Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 10 August 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Eirik Mons en (Norw ay ), member
Daan de Jong (the Netherlands ), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the player,
Play er C, Country B
as Respondent I
and the club,
Club D, Country E
as Respondent II
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 10 June 2015, the player from Country B, Player C (hereinafter: Respondent I
or the player), born on 22 September 1989, and the club from Country B, Club A
(hereinafter: the Claimant or Club A), signed an employment contract
(hereinafter: the contract) valid as from the date of signature until 31 May
2017.
2.
According to clause III of the contract, the player was entitled to a monthly
salary of 7,000 in the currency of Country B, payable on the “25th day of the
month following the month for which the payment is due”.
3.
Pursuant to clause X.1 of the contract, the player was also entitled to the
amount of 400, on a monthly basis, “for renting an apartment”.
4.
Furthermore, according to clause X.2 of the contract, Club A committed to pay
the player the “additional lump sum” of 11,100 on 25 June 2015.
5.
Clause IX.1 of the contract stipulates that it “shall be terminated under the
provisions of the Labour Code”.
6.
Pursuant to clause XII.2 of the contract, “problems not provided for in the
present contract shall be settled pursuant to the provisions of the Labour Code,
the regulatory framework of the Football Federation of Country B and the
legislation in force in Country B”.
7.
On 13 June 2016, the club from Country E, Club D (hereinafter: Respondent II or
Club D), sent a letter to the player’s lawyer, requesting him to inform Club A
about its proposal for the definitive transfer of the player against a transfer fee
of EUR 40,000.
8.
On 17 June 2016, the player sent a letter to Club A, by means of which he
terminated the contract with immediate effect as per art. 326 par. 1 of the
labour code of Country B (hereinafter: the Labour Code). Within the same
letter, the player also stated that, as he did not observe the three-month notice
period imposed by the law in Country B, he provided Club A with the payment
of three monthly salaries in accordance with art. 220 par. 1 of the Labour Code,
in the total amount of 21,000. Pursuant to art. 326 of the Labour Code, “(1) an
employee may terminate the employment contract by giving the employer a
written notice, (2) […] The period of notice of termination of a fixed-term
employment contract shall be three months”. Moreover art. 220 par. 1 of the
Labour Code provides that “the party who is entitled to terminate the
employment relationship with notice may terminate the said relationship even
Club A, Country B / Player C, Country B / Club D, Country E
2
before the expiry of the notice period, in which case the said party shall owe
the other party compensation amounting to the employee’s gross labour
remuneration for the unobserved notice period”.
9.
On 20 June 2016, Club D announced on its official website that the player had
signed a 3 years employment contract with it.
10.
On the same date, the player and Club D concluded an employment contract
valid as of 1 July 2016 until 30 June 2018. According to such employment
contract, the player was entitled, inter alia, to a remuneration of EUR 147,700
for season 2016/2017 (from 1 July 2016 to 30 June 2017).
11.
On 22 June 2016, Club A sent a letter to Club D, whereby it stated that the
player left the former without permission and that he was still under contract
until 31 May 2017. Moreover, the Claimant maintained that, for any
negotiations for the transfer of the player, Club D had to contact Club A
directly.
12.
On 23 June 2016, Club D sent a letter to Club A, replying that the player had
terminated the contract pursuant to clause IX.1 of the contract and the labour
code of Country B. Furthermore, Club D alleged that Club A tacitly accepted the
termination as it had not returned the payment of 3 monthly salaries made by
the player.
13.
On 26 August 2016, Club A lodged a claim in front of FIFA against the player
and Club D for breach of contract, requesting the following:
a)
EUR 151,290.78 as compensation for breach of contract;
b)
Club D to be held jointly and severally liable for the payment of the
aforementioned compensation;
c)
sporting sanctions on the player and Club D.
14.
