Labour Disputes
Texto da decisão
passed in Zurich, Switzerland, on 20 August 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Taku Nomiya (Japan), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
Player A, from country U
as Claimant
against the club,
Club T, from country G
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 8 January 2010, Club T, from country G (hereinafter: the Respondent), sent a
letter to the player A (hereinafter: the Claimant), from country U, stating the
following: “Club T verifies that the player A will receive as a payment for the
professional football player’s contract for the period of January 2010 until the 30th
of June 2011 he will sign with the Club, the amount of 650,000 € (six hundred and
fifty thousand euros) free of any kind of taxes regardless to what the taxation might
be at country G or any other country throughout the whole period of time he will be
staying at country G”.
2.
On 12 January 2010, the Claimant and the Respondent concluded an employment
contract (hereinafter: the contract) valid until 30 June 2011. According to the
aforementioned employment contract, the Claimant was entitled to receive:
a) a signing-on fee of EUR 800,661.80, payable in 7 instalments as follows:
- EUR 33,000 on 20 February 2010;
- EUR 100,443.63 on 30 March 2010;
- EUR 133,443.63 on 30 May 2010;
- EUR 133,443.63 on 5 September 2010;
- EUR 133,443.63 on 30 November 2010;
- EUR 133,443.63 on 30 January 2011;
- EUR 133,443.63 on 30 March 2011.
b) a monthly salary of EUR 908.50 payable at the end of each month, twelve months
per year;
c) a EUR 25,000 “NET” bonus if the Respondent qualified to the Europa League and
a EUR 30,000 if the Respondent qualified to the “final groups” of the Europa
League;
d) other bonuses:
- Christmas bonus: amount “equal to the monthly fees of the Player”, i.e. EUR
908.50
- Easter bonus: amount equal to ”half the monthly fees of the Player”, i.e.
EUR 454.25;
- Holiday benefit: amount equal to ”half the monthly fees of the Player”, i.e.
EUR 454.25.
3.
Clause 4.7 established that the remuneration is to be “paid in full and complete to
the bank account of the Player, in conjunction with the provisions of Article 14 par.
3d of Appendix A.”.
4.
Clause 4.10 of the contract established that “Payment of taxes is effected pursuant to
the requirements of the country G legislation”.
5.
In accordance with clause 4.11 of the contract, “In the event of termination of the
contract due to fault of the club, without prejudice to the specific and minimum
Player A, from country U / Club T, from country G
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provisions of par. 2 of the art. 17 of the Regulations, it is hereby stipulated that the
compensation due to the player amounts to:
a) During the protected period ……………………………€
b) Outside the protected period………………………….. €”
6.
In accordance with the clause 5.5 of the contract, “In the event of termination of the
contract due to fault of the player, without prejudice to the specific and minimum
provisions of par. 3 of the art. 17 of the Regulations, it is hereby stipulated that the
compensation due to the Professional club amounts to:
a) During the protected period …..800,000………………€
b) Outside the protected period………………………….. €”
7.
On 23 July 2010, the Claimant sent a letter to the Respondent putting the latter in
default regarding outstanding amounts and other contractual obligations, since the
Respondent allegedly did not allow him to participate in pre-season training trips to
Australia and Switzerland. Additionally, the Claimant manifested in the same letter
that to that date he had only received EUR 25,000 out of EUR 266,887.26 he should
have received. Finally, the Claimant gave a seven days deadline to the Respondent,
i.e. until 31 July 2010, to pay him the owed amount or else he would terminate the
contract and be entitled to receive EUR 241.887.26, plus an additional EUR 800,000
under paragraph 4.11(a) of the contract.
8.
On the same day, 23 July 2010, the Respondent sent a letter to the legal
representative of the Claimant stating inter alia that the Claimant “has a binding
contract with Club T for the 2010-2011 season. Nevertheless, Club T wishes to
terminate the contract, pay Player A what he is owed to date and allow Player A to
find another Club for the coming soccer season. Accordingly, this letter will confirm
that Club T will release Player A from his contract with the Club upon his written
request”.
9.
