Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 August 2014,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Jon Newman (USA), member
on the claim presented by the player,
Player M, from country I
as Claimant/Counter-Respondent
against the club,
Club P, from country R
as Respondent/Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 15 July 2010, Player M, from country I (hereinafter: the Claimant/CounterRespondent), and Club P, from country R (hereinafter: the Respondent/CounterClaimant), signed an employment contract (hereinafter: the contract), valid as from the
date of signature until 31 December 2012.
2.
According to art. III and V of the contract, the Respondent/Counter-Claimant undertook
to provide the Claimant/Counter-Respondent, inter alia, with the following:
3.
4.
a)
“4,000 euros netto monthly”;
b)
“2 fly tickets, per year, during the holiday periods, go and return, on the relation
country R – country S”;
c)
“accommodation (…) from the available houses of the club”.
In addition, the parties agreed upon the following clauses:
a)
Article III: “1.(i) According to the net amounts actually granted, the club has the
obligation to pay only the income tax.”
b)
Article III: “2. The player undertakes: (c) to observe the Statutes, Regulations,
Decisions, and Resolutions of the management bodies of the club, FRF, LPF
(country R Professional Football League) and AJF (County Football Association);
(d) to fulfil the requirement of the organization and functioning regulations of
the club.”
c)
Article III: “2.(i) The club can retain from every amount of money due to the
player any fines or penalties, in accordance with sports country R Football
Federation and the Regulations of Internal Order.”
d)
Article V: “For the entire period of the contract, the club takes the obligation to
pay, up to 30.12.2010, the amount of 24.000 euros netto. If up to the above
mentioned term, Club P does not pay the above mentioned amount, the player is
free of contract, starting with 15.06.2011, the financial rights being paid to the
player, up to 15.06.2011.”
e)
Article VII: “(2) The parties undertake not to refer to any law court for the
settlement of the litigations until after finishing all the methods of the court of
jurisdiction of FRF, LPF (country R Professional Football League) and/or AJF
(County Football Association). (3) The litigation arising from the execution of the
present agreement shall be settled following the procedural order: a) amicable
way; b) by bringing the litigation before the court of jurisdiction of FRF, LPF and
AJF, as the case may be.”
On 14 February 2011, the Claimant/Counter-Respondent unilaterally terminated the
contract based on the Respondent/Counter-Claimant’s alleged breach of contract
“consecutively for more than 3 months”.
Player M, from country I / Club P, from country R
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5.
On 14 March 2011, the Claimant/Counter-Respondent lodged a claim for breach of
contract in front of FIFA against the Respondent/Counter-Claimant, requesting the
payment of the total amount of EUR 34,227, broken down as follows:
a)
outstanding salaries in the amount of EUR 12,000, corresponding to the monthly
remuneration of November and December 2010 and January 2011, plus interests
of 5% p.a. as from 14 February 2011;
b)
compensation in the amount of EUR 18,000, corresponding to the residual value
of the contract (i.e. four and a half months from February 2011 until 15 June
2011), plus interests of 5% p.a. as from 14 February 2011 and minus “possible
income during this period”;
c)
“one (1) monthly salary in the amount of EUR 4,000 as additional indemnity, since
the interest rate of 5% is not covering the damage of this case for legal costs”;
d)
Hotel costs in the amount of currency of country R 115 (approx. EUR 27);
e)
EUR 200 for a one-way ticket country R – country S.
6.
In his claim, the Claimant/Counter-Respondent explains that based on art. V of the
contract, he deems that 15 June 2011 should be considered as the expiry date of the
contract since the Respondent/Counter-Claimant failed to pay him “the additional
payment of EUR 24,000.”
7.
According to the Claimant/Counter-Respondent, he received his remuneration for the
first 3 and half months (i.e. from July until October 2010), as well as a bonus of EUR 250,
totalling EUR 14,245. On 22 September 2010, he was warned by the
Respondent/Counter-Claimant of his alleged bad performance and played the last
official match on 10 October 2012. On 26 October 2012, the Respondent/CounterClaimant sanctioned the player with a fine corresponding to 25% of his remuneration
for the 2010/2011 season. On 20 December 2010, the Claimant/Counter-Respondent
rejected the fine arguing that he did not fail with any obligations.
