Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 July 2016,
in the following composition:
Geoff Thompson (England), Chairman
Santiago Nebot (Spain), member
John Bramhall (England), member
Guillermo Saltos Guale (Ecuador), member
Wouter Lambrecht (country H), 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
between the parties
I.
Facts of the case
1.
On 30 July 2013, the Player A from country B (hereinafter: the player or
Claimant / Counter-Respondent) and the Club C from country D (hereinafter:
the club or Respondent / Counter-Claimant) signed an employment contract
valid as from 1 August 2013 until 31 July 2015 (hereinafter: the contract), as
well as two addendums to said contract (hereinafter: addendum 1 and
addendum 2).
2.
According to the contract, addendum 1 and addendum 2, the player was
entitled to receive, inter alia, the following amounts:
(a) a monthly salary of 150,000 (approximately EUR 3,922), which shall
‘include all taxes to be paid by the Football player (being a tax payer)’;
(b) a monthly ‘invoice for professional excellence’, ‘subject to proper
performance of his duties under the employment contract’, in the amount
of 1,496,920 (approximately EUR 34,152);
(c) a ‘stimulating fee’ in the amount of EUR 50,000, due on 31 August 2013
and to be paid in ‘the currency of country D at the exchange rate of the
Central Bank of country D on the date of payment’;
(d) a monthly remuneration in the amount of 650,000 (approximately EUR
14,830) ‘for transfer of image rights’, due ‘prior to the twelfth day of the
month following the reporting month’.
3.
Article 2.1 of the contract stipulates inter alia the following obligations of the
player:
‘2.1.1. To perform in person labor function stipulated by the present contract;
2.1.2. To perform his obligations in a proper way and in good faith;
[…]
2.1.21. To comply with sports schedule, not to violate ethic norms both in
privacy and in public, to behave in such a way as to prevent any damage to the
Club interests or football, and to adhere to the mode of living corresponding
to the certain norms and requirements of the Club;
[…]
2.1.26 To proceed with regular training sessions in accordance with the
directions of the Head coach and (or) coaches of the football team in case of
temporary suspension from participation in the football matches including
such suspension due to sports disqualification’.
4.
Article 5.1 of the contract contains the following clause: ‘Final remuneration to
the Football player under the present contract […] shall amount to 53 000 Euro
(Fifty three thousand) per month equally 2 296 920 (Two million two hundred
ninety-six thousand nine hundred and twenty) per month and shall be paid no
Player A, country B / Club C, country D / Club E, country F
Page 2 of 18
later than 12 day of following month according to the present contract. The
remuneration is paid in the currency of country D at the exchange rate of the
Central Bank of country D on the date of payment’.
5.
According to article 7 of the contract, the player is further entitled to:
6.
“Club will rent to a Footballer player according to his choice”;
twice a year compensation of travelling expenses ‘city G - country B,
country B – city G, city G - country B, country B – city G’;
a car, to be rented by the club.
On 18 August 2014, the player lodged a claim before FIFA against the club,
claiming the total amount of EUR 1,370,564, specified as follows:
Outstanding remuneration in the amount of EUR 263,564, specified as follows:
EUR 155,627 as outstanding part of the monthly salaries the player was
entitled to in the period between 1 August 2013 and 17 January 2014 (i.e.
5 x EUR 53,000 minus the allegedly paid amount of EUR 109,373
(according to the player corresponding to 4 partly paid salaries);
EUR 50,000 as sign-on fee for the season 2014/2015;
EUR 2,738 as traveling expenses, ‘including flight to specialist physician in
country H which the club refused to take care of’;
EUR 2,738 as traveling expenses;
EUR 45,110 as ‘car purchase’, as well as EUR 2,327 as ‘lease until purchase’;
Compensation for breach of contract by the club in the amount of EUR
1,007,000, as follows:
EUR 1,007,000 as residual value of the contract in the period between 17
January 2014 and 31 July 2015 (i.e. 19 x EUR 53,000);
Additional compensation in the amount of EUR 100,000, as follows:
EUR 100,000 as compensation for ‘non-pecuniary damage’.
