Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 September 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Johan van Gaalen (South Africa), member
Leonardo Grosso (Italy), member
on the matter between the player,
Player A, country B,
as Claimant / Counter-Respondent
and the club,
Club C, country D,
as Respondent / Counter-Claimant
and the club,
Club E, country F
as intervening party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 15 July 2011, the player from country B, Player A (hereinafter: the player or
the Claimant / Counter-Respondent), and the club from country D, Club C
(hereinafter: Club C or the Respondent / Counter-Claimant), signed an
employment contract (hereinafter: the contract) valid as from 15 July 2011 until
15 July 2014, i.e. 3 years.
2.
According to the contract, Club C undertook to pay to the Claimant / CounterRespondent the following remuneration:
“The basic wage for the duration of this contract shall be USD 5,100,000 net.
For the period 15 July 2011 until 15 July 2014 payable as follows:
USD 425,000 as an advance payment will be paid on 1 August 2011.
USD 425,000 as an advance payment will be paid on 1 February 2012.
USD 425,000 as an advance payment will be paid on 1 August 2012.
USD 425,000 as an advance payment will be paid on 1 February 2013.
USD 425,000 as an advance payment will be paid on 1 August 2013.
USD 425,000 as an advance payment will be paid on 1 February 2014.
USD 2,550,000 to be paid in 36 equal monthly instalments.”
3.
The parties further agree on the following clauses:
“5. The [Respondent / Counter-Claimant] shall provide the player with copies of all of
the rules and regulations applicable by the federation including Professional
Player Regulations”.
“13. The player is aware of the [Respondent / Counter-Claimant]’s internal disciplinary
code in accordance with article (23), chapter (9) of the Professional Player
Regulations, and the two parties shall abide by it.”
“14. In case the player is found guilty of misconducts, repeating misbehaviours, or
violating the federation or the [Respondent / Counter-Claimant]’s regulations, the
disciplinary sanctions stipulated in the federation’s regulations including
Professional Player regulations shall be applicable to him.”
“21. In case of penalties on the player it will be deducted the value of the sanctions of
the total contract value.”
4.
The internal disciplinary code provides that:
Player A, country B / Club C, country D / Club E, country F
Page 2 of 19
“ Article 3: This regulation is deemed complementary to the professional contract
signed between the [Respondent / Counter-Claimant] and the player and an
integral part of it.”
“Article 4: A violator is notified with the punishment in a maximum period of one
working week from the date the violation or cause take place. He should sign on
the receipt and in case of refusal to do so, the team manager will submit a report
of such case and punishment is considered valid”.
“ Article 8.3: Behavioural duties: The player committed in general to the following
behavioural duties: (3) Maintain good appearance and not to do any work or
actions that may cause harm to the image and name of the [Respondent /
Counter-Claimant] or negative behaviours banned by the Football Federation of
country D and may attract criticism such as abnormal hair cut, neck chains, hair
dye and tattoos and likewise actions.”
“Article 8.6: Behavioural duties: The player committed in general to the following
behavioural duties: (3) Maintaining good behaviour in the private life of the
player.”
“Article 10.2: deduction of 10% of the monthly wage [for] absence from training […].”
“Article 11.1: deduction of 20% of the monthly wage [for] repeat one of the offenses
listed in article 10.”
“Article 12.18: discount 30% of the monthly wage [for] not abide by the [Respondent /
Counter-Claimant]’s official uniform bearing the logo of the sponsor in sports,
social, cultural event or any events involving the [Respondent / CounterClaimant].”
“Article 13.5: deduction of 40% of the monthly wage [for] assault on a fellow players
or employees of the [Respondent / Counter-Claimant].”
“Article 14: deduction of 50% of the monthly wage in the following cases:
1.
Repeat one of the offenses listed in Article 13.
2.
Absence from the main training (before the match without acceptable reason,
which could result in exclusion from the match.
3.
Refrain from performing training or participating in the matches or from joining
the camps because of financial claims.
4.
Not to wear [Respondent / Counter-Claimant] uniform during the coronation in
addition to deduction of 30% of the tournament bonus.”
5.
On 14 July 2012, Club C decided to exclude the Claimant / Counter-Respondent
from the training camp and send him back to a city in country D allegedly
Player A, country B / Club C, country D / Club E, country F
Page 3 of 19
“following [his] indiscretion and un-ethical behaviour at the team’s training camp
in a city in country G [Country G]”.
6.