8.
In spite of having reminded the Respondent/Counter-Claimant of its salary arrears
towards him in the amount of EUR 8,000, by means of his letters dated 20 December
2010 and 13 and 26 January 2011, and in the amount of EUR 12,000, by means of his
letters dated 2 and 9 February 2011, the Claimant/Counter-Respondent allegedly did
not receive any payments from the Respondent/Counter-Claimant. Thus, he terminated
the contract on 14 February 2011 (cf. point I.4. above).
9.
In its response, the Respondent/Counter-Claimant rejects FIFA’s jurisdiction over the
present dispute in favour of the deciding body of the LPF on the basis of art. VII of the
contract (cf. point I.3.e) above) and provided an excerpt of the 2009 Statutes of the
country R Football Federation and the 2010 Rules on Football Players’ Status and
Transfer.
10.
With regard to the substance of the dispute, the Respondent/Counter-Claimant rejects
the claim and argues that the contract was terminated by the Claimant/CounterRespondent on 14 February 2011 without just cause due to the fact that it paid the
Claimant/Counter-Respondent’s due remuneration in full, in accordance with article
Player M, from country I / Club P, from country R
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III.1.(i) of the contract (cf. point I.3.a) above), and fulfilled all its obligations, including
flight tickets and accommodation.
11.
The Respondent/Counter-Claimant states that “the obligation to pay the sum of EUR
24,000 was established in addition to the obligation of paying to the player monthly
instalments remuneration in the amount of EUR 4,000. The payment of the above
mentioned sum of EUR 24,000 was only to be deducted from the monthly
remuneration, thus, this stipulation was playing the role of a subsequent condition. The
said amount of EUR 24,000 included the July instalment –EUR 2,000–, the August 2010
to December 2010 instalments –EUR 20,000–, and, in advance, half of the instalment
corresponding to the month of January 2011 –EUR 2,000–.”
12.
The Respondent/Counter-Claimant further affirms that, according to article V of the
contract (cf. point I.3.d) above), the following items were to be deducted from the
amount of EUR 24,000 due to the player:
a)
EUR 3,392.55 corresponding to the player’s health insurance, unemployment and
social security contributions;
b)
EUR 1,269.98 corresponding to a guarantee for equipment’s return;
c)
EUR 6,000 corresponding to the fine referred to in point I.7. above.
13.
Therefore, the Respondent/Counter-Claimant explains that the Claimant/CounterRespondent was actually entitled to EUR 13,337.59 and it paid him EUR 14,383 for his
services until 31 December 2010. Thus, the Respondent/Counter-Claimant had a credit
against the Claimant/Counter-Respondent in the amount of EUR 1,045.61.
14.
The Respondent/Counter-Claimant further states that the Claimant/Counter-Respondent
showed lack of interest in his preparation since September 2010 and proceeded against
him in a disciplinary proceeding that ended with the imposition of the fine (cf. point I.7.
above).
15.
Finally, the Respondent/Counter-Claimant lodged a counterclaim for breach of contract
against the Claimant/Counter-Respondent, requesting the payment of the total amount
of EUR 8,342.12, based on the costs incurred by the Respondent/Counter-Claimant for
the Claimant/Counter-Respondent (i.e. EUR 16,684.28) amortized by 50%, sporting
sanctions and the reimbursement of the expenses incurred by the Respondent/CounterClaimant in connection with the present case.
16.
In his reply to the counterclaim, the Claimant/Counter-Respondent rejects it in full,
stating that the Respondent/Counter-Claimant breached the contract, and asserts that
article V of the contract clearly sets forth that the Claimant/Counter-Respondent is to
receive EUR 4,000 net per month (cf. point I.2.a) above), so the Respondent/CounterClaimant was liable to bear the financial cost of the Claimant/Counter-Respondent’s
health insurance, unemployment and social security contributions. The
Claimant/Counter-Respondent further notes that, from the documentation provided by
the Respondent/Counter-Claimant, it can be noted that he is the only one from whose
salary the percentage of 16.5% was deducted as taxes. In particular, he noted that,
while he had to pay 10.5% for social insurance, players with a higher remuneration
were charged between 1% and 6%.
