Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 June 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (Netherlands ), member
Zola Majav u (S outh Africa), member
on the claim presented by the player,
Play er A, Country B,
as Claimant / Counter-Respondent
against the club,
Club C, Country D,
as Respondent / Counter-Claimant
and the club,
Club E, Country B,
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 22 June 2013, the player of Country B, Player A (hereinafter: the player or the
Claimant / Counter-Respondent) born on 6 December 1985, and the club of
Country D, Club C (hereinafter: the club or the Respondent / Counter-Claimant),
concluded an employment contract (hereinafter: the contract) valid as from 1 July
2013 until 30 June 2016.
2.
According to article 2.1 of the contract, the Claimant / Counter-Respondent was
entitled to the following remuneration:
a) USD 1,350,000 net for the first year of the contract payable as follows:
“- Amount of 350,000 USD Provider contract becomes payable after
registration in the Football Association of Country D.
- Amount of 1,000,000 USD paid as monthly salary (83,333 USD per
month)”;
b) USD 1,300,000 net for the second year of the contract payable as follows:
“- Amount of 300,000 USD Provider contract.
- Amount of 1,000,000 USD paid as monthly salary (83,333 USD per
month)”;
c) USD 1,300,000 net for the third year of the contract payable as follows:
“- Amount of 300,000 USD Provider contract.
- Amount of 1,000,000 USD paid as monthly salary (83,333 USD per
month)”.
3.
In accordance with article 2.2 of the contract, the Respondent / Counter-Claimant
had to provide the Claimant / Counter-Respondent with a “5 star accommodation
including water & elec.”.
4.
Moreover, article 2.4 of the contract established that the Claimant / CounterRespondent was entitled to “six air ticket business class roundtrip (City of Country
B– City of Country D – City of Country B) per year”.
5.
Furthermore, article 2.5 of the contract stated that the Respondent / CounterClaimant had to provide the Claimant / Counter-Respondent with “necessary
health care in government hospitals in addition of health and accidents
insurance”; whereas article 2.6 indicated that the Respondent / Counter-Claimant
should provide the Claimant / Counter-Respondent “at its own expenses, the
necessary treatment for the player if he is injured as a result of practicing his sport
in favor of the club during the period of his contract”.
6.
On 6 March 2015, the Claimant / Counter-Respondent put the club in default of
paying his salaries of December 2014, January and February 2015 as well as
Player A, Country B / Club C, Country D / Club, Country B
Page 2 of 15
medical expenses, accommodation and flight tickets for the total amount of USD
338,086. In his default notice, the Claimant / Counter-Respondent informed the
Respondent / Counter-Claimant that, should the latter not pay him the requested
amount within five days, he would terminate the contract.
7.
On 11 March 2015, the Claimant / Counter-Respondent sent an e-mail to the
Respondent / Counter-Claimant in reply to an apparent offer of amicable
settlement received from the Respondent / Counter-Claimant. In his e-mail, the
Claimant / Counter-Respondent requested being paid the full outstanding amount
in three instalments as well as the authorization from the Respondent / CounterClaimant to finish his medical treatment in Country B “until he is fully recovered
from his injury, as well to negotiate a temporary transfer agreement until
December 31st 2015”.
8.
On 13 March 2015, the Respondent / Counter-Claimant replied to the Claimant /
Counter-Respondent informing the latter that it would pay a total amount of USD
304,752 in three instalments and that it would provide the necessary medical
treatment to the Claimant / Counter-Respondent in the Country D. Moreover, the
Respondent / Counter-Claimant expressed that it would be “happy to conclude a
loan agreement with club in Country B at any sooner time”.
9.
On the same day, the Claimant / Counter-Respondent replied to the Respondent /
Counter-Claimant insisting in the payment of the amount of USD 338,086 and in
finishing his medical treatment in Country B.
10.
On 16 March 2015, the Claimant / Counter-Respondent terminated the contract in
writing due to the non-payment of his remuneration.
11.
On 23 June 2015, the Claimant / Counter-Respondent signed a new employment
contract with the club of Country B, Club E.