On 27 July 2012, the Respondent / Counter-Claimant decided to impose a
reduction of 50% of the player’s monthly salaries of July, August and September
2012 (hereinafter: the first sanction) based on his “violation of camp instructions
[…] on 13 July 2012 when [he] called a girl to [his] room and had sex with her in
clear violation of instructions of the preparatory camp, [which] is a great mistake
of a professional player with such high financial value that supposed to be a
model for other players”.
7.
On 26 August 2012, Club C imposed a supplementary reduction of 5% over the
Claimant / Counter-Respondent’s salary of August 2012 (hereinafter: the second
sanction) because he refused to receive the notification of the first sanction.
8.
On 6 September 2012, the Respondent / Counter-Claimant decided to impose
reductions of 10% and 20% of the player’s salary of September 2012 for his
absences from training on 3 and 4 September 2012 respectively (hereinafter: the
third sanction).
9.
On 29 September 2012, Club C imposed a new sanction of 30% reduction of the
player’s salary of October 2012 (hereinafter: the fourth sanction) due to
“indifference and carelessness when the coach requested from [the Claimant /
Counter-Respondent] to make substitution and [he] didn’t have [his] jersey and
[…] replied that [he did] not know [where the jersey was] and maybe in the
dressing room which resulted in exchanging another player”.
10.
On 2 October 2012, the Claimant / Counter-Respondent informed the Football
Federation of country D of the various fines imposed and requested the help of
the latter to “get his wages paid in full without legal dispute involving the FIFA
Administration”.
11.
On 8 October 2012, Club C replied to the Football Federation of country D
confirming its position on all the sanctions imposed on the player so far.
12.
On 1 December 2012, the Respondent / Counter-Claimant again imposed a
reduction of 10% of the player’s salary of December 2012 (hereinafter: the fifth
sanction) based on his alleged absence from 1 December 2012’s training session.
13.
On 7 December 2012, the Claimant / Counter-Respondent warned the Respondent
/ Counter-Claimant regarding its salary arrears towards him in the total amount of
USD 460,422.50, corresponding to part of his salaries from July until November
2012 and setting a deadline for Club C to make the payment of the outstanding
remuneration by no later than 15 December 2012. Additionally, the player
Player A, country B / Club C, country D / Club E, country F
Page 4 of 19
maintained that the reductions of salary were not valid, objecting all misconduct
alleged by Club C as to the facts and challenging the legal basis for the imposition
of such sanctions, which is not referred to in any decision. Finally, the player
argues that Club C did not follow “the procedural requirements of any
disciplinary regulations which would be applicable”.
14.
On 17 December 2012, the Claimant / Counter-Respondent sent to Club C a notice
in connection with an alleged harassment and requested the Respondent /
Counter-Claimant to refrain trying to obtain his acceptance to terminate the
contract in advance.
15.
On 8 January 2013, the Claimant / Counter-Respondent sent a letter to the
Respondent / Counter-Claimant observing that his salaries remained unpaid and
that he was side-lined from the training camp held in country D.
16.
On 17 January 2013, Club C replied to the player’s correspondence stressing that
his dues were deposited in his account and that he benefited from the same
treatment as any other player. In addition, Club C maintained that the sanctions
were taken in accordance with its internal regulations which were approved by
the Football Federation of country D and were given to the player before signing
the contract. Club C further insisted that the side-lining from the training camp
was justified by the fact that “[he] did not exert his full effort to serve the team in
this current period”. Finally, Club C pointed out that the Claimant / CounterRespondent “did not show any cooperation with [it] as (…) [he] refused two
borrow offers from Club H (Country I) and Club J (Country D)”.
17.
On 6 February 2013, the Claimant / Counter-Respondent terminated the contract,
in writing, based on partially unpaid salaries as from July until November 2012,
fully unpaid salaries as from December 2012 until February 2013 and his exclusion
from Club C’s first team.
18.
On 11 February 2013, the player lodged a claim against Club C before FIFA for
breach of contract, requesting the payment of the total amount of USD
2,944,842.15, broken down as follows:
a)
USD 890,647.15, plus 5% interest p.a. as from 1 October 2012 as outstanding
remuneration;
USD 2,054,195 plus 5% interest p.a. as from 15 August 2013, as compensation
equivalent to the residual value of the contract.
b)
19.
The Claimant / Counter-Respondent first sustains that the first and second
sanction are unfounded and disproportionate.
Player A, country B / Club C, country D / Club E, country F
Page 5 of 19
20.