Player M, from country I / Club P, from country R
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17.
The Claimant/Counter-Respondent also claims not having signed the Internal
Regulations neither being notified of the imposition of the fine, which he argues as
being unlawful since he could not exercise his right to be heard and never granted an
authorization to the sports director of the Respondent/Counter-Claimant that appeared
in front of the country R deciding body apparently on behalf of both the
Respondent/Counter-Claimant and also the Claimant/Counter-Respondent. He further
claims that such representation proves a clear conflict of interests and, in addition, that
the fine is excessive.
18.
Finally, the Claimant/Counter-Respondent acknowledged to have been paid EUR 14,383,
which corresponds to his salaries of July, August, September and October 2010, plus a
bonus, and maintains all requests put forth in his original claim.
19.
In its final position, the Respondent/Counter-Claimant asserts that the remuneration
was established by the parties as net value in consideration only of the obligation by
the Respondent/Counter-Claimant to pay the income tax (cf. point I.3.a) above) and,
therefore, the deductions to the monthly remuneration of the Claimant/CounterRespondent were made according to the contract and the applicable law. Additionally,
the Respondent/Counter-Claimant argues that the Claimant/Counter-Respondent was
aware of the right of the Respondent/Counter-Claimant under the contract to deduct
fines and penalties according to its internal regulations (cf. point I.3.c) above).
20.
After having invited the Claimant/Counter-Respondent’s new club, Club A, to comment
on the present dispute, the country C Football Association informed that such club is no
longer affiliated.
21.
Finally, the Claimant/Counter-Respondent informed FIFA that he signed the following
new contracts:
a)
Club A, country C, from 16 June 2011 until 31 March 2012, for EUR 22,400 net.
b)
Club O, from country B, from 6 July 2012 until 30 June 2013, for currency of
country B 14,320.
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 14 March 2011.
Consequently, the 2008 edition of the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (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 an country I player and a country R club.
Player M, from country I / Club P, from country R
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3.
However, the Chamber acknowledged that the Respondent/Counter-Claimant
contested the competence of FIFA’s deciding bodies on the basis of art. VII of the
contract, highlighting that the parties to the contract had agreed that “(2) The parties
undertake not to refer to any law court for the settlement of the litigations until after
finishing all the methods of the court of jurisdiction of country R Professional Football
League and/or County Football Association. (3) The litigation arising from the execution
of the present agreement shall be settled following the procedural order: a) amicable
way; b) by bringing the litigation before the court of jurisdiction of country R
Professional Football League and/or County Football Association, as the case may be.”
4.
In this regard, the Chamber noted that the Claimant/Counter-Respondent rejected such
position and insisted that FIFA has jurisdiction to deal with the present matter.
5.
In continuation, the DRC referred to the above-mentioned article of the contract, on
the basis of which the Respondent contested FIFA's jurisdiction. According to said
article, “The litigation arising from the execution of the present agreement shall be
settled […] by bringing the litigation before the court of jurisdiction of country R
Professional Football League and/or County Football Association, as the case may be.”
6.
Hence, the Chamber outlined that the content of the relevant article is not clear and
that said clause does not explicitly refer to the competent national dispute resolution
chamber or similar arbitration body in the sense of art. 22 lit. b) of the aforementioned
Regulations but it actually refers to three different entities. Therefore, the
Claimant/Counter-Respondent was not in a position to know at the moment of signing
the contract to which body the potential disputes related to his employment
relationship were to be submitted.
7.
In view of all the above, the DRC concluded that, in line with its constant jurisprudence,
the Respondent/Counter-Claimant 's objection to the competence of FIFA to deal with
the present matter has 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.
8.
In continuation, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (edition 2014), and
considering that the present claim was lodged on 14 March 2011, the 2010 edition of
said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
9.
The competence of the Chamber and the applicable regulations having been
established, the DRC 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 DRC
emphasised that in the following considerations it will refer only to the facts,
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arguments and documentary evidence which it considered pertinent for the assessment
of the matter at hand.
