Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 July 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
John Bramhall (England), member
Mario Gallavotti (country K), member
on the matter between the player,
Player 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 case
1.
On 11 February 2013, the player from country B, Player A (hereinafter: the player
or the Claimant/Counter-Respondent) and the club from country D, Club C
(hereinafter: Club C or the Respondent/Counter-Claimant) concluded an
employment contract (hereinafter: the contract) valid as from the date of
signature until 31 July 2014.
2.
On the same date, the parties entered into a “Supplementary Agreement”
(hereinafter: the agreement) which governed the financial aspects of the contract
and according to which the player was entitled to receive from Club C, inter alia, a
net monthly remuneration of EUR 20,000.
3.
On 9 April 2014, the player lodged a claim against Club C in front of FIFA
requesting, inter alia, as follows:
a. EUR 100,000 as outstanding salaries of May, June, July, August and
September 2013 “plus social contributions and interests for the delay
from the date of the maturation”;
b. EUR 200,000 as compensation for breach of contract;
c. EUR 500,000 as “compensation for the injury and the health damages
suffered”;
d. EUR 5,000 as medical expenses.
4.
In particular, the player explained that before the start of the season, the team
went to country G to “the training stage” and that “since the beginning of this
period of training, [he] suffered of a strange sharp pain between his belly and the
pubic area…”
5.
The player sustained that after informing Club C of the problem, on 18 March
2013, medical tests were performed in the “Emergency Hospital of country D”
where it was diagnosed that he had a “not better specified infection, then
treated with normal medicines and antibiotics”. In this regard, the player argued
that since the doctors of country D did not find any injury, “they suggested to
restart with the ordinary training programme”.
6.
In continuation, the player stressed that the pain got worse and therefore, “[Club
C] authorised [him] to do a serious medical control” in a Hospital in country H
where he was treated by Dr. I as of 8 April 2013. The player stressed that Dr. I
diagnosed him with a “stress fracture of the pubic area, better known as athletic
pubalgia or sport’s hernia”. In this respect, the player enclosed Dr. I’s report dated
14 June 2013, which states, “the patient consulted during the month of April 2013
Player A, country B / Club C, country D / Club E, country F
Page 2 of 16
[and] was advised to follow conservative treatment and if satisfactory results were
not achieved, surgical treatment would be necessary”.
7.
The player further argued that Dr. I provided him with a specific 10-day training
programme in order to fully recover from the injury. The player asserted that for
the first two days, Club C decided to follow said programme, but afterwards it
decided to reinstate him with the rest of the team, thereby contradicting Dr. I’s
programme.
8.
The player further held that in view of the above, he had a relapse of his injury. In
this respect, the player stressed that on 4 June 2013, a new medical evaluation
was done in the Emergency Hospital of country D where he underwent a “Nuclear
Magnetic Resonance” (NMR). In this respect, Dr. J issued a report which reads
“Bone-destructive changes in the pelvis, femoral heads are not discovered, cortical
bones are not damaged, subchondral change of the MR-signal is not determined.
MR-signal in the muscle structure is not changed. Pathological changes in the
visible pelvic organs are not discovered. Conclusion: Structural changes are not
revealed”.
9.
The player sustained that based on the above-mentioned report, Club C’s doctor
told him that “he was able to continue to work with the regular programme of
training”.
10.
At this point, the player underlined that his salary of May 2013 was outstanding.
11.
According to the player, on 25 June 2013, his agent was summoned to Club C’s
premises where its General Director offered him to terminate the employment
contract against the payment of his salaries of May and June 2013, which he
refused.
12.
In view of the above and, in particular, of the fact that Club C would allegedly not
do anything to properly take care of his injury, the player argued that “in order to
protect his fundamental good of health, [he] was obliged to go in country K, to
cure his injury correctly under the control of independent Doctors and for all the
time necessary to the proper healing from the athletic pubalgia”. The player
further argued that his decision “was justified also in reason of the lack of
payment of the monthly wages of May and June 2013…”.
13.
On 27 June 2013, Dr. L of a Hospital in country K, analysed the NMR (cf. point I./8.
above) and issued a report which reads “the NMR (…) showed a weak, diffused
and inhomogeneous oedema of the spongiosis of both pelvis connected with
symphysis. The oedema was extended on public insertion of adductor muscles,
Player A, country B / Club C, country D / Club E, country F
Page 3 of 16
short and long situation was more evident on the right side (…) clinical suspicious
of deep suffering in the pubic region with external periosteal of 8mm is
confirmed. The connecting suffering of the big adductor is clear”.
