Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 August 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Johan van Gaalen (South Africa), member
Todd Durbin (USA), member
Zola Percival Majavu (South Africa), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 2 July 2014, the player from country B, Player A (hereinafter: the Claimant),
born on 6 October 1986, and the club from country D, Club C (hereinafter: the
Respondent) signed an employment contract (hereinafter: the contract) valid
as from 18 July 2014 until 31 May 2017.
2.
In accordance with the contract, the Claimant was entitled inter alia to the
following monthly remuneration:
From July 2014 to 30 November 2014, a monthly amount of 670,000;
From 1 December 2014 to 30 June 2015, a monthly amount of 750,000;
From 1 July 2015 to 31 May 2017, a monthly amount of 835,000.
3.
Moreover, the contract established that the Claimant might be entitled to
bonuses in relation to his performance in accordance with “local normative
acts” and other internal documents of the Respondent.
4.
In accordance with art. 7 of the contract, both parties have the right to
conclude, amend and terminate the contract under the conditions set out in
the Labour Code of country D, other federal laws, as well as statutory
regulations and documents of FIFA, UEFA, the Football Union of country D, the
Premier League of country D and the Football National League of country D.
5.
Art. 17 of the contract established that the termination of the contract “shall
be on the basis provided for by the current legislation of the Football
Federation of country D”.
6.
According to art. 17 par. 3 of the contract, in case the Respondent decides to
terminate the contract prematurely, the Respondent shall pay the Claimant as
compensation for the early termination an amount corresponding to three
salaries.
7.
According to art. 17 par. 5 of the contract, “if the results of the sports seasons
2014-2015 or 2015-2016 [the Respondent] will leave, [the Respondent] shall
have the right, but not earlier than 1 June 2015 (for the 2014-2015 season) or
not earlier than 1 June 2016 (for the 2015-2016 season), to terminate the
contract unilaterally without the use in relation to [the Respondent] of any
sanctions, including sanctions of a financial nature”.
8.
Furthermore, in accordance with art. 18 of the contract, in the event of an
early termination of the contract by the Claimant, without just cause, as well
as in the event of an early termination by the Respondent, “on assumptions
Player A, country B / Club C, country D
2/16
which belong to disciplinary penalties”, the Claimant shall pay the
Respondent, within one month from the date of termination, a cash payment
of 20,000,000. This article established that if the Claimant pays this amount,
sanctions are not applicable to him.
9.
The contract, in its art. 8, stipulated that the payment of remuneration is
determined by the annex.
10.
On the same date, i.e. 2 July 2014, the Claimant and the Respondent signed an
annex to the contract (hereinafter: the annex), which confirms the salary
payments detailed in point 2. above and established that the Claimant is
entitled to receive inter alia the following bonus payments:
The Claimant shall be paid an additional remuneration for each win of
the Respondent, provided that he played at least for 45 minutes,
determined on the basis of statistics of the Football Union of country D
and Premier League of country D, as follows:
-
Per win during the “2014-2016” season: 250,000;
-
Per win during the 2016-2017 season: 330,000.
The Claimant shall be paid an additional remuneration for each draw of
the Respondent, provided that he played at least for 45 minutes,
determined on the basis of statistics of the Football Union of country D
and Premier League of country D, as follows:
-
Per draw during the “2014-2016” season: 125,000;
-
Per draw during the 2016-2017 season: 165,000.
11.
The annex stipulated that the bonus payments referred in point 10. above are
payable “every month within 30 days of the month following the month of
the successful matches”.
12.
According to art. 4 of the annex, all kinds of payments to the Claimant shall be
made with deducted income tax, in accordance with the applicable laws of
country D.
13.
On 18 July 2014, the Claimant and the Respondent signed a second annex to
the contract (hereinafter: the second annex), which granted a sign-on fee to
the Claimant of 350,000, payable on 29 August 2014.
Player A, country B / Club C, country D
3/16
14.
On 27 August 2015, the Claimant lodged a claim against the Respondent
before FIFA for outstanding remuneration and breach of contract without just
cause, requesting the amount of 20,820,125.50, composed as follows:
1,615,125.80 as outstanding remuneration corresponding to the
following remuneration:
-
8,783.29 as partial remuneration for the salary of December
2014;
-
147,373.57 as match bonuses for December 2014;
-
91,323 as partial remuneration for the month of January 2015;
-
91,323 as partial remuneration for the month of February 2015;
-
91,323 as partial remuneration for the month of March 2015;
-
750,000 as remuneration for the month of April 2015;
-
435,000 as match bonuses for March and April “2014“;
-
The Claimant requested interest as from the date of claim in
respect to the concept of outstanding remuneration.