10.
The members of the Chamber acknowledged that it was undisputed by the parties that
they were contractually bound by means of the contract, valid as from 15 July 2010
until 31 December 2012. Likewise, the DRC also noted that the parties did not dispute
the fact that the contract was terminated by the Claimant/Counter-Respondent on 14
February 2011 and that the Respondent/Counter-Claimant paid EUR 14,383 to the
Claimant/Counter-Respondent until such day.
11.
The Chamber further noted that the Claimant/Counter-Respondent, on the one hand,
lodged a claim for outstanding remuneration and breach of contract, arguing that the
Respondent/Counter-Claimant failed to comply with its contractual obligations by
ceasing the payment of his receivables.
12.
The Chamber also noted that the Respondent/Counter-Claimant, on the other hand,
maintains that it fulfilled all its financial obligations in accordance with the contract
and, therefore, the Claimant/Counter-Respondent would have terminated it without
just cause.
13.
Having established the aforementioned, the Chamber deemed that the underlying issue
in this dispute, considering the claim of the Claimant/Counter-Respondent and the
allegations and counter-claim of the Respondent/Counter-Claimant, was to determine
whether the contract had been unilaterally terminated with or without just cause by
the Claimant/Counter-Respondent on 14 February 2011. The DRC also underlined that,
subsequently, if it were found that the contract had been terminated with just cause by
the Claimant/Counter-Respondent, it would be necessary to determine the
consequences for the party that caused the unjust breach.
14.
In view of the above, the Chamber first focused its attention on the reason at the basis
of the termination of the contract by the Claimant/Counter-Respondent, i.e. the nonpayment of his monthly remuneration of November and December 2010 and January
2011.
15.
In view of the above, the DRC went on to deliberate as to whether the allegations of
the Claimant/Counter-Respondent regarding the non-performance of the
Respondent/Counter-Claimant's obligation to pay the Claimant/Counter-Respondent's
remuneration for the months of November and December 2010 and January 2011 are
corroborated by substantial pieces of evidence and whether they could be considered as
a just cause to terminate the contract.
16.
In this context, whilst referring to art. 12 par. 3 of the Procedural Rules, according to
which any party claiming a right on the basis of an alleged fact shall carry the burden of
proof, the Chamber deemed it fit to highlight that the Claimant/Counter-Respondent
had presented substantial documentary evidence corroborating his allegations
Player M, from country I / Club P, from country R
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regarding the salary arrears towards him. In this respect, the DRC acknowledged the
content of the Claimant/Counter-Respondent's correspondence of 20 December 2010,
13 and 26 January 2011 and 2 and 9 February 2011, requesting the payment of his
outstanding remuneration, to the Respondent/Counter-Claimant (cf. point I.8. above), a
copy of which is to be found on file.
17.
Still bearing in mind the aforementioned principle, the Chamber noted that the
Respondent/Counter-Claimant bore the burden of proof regarding the payment of the
Claimant/Counter-Respondent's remuneration for November and December 2010 and
January 2011. In this regard, the DRC established that the Respondent/CounterClaimant did not provide any evidence of the payment of the aforementioned salaries,
but it deemed that the amounts individualized in point I.12. above were to be deducted
from the amount owed to the Claimant/Counter-Respondent. Consequently, the
Respondent/Counter-Claimant claimed that no amount was owed to the
Claimant/Counter-Respondent but rather the Claimant/Counter-Respondent had a debit
towards the Respondent/Counter-Claimant in the amount of EUR 1,045.61.
18.
Likewise, the DRC highlighted that the Respondent/Counter-Claimant undertook to
provide the Claimant/Counter-Respondent with “4,000 euros netto monthly” (cf. point
I.2.a) above) and, thus, the latter should have received by the termination date the
amount of EUR 26,000 net as per the contract, i.e. the remuneration from July 2010
until January 2011.
19.
On the other hand, the Chamber acknowledged that the parties agree on the fact that
the Claimant/Counter-Respondent received from the Respondent/Counter-Claimant the
amount of EUR 14,383 instead of EUR 26,000, meaning that there was a balance of
approximately EUR 12,000 against the Claimant/Counter-Respondent.