14.
Between 27 June 2013 and 9 September 2013, the player remained in country K
where he underwent two rehabilitation programs. In this period of time, the
following exchange of correspondence took place between the parties:
a. On 27 June 2013 the player informed Club C as follows: “I formally
communicate you (…) that [the player] is still affected by the injury,
already known by you (…) as certified by the report of Dr. L (…) attached
to the present.”
b. On 28 June 2013, Club C replied, inter alia, as follows: “[We] have been
informed (…) that you had not appeared at the team’s (…) training on 27
June 2013 headed to an unknown direction (…) you also missed trainings
in the period from 20 to 24 June 2013 (…) [Club C] is much concerned
about your conduct and actions and we kindly convincingly ask you to
return to the location of the first team (…) This letter should be
considered as an official reprimand for [the player].
c. On 1 July 2013, the player replied by providing an address where Club C
could contact him and asserting that “the medical situation [of the
player], should be considered as a full justification of the absence from
work” and that his actions “had to be considered absolutely lawful [since
the player] is actually protecting his fundamental right to Health”.
d. On 2 July 2013, Club C answered the following: “The medical staff of
[Club C] is completely disagreeing with the interpretation of the medical
results (…) We should also note that [the player] went to country K
without the permission of his current employer”. Furthermore, Club C
requested the player “to pass drug tests” since, apparently, he had been
caught by the police of country K in possession of marijuana.
e. On 3 July 2013, the player reiterated that he was injured. Moreover, he
rejected having consumed any drugs and asserted that he will pass the
“drug tests” and that “tomorrow, we will be able to send you the
programme of rehabilitation planned by Professor M”.
f. On 4 July 2013, Club C confirmed that it would send a representative to
attend the player’s drug test;
Player A, country B / Club C, country D / Club E, country F
Page 4 of 16
g. On 8 July 2013, the player provided Club C with Professor M’s
rehabilitation programme dated 3 July 2013, which states that the player
“presents severe pain in the pubic zone”;
h. On 24 July 2013, the player informed Club C that he was entering to the
second-phase of the rehabilitation programme enclosing a second report
of Professor M dated 22 July 2013. On 25 July 2013, the player further
informed Club C that “the drug test is totally negative and shows that
[the player] has not taken any drugs”.
i.
On 12 August 2013, Club C acknowledged receipt of the player’s
correspondence dated 24 July 2013 and “kindly invite [him] to inform
about the process of rehabilitation (…) and the date of his returning to
[Club C]”;
j.
On 21 August 2013, Club C invited again the player to inform it “about
the process of rehabilitation”;
k. On 27 August 2013, the player sent to Club C “the certification of Dr. N
that states the programme of care that Player A is attending in his
centre” and provided a new address in country K;
l.
On 30 August 2013, Club C replied emphasising that the contents of the
player’s letters dated 24 July 2013 and 27 August 2013 were contradictory
since supposedly the Player was rehabilitating with Professor M and now
he was supposedly with Dr. N. Therefore, Club C requested a “detailed
plan of his final rehabilitation and the date of his returning”;
m. On 6 September 2013, the player answered as follows “Next Monday 9
September 2013 (…) [he] will return at your disposal in country D and will
be able to train and work for your club” and expressed that “at the end
of the work with [Professor M], for recover the best athletic condition he
was obliged to find another important centre, with a soccer field in
disposition, that allows him to recover the athletic movements in order to
avoid unnecessary injury relapses”.
15.
On 12 September 2013, once the player had returned to country D, Club C
addressed another letter to him requesting “a detailed report about
rehabilitation process from the period of 27 June 2013 to 8 September 2013. We
cordially insist that the report above should contain full information about each
day of player’s staying in country K…”.
Player A, country B / Club C, country D / Club E, country F
Page 5 of 16
16.
In this respect, the player stressed that upon his return to country D, he “wasn’t
aggregated to the rest of the first team and worked lonely under the control of
Mrs. O, that wasn’t a member of the technical staff of the first team”. Moreover,
the player held that he had to “attend a very dangerous double daily training
program that could compromise [his rehabilitation]”. In this respect, the player
argued that he “invited [Club C] to desist immediately from the training program
and to reintegrate him with the rest of the team”.
17.
On 4 October 2013, the player issued a final warning to Club C asking for his
reinstatement in the first team and for the payment of his salaries of May, June,
July, August and September 2013.
18.
