Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 August 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo van Seggelen (Netherlands), member
Taku Nomiya (Japan), member
on the claim presented by the player,
Player F, from country P
as Claimant
against the club,
Club C, from country R
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 8 January 2008, Player F, from country P (hereinafter: the Claimant) and Club C,
from country R (hereinafter: the Respondent), signed a “Civil Convention of Sports
Services” (hereinafter: the contract) valid as of the date of signature until 30 June
2011.
2.
The contract specifies, inter alia, that the Claimant is entitled to the following
remuneration:
Season 2007-2008 (second half)
- EUR 12,000 as sign-on fee due by 31 January 2008;
- EUR 24,000 as salary payable in 5 monthly instalments of EUR 4,800 each, starting
from
February 2008;
- USD 7,000 as bonus “after 7 goals scored in championship matches”;
- further USD 1,000 as bonus “for each next goal”.
Season 2008-2009
- EUR 78,000 as salary payable in 12 monthly instalments of EUR 6,500 each;
- USD 20,000 as bonus “after 15 goals scored in championship matches”;
- USD 30,000 as bonus for reaching the 2nd position at the end of the championship;
- USD 20,000 as bonus for reaching the 3rd position at the end of the championship;
- USD 10,000 as bonus for reaching the 4th position at the end of the championship.
Season 2009-2010
- EUR 80,000 as salary payable in 12 monthly instalments of EUR 6,666.6 each;
- USD 20,000 as bonus “after 15 goals scored in championship matches”;
- USD 30,000 as bonus for reaching the 2nd position at the end of the championship;
- USD 20,000 as bonus for reaching the 3rd position at the end of the championship;
- USD 10,000 as bonus for reaching the 4th position at the end of the championship.
Season 2010-2011
- EUR 90,000 as salary payable in 12 monthly instalments of EUR 7,500 each;
- USD 20,000 as bonus “after 15 goals scored in championship matches”;
- USD 30,000 as bonus for reaching the 2nd position at the end of the championship;
- USD 20,000 as bonus for reaching the 3rd position at the end of the championship;
- USD 10,000 as bonus for reaching the 4th position at the end of the championship.
3.
The contract stipulates that “the club shall rent for the player [Claimant] an
apartment with one bedroom”.
4.
Article II of the contract states that “the player [Claimant] shall perform football
activity under the conditions and quality requested by the club [Respondent], by
participating at the training sessions and the official or amicable matches, as well as
at the entire programme, as it has been established by the club [Respondent]”.
Player F, from country P / Club C, from country R
2/15
5.
Pursuant to article VI. 2. a) of the contract, the Claimant shall “comply with the
provisions of the country R Football Federation and of the Professional Football
League, their by-laws, regulations, decisions and other rules”.
6.
According to the final provisions of the contract, “the parties understand that this
convention is adequately completed with the stipulations of the Regulations
regarding the Football Player Transfer Statute and other rules of the country R
Football Federation and of the Professional Football League. The parties agree not to
take any litigation to the court of law until they have already exhausted all the
methods of the sports jurisdiction instances of the Professional Football League”.
7.
On 3 May 2010 and on 11 May 2010, the Claimant put the Respondent in default,
requesting the payment of outstanding salaries and unpaid rent expenses within the
next seven days.
8.
On 21 September 2010, the Claimant lodged a complaint before FIFA against the
Respondent, claiming the payment of EUR 134,099.60, plus 5% interest p.a. “from
the date of the contract termination until full payment”, broken down as follows:
- EUR 30,766.4 corresponding to the following outstanding payments:
EUR 26,666.4 as outstanding salaries from January 2010 until April 2010, i.e.
EUR 6,666.6 x 4 months;
EUR 4,100 as unpaid rent expenses from September 2009 to May 2010.
- EUR 103,333.2 as compensation corresponding to the residual value of the contract,
i.e. EUR 13,333.2 as salary for May 2010 and June 2010 + EUR 90,000 as salary for the
season 2010-2011.
9.
The Claimant alleges that the Respondent only paid his salary until December 2009.
In other words, the Claimant apparently did not receive his salary for 4 months, from
January 2010 until April 2010.
10. The Claimant further asserts that the Respondent neither replied to his default
notices (cf. point I.7 above), nor proceeded to the requested payment.
11. In this context, the Claimant deems that he had just cause to put an end to the
contract on 19 May 2010 in writing.
