Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 June 2013,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Theodoros Giannikos (Greece), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the player,
Player M, from country N
as Claimant/Counter-Respondent
against the club,
Club U, from country Q
as Respondent/Counter-Claimant
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
The Player M, from country N (hereinafter: player or Claimant/CounterRespondent) and the Club U, from country Q (hereinafter: club or
Respondent/Counter-Claimant) signed an employment contract, bearing no date
of signature, valid as from 1 July 2010 until 31 May 2012, which refers to a
“Schedule” attached to it as regards the player’s remuneration (hereinafter:
contract).
2.
According to the “Schedule”, which was signed by and between the parties, the
player was entitled to receive inter alia a monthly salary of EUR 91,000 during
each of the two seasons as from August until and including May as well as a car
and housing.
3.
In accordance with the contract, if it is terminated without just cause or mutual
agreement, the club or the player shall be entitled to receive from the other party
in breach a compensation “for an all amount”.
4.
Furthermore, according to clause VIII of the contract, which deals with permanent
inability to play, inter alia, “The Club is entitled to insure the Player at its own
expense against death or permanent inability to play as the result of an accident
or sickness” and that claims arising in this respect are ceded by the player to the
club, which assumes the transfer of such claims.
Claim of the player:
5.
On 12 August 2011, the player lodged a claim against the club in front of FIFA
asking that a) the club be ordered to pay his salary for March, April, and August
2011 plus interest; b) to order the club to further comply with its contractual
obligations as of 1 September 2011 including those related to a car and
accommodation; c) to impose a penalty fee of EUR 1,000 per day as long as the
contractual violation continues; d) to order the club to pay to the player
extrajudicial costs of EUR 10,000 and the costs of the proceedings; e) to sanction
the club.
6.
The player submitted that the club had ceased the payment of his salary since
April 2011, when the club had been informed of a medical advice that he should
end his professional career on the basis of medical tests that the club asked him to
undergo in April 2011. In addition, the club had reclaimed the car and ended the
housing lease. The player held that such medical advice does not constitute a valid
reason not to remit his remuneration.
Player M, from country N / Club U, from country Q
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7.
The player added that he asked the club to arrange for a second opinion at a
West-European hospital, on the basis of which he would be able to make a
decision on his future, which he was still waiting for in spite of the club’s promises
to arrange for it.
8.
The player explained that throughout his entire career and during the contractual
negotiations with the club, it had been known that he suffers from a heart
condition. He asserted that he provided the club with his medical file and that the
club subjected him to two extensive medical tests, as a result of which he was
given medical clearance to play professional football.
9.
The player further pointed out that after an incident on 16 September 2010,
during which he lost consciousness for 15-30 seconds during training, and after
medical examination, it was concluded that he had suffered from dehydration.
The player asserted that, since this incident, he participated, without exception, in
all club games and training sessions and that recent tests had shown that he is in a
very good physical condition.
10.
He further maintained that after having left for holidays, apparently in early June
2011, he returned to the club on 6 July 2011, when he was told by the club that
he was not allowed to travel with the first team to a training camp in country F.
Club’s reply to the claim and counterclaim:
11.
In reply to the claim, the club referred to the player’s contractual obligations to
participate in competitions and training and to the insurance referred to in art.
VIII of the contract (cf. point I./4. above), which, according to the club, was to be
undertaken by the player at his expense in order to cover financial risks relating
to permanent incapacity to play.
12.
The club admitted that it had suspended the effects of the contract since 1 April
2011 and that it had not paid the player’s salary between April and June 2011,
during which time the parties allegedly tried to settle the matter amicably.
13.
The club further referred to its letter dated 6 July 2011 addressed to the player,
via which it informed the latter of the club’s position that it considered the
contract to have been terminated. In this letter, the club highlighted the
following elements: the player’s alleged failure to inform the club of his medical
condition prior to concluding the contract, the player’s permanent incapacity to
play, and the player’s alleged absence from the club as of 1 July 2011.
Player M, from country N / Club U, from country Q
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14.
The club held that, primarily, the contract must be considered terminated as of 1
May 2011 due to the player’s permanent incapacity to play football at
professional level, as confirmed by medical specialists on that day, in combination
with the bilateral character of an employment contract, or, subsidiarily, as of 6
July 2011, when the club terminated the employment contract (cf. the
aforementioned letter dated 6 July 2011) with just cause, as a result of which the
player is not in the position to claim the execution of the contract as of 2 May
2011 or 7 July 2011, respectively.