On 9 October 2013, Club C informed the player that it was terminating the
employment contract based on i) his failure to show high level of athletic
performance and make maximum efforts, ii) his failure to follow instructions, iii)
his absence from the club for more than two months and iv) his failure to follow
the obligation not to break the “rules of morality”.
19.
In this respect, the player emphasised that “according to several decisions of the
Chamber, the motivation adducted by the employer cannot be considered as a
valid just cause for the termination of a contract…” and that “the just cause for
the dismissal, meant as a misconduct by the employee so serious that it does not
allow the continuation of the employment relationship (…) in this case does not
exist”.
20.
Therefore, in the player’s view, Club C terminated the contract without just cause
and, on top of his outstanding salaries, the latter must pay him compensation for
breach of contract.
21.
Finally, the player informed FIFA that he concluded a new employment contract
with the club from country F, Club E valid as from 29 January 2014 until 30 June
2014 and according to which he is entitled to receive a total remuneration of EUR
30,000.
22.
In its reply to the claim, Club C stressed that the player was absent from the club
as of 27 June 2013 until 8 September 2013 without any kind of authorization or
permission.
23.
In this respect, Club C sustained that the player failed to inform it about the
treatment he was receiving in country K despite several requests. Club C argued
that the player “took almost 5 weeks” to reply and therefore “raising concerns
that he is delaying the process of alleged rehabilitation intentionally”. In this
Player A, country B / Club C, country D / Club E, country F
Page 6 of 16
regard, Club C sustained that “the long-lasting absence of a player from his club
without authorisation and without other just cause is a justifying reason for the
suspension of the payment of the player’s salaries and moreover is to be
considered as an unjustified breach of the employment contract by the player”.
24.
In continuation and in relation to the player’s alleged injury, Club C stressed that
the player justified his leave to country K “on trauma diagnosed by doctors from
country K on the basis of magnetic resonance dated 4 June 2013, however, as
evident from the explanations of Club C doctor Dr. P, indications mentioned by
doctors from country K are common to all football players and does not indicate
any traumas”. In order to support its position, Club C enclosed a report from a Dr.
P, who stressed, inter alia, that the results of the examination carried out in
country H “could be caused by in infectious process. After the results of the
analysis carried out to identify the presence of the anti-infectious antibodies were
received, the excess of the Anti-Chlamyidia trachomatis was discovered”. In
addition, Club C held that the explanations of Dr. P are confirmed by the doctor
of the country D national football team, who states that the findings of the
player’s examination show an infection but not a trauma.
25.
Furthermore, Club C explained that upon his return to country D, the player was
in poor physical condition “which did not allow him to play safely and
successfully” in the team. Club C further argued that the player “has lost his skills
of playing football (…) while staying in country K for more than two months…”
26.
In this context, Club C sustained that in order to improve the player’s physical
condition, he was asked to perform a special individual training program,
however “he did not make maximum efforts (…) and did not perform exercises
properly”. In this respect, Club C refused that the individual programme was
dangerous for the player’s health as these were performed by its players all the
time.
27.
In relation to the above, Club C argued that the Court of Arbitration for Sport
(CAS) has maintained that “the athlete is obliged to do whatever is necessary on
his part to maintain his working capacity” and that “if the player does not
provide the club with his working capacity, this constitutes a serious breach of
duty which can justify unilateral termination of the contract”.
28.
Along these lines, Club C argued that the player failed to attend a training session
on 8 October 2013 without justification and that on 9 October 2013, in order to
“check the health of the player and to be sure that he is able to perform training
program and is ready to play with the team” an MRI was scheduled, however, the
player refused to be tested. In this respect, Club C asserted that, in view of the
Player A, country B / Club C, country D / Club E, country F
Page 7 of 16
different and divergent diagnoses, a new MRI could have shown if the player was
or had been actually injured.
29.
As a consequence, Club C asserted that it had no other option but to terminate
the employment contract since i) the player was absent from Club C for more than
two months, ii) “[the player] refused to perform medical tests under supervision
of [Club C]”, iii) the physical fitness of the player was poor and he was not ready
to play in official matches. What is more, the player was not making maximum
efforts during the workouts in order to improve his physical fitness and he broke
the “rules of morality” as he was found in company of a person in possession of
marijuana.
30.
On account of all the above, Club C affirmed that it terminated the contract with
just cause and thus, lodged a counter-claim against the player requesting the
amount of EUR 90,000 “due to improper fulfilment of contractual obligations”.
31.