20.
In this context, the Respondent/Counter-Claimant maintains to have deducted the total
amount of EUR 10,662.53 referring to the player’s health insurance, unemployment and
social security contributions, a guarantee for equipment’s return and the fine referred
to in point I.7. above (cf. point I.12. above), which in any case does not cover the whole
balance of unpaid remuneration.
21.
The DRC further noticed that the Claimant/Counter-Respondent rejected the
Respondent/Counter-Claimant's request that the amounts referred to in point I.12.
above are to be deducted from his receivables, pointing out that the monthly salary
was agreed to be paid on a net basis (cf. point I.2.a) above), so that his social security
contributions were to be borne by the Respondent/Counter-Claimant.
22.
Likewise, the Claimant/Counter-Respondent claimed that the factual basis for a fine did
not exist, that he was prevented from exercising his right to be heard in the alleged
disciplinary proceeding against him and that he was not notified of the imposition of
any fine.
Player M, from country I / Club P, from country R
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23.
Finally, the Claimant/Counter-Respondent affirms that he did not sign the Internal
Regulations of the Respondent/Counter-Claimant. Thus, the deduction of the guarantee
for equipment’s return from his receivables was not valid either.
24.
In this context, the DRC noted that the Respondent/Counter-Claimant submitted
spreadsheets prepared by itself, which refer to deductions of 5.5% of the gross income
as health insurance contribution; 0.5% for unemployment; and 10.5% for social security
from the Claimant/Counter-Respondent’s remuneration.
25.
The Chamber further noted that, pursuant to art. III.1.(i) of the contract, the parties
stipulate that “according to the net amounts actually granted, the club has the
obligation to pay only the income tax". Therefore, in principle, only the income tax to
be paid by the Claimant/Counter-Respondent was to be borne by the
Respondent/Counter-Claimant.
26.
The Chamber, however, could not conclude that EUR 3,392.55 (cf. point I.12.a) above)
were actually deducted and paid as argued by the Respondent/Counter-Claimant. In
deciding so, the Chamber referred to art. 12 par. 6 of the Procedural Rules, according to
which the evidence shall be considered with free discretion. In the absence of any proof
other than documents produced by the Respondent/Counter-Claimant itself in order to
discharge its financial obligations towards the Claimant/Counter-Respondent, the DRC
was of the opinion that the Respondent/Counter-Claimant did not satisfactorily carry
the burden of proof regarding such discount.
27.
In connection with the allegation of the Respondent/Counter-Claimant in order to
discount EUR 1,269.98 from the Claimant/Counter-Respondent’s receivables, based on
an alleged guarantee for equipment’s return (cf. point I.12.b) above), the DRC stressed
the need for clarifying that, besides the payment of remuneration, one of the essential
obligations of a club is to provide its players with adequate training. In this sense, the
parties agreed that, in consideration of the services of the Claimant/CounterRespondent, the Respondent/Counter-Claimant undertook to “make available for the
player the adequate training and competition equipment and other materials necessary
for training” (cf. art. III.1.b) of the contract).
28.
In view of the above and especially of the obligation undertaken by the
Respondent/Counter-Claimant under the contract, the DRC see no valid reason or
justification to transfer an obligation from one contracting party to the other and then
discount an amount from the latter’s receivables. Therefore, the Chamber deemed that
the Respondent/Counter-Claimant is not entitled to set-off its debts regarding the
Claimant/Counter-Respondent’s outstanding remuneration against the alleged
guarantee for equipment’s return.
29.
Also, the DRC concurred that the fine imposed on the Claimant/Counter-Respondent by
the Respondent/Counter-Claimant (cf. point I.12.c) above) shall be disregarded since the
Respondent/Counter-Claimant did not prove any alleged unprofessional behaviour of
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the Claimant/Counter-Respondent and the total amount of the fine imposed on the
Claimant/Counter-Respondent by the Respondent/Counter-Claimant (i.e. “a sport
penalty of 25% of the financial rights due for the competition season 2010 – 2011”)
must be considered disproportionate.