Regarding the third sanction, the player asserts that he missed the training
sessions of 3 and 4 September 2012 because he was called upon by his national
team and had previously received approval to miss said training sessions. The
player also argues that said sanction is unjustified.
21.
As far as the fourth sanction is concerned, the Claimant / Counter-Respondent
argues that the facts on its basis are inaccurate and that in any case, said sanction
is also unfounded and disproportionate.
22.
In continuation, the Claimant / Counter-Respondent explains that he was
authorised to be absent on 1 December 2012 since said day was a rest day. In
support of his allegation, the player presented a training programme mentioning
that no training session was scheduled on 1 December 2012, adding that “this
program can be modified”.
23.
The Claimant / Counter-Respondent complains that between December 2012 and
January 2013, Club C attempted to convince him to sign a loan agreement for a
lower salary.
24.
Finally, the Claimant / Counter-Respondent alleges that as of the beginning of
January 2013, he was not called up for the training camp, was side-lined from the
first team and his personal locker was removed.
25.
All in all, the Claimant / Counter-Respondent asserts that, as from July 2012, Club
C did not comply with its financial obligations towards him as per the contract
and, therefore, owes him the following amounts as outstanding remuneration:
i)
USD 35,417.50, plus 5% interest p.a. as from 1 July 2012;
ii)
USD 182,307.50, plus 5% interest p.a. as from 1 August 2012;
iii)
USD 35,417.50, plus 5% interest p.a. as from 1 September 2012;
iv)
USD 35,417.50, plus 5% interest p.a. as from 1 October 2012;
v)
USD 35,417.50, plus 5% interest p.a. as from 1 November 2012;
vi)
USD 70,835, plus 5% interest p.a. as from 1 December 2012;
vii)
USD 70,835, plus 5% interest p.a. as from 1 January 2013;
viii)
USD 425,000, plus 5% interest p.a. as from 1 February 2013.
26.
On 12 March 2013, Club C replied to the player’s claim and lodged a counterclaim
requesting to be awarded with the amount USD 7,475,000, plus 5% interest p.a.
as of the date of termination, broken down as follows:
- USD 2,550,000 as residual value of the contract;
- USD 1,500,000 as non-amortised transfer fee;
- USD 3,000,000 “for the loss of the value of the services of the Player”;
- USD 425,000 as specificity of sport.
Player A, country B / Club C, country D / Club E, country F
Page 6 of 19
27.
In its reply, Club C argues that as from 14 July 2012, the player became a
disruptive influence.
28.
Club C asserts that the claim of the Claimant / Counter-Respondent is an attempt
to challenge the salary reductions, which the player did not appeal in accordance
with art. 30 of the Regulations of Professionalism of the Football Federation of
country D.
29.
Club C further asserts that the internal disciplinary code is, as per its art. 3,
complementary to the contract and provides a list of banned actions and
behaviours, their sanctions and the system to appeal them.
30.
Club C explains that the Claimant / Counter-Respondent admitted the facts that
led to the imposition of the first sanction. In addition, Club C sustains that the first
sanction and the third sanction were imposed in accordance with arts. 8.3 and 8.6
and 10.2 and 11.1 of the internal disciplinary code, respectively. Regarding the
third sanction, Club C argues that there was no international match of the player’s
national team considered as obligatory for Club C to release the player.
31.
Likewise, Club C supports the fourth sanction on the application of art. 12.18 of
the internal disciplinary code. In this respect, Club C emphasises that the player’s
lack of professionalism obliged the coach to change his tactical plans and field
another player.
32.
In turn, Club C asserts that, in connection with the fifth sanction, it is not true that
1 December 2012 was a rest day since the program submitted by the Claimant /
Counter-Respondent was susceptible to be modified and had actually been
modified.
33.
In addition to all the sanctions referred by the Claimant / Counter-Respondent in
his claim, Club C points out that a 40% deduction of his salary of January 2013
was imposed on the player in accordance with art “14.5” of the internal
disciplinary code (hereinafter: the sixth sanction), due to his alleged behaviour
consisting in disrespectfully ignoring and spitting at the head coach and at the
goalkeepers’ coach when they greeted him. In support of its assertions, the
Respondent / Counter-Claimant submitted two statements made by the abovementioned coaches.
34.
Club C states that all the sanctions were validly imposed on the Claimant /
Counter-Respondent and that he was properly notified of them due to the fact
that he submitted copies of all the sanctions when lodging his claim in front of
FIFA.
Player A, country B / Club C, country D / Club E, country F
Page 7 of 19
35.
