Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 7 June 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (the Netherlands ), member
Pav el Piv ov arov (Rus s ia), member
on the matter between the player,
Play er A, Country B
as Claimant / Counter-Respondent
and the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country F
as intervening party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 29 July 2016, the Player of Country B, Player A (hereinafter: the Claimant /
Counter-Respondent or the player) and the Club of Country D, Club C
(hereinafter: the Respondent / Counter-Claimant or the club) signed an
employment contract (hereinafter: the contract) valid as from the date of
signature until 28 July 2017.
2.
According to art. 4 of the contract, the player was entitled to a monthly
salary of USD 16,666, payable at the end of each month.
3.
Art. 13 point 10 of the contract stipulates the following: “in case a dispute
raises between the two parties about any of the articles of the contract, they
shall seek to solve it amicably. In case of default of the amicable solution, the
dispute shall be forwarded (DRC) before the Dispute Resolution Chamber
(DRC) of the Football Federation of Country D to solve it”.
4.
On 30 October 2016, the player, via e-mail, put the club in default of the
payment of USD 49,998, corresponding to the monthly salaries from August
to October 2016. By said letter, the player requested the payment of the
aforementioned amount within “the next 48 hours”.
5.
By means of a letter dated 2 November 2016, delivered via e-mail on 4
November 2016, the player terminated the contract.
6.
On 2 November 2016, the club sent a letter to the Football Federation of
Country D, informing that the player had abandoned the team’s trainings as
of 28 October 2016 without the club’s permission and left to Country B.
7.
On 7 November 2016, the player lodged a claim in front of FIFA against the
club for breach of contract, requesting the total amount of USD 199,992, plus
5% interest p.a. as from the due dates. In particular, the player requested the
following:
a)
b)
8.
USD 49,998 as outstanding salaries for the months of August,
September and October 2016;
USD 133,328 as compensation for breach of contract, corresponding
to the “remaining contract (8 months)”.
In his claim, the player explained that the club did not pay his monthly
salaries for more than three months and argued that he therefore terminated
the contract with just cause.
Player A, Country B / Club C, Country D / Club E, Country F
2
9.
On 13 November 2016, the club sent a letter, addressed “for the lawyer of
the player”, affirming that the player left the country without the club being
informed and requested him to come back to the team’s trainings.
10.
On 17 November 2016, the club approached again the Football Federation of
Country D, reiterating that, despite its request, the player did not come back
and resume trainings with the team.
11.
On 28 November 2016, the club sent another letter, addressed “for the player
lawyer”, reiterating its request to the player to resume trainings with the
team.
12.
In its reply to the claim, the club preliminarily contested FIFA’s jurisdiction,
maintaining that only the National Dispute Resolution Chamber of the
Football Federation of Country D (hereinafter: the NDRC of Country D) was
competent to deal with the dispute, pursuant to art. 13 point 10 of the
contract.
13.
In particular, the club stressed that the NDRC of Country D is an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the
principle of equal representation of players and clubs, as provided by the
Statutes of the Football Federation of Country D.
14.
Pursuant to art. 53 par. 1 of said Statutes, “A National DRC shall be composed
according to the provisions of the DRC Regulations issued by Football
Federation of Country D and the NDRC Standard Regulations published by
FIFA”. Furthermore, the club submitted copy of the “Country D– Football
Federation of Country D– Regulations of the Dispute Resolution Chamber
following the Football Federation of Country D” (hereinafter: the Football
Federation of Country D Regulations), whereby art. 6 provides that: “(…) 6.2
Chamber is composed of a chairman and a vice- Chairman and six other
members.
6.3 (…) chamber’s chairman and his vice- chairman shall be appointed by the
[Board of Directors of the Football Federation of Country D– hereinafter: the
Board].
6.4 Three members representing the professional clubs, nominated by the
Association of Professional League to be selected by the Board, provided that
a club shall not have more than a representative.