30.
In this respect, the Chamber further analysed, in first place, the findings of the decision
no. 371 of the country R Professional Football League, dated 3 November 2010 and
submitted by the Respondent/Counter-Claimant, which ratified the penalty of 25% of
the financial rights due to the Claimant/Counter-Respondent for the season 2010/2011.
The DRC noted that this is the only document upon which the Respondent/CounterClaimant argues that it is entitled to discount EUR 6,000 from the Claimant/CounterRespondent’s receivables. Furthermore, the Chamber underlined that the
Claimant/Counter-Respondent also claims not to have been informed of or to have
participated in these proceedings. Thus, the allegation of the Respondent/CounterClaimant for the non-payment of the player’s remuneration cannot be upheld.
31.
In addition, and irrespective of the foregoing considerations, the DRC wished to address
the fact that the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a method to set off outstanding financial
obligations towards players.
32.
On account of the above and taking into consideration its longstanding jurisprudence
in this respect, the DRC concurred that the contract was terminated with just cause by
the Claimant/Counter-Respondent on 14 February 2011, based on the non-payment of 3
monthly salaries and, consequently, that the Respondent/Counter-Claimant is to be held
liable for the early termination of the employment relationship.
33.
Having established that the Respondent/Counter-Claimant is to be held liable for the
early termination of the contract with just cause by the Claimant/Counter-Respondent,
the Chamber focused its attention on the consequences of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the DRC decided that the
Claimant/Counter-Respondent is entitled to receive from the Respondent/CounterClaimant an amount of money as compensation for breach of contract in addition to
any outstanding payments, on the basis of the contract and the evidence submitted in
the course of this proceeding.
34.
First of all, the DRC reverted to the Claimant/Counter-Respondent's financial claim,
which includes outstanding salaries in the amount of EUR 12,000, corresponding to his
monthly remuneration of November and December 2010 and January 2011.
35.
Consequently, bearing in mind the considerations made in points II.24. to II.31. above,
the Chamber decided that the Respondent/Counter-Claimant is liable to pay the
amount of EUR 12,000 to the Claimant/Counter-Respondent.
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36.
In addition, taking into account the Claimant/Counter-Respondent’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/Counter-Respondent interest at the rate of
5% p.a. on the outstanding amount of EUR 12,000 as from 14 February 2011 until the
date of effective payment.
37.
With regard to the Claimant/Counter-Respondent’s claim for additional indemnity in
the amount of EUR 4,000, the Chamber recalled the contents of art. 18 par. 4 of the
Procedural Rules as well as to its long-standing and well-established jurisprudence,
which clearly stipulates that no procedural compensation is awarded in proceedings in
front of the Dispute Resolution Chamber. Therefore, the members of the Chamber had
no other alternative than to reject this part of the claim.
38.
With regard to the Claimant/Counter-Respondent’s request for the reimbursement of
accommodation expenses, the DRC took due note that, although the Claimant/CounterRespondent submitted proof regarding such expenses, no obligation in this regard is
established in the contract. The Respondent/Counter-Claimant undertook to provide
the Claimant/Counter-Respondent with “accommodation (…) from the available houses
of the club” (cf. point I.2.c) above). Thus, based on article 12 par. 3 of the Procedural
Rules, such request of the Claimant/Counter-Respondent cannot be sustained.
39.
On the other hand and with regard to the Claimant/Counter-Respondent’s request for
reimbursement of travel expenses, the Chamber took due note that the
Claimant/Counter-Respondent submitted satisfactory evidence in order to establish that
a one-way ticket from country R to country S costs between EUR 190 and EUR 260.
Therefore, based on article 12 par. 3 of the Procedural Rules and the obligation of the
Respondent/Counter-Claimant to provide the Claimant/Counter-Respondent with “2 fly
tickets, per year, during the holiday periods, go and return, on the relation country Rcountry S” (cf. point I.2.b) above), such request of the Claimant is sustained and the
Respondent/Counter-Claimant is order to pay to the Claimant/Counter-Respondent the
amount of EUR 200 for this concept.
40.