In his replica and reply to the counter-claim, the player stressed that Club C did
not contest not having paid his salaries of May, June, July, August and September
2013.
32.
Furthermore and regarding his injury, the player rejected the position of Club C
and sustained that in accordance with Dr. I’s report, it was clearly established that
he was suffering from a “stress fracture on the pubic area”. Therefore, the
argument that he was only suffering from an infection must be rejected. What is
more, this is confirmed by Dr. I’s letter of 14 June 2013 addressed to Club C,
whereby the doctor stated that a surgery might be needed.
33.
In addition, the player denied not having trained properly, stressed that Club C
did not dispute the fact that he was sent to train by himself and denied having
been in poor physical fitness upon his return. In this respect, the player referred to
a report dated 5 November 2013 issued by Dr. Q from country K, whereby it was
stated that “we don’t have any doubt about the possibility [of the player] to play
football as a professional player”. Thus, said report together with the fact that he
concluded a new employment contract with the club from country F, Club E,
proves, in the player’s view, that he was perfectly fit to participate with Club C.
34.
Finally, the player reiterated the arguments of his claim and sustained that the
counter-claim of Club C should be dismissed.
Player A, country B / Club C, country D / Club E, country F
Page 8 of 16
35.
In its duplica, Club C held that “the physicians in country K were chosen
unilaterally by the player and without consent of and coordination with [Club C],
thus [Club C] could not trust the impartiality and findings of these physicians”.
36.
Finally, Club C reiterated the arguments put forward in its reply and counterclaim.
37.
Upon request, the club from country F, Club E, as the player’s new club, presented
its position to the counter-claim lodged by Club C. In this respect, Club E stressed
that “it absolutely clear that [it] has acted in total good faith”. Club E further
asserted that it was only in January 2014 when it started negotiations with the
player, i.e. after the player’s contract with the club had already been terminated.
II.
Considerations of the Dispute Resolution Chamber
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 9 April 2014. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B, a club from country D
and a club from country F.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2015), and considering that the claim was lodged in front of
FIFA on 9 April 2014, the 2012 edition of the aforementioned 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
Player A, country B / Club C, country D / Club E, country F
Page 9 of 16
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 Dispute Resolution Chamber acknowledged that on 11 February
2013, the parties entered into an employment contract valid until 31 July 2014 as
well as into an agreement which governed the financial aspects of the contract
and whereby Club C undertook to pay the player a monthly remuneration of EUR
20,000.
6.
Furthermore, the members of the Chamber took note that it was undisputed that
on 9 October 2013, Club C terminated the employment relationship between the
parties alleging just cause invoking the following reasons: i) the player was absent
from Club C for more than two months, ii) the poor physical fitness of the player
upon his return to country D and his refusal to make maximum efforts during
training and iii) the alleged player’s breach of the “rules or morality” as he was
found in company of a person in possession of marijuana.
7.
Having said this, the Chamber proceeded to take note of the player’s position
who argues that Club C did not have just cause to terminate the employment
relationship. In particular, the Chamber observed that, according to the player,
since Club C did not take proper care of his injury, he was entitled to go to
country K “in order to protect his fundamental good of health”.
8.
Furthermore, the Chamber acknowledged that the player refused the allegations
that he was not able to perform at the highest level, rejected having consumed
marijuana or any other illicit substance and, moreover, emphasised that at the
moment of the termination of the contract by Club C, his salaries of May, June,
July, August and September 2013 were outstanding. In this respect, the Chamber
took note that according to the player, “the just cause for the dismissal, meant as
a misconduct by the employee so serious that it does not allow the continuation
of the employment relationship (…) in this case does not exist”.
9.
In view of the foregoing considerations, the Chamber deemed that the underlying
issue in the dispute at hand, considering the position of the parties, was to
determine whether the relevant employment contract had been unilaterally
terminated with or without just cause by Club C. The DRC also underlined that,
subsequently, it would be necessary to determine the consequences regarding the
early termination of the employment contract.
10.
First of all, the members of the Chamber wished to refer to the issue of the
player’s injury. In this respect, the DRC took note that there are dissenting
Player A, country B / Club C, country D / Club E, country F
Page 10 of 16
positions between the parties as to whether the player was actually injured or if,
as Club C defends, “indications mentioned by doctors from country K are common
to all football players and does not indicate any traumas”.
11.