12. In its statement of defence, the Respondent first of all contested the jurisdiction of
the FIFA Dispute Resolution Chamber (hereinafter: the DRC) on the basis of the
arbitration clause contained in the contract (cf. point I.6 above). The Respondent
holds that the Claimant should have lodged his claim before the relevant deciding
bodies of the country R Football Federation or the country R Professional Football
Player F, from country P / Club C, from country R
3/15
League since the relevant deciding bodies meet the requirement of the FIFA Circular
No. 1010 of 20 December 2005.
13. In this respect, the Respondent also claims that the national law of country R applies,
by referring to article 24 of the “Rules of Procedure” of the Respondent (hereinafter:
the club’s Rules) – which stipulates that “the player agrees to comply with club rules
and regulations, the country R Football Federation and the Professional Football
League” – as well as article 26.3 of the “Regulations on the Status and Transfer of
Football Players” of the country R Football Federation (hereinafter: the country R
Football Federation Regulations) – stating that the country R Football Federation
Regulations shall be enforced by the national deciding bodies and only in the event
that the said Regulations are insufficient, the FIFA Regulations on the Status and
Transfer of Football Players (hereinafter: the FIFA Regulations) shall apply “by
analogy”.
14. The Respondent provided FIFA with a copy of the 2010 edition of the country R
Football Federation Regulations which establishes the following:
a. with regard to the existing deciding bodies:
Art. 26.1 lit. a) of the country R Football Federation Regulations indicates that the
first instance deciding bodies are the National Dispute Resolution Chamber of the
country R Football Federation (hereinafter: the NDRC of the country R Football
Federation), the Dispute Resolution Committee of the country R Professional Football
League and the Commission for the Players’ Status of the County Football
Association.
b. with regard to the jurisdiction of the deciding bodies:
According to art. 26.2 lit. a) of the country R Football Federation Regulations, the
NDRC of the country R Football Federation is competent to decide on disputes
concerning “the execution, construing and performance of the contracts entered by
clubs and players, as well as regarding the maintenance of contractual stability”.
As per art. 26.8 of the country R Football Federation Regulations, the DRC of the
country R Professional Football League is “exclusively” competent to solve disputes
involving “clubs that participate in the First League National Championship and their
officials, players and their coaches (…) according to the annual agreement between
the country R Football Federation and the Professional Football League”.
c. with regard to the composition of the deciding bodies:
Art. 26.5 of the country R Football Federation Regulations provides that the NDRC of
the country R Football Federation is composed of a chairman and a deputy chairman
elected “by consensus by the representatives of players and clubs from a list
containing minimum five names, prepared by the country R Football Federation
Executive Committee”, three players’ representatives nominated by the Association
of Amateur and Non-Amateur Footballers, and three clubs’ representatives
nominated by the Executive Committee of the country R Football Federation.
Player F, from country P / Club C, from country R
4/15
Art. 26.8 in fine of the country R Football Federation Regulations stipulates that the
DRC of the country R Professional Football Federation – and its appeal body – is
composed of five members, among which one president and one vice-president, their
names and functions being approved by the Executive Committee of the Professional
Football Federation for a one-year mandate.
d. with regard to the possibility of an appeal:
Art. 26.1 lit. b) of the country R Football Federation Regulations establishes that the
decisions of the NDRC of the country R Football Federation may be appealed before
the “country R Football Federation Review Committee” and that the decisions of the
DRC of the country R Professional Football League may be appealed before the
“country R Professional Football League Review Committee”.
Art. 26.1 lit. c) of the country R Football Federation Regulations provides that the
decisions of the aforementioned appeal bodies may be appealed to the Court of
Arbitration for Sport (CAS).
15. As to the substance of the dispute, the Respondent alleges that the Claimant is not
entitled to the claimed amounts. The Respondent first of all points to the Claimant’s
“lazy and disrespectful attitude” during trainings as well as his repeated delays. The
Respondent alleges that such behaviour evidenced the Claimant’s will to leave the
Respondent in order to join a new club in country P.
16. The Respondent further argues that the Claimant was absent from trainings since 21
April 2010 as indicated by a coach statement dated 31 May 2010 and allegedly left
the Respondent without notice, thus breaching articles 34, 91, 95 and 101 of the
club’s Rules. The Respondent recalls the decision of the Board of Directors on 1 June
2010 in this respect, which sanctioned the Claimant with a fine amounting to EUR
20,000.
17. Regarding the Claimant’s apartment, the Respondent deems having paid his monthly
rent directly to the landlord.