19,205,000,000 as compensation for breach of contract, for the time
frame from July 2015 until May 2017, corresponding to 1 monthly salary
payment of 750,000 for the month of July 2015 and 23 instalments of
835,000.
15.
According to the Claimant, the Respondent had not been paying his salary on
time and in the correct amounts.
16.
In consequence, the Claimant affirmed that, on 13 April 2015, he sent a letter
to the Respondent in which he put the Respondent in default, requesting the
payment of 2,503,955.70, corresponding to the following amounts:
8,783.29 gross as partial remuneration for the salary of December 2014;
750,000 gross as remuneration for the month of January 2015;
750,000 gross as remuneration for the month of February 2015;
750,000 gross as remuneration for the month of March 2015;
Player A, country B / Club C, country D
4/16
245,172.41 gross as match bonuses for December 2014.
17.
Furthermore, the Claimant gave 3 days to the Respondent to settle the alleged
debt, emphasizing that otherwise he would start proceedings before FIFA’s
Dispute Resolution Chamber.
18.
On 20 April 2015, the Claimant terminated the contract in writing, stressing
that the Respondent failed to pay him the amounts requested previously.
19.
Subsequently, the Claimant held that he sent several requests for payment to
the Respondent, namely on 15 May 2015, 25 May 2015, 1 June 2015, 8 June
2015 and 17 June 2015. Moreover, the Claimant enclosed a further request
dated 6 July 2015, which he did not mention in his claim.
20.
In this regard, the Claimant sustained that he did not receive a response from
the Respondent in connection to his communications.
21.
The Claimant argued that the non-payment of his remuneration should be
treated as a gross violation of the contract, which made him lose the possibility
to receive the future salaries as established in the mentioned contract.
22.
In its reply, the Respondent rejected the Claimant’s claim. First, it stated that it
tried to pay the outstanding salaries, as far as it was possible. According to its
calculation, the Claimant’s request for outstanding remuneration should
amount to 1,405,159 after tax deduction. In this respect, the Respondent held
that the personal income tax rate in country D equals 13%.
23.
The Respondent held that according to its internal calculations, it owed the
Claimant as outstanding remuneration 1,237,583. Moreover, the Respondent
held that it paid this amount, first, with a payment of 1,000,000, on 28
December 2015 and then with a second payment of 237,583, on 26 February
2016 The Respondent declared that these payments were done on its behalf by
third parties.
24.
Moreover, the Respondent sustained that the Claimant’s calculation in respect
to his salaries is wrong held that the amount the player was supposed to
receive from December 2014 until the date of termination, including salaries
and bonus payments, was 4,377,361 gross, i.e. 3,808,304 net.
25.
Subsequently, the Respondent explained that since December 2014, it has paid
the Claimant 4,349,041, which is more than what the Claimant was supposed
to receive. The Respondent held that it acted in good faith and paid the
Claimant outstanding salary to the possible extent and that up to this date,
there is no outstanding remuneration. In this respect, the Respondent
explained its payments according to the following table:
Player A, country B / Club C, country D
5/16
Date of payment
26.
22.01.2015
Amount
in
the
currency of country
D
150,000
23.01.2015
132,900
03.03.2015
322,429
06.03.2015
322,429
06.04.2015
50,000
09.04.2015
300,000
27.05.2015
582,900
27.05.2015
582,900
22.05.2015
85,000
29.05.2015
582,900
28.12.2015
1,000,000
26.02.2016
237,583
Total:
4,349,041
According
to
evidence
enclosed, payment refers to
salary or bonuses
Payment refers to Salary:
“Remuneration
for
November 2014”
Payment refers to Salary:
“Remuneration
for
November 2014”
Payment refers to Salary:
“Remuneration,
vacation
payments
for
December
2014”
Payment refers to Salary:
“Remuneration,
vacation
payments
for
December
2014”
Payment refers to Bonuses:
“Bonuces for 2014”
Payment refers to Bonuses:
“Bonuces for 2014”
Payment refers to Salary:
“Remuneration for January
2015”
Payment refers to Salary:
“Remuneration for February
2015”
Payment refers to Bonuses:
“Bonuces for 2014”
Payment refers to Salary:
“Remuneration for March
2015”
Payment refers to Salary:
“Remuneration for April
2015”
Payment refers to Salary:
“Remuneration for April,
May and June 2015”
With respect to the Claimant’s claim for compensation for breach of contract,
the Respondent held that in its opinion, it should not pay any compensation
Player A, country B / Club C, country D
6/16
for the early termination of the contract, as it was the Claimant’s will to
terminate said contract due to the financial difficulties of the Respondent.