6.5 Three members representing professional players to be selected by the
Board till the establishment of professional players association and the
nomination of their representatives”.
15.
Subsidiarly, as to the merits of the case, the club rejected the player’s
arguments and lodged a counter-claim against him for breach of contract.
Player A, Country B / Club C, Country D / Club E, Country F
3
16.
In particular, the club maintained first that it provided the player with the
following payments:
a)
b)
c)
62,500 in the Currency of Country D, allegedly corresponding to USD
16,666, on 18 August 2016, as advance payment of the salary for the
month of August 2016. The club submitted a “payment voucher” for
the amount of 62,500 in the Currency of Country D, issued by the club
itself, which refers to “August salary”;
5,000 in the Currency of Country D, allegedly corresponding to USD
1,333 on 21 August 2016, after a match played in the Professional
League of Country D against the Club G. The club submitted a
“payment voucher” for the amount of 5,000 in the Currency of
Country D, issued by the club itself, which refers to “Club G bonus
game in the league”;
5,000 in the Currency of Country D, allegedly corresponding to USD
1,333, on 30 August 2016, after a match played in the Tournament of
Country D against the Club H. The club submitted a “payment
voucher” for the amount of 5,000 in the Currency of Country D,
issued by the club itself, which refers to “XXX game bonus in the
tournament”.
For each of the above-mentioned payments, the club also submitted a copy
of the payment receipts allegedly signed by the player.
17.
In continuation, the club averred that, after having made the
aforementioned payments, it informed all the players that, due to “some
cash flow problems”, they would have to wait until the first days of
November 2016 to receive further payments.
18.
With the aforementioned in mind, the club held that the termination of the
contract was invalid as the relevant termination letter was signed by the
player’s lawyer and not by the player himself. In particular, the club alleged
that the player did not provide the club with any specific power of attorney
authorising his lawyer to terminate the contract.
19.
Moreover, the club affirmed that it did not receive in its inbox folder the emails containing the player’s default notice and termination letter. However,
the club admitted that such e-mails were delivered in its spam-box folder. In
view of that, the club considered that it did not receive any default notice
from the player or, alternatively, it could not take notice of it in due course.
Consequently, the club maintained that the player terminated the contract
without just cause.
20.
In any case, the club argued that the amount due to the player on the date
the default notice was sent was not substantial, as it had provided him with
the payment of the total amount of USD 19,332, i.e. the salary for August
Player A, Country B / Club C, Country D / Club E, Country F
4
2016 and two match bonuses. In particular, the club stressed that only the
salary for the month of September 2016 was due on the aforementioned
date.
21.
On account of all the above, the club argued that the termination of the
contract by the player was without just cause and hence requested the
payment of compensation for breach of contract in the amount of USD
450,000, calculated as follows:
a)
USD 150,000 corresponding to the remaining value of the contract;
b)
USD 200,000 as expected costs to be borne by the club for the
replacement of the player;
c)
USD 100,000 as further compensation calculated upon the criterion of
the “specificity of sport”, corresponding to the equivalent of six
monthly salaries.
22.
In his replica, the player preliminarily contested the club’s argument that the
NDRC of Country D would be competent to deal with the present case. In
particular, the player argued that such body does not comply with the
principle of equal representation of players and clubs, as its chairman and
vice-chairman, as well as the players’ and club’s representatives, are elected
by the Football Federation of Country D Board.
23.
As to the substance, the player rejected the club’s counterclaim and insisted
that he terminated the contract with just cause on 4 November 2016. In
particular, he remarked that a valid power attorney was enclosed with his
default notice and with his termination letter, which were both delivered to
the club.
24.
Moreover, the player affirmed that his alleged signature on the payment
receipts submitted by the club was forged and, consequently, he denied
having received any salary for the month of August 2016 and the match
bonuses indicated by the club.
25.
What is more, the player maintained that the payment vouchers presented by
the club for the match bonuses are to be considered as a “debt confession”.