In its claim, the Claimant affirmed that the player left Club A without notice
and thus terminated the contract without just cause. In particular, Club A
averred that art. 326 of the Labour Code was inapplicable in football-related
matters and, consequently, argued that the player’s termination lacked legal
basis.
15.
As to the damages arising out of the aforementioned termination, Club A first
pointed out that the termination of the contract prevented it from receiving
any fee for the subsequent transfer of the player. Such fee, as specified in Club
Club A, Country B / Player C, Country B / Club D, Country E
3
D’s correspondence of 13 June 2016, amounted to at least EUR 40,000.
16.
Moreover, Club A emphasised that, until the termination of the contract, it
incurred in expenses for the player in the amount of 140,664.86, corresponding
to EUR 71,921.31, for “salaries, bonuses, social security fees, accommodation,
training camp and medical help player”.
17.
Furthermore, Club A argued that the remaining value of the contract was
77,000 (i.e. 11 monthly salaries), allegedly corresponding to EUR 39,369.47, and
concluded that the claimed compensation was composed of the lost transfer
fee (i.e. EUR 40,000), the expenses incurred for the player (i.e. EUR 71,921.31)
and the remaining value of the contract, for the total sum of EUR 151,290.78.
18.
Finally, the club alleged that Club D entered in contact with the player without
informing Club A beforehand and therefore induced the player to breach his
contract Club A during the protected period.
19.
In his reply to the claim, the player first contested FIFA’s jurisdiction to deal
with the matter, arguing that the dispute lacked international dimension. In
particular, the player maintained that the call of Club D as a respondent did not
give an international dimension to the dispute, due to the fact that the
Football Federation of Country B (i.e. the association of Club A) had released
the player’s ITC, requested by the Football Federation of Country E (i.e. the
association of Club D), without the need of FIFA’s intervention. According to
the player, only in case a third country requests FIFA’s intervention to
provisionally register a player then FIFA is competent to deal with a labour
dispute involving a player and a club of the same country.
20.
Moreover, the player argued that, pursuant to clause XII.2 of the contract, the
dispute had to be regulated in accordance with the law in Country B, which
imposed the mandatory jurisdiction of the civil courts of Country B for
employment-related disputes. In particular, the player referred to art. 357,
par.1 of the Labour Code, according to which “Labour disputes shall be the
disputes between an employee and an employer regarding the […] termination
of employment relationships”, and to art. 360 par.1 of the Labour Code, which
stipulates that “Labour disputes shall be examined by the courts”. Finally, the
player referred to art. 19 par. 1 of the Code of Civil Procedure of Country B,
according to which “The parties of a property dispute may agree that the said
dispute be settled by an arbitration court, unless the said dispute has as its
subject matter […] maintenance obligations or rights under an employment
relationship”.
21.
Furthermore, the player informed that, on 11 November 2016, he filed a claim
Club A, Country B / Player C, Country B / Club D, Country E
4
against Club A before the courts of Country B, arguing that he terminated the
contract lawfully, in accordance with the law of Country B. On account of the
above, the player argued that FIFA could not deal with the present matter, due
to the lis pendens principle.
22.
In continuation, the player pointed out that, on 17 June 2016, he paid Club A
the amount of 21,000 in order to terminate the contract, pursuant to the
labour code of Country B. In this regard, the player affirmed that Club A, by
retaining such amount, accepted his termination of the contract and was not
entitled to receive further compensation. Consequently, the player considered
that Club A had no right to take legal action against him and concluded that its
claim before FIFA, instead before the courts of Country B, constituted a “forum
shopping”.
23.
As to the merits of the case, the player alleged that he was attacked “verbally
and physically on a couple of occasions in April and May 2016” by the
supporters of Club A and, consequently, he had a meeting with the club’s CEO
on 18 May 2016, where he proposed the amicable termination of the contract.
However, according to the player, Club A refused his proposal but committed
to protect him from further aggressions.
24.