18. Subsequently, the Respondent deems that the Claimant is not entitled to the amount
claimed as compensation insofar as the contract between both parties was allegedly
mutually terminated on 1 July 2010 (hereinafter: the termination agreement), the
original of which was provided by the Respondent. In its support, the Respondent
refers to the International Transfer Certificate (ITC) issued by the country R Football
Federation in order to evidence the Respondent’s good faith.
19. As to the outstanding salaries, the Respondent considers owing the Claimant the
amount of EUR 10,766.4 – instead of EUR 26,666.4 as claimed by the Claimant –
insofar as the salary provided for in the contract is apparently conditioned to the
Claimant providing his services as per article II of the contract (cf. point I.4 above).
Player F, from country P / Club C, from country R
5/15
Therefore, according to the Respondent, since the Claimant allegedly left on 21 April
2010 (cf. point I.16 above) or, at the latest, on 3 May 2010 or 11 May 2010 (cf. point
I.7 above), the Claimant would only be entitled to receive a proportional amount.
20. In his replica, the Claimant indicates that FIFA has jurisdiction in accordance to the
FIFA Circular letter no. 1010 and art. 22 b) of the FIFA Regulations. In particular, the
Claimant also holds that the national deciding bodies do not guarantee fair
proceedings as well as do not comply with the principle of equal representation since
the representatives of the clubs (in the NDRC of the country R Football Federation)
are nominated by the Executive Committee of the country R Football Federation, and
not directly by the clubs or its associations. Additionally, the Claimant underlines that
according to art. 26.5 of the country R Football Federation Regulations, from the
eight members of the NDRC of the country R Football Federation, five are appointed
by the Executive Committee of the country R Football Federation and only three by
the local associations of players. The Claimant also recalls that the NDRC of country R
is not recognized by the player’s representative bodies, i.e. the country R Football
Players Union and FIFPro. Moreover, the Claimant argues that the aforementioned
jurisdiction clause does not make a clear reference to a national dispute resolution
body in the sense of art. 22 lit. b) of the FIFA Regulations, and therefore, does not
constitute an arbitration clause.
21. With respect to his alleged absence from trainings as of 21 April 2010, the Claimant
responds by emphasising that his salary since January 2010 was outstanding and the
default notices (cf. point I.7 above) remained unanswered, leading to the termination
in writing on 19 May 2010 (cf. point I.11 above).
22. Equally, the Claimant rejects the Respondent’s argumentation relating to the
aforementioned fine. The Claimant underlines that the said decision had not been
notified to him and thus, his right of defence had not been respected. The Claimant
also stresses that the said decision is dated 1 June 2010, i.e. two weeks after he had
allegedly terminated the contract and almost one month after the first default
notice.
23. Furthermore, the Claimant emphasises that he put an end to the contract in writing
on 19 May 2010 and that no mutual termination agreement had been signed by him.
On 1 July 2010 – the alleged date of signature of the said mutual termination
agreement – the Claimant asserts that he had joined his new club, Club T, hence it
was impossible for him to sign such document. In his support, the Claimant provided
a statement of Club T according to which the new club asserts that “the player never
been away from work or the country from the date of May 27, 2010”.
Player F, from country P / Club C, from country R
6/15
24. As to the Respondent’s argument regarding the issuance of the ITC, the Claimant
holds that it is irrelevant and rather assumes that the ITC was issued because the
Respondent considered that at that time, the contract between the Respondent and
the Claimant was terminated and that no amount was outstanding.
25. In its final comments, the Respondent maintains that the Claimant wanted to leave
the Respondent in order to sign with a new club and that, in this respect, the
Respondent signed the termination agreement in good faith. The Respondent asserts
having sent the relevant termination agreement via e-mail. The Respondent denies
having said that the termination agreement had been signed by the Claimant in
country R. The Respondent further holds that the Claimant did not contest the
validity of the termination agreement when the ITC had been issued in order for him
to sign with the new club. Finally, the Respondent alleges that it is currently not
solvent.
26. On 23 June 2010, the Claimant signed an employment contract with the country P
club, Club T, valid as of 1 July 2010 until 30 June 2011. The contract states that the
Claimant is entitled to a gross remuneration of EUR 36,680 payable in 10 monthly
instalments, “the first to be paid until 20 September [2010] and the other until the
same day of the subsequent months”.
II.
1.
Considerations of the Dispute Resolution Chamber
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 21 September
2010. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 2014) 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 country P player and a country R club.
