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), 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
between the parties
I.
Facts of the case
1.
On 21 June 2011, the Player A from country B (hereinafter: the player) and the
Club C from country D (hereinafter: the club) signed an employment contract,
valid as from 21 June 2011 until 20 June 2016 (hereinafter: the contract).
2.
According to the contract, the player was entitled to receive, inter alia, the
following amounts, due on the 10th day of the following month:
In the period between 21 June 2011 and 30 June 2011:
a salary, payable in the currency of country D, in an amount equivalent to EUR
5,666.66;
In the period between 1 July 2011 and 30 June 2012:
a yearly salary of EUR 204,000, payable in 12 monthly instalments and in the
currency of country D, in an amount equivalent to EUR 17,000;
In the period between 1 July 2012 and 30 June 2013:
a yearly salary of EUR 216,000, payable in 12 monthly instalments and in the
currency of country D, in an amount equivalent to EUR 18,000;
In the period between 1 July 2013 and 30 June 2014:
a yearly salary of EUR 228,000, payable in 12 monthly instalments and in the
currency of country D, in an amount equivalent to EUR 19,000;
In the period between 1 July 2014 and 30 June 2015:
a yearly salary of EUR 240,000, payable in 12 monthly instalments and in the
currency of country D, in an amount equivalent to EUR 20,000;
In the period between 1 July 2015 and 20 June 2016:
a yearly salary of EUR 245,000, payable in eleven monthly instalments, in the
currency of country D, in an amount equivalent to EUR 21,000, plus (for the
month of June 2016) one instalment, in the currency of country D, in an
amount equivalent to EUR 14,000.
Furthermore, article 4 par 1. letter e. of the contract stipulates that the club shall
‘provide medical care to the player’.
3.
Article 5.7 of the contract stipulates the following: ‘During the period of injury or
illness confirmed by doctor’s certificate and disabling the player and preventing
his participation in the championships, provided that the Player meets the
conditions for obtaining social security benefits, he is not entitled to the
remuneration proportionate to the period of being absent and not rendering his
services to the club. In such case the Player is entitled to a social security benefit
and a supplementary benefit from Club C calculated on a difference between the
basic remuneration of the Player defined by §5 p. 1 let. A of this Agreement and
the benefit obtained by social security’.
Player A, country B / Club C, country D
Page 2 of 18
4.
Article 7 par. 2 of the contract provides for the following clause: ‘The Parties state
that they are familiar with laws regulating the relations between a sport club and
a professional Player adopted by virtue of Act no. II/12 from May 19th, 2002 of the
Football Association Board of country D and which are an integral part of the
Agreement’. Furthermore, article 7 par 3. of the contract provides for the
following: ‘In matters not regulated by this Agreement, provisions of Civil Code
shall apply’ and article 7 par. 4 of the contract stipulates: ‘Subject to provisions in
Clause 3 paragraph 3, any disputes arising from the execution of this agreement
shall be settled amicably, and in cases of a lack of agreement, will be settled by a
court proper for the jurisdiction of Club C except when valid law regulations
stipulate others as an exclusive proper for the jurisdiction’.
5.
Additionally, article 7 par. 6 contains the following clause: ‘The Agreement is
bilingual, written in the language of country D and English language versions. In
case of any doubts and interpretation problems between those two versions, the
country D’s language version shall apply. Moreover, each party has the right to
refer the matter in question to the FIFA’s Players Status Committee or FIFA’s
Dispute Resolution Chamber’.
6.
According to the player, on 13 January 2015, the club unilaterally terminated his
contract, because after several medical examinations it turned out that the player
had a heart disease.
7.
On 30 March 2015, the player lodged a claim before FIFA against the club,
claiming outstanding remuneration and compensation for breach of contract, in
the total amounts of EUR 357,628 and CHF 6,392.55, broken down as follows:
Outstanding remuneration in the amount of EUR 370, as follows:
EUR 370 as unpaid part of the salary for the month of July 2014;
Compensation for breach of contract in the amount of EUR 357,258, as follows:
EUR 12,258 as remaining value of the contract in the month of January 2015;
EUR 100,000 as remaining value of the contract in the period between February
2015 and June 2015;
EUR 245,000 as remaining value of the contract in the period between July 2015
and June 2016.