On 4 October 2010, the Respondent sent to the Claimant a draft of a document titled
“Private Agreement of Breach of Contract in Common Accordance” by means of
which the Respondent offered the amount of EUR 120,000 to the Claimant to
“declare the breach of the Contract in common accordance” and for the latter not to
have any further financial demands towards the Respondent.
10.
On 14 October 2010, the Claimant sent another letter to the Respondent stating,
inter alia that:
- he had in good faith fully complied with his contractual obligations by being and
continuing to be at the complete disposal of the Respondent;
- the Respondent had unjustifiably prevented him from taking part in the team’s
training sessions, training trips, preparation and official matches;
- the Respondent had to date not complied with its financial obligations;
- in spite of making the Respondent aware of his uncomfortable situation on
many occasions, the same uncomfortable situation continued to prevail;
Player A, from country U / Club T, from country G
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- if the Respondent did not comply with its financial obligations he would be
forced to consider his contract as breached and would have no other option but
to consider such contract as unilaterally and unjustifiably terminated inside the
protected period by the Respondent, reserving his right to claim compensation;
and
- he continued to be at the full disposal of the Respondent to participate in all of
the Respondent’s activities and that he trusted that the Respondent would also
fully comply with its obligations as per the mentioned contract, so their
employment relationship could resume as originally agreed.
11.
On 29 October 2010, the Claimant sent a final letter to the Respondent manifesting
that in view of the regretful and unbearable situation he continued to face, he
considered the contract as breached by the Respondent and would lodge a complaint
before FIFA.
12.
On 29 October 2010, the Claimant lodged a claim with FIFA against the Respondent,
claiming the amount of EUR 663,831.78 for breach of the contract as well as an
interest rate of 5% p.a. on all amounts as of 29 October 2010, as follows:
a) EUR 254,415.89 as outstanding payments:
i. Salaries up to and including October 2010: EUR 9,085;
ii. Signing-on fee instalments up to September 2010: EUR 190,330.89, which
corresponds to the total amount owed of EUR 400,330.89 minus the partial
payments made by the Respondent, respectively, EUR 5,000 on 23 March
2010, EUR 10,000 on 31 march 2010, EUR 10,00 on 6 July 2010 and EUR
185,000 on 3 September 2010;
iii. EUR 25,000 if the Respondent qualified for the Europa League and EUR
30,000 for reaching the final groups of the mentioned Europa League. In this
respect, the Claimant provided a conformation from the official UEFA
website and from other internet websites from where it can be determined
that the Respondent qualified to the 2010/2011 Europa League and reached
the final groups of the Europa League.
b) EUR 409,415.89 as compensation:
i. Salaries from November 2010 up to and including June 2011: EUR 7,268;
ii. Instalment payments from November 2010 until March 2011: EUR
400,330.89;
iii. EUR 1,817 for Christmas, Holiday and Easter bonuses.
13.
In this respect, the Claimant manifested that in good faith, he had fully complied
with all contractual obligations towards the Respondent by being at the complete
disposal of the Respondent to participate in trainings, trips and official and friendly
matches, and that up to date, he had never been notified by the Respondent of any
violation or infringement to his employment contract or to the Respondent’s statutes
or regulations.
14.
Additionally, the Claimant stated the following:
Player A, from country U / Club T, from country G
Page 4 of 14
- during the first months of validity of the employment contract, the sporting
relationship between him and the Respondent was cordial and professional, in
spite of the Respondent not duly complying with its financial obligations towards
him;
- up to July 2010, he had only received payments in the amount EUR 25,000 from
the Respondent out of EUR 297,338.26 he should have received composed of: a)
EUR 5,451 as salaries; b) EUR 266,887.26 as sign on fee instalment payments; and,
c) EUR 25,000 for qualifying to the 2010/2011 Europa League;
- to his amazement and upon reporting for the 2010/2011 pre-season training, he
was informed by the Respondent’s administration that they had decided to “let
him go”;
- in spite of the aforementioned and with the aim of duly complying with his
assigned duties, he reported to training the next day where he was again
informed by the Respondent’s administration that he would not be joining the
team for pre-season preparation trips and that his services were no longer
required;
- since that moment on, he was unjustifiably excluded from trainings, games, trips
and activities and the Respondent’s actions towards him became more hostile in
an attempt to intimidate and force him into taking a payment reduction. The
Claimant added that almost daily, he was brought into the administrative offices
of the Respondent in an attempt to try to convince him to accept the reduction;
- after repeatedly refusing to take a reduction in payment, he was forced by the
Respondent to train separately from the rest of the team three times daily and
all training consisted of running and arduous physical training. The Claimant
added that in an attempt to comply with his obligations towards the
Respondent, he trained as requested, but that soon after carrying out the
arduous training he became injured (spine disc injury and fluid in his groin).