12.
On 27 March 2015, the Claimant / Counter-Respondent lodged a claim in front of
FIFA against the Respondent / Counter-Claimant for breach of contract,
requesting the total amount of USD 1,672,970 plus 5% interest as of each due
date, according to the following breakdown:
-
13.
USD 250,000 as outstanding salaries corresponding to unpaid monthly
salaries of December 2014, January and February 2015;
USD 55,539 for accommodation expenses;
USD 13,375 for flight tickets;
USD 15,728 for medical expenses;
USD 1,333,328 as compensation for breach of contract corresponding to
the residual amount of the contract.
In his claim, the Claimant / Counter-Respondent explained that he sustained an
injury while playing a friendly match with the Respondent / Counter-Claimant, as
Player A, Country B / Club C, Country D / Club, Country B
Page 3 of 15
a consequence of which, he received surgery on 28 August 2014 which, according
to the Claimant / Counter-Respondent, was approved by the Respondent /
Counter-Claimant. The Claimant / Counter-Respondent further explained that,
three months after the surgery, the Respondent / Counter-Claimant stopped
paying his salaries without any valid reason, thus breaching the contract.
14.
Moreover, the Claimant / Counter-Respondent asserted that the Respondent /
Counter-Claimant did not provide him with accommodation as per the contract,
and he therefore had to enter into a loan agreement for the amount of 204,000
in the currency of Country D “corresponding to USD 55,539”. In this regard, the
Claimant / Counter-Respondent provided an invoice entitled “Proforma Invoice –
Lease” for the amount of 204,010 in the currency of Country D as well as a copy of
two cheques in the respective amount of 102,000 and 102,010 in the currency of
Country D with which he apparently paid the relevant loan amount.
15.
Furthermore, the Claimant / Counter-Respondent stated that in 2014 he was
authorized to fly to Country B and that the Respondent / Counter-Claimant did
not pay the relevant flight tickets as provided for in the contract. To this end, the
player requested the reimbursement of the amount of 37,448.68 in the currency
of Country B “corresponding to USD 13,375” and provided a copy of two flight
tickets for the above-mentioned amount.
16.
Additionally, the Claimant / Counter-Respondent explained that he had to pay
himself the surgery as well as the medical treatment and physiotherapy sessions
related to the injury he suffered while playing with the Respondent / CounterClaimant, therefore, requesting their reimbursement in the amount of 47,184.64
in the currency of Country B “corresponding to USD 15,728”. In this respect, the
Claimant / Counter-Respondent provided invoices and receipts for the total
amount of 47,184.64 in the currency of Country B dated between 18 August and 1
September 2014.
17.
In its reply to the claim, the Respondent / Counter-Claimant firstly declared that
due to the injury of the Claimant / Counter-Respondent, it had to sign a new
player on loan, thus incurring extraordinary expenses that resulted in financial
difficulties for the Respondent / Counter-Claimant, preventing it from complying
with its financial obligations towards the Claimant / Counter-Respondent.
According to the Respondent / Counter-Claimant, it explained this situation to the
Claimant / Counter-Respondent who allegedly understood and did not object to
it.
18.
Furthermore, the Respondent / Counter-Claimant stated that the Claimant /
Counter-Respondent left the Country D and flew to Country B on 15 March 2015
without authorization from the Respondent / Counter-Claimant. In addition, the
Respondent / Counter-Claimant argued that it replied to the Claimant / CounterRespondent’s termination letter on 19 March 2015 objecting to the termination of
the contract and requesting his bank details to proceed to the payment of the
Player A, Country B / Club C, Country D / Club, Country B
Page 4 of 15
outstanding remuneration. In such letter, the Respondent / Counter-Claimant
informed the Claimant / Counter-Respondent that, “failure to return to Club C
[i.e. the Respondent / Counter-Claimant] within the next 10 days shall
automatically cause the termination of the employment agreement for just
cause”.
19.