27.
The Respondent referred to art. 17 par. 5 of the contract and explained that as
it was relegated from the top division at the end of the season 2014/2015, the
contract had to be terminated anyway.
28.
In addition, the Respondent declared that if FIFA’s Dispute Resolution
Chamber decides that the Claimant is entitled to compensation for breach of
contract, it doubted that the amount requested by the Claimant is adequate
and proportionate. Furthermore, it sustained that in accordance with art. 17
par. 3 of the contract, the parties had already agreed the payable
compensation in case of termination without just cause by the Respondent,
which should only amount to 3 salaries at the time of termination. In
consequence, the Respondent sustained that the amount of compensation
cannot exceed 2,250,000 gross, i.e. 1,957,500 net. The Respondent referred to
decisions from both FIFA’s Dispute Resolution Chamber and CAS to support its
argument.
29.
Subsequently, the Respondent highlighted that the breach of the contract by
the Respondent was not fraudulent, and that it was due to some financial
difficulties, which caused the club to be relegated to the third division in
country D.
30.
Finally, the Respondent requested that either FIFA’s Dispute Resolution
Chamber decides that no compensation is payable to the Claimant, or in case
compensation is granted, it does not exceed the amount of 1,957,500 net.
31.
The Claimant submitted his replica, in which he held that the Respondent
confirmed that he was entitled to terminate the contract with just cause, and
therefore, he is entitled to compensation.
32.
Furthermore, the Claimant confirmed that the payments detailed by the
Respondent in its reply to the claim were made, however he explained that he
does not know which amount applies to which debt, so he could not decide
which part of his claim should be withdrawn. The Claimant further explained
that the Respondent’s calculations do not cover the interest that has accrued.
33.
The Claimant held that art. 17 par. 5 of the contract is irrelevant to this matter
as the Respondent did not terminate the contract.
34.
Finally, the Claimant sustained that the compensation for breach of contract
should be calculated in accordance with the “general rules of FIFA”, as
according to him, the limitation of compensation that the Respondent referred
to in its reply, is not applicable as such limitation only applies if the
Player A, country B / Club C, country D
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Respondent terminates the contract, which did not happen in the matter at
hand.
35.
The Respondent submitted its duplica, where it reiterated its position. The
Respondent further argued that there is no formal difference between breach
of contract without just cause by it or termination of contract with just cause
by the Claimant. The Respondent insisted that in fact art. 17 par. 3 of the
contract is applicable to the matter at hand, as it consists in a liquidated
damages clause which establishes the amount payable to the Claimant in case
of breach of contract by the Respondent and which should be respected by
FIFA’s Dispute Resolution Chamber in accordance with the general legal
principle of pacta sunt servanda.
36.
Therefore, the Respondent reiterated its request to either not grant
compensation to the Claimant, or in case compensation is granted, that it does
not exceed the amount of 1,957,500 net, as stipulated in the contract
according to the Respondent.
37.
Moreover, the Claimant confirmed that, on 2 July 2015, he signed a contract
with the club from country B, Club E, valid until 30 June 2017, according to
which he is entitled to receive a monthly salary of 5,000,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, the DRC took note that the present matter was
submitted to FIFA on 27 August 2015. Consequently, the Chamber concluded
that the 2015 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2015
editions of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition 2016) the DRC is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from
country B and a club from country D.
3.
The competence of the Chamber having been established, the Chamber
analysed which edition of the Regulations on the Status and Transfer of
Players 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 2015 and 2016), and considering
Player A, country B / Club C, country D
8/16
that the present matter was submitted to FIFA on 27 August 2015, the 2015
edition of the aforementioned regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
Having established the foregoing, and entering into the substance of the
matter, the Chamber continued by acknowledging the above-mentioned facts
as well as the documentation contained in the file in relation to the substance
of the matter. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
evidence which it considered for the assessment of the matter at hand.