Furthermore, the player requested the amount of CHF 6,392.55 as ‘medical checkup costs insurance incl.’, as well as 5% interest p.a. on all requested amounts, as
from 13 January 2015 until the date of effective payment.
Player A, country B / Club C, country D
Page 3 of 18
8.
In his claim, the player explains that the club was always late with its payments
and as from the season 2013/2014 (i.e. the period between 1 July 2013 until 30
June 2014), several amounts remained outstanding.
9.
Furthermore, the player states that on 10 January 2014, during a ‘routine medical
check-up’, the medical staff diagnosed ‘water around the heart’ of the player.
Afterwards, the player had a second opinion in a hospital in city E (country B),
paid on a 50%-50% basis by the club and the player, as well as a further check-up
at the ‘Universitätsspital’ in Basel (Switzerland) (hereinafter: Universitätsspital).
10.
According to the player, the medical staff of the Universitätsspital concluded that
the player suffered of a virus, but was ‘declared ready for trainings’. Furthermore,
the player holds that in March 2014, he participated in trainings and was once
called-up for a match of the club.
11.
The player states that in April 2014, ’the doctors in country D’ found an increased
volume of water around his heart and advised the player to reduce his trainings.
At the end of April 2014, according to the player, the Universitätsspital made a
final diagnose, explaining that the player suffered of ‘sarcoidosis of the lung’,
which would heal by itself. As a result, the player was declared ‘safe and ready for
trainings’ by the Universitätsspital.
12.
Furthermore, the player holds that in May 2014, he was sent by the club to the
clinic of country D ‘Hospital F’ (hereinafter: Hospital F) and the Hospital G
(hereinafter: Hospital G) in country D, where a small change at the heart was
diagnosed. The Hospital G gave the player ‘a green light for trainings’, however
asked the Hospital F to issue a final report and to make a decision about the
continuation of the trainings. The player further states that he continued to
participate in daily trainings of the club until June 2014.
13.
In addition, in July 2014 the player allegedly joined the first team of the club ‘for
preparation’, however he was not allowed to train with the first team, because
the club wanted him to wait for the outcome of a check-up in the Hospital F. As a
result, the player could not train in the period as from July 2014 until September
2014.
14.
Further, the club sent the examinations and diagnosis to the Universitätsspital and
requested for an opinion about the latest examinations. According to the player,
on 26 September 2014, the Universitätsspital concluded that the player ‘can
resume full professional sports activity’. According to the player, on 20 October
2014, the club requested him to go again to the Hospital F, for a check-up.
According to the player, the results of this check-up ‘were better than the
Player A, country B / Club C, country D
Page 4 of 18
previous ones’ and his medical situation was improving. The Hospital F however
advised the player that practising sport was ‘contraindicated’ and advised for a
new check-up in six months.
15.
In this respect, the player holds that he was not allowed by the club to train for
another six months, despite the allowance of the Universitätsspital and the fact
that the Hospital F only advised him not to train, however not explicitly forbid
this.
16.
Moreover, the player holds that the club tried to renegotiate the conditions of
the contract, as well as that it failed to pay him the salaries for the period
between May 2014 and November 2014. After the player asked the club to pay
him these salaries, he received the salary for May 2014 and a part of the salary for
June 2014.
17.
On 9 January 2015, the player asked the club whether he was obliged to join the
team training. The players states that the club informed him ‘that there was no
need to come, due to the still existing non-allowance for trainings’.
18.
Additionally, on 9 January and 12 January 2015, the club paid the player almost
the whole amount of outstanding salaries for the period between June 2014 and
12 January 2015. According to the player, only the amount of EUR 370 as part of
the salary for July 2014 remained outstanding on 12 January 2015.
19.
On 13 January 2015, the player received a letter from the club, by means of which
it unilaterally terminated the contract. In this letter, the club holds that it was not
foreseeable when the player would be able to play ‘high-performance sport’
again and that as a result, it was terminating the contract. The player holds that
said termination was based thus on his alleged ‘permanent disease’.
20.
The player argues to have contested the unilateral termination of the contract,
however that on 23 January 2015, he received a reply from the club, in which it
insisted on the unilateral termination of the contract.
21.
Moreover, the player holds that on 3 February 2015, he was declared medically fit
by the Universitätsspital and that he could resume ‘full professional sport activity’.
According to the player, he informed the club about these circumstances, but
never received a reply from the club.
22.