According to the Claimant, these actions were clearly carried out in an attempt
to break him down so he would either accept a payment reduction or leave the
Respondent;
- on 23 July 2010, he sent a letter to the Respondent notifying the Respondent
that it was in breach of the employment contract concluded between the parties
(cf. point I.7 above);
- by the end of August 2010, he had only received payments in the amount of EUR
25,000 out of EUR 329,155.26 he should have received composed of: a) EUR 7,268
as salaries; b) EUR 266,887.26 as instalment payments; and, c) EUR 25,000 for the
Respondent’s qualification to the 2010/2011 Europa League and EUR 30,000 for
reaching the final groups of the mentioned Europa League;
Player A, from country U / Club T, from country G
Page 5 of 14
- on 3 September 2010, he received the amount of EUR 185,000 from the
Respondent, but manifested that the treatment remained the same and that he
was only allowed to train by himself and not with the rest of the team;
- on 4 October 2010, the Respondent offered to pay him the amount of
EUR 120,000 to consider his employment contract as terminated (cf. point I.9
above), which he did not accept;
- on 14 October 2010, he again sent another letter to the Respondent (cf. point
I.10 above) notifying the Respondent that it was in breach of the contract
concluded between the parties; and,
- finally, on 29 October 2010, he sent a letter to the Respondent manifesting that
he considered his employment contract as breached by the Respondent and that
he was lodging an official claim before FIFA (cf. point I.11 above).
15.
The Respondent presented its position rejecting the Claimant’s claim. In this respect,
the Respondent stated the following:
- after May 2010, the Claimant started creating a lot of problems by staying out
late and drinking, and that he had been seen many times in night clubs after
midnight in a condition that was not befitting to a professional athlete;
- due to such behaviour the coach informed the Respondent that the Claimant
could no longer be part of the team. In this respect, the Respondent stated that
it had had many communications with the player’s agent in order to find an
amicable way to terminate the employment contract concluded between the
parties;
- until the end of August 2010, no solution had been reached because there was a
discrepancy regarding the exact amount due to the Claimant, but that it was
obvious that neither party wanted the continuance of the employment
relationship;
- on 3 September 2010, it paid to the Claimant the amount of EUR 185,000;
- the parties tried to reach an amicable solution in October 2010 whereby the
Respondent would pay EUR 120,000 to the Claimant in full settlement of any
future amounts (cf. point I.9 above), but that ultimately no agreement was
reached and no document in this regard was signed;
- after the aforementioned, the Claimant disappeared and was not answering his
phone and was also not going to the team’s trainings;
- by means of a letter dated 27 October 2010, the Respondent summoned the
Claimant to present himself in front of the directors of the Respondent to
explain his behaviour, nevertheless, and to the Respondent’s surprise, the
Claimant reacted by lodging a claim before FIFA for breach of contract on 29
October 2010.
Player A, from country U / Club T, from country G
Page 6 of 14
16.