The player reported that he was attacked again by the supporters on 10 June
2016 and decided that “enough is enough and that it is time to move out from
[Club A]”. Consequently, the player affirmed that, as the press reported that
the player had been attacked again and was going to leave the Claimant, Club
D made a first inquiry with his lawyer. However, according to the player, his
lawyer eventually informed Club D that Club A did not want to terminate his
contract by mutual consent.
25.
Moreover, the player affirmed that he terminated the contract with just cause
because “there were enough objective criteria which did not reasonably
permitted [the player] to continue the employment relationship with [Club
A]”.
26.
Furthermore, the player pointed out that his termination, on 17 June 2016, was
compliant with clause IX.I of the contract and the law of Country B, namely art.
326 and 220 of the Labour code, which was the lex specialis governing the
contract, agreed between the player and Club A. In particular, the player
maintained that the aforementioned provisions of the Labour code are
“mandatory and form part of the public policy of Country B”.
27.
In the alternative, as to the claimed compensation, the player reiterated that it
paid the compensation imposed by the law of Country B – i.e. 3 monthly
Club A, Country B / Player C, Country B / Club D, Country E
5
salaries – equal to 21,000. Moreover, the player considered that Club A did not
prove that it suffered any damage as a consequence of the termination but,
rather, it saved on the salaries set out in the contract for the remaining
contractual period.
28.
Finally, the player maintained that Club D did not induce any breach of
contract, as the player terminated the contract with just cause on 17 June 2016
and the negotiations for his new employment contract with Club D only took
place on 20 June 2016.
29.
In its reply to the claim, Club D also contested FIFA’s jurisdiction, as the dispute
lacked international dimension, being governed by the law of Country B and
concluded between parties from Country B.
30.
As to the merits of the case, Club D affirmed that it was informed of the
termination of the contract on 20 June 2016 and, only after that moment, it
negotiated and concluded the new employment contract with the player.
Consequently, Club D maintained that it did not induce the termination of the
contract with Club A.
31.
Moreover, Club D stated that the preliminary contacts it had with the player’s
lawyer occurred due to the fact that, according to the news on internet, it had
been informed that the player had already terminated the contract. However,
Club D pointed out that, as soon as it was eventually informed that the player
was still under contract with Club A, it made a proposal for his transfer on 13
June 2016. Nonetheless, according to Club D, Club A did not reply to such
proposal.
32.
Furthermore, Club D concurred with the player that the contract had been
terminated by the latter on 17 June 2016 with just cause, in accordance with
the law of Country B. What is more, Club D stressed that said termination was
acknowledged by the Football Federation of Country B with a statement dated
28 June 2016 and, eventually, with the delivery of the ITC to the Football
Federation of Country E on 4 July 2016.
33.
In its replica, Club A rejected the other parties’ arguments and insisted on FIFA’s
jurisdiction to deal with this matter. In this context, the Claimant acknowledged
that the player terminated the contract pursuant to the law of Country B and
that it received the payment of 21,000. However, Club A affirmed that its claim
was not founded on the law in Country B, but rather on FIFA’s regulations,
which were recalled by the regulations of the Football Federation of Country B
indicated under clause XII.2 of the contract. In particular, Club A referred to art.
2 of the final provision of the “regulations on the contracts and transfers of
Club A, Country B / Player C, Country B / Club D, Country E
6
football players” of the Football Federation of Country B, according to which
“problems not provided for in the present Regulations shall be settled pursuant
to the provisions of the Labour Code, The physical Activity and Sport Act and
the Regulations for its implementation, the general civil legislation of Country
B, the regulations of FIFA, WEFA and Football Federation of Country B”.
34.
As to the facts reported by the player in his reply, Club A pointed out that
indeed there had been “tensions” between the player and its supporters,
however, such situation was allegedly common to other players of the team
and could not justify the termination of the contract.
35.
As to the fact that the player’s termination of the contract was reportedly
compliant with law of Country B, Club A argued that the same was contrary to
FIFA regulations and, in particular, the principle of contractual stability. In
particular, Club A maintained that the compensation paid by the player (i.e.