Additionally, the player requests for interest as from the due dates, for his
legal costs to be paid by the club, as well as for sporting sanctions to be
imposed on the club.
7.
In his claim, the player explains that on 11 November 2013, he put the club in
default and requested the payment of ‘the remainder of his salary’ and the
payment of the ‘Player’s apartment rent, car lease and expenses’.
8.
Further, the player states that in December 2013, due to his injury, the club
was not interested in his services anymore and blamed him for ‘not showing to
work’, despite everyone else in the club being on Christmas break, which
Player A, country B / Club C, country D / Club E, country F
Page 3 of 18
lasted according to the player until 8 January 2014. In addition, the player
holds that during said Christmas break, the club requested him to fly back to
city I for a meeting with his coach. However, the player holds that upon
arriving in city I, he learned that the coach was not allowed to talk with him,
as allegedly this was forbidden by the president of the club.
9.
On 15 December and 19 December 2013, the player put the club in default and
requested the payment of the outstanding remuneration. Further, the player
asked the club to stop ‘spreading lies’ about him. On 7 January 2014, the
player allegedly sent an additional letter, stating that the club’s actions were
causing severe damage to him.
10.
In addition, the player holds that the club sent him a text message, requesting
him to arrive in city G on 9 January 2014. According to the player, he was
however not invited for training sessions or team activities, which took place in
city I on 9 January 2014. Moreover, the player argues that after asking the club
to clarify the situation, it took his passport and asked him to sign a document,
under which the player and the club would terminate the contract with
mutual consent. The player holds that he refused to sign said document.
11.
Moreover, the player stated that after his refusal to sign the aforementioned
termination document, he was handed over a letter, whereby the club
informed him that he was dismissed as per 17 January 2014. The club based
said termination on ‘the rough violation by the worker his labour duties’, i.e.
the absence on the workplace without valid excuse during the period between
9 December 2013 and 10 January 2014.
12.
In its reply to the claim of the player, the club denied the player’s allegations
and argued that the player missed several trainings, namely on 5 September
and 6 September 2013, as well as on 28 October and 29 October 2013.
13.
Along those lines, the club argues that at the beginning of September 2013,
the player requested permission to go back to country B, to attend a court
hearing. The club gave him permission to go to country B, because on 3 and 4
September 2013, no training sessions were planned. However, according to the
club, despite there were training sessions planned on 5 and 6 September 2013,
the player did not attend the training sessions on these days. According to the
club, it later learned that the court hearing only took place on 9 September
2013, which gave the player no valid reason not to attend the training sessions
on 5 and 6 September 2013.
14.
Further, the club holds that the player got injured at the beginning of October
2013, and that he missed several games, as well as, without valid reason, two
training sessions on 28 October and 29 October 2013. Despite the fact that the
Player A, country B / Club C, country D / Club E, country F
Page 4 of 18
player was injured, the club states that he was still obliged to practice in these
training sessions.
15.
According to the club, it requested the player to respect his contractual
obligations and informed him orally about the possible consequences of
missing trainings, including a possible termination of the contract. Further,
according to the club, it cancelled the player’s monthly payment for
‘professional excellence’ for October 2013, because of the missed trainings. In
addition, the club holds that the player held noisy parties in his apartment and
that he was repeatedly seen in nightclubs in city G.
16.
In support of its position, the club enclosed an ’order’ dated 6 November 2013,
whereby the aforementioned explanations are stated. Moreover, said order
reads as follows: ‘Player A refused to get acquainted with the order, about
what the statement of 06.11.2013 is drawn up’.
17.
In continuation, the club holds that on 7 December 2013, the day on which the
club’s last training before the winter break would take place, the player left
the club and flew back to country B, without the written consent of the club.
As a result, the club holds that the player missed the training session on 7
December 2013, and states that on 11 December 2013, it sent a letter to the
player requesting him to explain the reasons of his departure from city G
without written consent.
18.