5.
In this respect, the DRC acknowledged that the parties signed an employment
contract on 2 July 2014, valid as from 18 July 2014 until 31 May 2017. The DRC
noted that according to the contract, the Claimant was entitled to receive,
inter alia, a monthly amount of 670,000, for the time period between July
2014 and 30 November 2014, a monthly amount of 750,000, for the time
period between 1 December 2014 and 30 June 2015, and a monthly amount of
835,000 for the time period between 1 July 2015 and 31 May 2017. The DRC
further noted that no due date for payment of the monthly remuneration is
established in the contract.
6.
Moreover, the Chamber also took note that the parties signed the annex on 2
July 2014, which established that the payment of remuneration is determined
by this document, and according to which all payments to the Claimant shall
be made with deducted income tax, in accordance with the applicable laws of
country D. Moreover, the annex confirmed the monthly salary payment to the
Claimant as established in the contract, and further stipulated that the
Respondent undertook to pay to the Claimant, inter alia, bonus payments
which are payable “every month within 30 days of the month following the
month of the successful matches”, as follows:
Additional remuneration for each win of the Respondent, provided that
the Claimant played at least for 45 minutes, determined on the basis of
statistics of the Football Union of country D and Premier League of
country D, as follows:
-
Per win during the “2014-2016” season: 250,000;
Per win during the 2016-2017 season: 330,000.
Additional remuneration for each draw of the Respondent, provided
that the Claimant played at least for 45 minutes, determined on the
basis of statistics of the Football Union of country D and Premier League
of country D, as follows:
-
Per draw during the “2014-2016” season: 125,000;
Player A, country B / Club C, country D
9/16
-
Per draw during the 2016-2017 season: 165,000.
7.
The Chamber further observed that the Claimant had lodged a claim before
FIFA against the Respondent seeking payment in the total amount of
20,820,125.50, corresponding to outstanding remuneration for the months of
December 2014 until April 2015, outstanding match bonuses for the months of
December 2014, and March and April, according to the Claimant, “2014” as
well as compensation for breach of contract.
8.
In this respect, the Chamber paid due consideration to the fact that on 13 April
2015, the Claimant put the club in default of payment of the total amount of
2,503,955.70, and requested the payment of alleged outstanding
remuneration corresponding to the partial unpaid salary for the month of
December 2014 of 8,783.29, alleged unpaid salaries of January until March
2015, in the amount of 750,000, each, and alleged unpaid match bonuses for
December 2014 in the amount of 245,172.41. In this respect, the DRC observed
that the Claimant gave the Respondent a 3 days deadline to settle the alleged
debt, informing it that otherwise he would initiate proceedings before the
DRC.
9.
Subsequently, it was duly noted by the DRC that on 20 April 2015, the
Claimant terminated the contractual relationship, based on the Respondent’s
alleged failure to settle the debt. In addition, the DRC noted that the Claimant
sustained having sent several requests for payments to the Respondent after
this date, which according to the Claimant, remained unanswered. The
Respondent, on its part, did not contest having received these requests and
that they remained unanswered.
10.
Furthermore, the Chamber noted that, on the other hand, the Respondent
argued that the Claimant did not have just cause to terminate the contract. In
this regard, the members of the Chamber observed that the Respondent
acknowledged not having paid some amounts to the Claimant at the moment
of the termination of the contract, while explaining that it had some financial
difficulties, but that, nevertheless, it tried to comply with its financial
obligations towards the Claimant as far as it was possible. Moreover, it was
further observed that the Respondent provided an overview of payments to
the Claimant, along with enclosed evidence of said payments, for the time
period between January 2015 and February 2016. The DRC duly observed that
the Respondent maintained that it should not be held liable to pay any
compensation as it was the Claimant’s will to terminate the contract due to its
financial difficulties.
11.
Moreover, the DRC took note that the Claimant recognized having received
the payments alleged by the Respondent. However, the members of the
Chamber took note of the Claimant’s allegation to have had just cause to
Player A, country B / Club C, country D
10/16
terminate the contract, due to the Respondent’s alleged lack of payment of a
substantial amount at the time of the termination of the contract and that
thus, the latter is to be held liable for the payment of compensation for breach
of contract.