In this respect and as the Claimant / Counter-Respondent did not return to the
Respondent / Counter-Claimant within the given deadline, the latter declared that
it terminated the contract in writing on 1 April 2015, with just cause due to the
unauthorized stay of the Claimant / Counter-Respondent in Country B. In such
letter, the Respondent / Counter-Claimant requested again the Claimant /
Counter-Respondent’s bank details in order to pay the outstanding amount of
USD 338,086.
20.
According to the Respondent / Counter-Claimant, the Claimant / CounterRespondent “did not validly terminate the contract” for the following reasons: (i)
the termination letter was not signed by the Claimant / Counter-Respondent and
there is no evidence that on the date of termination his lawyer had legal
authorization to terminate the contract; (ii) the period of time, i.e. five days,
given in the default notice to remedy the default was too short and; (iii) the
termination was done in bad faith as the parties were negotiating an amicable
settlement. In this regard, the Respondent / Counter-Claimant added that it
always acted with good faith as it waited for the Claimant / Counter-Respondent’s
recovery for more than seven months.
21.
In view of the above and, in particular, due to the Claimant / CounterRespondent’s alleged breach of contract by leaving the Respondent / CounterClaimant without authorization, the Respondent / Counter-Claimant lodged a
counterclaim against the Claimant / Counter-Respondent and his new club, Club E.
In this regard, the Respondent / Counter-Claimant requested compensation for
breach of contract in the amount of USD 215,887 plus 5% interest as of 1 April
2015 as well as sporting sanctions to be imposed on both the Claimant / CounterRespondent and Club E. The Respondent / Counter-Claimant explained that the
amount requested as compensation corresponds to two thirds of the total amount
that the Respondent / Counter-Claimant paid to the club of Country B, Club F, for
the transfer of the player.
22.
In his replica, the Claimant / Counter-Respondent first pointed out that the
Respondent / Counter-Claimant, in its reply, did not contest or deny any of the
outstanding amounts claimed by the Claimant / Counter-Respondent in his
statement of claim. Moreover, the Claimant / Counter-Respondent denied that the
Respondent / Counter-Claimant needed his bank details to transfer the
outstanding amount, since the Respondent / Counter-Claimant already had these
details.
Player A, Country B / Club C, Country D / Club, Country B
Page 5 of 15
23.
As to the reasons invoked by the Respondent / Counter-Claimant that the
Claimant / Counter-Respondent had not terminated the contract in a valid way,
the Claimant / Counter-Respondent replied the following: (i) the Claimant /
Counter-Respondent was always represented by the same lawyer, from the very
first letter of default and even during the negotiation of an amicable solution to
the matter. In this regard, the Claimant / Counter-Respondent enclosed the
relevant power of attorney signed on 6 March 2015 and, therefore, considered
that the termination letter was signed by his duly empowered legal
representative; (ii) the Claimant / Counter-Respondent declared that the
Respondent / Counter-Claimant actually had ten days to remedy the default
before he terminated the contract, which he considered to be a reasonable period
of time; (iii) the Claimant / Counter-Respondent argued that the parties “tried –
but did not succeed – to negotiate an amicable solution” and, as they never
reached an amicable settlement and the Respondent / Counter-Claimant did not
reply to his last letter, there was no bad faith on his part in terminating the
contract.
24.
In reply to the counterclaim and regarding the argument of the Respondent /
Counter-Claimant that he breached the contract by leaving the country without
authorization, the Claimant / Counter-Respondent declared that he had no other
choice as he was in a precarious situation due to the non-payment of his salaries,
accommodation and medical expenses. Additionally, he argued that he “only left
to Country B after exhausting all possible attempts to solve the matter in an
amicable way”.
25.
Based on the above, the Claimant / Counter-Respondent considered that the only
party in breach was the Respondent / Counter-Claimant due to the non-payment
of three monthly salaries, the accommodation and medical expenses and the
relevant flight tickets, and thus requested the rejection of the Respondent /
Counter-Claimant’s counterclaim.
26.