In addition, the club holds that the player flew back to city I in December 2013,
and that he arrived at the apartment of the coach of the club, without prior
agreement. The club states that the coach refused to speak with the player,
because the coach was spending time with his family and because ‘some
strongly built men’ were with the player. The club states that its coach
suggested the player to come to the office of the club the following week.
19.
Subsequently, the club argues that the player – despite being in city G - did not
attend the training sessions of the club on 9 and 10 January 2014, and only
joined the team in the evening of 10 January 2014.
20.
In conclusion, the club holds that it offered the player - because he seemed no
longer interested in playing for the club – the termination of the contract with
mutual consent. According to the club, the player refused said termination.
Furthermore, because the player allegedly ‘violated the employment contract’,
the club cancelled the player’s monthly payments for ‘professional excellence’
for December 2013 and January 2014. Furthermore, the club holds that it
unilaterally terminated the contract with the player as per 17 January 2014 (cf.
point I.13 above).
Player A, country B / Club C, country D / Club E, country F
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21.
The club argues that it had a just cause to terminate the contract, because the
player repeatedly breached the contract, since he missed some training
sessions and did not perform his obligations in a proper way, which is a breach
of article 2.1 of the contract. In addition, the club held that the player failed to
‘draw up necessary documents on vacation and had not the written consent of
the club to fly home’, which was, according to the, club necessary under
country D’s law.
22.
With respect to the claim of the player, the club holds that it validly fined the
player with the cancellation of his monthly payment for professional
excellence in the months of October 2013, December 2013 and January 2014.
The club further asserts that these ‘cancellations’ were not appealed by the
player.
23.
In addition, the club argued that it timely paid all amounts the player was
entitled to, i.e. the instalment of EUR 50,000 on 30 August 2013, as well as the
full salaries for August, September and November 2013. Also, the club
maintains that the player was only entitled to one payment of EUR 50,000.
24.
Furthermore, the club holds that, based on article 10.6 of the contract, which
reads: ‘In case of termination the employment contract on initiative of the
Club on the grounds belonging to the disciplinary sanctions the Football Player
becomes liable to make a payment (penalty) to the Club in the amount of
three average monthly earnings of the Football Player with the Club on
grounds of part 3 Article 348.12 of the Labor Code of the country D. The
payment shall be made within 30(thirty) calendar days from the date of
termination’, in case FIFA might decide that the club terminated the contract
without just cause, the compensation for breach of contract can only consist of
a maximum amount of three monthly salaries of 150,000 each.
25.
Additionally, the club argues that it provided the player with a car and a
driver, and that as a result thereof, it cannot be obliged to reimburse the
player the costs of the car he bought and/or leased. Also, the club argues that
during the first month of the contract, it paid the hotel costs of the player, as
well as that it offered him 10 different apartments, which were however all
refused by the player.
26.
Finally, the club argues that it is not obliged to pay for the travelling expenses
of the player and for his legal expenses, as well as that it cannot be held liable
to pay compensation for non-pecuniary damage, since these parts of the claim
lack legal basis.
27.
In conclusion, the club requests primarily to reject the claims of the player.
Moreover, the club argues that the player violated article 10.5 of the contract.
Player A, country B / Club C, country D / Club E, country F
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As a result, on 1 December 2014, the club lodged a counterclaim against the
player, requesting that 450,000 be paid by the player as compensation for the
breach of contract, plus 5% interest p.a. as from 20 January 2014.
28.
In his reply to the counterclaim of the club, the player denies all allegations of
the club and states that the club repeatedly failed to pay him several amounts
he was entitled to. In addition, the player holds that the club unilaterally
terminated the contract without just cause. Therefore, the player reiterates his
claim and further asks for the rejection of the club’s counterclaim.
29.
In addition, the player disputed that he was absent from the mentioned
training sessions without permission from the club. In this respect, the player
sustains that the club gave him permission to fly back to country B ‘for a
couple of days‘, before the court hearing, in order ‘to finalize this issue once
and for all’. In addition, the player states that on 28 October and 29 October
2013, he arrived at the club’s stadium for medical treatment, because he was
injured. As there were no doctors available these days, the player could not
participate in training sessions, nor could he receive medical treatment.