15.
As regards its statement that the contract must be considered terminated as of 1
May 2011, the club submitted that the player failed to duly inform the club of his
medical condition and it denies having received a full medical file from him.
According to the club, the player carries the burden of proof in this respect. The
club acknowledged that it has the obligation to obtain all necessary information
prior to concluding an employment contract, but insists that the player must duly
inform the club before signing on. In this respect, it refers to a CAS decision in
accordance with which, allegedly, a player may not disguise medical information
in the context of contractual negotiations. Furthermore, the club pointed out that
it intended to follow the medical advice and no longer let the player practice
professional football.
16.
The club asserted that it had no contractual obligation to have a second opinion
carried out on Western European territory as alleged by the player. In addition,
the club highlighted that the player has not brought forward any (medical)
documentation demonstrating a divergent medical diagnosis.
17.
Furthermore, on the basis of its primary position (cf. point I./14. above), the club
deemed that the player would be entitled to his salary for April 2011. In addition,
the club indicated that it would be willing, out of good faith and amicably, to pay
damages corresponding to two monthly salaries.
18.
In the context of its subsidiary position that it terminated the employment
contract with just cause on 6 July 2011, it refers to the circumstance that the
player had, in fact, been absent as from 28 June 2011, date on which training
sessions had started and which was allegedly communicated to the player on 29
May 2011. The player’s unjustified absence was, according to the club, while
invoking a DRC decision, a just cause to terminate the employment contract on 6
July 2011.
19.
On this basis, the club asked to be awarded compensation for breach of contract
in the amount of EUR 500,000, which was not further specified.
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Player’s replica to claim and response to counterclaim:
20.
The player rejected the counterclaim and amended his initial claim.
21.
Contrary to the club’s position, the player held that the employment relation had
not ended. In addition, he deemed that there was no (just) cause to terminate the
contract. He stated that the club never terminated the contract or confirmed this
to him and that it failed to present evidence of any termination.
22.
Should the Dispute Resolution Chamber (DRC) decide that the club terminated the
employment contract, the player held that, in such event, the club terminated it
without just cause and is thus to be held liable for payment of compensation
equalling the residual value of the employment contract plus outstanding salary
payments for May, August, and September 2011.
23.
Should the DRC decide that the club terminated the employment contract with
just cause on the basis that he is no longer able to compete in professional
football, which is denied by the player, the player held that, on the basis of DRC
case law, he is entitled to at least four months’ salary as compensation in addition
to the aforementioned outstanding salaries.
24.
The player asserted that he stayed in country Q until the beginning of September
2011 and visited the club every two days and repeatedly visited the team training
and had lunch with the rest of the squad, until the club replied to his claim in
front of FIFA. He further asserted that, in fact, neither he nor the club acted as if
the employment contract had indeed been terminated by the club. On 20
September 2011, he informed the club that he decided to await the result of the
pending procedure in country N emphasising that he did not accept or recognise
any termination of the employment contract and that he remained at the club’s
disposal at any moment.
25.
The player referred to art. 18 par. 4 of the Regulations on the Status and Transfer
of Players, pointing out that neither this article nor case law of the DRC makes a
distinction between short or long term injuries. Furthermore, according to the
player, the DRC decided in the past that an injury of the player does not
constitute just cause to terminate an employment contract.
26.
The player further insisted that he had informed the club of his medical history, in
particular of his heart condition, as a result of which the club proceeded with
extensive medical tests both in country L and country Q in May 2010, which tests
proved to be satisfactory. He added that he informed the club of the medical
reports of his previous clubs dated 2007 and 2008, which show his heart condition.
Player M, from country N / Club U, from country Q
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In addition, the player pointed out that it is the club’s responsibility to inform
itself of the player’s career and (medical) history prior to entering into a contract
with him.
27.
In February 2011, he was tested in country Q again, the results of which were fine.
According to the player, suddenly, in April 2011, the club insisted that he would
undergo several medical examinations, as a result of which he was advised to end
his professional career.
28.
The player believes that the club wanted to create the possibility to hire another
player in view of the three foreign players’ rule in country Q.
29.
Furthermore, in view of the implications for the player of this medical advice, he
deems that it can be expected that the club would cooperate with a second
opinion, but the club did not let him leave the country to undergo the relevant
examinations.
30.
Consequently, since the permanent incapacity of the player has never been finally
determined due to the lack of a second opinion by an independent hospital, the
player held that the club was not in the position to terminate the contract as of 1
May 2011.