In continuation, Club C asserts that the Claimant / Counter-Respondent turned
down two offers made by a club from country I and a club from country D
respectively, which were of higher value than his contract with Club C.
36.
Club C further explains that in January 2013, the head coach decided to exclude
the player from the first team and from the training camp in country D since he
“was not exerting his full effort”. In this regard, Club C stresses that it only
decided to de-register him at a later stage, after he refused to train with the
reserve team.
37.
Club C also emphasises that due to the player’s lack of professionalism, it had to
buy a new player in replacement for an amount of USD 1,000,000.
38.
Furthermore, Club C points out that it had no interest in losing the services of a
player in which it had invested a lot of money.
39.
In view of the above, Club C alleges that it is actually the Claimant / CounterRespondent who, by missing practices, putting its reputation in jeopardy,
disrespecting coaches and failing to return from international duties, breached
the contract.
40.
Regarding the calculation of the compensation, Club C first stresses that the
remaining value of the contract amounts to USD 2,550,000. In addition, Club C
sustains that it paid USD 3,000,000 for the transfer of the player in July 2011 and,
therefore, the non-amortised transfer fee, which is equivalent to USD 1,500,000
must be taken into consideration. Club C then asserts that “the offer of USD
1,700,000 for the season, as well as an amount of USD 1,300,000 made by Club J
must be considered as a minimum amount for the value of the services of the
Player at the time when he unilaterally terminated his employment contract” and
therefore claims the amount of USD 3,000,000 “for the loss of the value of the
services of the Player”. Moreover, Club C claims to be awarded with the
replacement costs as well as the amount of USD 425,000 as specificity of sport,
allegedly corresponding to six monthly salaries.
41.
Finally, Club C requests the imposition of sporting sanctions on the player.
42.
In his replica, the Claimant / Counter-Respondent stresses that he was never
provided with a copy of the internal disciplinary code. In addition, the player
explains that as per Swiss case law, even if it was deemed that he had accepted
the latter code by signing the contract, its provisions that are not usual or typical
could not be considered as part of the agreement since Club C failed to
specifically draw his attention on the content of such provisions. In particular, the
Claimant / Counter-Respondent points out that art. 8.1 of the internal disciplinary
code provides for very atypical duties, contrary to the principle of personal
Player A, country B / Club C, country D / Club E, country F
Page 8 of 19
freedom. Furthermore, the player outlines that the sanctions provided in the
internal disciplinary code are clearly disproportionate and contrary to art. 323 a of
the Swiss Code of Obligations, which limits the amount that an employer can
withhold from an employee’s salary to 10% of his monthly salary. The Claimant /
Counter-Respondent eventually emphasises that none of the sanctions makes
reference to the internal disciplinary code and to the procedure to appeal them.
Nevertheless, the Claimant / Counter-Respondent argues that by means of his
correspondence dated 2 October 2012, addressed to the Football Federation of
country D, he tried to challenge the sanctions imposed on him but was not heard.
In this respect, the player sustains that the way of appeal to the Committee of the
Football Federation of country D is delusive and imaginary.
43.
As far as the first sanction is concerned, the Claimant / Counter-Respondent
underlines that being in a room with a girl is a matter of private life with no
impact on his football activities and therefore, cannot be considered as an
attitude that may harm the image and name of the Respondent / CounterClaimant. In addition, the player underlines that the attitude for which he had
been blamed is not listed in art. 14 of the internal disciplinary code. The player
further specifies that in any case, said article only provides for the deduction of
50% of the monthly wage, and not for the reduction of the monthly wage during
three months.
44.
Regarding the second sanction, the Claimant / Counter-Respondent specifies that
he did not refuse the notification but merely refused to sign the document
presented to him in order to express his disagreement with the content of the
sanction and reserve his rights.
45.
Furthermore, the Claimant / Counter-Respondent reiterates that he had been
called up by his national team to play against Country K on 7 September 2014 and
that in any case, the absence on 3 and 4 September should be considered as one
absence and not as a repetition of infringements.
46.
As to the fourth sanction, the player rejects the allegations of lack of
professionalism and maintains that it was the staff’s responsibility to make sure
that he was in possession of a jersey. The Claimant / Counter-Respondent further
adds that he wore during 88 minutes the jacket of the Respondent / CounterClaimant and therefore did not fall under art. 12.18 of the internal disciplinary
code.
47.
The Claimant / Counter-Respondent then outlines that Club C did not submit any
element evidencing that the programme of 1 December 2012 had been modified
and that he had been informed of it.