As a consequence thereof, the player amended his claim, also requesting the
payment of said match bonuses in the amount of 10,000 in the Currency of
Country D, plus 5% interest p.a. as from the relevant due dates.
26.
In its duplica, the club insisted on the competence of the NDRC of Country D
based on the jurisdiction clause contained in art. 13 point 10 of the contract,
averring that said body is an independent arbitration tribunal.
27.
On a subsidiary basis, the club rejected the player’s arguments as to the
substance and, in particular, reaffirmed that he, in fact, signed the payment
receipt related to his salary of August 2016. Moreover, it affirmed that the
Player A, Country B / Club C, Country D / Club E, Country F
5
player, upon his request, received such payment in cash and it pointed out
that the signature contained in the aforementioned document was identical
to the one in the contract and the power of attorney. Furthermore, the club
submitted the original version of the contested document as well as of the
contract.
28.
With regard to the match bonuses, the club averred that they were paid to all
the players involved in the relevant matches and that the player signed the
relevant payment receipts using his acronym. Moreover, the club submitted
the original version of said payment receipts as well as a statement from
three players of the club whereby they confirmed the payment. In addition,
the club submitted the original version of three lists of attendance to the
trainings allegedly signed by the player using his acronym.
29.
Furthermore, the club reiterated that the player’s termination of the contract
was invalid, due to the lack of a specific power of attorney for such
termination. In addition, the club maintained that the default notice and the
termination letter were not ordinary communications between the player
and the club, but rather communications intended to produce legal effects. In
view of that, the club argued that it was on the player the burden to prove of
“having duly and timely informed” the club about their content. What is
more, the club emphasised that the period between the default notice and
the termination letter was “unreasonable and unfair”.
30.
The club further affirmed that the player concluded a new employment
contract with the Club of Country F, Club E (hereinafter: the intervening
party or Club E) for a higher salary, allegedly on 12 December 2016.
31.
Finally, the club alleged that it incurred in extra costs for replacing the player
with the Player of Country B, Player L, transferred on loan from the Club of
Country M, Club N. Said costs were quantified in the total amount of USD
140,000 broken-down as follows: USD 70,000 for the loan fee and USD 70,000
for the new player’s salary, calculated until 28 July 2017. In this regard, the
club submitted copy of the relevant loan agreement, valid as of 26 January
2017 until 25 January 2018, signed by the new player, the club and Club N.
32.
On account of the above, the club amended its counter-claim and requested
the total amount of USD 477,500, plus 5% interest p.a. as of 28 November
2016, broken-down as follows:
a)
b)
USD 202,500, corresponding to the remaining value of the contract,
with an expected rise of 35%;
USD 135,000 as further compensation calculated upon the criterion of
the “specificity of sport”, corresponding to the equivalent of six
monthly salaries plus the expected 35% rise;
Player A, Country B / Club C, Country D / Club E, Country F
6
c)
USD 140,000 as costs borne by the club for the replacement of the
player.
Finally, the club requested sporting sanctions to be imposed on the player.
33.
In his final comments to the club’s counterclaim, the player reiterated that he
terminated the contract with just cause and, consequently, the counter-claim
had to be rejected. The player also acknowledged having concluded a new
employment contract with the Club E on 4 January 2017 (hereinafter: the
new contract).
34.
The new contract was valid “as of the date of joining the club in the January
transfer window for the sports season 2016/2017” until “the end of the sports
season of Football Association of Country F 2016/2017 or 30 June 2017
whichever is closer”. According to the new contract, the player was entitled
to a total salary of USD 50,000, payable in equal monthly salaries at the end
of each month.
35.
In this respect, the player explained that he suffered an injury on 7 February
2017 and eventually entered into a “mutual termination agreement” with
Club E.
36.
