more seasons being the season 2009/2010 and 2010/2011 after the breach
of contract occurred, the player was to receive remuneration amounting to EUR 2,650,000
net, made up of EUR 250,000 payable at the end of season 2008/2009 and the total amount
of EUR 2,400,000 for the season 2009/2010 and 2010/2011. Consequently, the Chamber
concluded that the amount of EUR 2,650,000 serves as the basis for the final determination
of the amount of compensation for breach of contract.
47.
The Chamber then took due note of the employment situation of the player after the
termination of the employment with Club Z, this is, that the player signed an employment
contract with the Club A, from country C, on 5 August 2009 valid until 31 May 2011,
according to which the player was entitled to a total remuneration of
EUR 515,000; however, the parties mutually terminated the contract on 28 June 2010. In
this regard, the Chamber was eager to emphasise that the circumstance that the player and
Club A mutually decided to terminate their employment relationship prior to its
contractually agreed expiry could not be reproached on Club Z and thus that the entire
contractual value shall be taken into account in the assessment of the compensation for
breach of contract due to the player.
48.
Furthermore, the Chamber highlighted that as from July 2010, i.e. the time when the
player’s contract with Club A was terminated by mutual consent, until the remaining
period of time of the contract with Club Z, at least three registration periods had been
open, during which time the player had the possibility to further mitigate his damages by
signing an employment contract with a new club.
49.
Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance with the
constant practice of the Dispute Resolution Chamber as well as the general obligation of
the player to mitigate his damages, such fact shall be taken into account in the calculation
of the amount of compensation for breach of contract.
Club Z, from country E / Player M, from country U and G, Club A, from country C
20/22
50.
Finally, the Chamber also underlined that the player put Club Z in default of their payment
obligations, granting the latter club a mere three days in order to comply with said
obligations. Immediately after the expiry of such deadline, the player terminated the
contract without attempting further to settle the matter in an amicable way. The Chamber
found that, in light of this specific circumstance and despite having had a just cause to
terminate the employment relationship, the player could have shown more willingness to
find an amiable solution to the dispute with Club Z and thus concluded that this particular
aspect should be taken into account as another mitigating factor in the assessment of the
compensation for breach of contract payable by Club Z to the player.
51.
Therefore, on account of all the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that Club Z must pay the player the amount of EUR
1,400,000, which is to be considered reasonable and proportionate as compensation for
breach of contract in the case at hand.
52.
In light of all of the above, the Dispute Resolution Chamber concluded its deliberations by
establishing that Club Z’s claim against the player is rejected, that the player’s counterclaim
is partially accepted and that Club Z must pay the player outstanding remuneration in the
amount of EUR 189,767 plus 5% interest p.a. over the amount of EUR 34,000 as of 6 July
2008 until 1 January 2009 and 5% interest p.a. over the amount of EUR 155,767 as of 2
January 2009 until the date of effective payment.
53.
Furthermore, the Chamber decided that Club Z is liable to pay to the player the amount of
EUR 1,400,000 as compensation for breach of contract plus interest of 5% p.a. over said
amount as from the date of the decision, i.e. 28 June 2013 until the date of effective
payment. Any further claims lodged by the player are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club Z, is rejected.
2.
The counterclaim of the Respondent 1/Counter-Claimant, Player M, is partially accepted.
3.
The Claimant/Counter-Respondent, Club Z, has to pay to the Respondent 1/CounterClaimant, Player A, within 30 days as from the date of notification of this decision, the
amount of EUR 189,767, plus interest of 5% p.a. as follows:
- 5% p.a. over the amount of EUR 34,000 as of 6 July 2008 until 1 January 2009;
- 5% p.a. over the amount of EUR 155,767 as of 2 January 2009 until the date of effective
payment.
4.
The Claimant/Counter-Respondent, Club Z, has to pay to the Respondent 1/CounterClaimant, Player M, within 30 days as from the date of notification of this decision,
Club Z, from country E / Player M, from country U and G, Club A, from country C
21/22
compensation for breach of contract in the amount of EUR 1,400,000 plus interest of 5%
p.a. over said amount as from the date of the decision until the date of effective payment.
5.
6.
7.
In the event that the aforementioned amounts plus interest due to the Respondent
1/Counter-Claimant, Player M, are not paid by the Claimant/Counter-Respondent, Club Z,
within the stated time limit, the present matter shall be submitted, upon request, to the
FIFA’s Disciplinary Committee for consideration and a formal decision.
Any further claims lodged by the Respondent 1/Counter-Claimant, Player M, are rejected.
The Respondent 1/Counter-Claimant, Player M, is directed to inform the Claimant/CounterRespondent, Club Z, 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 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Club Z, from country E / Player M, from country U and G, Club A, from country C
22/22