Player A, country B / Club C, country D / Club E, country F
Page 9 of 19
48.
Concerning the sixth sanction, the Claimant / Counter-Respondent first asserts
that he was never informed of it and emphasises that the coaches’ declaration
submitted by Club C state that he spat to the ground and not at them as alleged
by Club C.
49.
In continuation, the Claimant / Counter-Respondent asserts that the offers made
by the club from country I and the club from country D were for a lower salary.
50.
Considering the foregoing, the player argues that Club C failed to pay him more
than three monthly salaries. In addition, the player maintains that Club C
excluded him from the team without any valid and justified reason and by doing
so, violated his right to work. The Claimant / Counter-Respondent eventually
alleges that the Respondent / Counter-Claimant harassed him, trying to force him
to accept offers from other clubs and retained his passport at the end of the year
2012.
51.
Finally, the Claimant / Counter-Respondent referred to the remuneration received
under his new contract and amended his claim for compensation, requesting to
be awarded with the amount of USD 354,195, plus 5% interest as of 15 August
2013, as compensation for breach of contract.
52.
In its duplica, Club C first repeats its previous considerations regarding the player’s
knowledge and acceptance of the internal disciplinary code.
53.
Regarding the first sanction, Club C emphasises that the player’s behaviour, i.e. his
alleged adultery, took place during a training camp and therefore cannot be
considered as a matter of private life. Club C further stresses that it had a
discretionary power to sanction such a behaviour which is even more serious
considering the particularities of the regime and the culture in country D.
54.
As to the second sanction, Club C points out that it was justified by art. 4 of the
internal disciplinary code and that the player could have expressed his
disagreement by writing “notification received, I don’t agree” on the document
instead of refusing to sign it.
55.
Club C further explains that the Claimant / Counter-Respondent is unable to prove
that he had been called up by his national team in accordance with the procedure
established in the FIFA Regulations on the Status and Transfer of Players. In
addition, Club C questions why the player was only absent on 3 and 4 September
2012 considering that the game was scheduled on 7 September 2012. Moreover,
Club C emphasises that as per the internal disciplinary code, any absence from a
training session is deemed a separate infringement.
Player A, country B / Club C, country D / Club E, country F
Page 10 of 19
56.
Furthermore, Club C rejects the player’s arguments and reiterates its position as to
the fourth and fifth sanctions.
57.
Club C then affirms with regards to the sixth sanction, that no matter the
direction of the spit, the mere fact of spitting when someone is greeting you is
considering a very serious offence in the culture of country D.
58.
Finally, Club C sustains that no amount was outstanding and that the player was
never deprived of his right to work but only invited to train with the reserve
team.
59.
In his final comments, the Claimant / Counter-Respondent asserts that Club C
failed to submit elements evidencing that it provided him with the internal
disciplinary code.
60.
On 15 March 2013, the Claimant / Counter-Respondent and Club E concluded an
employment contract valid as of 27 February 2013 until 31 December 2014 and
according to which the player was entitled to the following remuneration:
-
-
From 27 February 2013 until 31 December 2013:
USD 900,000 as basic annual compensation;
USD 300,000 as signing bonus payable by 31 March 2013;
USD 200,000 as signing bonus payable by 31 July 2013;
From 1 January 2014 until 31 December 2014: USD 1,000,000 as annual
compensation.
61.
Having been invited to do so, Club E only confirmed that it signed a contract with
the player, without submitting any further comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or
the Chamber) analysed whether it was competent to deal with the matter at
stake. In this respect, it took note that the present matter was submitted to FIFA
on 11 February 2013. Consequently, the 2012 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 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 2015), the Dispute Resolution Chamber is competent to deal with
Player A, country B / Club C, country D / Club E, country F
Page 11 of 19
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B, a club from country D
and a club from country F.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2015), and considering that the present claim was lodged in front of FIFA
on 11 February 2013, the 2012 edition of said Regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. In doing so, it
started by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file. However, the Chamber emphasised that in
the following considerations it will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the
matter at hand.
5.
In this respect, the members of the Chamber acknowledged that the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant had signed an
employment contract on 15 July 2011, valid as of the date of signature until 15
July 2014. Furthermore, the Chamber took note that on 6 February 2013, and
after having put the Respondent / Counter-Claimant in default on several
occasions, the Claimant / Counter-Respondent terminated in writing the
contractual relationship with the Respondent / Counter-Claimant.
6.