In its reply to the claim of the player, the club contested FIFA’s competence to
deal with the matter at hand and argued that the Football Arbitration Tribunal of
Player A, country B / Club C, country D
Page 5 of 18
the Football Association of country D in city H and/or the DRC of country D
(hereinafter: the NDRC of country D) are competent in said matter.
23.
The club holds that article 7 par. 2 of the contract provides for the application of
the resolution of the FA of country D dated 19 May 2002, which resolution
provides for the competence of the Football Arbitration Tribunal of country D.
Moreover, the club argues that the Football Arbitration Tribunal of country D
meets the criteria of an independent tribunal as per article 22 of the FIFA
Regulations and further holds that the clause in article 7 par. 6 of the contract
cannot be considered as ‘a arbitration clause for the benefit of the DRC as it says
only about the taking opinion over bilingual counterparts of the Contract’. In
addition, the club stated that also the DRC of country D can be taken into account
as an independent tribunal as mentioned in article 22 of the FIFA Regulations.
24.
Furthermore, the club holds that based on the contents of the contract, the law of
country D is applicable in the matter at hand.
25.
As to the substance, the club states that it remains uncontested that the player
was diagnosed with a serious disease during the validity of the contract. In this
respect, the club argues that every six months, the player underwent medical
examinations and that it was established that the ‘serious illness’ of the player
started in January 2014.
26.
According to the club, on 10 January 2014 and in June 2014, the club’s doctor, Dr
I, confirmed that the player could not carry out ‘professional sport activity’. A
medical expert of the Hospital F, Dr J (on 30 October 2014), as well as another
examination of Dr I (on 18 November 2014), confirmed this diagnosis. The club
further holds that it never gave permission to return to trainings and that the ‘life
and health of the player’ were ‘of the greatest important’ to the club.
27.
Furthermore, the club states that – under the law of country D - the player was
responsible to obtain a medical statement from a doctor ‘specialized in the
medicine of sport’, regarding his state of health, enabling him to carry out
professional sports activity. The club argues that until the termination of the
contract as per the letter of 12 January 2015, the player failed to obtain such
document. In this respect, the club argues that the letters of the Universitätsspital
in Basel do not meet the criteria of a medical statement, enabling the player to
play professional football, as established under the law of country D. Further, the
club holds that Dr I is a doctor specialising in sport medicine.
28.
In addition, the club contested the reliability of the medical examinations of the
Universitätsspital, since the latter based its conclusions only on material provided
Player A, country B / Club C, country D
Page 6 of 18
by the Hospital F. These opinions therefore – according to the club - ‘are not
comprehensive towards each other’. Moreover, according to the club, the player
failed to obtain a second opinion, which met the criteria under the law of country
D. Therefore, the club holds that the medical statement the player received from
the Universitätsspital in February 2015 could not change ‘his legal situation in any
manner’.
29.
Taken into account the aforementioned circumstances, the club holds that based
on article 14 ‘of the law of country D’, it had a just cause to terminate the
contract of the player by means of the letter dared 12 January 2015, since the
player was unable to perform his duties anymore, due to illness or injury. The club
argues that it did all it could to help the player and that it had no financial
reasons, or reasons connected with the alleged fact that it ‘wanted to get rid of
the player’, to terminate the contract.
30.
In conclusion, the club also holds that ‘the new resolution of the Football
Association Board of country D dated 27 March 2015’ as well as the employment
law of country D, gave the club the right to unilaterally terminate the contract of
the player. This in case the player – due to an injury or illness that has been
identified by a medical certificate - was not able to play for more than 180 days in
official matches of the club, or in case the ‘employee was absent for more than 1
months even if the reason of absence is not the employee’s fault’.
31.
Finally, the club holds that, based on the legal concept of unjust enrichment and
‘the defence of deduction’, it has the right to receive as ‘setting off’ the amount
of EUR 234,000 from the player. This amount was paid to the player as salary for
the period between 10 January 2014 and 12 January 2015, when the player was
not able to perform his duties due to objective reasons.
32.
With respect to the club’s allegations that FIFA’s DRC is not competent to deal
with the matter at hand, the player argued that article 7 par. 6 of the contract (cf.
4 above) makes a clear reference to the competence of FIFA in the matter at
hand. In addition, the player states that in the contract, no reference at all to the
NDRC of country D is made.
33.