31.
Should the DRC decide that the employment contract was indeed terminated as
of 1 May 2011 because he is no longer able to compete in professional football,
the player held that there is no just cause for this unilateral termination as no
second opinion was performed and therefore no permanent incapacity was
established.
32.
In this regard, should the DRC decide, though, that the club had valid reasons to
examine his heart condition, that there is no reason to cooperate with a second
opinion and that the club had valid reasons to terminate the contract, the player
held that the club should be held liable to pay compensation.
33.
As regards the club’s subsidiary position, the player held that it was agreed with
the club that he was to return on 6 July 2011, which he did. He highlighted that
he had no reason to return late if only because he wanted the club to fulfil its
contractual obligations. He enjoyed playing for the club and for that reason he
never terminated the contract with just cause after the club ceased the payment
of his salary and took his apartment and ended the car lease.
34.
Should the DRC decide that the club terminated the employment contract on 6
July 2011, the player held that there was no just cause for such termination, as it
was agreed that he would return on 6 July 2011 and, at worst, the delay of five
Player M, from country N / Club U, from country Q
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days is not sufficient or serious enough to terminate an employment contract. In
this respect, he refers to DRC decisions.
Club’s duplica to claim and replica to its counterclaim
35.
The club highlighted that given that the employment contract was terminated as
of 1 May 2011 or, subsidiarily, on 6 July 2011, the player is not in the position to
claim any remuneration for services rendered for the period of time as of 2 May
2011 or 7 July 2011, respectively.
36.
According to the club, the allegation that he remained in country Q visiting the
club and team training until the beginning of September 2011 does not imply
that he executed his contractual obligations nor that, thus, according to the
player, the employment relation continued to exist.
37.
The club insisted that the player failed to provide the club with a full medical
dossier and it pointed out that along with his reply to the counterclaim only, the
player presented medical reports that the club had never seen before.
38.
The club further highlighted that, contrary to the player’s position, he was absent
from training several times during the course of the employment relation.
39.
In addition, the club insisted that on the basis of the player’s medical examination
by various doctors in April 2011, by the end of April 2011, it was concluded that
the player should not participate in competitive football. The club highlighted
that the relevant medical corps was impartial, the relevant clinic having an
outstanding international reputation and one of the doctors involved being
attached to a country F university.
40.
The club further pointed out that it was not against any second opinion arranged
for by the player himself, and that, till today, he has not presented any
documentation establishing any contrary medical result.
41.
In addition, the club asserted that it replied to the player’s correspondence of 20
September 2011 (cf. point I./24. above) by indicating that it was his choice and
without any prejudice or recognition on the club’s part.
42.
For these reasons, the club maintained its counterclaim asking, primarily, that the
contract be considered terminated as of 1 May 2011 and granting the player
compensation corresponding to two months’ remuneration or, subsidiarily, that
the contract be considered terminated with just cause as of 6 July 2011 asking to
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awarded compensation to be paid by the player in the amount of EUR 500,000,
which amount was not further specified.
Player’s duplica to counterclaim
43.
The player insisted that the counterclaim be rejected in its entirety.
44.
He asserted that he always acted in a professional manner and duly informed the
club of his medical history. He highlighted that also following the two medical
examinations in connection with his employment at the club his cardiac condition
was determined and the club nevertheless decided to offer him an employment
contract for two years.
45.
The player believed that the club wanted to get rid of him being aware of a) his
age (35) b) his salary, c) his nationality (non-country Q), and d) his heart condition
and ordering, without any specific reason, new examinations only at the end of
the football season.
46.
He wanted to continue to play matches and train with the team, but he was no
longer allowed to. Therefore, it cannot be held against him that he did not render
his services to the club and there was thus no reason for the club not to pay his
salaries.
47.
He reiterated that he returned to the club in a timely manner and he asserted
that he never received any instruction from the club to return on 28 June 2011,
which would in any case, so the player, still not have been valid reason to
terminate the contract on 6 July 2011.
48.
He highlighted that the club did not substantiate at all its request for
compensation amounting to EUR 500,000.
49.
The player informed FIFA that since his forced departure from the club, he did not
play professional football elsewhere.
Player M, from country N / Club U, from country Q
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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 12 August 2011. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par.
2 and par. 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 2012) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a country N player and a country Q club.
3.
Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players
(editions 2012 and 2010), and considering that the present claim was lodged on
12 August 2011, the 2010 edition of 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. In this respect,
the Chamber started by acknowledging the above-mentioned facts as well as the
arguments and the documentation submitted by the parties.