21,000) was “incomparable” to the damages suffered by Club A because of the
termination of the contract.
36.
In its duplica, the player reiterated his previous arguments and insisted on the
mandatory jurisdiction of the civil courts of Country B to deal with the dispute.
In particular, he averred that the “District Court in Country B” had exclusive
competence.
37.
Moreover, the player affirmed that Club A did not protect him from the
aggressions of the fans for the period between April and June 2016 and this
situation left him no other option than terminating the contract by means of
exercising a statutory right provided by the law of Country B.
38.
In its duplica, also Club D reiterated its previous arguments.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 26 August 2016. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
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 of the Procedural
Club A, Country B / Player C, Country B / Club D, Country E
7
Rules and confirmed that in accordance with art. 24 par. 1 in combination with
art. 22 lit. a) of the Regulations on the Status and Transfer of Players (edition
2018) the Dispute Resolution Chamber would, in principle, be competent to deal
with the matter at stake, which concerns an employment-related dispute
between a club from Country B, a player from Country B and a club from
Country E in relation to the maintenance of contractual stability, where there
has been an ITC request and a claim from an interested party in relation to said
ITC request.
3.
In this respect, the Chamber was eager to emphasize that, contrary to the
information contained in FIFA’s letter dated 6 August 2018, by means of which
the parties were informed of the composition of the Chamber, the member
Carlos Puche refrained from participating in the deliberations in the case at hand
due to certain personal circumstances and, in order to comply with the
prerequisite of equal representation of the club’s and player’s representatives,
also the member Juan Bautista Mahiques refrained from participating.
4.
Having stated the above and reverting to the position of the parties, the
Chamber acknowledged that both Respondents contested the competence of
the DRC to entertain the present matter as to the substance, based on the
alleged lack of an international dimension of the dispute. In particular, the
Respondents argued that, as the Claimant and Respondent I are from the same
country, and given that the association of the Claimant released the ITC to the
association of Respondent II without a request for FIFA’s intervention, art. 22 lit.
a) of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) was not applicable and the DRC had no jurisdiction on the current
dispute.
5.
Moreover, the Chamber noted that Respondent I contested the competence of
FIFA also on the basis of clause XII.2 of the contract, arguing that the contract
was governed by the law of Country B, which allegedly imposed the mandatory
jurisdiction of the civil courts of Country B.
6.
Finally, the members of the Chamber took note that Respondent I contested
FIFA’s competence to deal with the dispute on the basis of litispendence, arguing
that he had lodged a claim before the courts of Country B against the Claimant
in relation to the termination of the contract.
7.
The Chamber then noted that, conversely, the Claimant rejected the arguments
of the Respondents and insisted that FIFA has jurisdiction to deal with the
present matter, on the grounds, in particular, that his claim was founded on FIFA
regulations and not on law of Country B.
Club A, Country B / Player C, Country B / Club D, Country E
8
8.
Taking into account the previous considerations, the Chamber went to analyse
the arguments brought by the Respondents regarding the alleged lack of
competence of the Chamber.
9.
First, as to the alleged lack of international dimension and the inapplicability of
art. 22 lit. a) of the Regulations, the DRC pointed out once again that it is
competent to deal with a dispute in accordance with the aforementioned
provision provided that a player is registered with a club affiliated to an
association of a different country and an ITC has been delivered to such
association for the relevant transfer. In casu, the Chamber emphasised that it is
undisputed that the player terminated the contract on 17 June 2016 and that,
according to the information contained in the Transfer Matching System (TMS),
the Football Federation of Country B delivered the ITC to the Football Federation
of Country E on 4 July 2016. In this regard, the Chamber held that the nationality
of the parties is irrelevant in order to determine that the Chamber is competent
on the basis of art. 22 lit. a) of the Regulations.
10.