In continuation, the Chamber noted that the Respondent / Counter-Claimant
considers that the Claimant / Counter-Respondent terminated the employment
contract without just cause. On the other hand, the DRC observed that the
Claimant / Counter-Respondent claims that he had just cause to do so since the
Respondent / Counter-Claimant was no longer interested in his services. In
particular, the Chamber took note that the Claimant / Counter-Respondent
outlines that the Respondent / Counter-Claimant failed to pay him several salaries,
imposed on him several unfounded fines and side-lined from the first team.
7.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant / CounterRespondent and the counterclaim of the Respondent / Counter-Claimant, was to
determine whether the employment contract had been unilaterally terminated
with or without just cause by the Claimant / Counter-Respondent, and which party
was responsible for the early termination of the contractual relationship in
question.
Player A, country B / Club C, country D / Club E, country F
Page 12 of 19
8.
In this respect, the Chamber pointed out that the Respondent / Counter-Claimant
asserts having paid all the amounts actually due to the Claimant / CounterRespondent. In particular, the DRC took note that Club C emphasises that the
player’s remuneration was reduced by means of six fines imposed on him in
accordance with its internal disciplinary code and due to his misbehaviour.
9.
Before entering into the specific analysis of the fines, the Chamber had to
determine whether the Claimant / Counter-Respondent had accepted to be bound
by the internal disciplinary code. In doing so, the DRC referred to clause 13 of the
contract which stipulates that “[the Claimant / Counter-Respondent] is aware of
the [Respondent / Counter-Claimant]’s internal disciplinary code in accordance
with article (23), chapter (9) of the Professional Player Regulations, and the two
parties shall abide by it”. In view of the above, the members of the Chamber
concurred that the Claimant / Counter-Respondent expressly acknowledged being
aware of the content of the internal disciplinary code and accepted to be bound
by it. Furthermore, the DRC highlighted that by means of clause 21 of the
contract, the Claimant / Counter-Respondent agreed on the mode of execution of
the disciplinary sanctions.
10.
Having stated the above, the Chamber focused its attention on the analysis of the
several fines imposed on the player. As far as the first fine is concerned, the
members of the Chamber observed that said fine did not rest upon any article of
the internal disciplinary code and, therefore, decided to disregard it due to its lack
of legal basis. Equally, the members of the Chamber emphasised that the second
fine had no proper rationale and was subject to the first fine being considered
valid. Consequently, the DRC decided to set aside the second fine as well.
11.
In continuation, the Chamber proceeded to the analysis of the third fine. In this
regard, the members of the Chamber, referring to 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, pointed out that the Claimant /
Counter-Respondent failed to provide any reliable document evidencing that he
was on international duty on 3 and 4 September 2012. Therefore, and considering
the Claimant / Counter-Respondent’s unjustified absence, the DRC held that Club
C had the right to sanction the player on the basis of art. 10.2 of the internal
disciplinary code. Nevertheless, the members of the Chamber agreed that the
absence on 4 September could not be deemed as a repeated offence and that the
absences on 3 and 4 September 2012 should be considered as one single absence
leading to a deduction of 10% of the Claimant / Counter-Respondent’s salary for
September 2012. Indeed, the Chamber outlined that for an offence to be
considered as a repeated offence, a previous and similar offence must have been
sanctioned whereas, in the case at hand, the Respondent / Counter-Claimant
noted and sanctioned the absences on 3 and 4 September 2012 at the same time,
i.e. on 6 September 2012. Accordingly, the Chamber concluded that the
Respondent / Counter-Claimant was entitled to retain 10% of the Claimant /
Player A, country B / Club C, country D / Club E, country F
Page 13 of 19
Counter-Respondent’s salary for September 2012, i.e. USD 7,085, due to his
absence on 3 and 4 September 2012.
12.
Turning its attention to the fourth fine, the Chamber referred one more time to
art. 12 par. 3 of the Procedural Rules and held that the Respondent / CounterClaimant did not submit any evidence proving that the sanctioned situation was
actually imputable to the player. In any case, the DRC stressed that should the
facts reproached to the Claimant / Counter-Respondent have been proven, quod
non, a deduction of 30% of the Claimant / Counter-Respondent, although
provided for in the internal disciplinary code, would be disproportionate. In light
of the foregoing, the DRC decided to disregard the fourth fine imposed on the
player.
13.