Additionally, the Respondent stated that the amounts owed to the Claimant and
mentioned in the contract as signing-on fee instalment payments and monthly fees
are all gross and not net amounts, due to the fact that “in country G, every club is
obliged to deduct the tax corresponding to the instalments of the contract and the
social contribution and tax corresponding to the monthly fees and pay the player the
net amount of such payments”. In this respect, the Respondent stated that:
- in accordance with the “relevant announcement of the country G Professional
Football Player’s Association – P.S.A.P” the tax on instalment payments agreed
upon in football players’ employment contracts signed from January 2010
onwards “is following a tax scale for the first 100,000 euros per year and for any
amount above the first 100,000 euros, the tax rate is 45%”. Consequently, the
Respondent explained that for the “first 100,000 euros remuneration of each
year amounts to 31,600 euros...[in accordance with the tax scale]…and then all
amounts above 100,000 euros are taxed by 45%”. The Respondent attached a
copy of a document titled “new taxation 17/6/2010” taken from the website of
the country G Association of Professional Football Players;
- additionally, all monthly fees due to a player are subject to a 13.45% deduction
for social contribution and that the remaining amount is added to the instalment
payments and then also taxed 45%;
- any amount agreed as bonuses is also added to the instalment payments and
then taxed at 45%;
- due to the aforementioned, the Claimant was owed the following net amounts:
a. Signing-on fee instalment payments: EUR 467,163.97 (EUR 800,661.80 gross);
b. Monthly fees, Christmas and Easter bonuses and Holiday benefit: EUR
8,649.37 (EUR 18,170 gross – 13.45% social contribution and then the
remaining amount is taxed 45%);
c. Bonuses: EUR 25,000 + EUR 16,500 (EUR 30,000 gross);
- at the time the Claimant considered his contract as terminated he was actually
due the amount of EUR 237,906.66 net by the Respondent, and since he
admitted receiving EUR 210,000, he was only owed EUR 27,906.66 net. Due to
the aforementioned, the Respondent considered that such amount neither justify
the termination of a contract with just cause by the player nor could it be
considered to give the Claimant “the right to consider said employment contract
as unilaterally and unjustifiably terminated by Club T”.
17.
Upon request for information as to the taxation applicable to professional football
players in country G, the country G Football Federation, first of all, informed FIFA
that the applicable income tax system for professional football players at the time
the contract was concluded was of 20% of their remuneration, to be deducted at the
source, i.e. by the club and transferred to the Tax Authority.
Player A, from country U / Club T, from country G
Page 7 of 14
18.
Subsequently, the country G Football Federation informed FIFA that in fact “as of
January 1st 2010, the applicable income tax system for professional football players
has dramatically changed. The independent tax system that was applied until then
(20% deduction at source, regardless the amount of remuneration) was abandoned
and the related wages started to get taxed according to the yearly income tax rates
applied to all employees. The change occurred through law 3842/2010 (article 5,
paragraph 7) that came into force on April 23rd 2010, having however a
retrospective effect to all contracts signed after January 1st 2010 (as is the case of
Player A). In order for the Tax Authority to accurately calculate the due tax, the total
remuneration predicted on each contract will remain into force. In order for your
services to be able to calculate Player A taxes, please find below the tax rates
applicable at the time (2010):
Income (Euros)
/
Tax Rate (per cent)
0-12.000 €
/
0%
Next 4.000 €
/
18%
Next 6.000 €
/
24%
Next 4.000 €
/
26%
Next 6.000 €
/
32%
Next 8.000 €
/
36%
Next 20.000 €
/
38%
Next 40.000 €
/
40%
Anything above that
/
45%”
Also, the country G Football Federation indicated that for employees with children
the tax rate is “slightly different”.
19.
Moreover, the country G Football Federation stated that as from 1 January 2011, the
applicable law is 4024/2011. Finally, the country G Football Federation provided
copies of the applicable laws in country G only and the extracts of the tables of
taxation of income of the relevant laws in English.
20.
The Claimant insisted that the amounts established in the contract were net and not
gross, so the applicable law is not relevant to the present matter, considering that
the duty to pay taxes was on the Respondent.
21.
Moreover, according to the Claimant, the Respondent still owed the Claimant
EUR 663,831.78 on the day of termination. Finally, the Claimant argued that in case it
is decided that the amounts are gross, the applicable rate should be 20%,
considering the date of signature of the contract.
22.
The Respondent, for its part, insisted that, in general, the amounts established in the
contract are gross, stating that all the amounts established in employment contracts
in country G are gross, unless expressly agreed that they are net.
23.
Moreover, the Respondent insisted in its calculations regarding tax deductions,
emphasizing that, at the date the Claimant unilaterally terminated the contract, the
only outstanding amounts were EUR 27,906.66, which allegedly corresponds to one
monthly salary and thus, do not justify the termination of the contract. Also,
according to the Respondent, such amount was outstanding for “less than two
months”. Therefore, the Respondent deemed that the claim shall be rejected.