Club E, in its reply to the Respondent / Counter-Claimant’s counterclaim, first
stated that it was broadly informed by the press that the Claimant / CounterRespondent became a free agent, and that only then Club E approached the
Claimant / Counter-Respondent to sign a contract, which was finally signed two
months after said initial appraoch. Additionally, Club E declared that it was not
the only club interested in hiring the Claimant / Counter-Respondent.
27.
In this respect, Club E pointed out that “at no time any contact, approach or
proposal was made to the Player by Club E while [the Claimant / CounterRespondent] was under contract with [the Respondent / Counter-Claimant]”. Club
E further stressed that the Claimant / Counter-Respondent earned less with Club E
than with the Respondent / Counter-Claimant.
Player A, Country B / Club C, Country D / Club, Country B
Page 6 of 15
28.
Furthermore, Club E maintained that the Claimant / Counter-Respondent
terminated the contract with just cause on 16 March 2015, due to lack of payment
by the Respondent / Counter-Claimant of the player’s remuneration.
29.
Based on the above, Club E concluded that it did not induce the Claimant /
Counter-Respondent to terminate his employment contract with the Respondent /
Counter-Claimant and requested the dismissal of the counterclaim. Alternatively,
in case FIFA considered that the Claimant / Counter-Respondent breached the
contract, Club E requested to be considered free of any liability “for its good faith
and law-abiding attitude”.
30.
In its duplica, the Respondent / Counter-Claimant repeated its previous arguments
and added that the Claimant / Counter-Respondent did not want to continue his
contractual relationship with the Respondent / Counter-Claimant. In this regard,
the Respondent / Counter-Claimant pointed to the requests of the Claimant /
Counter-Respondent to stay in Country B for his physical recovery, despite the
Respondent / Counter-Claimant offering him “a first class rehabilitation”, and to
play on loan with a club of Country B. According to the Respondent / CounterClaimant, the Claimant / Counter-Respondent “was not truly concerned about his
recovery, but rather wanted to leave the Country D and [the Respondent /
Counter-Claimant] after collecting his outstanding salaries”.
31.
Finally, the Respondent / Counter-Claimant insisted in its initial counterclaim
against the Claimant / Counter-Respondent and Club E and requested a copy of
the employment contract signed between the player and Club E, upon which
receipt “[the Respondent / Counter-Claimant] will provide FIFA with a detailed
calculation of the compensation due by the Respondents on a jointly basis”.
32.
Upon request of FIFA, the Claimant / Counter-Respondent informed that he
signed the following two contracts:
a) On 23 June 2015 with Club E, valid as from 24 June 2015 until 31 May 2017,
according to which he was entitled to a monthly remuneration of 120,000
in the currency of Country B;
b) On 19 May 2016 with Club G, valid as from 19 May 2016 until 31 December
2016, according to which he was entitled to a monthly remuneration of
50,000 in the currency of Country B.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to
FIFA on 27 March 2015. Consequently, the 2015 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Player A, Country B / Club C, Country D / Club, Country B
Page 7 of 15
Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand
(cf. art. 21 of the 2015, 2017 and 2018 editions of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016), 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 player of Country B, a club of Country D and a
club of Country B.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (editions 2015, 2016 and
2018) and reiterating that the present claim was lodged in front of FIFA on 27
March 2015, the 2015 edition of said regulations (hereinafter: the 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, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
5.
First of all, the members of the Chamber acknowledged that on 22 June 2013, the
Claimant / Counter-Respondent and the Respondent / Counter-Claimant
concluded an employment contract valid as from 1 July 2013 until 30 June 2016 in
accordance with which the player was entitled, inter alia, to the following the
following remuneration:
USD 1,350,000 net for the first year of contract, amount which payable as
follows:
- “Amount of 350,000 USD Provider contract becomes payable after
registration in the Football Association of Country D.
- Amount of 1,000,000 USD paid as monthly salary (83,333 USD per
month)”;
USD 1,300,000 net for the second year of contract payable as follows:
- “- Amount of 300,000 USD Provider contract.
- - Amount of 1,000,000 USD paid as monthly salary (83,333 USD per
month)”;
USD 1,300,000 net for the third year of contract payable as follows:
- “- Amount of 300,000 USD Provider contract.