3. However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s DRC to deal with the present case, referring to the arbitration
Player F, from country P / Club C, from country R
7/15
Comment [LED1]: Better to leave it
out if we are not taking it into
consideration for the calculation.
clause contained in the contract (cf. point I.6 above) and stating that any dispute
arisen between the parties should be submitted to the deciding bodies of the country
R Football Federation and of the country R Professional Football League.
4. The DRC equally noted that the Claimant rejected such position and insisted on the
fact that FIFA had jurisdiction to deal with the present matter because the country R
national deciding bodies do not fulfil the requirements set out in art. 22 lit. b) of the
Regulations.
5. Taking into account the above, the Chamber emphasised that, in accordance with art.
22 lit. b) of the 2012 FIFA Regulations, it is competent to deal with a matter such as
the one at hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players and clubs,
has been established at national level within the framework of the association and/or
a collective bargaining agreement. With regard to the standards to be imposed on an
independent arbitration tribunal guaranteeing fair proceedings, the Chamber
referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the
members of the Chamber further referred to the principles contained in the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into
force on 1 January 2008.
6. While analysing whether it was competent to hear the present matter, the DRC
considered that it should, first and foremost, analyse whether the contract at the basis
of the present dispute actually contained an arbitration clause. Having said this, the
members of the DRC turned their attention to the relevant arbitration clause
contained in the final provisions of the contract (cf. point I.6 above) according to
which “the parties understand that this convention is adequately completed with the
stipulations of the Regulations regarding the Football Player Transfer Statute and
other rules of the country R Football Federation and of the Professional Football
League. The parties agree not to take any litigation to the court of law until they
have already exhausted all the methods of the sports jurisdiction instances of the
Professional Football League”.
7. In view of the aforementioned clause, the members of the Chamber were of the
opinion that the employment contract does not make clear reference to one specific
national dispute resolution chamber in the sense of art. 22 lit. b) of the
aforementioned Regulations. Therefore, the members of the Chamber deem that said
clause can by no means be considered as a clear arbitration clause in favour either of
the national deciding bodies, i.e. of the country R Football Federation or the country
R Professional Football League, and, therefore, cannot be applicable. In this regard,
the Chamber pointed out that this lack of clarity is also reflected in the Respondent’s
argumentation since it refers to the alleged competence of the deciding bodies of
Player F, from country P / Club C, from country R
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both the country R Football Federation and country R Professional League, without
further precision.
8. Having established that the first criteria for the recognition of the competence of a
national decision-making body is not fulfilled in the present matter, the Chamber
deemed unnecessary to examine any further points which would need to be assessed
before concluding to the competence of a national deciding body.
9. In view of the above, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that the
DRC 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.
10. Subsequently, the members of the DRC analysed which edition of the Regulations
should be applicable as to the substance of the matter. In this respect, the DRC
confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions
2009, 2010, 2012 and 2014) and considering that the claim in front of FIFA was lodged
on 21 September 2010, the 2009 edition of said Regulations is applicable to the
present matter as to the substance.
11. The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
However, the Chamber emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence which it considered pertinent
for the assessment of the matter at hand.
12. In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that on 8 January 2008, they signed a contract valid until 30 June 2011, in
accordance with which the player was entitled to receive, inter alia, a total
remuneration of EUR 80,000 for the 2009-2010 season and EUR 90,000 for the 20102011 season as well as to be covered his accommodation expenses.
13. The DRC further observed that the Claimant unilaterally terminated the contract in
writing on 19 May 2010, asserting that the monthly salaries of January, February,
March and April 2010 had not been paid and after having put the Respondent in
default on 3 and 11 May 2010. As a result, the Claimant deemed that he terminated
the contract with just cause and requested payment of the total amount of EUR
134,099.60 from the Respondent.
14. Furthermore, the Chamber duly noted that the Respondent, on the other hand, held
that the contract was mutually terminated by means of a termination agreement
Player F, from country P / Club C, from country R
9/15
Comment [LED2]: I would leave all
this out…no need to go into it unless
it was otherwise said in the meeting.
allegedly signed by the parties on 1 July 2010 which, apparently, was sent to the
Claimant via e-mail.
15. In view of aforementioned dissent between the parties regarding the termination of
the contract, the DRC first of all stressed the need to establish how the contract was
terminated, i.e. either by unilateral termination by the player or by mutual
agreement. The Chamber observed that on the one hand, the Claimant argued not
having signed the alleged termination agreement. The Respondent, on the other
hand, did not contest having received the termination notice dated 19 May 2010 and
stated that the document remitted as termination agreement was sent to the
Claimant via e-mail prior to its alleged signing.