Upon request of the FIFA administration, Club E submitted its comments on
the present affair and pointed out that, pursuant to art. 13 of the new
contract, the player “acknowledges that he is released from any obligations
with any football federation or any other club and in case any obligation are
existing in the present or in future, the player personally shall bear them and
he is releasing Club E thereof”.
37.
Moreover, Club E affirmed that the player signed a document titled
“assurance” where he guaranteed that he had no obligations towards Club C
preventing him from joining Club E. The latter also emphasised that, within
the same document, the player undertook to be liable towards Club E in case
of breach of the aforementioned “assurance”.
38.
Furthermore, Club E affirmed that the “mutual termination agreement” was
signed on 20 February 2017 and, on the same date, the player left Club E.
39.
On account of the above, Club E requested the rejection of the counter-claim
or, alternatively, the player to reimburse Club E any compensation it should
be ordered to pay to Club C in case of termination of the contract by the
player without just cause.
Player A, Country B / Club C, Country D / Club E, Country F
7
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as:
the Chamber or DRC) analysed whether it was competent to deal with the
matter at hand. In this respect, it took note that the present matter was
submitted to FIFA on 7 November 2016. Consequently, the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2015; hereinafter: Procedural Rules) are applicable to the
matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2.
in combination with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2018), the Dispute Resolution Chamber would, in
principle, be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a
Player of Country B and Club of Country D, with the intervention of a Club of
Country F.
3.
At this point, the Chamber was eager to emphasize that, contrary to the
information contained in FIFA’s letter dated 1 June 2018, by means of which
the parties were informed of the composition of the Chamber, the member
M refrained from participating in the deliberations of the case at hand due to
certain personal circumstances and, in order to comply with the prerequisite
of equal representation of the club’s and player’s representatives, also the
member N refrained from participating. Thus, the Dispute Resolution
Chamber adjudicated the case in presence of three members in accordance
with art. 24 par. 2 of the Regulations.
4.
Reverting to the issue of its competence, the Chamber acknowledged that
the Respondent / Counter-Claimant contested FIFA’s jurisdiction to entertain
the claim of the player, alleging that the competent body to deal with any
dispute deriving from the relevant employment contract is the National
Dispute Resolution Chamber of the Football Association of Country D, in
accordance with art. 13 point 10 of the contract.
5.
On the other hand, the Chamber noted that the Claimant / CounterRespondent insisted on the competence of the FIFA DRC to adjudicate on the
claim lodged by him against the Respondent / Counter-Claimant, and
sustained that the NDRC of Country D is not an independent arbitration
tribunal guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs.
6.
Taking into account all the above, the Chamber emphasised that in
accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players, FIFA is, in principle, competent to hear an employment-related dispute
Player A, Country B / Club C, Country D / Club E, Country F
8
between a club and a player of an international dimension. Nevertheless, the
parties may explicitly opt in writing for such dispute to be decided by an
independent arbitration tribunal that has been established at national level
within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the
contract or in a collective bargaining agreement applicable on the parties. The
independent national arbitration tribunal must guarantee fair proceedings and
respect the principle of equal representation of players and clubs. Equally, the
members of the Chamber referred to the principles contained in the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations, which
came into force on 1 January 2008.
7.
In this context, the DRC turned its attention to the principle of equal
representation of players and clubs and underlined that this principle is one
of the very fundamental elements to be fulfilled, in order for a national
dispute resolution chamber to be recognised as such. Indeed, this prerequisite
is mentioned in the Regulations on the Status and Transfer of Players, in the
FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations,
which illustrates the aforementioned principle as follows: “The NDRC shall be
composed of the following members, who shall serve a four-year renewable
mandate: a) a chairman and a deputy chairman chosen by consensus by the
player and club representatives (…); b) between three and ten player
representatives who are elected or appointed either on proposal of the
players’ associations affiliated to FIFPro, or, where no such associations exist,
on the basis of a selection process agreed by FIFA and FIFPro; c) between
three and ten club representatives (…).” In this respect, the FIFA Circular no.