- - Amount of 1,000,000 USD paid as monthly salary (83,333 USD per
month)”.
Player A, Country B / Club C, Country D / Club, Country B
Page 8 of 15
6.
The Chamber further noted that in accordance with the contract, the parties
agreed on the following:
The Respondent / Counter-Claimant had to provide the Claimant / CounterRespondent with a “5 star accommodation including water & elec.”;
The Claimant / Counter-Respondent was entitled to “six air ticket business
class roundtrip (City of Country B– City of Country D – City of Country B) per
year”;
The Respondent / Counter-Claimant had to provide the Claimant / CounterRespondent with “necessary health care in government hospitals in addition
of health and accidents insurance”; whereas article 2.6 indicated that the
club should provide the player “at its own expenses, the necessary treatment
for the player if he is injured as a result of practicing his sport in favor of the
club during the period of his contract”.
7.
Moreover, the Chamber further noted that on 6 March 2015, the Claimant /
Counter-Respondent put the Respondent / Counter-Claimant in default of paying
his salaries of December 2014, January and February 2015 as well as medical
expenses, accommodation and flight tickets for the total amount of USD 338,086.
8.
Along this line, the DRC duly observed that the player left the Respondent /
Counter-Claimant on 15 March 2015 and that after an exchange of
correspondence between him and the Respondent / Counter-Claimant, where the
parties seemed to be negotiating an amicable settlement, the Claimant / CounterRespondent terminated the contract on 16 March 2015, as the player deemed he
had a just cause to do so since the Respondent / Counter-Claimant had failed to
pay him the alleged outstanding amounts. In this respect, the members of the
Chamber took note that, according to the Claimant / Counter-Respondent, the
Respondent / Counter-Claimant stopped paying his salaries after he suffered an
injury and he had to cover all his expenses for accommodation, surgery and
recovery.
9.
On the other hand, the Chamber duly noted that the Respondent / CounterClaimant held for its part, that due to the Claimant / Counter-Respondent’s injury,
it incurred in extraordinary expenses that resulted in financial difficulties, which
prevented it from fulfilling its financial obligations towards the Claimant /
Counter-Respondent. Furthermore, the Respondent / Counter-Claimant also made
the case that, on 1 April 2015, it terminated the contract due to the departure of
the Respondent / Counter-Claimant, by means of a letter where it offered to pay
the Claimant / Counter-Respondent the requested outstanding amount. In
addition, the members of the DRC observed that the Respondent / CounterClaimant asserted that the Claimant / Counter-Respondent did not validly
terminate the contract, as it argued that:
Player A, Country B / Club C, Country D / Club, Country B
Page 9 of 15
a) the player did not sign the termination letter of 16 March 2015 and
allegedly, there is no documentary evidence that his legal representative was
authorized to terminate the contract on that date;
b) the short period to remedy the default established in the default notice and;
c) the Claimant / Counter-Respondent allegedly terminated the contract in bad
faith, since the parties were negotiating an amicable settlement.
10.
In this context, the Chamber noted that the Respondent / Counter-Claimant
lodged a counterclaim against the Claimant / Counter-Respondent and his new
club, Club E, in view of the Claimant / Counter-Respondent’s alleged breach of
contract as he left the Respondent / Counter-Claimant without authorization.
11.
As a consequence of the abovementioned considerations, the Chamber
acknowledged that it first had to determine the date on which the contract was
terminated and by whom it was terminated. Whereas the Claimant / CounterRespondent held that the relevant date is 16 March 2015, i.e. the day on which he
notified the Respondent / Counter-Claimant in writing about his decision to
terminate the contract, the Respondent / Counter-Claimant alleged that it
objected to this termination on 19 March 2015 and subsequently it terminated the
contract by means of its letter of 1 April 2015.
12.