16. In this context, the Chamber duly noted that the signature of the Claimant on the
document referred to as termination agreement by the Respondent, appeared to be
merely scanned. Consequently, the Chamber referred to art. 12 par. 3 of the
Procedural Rules which stipulates that any party claiming a right on the basis of an
alleged fact shall carry the burden of proof and determined that it could not establish
whether the Claimant had indeed signed the termination agreement. In this regard,
the DRC further underlined that the Respondent did not provide any other piece of
evidence that could sufficiently prove that the Claimant had, indeed, signed the
termination agreement. What is more, the members of the Chamber were of the
opinion that, if a mutual termination agreement had been indeed signed by the
parties, a copy of such would be available in the Transfer Matching System (TMS) and,
as there is no such document uploaded, they could determine that there was in fact
no mutual termination between the Claimant and the Respondent.
17. In view of the above, the Chamber established that the Respondent did not
sufficiently substantiated its allegations regarding the signing of a termination
agreement, and thus, rejected the argument of the Respondent in this respect,
concluding that the contract was terminated on 19 May 2010 by means of a
termination notice sent by the Claimant.
18. Having established the above, the DRC highlighted that the underlying issue in the
present dispute, considering the claim of the Claimant and the allegations of the
Respondent, was to determine whether the contract had been terminated by the
Claimant on 19 May 2010 with or without just cause. The Chamber also underlined
that, subsequently, it would be necessary to determine the financial consequences for
the party that is to be held liable for the early termination of the pertinent
employment contract.
19. In this respect, the Chamber noted that it had remained uncontested by the
Respondent that the salaries of January, February, March and April 2010 had
Player F, from country P / Club C, from country R
10/15
remained unpaid. On the other hand, the DRC also observed that the Respondent
held that the Claimant had left the club of the Respondent, without its authorisation,
on 21 April 2010, fact that was not disputed by the Claimant.
20. In view of the foregoing and turning its attention to the financial conditions of the
contract as well as to the arguments brought forward by the parties, the DRC noted
that when the Claimant left the Respondent, i.e. 21 April 2010, three salaries were
outstanding, i.e. from January to March 2010. Moreover, the DRC noted that the
Respondent did not react to the Claimant’s default notices sent on 3 and 11 May
2010.
21. Having taken into consideration all of the above, the DRC decided that it could be
established that the Respondent had seriously neglected its contractual obligations
towards the Claimant in a continuous and constant manner, i.e. the Respondent had
failed to remunerate the Claimant for a substantial period of time. Therefore, the
DRC considered that the Respondent was found to be in breach of the contract and
that the breach was of such seriousness that, in line with the Chamber’s long-standing
and well-established jurisprudence, the Claimant had a just cause to unilaterally
terminate the contractual relationship with the Respondent on 19 May 2010, having
previously put the Respondent in default of payment of the outstanding amounts.
22. On account of the above, the Chamber established that the Claimant had terminated
the contract with just cause on 19 May 2010 and that, consequently, the Respondent
is to be held liable for the early termination of the employment contact with just
cause by the Claimant.
23. Having established that the Respondent is to be held liable for the early termination
of the contract with just cause by the Claimant, the DRC focussed its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC decided that the Claimant is entitled to receive an amount of
money from the Respondent as compensation for the termination of the contract
with just cause in addition to any outstanding payments on the basis of the relevant
employment contract.
24. First of all, the DRC concurred that the Respondent must fulfil its obligations as per
the contract in accordance with the general legal principle of pacta sunt servanda.
Consequently, the DRC decided that the Respondent is liable to pay to the Claimant
the remuneration that was outstanding at the time the Claimant left, this is, at the
time the Claimant stopped rendering his services to the Respondent, i.e. 21 April 2010.
25. In this regard, the Chamber recalled the argument of the Respondent according to
which the Claimant is not entitled to the claimed amounts due to the fine amounting
Player F, from country P / Club C, from country R
11/15
to EUR 20,000 imposed on the Claimant by the Respondent on 1 June 2010.
Consequently, the Respondent considered owing the Claimant only the amount of
EUR 10,766.4 as outstanding remuneration.