1010 states the following: “The parties must have equal influence over the
appointment of arbitrators. This means for example that every party shall
have the right to appoint an arbitrator and the two appointed arbitrators
appoint the chairman of the arbitration tribunal (…). Where arbitrators are
to be selected from a predetermined list, every interest group that is
represented must be able to exercise equal influence over the compilation of
the arbitrator list”.
8.
With the aforementioned principles in mind, the Chamber went on to
examine the documentation presented by the Respondent / Counter-Claimant
and noted that, according to the same, the chairman and the vice-chairman
of the NDRC of Country D are appointed by the board of directors of the
Football Federation of Country D.
9.
As a consequence, the Chamber was of the opinion that the club failed to
prove that the NDRC of Country D indeed respects the principle of equal
representation of players and clubs.
10.
On account of all the above, the Chamber established that the Respondent /
Counter-Claimant’s objection towards the competence of FIFA to deal with
Player A, Country B / Club C, Country D / Club E, Country F
9
the present matter has to be rejected and that the Dispute Resolution
Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, to consider the present matter as to the
substance.
11.
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 of the Regulations on the Status and
Transfer of Players (edition 2018), and considering that the present claim was
lodged on 7 November 2016, the 2016 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
12.
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 all the above-mentioned
facts as well as the arguments and the documentation submitted by the
parties. 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.
13.
First, the Chamber noted that the parties entered into an employment
contract valid as from 29 July 2016 until 28 July 2017, providing a monthly
salary for the player in the amount of USD 16,666.
14.
Moreover, the members of the Chamber observed that it remained
undisputed that the player left the club on 28 October 2016 and eventually,
on 30 October 2016, he sent to the club a letter by means of which he put the
latter in default of payment of three monthly salaries, namely for the months
from August to October 2016, giving it a two days’ deadline in order to
remedy the default. Furthermore, the DRC took note that, on 2 November
2016, the player terminated the contract.
15.
Bearing in mind the above, the members of the Chamber took note that the
player requested outstanding remuneration in the amount of USD 49,998,
corresponding to the monthly salaries as from August until October 2016,
and USD 133,328 as compensation for breach of contract.
16.
In continuation, the Chamber took note of the reply of the club, which
affirmed that it paid to the player his monthly salary for August and
submitted the relevant payment receipts containing the alleged signature of
the player. Consequently, according to the club, when the player sent his
default notice, only the salary for the month of September 2016 was
outstanding. Moreover, the club maintained that the default notice sent by
the player was invalid as it was not allegedly including a power of attorney
Player A, Country B / Club C, Country D / Club E, Country F
10
empowering the player’s representative and, what is more, it could not take
notice of it on time.
17.
On account of the aforementioned arguments, the club averred that the
player terminated the contract without just cause and as such it lodged a
counter-claim for breach of contract against the player, requesting the
payment of compensation for breach of contract in the amount USD 477,500.
18.
In continuation, the members of the Chamber took note of the position of
the player’s new club, Club E, which maintained that, according to the
employment contract it concluded with the player, the latter released his new
club from any liability for any obligations towards any other club. What is
more, Club E maintained that the player signed a document whereby he
assured the intervening party that he had no obligations towards the
Respondent / Counter-Claimant and undertook to be liable towards Club E in
case of breach of such “assurance”.
19.
In view of the aforementioned considerations, the members of the Chamber
highlighted that the underlying issue in this dispute, considering the
diverging position of the parties, was to determine whether, on 2 November
2016, the contract had been terminated by the player with or without just
cause and to determine thereafter the consequences of said termination.
20.
In this context, the Chamber was eager to emphasise first that, according to
its well established jurisprudence, only a breach or misconduct which is of a
certain severity justifies the termination of a contract. In other words, a
contract may be terminated prematurely only when there are objective
criteria which do not reasonably permit one to expect the continuation of the
employment relationship. Hence, if there are more lenient measures which
can be taken in order for an employee to ensure the employer’s fulfilment of
his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract
can only be an ultima ratio.