Further, the player states that he denies the competence of the Football
Arbitration Tribunal of country D and/or the NDRC of country D. The club’s
argument that the competence follows from article 7 par. 4 cannot be upheld,
since this clause only refers to disciplinary matters. In addition, based on article 4
and article 57 of the Statutes of the FA of country D, only internal national
disputes and/or domestic disputes (i.e. between parties of country D) can be dealt
with by the NDRC of country D.
Player A, country B / Club C, country D
Page 7 of 18
34.
Moreover, the player argues that no arbitration clause ‘was integrated’ in the
contract. Furthermore, no clear reference to the arbitration court was made.
35.
Subsequently, the player states that the Football Arbitration Tribunal of country D
and/or the NDRC of country D did not meet the minimum criteria for fair
proceedings at the time the contract was signed, as well as that the NDRC of
country D is not competent to solve financial disputes between clubs and players,
as it only decides about the validity of the termination of the agreement.
36.
Furthermore, the player argues that financial claims needed to be submitted to
the Football Arbitration Court, which does not meet the criteria of equal
representation of player’s and club’s representatives.
37.
As to the substance, the player holds that the Union of Footballers of country D
confirmed that as per 27 March 2015, contracts could not be terminated
unilaterally at all.
38.
Moreover, the player states that the club repeatedly published false assertions on
website K about the player’s alleged end of his career in written form.
39.
In addition, the player holds that the refusal of the club to let him participate in
trainings with the first team is a ‘gross violation of the Claimant’s personal and
professional rights’, which had a negative impact on his market value.
40.
Finally, according to the player, ‘the possible deduction of any possible gained
amount during the initial period shall not be considered at all, in accordance with
the Swiss law CO, art. 361 & 362, due to malicious falsehood’.
41.
In its duplica, the club holds that the website K is not the official club website and
that therefore, the club cannot be held liable for its contents.
42.
Further, the club reiterates that it assumes that the NDRC of country D meets the
requirements of article 22 of the FIFA Regulations and therefore is competent to
deal with the matter at hand. Moreover, the club holds that this is confirmed by
the Football Association of country D and that the fact that the NDRC of country
D did not comply with article 22 FIFA Regulations in 2011, is not of relevance in
the matter at hand.
43.
In addition, the club confirms that article 13 par. 3 of the resolution of the Board
of the Football Association of country D is an integral part of the contract,
Player A, country B / Club C, country D
Page 8 of 18
therefore leading the club to the conclusion the FIFA is not competent and that
the law of country D shall apply to the matter at hand.
44.
With regard to termination of the agreement, the club holds that it had a just
cause to terminate the contract, because it did ‘everything possible to help the
player’ and because of the fact that the player did not obtain the medical
statement on his state of health, despite being obliged to do so under the law of
country D.
45.
After being requested to do so, the player provided FIFA with an update about his
contractual situation after the termination of the contract by the club. On 27
August 2015, the player signed a contract with the Club L from country B, valid as
from 27 August 2015 until 30 June 2016, according to which he was entitled to
receive a monthly salary of 24,000 (approximately EUR 200), as well as a signing
fee of 480,000 (approximately EUR 3,960). According to the player, said contract
was terminated on 18 January 2016, after earning the total amount of EUR 4,900
in the period between 27 August 2015 and 18 January 2016.
46.
On 18 January 2016, the player signed a new contract with Club M from country
B, valid as from 18 January 2016 until 30 June 2018, according to which he was
entitled to receive a monthly salary of EUR 3,273, as well as a signing fee of EUR
13,000. For the period between 18 January 2016 and 20 June 2016, this
corresponds to a total amount of EUR 30,400.
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 30 March 2015. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2014;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2016) the Dispute Resolution Chamber would, in principle, be
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.
Player A, country B / Club C, country D
Page 9 of 18
3.
However, the Chamber acknowledged that the club contested the competence of
FIFA’s deciding bodies on the basis of the alleged fact that the Football
Arbitration Tribunal of the Football Association of country D in city H is
competent in the present matter.
4.
In this regard, the Chamber noted that the player rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is
competent to deal with a matter such as the one at hand, unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs, has been established at national level
within the framework of the association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the
FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the
Chamber referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on
1 January 2008.
6.
In relation to the above, the Chamber also deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another organ
than the DRC is competence to settle an employment-related dispute between a
club and a player of an international dimension, is that the jurisdiction of the
relevant national arbitration tribunal or national court derives from a clear
reference in the employment contract.