In continuation, as to the second argument of Respondent II, i.e. the alleged
exclusive jurisdiction of civil courts of Country B on the basis of clause XII.2 of the
contract, the Chamber pointed out that such clause is clearly not a jurisdiction
clause, but rather a choice of law clause. Furthermore, said clause, while
referring to the legislation in force in Country B, also specifically refers to the
regulatory framework of the Football Federation of Country B. Consequently,
the DRC concluded that the contract neither provides for the exclusive
application of the law of Country B for the settlement of disputes arising out of
the contract, nor the exclusive jurisdiction of the courts of Country B.
11.
Moreover, as to the third argument of Respondent I, i.e. the alleged
litispendence, the DRC emphasised that his reported claim before the courts of
Country B was apparently filed on 11 November 2016 (cf. point I.21 above),
which is after the date on which the Claimant lodged its claim before FIFA.
Therefore, the members of the Chamber unanimously concurred that no
possibility of lis pendens exists and, thus, decided to reject also this argument of
Respondent I. In any case, the Chamber pointed out that there is no identity of
parties in this proceedings and those seemingly pending before the courts of
Country B, which do not appear to involve the Respondent II.
12.
On account of the aforementioned considerations, the members of the Chamber
concluded that the Dispute Resolution Chamber is competent to deal with the
present dispute in accordance with art. 22 lit. a) of the Regulations.
13.
Furthermore, the DRC analysed which edition of the regulations should be
applicable as to the substance of the matter. In this respect, the Chamber
Club A, Country B / Player C, Country B / Club D, Country E
9
confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (edition 2018) and considering that the present
matter was submitted to FIFA on 26 August 2016, the 2016 edition of said
Regulations on the Status and Transfer of Players is applicable to the present
matter as to the substance.
14.
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 continued 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.
15.
In this respect, the members of the DRC acknowledged that it was undisputed by
the parties that, on 10 June 2015, the player and Club A signed an employment
contract valid until 31 May 2017, pursuant to which the player was to receive a
monthly salary of 7,000 and a monthly amount of 400 for renting an apartment.
16.
In continuation, the DRC took note of the fact that it is also undisputed by the
parties that said contract was terminated by Respondent I on 17 June 2016, in
writing, merely on the basis of the labour code of Country B and without
mentioning other circumstances allegedly justifying such termination. In
addition, on 20 June 2016, Respondent I and the Respondent II signed an
employment contract valid as from 1 July 2016 until 30 June 2018.
17.
The Chamber further took note of the position of the Claimant, which
maintained that Respondent I terminated the contract without just cause. As a
consequence thereof, the Claimant requested to be awarded compensation for
breach of the employment contract and to declare that Respondent II is jointly
liable for the relevant payment.
18.
Equally, the members of the Chamber noted that Respondent I, for his part,
rejected the claim of Club A, arguing that the contract was governed by the law
of Country B, pursuant to which he terminated the contract. To this end,
Respondent I stressed that it paid the Claimant the amount corresponding to
three monthly salaries – i.e. 21,000 – as allegedly provided in the labour code of
Country B.
19.
Moreover, Respondent I affirmed that he was attacked in more than one
occasion by the supporters of Club A and this circumstance did not reasonably
allow him to continue the employment relationship with the Claimant.
Club A, Country B / Player C, Country B / Club D, Country E
10
20.
Furthermore, the DRC took note of the position of Respondent II, which held
that it did not induce the player to terminate the contract with Club A and
affirmed that it negotiated the employment contract with Respondent I only
after he terminated the contract with the Claimant.
21.
On account of the above, the members of the Chamber highlighted that the
underlying issue in this dispute, considering the diverging position of the parties,
was to determine whether the Claimant had just cause to terminate the contract
on 17 June 2016 and to decide on the consequences thereof.
22.
In so doing, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
23.