In this respect, the members of the Chamber focused their attention on the
different medical reports on file, in particular Dr. I’s letter dated 14 June 2013 in
which he stressed that “the patient consulted during the month of April 2013
[and] was advised to follow conservative treatment and if satisfactory results were
not achieved, surgical treatment would be necessary”, as well as Dr. L’s report
dated 27 June 2013, in which it is stated that “the NMR (…) showed a weak,
diffused and inhomogeneous oedema of the spongiosis of both pelvis connected
with symphysis. The oedema was extended on public insertion of adductor
muscles, short and long situation was more evident on the right side (…) clinical
suspicious of deep suffering in the pubic region with external periosteal of 8mm is
confirmed. The connecting suffering of the big adductor is clear”. In this respect,
the members of the Chamber were of the unanimous opinion that it could be
established that the player actually suffered from an injury. This is further
corroborated by the rehabilitation programme issued by Professor M on 3 July
2013.
12.
Having established the above, the Chamber came to analyse the arguments
brought up by Club C in order to justify the early termination of the contract. The
DRC firstly took note that according to Club C “the long-lasting absence of a
player from his club without authorisation and without other just cause is a
justifying reason for the suspension of the payment of the player’s salaries and
moreover is to be considered as an unjustified breach of the employment contract
by the player”. In this respect, the Chamber underlined that it is undisputed that
the player was absent from Club C for the period between 27 June 2013 and 9
September 2013.
13.
At this point, the Chamber wished to point out that on 27 June 2013, the player
had not been authorised by Club C to seek treatment in country K. In other words,
Club C had not given its permission to the player to be absent from the club. In
this respect, the Chamber in principle agrees that the unauthorized absence of a
player from his club can, under certain circumstances, be considered as a justified
reason for the termination of an employment contract.
14.
However, the members of the Chamber observed that, from the exchange of
correspondence that took place between 27 June 2013 and 6 September 2013, it
can be noted that whilst at first, Club C requested the player to come back, in its
letter dated 12 August 2013, the club explicitly stated that “[we] kindly invite
[the player] to inform about the process of rehabilitation (…) and the date of his
Player A, country B / Club C, country D / Club E, country F
Page 11 of 16
returning to [Club C]”. In the Chamber’s view, by means of its letter dated 12
August 2014, Club C accepted for the player’s rehabilitation to take place in
country K. This is further confirmed, in the Chamber’s opinion, by Club C’s letters
of 21 August 2013 whereby Club C requested the player to inform it “about the
process of rehabilitation” and of 30 August 2013 whereby Club C requested the
player for a “detailed plan of his final rehabilitation and the date of his
returning”.
15.
With due consideration to the previous considerations, the Chamber finds that
whereas the player was absent without authorization as from 27 June 2013, Club
C by mid-august did not longer seem to object to his absence and, at that time,
did not consider the player’s absence as a reason to terminate the employment
relationship. The Chamber is comforted in its conclusion in view of the fact that
the player returned to the club in the beginning of September 2013 and trained
with the club during a full month with the termination on 9 October 2013. The
members of the Chamber find that the foregoing proves that both parties were
actually continuing their employment relationship after the player’s absence.
16.
On account of the above, the members of the Chamber came to the unanimous
conclusion that the player’s absence for the relevant period of time can, under the
given circumstances, not be considered as a justified reason to terminate the
employment contract and therefore, the Chamber decided to reject the argument
of Club C.
17.
As to the alleged breach of the “rules of morality” by the player and his failure to
“make maximum efforts (…) and perform exercises properly”, the Chamber,
referred to art. 12 par. 3 of the Procedural Rules, which establishes that the party
claiming a right on the basis of an alleged fact shall carry the burden of proof. In
this regard, the DRC decided that Club C failed to remit sufficient evidence which
could prove, at its satisfaction, the aforementioned supposed breaches of the
player. What is more, there is evidence on file which shows that the player tested
negative for marijuana.
18.
In addition and as to the argument of Club C regarding the “poor physical fitness
of the player upon his return to country D”, the DRC referred to its wellestablished jurisprudence according to which, as a general rule, an alleged poor
physical fitness of a player cannot justify a premature termination of an
employment contract by a club.
19.
Finally, the Chamber highlighted that t at the time of the termination of the
contract by Club C, the latter’s outstanding payments towards the player
amounted to EUR 100,000 comprised of the salaries of May 2013 to September
2013. In this respect and first of all, the Chamber emphasised that Club C’s
Player A, country B / Club C, country D / Club E, country F
Page 12 of 16
argument that “the long-lasting absence of a player from his club without
authorisation and without other just cause is a justifying reason for the
suspension of the payment of the player’s salaries”, cannot be applied to the
salaries for May and September 2013. Furthermore, and in view of the conclusion
reached by the Chamber in point II./13. to II./17. above, the Chamber finds that
the employment relationship continued and that therefore also the salaries for
June, July and August 2013 are due.