26. In this regard, without expressing itself on the question as to whether or not the fine
in the amount of EUR 20,000 is to be considered proportionate and acceptable, the
DRC highlighted that said fine of EUR 20,000 was imposed on the Claimant by the
Respondent by means of a decision of the Board of Directors of the Respondent
rendered on 1 June 2010. In continuation, the DRC concurred that, as opposed to the
issue relating to the outstanding payments on the basis of the contract, the execution
of the disciplinary decision passed by the Respondent does not fall within the
competence of the DRC. Moreover, the members of the Chamber wished to highlight
that the aforementioned fine, was apparently imposed by the Respondent on the
Claimant, only after the latter had already put an end to the contract. Consequently,
the DRC agreed that the Respondent’s debt towards the Claimant on the basis of the
contract cannot be set off with the aforementioned fine of EUR 20,000. As a result,
the Chamber rejected the respective argument of the Respondent.
27. In line with the above, the Chamber decided that the Respondent shall pay the
amount of EUR 20,000, consisting of the outstanding salaries corresponding to
January, February and March 2010.
28. The DRC then turned its attention to the other claim for unpaid accommodation
expenses, i.e. in relation to the period during which the Claimant rendered his services
to the Respondent. In this respect, in the absence of any monetary value in the
contractual condition pertaining to accommodation, and in the absence of any
documentary evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules
recalling the principle of the burden of proof), the DRC had to reject the Claimant’s
claim relating to said fringe benefits.
29. On account of the above and bearing in mind the general legal principle of pacta sunt
servanda, the DRC decided that the Respondent is liable to pay to the Claimant
outstanding remuneration in the total amount of EUR 20,000.
30. In addition, taking into account the Claimant’s claim for interest and in accordance
with its well-established jurisprudence, the DRC decided that the Respondent must
pay to the Claimant interest of 5% p.a. on the amount of EUR 20,000 as from the
respective due dates until the date of effective payment.
31. In continuation, the members of 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 DRC firstly recapitulated that, in accordance with art. 17 par. 1 of the
Player F, from country P / Club C, from country R
12/15
Comment [LED3]: It wasn’t a
national decision, but an internal
disciplinary measure.
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including, in particular, the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract, the time
remaining on the existing contract up to a maximum of five years.
32. In application of the relevant provision, the DRC held that it first of all had to clarify
whether the pertinent 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 DRC established that no such
compensation clause was included in the contract at the basis of the matter at stake.
33. As a consequence, the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The DRC recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable. Therefore,
other objective criteria may be taken into account at the discretion of the deciding
body.
34. The members of the Chamber then turned their attention to the remuneration and
other benefits due to the Claimant under the existing contracts and/or the new
contract, which criterion was considered by the DRC to be essential. The DRC deemed
it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows
the Chamber to take into account both the existing contract and the new contract in
the calculation of the amount of compensation.
35. Bearing in mind the foregoing, the DRC proceeded with the calculation of the monies
payable to the Claimant under the terms of the contract, as from April 2010 until 30
June 2011, and concluded that the residual value of the said contract amounts to EUR
110,000. Consequently, the DRC concluded that the amount of EUR 110,000 serves as
the basis for the final determination of the amount of compensation for breach of
contract in the case at hand.
36. In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means
of which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for
breach of contract in connection with the Claimant’s general obligation to mitigate
his damages.
Player F, from country P / Club C, from country R
13/15
37. The Chamber recalled that, on 23 June 2010, the Claimant signed an employment
contract with Club T, from country P, valid as of 1 July 2010 until 30 June 2011, in
accordance with which the Claimant was to receive a total fixed remuneration of EUR
36,680 during the said period of time.
38. In view of all of the above, the Chamber decided that the Respondent must pay the
amount of EUR 73,320 to the Claimant, which is considered by the Chamber to be a
reasonable and justified amount as compensation for breach of contract.
39. In addition, taking into account the Claimant’s request for interest as well as the
constant practice of the Dispute Resolution Chamber in this regard, the DRC decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date of claim, i.e. 21 September 2010, until the date of
effective payment.
40. The Dispute Resolution Chamber concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, outstanding remuneration in the amount of EUR 20,000
plus 5% interest until the date of effective payment as follows:
a. 5% p.a. as of 1 February 2010 on the amount of EUR 6,666;
b. 5% p.a. as of 1 March 2010 on the amount of EUR 6,667;
c. 5% p.a. as of 1 April 2010 on the amount of EUR 6,667.
4.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation in the amount of EUR 73,320 plus 5%
interest p.a. on said amount as from 21 September 2010 until the date of effective
payment.
Player F, from country P / Club C, from country R
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5.
In the event that the aforementioned amounts plus interest are not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent 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):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Player F, from country P / Club C, from country R
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Jérôme Valcke
Secretary General
Encl. CAS directives
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