Player A, from country U / Club T, from country G
Page 8 of 14
24.
Finally, the Claimant informed FIFA that, on 31 January 2011, he signed an
employment contract with the Club R, from country T, valid until 31 May 2011, by
means of which he was entitled to receive a total remuneration in the amount of
USD 75,000 as well as performance bonuses.
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 29 October
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. article 21 par. 2 and 3 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 conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2014), 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 the country U and a country G club.
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 (editions 2014
and 2012), and considering that the present claim was lodged on 29 October 2010,
the 2010 edition of said regulations (hereinafter: 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, 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.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid as from 12 January 2010 until 30 June 2011, in accordance with which
the Claimant was entitled to receive, inter alia, a signing-on fee in the amount of EUR
800,661.80 divided in instalments, a monthly salary in the amount of EUR 908.50 and
a bonus in the amount of EUR 25,000 in case the Respondent qualified to the Europa
League.
6.
In continuation, the members of the Chamber took into account that, on 29 October
2010, the Claimant notified the Respondent of the termination of the contract on the
basis of outstanding remuneration and on the fact that the Respondent allegedly
Player A, from country U / Club T, from country G
Page 9 of 14
prevented him from participating in the Respondent’s training sessions. On the other
hand, the members of the DRC took note that the Respondent, for its part, held that
the Claimant terminated the contract without just cause since the amount of
remuneration that was outstanding at that moment would not justify the termination
of the contract. Moreover, the DRC took note that the Respondent alleged that due
to the Claimant’s bad behaviour, the Respondent decided he would no longer be part
of the team and tried to find an amicable solution.
7.
In this context, the DRC highlighted that the central issue in the matter at stake
would be thus, to determine whether the Claimant had just cause to terminate the
contract on 29 October 2010.
8.
In this respect, the Chamber wished to emphasize that, according to the Claimant, at
the moment of the termination of the contract, the total amount of EUR 254,415.89
was outstanding, corresponding to unpaid salaries, unpaid instalments of the signing
on fee as well as bonuses (cf. point I. 12). The DRC also took due note of the
Claimant’s allegation that when he presented himself to take part in the pre-season
2010/2011, he was informed by the Respondent’s administration that his services were
no longer required.
9.
The DRC then turned its attention to the arguments of the Respondent and
acknowledged that according to the latter, the amounts established in the contract
are gross and the actual amounts to be paid are net. Consequently, according to the
Respondent, at the moment the contract was terminated only the amount of EUR
27,906.66 was outstanding and the Claimant would not have just cause to terminate
the contract.
10.
On the other hand, the Claimant alleges that the contract does not establish the
nature of the amount and therefore, it should be considered as net.
11.
In this context, the DRC took note that the parties disagree on the amounts of
remuneration owed to the player in accordance with the contract. Considering the
opposite position of the parties, the DRC deemed that it had to first establish whether
the remuneration established in the contract was to be considered gross or net.
12.
The Chamber first and foremost analysed the contract at the basis of the dispute and
took note that the contract does not indicate whether the salaries and the signing-on
fee were gross or net.
13.
At this stage, the DRC recalled that according to the legal principle of the burden of
proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on
the basis of an alleged fact shall carry the burden of proof.
14.
In this regard, the members of the DRC considered that the Respondent had to
demonstrate that the amounts established in the contract were actually gross. Even
more importantly, the Respondent would have to prove, in case the taxes had to be
deducted for payment, that it had actually paid the relevant taxes to the country G
authorities. However, the DRC took note that the Respondent did not submit any
evidence in this regard.
Player A, from country U / Club T, from country G
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15.
Considering the positions and documentation provided by the parties and the country
G Football Federation, the DRC considered that, although the country G Football
Federation submitted an explanation on the taxation applicable for football players,
the Respondent had failed to demonstrate that the payments made to the Claimant
under the contract were net.
16.
Additionally, the Chamber highlighted that the offer remitted by the Respondent to
the Claimant on 8 January 2010 expressly established that all the amounts stipulated
in the contract would be net amounts (cf. point I.1).