7.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
contained a clear arbitration clause.
8.
In this respect, the Chamber recalled that art. 7 par. 4 of the employment contract
stipulates that: “Subject to provisions in Clause 3 paragraph 3, any disputes arising
from the execution of this agreement shall be settled amicably, and in cases of a
lack of agreement, will be settled by a court proper for the jurisdiction of Club C
except when valid law regulations stipulate others as an exclusive proper for the
jurisdiction”.
9.
Having examined the relevant provision, the Chamber came to the unanimous
conclusion that art. 7 par. 4 does not constitute a clear and exclusive arbitration
clause in favour of one specific dispute resolution body in country D, since it only
Player A, country B / Club C, country D
Page 10 of 18
referred to a court ‘proper’ for the jurisdiction of the club. The foregoing
conclusion is even supported by the club’s statements, which refers to the
competence of both the Football Arbitration Tribunal and the NDRC of the
Football Association of country D, therefore, not referring to one specific national
deciding body.
10.
In fact, the Chamber emphasised that even more pertinent is the provision
contained in art. 7 par. 6 of the contract which makes a clear reference to the FIFA
DRC. Indeed, art. 7 par. 6 stipulates: ‘The Agreement is bilingual […]. In case of
any doubts and interpretation problems between those two versions, the country
D’s language version shall apply. Moreover, each party has the right to refer the
matter in question to the FIFA’s Players Status Committee or FIFA’s Dispute
Resolution Chamber’.
11.
On account of all the above, the Chamber established that the club’s objection
towards the competence of FIFA to deal with the present matter has to be
rejected, and that the Dispute Resolution Chamber 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.
12.
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 2016), and considering that the present claim was lodged on 30 March
2015, the 2014 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
13.
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.
14.
The members of the Chamber first acknowledged that the parties were
contractually bound by means of an employment contract valid as from 21 June
2011 until 20 June 2016.
15.
Furthermore, the DRC noted that the player, on the one hand, maintained that
during the period under which he was under contract with the club, the latter
failed repeatedly to comply with its financial obligations under the contract. In
this respect, the player stated that only on 9 January and 12 January 2015, the
Player A, country B / Club C, country D
Page 11 of 18
club paid him his salaries for the period between June 2014 and November 2014.
Furthermore, the player held that the club unilaterally terminated the contract
without just cause on 12 January 2015, based on his alleged fact that the player,
due to his medical situation ‘will not be allowed to practice high-performance
sport’. The player held that this termination is merely a termination based on his
medical situation and alleged permanent disease, and has therefore to be
considered as a termination without just case.
16.
The Chamber further noted that the club, on the other hand, rejected the claim
put forward by the player and stated that the contract had been terminated in
line with article 14 of the FIFA Regulations and was based on the fact that the
player was not able to perform his contractual duties, due to ‘illness or injury’.
Further, the club referred to medical advices of its club doctor, from January 2014,
June 2014a and November 2014, which advices allegedly imply a permanent
incapacity to play football at professional level.
17.
In continuation, the Chamber took into account that the player fully rejected the
club’s allegations, as well as that the club in its final reply argued that it did
everything possible to help the player, as well as that it paid the player the
salaries he was entitled to, until the premature termination of the contract.
18.
In view of the aforementioned considerations, the members of the Chamber
highlighted that the underlying issue in this dispute, considering the diverging
position of the parties, was to determine as to whether the contract had been
terminated by the club with or without just cause. The Chamber also underlined
that, subsequently, if it were found that the contract was terminated without just
cause by the club, it would be necessary to determine the consequences for said
party.
19.
In addition, the members of the Chamber agreed that, in principle, an injury or
health condition of a player can be no valid reason to cease the payment of a
player’s remuneration and even less so to terminate an employment contract.
However, such specific circumstance will have an effect on the amount of
compensation, in the light of the bilateral character of an employment contract
and the circumstance that in the event of permanent incapacity to play, a player is
no longer in the position to render his services to the club.
20.
In this respect, the members present underlined that the matter at stake does not
constitute a typical case of premature termination of contract for medical reasons.
Consequently, when assessing the facts of the case the relevant specific
particularities need to be duly considered.
Player A, country B / Club C, country D
Page 12 of 18
21.