5.
The members of the Chamber acknowledged that the parties were contractually
bound by means of an employment contract valid as from 1 July 2010 until 31
May 2012 and its annexe (hereinafter: contract).
6.
The Claimant/Counter-Respondent, on the one hand, maintained that the
Respondent/Counter-Claimant failed to comply with its contractual obligations by
ceasing the payment of his receivables as from April 2011, subsequent to having
asked him to undergo medical examinations and having received a medical advice
that the Claimant/Counter-Respondent should end his professional career. In
addition, the Claimant/Counter-Respondent deemed that the contract had
remained in force.
Player M, from country N / Club U, from country Q
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7.
The Chamber noted that the Respondent/Counter-Claimant, on the other hand,
rejected the claim put forward by the Claimant/Counter-Respondent and lodged a
counterclaim against the latter. According to the Respondent/Counter-Claimant,
the contract had been terminated either on the basis of the aforementioned
medical advice, on 1 May 2011, which advice allegedly implies a permanent
incapacity to play football at professional level, or, alternatively, on 6 July 2011 at
the Claimant/Counter-Respondent’s fault, as the player allegedly had been absent
from the club as from 28 June 2011. In the latter case, the Respondent/CounterClaimant asked that the Claimant/Counter-Respondent shall be held liable to pay
compensation to the Respondent/Counter-Claimant.
8.
In continuation, the Chamber took into account that the Claimant/CounterRespondent fully rejected the Respondent/Counter-Claimant’s counterclaim and
amended his claim. Indeed, the Claimant/Counter-Respondent asked that, should
it be decided that the contract is to be considered terminated, with or without
just cause by the Respondent/Counter-Claimant, the Respondent/CounterClaimant shall be held liable to pay compensation to him.
9.
The members of the Chamber highlighted that the underlying issue in this
dispute, considering the diverging position of the parties, was to determine as to
whether the contract had been terminated by one of the parties, and, in the
affirmative, as to whether such termination was with or without just cause. The
Chamber also underlined that, subsequently, if it were found that the contract
was terminated without just cause, it would be necessary to determine the
consequences for the party that was responsible for the early termination of the
contractual relation.
10.
In continuation, the members of the Chamber firstly focussed their attention on
the circumstances that occurred prior to the Respondent/Counter-Claimant’s letter
dated 6 July 2011 (cf. point 1./13. above).
11.
The Chamber acknowledged that the Respondent/Counter-Claimant had ceased
the payment of the player’s receivables as of April 2011, as it had suspended the
effects of the contract as of 1 April 2011. This was confirmed as such by the
Respondent/Counter-Claimant. The members of the Chamber took into account
that such suspension was initiated by the Respondent/Counter-Claimant in the
period of time during which it had asked the player to undergo medical
examination, following which it received the medical advice, on 1 May 2011, that
the player should end his professional player career. Obviously, if the
Respondent/Counter-Claimant considered the effects of the contract to be
suspended as of 1 April 2011, such effects would not only apply to the payment of
the player’s receivables, but equally to the player’s obligations to render his
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services to the club. In this context, the Chamber noted that the
Claimant/Counter-Respondent, though, continued to offer his services to the club.
12.
In continuation, the Chamber reverted to the club’s letter dated 6 July 2011, by
means of which the club notified the player that the contract was to be
considered terminated on the basis of the following allegations: the player’s
failure to inform the club of his medical condition prior to concluding the
contract, the player’s permanent incapacity to play, and the player’s absence from
the club as of 1 July 2011.
13.
In this regard, the Chamber recalled that the Respondent/Counter-Claimant’s
primary position was that the contract, in fact, terminated on 1 May 2011, i.e. the
day on which medical specialists, following examinations undertaken at the club’s
initiative, issued an advice that the player should end his professional career,
which according to the club equals a permanent incapacity to play at professional
level. The members of the Chamber, though, agreed that the contract cannot be
considered automatically terminated on the day that said medical advice was
issued, irrespective of any implications such medical advice may have, and,
consequently, the Chamber could not uphold the Respondent/Counter-Claimant’s
viewpoint.
14.
On account of the above, in particular, the Respondent/Counter-Claimant’s notice
dated 6 July 2011 addressed to the Claimant/Counter-Respondent, the members
of the Chamber established that the contractual relation between the parties was
terminated by the club on 6 July 2011, when the Respondent/Counter-Claimant
had notified the Claimant/Counter-Respondent that it considered the contract to
be terminated.