17.
On account of all the above, the DRC concluded that the amounts in the contract
were net amounts.
18.
Having established that the remuneration in the contract is net, the DRC reverted to
its analysis as to whether the player had just cause to terminate the contract.
19.
In this respect, the DRC first highlighted that it remained uncontested by the
Respondent that it had paid only EUR 210,000 until the date of termination.
20.
Subsequently, the Chamber recalled the remuneration established in the contract (cf.
point I.2).
21.
Moreover, the DRC took note that, regarding the bonus in the amount of EUR 25,000
to be paid in case the Respondent qualified for the Europa League, the Claimant
provided a confirmation from the official UEFA website and from other internet
websites from where it can be determined that the Respondent qualified to the
2010/2011 Europa League and reached the final groups of the Europa League.
Moreover, it remained uncontested by the Respondent that the player was entitled to
receive such bonus.
22.
As a consequence of the aforementioned considerations, the remuneration
established in the contract and taking into account the documentation presented by
the parties to the dispute, the Chamber established that by the time the player
terminated the contract on 29 October 2010, the Claimant was entitled to the total
amount of EUR 464,415.89, composed of 4 instalments of the signing-on fee, 10
monthly salaries and the bonuses relating to the Europa League (cf. point I.2), having
received only EUR 210,000 and thus, the amount of EUR 254,415.89 remained
outstanding. Consequently, the Chamber concurred that the Respondent had
seriously neglected its financial contractual obligations towards the Claimant over a
substantial amount of time, despite the Claimant having put the Respondent in
default on several occasions.
23.
Finally, the members of the DRC further considered that it remained uncontested that
the Respondent was not interested in the services of the player and even tried to
terminate the contract amicably, offering EUR 120,000 to the Claimant, which was
rejected by the latter (cf. point I.9).
Player A, from country U / Club T, from country G
Page 11 of 14
24.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause to
unilaterally terminate the contract on 29 October 2010 and that the Respondent is to
be held liable for the early termination of the contract with just cause by the player.
25.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant
the amounts which were outstanding under the contract at the moment of the
termination, i.e. EUR 254,415.89, as established in point II.22 above.
26.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amount as of the date of the termination of the contract.
27.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided
that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to
pay compensation to the Claimant.
28.
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 Claimant
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.
29.
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 the compensation clause included in the employment contract at the
basis of the matter at stake in favour of the player (cf. point I.5) could not be
considered, since it did not establish any amount.
30.
Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account the remuneration due
to the Claimant 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 the termination of the employment contract on 29 October 2010, the
contract would still run until 30 June 2011. Consequently, taking into account the
financial terms of the contract, the Chamber concluded that the remaining value of
the contract as from its early termination by the Respondent until the regular expiry
of the contract amounts to EUR 405,415.89 and that such amount shall serve as the
basis for the final determination of the amount of compensation for breach of
contract.
Player A, from country U / Club T, from country G
Page 12 of 14
31.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute the Claimant had found a
new employment with the Club R, from country T, valid as from 31 January 2011 until
31 May 2011 in accordance with which he would be remunerated with the total
amount of USD 75,000, corresponding to EUR 55,000. Consequently, in accordance
with the constant practice of the Dispute Resolution Chamber and the general
obligation of the Claimant to mitigate his damages, such remuneration under the
new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract.
32.
In view of all of the above, the Chamber decided that the Respondent must pay the
amount of EUR 354,415.89 to the Claimant as compensation for breach of contract
without just case, which is considered by the Chamber to be a reasonable and
justified amount as compensation.
33.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
compensation as of the date of the claim.
34.
The Dispute Resolution Chamber concluded its 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, Player A, is partially accepted.
2.
The Respondent, Club T, 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
254,415.89
plus
5%
interest
p.a.
on
said
amount
as
from
29 October 2010 until the date of effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 354,415.89 plus 5% interest p.a. on said amount as from 29 October 2010 until
the date of effective payment.
Player A, from country U / Club T, from country G
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4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated time
limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is 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
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Player A, from country U / Club T, from country G
Page 14 of 14