First, the DRC went to analyse the Respondents’ argument that the contract was
governed by the law of Country B, allegedly pursuant to which the player
terminated the contract. In this context, 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. This should apply, specially,
also to the termination of a contract. In this respect, the DRC wished to point out
that it is in the interest of football that the termination of contract is based on
uniform criteria rather than on provisions of national law that may vary
considerable from country to country. Therefore, the Chamber deems that it is
not appropriate to apply the principles of a particular national law to the
termination of the contract but rather the Regulations, the general principles of
law and, where existing, the Chamber’s well-established jurisprudence.
24.
With the above in mind and as to the argument of Respondent I that the
employment relationship could not reasonably continue, the Chamber was eager
to emphasise that, pursuant to the longstanding jurisprudence of the Chamber,
only a breach or misconduct which is of a certain severity justifies the
termination of a contract without prior warning. In other words, only when
there are objective criteria which do not reasonably permit to expect a
continuation of the employment relationship between the parties, a contract
may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employee to ensure the employer’s fulfilment
of his contractual duties, such measures must be taken before terminating an
Club A, Country B / Player C, Country B / Club D, Country E
11
employment contract. A premature termination of an employment contract can
only be an ultima ratio.
25.
In view of the above, the Chamber noted that Respondent I, despite the
reported presence of certain “tensions” between him and the supporters of Club
A, not only did not put the club in default before terminating the contract but,
what is more, when he terminated the contract, he did not invoke any club’s
misconduct, let alone other circumstance, which justified such termination.
26.
On account of the aforementioned considerations, the Chamber was of the
opinion that the Respondent I did not provide sufficient evidence in order to
demonstrate that the alleged circumstances were of such a severity that would
justify a premature and immediate termination of the employment contract.
Consequently, the Chamber deemed that Respondent I had no just cause to
unilaterally terminate the employment relationship and therefore concluded
that he terminated the employment contract without just cause on 17 June 2016.
27.
Subsequently, after having established that Respondent I terminated the
contract without just cause, the DRC established that, in accordance with art. 17
par. 1 of the Regulations, the player is liable to pay compensation to the
Claimant for breach of contract. Furthermore, in accordance with the
unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber
established that the player’s new club, i.e. the Respondent II, shall be jointly and
severally liable for the payment of compensation. In this respect, the Chamber
was eager to point out that the joint liability of Respondent II is independent
from the question as to whether the new club has committed an inducement to
contractual breach or any other kind of involvement by the new club. This
conclusion is in line with the well-established jurisprudence of the Chamber that
was repeatedly confirmed by the Court of Arbitration for Sport (CAS).
28.
Having stated the above, the Chamber focussed its attention on the calculation
of the amount of compensation for breach of contract in the case at stake. In
doing so, 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, 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 as well as the fees and expenses paid or
incurred by the former club (amortised over the term of the contract) and
whether the contractual breach falls within a protected period. The DRC recalled
that the list of objective criteria is not exhaustive and that the broad scope of
Club A, Country B / Player C, Country B / Club D, Country E
12
criteria indicated tends to ensure that a just and fair amount of compensation is
awarded to the prejudiced party.
29.
In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract contained 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 regard, the Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
30.
Bearing in mind the foregoing, the members of the Chamber determined that
the amount of compensation payable in the case at stake 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 stated beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a
case-by-case basis taking into account all specific circumstances of the respective
matter.
31.
In order to estimate the amount of compensation due to the Claimant in the
present case, the members of the Chamber first turned their attention to the
financial terms of the former contract and the new contract, the value of which
constitutes an essential criterion in the calculation of the amount of
compensation in accordance with art. 17 par. 1 of the Regulations. The members
of the Chamber deemed it important to emphasise that the relevant
compensation should be calculated based on the average fixed remuneration,
i.e. excluding any conditional or performance related payment, agreed by the
player with his former club and his new club, as well as considering the period of
time remaining on the contract signed between the player and the former club.