21.
Moreover, the Chamber referred to art. 12 par. 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber, according to which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof. Thus, it is up to the Claimant /
Counter-Respondent to substantiate and provide documentary evidence with
regard to alleged circumstances which, according to the player, justified his
decision to terminate the contract.
22.
Having established the above, the Chamber proceeded with an analysis of the
circumstances surrounding the present matter and, in so doing, turned its
attention to the fact that the Claimant / Counter-Respondent contested the
authenticity of his signature on the payment receipts submitted by the
Player A, Country B / Club C, Country D / Club E, Country F
11
Respondent / Counter-Claimant as proof of payment of the salary for the
month of August 2016, and affirmed that the said signature had been
forged.
23.
In this respect, the Chamber emphasised that, as general rule, it is not the
competent body to decide upon matters of criminal law, such as the alleged
forgery of a signature or a document, but that such affairs rather fall into the
jurisdiction of the competent national criminal authority.
24.
The DRC also recalled that all documentation remitted shall be considered
with free discretion and therefore focused its attention on the relevant
original payment slips submitted by the Respondent / Counter-Claimant as
well as the other documents containing the player’s signature. After a
thorough analysis of the aforementioned documents, in particular,
comparing the relevant signatures, the DRC had no other option but to
conclude that, for a layman, the signatures seem to be alike.
25.
In view of the above, and based on the documentation currently at its
disposal, the Chamber unanimously came to the conclusion that, unless
proven otherwise by a decision of the competent national criminal authority,
it had to consider that the payment of the salary for the month of August
2016 had effectively been made to the Claimant / Counter-Respondent.
26.
Having stated the above, the Chamber further observed that, indeed, on the
date the player put the club in default (i.e. on 30 October 2016), only the
salary for the month of September 2016 was outstanding, being the salary for
the month of October payable until 31 October 2016 only. Therefore, the
members of the Chamber concurred that, when the player put the club in
default of payment, the outstanding remuneration due to the Claimant /
Counter-Respondent was equal to one monthly salary only.
27.
Moreover, the DRC wished to emphasise that it remained undisputed that the
player indeed sent a default notice to the Respondent / Counter-Claimant
granting a time limit of 48 hours in order to remedy the default. In this
context, the members of the Chamber wished to emphasise that the purpose
of a default notice is to make aware the defaulting party of its delay in the
compliance of its obligations and to grant it a reasonable period of time for
said party to remedy the default. In casu, the DRC was of the opinion that a
48 hours’ time-limit to cure a default does not provide the defaulting party a
reasonable opportunity to do so.
28.
In view of the all aforementioned circumstances, the Chamber was of the
unanimous opinion that, at the time of the unilateral termination of the
contract by the player, there were no objective circumstances which would
have prevented, in good faith, the continuation of the employment
Player A, Country B / Club C, Country D / Club E, Country F
12
relationship. As such, the DRC held that the player terminated the contract
without just cause on 2 November 2017.
29.
Prior to establishing the consequences of the termination of the contract
without just cause by the Claimant / Counter-Respondent 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 player.
30.
In this regard, the Chamber observed that it remained uncontested that the
Claimant / Counter-Respondent did not receive the salary for the months of
September and October 2016. Consequently, in accordance with the general
legal principle of pacta sunt servanda, the Chamber decided that the
Respondent / Counter-Claimant has to pay the Claimant / CounterRespondent the corresponding amount of USD 33,332.
31.
In addition, taking into consideration the player’s request as well as the
constant practice of the Dispute Resolution Chamber in this regard, the
members of the Chamber decided to award the Claimant / CounterRespondent interest at the rate of 5% p.a. on the outstanding amount of
USD 33,332, as requested by the player:
- as of 1 October 2016, on the amount of USD 16,666;
- as of 1 November 2016, on the amount of USD 16,666.
32.