Moreover, with respect to the club’s argument that the law of country D should
be applicable in the matter at hand, the members of the DRC wished to point out
that when deciding a dispute before the DRC, FIFA’s regulations prevail over any
national law chosen by the parties. In this regard the Chamber emphasized that
the main objective of the FIFA regulations is to create a standard set of rules to
which all the actors within the football community are subject to and can rely on.
This objective would not be achievable if the DRC would have to apply the
national law of a specific party on every dispute brought to it. Therefore, the
Chamber deems that it is not appropriate to primarily apply the principles of a
particular national law to a dispute brought to its analysis but rather the law of
country D, general principles of law and, where existing, the Chamber’s wellestablished jurisprudence.
22.
Having said that, the DRC pointed out that it is not contested that the club
terminated the contract on 12 January 2015, i.e. a year after the medical
condition of the player having been detected. In this respect, the Chamber
acknowledged that when doing so, the club was of the opinion that the player
was objectively incapable of performing his services as a professional footballer.
23.
Furthermore, the Chamber noted that the employment contract, in its article 5.7,
provides for a clause regarding the consequences of the player’s incapacity to
play, due to injury or illness. According to this clause, in such cases, the player
would be entitled to social security benefit and a supplementary benefit from the
club. It appears however that the club continued to pay the player’s salary until 12
January 2015 up to almost the whole due amount and that as a result, it can be
noted that the player did not receive any social security benefits, or
supplementary benefit from the club.
24.
In this context, it has been the practice and the opinion of the Chamber that in
such circumstances the club continues to bear a certain financial responsibility
towards the player. It was also underlined that, an adequate way to discharge this
burden, is for a club to secure a respective insurance coverage. However, in the
matter at stake, such coverage appears to be missing.
25.
In view of the above, the Chamber concluded that the club had to be held
responsible for the early termination of the contract and was liable to
compensate the player.
26.
In continuation, prior to establishing the consequences of the early termination of
the contract by the club in accordance with art. 17 par. 1 of the Regulations, the
Chamber held that it had to address the issue of any unpaid remuneration at the
moment the contract was terminated by the club.
Player A, country B / Club C, country D
Page 13 of 18
27.
Indeed, in his statement of claim, the player alleges that part of his remuneration
related to the month of July 2014, i.e. EUR 370, was to be considered outstanding
on 13 January 2015, the date of termination of the contract. The club, for its part,
only stated that it made salary payments to the player until 12 January 2015 and
did not contest the player’s allegation that EUR 370, related to part of the salary
for July 2014, remained outstanding at the date of termination of the contract,
nor did it provide evidence that it paid said amount. Consequently, in virtue of
the principle pacta sunt servanda and bearing in mind the player’s claim, the
Chamber decided that the club is liable to pay the amount of EUR 370 to the
player as outstanding remuneration, related to the unpaid part of the salary for
July 2014.
28.
In addition, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the amount of
outstanding remuneration, i.e. EUR 370 as of 13 January 2015, per the player’s
request until the date of effective payment.
29.
Regarding the reimbursement of the medical costs to player holds to have made,
the Chamber recalled that the player requested that the club be ordered to
reimburse the medical expenses he alleges having incurred in Switzerland, in the
amount of CHF 6,392.55. In this respect, the player presented an excel sheet,
allegedly issued by the Universitätsspital in Basel, as well as several documents
from his bank account based on which the player holds to have paid several
amounts to the Universitätsspital.
30.
Further, the Chamber 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. In this
respect, the Chamber noted that the player did not submit evidence, on the basis
of which it could be established that the club committed itself to paying costs
incurred for the medical treatment of the player in Switzerland. As a result of
these circumstances, the Chamber established that the club cannot be held liable
for costs incurred for such treatment and decided to reject the player’s claim
pertaining to the reimbursement of the medical costs.
31.
Having established the above, the Chamber turned its attention to the question
of the consequences of the unilateral termination of the contract by the club
without just cause on 12 January 2015.
32.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the player is entitled to receive compensation from the club for the
Player A, country B / Club C, country D
Page 14 of 18
termination of the contract without just cause, in addition to the aforementioned
amount of EUR 370 on the basis of the contract.
33.
The members of the Chamber 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, 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
termination of the contract falls within the protected period.
34.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains 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 a termination
without just cause by one of the parties. In this regard, the DRC established that
no such compensation clause was included in the contract at the basis of the
matter at stake.