30.
Moreover, the player holds that on 7 December 2013, he was training ‘as usual
with the club’s fitness trainer named J, according to his special fitness
schedule’. In this respect, the player refers to a letter of the club dated 11
December 2013, in which it confirms that the player was only absent as from 9
December 2013.
31.
In addition, the player states that in ‘December 2013’, he flew back to city I for
a meeting with the new head coach, who however refused to speak with him,
according to the player ‘due to the fact that the Club’s president gave an
explicit instruction not to meet or talk with the Player in particular’.
Furthermore, the player argues that he was not allowed to participate in the
club’s trainings on 9 January and 10 January 2014.
32.
Moreover, the player states that on 13 February 2014, he signed a new
contract with the Club E from country F ‘for a much lower salary’.
33.
Despite being invited to do so, the new club of the player, Club E, did not
present its comments.
34.
The player submitted the new contracts he concluded with Club E. According
to the first contract signed between the player and Club E, valid as from 12
February 2014 until 30 June 2014, the player was entitled to receive a fixed
amount of EUR 90,000 (for the entire duration of the contract), as well as EUR
600 per month as ‘accommodation rent’.
Player A, country B / Club C, country D / Club E, country F
Page 7 of 18
35.
According to the second contract between the player and Club E, valid as from
1 July 2014 until 30 June 2016, the player was entitled to receive the following
amounts:
(a) a yearly salary of EUR 250,000 for the season 2014/2015, as well as EUR
600 per month as ‘accommodation rent’;
(b) a yearly salary of EUR 260,000 for the season 2015/2016, as well as EUR
600 per month as ‘accommodation rent’.
36.
On 9 and 13 May 2016, the player and the club were informed that on 19 April
2016, the player informed FIFA that as from February 2016, he is no longer
under contract with Club E, since on 1 February 2016 he concluded a
termination agreement with the club. According to this termination
agreement, the contract was terminated as per 1 February 2016 and the club
obliged itself to pay the player EUR 20,000, no later than 15 February 2016. For
the period between 12 February 2014 and 31 July 2015, this amounts to EUR
349,900 (EUR 90,000 + 4.5 x EUR 600 + EUR 250,000 + 12 x EUR 600).
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 18 August 2014. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
2014; 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 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 from country B and a club from
country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2016), and considering that the present claim was lodged on
18 August 2014, the 2014 edition of said regulations (hereinafter: Regulations)
is applicable to the matter at hand as to the substance.
Player A, country B / Club C, country D / Club E, country F
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4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging 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.
5.
First of all, the members of the Chamber referred to the unsolicited
correspondence sent by the player on 18 May 2016 and noted that such
correspondence was received after the investigation-phase of the matter at
hand had already been concluded, thus, at the time that the parties had
already been informed that no further submissions would be admitted to the
file. As a result, the DRC determined not to take into account the
correspondence of the player submitted on 18 May 2016 and established that,
in accordance with art. 9 par. 3 and art. 16 of the Procedural Rules, it shall take
a decision upon the basis of those documents on file that were provided prior
to the closure of the investigation-phase.
6.
Furthermore, the members of the Chamber acknowledged that, on 30 July
2013, the player and the club had concluded an employment contract valid as
from 1 August 2013 until 31 July 2015, as well as two addendums to said
contract, according to which the player was entitled to receive a total monthly
salary of EUR 53,000, equal to 2,296,920, compromised as follows: (a) a
monthly salary of 150,000 equal to EUR 3,922, (b) a monthly ‘invoice for
professional excellence’, ‘subject to proper performance of his duties under the
employment contract’ in the amount of 1,496,920, equal to EUR 34,152 and (c)
a monthly remuneration in the amount of 650,000, equal to EUR 14,830.
Equally, the Chamber observed that the player was entitled to a ‘stimulating
fee’ of EUR 50,000, payable on 31 August 2013.