Subsequently, having established that the Claimant / Counter-Respondent
terminated the contract without just cause, the DRC established that, in
accordance with art. 17 par. 1 of the Regulations, the player is liable to pay
compensation for breach of contract to the Respondent / Counter-Claimant.
Furthermore, in accordance with the unambiguous content of art. 17 par. 2
of the Regulations, the Chamber established that the player’s new club, i.e.
Club E, shall be jointly and severally liable for the payment of the mentioned
compensation. In this respect, the Chamber was eager to point out that the
joint liability of the intervening party is independent from the question as to
whether the new club has committed an inducement to contractual breach or
any other kind of involvement by the new club. This conclusion is in line with
the well-established jurisprudence of the Chamber that was repeatedly
confirmed by the Court of Arbitration for Sport (CAS).
33.
Having stated the above, the Chamber focused its attention on the
calculation of the amount of compensation for breach of contract in the case
at stake. In doing so, the members of the Chamber firstly reiterated that, in
accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the
law of the country concerned, the specificity of sport and further objective
Player A, Country B / Club C, Country D / Club E, Country F
13
criteria, including in particular the remuneration and other benefits due to
the player under the existing contract and/or the new contract(s), the time
remaining on the existing contract up to a maximum of five years as well as
the fees and expenses paid or incurred by the former club (amortised over
the term of the contract) and whether the contractual breach falls within a
protected period. The DRC recalled that the list of objective criteria is not
exhaustive and that the broad scope of criteria indicated tends to ensure that
a just and fair amount of compensation is awarded to the prejudiced party.
34.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the relevant employment contract between the
player and the club contains a provision by means of which the parties had
beforehand agreed upon an amount of compensation for breach of contract.
In this regard, the Chamber established that no such compensation clause
was included in the said employment contract at the basis of the matter at
stake.
35.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the Claimant / Counter-Respondent to the
Respondent / Counter-Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC
emphasised beforehand that each request for compensation for contractual
breach has to be assessed by the Chamber on a case-by-case basis taking into
account all specific circumstances of the respective matter, as well as the
Chamber’s specific knowledge of the world of football and its experience
gained throughout the years.
36.
Consequently, in order to estimate the amount of compensation due to the
Respondent / Counter-Claimant in the present case, the Chamber firstly
turned its attention to the to the essential criterion relating to the fees and
expenses paid by the club for the acquisition of the player’s services insofar as
these have not been amortised over the term of the relevant contract. In this
regard, the DRC observed that the Respondent / Counter-Claimant had not
specifically included any of these costs in its claim and, thus, it established
that, as it had no indications at its disposal regarding possible fees and
expenses paid or incurred by the Respondent / Counter-Claimant for the
acquisition of the player, it could not further consider that criterion in the
specific case at hand.
37.
The Chamber further noted that in its calculation of the amount of
compensation the Respondent / Counter-Claimant had included costs relating
to the acquisition of another player that allegedly replaced the Claimant /
Counter-Respondent. In this regard, the Chamber was eager to emphasise
that the Respondent / Counter-Claimant failed to provide documentary
evidence in order to establish, at the Chamber’s satisfaction, a direct nexus
between the loss of the Claimant / Counter-Respondent’s services and the
Player A, Country B / Club C, Country D / Club E, Country F
14
hiring of the new player. Therefore the Chamber decided not to take into
consideration the transfer fee allegedly paid in connection with said transfer,
let alone the new player’s salary, in order to determine the payable
compensation.
38.
Consequently, the members of the Chamber were of the opinion that the
only objective criteria in the present matter in order to establish the amount
of compensation to be paid by the player was the financial terms of the
former contract and the new contract for the same period of time, the value
of which constitutes an essential criterion in the calculation of the amount of
compensation in accordance with art. 17 par. 1 of the Regulations. Bearing in
mind the foregoing, the Chamber proceeded with the calculation of the fixed
remuneration payable to the player under the terms of both the employment
contract signed with the Respondent / Counter-Claimant, i.e. Club C, and the
one signed with the intervening party, i.e. Club E, for the period that was
remaining since the unilateral termination of the contract by the player until
its expiry, i.e. from 2 November 2016 until 28 July 2017.