32.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the fixed remuneration payable to the player under the terms of both the
employment contract signed with the Claimant, i.e. Club A, and the one signed
with the Respondent II, i.e. Club D, for the period that was remaining since the
unilateral termination of the contract by the player until its expiry, i.e. from 17
June 2016 until 31 May 2017.
33.
In this regard, the Chamber noted that, as per the employment contract signed
with the Claimant, the player was entitled to a monthly remuneration in the
Club A, Country B / Player C, Country B / Club D, Country E
13
amount of 7,400 for the remaining contractual period, i.e. a total fixed
remuneration of 81,400 or, approximately, EUR 41,800.
34.
In continuation, the DRC equally took note of the player’s remuneration under
the terms of his employment contract with his new club, i.e. Respondent II, which
corresponds to EUR 147,700 for season 2016/2017.
35.
Taking into account the above, the Chamber concluded that, for the relevant
period, the player’s average remuneration amounts to EUR 94,750.
36.
In this context and with regard to the transfer fee of EUR 40,000 allegedly
established for the transfer of the player from the Claimant to Respondent II, the
members of the Chamber concurred that the Claimant did not provide sufficient
evidence that such a fee had been indeed agreed between the Claimant and
Respondent II. Consequently, the DRC decided not to include this amount in the
calculation of the compensation for breach of contract.
37.
Moreover, with regard to the criterion relating to the fees and expenses
allegedly paid by the Claimant for the acquisition of the player’s services, the
Chamber established that it had no indications at its disposal about such
expenses. What is more, the DRC stressed that the expenses incurred by the
Claimant for “salaries, bonuses, social security fees, accommodation, training
camp and medical help” cannot be considered as these amounts were paid to
the player while he was rendering his services to the club.
38.
Furthermore, the members of the DRC deemed necessary to recall that the
Claimant acknowledged receipt of the amount of 21,000, approximately
corresponding to EUR 10,700, from Respondent I at the termination of the
contract and that it remained undisputed that such amount was retained by the
Claimant. Consequently, the DRC concluded that the aforementioned amount
shall be deducted in the calculation of the compensation for breach of contract
payable to the Claimant.
39.
On account of the above, and taking into account all the aforementioned
objective elements in the matter at hand, the Dispute Resolution Chamber
decided that the total amount of EUR 84,050 was to be considered a reasonable
and justified amount to be paid as compensation for breach of contract in the
case at hand.
40.
Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the
Regulations, the Respondent club shall be jointly and severally liable for the
payment of the aforementioned amount of compensation.
Club A, Country B / Player C, Country B / Club D, Country E
14
41.
In continuation, the Chamber focussed its attention on the further consequences
of the breach of contract in question and, in this respect, it addressed the
question of sporting sanctions against the player in accordance with art. 17 par.
3 of the Regulations. The cited provision stipulates that, in addition to the
obligation to pay compensation, sporting sanctions shall be imposed on any
player found to be in breach of contract during the protected period.
42.
In this respect, the members of the Chamber referred to item 7 of the
“Definitions” section of the Regulations, which stipulates, inter alia, that the
protected period shall last “for three entire seasons or three years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded prior to the 28th birthday of the professional, or two entire seasons or
two years, whichever comes first, following the entry into force of a contract,
where such contract is concluded after the 28th birthday of the professional”. In
this regard, the DRC pointed out that the player, whose date of birth is 22
September 1989, was 25 years of age when he signed his employment contract
with the Claimant on 10 June 2015, entailing that the unilateral termination of
the contract occurred within the applicable protected period.
43.
With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a
suspension of four months on a player’s eligibility to participate in official
matches is the minimum sporting sanction that can be imposed for breach of
contract during the protected period. This sanction, according to the explicit
wording of the relevant provision, can be extended in case of aggravating
circumstances. In other words, the Regulations intend to guarantee a restriction
on the player’s eligibility of four months as the minimum sanction. Therefore,
the relevant provision does not provide for a possibility to the deciding body to
reduce the sanction under the fixed minimum duration in case of mitigating
circumstances.