Having established the above, the Chamber underlined that the Claimant /
Counter-Respondent had already indicated in clear and unambiguous terms in its
letter dated 16 March 2015 his decision to terminate the contract (“…NOTIFIES
[the Respondent / Counter-Claimant] regarding the rightful termination of the
Foreign Player Contract, as of the date of the receipt of the present
notification…”). Furthermore, the Chamber observed that the Respondent /
Counter-Claimant had confirmed having received such notification. Therefore, the
Chamber decided to take into account the date of 16 March 2015 as the date on
which the Claimant / Counter-Respondent unilaterally put an end to the contract.
13.
Bearing in mind the above, the Chamber proceeded to address the question
whether the Claimant / Counter-Respondent’s decision to terminate the contract
with the Respondent / Counter-Claimant on 16 March 2015 was with or without
just cause.
14.
In this regard, the Chamber confirmed that it remained undisputed that the
Respondent / Counter-Claimant did not pay the salaries of December 2014 until
February 2015. Moreover, the Respondent / Counter-Claimant did not contest not
paying the flight tickets, accommodation and medical expenses incurred by the
Claimant / Counter-Respondent.
Player A, Country B / Club C, Country D / Club, Country B
Page 10 of 15
15.
In this context, the Chamber duly noted that the Respondent / Counter-Claimant
defended the non-payment of the player’s salaries due to financial difficulties, as
an alleged consequence of expenses it had to incur due to the player’s injury. In
this regard, the Chamber was of the firm opinion that the alleged consequences
could not be held against the Claimant / Counter-Respondent, who bears no
responsibility in the financial difficulties of the Respondent / Counter-Claimant.
Indeed, a club should ensure that it is properly insured in case a player is injured;
if it is not insured, this cannot be the player’s fault. Thus, the Chamber
unanimously agreed that the fact that the Respondent / Counter-Claimant
encountered some financial difficulties due to the Claimant / CounterRespondent’s injury could not be a justification for its failure to pay the player’s
salaries for the months of December 2014 until February 2015, as well as the flight
tickets, accommodation and medical expenses.
16.
Moreover, the Chamber observed that the Respondent / Counter-Claimant
deemed that the termination of the Claimant / Counter-Respondent was
“invalid”.
17.
Having examined the documentation on file, the Chamber is of the opinion that
the argumentation of the Respondent / Counter-Claimant regarding the
termination of the contract not being valid can be rejected, since the power of
attorney granted by the Claimant / Counter-Respondent to his legal
representative bears the date of the Claimant / Counter-Respondent’s letter of
termination. Furthermore, in respect to the other arguments put forward by the
Respondent / Counter-Claimant, particularly, that the termination of the contract
should not be considered valid due to the short period given by the Claimant /
Counter-Respondent in his default notice to remedy the default and that the
Claimant / Counter-Respondent allegedly terminated the contract in bad faith,
since the parties were negotiating an amicable settlement, the Chamber
concluded that these arguments cannot be followed. Indeed, the Respondent /
Counter-Claimant had in fact 10 days to remedy the payment default before the
termination of the contract, which, in the Chamber’s view, was a reasonable
timeframe to remedy the default. Equally, the Chamber noted that, ultimately,
the parties did not reach a settlement.
18.
Taking into consideration all the previous deliberations, the Chamber concluded
that the Respondent / Counter-Claimant had not put forward any justified reasons
for the non-payment of the player’s remuneration and that it could thus be
concluded that the Respondent / Counter-Claimant had seriously neglected its
contractual obligations towards the Claimant / Counter-Respondent in a
continuous and substantial manner. As a consequence, the Chamber was of the
unanimous opinion that the foregoing situation legitimately caused the Claimant
/ Counter-Respondent’s confidence in the Respondent / Counter-Claimant
respecting its future duties under the contract to be lost and that he had just
cause to terminate the employment contract with the club on 16 March 2015.
Player A, Country B / Club C, Country D / Club, Country B
Page 11 of 15
19.
On account of all the above, the Chamber established that the Claimant /
Counter-Respondent had terminated the employment contract with just cause on
16 March 2015 and that, consequently, the Respondent / Counter-Claimant is to
be held liable for the early termination of the employment contact with just cause
by the Claimant / Counter-Respondent.