As to the fifth fine, the members of the Chamber first observed that the training
programme for December 2012 submitted by the Claimant / Counter-Respondent
indicates that no training session was scheduled on 1 December 2012. The DRC
further noted that said training programme expressly mentions that “this
program can be modified”. In this respect, the members of the Chamber
underlined that Club C merely states that the programme was indeed modified
but did not present any evidence in support of its assertion. In view of the above,
the DRC, making again reference to art. 12 par. 3 of the Procedural Rules,
concluded that the player was allowed to be absent on 1 December 2012 and
that, therefore, the fine should be deemed null and void.
14.
Finally, the members of the DRC turned their attention to the reasons put forward
by Club C in order to justify the sixth fine, i.e. the alleged player’s misbehaviour
consisting in spitting at the head coach and at the goalkeepers’ coach. In doing
so, the DRC observed that the Respondent / Counter-Claimant submitted, in
support of its assertions, various witness statements made by members of its own
organisation. In this regard, the Chamber deemed it fit to outline that the
positions occupied by the witnesses put in doubt the impartiality of their
statements and therefore, after making reference to art. 12 par. 3 as well as par. 6
of the Procedural Rules, according to which the evidence shall be considered with
free discretion, held that the Respondent / Counter-Claimant did not satisfactorily
carry the burden of proof regarding the player’s misconduct in this regard.
15.
In light of the above-mentioned considerations, and considering the deduction of
10% of the salary for September 2012, the Chamber concluded that part of the
player’s salary for September 2012, half of his salaries for July, October and
November 2012, his salaries for December 2012 and January 2013 as well as part
of the down payment due on 1 August 2012 and the down payment due on 1
February 2013 were outstanding at the time of the termination of the contract.
16.
In continuation, the Chamber analysed the arguments raised by the Respondent /
Counter-Claimant in order to justify the player’s exclusion from the first team as
Player A, country B / Club C, country D / Club E, country F
Page 14 of 19
well as from the training camp and his later de-registration. In doing so, the DRC
noted that Club C explains that the player was first relegated to the reserve team
because he “was not exerting his full effort” and was then de-registered due to
his refusal to train with the latter team. Apart from observing that the concept of
“exerting his full effort” is highly subjective, the Chamber pointed out that Club C
did not support its allegations by any concrete evidence. Accordingly, and in view
of the content of art. 12 par. 3 of the Procedural Rules, the DRC concluded that
the player’s side-lining from the first team was not objectively justified.
17.
Having failed to demonstrate that the Claimant / Counter-Respondent’s sidelining resulted from the latter’s behaviour, the Chamber focused its attention on
the consequences of said side-lining. In this respect, the Chamber observed that
the side-lining occurred in January 2013, as it can be inferred from the
documentation provided by the parties in this regard. The indicated period forms
part of what is considered to be a crucial phase of preparation for the second part
of the season, during which all players are required to display their performance,
in order to be able to undergo a selection by the club’s coach for the next season.
18.
In view of the aforementioned fact, the DRC was of the opinion that the Claimant
/ Counter-Respondent had founded reasons to believe that the Respondent /
Counter-Claimant was no longer interested in his services for the upcoming
second part of the season.
19.
On account of all the above circumstances, and in particular considering the
Claimant / Counter-Respondent’s side-lining during a crucial period of the season
as well as the Respondent / Counter-Respondent’s failure to pay more than four
monthly salaries as well as several down payments, the Chamber established that
the Respondent / Counter-Claimant had repeatedly been in breach of its
contractual obligations towards the Claimant / Counter-Respondent.
Consequently, the Chamber decided that the Claimant / Counter-Respondent had
just cause to unilaterally terminate the employment contract on 6 February 2013
and that, as a result, the Respondent / Counter-Claimant is to be held liable for
the early termination of the employment contact with just cause by the Claimant /
Counter-Respondent.
20.
In light of the foregoing, the Chamber decided to accept the Claimant / CounterRespondent’s claim with regards to the Respondent / Counter-Claimant’s breach
of contract without just cause and, thus, rejected the Respondent / CounterClaimant’s counterclaim.
21.
Having established that the Respondent / Counter-Claimant is to be held liable for
the early termination of the employment contract with just cause by the Claimant
/ Counter-Respondent, the Chamber focused its attention on the consequences of
such termination. Taking into consideration art. 17 par. 1 of the Regulations, the
Player A, country B / Club C, country D / Club E, country F
Page 15 of 19
Chamber decided that the Claimant / Counter-Respondent is entitled to receive
from the Respondent / Counter-Claimant an amount of money as compensation
for breach of contract in addition to any outstanding amounts on the basis of the
relevant employment contract.