15.
Having established that the Respondent/Counter-Claimant terminated the
employment contract on 6 July 2011, the Chamber turned its attention to the
question as to whether the contract had been terminated by the
Respondent/Counter-Claimant with or without just cause.
16.
First and foremost, in the light of the main reason at the basis of the termination
of the contract in the matter at hand, i.e. the player’s medical condition, the
Chamber wished to emphasise that on the basis of art. 18 par. 4 of the
Regulations and the Chamber’s respective jurisprudence, a club wishing to employ
a player has to exercise due diligence and carry out all relevant medical
examination prior to entering into an employment contract with a player.
17.
The members of the Chamber noted from the file that the player had been
medically checked prior to the signature of the contract by and between the
parties, following which he had been medically cleared. The Chamber also took
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into account that the player had rendered his services to the club for almost an
entire season.
18.
The Chamber further took into consideration that an injury or health condition of
a player can be no valid reason to cease the payment of a player’s remuneration
and even less so to terminate an employment contract. In this regard, the
Chamber highlighted that it is the club’s responsibility to secure the continuation
of payment of remuneration in such cases, possibly by means of adequate
insurance. In the case at stake, the topic of insurance was even explicitly included
in articles VII and VIII of the contract. Furthermore, the Chamber took into
account that the Respondent/Counter-Claimant had ceased the payment of the
player’s remuneration as early as in April 2011.
19.
In addition, the members of the Chamber agreed that permanent incapacity in
itself can be no valid reason to unilaterally terminate an employment contract.
However, such specific circumstance will have an effect on the amount of
compensation, in the light of the bilateral character of an employment contract
and the circumstance that in the event of permanent incapacity to play, a player is
no longer in the position to render his services to the club.
20.
As
regards
the
Respondent/Counter-Claimant’s
allegation
that
the
Claimant/Counter-Respondent had not disclosed his medical condition prior to
entering into the contract, which was also invoked by the Respondent/CounterClaimant as a reason for the termination of the contract, the Chamber stressed
that there is documentation on file from which it can be noted that the player
had undergone extensive medical examination both in country L and country Q
prior to the signature of the contract and recalled that the player had rendered
his services to the club during almost one season.
21.
On account of all of the above, the members of the Chamber unanimously
rejected the Respondent/Counter-Claimant’s counterclaim and decided that the
Respondent/Counter-Claimant terminated the contract on 6 July 2011 without just
cause.
22.
For the sake of good order, the Chamber wished to emphasise that a 5 days’
absence of a player, even if duly corroborated with relevant documentation,
cannot be considered a just cause to terminate a contract, particularly without
any previous warning. In this regard, the Chamber was eager to emphasise that
only a breach or misconduct which is of a certain severity justifies the termination
of a contract without prior warning. A premature termination of an employment
contract can always only be an ultima ratio.
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23.
In continuation, prior to establishing the consequences of the breach of contract
without just cause by the Respondent/Counter-Claimant in accordance with art. 17
par. 1 of the Regulations, the Chamber held that it had to address the issue of any
unpaid remuneration at the moment the contract was terminated by the
Respondent/Counter-Claimant.
24.
Indeed, in his amended statement of claim, the Claimant/Counter-Respondent
alleges that his remuneration relating to May, August, and September 2011 was
to be considered outstanding. The Respondent/Counter-Claimant, for its part,
confirmed that it had ceased the payment of the player’s remuneration as of April
2011. Bearing in mind, as stated above, that the contract was terminated by the
Respondent/Counter-Claimant on 6 July 2011, in virtue of the principle pacta sunt
servanda and bearing in mind the Claimant/Counter-Respondent’s amended
claim, the Chamber decided that the Respondent/Counter-Claimant is liable to pay
the amount of EUR 91,000 to the Claimant/Counter-Respondent as outstanding
remuneration for May 2011.
25.
Having established the above, the Chamber turned its attention to the question
of the consequences of the unilateral termination of the contract by the
Respondent/Counter-Claimant without just cause on 6 July 2011.
26.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant/Counter-Respondent is entitled to receive compensation from
the Respondent/Counter-Claimant for the termination of the contract without just
cause in addition to the aforementioned amount of EUR 91,000 on the basis of
the contract.
27.
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.