20.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract with just
cause by the Claimant / Counter-Respondent.
21.
First of all, the members of the Chamber concurred that the Respondent /
Counter-Claimant must fulfill its obligations as per employment contract in
accordance with the general legal principle of “pacta sunt servanda”.
Consequently, the Chamber decided that the Respondent / Counter-Claimant is
liable to pay to the player the remuneration that was outstanding at the time of
the termination, i.e. the amount of USD 334,641, amount that consists of the
salaries from December 2014 until February 2015, plus the flight tickets,
accommodation and medical expenses which were all substantiated by the
Claimant / Counter-Respondent with satisfactory documentary evidence.
22.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant
payments as of the day following the day on which the relevant payments fell due
in respect to the salaries, and interest of 5% p.a. on the amounts corresponding
to the flight tickets, accommodation and medical expenses incurred as from 27
March 2015, i.e. the date on which the player lodged his claim in front of FIFA,
considering it is not possible to determine the due date of payment for these
concepts.
23.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the player is entitled to receive from the club compensation
for breach of contract in addition to any outstanding remuneration on the basis
of the relevant employment contract.
24.
In this context, the Chamber outlined that, in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
player 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.
25.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
Player A, Country B / Club C, Country D / Club, Country B
Page 12 of 15
means of which the parties had beforehand agreed upon a compensation payable
by the contractual parties in the event of breach of contract. In this regard, the
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
26.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
27.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by the club, the members of the Chamber took into account the
remuneration due to the Claimant / Counter-Respondent in accordance with the
employment contract as well as the time remaining on the same contract, along
with the professional situation of the Claimant / Counter-Respondent after the
early termination occurred. In this respect, the Chamber concluded that the
remaining value of the contract as from its early termination by the Claimant /
Counter-Respondent until the regular expiry of the contract amounts to, in
accordance with the Claimant / Counter-Respondent’s request, is USD 1,333,328
and that such amount shall serve as the basis for the final determination of the
amount of compensation for breach of contract.
28.
In continuation, the Chamber remarked that the player had found new
employment with the clubs Club E and Club G, contracts in which he earned
amounts that correspond to a total of approximately USD 409,300 during the
period between 24 June 2015 until 30 June 2016.
29.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the player to mitigate his damages, the
remuneration as indicated in the new employment contract shall be taken into
account in the calculation of the amount of compensation for breach of contract.
30.
In view of all of the above, the Chamber decided that the Respondent / CounterClaimant must pay the amount of USD 924,028 to the Claimant / CounterRespondent, which is considered by the Chamber to be a reasonable and justified
amount as compensation for breach of contract.
31.
In addition, taking into account the player’s request, the Chamber decided that
the club must pay to the player interest of 5% p.a. on the amount of
compensation for breach of contract as of the date on which the claim was
lodged until the date of effective payment.
Player A, Country B / Club C, Country D / Club, Country B
Page 13 of 15
32.
The DRC concluded its deliberations in the present matter by establishing that any
further claim lodged by the Claimant / Counter-Respondent is rejected and that
also the counterclaim of the Respondent / Counter-Claimant is rejected.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant, has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of USD 334,641 plus 5% interest p.a.
until the date of effective payment as follows:
a. 5% p.a. as of 1 January 2015 on the amount of USD 83,333;
b. 5% p.a. as of 1 February 2015 on the amount of USD 83,333;
c. 5% p.a. as of 1 March 2015 on the amount of USD 83,333;¨
d. 5% p.a. as of 27 March 2015 on the amount of USD 84,642.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
compensation for breach of contract in the amount of USD 924,028 plus 5%
interest p.a. on said amount as from 27 March 2015 until the date of effective
payment.
5.
If the aforementioned sums plus interest are not paid by the Respondent /
Counter-Claimant within the stated time limits, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
6.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant immediately and directly of the account number to which the
remittances are to be made and to notify the Dispute Resolution Chamber of
every payment received.
Player A, Country B / Club C, Country D / Club, Country B
Page 14 of 15
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D / Club, Country B
Page 15 of 15