22.
First of all, reverting to the Claimant / Counter-Respondent’s claim for
outstanding remuneration, the DRC made reference to its previous considerations
and recalled that at the time of the termination, i.e. on 6 February 2013, a total
amount of USD 883,562.15, corresponding to the part of the player’s salary for
September 2012, half of his salaries for July, October and November 2012 and his
salaries for December 2012 and January 2013 as well as part of the down payment
due on 1 August 2012 and the down payment due on 1 February 2013, was
outstanding. The DRC wished to recall that, to the aforementioned outstanding
amounts, it deducted the amount of USD 7,085 as per the fine corresponding to
10% of the player’s salary for September 2012, as determined in its previous
considerations
23.
Consequently, in accordance with the principle of pacta sunt servanda, the
Chamber decided that the Respondent / Counter-Claimant is liable to pay the
Claimant / Counter-Respondent the amount of USD 883,562.15 as outstanding
remuneration.
24.
In addition, taking into consideration the Claimant / Counter-Respondent’s claim,
the Chamber decided to award him interest at the rate of 5% p.a. as from each
due date until the date of effective payment.
25.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the 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 Claimant / Counter-Respondent
under the existing contract and/or the new contract, the time remaining on the
existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
26.
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 breach of
contract. In this regard, the Chamber established that no such compensation
Player A, country B / Club C, country D / Club E, country F
Page 16 of 19
clause was included in the employment contract at the basis of the matter at
stake.
27.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant /
Counter-Respondent 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.
28.
Bearing in mind the foregoing as well as the claim of the Claimant / CounterRespondent, the Chamber proceeded with the calculation of the monies payable
to the Claimant / Counter-Respondent under the terms of the contract until 15
July 2014, taking into account that the Claimant / Counter-Respondent’s
remuneration which had fallen due up until 6 February 2013 is included in the
calculation of the outstanding remuneration. Therefore, the Chamber held that
the remuneration due as of 6 February 2013 until 15 July 2014 should be taken
into consideration to figure out the amount due as a compensation for breach of
contract. In view of the above, the Chamber concluded that the amount of USD
2,054,195 shall serve as the basis for the final determination of the amount of
compensation for breach of contract
29.
In continuation, the Chamber verified as to whether the Claimant / CounterRespondent had signed an employment contract with another club during the
relevant period of time, by means of which he would have been able to reduce his
loss of income. According to the constant practice of the DRC, such remuneration
under a new employment contract shall be taken into account in the calculation
of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
30.
The Chamber noted that according to the Respondent / Counter-Claimant’s
declarations and the documentation submitted by the intervening parties, the
Claimant / Counter-Respondent concluded an employment contract in the
relevant period, according to which he received a remuneration of USD 1,900,000.
31.
In accordance with the constant practice of the Dispute Resolution Chamber and
the general obligation of the player 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 DRC decided that the Respondent / CounterClaimant must pay the amount of USD 154,195 to the Claimant / Counter-
Player A, country B / Club C, country D / Club E, country F
Page 17 of 19
Respondent, which is considered by the DRC to be a reasonable and justified
amount as compensation for breach of contract.
33.
In addition, taking into account the Claimant / Counter-Respondent’s request, the
Chamber decided that the Respondent must pay to the Claimant interest of 5%
p.a. on the amount of compensation as of 15 August 2013 until the date of
effective payment.
34.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant / CounterRespondent is rejected.
**********
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of USD 883,562.15 plus 5% interest p.a.
until the date of effective payment as follows:
a. 5% p.a. as of 1 October 2012 on the amount of USD 246,057.50;
b. 5% p.a. as of 1 November 2012 on the amount of USD 35,417.50;
c. 5% p.a. as of 1 December 2012 on the amount of USD 35,417.50;
d. 5% p.a. as of 1 January 2013 on the amount of USD 70,835;
e. 5% p.a. as of 1 February 2013 on the amount of USD 70,835;
f. 5% p.a. as of 2 February 2013 on the amount of USD 425,000.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract amounting to USD 154,195 plus 5% interest
p.a. on said amount as from 15 August 2013 until the date of effective payment.
5.
In the event that the amounts plus interest due to the Claimant / CounterRespondent in accordance with the above-mentioned points 2. and 3. are not paid
by the Respondent / Counter-Claimant within the stated time limits, 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 / Counter-Respondent is rejected.
Player A, country B / Club C, country D / Club E, country F
Page 18 of 19
7.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country F
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