12.
Having established the aforementioned, the Chamber concluded that the
underlying issue in this dispute was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the
Claimant and which party was responsible for the early termination of the
contractual relationship in question.
13.
In this respect, the DRC concluded that, as it had been uncontested by the
parties that the Claimant prematurely terminated the employment contract on
20 April 2015 by means of a termination notice, in order to correctly assess if
said termination was with or without just cause, the DRC had to calculate the
outstanding remuneration, specifically the salary remuneration, due to the
Claimant by the time he terminated the contract. The DRC emphasised, once
again, that the payments allegedly made by the Respondent were not
contested by the Claimant.
14.
In light of the above, the DRC analysed the salary remuneration due in
accordance with the contract, and confirmed by the annex, for the period
between December 2014 and March 2015, and proceeded to compare it with
the amounts paid by the Respondent during that period, on the basis of the
payment receipts provided by the Respondent to support its allegations.
15.
In this context, the Chamber observed that the Claimant was entitled to
3,000,000 in salaries between December 2014 and March 2015, in accordance
with the contract. Subsequently, the DRC observed that the Respondent
provided evidence of payment, albeit on seemingly random dates and not
corresponding to the contractual stipulations agreed by the parties, of
1,277,758 during this period of time. At this point, the Chamber analysed the
payment receipts provided by the Respondent for this time frame, and
highlighted that in accordance with said payments, 927,758 relate to salaries
and 350,000 relate to bonuses.
16.
In continuation, considering the salary remuneration due to the Claimant
during the mentioned time frame of December 2014 until March 2015, there is
a discrepancy between the salary amounts in accordance with the contract for
said time frame and the payment receipts provided by the Respondent, related
to salaries that cover said period, of 2,072,242. This amount corresponds to
almost 3 monthly salaries.
17.
Moreover, the members of the DRC turned their attention to the assertion of
the Respondent that a tax deduction corresponding to personal income tax at
Player A, country B / Club C, country D
11/16
the rate of 13% should apply to payments to the Claimant. In this respect, the
DRC recalled the contents of art. 12 par. 3 and par. 6 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, and took note that the Respondent did not
submit any evidence of any such deduction for the payments made in the past
and did not submit any evidence of payment of these taxes to the relevant tax
authorities. Moreover, the DRC observed that there is no clear contractual
clause that established, without doubt, which is the rate of this taxation and
therefore, concluded that such reasoning could not be followed, and in
consequence, the amounts due to the Claimant in accordance with the
contract have to be assumed as net amounts.
18.
Having said that, the Chamber reiterated that until the date of termination, an
amount of 2,072,242, which corresponds to almost 3 monthly salaries,
remained outstanding.
19.
On account of the aforementioned, the Chamber decided that, considering
that the Respondent had repeatedly and for a significant period of time been
in breach of its contractual obligations towards the Claimant, the latter had
just cause to unilaterally terminate the employment contract on 20 April 2015
and that, as a result, the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant.
20.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the Chamber focused its attention on
the consequences of such termination. Taking into consideration art. 17 par. 1
of the Regulations, the Chamber decided that the Claimant is entitled to
receive from the Respondent an amount of money as compensation for breach
of contract in addition to any outstanding payments on the basis of the
relevant employment contract.
21.
First, the members of the Chamber recalled that the Respondent sustained that
there is no outstanding remuneration, as the corresponding amounts were
paid to the Claimant. Furthermore, taking into account the documentation
presented by the Claimant in support of his petition, the DRC concluded that
the Claimant had not fully substantiated his claim with pertinent documentary
evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is,
there is no supporting documentation relating to the Claimant’s claim
pertaining to outstanding bonuses. Consequently, the DRC decided to reject
this part of the Claimant’s claim.
22.
Therefore, in order to properly assess the Respondent’s allegation, the
Chamber analyzed the evidence of payment provided by the Respondent in
respect to salary, specifically the payments made by the Respondent after the
date of termination of the contract i.e. 20 April 2015, and recalled that it has
Player A, country B / Club C, country D
12/16
been established that at the moment of termination an amount of 2,072,242
remained outstanding. In this respect, the members of the Chamber noted that
the Respondent made six payments to the Claimant after the termination of
the contract, from which three refer to salaries due before the termination.