28.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. The members of the Chamber recalled that according to the contract, if
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it is terminated without just cause or mutual agreement, the club or the player
shall be entitled to receive from the other party in breach a compensation “for an
all amount”. The members of the Chamber agreed that the wording of this clause
is insufficiently clear for it to be taken into consideration in the determination of
the amount of compensation.
29.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent/Counter-Claimant to the
Claimant/Counter-Respondent had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
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. In this regard, the Dispute Resolution Chamber 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.
30.
In order to estimate the amount of compensation due to the Claimant/CounterRespondent in the present case, the members of the Chamber first turned their
attention to the remuneration and other benefits due to the Claimant under the
existing contract and/or the new contract, which criterion was considered by the
Chamber to be essential. The members of the Chamber deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows the
Chamber to take into account both the existing contract and the new contract, if
any, in the calculation of the amount of compensation.
31.
In accordance with the contract signed by the Claimant/Counter-Respondent and
the Respondent/Counter-Claimant, which was to run for ten months more, i.e.
until 31 May 2012, after the breach of contract occurred, the Claimant/CounterRespondent was to receive remuneration amounting to EUR 910,000.
Consequently, the Chamber concluded that the amount of EUR 910,000 serves as
the basis for the final determination of the amount of compensation for breach
of contract.
32.
The Chamber then took due note of the employment situation of the
Claimant/Counter-Respondent after the termination of the contract at the basis of
the case at stake. 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
remuneration under a new employment contract(s) shall be taken into account in
the calculation of the amount of compensation for breach of contract. In this
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regard, the members of the Chamber noted that the Claimant/CounterRespondent indicated that he had not played professional football after the
termination of the contract and, thus, had not been able to mitigate damages.
33.
The Chamber further took into account that the player, in May 2011, received
medical advice to end his professional career and that he had not played any
professional football since then. In addition, the members of the Chamber noted
that following such advice in May 2011, it had not been demonstrated with
documentation issued subsequent to said advice that this specific medical advice
was to be considered erroneous, either in part or in full, or even ambiguous.
34.
As stated above, the circumstance of permanent incapacity to play professional
football is taken into consideration in the determination of the amount of
compensation. Indeed, an employment contract is essentially based on a mutual
exchange of obligations between the parties involved, i.e. the employer (in
football, the club) undertakes the obligation to remunerate the employee (in
football, the player) in exchange of his services and the employee undertakes the
obligation to render his services to the employer in exchange of the employer’s
remuneration, for the duration agreed upon between the parties. In the event of
permanent incapacity to play, the player is obviously prevented from fulfilling his
main obligations arising from the employment contract, i.e. to render his services
to the club. A permanent incapacity of a player thus creates a particular situation,
in that the other party, a club, can no longer be expected to continue to fulfil its
contractual obligations.
35.
Consequently, the Chamber deemed that effects inherent to permanent
incapacity to play professional football have to be taken into account in the
determination of the amount of compensation.
36.
In the present matter, in view of all of the above as well as the particular issue at
stake, the members of the Chamber deemed that compensation within the range
of 70% to 80% of the final amount of compensation, including any possible
mitigation of damages by the player, was considered reasonable and
proportionate as compensation for breach of contract in the specific case at hand.
37.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant/Counter-Respondent’s claim and decided that the Respondent/CounterClaimant must pay the amount of EUR 670,000 as compensation for breach of
contract in the specific case at hand.
Player M, from country N / Club U, from country Q
Page 15 of 17
38.
In conclusion, the Dispute Resolution Chamber decided that the
Respondent/Counter-Claimant has to pay EUR 91,000 to the Claimant/CounterRespondent relating to outstanding remuneration as well as EUR 670,000 as
compensation for the unjustified breach of the contract by the
Respondent/Counter-Claimant.
39.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant/CounterRespondent is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player M, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club U, is rejected.
3.
The Respondent/Counter-Claimant has to pay outstanding remuneration in the
amount EUR 91,000 to the Claimant/Counter-Respondent within 30 days as from
the date of notification of this decision.
4.
The Respondent/Counter-Claimant has to pay compensation for breach of contract
in the amount EUR 670,000 to the Claimant/Counter-Respondent within 30 days as
from the date of notification of this decision.
5.
In the event that the amounts due to the Claimant/Counter-Respondent are not
paid by the Respondent/Counter-Claimant within the stated time limits, 5%
interest p.a. will fall due as of expiry of the aforementioned time limits and the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
6.
Any further request filed by the Claimant/Counter-Respondent is rejected.
Player M, from country N / Club U, from country Q
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7.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player M, from country N / Club U, from country Q
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