39.
In this regard, the Chamber noted that, as per the employment contract
signed with the Respondent / Counter-Claimant, the player was entitled to a
monthly remuneration in the amount of USD 16,666 for the remaining
contractual period, i.e. a total fixed remuneration of USD 149,994.
40.
Equally, the DRC took note of the player’s remuneration under the terms of
his employment contract with his new club, i.e. the intervening party, which
corresponds to a monthly remuneration in the amount of USD 10,000 for the
remaining contractual period, i.e. a total fixed remuneration of USD 90,000.
41.
Taking into account the above, the Chamber concluded that, for the relevant
period, the player’s average remuneration amounts to USD 119,997.
42.
On account of the above, the Dispute Resolution Chamber considered that, in
application of the aforementioned criteria, the Respondent / CounterClaimant would be entitled, in principle, to a compensation for breach of
contract in the amount of USD 119,997.
43.
Notwithstanding the above, the members of the Chamber, taking into
account all the circumstances surrounding the present matter, wished to
emphasise that, at the time of the termination of the contract, the
Respondent / Counter-Claimant was in breach of its obligations towards the
player. In particular, the members of the DRC recalled that the player did not
receive the payment of his salaries for the months of September and October
2016.
44.
As a consequence thereof, the members of the Chamber concluded that it is
fair and reasonable to reduce the compensation for breach of contract due to
Player A, Country B / Club C, Country D / Club E, Country F
15
the club accordingly. In this respect, the Chamber also considered that the
sequence of events of the present matter appears to show that the club did
not attribute too much value to the player’s services. In particular, the fact
that the club only reacted once it was notified of the player’s claim.
45.
On account of the above-mentioned considerations, and of the specific
circumstances of the case, the Chamber decided that the Respondent /
Counter-Claimant is entitled to receive the amount of USD 33,332 as
compensation for breach of contract, which is considered by the DRC a
reasonable and justified amount.
46.
In continuation, and with regard to the club's request for interest, the
Chamber decided that the Respondent / Counter-Claimant, in accordance
with the long-standing jurisprudence of the Chamber in this regard, is
entitled to 5% interest p.a. on the aforementioned amount as of 12
December 2016.
47.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant /
Counter-Respondent and the Respondent / Counter -Claimant are rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is admissible.
2.
The claim of the Claimant / Counter-Respondent is partially accepted.
3.
The Respondent / Counter-Claimant, Club C, has to pay to the Claimant /
Counter-Respondent, w ithin 30 day s as from the date of notification of this
decision, outstanding remuneration in the amount of USD 33,332, plus 5%
interest p.a. as follows:
a)
as of 1 October 2016 on the amount of USD 16,666 until the date of
effective payment;
b)
as of 1 November 2016 on the amount of USD 16,666 until the date of
effective payment.
4.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5.
The counterclaim of the Respondent / Counter-Claimant is partially accepted.
6.
The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant, w ithin 30 day s as from the date of notification of this decision,
Player A, Country B / Club C, Country D / Club E, Country F
16
compensation for breach of contract in the amount of USD 33,332, plus 5%
interest p.a. as of 12 December 2016 until the date of effective payment.
7.
The intervening party, Club E, is jointly and severally liable for the payment
of the aforementioned compensation for breach of contract.
8.
Any further counterclaim lodged by the Respondent / Counter-Claimant is
rejected.
9.
In the event that the aforementioned amounts plus interest are not paid by
the respective parties as provided above within the stated time limit, the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
10.
The parties are directed to inform their counterparties 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.
*****
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
Player A, Country B / Club C, Country D / Club E, Country F
17
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D / Club E, Country F
18