These three payments made by the Respondent equal 1,748,700. The DRC
concluded that it must then deduct said amount from the amount established
as outstanding at the time of termination, i.e. 2,072,242, which leaves a
balance of 323,542 in salaries to be paid to the Claimant.
23.
Furthermore, it was duly observed by the Chamber that the Respondent paid
an amount of 1,000,000 by the end of December 2015, and 237,583 on 26
February 2016. Consequently, there is no outstanding salary to be paid to the
Claimant, and in fact, taking into account the amounts paid, there is a balance
in favor of the Respondent in the amount of 914,041. However, the Chamber
concurred that the Respondent must have had fulfilled its obligations as per
the contract, in accordance with the general legal principle of pacta sunt
servanda, and consequently, the Chamber decided that the Respondent is
liable to pay to the Claimant only interest for late payment on the amount of
323,542, as from the date of the claim, i.e. 27 August 2015, as requested by the
Claimant, until 28 December 2015, date on which the Respondent covered the
outstanding salaries due before the termination of the contract, calculated as
5,451.46.
24.
In continuation, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Respondent compensation for breach of contract in addition to any
outstanding salaries on the basis of the relevant employment contract.
25.
In this context, the Chamber outlined that, in accordance with said provision,
the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including, in particular, the remuneration and other
benefits due to the player under the existing contract and/or the new contract,
the time remaining on the existing contract up to a maximum of five years,
and depending on whether the contractual breach falls within the protected
period.
26.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent contracts contain a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. In this respect, the DRC took note that the Respondent sustained that
in accordance with art. 17 par. 3 of the contract, the parties had already
agreed the payable compensation in case of termination without just cause by
Player A, country B / Club C, country D
13/16
the Respondent, which should only amount to 3 monthly salaries at the time
of termination.
27.
The members of the Chamber recalled that art. 17 par. 3 of the contract
established that in case the Respondent decides to terminate the contract
prematurely, the Respondent shall pay the Claimant as compensation for the
early termination an amount corresponding to three salaries. Furthermore, the
DRC observed that art. 18 of the contract established that in the event of an
early termination of the contract by the Claimant, without just cause, as well
as in the event of an early termination by the Respondent, “on assumptions
which belong to disciplinary penalties”, the Claimant shall pay the
Respondent, within one month from the date of termination, a cash payment
of 20,000,000.
28.
In this respect, the members of the Chamber agreed that there is no
contractual stipulation in the contract that foresees the consequences of a
termination by the Claimant with just cause, and therefore, neither of the
abovementioned clauses can be applied to the matter at hand and cannot be
taken into consideration in the determination of the amount of compensation.
29.
As a consequence, the members of 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 Chamber recalled that said provision provides for a nonexhaustive remuneration of criteria to be taken into consideration when
calculating the amount of compensation payable.
30.
Having recalled the aforementioned, 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, along with his professional situation after the early
termination occurred. Bearing in mind the foregoing as well as the claim of
the Claimant, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the contract until 31 May 2017. In
this regard, the members of the Chamber concluded that this amount is
21,455,000 (i.e. salary as from April 2015 until May 2017 under the contract).
Furthermore, the Chamber recalled that taking into account the payments
made by the Respondent, there is a balance in favour of it of 914,041.
Consequently, 20,540,959 serves as the basis for the determination of the
amount of compensation for breach of contract.
31.
In continuation, the Chamber remarked that, as confirmed by the Claimant,
following the early termination of the employment contract at the basis of the
present dispute, on 2 July 2015, the Claimant signed an employment contract
with the club from country B, Club E, valid until 30 June 2017, in accordance
Player A, country B / Club C, country D
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with which the player was to receive a monthly salary of 5,000,000,
corresponding to 80,300. Therefore, the Chamber established that the value of
the new employment contract concluded between the Claimant and the new
club for the period as from July 2015 until and including May 2017 amounted
to 1,846,900. 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 18,690,959 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.
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 C, has to pay to the Claimant interest for late payment
in the amount of 5,451.46, within 30 days as from the date of notification of
this decision.
3.
The Respondent has to pay to the Claimant compensation for breach of
contract in the amount of 18,690,959, within 30 days as from the date of
notification of this decision.
4.
In the event that the amount due to the Claimant in accordance with the
above-mentioned number 3. is not paid by the Respondent within the stated
time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
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 remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Player A, country B / Club C, country D
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Note relating to the motivated decision (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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