44.
With the above in mind, the members of the Chamber wished to recall the
sequence of the events of the present matter. First, the DRC recalled that, on 13
June 2016, the Respondent II sent his letter containing the offer for the transfer
of the player. Then, on 17 June 2016, the Respondent I terminated the contract
and, on 20 June 2016, he signed an employment contract with Respondent II.
45.
Having stated that, the DRC was eager to emphasise that the player raised his
income considerably by concluding an employment contract with Respondent II
and underlined that only seven days passed between the offer of Club D and the
conclusion of the new contract with Respondent II.
46.
Consequently, taking into account the circumstances surrounding the present
matter, the Chamber was of the opinion that the player only terminated the
Club A, Country B / Player C, Country B / Club D, Country E
15
contract with the aim of signing a new contract with Club D. As such, the DRC
decided that, by virtue of art. 17 par. 3 of the Regulations, the Respondent
player is to be sanctioned with a restriction of four months on his eligibility to
participate in official matches.
47.
Finally, the members of the Chamber turned their attention to the question of
whether, in view of art. 17 par. 4 of the Regulations, the player’s new club, i.e.
Respondent II, must be considered to have induced the player to unilaterally
terminate his contract with the Claimant without just cause during the protected
period and, therefore, shall be banned from registering any new players, either
nationally or internationally, for two entire and consecutive registration periods.
48.
In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the
Regulations, it shall be presumed, unless established to the contrary, that any
club signing a professional player who has terminated his previous contract
without just cause has induced that professional to commit a breach.
Consequently, the Chamber pointed out that the party that is presumed to have
induced the player to commit a breach carries the burden of proof to
demonstrate the contrary.
49.
Having stated the above, the members of the Chamber took note that, based on
the documentation submitted by the parties, it appears that Respondent II did
not contact the Claimant directly in view of the negotiation of the transfer of
the player and that there was a short distance between the date of termination
of the contract with Club A (17 June 2016) and the conclusion of the contract
with the Respondent II (20 June 2016).
50.
In light of the aforementioned, and given that Respondent II did not provide any
other specific or plausible explanation as to its possible non-involvement in the
player’s decision to unilaterally terminate his employment contract with the
Claimant, the DRC had no option other than to conclude that Respondent II had
not been able to reverse the presumption contained in art. 17 par. 4 of the
Regulations and that, accordingly, the latter had induced the player to
unilaterally terminate his employment contract with the Claimant.
51.
In view of the above, the Chamber decided that in accordance with art. 17 par. 4
of the Regulations, Respondent II shall be banned from registering any new
players, either nationally or internationally, for the two entire and consecutive
registration periods following the notification of the present decision.
Respondent II shall be able to register new players, either nationally or
internationally, only as of the next registration period following the complete
serving of the relevant sporting sanction. In particular, it may not make use of
the exception and the provisional measures stipulated in art. 6 par. 1 of the
Club A, Country B / Player C, Country B / Club D, Country E
16
Regulations in order to register players at an earlier stage.
52.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
Respondent I, Player C, is ordered to pay to the Claimant, w ithin 30 day s as
from the date of notification of this decision, compensation for breach of
contract in the amount of EUR 84,050.
3.
Respondent II, Club D, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
In the event that the aforementioned amount is not paid 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 I and Respondent II,
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.
7.
A restriction of four months on his eligibility to play in official matches is
imposed on the Respondent I, Player C. This sanction applies with immediate
effect as of the date of notification of the present decision. The sporting
sanctions shall remain suspended in the period between the last official match of
the season and the first official match of the next season, in both cases including
national cups and international championships for clubs.
8.
Respondent II, Club D, shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
*****
Club A, Country B / Player C, Country B / Club D, Country E
17
Note relating to the m otiv ated decis ion (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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Club A, Country B / Player C, Country B / Club D, Country E
18