7.
The Chamber further observed that the player lodged a claim in front of FIFA
against the club, seeking payment of the total amount of EUR 1,370,564,
asserting that the club had not fulfilled its contractual obligations towards
him. More specifically, the player indicated that the club had terminated the
employment contract on 17 January 2014, according to the player without just
cause. In this respect, the player holds that the reason invoked by the club, i.e.
the alleged absence of the player from several trainings, cannot be upheld.
8.
In continuation, the Chamber observed that the club insisted that it had
terminated the contract on the basis of valid reasons, since the player had
violated his ‘labour duties’ by being absent from the workplace and training
sessions on several occasions. In particular, the club held that the player missed
training sessions on 5 September and 6 September 2013, as well as on 28
Player A, country B / Club C, country D / Club E, country F
Page 9 of 18
October and 29 October 2013. Furthermore, the club held that the player was
absent ‘from the workplace’ in the period between 9 December 2013 and 10
January 2014. In addition, the club alleged that it paid all the amounts the
player was entitled to, on time, and that it had validly ‘cancelled’ the player’s
professional excellence related to the months of October 2013, December 2013
and January 2014.
9.
Having established the foregoing, the Chamber pointed out that the main
issue of the present dispute was to establish whether the contract had been
terminated with or without just cause by the club on 17 January 2014. Entering
into the substance of the matter at hand, the Chamber recalled the basic
principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural
Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. In particular, the Chamber
noted that in the present case, the club bore the burden of proving that the
reasons put forward by the club could justify the termination of the contract in
the present matter, as well as that it in fact paid the player the remuneration
claimed as outstanding or of proving that it had valid reasons for not having
complied with such contractual obligation.
10.
In this respect, the Chamber was eager to emphasise that according to its wellestablished jurisprudence, only a breach or misconduct which is of a certain
severity justifies the termination of a contract. In other words, only when there
are objective criteria which do not reasonably permit to expect a continuation
of the employment relationship between the parties, a contract may be
terminated prematurely. Hence, if there are more lenient measures which can
be taken in order for an employer to ensure the employee’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 ever be an ultima ratio measure.
11.
In view of the above, the Chamber first of all observed – with respect to the
player’s alleged absence on 5 September and 6 September 2013 - that the club
never contested that the player was authorised to travel to country B at the
beginning of September 2013, to attend a court hearing. Equally, the Chamber
observed that there was no evidence submitted by the club, which could
demonstrate, at the Chamber’s satisfaction, that the player was indeed
supposed to return to country D on 5 September 2013.
12.
Furthermore, with respect to the player’s alleged absence from the training
sessions on 28 October and 29 October 2013, the members of the Chamber
noted that the club stated that the player was injured, but that he still was
obliged to practice in said training sessions. On the other hand, the Chamber
observed that the player contested that he was absent, but that upon arriving
Player A, country B / Club C, country D / Club E, country F
Page 10 of 18
at the stadium of the club on said dates for medical treatment, he found no
one of the medical staff present. Based on these circumstances, the Chamber
was of the opinion that there was no conclusive evidence on file that the
player - without valid reason - was indeed absent from the training sessions on
28 October and 29 October 2013. In this respect, the Chamber referred to the
order dated 6 November 2013, presented by the club which explicitly provides
that the player refused to acknowledge receipt thereof. In the Chamber’s view
this is a further indication that the player denied and disagreed with the
content of said letter.
13.
Furthermore, the DRC remarked that the order dated 6 November 2013,
submitted by the club in support of its allegations, was produced by the club,
as well as that the persons who made said document could, as employees of
the club, not be considered as impartial witnesses. Consequently, the DRC
decided that the respective argumentation of the club, as stated in the order
dated 6 November 2013, could not be upheld by the Chamber.
14.