35.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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 non-exhaustive enumeration of criteria
to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body. In this regard, the Dispute Resolution Chamber
emphasised beforehand that each request for compensation in relation to the
termination of the contract, has to be assessed by the Chamber on a case-by-case
basis taking into account all specific circumstances of the respective matter.
36.
In order to estimate the amount of compensation due to the player in the present
case, the members of the Chamber first turned their attention to the
remuneration and other benefits due to the player under the existing contract
and/or the new contract, which criterion was considered by the Chamber to be
essential. The members of the Chamber deemed it important to emphasise that
the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract, if any, in the calculation
of the amount of compensation.
37.
In accordance with the contract signed by the player and the club, which was to
run for more than seventeen months, i.e. until 21 June 2016, after the
termination of the contract took place, the player was to receive remuneration
Player A, country B / Club C, country D
Page 15 of 18
amounting to EUR 357,258. Consequently, the Chamber concluded that the
amount of EUR 357,258 serves as the basis for the final determination of the
amount of compensation to be paid by the club to the player.
38.
The Chamber then took due note of the employment situation of the player after
the termination of the contract at the basis of the case at stake. Bearing in mind
art. 17 par. 1 of the Regulations and in accordance with the constant practice of
the Dispute Resolution Chamber as well as the general obligation of the player to
mitigate his damages, such remuneration under a new employment contract(s)
shall be taken into account in the calculation of the amount of compensation to
be paid by the club to the player.
39.
In this context, the Chamber noted that the player had signed on 27 August 2015,
an employment contract with the Club L from country B, valid until 30 June 2016,
which was – according to the player - terminated on 18 January 2016. Based on
the contents of said contract, the Chamber noted that in the period between 27
August 2015 and 18 January 2016, the player had earned the total amount of
480,000, equivalent to EUR 4,900.
40.
Furthermore, the members of the Chamber took note that on 18 January 2016,
the player had signed an employment contract with the Club M from country B,
valid until 30 June 2018, by means of which the player would be entitled to
receive a signing fee of EUR 13,000, as well as a monthly salary of EUR 3,273. For
the period between 18 January 2016 and 20 June 2016, the player had earned the
total amount of EUR 30,400.
41.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, as well as the value of the new contracts the
player signed with the two clubs from country B, the Chamber decided that the
club in principal must pay the amount of EUR 321,958 to the player which was
considered reasonable and proportionate as compensation for the unilateral
termination of the contract in the case at hand.
42.
As stated above, the circumstances are very specific. Indeed, the club paid almost
all the outstanding salaries at the date of the unilateral termination. In this
respect, the Chamber considered that the club in fact was of the understanding
that fielding the player could potentially harm the latter’s health. Consequently,
the Chamber was of the opinion that the club acted in good faith by preventing
the player from participating in matches, at the same time however paying his
salaries. As a consequence, the DRC concluded that all the aforementioned
circumstances need to be taken into account while deciding about the final
amount of compensation that needs to be paid by the club in the specific matter
at hand.
Player A, country B / Club C, country D
Page 16 of 18
43.
On account of all the above, the members of the Chamber deemed that a final
compensation within the range of 80% of the principle amount of compensation,
has to be considered reasonable and proportionate as compensation to be paid by
the club in the specific case at hand.
44.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
player’s claim and decided that the club – in the specific case at hand - must pay
the amount of EUR 257,566.40 to the player as a result of the unilateral
termination of the contract.
45.
In addition, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the amount of
compensation, i.e. EUR 257,566.40 as of the date of the claim, i.e. 30 March 2015
until the date of effective payment.
46.
Moreover, the Chamber wished to outline that the majority of the members of
the Chamber considered the aforementioned amount of compensation appeared
to be reasonable and justified in view of the specific case at hand.
47.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the player is rejected.
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is admissible.
2. The claim of the Claimant is partially accepted.
3. The Respondent, Club C, 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 370 plus 5% interest p.a. as from 13 January 2015 until the date of effective
payment.
4. 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 257,566.40 plus 5% interest p.a. on said amount as from 30 March 2015 until
the date of effective payment.
Player A, country B / Club C, country D
Page 17 of 18
5. In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 3. and 4. are not paid by the Respondent within the stated
time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
6. Any further claim lodged by the Claimant is rejected.
7. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
****
Note relating to the motivated decision (legal remedy):
According to art. 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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