20.
On account of all of the above-mentioned considerations, the Chamber decided
that Club C did not have just cause to terminate the employment contract on 9
October 2013. Consequently, the DRC decided that Club C is to be held liable for
the early termination of the employment contract without just cause.
21.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract without
just cause by Club C.
22.
First of all, the members of the Chamber concurred that Club C must fulfil its
obligations as per the employment contract in accordance with the general legal
principle of pacta sunt servanda. Consequently, the Chamber decided that Club C
is liable to pay to the player the remuneration that was outstanding at the time
of the termination, i.e. the amount of EUR 100,000, corresponding to the player’s
salaries of May, June, July, August and September 2013. Moreover, and with
regard to the player's request for interest, the Chamber decided that the player is
entitled to receive interest at the rate of 5% p.a. on the aforesaid amount as from
the respective due dates.
23.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the player is entitled to receive from Club C compensation
for breach of contract in addition to any outstanding salaries 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.
Player A, country B / Club C, country D / Club E, country F
Page 13 of 16
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
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.
Having recalled the aforementioned, and in order to evaluate the compensation
to be paid by Club C, the members of the Chamber took into account the
remuneration due to the player in accordance with the employment contract as
well as the time remaining on the same contract, along with the professional
situation of the player after the early termination occurred. In this respect, the
Chamber pointed out that at the time of its termination, the employment
contract would run for another ten months. Taking into account the foregoing,
the Chamber decided that the amount of EUR 200,000 shall serve as the basis for
the final determination of the amount of compensation for breach of contract.
27.
In continuation, the Chamber recalled that the player had entered into a new
employment contract with the club from country F, Club E valid as of 29 January
2014 until 30 June 2014 and according to which he was entitled to receive a total
remuneration of EUR 30,000. Consequently, in accordance with the constant
practice of the Dispute Resolution Chamber and the general obligation of the
player to mitigate his damages, the above-mentioned amounts shall be taken into
account in the calculation of the amount of compensation for breach of contract.
28.
In view of all of the above, the Chamber decided that Club C must pay the
amount of EUR 170,000 to the player as compensation for breach of contract,
which is considered by the Chamber to be a reasonable and justified amount.
29.
Furthermore and as to the player’s request of EUR 500,000 as “compensation for
the injury and the health damages suffered” and of EUR 5,000 as medical
expenses, the members of the Chamber referred to art. 12 art. 3 of the Procedural
Rules and concluded that the player had not substantiated his claim in this regard
and thus decided to reject this part of the player’s claim.
30.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the player is rejected. Equally,
and considering that Club C was found to have terminated the contract without
just cause, the counterclaim of Club C is rejected.
III.
Decision of the Dispute Resolution Chamber
Player A, country B / Club C, country D / Club E, country F
Page 14 of 16
1.
The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.
2.
The Respondent/Counter-Claimant, Club C is ordered to pay to the
Claimant/Counter-Respondent, within 30 days as from the date of notification
of this decision, outstanding remuneration in the amount of EUR 100,000 plus 5%
interest p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of EUR 20,000 as from 1 June 2013;
b. 5% p.a. on the amount of EUR 20,000 as from 1 July 2013;
c. 5% p.a. on the amount of EUR 20,000 as from 1 August 2013;
d. 5% p.a. on the amount of EUR 20,000 as from 1 September 2013;
e. 5% p.a. on the amount of EUR 20,000 as from 1 October 2013.
3.
In the event that the amount and interest due to the Claimant/CounterRespondent in accordance with the above-mentioned number 2. is not paid by the
Respondent/Counter-Claimant within the stated time limit, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
4.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 170,000.
5.
In the event that the amount due to the Claimant/Counter-Respondent in
accordance with the above-mentioned number 4. is not paid by the
Respondent/Counter-Claimant within the stated time limit, interest at the rate of
5% p.a. will fall due as of expiry of the aforementioned time limit and 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 counter-claim lodged by the Respondent/Counter-Claimant is rejected.
8.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant, 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 motivated decision (legal remedy):
Player A, country B / Club C, country D / Club E, country F
Page 15 of 16
According to article 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:
_____________________________
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country F
Page 16 of 16