What is more, with respect to the alleged absence of the player in the period
between 9 December 2013 and 10 January 2014, the members of the Chamber
noted that the club explicitly mentioned said circumstance in its termination
letter dated 17 January 2014, and apparently based the unilateral termination
of the contract thereon. In this respect, the club held that on 7 December 2013,
it had a last training session before the winter break, however that the player
was absent from said training, without valid reason. On the other hand, the
Chamber noted that the player contested said allegation and held that on 7
December 2013, he trained with the club’s fitness trainer. Subsequently, the
player states that he was not allowed to participate in the first training
sessions after the winter break, on 9 January and 10 January 2014, as he was
never invited for these trainings.
15.
In this context, the Chamber highlighted that it is undisputed that on 7
December 2013, the club had its last training before the Christmas break.
Moreover, the Chamber pointed out that the club is only arguing that the
player did not comply with certain formalities as per country D’s law in order
to be able to go on holidays. Nevertheless, the club is not disputing that the
Christmas break lasted as of 8 December 2013 until 9 January 2014 and that
therefore, during said period of time, there were no official activities of the
club. Therefore, the alleged absence of the player between the
aforementioned period cannot be deemed as unjustified. In addition, the
members of the Chamber wished to point out that it could not be established
that the player violated his contractual duties during the period in which the
club was having a winter break and no training sessions or matches were
scheduled.
Player A, country B / Club C, country D / Club E, country F
Page 11 of 18
16.
Notwithstanding the above, regardless of the question whether the player
indeed missed the training session on 5 September 2013, on 28 October and 29
October 2013, or any training after the winter break, which again has not
been proven by the club at the Chamber’s satisfaction, the Chamber was of the
firm opinion that the club did, in any case, not have just cause to prematurely
terminate the employment contract with the player, since such breach could
not legitimately be considered as being severe enough to justify the
termination of the contract. In this respect, the members of the Chamber
determined that that there were more lenient measures to be taken (e.g.,
among others, a suspension, a warning or a proportionate fine) in order to
sanction the (alleged) absences of the player.
17.
On account of the above, the Chamber decided that the club had no just cause
to unilaterally terminate the employment relationship between the player and
the club and, therefore, concluded that the club had terminated the contract
without just cause on 17 January 2014. Consequently, the club is to be held
liable for the early termination of the employment contact without just cause.
18.
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 the club.
19.
First of all, the members of the Chamber concurred that the club must fulfil its
obligations as per the employment contract up until the date of termination of
the contract in accordance with the general legal principle of “pacta sunt
servanda”.
20.
With due consideration to the above, the Chamber acknowledged that the
player stated that on the date of the termination of contract, i.e. 17 January
2014, he had not having received the total amount of EUR 263,564, comprised
of (a) EUR 155,627 as outstanding part of the monthly salaries the player was
entitled to in the period between 1 August 2013 and 17 January 2014, (b) EUR
50,000 as sign-on fee for the season 2014/2015, (c) EUR 2,738 as traveling
expenses, (d) EUR 2,738 as traveling expenses and (e) EUR 45,110 as ‘car
purchase’ and (f) EUR 2,327 as ‘lease until purchase’. In this repect, the club
states that it has paid all the amounts the player was entitled to and that it
validly made several deductions from the player’s receivables. In this respect,
the club further submitted several payment receipts and bank statements, to
prove its allegations.
21.
In this respect, the members of the Chamber first noted that the player
claimed that the club failed to pay him the total amount of EUR 155,627 as
outstanding salaries, in relation to the period between 1 August 2013 and 17
January 2014. The club, for its part, denied such allegation and substantiated
Player A, country B / Club C, country D / Club E, country F
Page 12 of 18
its defence by referring to the payment receipts and bank statements it
provided.
22.
First of all, with respect to the outstanding amounts, the Chamber was eager
to emphasise that the contract between the parties provides for amounts
payable in EUR and in the currency of country D. However, it can be noted that
the club’s obligation to pay the amounts the player was entitled to in at the
exchange rate of the Bank of country D, only applies when the club complies
with its obligations in time, i.e. on the 12th day of the next month. Further,
article 5.1 of the contract (cf. point I.4 above), explicitly mentions that the total
monthly salary of the player shall amount to EUR 53,000. As a result, the
Chamber deemed it appropriate to award the outstanding salaries, if any, in
EUR.