In continuation, the Dispute Resolution 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
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 any
other objective criteria, including, in particular, the remuneration and other benefits
due to the Claimant/Counter-Respondent 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.
41.
In application of the relevant provision, the Chamber held that, first of all, it had to
clarify as to whether the contract contains a provision by means of which the parties
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had beforehand agreed upon an amount of compensation payable by the parties in the
event of breach of contract. In this regard, the DRC established that no such
compensation clause was included in the contract.
42.
As a consequence, the Dispute Resolution Chamber determined that the amount of
compensation payable by the Respondent/Counter-Claimant to the Claimant/CounterRespondent had to be assessed in application of the other parameters set out in art. 17
par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of payable compensation.
43.
Bearing in mind the foregoing as well as the claim of the Claimant/Counter-Respondent
(cf. point I.6. above) and also the allegation of the Respondent/Counter-Claimant (cf.
point I.11. above), the DRC proceeded with the calculation of the amount payable to
the Claimant/Counter-Respondent under the terms of the contract until 15 June 2011,
as per its Article V (cf. point I.3.d) above). Accordingly, the members of the Dispute
Resolution Chamber concluded that the amount of EUR 18,000 (i.e. salary as from
February 2011 until 15 June 2011 under the contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
44.
In continuation, the Dispute Resolution Chamber verified as to whether the
Claimant/Counter-Respondent had signed an employment contract with another club
during the relevant period of time, by means of which he would have been able 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/Counter-Respondent’s general obligation to mitigate his damages.
45.
The Claimant/Counter-Respondent, however, only signed a new employment contract
with the Club A, from country C, on 16 June 2011, after the expiry of the contract as per
its art. V. This, no deductions were to be made to the amount established in point II.43.
above as the residual value of the contract.
46.
In this respect and bearing in mind all of the above-mentioned considerations and the
specificities of the case at hand, the DRC decided that the Respondent/CounterClaimant must pay the amount of EUR 18,000 to the Claimant/Counter-Respondent,
which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter, in addition to the amount of EUR 12,000 as
outstanding remuneration (cf. point II.35. above) and EUR 200 as reimbursement of
travel expenses (cf. point II.39. above).
47.
In addition, taking into account the Claimant/Counter-Respondent’s request, the
Chamber concluded that the Respondent/Counter-Claimant must pay to the
Claimant/Counter-Respondent interest of 5% p.a. on the amount of compensation as
from the date of the claim, i.e. 14 March 2011, until the date of effective payment.
Player M, from country I / Club P, from country R
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48.
In conclusion, the Dispute Resolution Chamber decided that the Respondent/CounterClaimant has to pay EUR 12,000 and EUR 200 to the Claimant/Counter-Respondent
relating to outstanding remuneration and reimbursement of travel expenses, as well as
EUR 18,000 as compensation for the unjustified breach of contract by the
Respondent/Counter-Claimant.
49.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant/Counter-Respondent is
rejected and that the counterclaim of the Respondent/Counter-Claimant is also rejected
since the latter breached the contract by not paying three monthly remunerations to
the Claimant/Counter-Respondent, as described in the foregoing considerations.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player M, is admissible.
2.
The claim of the Claimant/Counter-Respondent is partially accepted.
3.
The Respondent/Counter-Claimant, Club P, is ordered to pay to the Claimant/CounterRespondent outstanding remuneration in the amount of EUR 12,000, plus 5% interest
p.a. as from 14 February 2011 until the date of effective payment, within 30 days as
from the date of notification of this decision.
4.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent the reimbursement of a flight ticket in the amount of EUR 200, within 30
days as from the date of notification of this decision.
5.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent compensation in the amount of EUR 18,000, plus 5% interest p.a. as from
14 March 2011 until the date of effective payment, within 30 days as from the date of
notification of this decision.
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, interest at the rate of 5%
p.a. will fall due on the amount referred to in number 4. above as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
7.
Any further claims lodged by the Claimant/Counter-Respondent are rejected.
8.
The counterclaim of the Respondent/Counter-Claimant is rejected.
9.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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.
*****
Player M, from country I / Club P, from country R
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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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player M, from country I / Club P, from country R
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