23.
In addition, the Chamber noted that the club claimed to have ‘cancelled’ the
player’s ‘invoice for professional allowance’ for the months of October 2013,
December 2013 and January 2014, because of the alleged absence from
training sessions, as well as the player’s alleged unprofessional behaviour. In
this respect, the Chamber first of all noted that it appeared said ‘cancellation’,
was imposed on the player for his alleged absence from a couple of training
sessions, which fact is moreover expressly contested by the player. Moreover,
said alleged unprofessional behaviour is, according to the Chamber, by any
means a purely unilateral and subjective evaluation, made by the club and
which cannot, according to the members of the Chamber, be considered as a
valid reason to reduce a player’s salary or fine a player.
24.
However, regardless of the foregoing remarks, the Chamber emphasised that a
‘cancellation’ amounting to the total amount of EUR 102,456 (3 x EUR 34,152
as per point I.2 above) for allegedly missing several training sessions and
alleged unprofessional behaviour, is manifestly excessive and disproportionate
and cannot be upheld. Hence, the Chamber was unanimous in its conclusion
that the ‘cancellation of the player’s ‘invoice for professional allowance’ for
the months of October 2013, December 2013 and January 2014, must be
disregarded.
25.
Subsequently, the Chamber noted that the club only presented payment
receipts and bank statements, which are not signed by the player. What is
more, the player contested that he received the amounts the club claims to
have paid him and reiterates that the amount of EUR 155,627 remained
outstanding. Moreover, the club could not provide further evidence that it
timely paid the full monthly salary of EUR 53,000 for the period between 1
August 2013 and 17 January 2014.
Player A, country B / Club C, country D / Club E, country F
Page 13 of 18
26.
As a result, the Chamber held that it had no other option than to disregard the
payment receipts and bank statements submitted by the club and established
that the player’s claim in relation to the outstanding salaries could be
accepted, since – with reference to art. 12 par. 3 of the Procedural Rules – the
club could not substantiate its defence. As a result, the player’s claim for
outstanding salaries in the amount of EUR 155,627 is accepted.
27.
In addition, with respect to the claim of the player for reimbursement of
apartment rent in the amount of EUR 7,762, the Chamber noted that the club,
in its reply, acknowledged its obligation to provide the player with an
apartment and housing allowances. The player, on the other hand, only
submitted (written) proof of costs occurred for apartment rent in the total
amount of 75,000. Therefore, it could be established that the club is obliged to
pay the amount of 75,000 to the player.
28.
With respect to the sign-on fee of EUR 50,000 for the season 2014/2015 and
the car expenses of EUR 45,110 as claimed by the player, the Chamber had to
reject the player’s claim relating to said benefits, since there is neither
contractual condition relating to a sign-on fee, payable in the season
2014/2015, nor is there a contractual clause which provides for reimbursement
of costs of purchase of a car, or lease of a car on the player’s own initiative.
29.
Equally, as regards the player’s claim pertaining to travel expenses for a flight
to country H, in order to receive medical treatment, the members of the
Chamber referred to the relevant terms of the contract concluded between the
player and the club, and established that the contract only provided for travel
expenses for the route city G – country B. As a result, the Chamber decided
that the club cannot be held liable to the player the amount of EUR 2,738 for
travel expenses for a flight to country H.
30.
In view of the above, the Chamber concluded that the club has not provided
evidence of its defence that it paid all the monthly salaries that player was
entitled to until the date of termination of the contract. Therefore, it could be
established that at the time of termination of the contract, as per the player’s
request, 4 monthly salaries remained partially outstanding, as well as one
monthly salary remained outstanding in full (cf. point I.8 above). Furthermore,
the club also failed to reimburse the player the amount of 75,000 for housing
allowances. As a consequence, and in accordance with the general legal
principle of pacta sunt servanda, the club must fulfil its obligations as per
private agreement concluded with the player and, consequently, is to be held
liable to pay said outstanding amounts to the player.
31.
Consequently, the Chamber decided that the club is liable to pay to the player
the remuneration that was outstanding at the time of the termination, i.e. the
Player A, country B / Club C, country D / Club E, country F
Page 14 of 18
amount of EUR 155,627 and 75,000, consisting of four partially outstanding
salaries of EUR 25,656.75 each related to the months August, September,
October and November 2013, one monthly salary of EUR 53,000 for December
2013, as well as 75,000 regarding housing allowances.
32.
In addition, taking into account the player’s request as well as the constant
practice of the Chamber, the Chamber decided that the club must pay to the
player - on the outstanding remuneration - interest of at a rate of 5% p.a.
until the effective date of payment, as follows:
-
5% p.a. as of 13 September 2013 on the amount of EUR 25,656.75;
5% p.a. as of 13 October 2013 on the amount of EUR 25,656.75;
5% p.a. as of 13 November 2013 on the amount of EUR 25,656.75;
5% p.a. as of 13 December 2013 on the amount of EUR 25,656.75;
5% p.a. as of 13 January 2014 on the amount of EUR 53,000;
5% p.a. as from 18 August 2014 on the amount of 75,000.
33.
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 salaries on
the basis of the relevant employment contract.
34.
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.
35.
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. Upon careful examination of the employment contract concluded
between the player and the club, the members of the Chamber took note that
article 10.6 of the contract provides for the following: ‘In case of termination
of the employment contract on initiative of the Club in the absence of
misconduct (omissions) on the part of the Football player the latter shall be
entitled to receive compensation for termination in the amount of three
average monthly earnings of the Football player with the club […]’.
Player A, country B / Club C, country D / Club E, country F
Page 15 of 18
36.
The Chamber analysed said clause and acknowledged that it provides for the
amount of compensation payable in the event of the termination of the
contract by the club.
37.
On account of the above, the Dispute Resolution Chamber concluded that the
provision contained under article 10.6 of the pertinent employment contract
has to be considered as valid.
38.
In this regard, and according to the documentation provided by the parties in
the matter at hand, the Chamber established that three average monthly
salaries in the matter at hand, amounted to the total amount of EUR 159,000
(i.e. EUR 53,000 x 3, cf. point I.4 above).
39.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the club must
pay the amount of EUR 159,000 to the player as compensation for breach of
contract in the present matter.
40.
In addition, taking into account the player’s request as well as the constant
practice of the Chamber, the Chamber decided that the club must pay to the
player interest of 5% p.a. on the amount of compensation as of the date the
claim was lodged, i.e. 18 August 2014 until the date of effective payment.
41.
Moreover, the Dispute Resolution Chamber decided to reject the player’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
42.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the player is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
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.
Player A, country B / Club C, country D / Club E, country F
Page 16 of 18
3.
The Respondent / Counter-Claimant, has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 155,627 plus 5% interest
p.a. until the date of effective payment as follows:
a. 5% p.a. as of 13 September 2013 on the amount of EUR 25,656.75;
b. 5% p.a. as of 13 October 2013 on the amount of EUR 25,656.75;
c. 5% p.a. as of 13 November 2013 on the amount of EUR 25,656.75;
d. 5% p.a. as of 13 December 2013 on the amount of EUR 25,656.75;
e. 5% p.a. as of 13 January 2014 on the amount of EUR 53,000.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
the amount of 75,000 as rent expenses plus 5% interest p.a. as from 18
August 2014 until the date of effective payment.
5.
The Respondent / Counter-Claimant has 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 159,000 plus 5%
interest p.a. on said amount as from 18 August 2014 until the date of
effective payment.
6.
In the event that the amounts due to the Claimant / Counter-Respondent in
accordance with the above-mentioned numbers 3., 4. and 5. are 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.
7.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
8.
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 E, country F
Page 17 of 18
*****
Note relating to the motivated decision (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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country F
Page 18 of 18