Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 21 September 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
John Bram hall (England), member
Johan v an Gaalen (S outh Africa), member
Moham ed Al-S aikhan (S audi Arabia), member
Pav el Piv ov arov (Rus s ia), member
on the matter between the club,
Club A, Country B
as Claimant / Respondent I
and the player,
Play er C, Country D
as Claimant / Respondent II
and the club,
Club E, Country F
as Respondent III
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 30 January 2014, the player of Country D, Player C (hereinafter: Claimant /
Respondent I or player) concluded an employment contract (hereinafter: the
contract) with the club of Country B, Club A (hereinafter: Claimant / Respondent II
or club) valid as from 1 February 2014 until 30 June 2016, including an extension
option until 30 June 2017.
2.
In accordance with the contract, the club undertook to pay the player, inter alia, a
monthly salary in the amount of EUR 15,000 as well as a “signing fee bonus” in the
amount of EUR 58,824 on 15 February 2014.
3.
Art. VI. par. 3 d) of the contract, under the subtitle “Termination of the
Agreement”, reads as follows: “The Player may withdraw from the Contract if the
Club does not fulfil its undertaking given in Article IV point 1 [cf. point 2 above], or
any other undertaking to pay remuneration, a bonus or any other payment due to
the Player according to this Contract, and does not do so even in the replacement
deadline of 30 days, which begins to run on the day of the delivery of the appeal
from the Player addressed to the Club for payment of the due liabilities according
to this Contract. The period of notice for this case is 60 calendar days and begins to
run on the day following delivery of the written appeal to the Club; the Player is
entitled to give notice to the Club at the earliest on the first day following the
replacement deadline agreed between him and the Club.”
4.
Moreover, the contract contains the following clause under the subtitle of
“Undertakings of the Player”: “To observe all the instructions and internal
regulations of the company, in particular the directives and regulations concerning
sports clothing and the Communication Manual. To submit to the decisions of the
bodies and management of the Club, to accept guest appearances, providing the
Player is not in the A-team, and also the disciplinary competence of the Club
arising from its statutes and the rules of the Football Association of Country B”.
5.
In its article V., the contract contains the following provision: “In the case of
infringement of the responsibilities according to this Contract on the part of the
Player [the club] is entitled to impose on the Player a fine to the amount of a one
month’s salary for each infringement of a contractual obligation. Before imposing
a contractual fine [the club] is obliged to call upon the Player to observe
contractual obligations, or to eliminate the faulty situation. In the case that the
Player does not do this, in spite of a written appeal, [the club] is entitled to impose
a contractual fine according to this article […].”
6.
The Disciplinary Regulations of the club contain the following articles:
Club A, Country B/ Player C, Country D / Club E, Country F
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- Art. 4.2.5 in section “Types of Disciplinary Offences”: “Any failure to attend the
training process, training camps, matches or official events without proper
excuse, or failure to attend training session without an acceptable excuse that has
been communicated immediately before or during the training session to the
Club Secretariat, or Sports Secretary, as well as late arrival for the training session
or repeated late arrival to the training session”.
- Art. 4.2.15 in section “Types of Disciplinary Offences”: “Any violation of
obligations arising from the Professional Contract or Similar Agreement”.
- Art. 5.1 in section “Disciplinary Actions arising from the Breach of Contractual
Obligations established by Professional Contract or Similar Agreement”:
lit.a: “to attend the training process, training camps and matches and while
doing so to make every effort, to know and observe the laws of the game and
regulations”.
lit. b: “to adhere to the prescribed regime arising from the preparation for the
matches and attendance at the matches”.
7.
Furthermore, art. 11.2 of the Disciplinary Regulations of the club reads as follows:
“The imposed fine may be unilaterally set-off against the legitimate receivables of
the Offender against the Club (basic monthly salary, bonus pay for sport results,
bonuses, appearance money and so on)”.
8.
On 30 June 2015, the player sent a default notice to the club requesting payment
of outstanding remuneration in the amount of EUR 30,000 corresponding to the
salaries of April and May 2015.
9.
On 10 July 2015, the player sent a default notice to the club requesting payment of
outstanding remuneration in the amount of EUR 45,000 corresponding to the
salaries of April, May and June 2015. In this regard, the player warned the club
that he would terminate the contract if the outstanding amount would not be
remitted within 10 days.
10.
On 28 July 2015, allegedly received by the club on 30 July 2015, the player
terminated the contract in writing, since the club allegedly failed to fulfil its
financial duties. The player invoked that “By this date you paid 15.000 EUR net for
monthly remuneration for April 2015 and you are still in delay with payment of
monthly remuneration in the total amount of 30.000 EUR net for April and May
2015”. The player further stated that the salaries for “April and June 2015” in the
amount of EUR 30,000 remained outstanding.
11.
On 28 July 2015, the club’s disciplinary committee issued a decision imposing a fine
on the player in the amount of 1,000,000 in the currency of Country B, which was
notified to the player on 30 July 2015.
Club A, Country B/ Player C, Country D / Club E, Country F
Page 3 of 16
12.
13.
On 29 July 2015, the club’s disciplinary committee issued a new decision imposing a
fine on the player in the amount of 650,000 in the currency of Country B, which
was notified to the player on 30 July 2015.
Claim of the club against the player:
On 6 August 2015, the club lodged a claim against the player for breach of
contract without just cause, requesting payment of the following monies:
- 1,244,550 in the currency of Country B as imposed fines;
- EUR 865,298 as compensation for breach of contract plus 5% interest p.a. as of
“date of effective payment”.
In addition, the club requested that the player shall pay the legal expenses
incurred.
14.
In its arguments, the club held that the player failed to resume for summer
preparation training on 17 June 2015 and only returned from holidays on 22 June
2015. In this regard, the club imposed a fine in the amount of 1,000,000 in the
currency of Country B on 28 July 2015 based on the club’s Disciplinary Regulations,
i.e. art. 4.2.5, 4.2.15 and 5.1.
15.
According to the club, subsequently, the player failed to attend training on 28 and
29 July 2015, for which the club imposed another fine in the amount of 650,000 in
the currency of Country B based on the club’s Disciplinary Regulations, i.e. art.
4.2.5, 4.2.15 and 5.1.
16.
In view of the above, the club set off the fines imposed on the player with the
outstanding salary for June 2015, which led the club to the conclusion that the
player needs to reimburse the amount of 1,244,550 in the currency of Country B.
17.
Moreover, the club argued that the player terminated the contract on 30 June
2015 without just cause, since only one monthly salary was outstanding, i.e. May
2015. In this regard, the club held that the monthly salaries were due at the end of
the following month since this was the practice during the contractual
relationship.
18.
Consequently, the club requested compensation for breach of contract in the total
amount of EUR 865,298 consisting of EUR 1,356,417 (transfer fee in the amount of
EUR 190,000; signing bonus; total remuneration including the extension according
to the contract, lost profit of the expected transfer fee, “training, marketing and
advertising costs”) less the saved salaries in the amount of EUR 491,119. In this
regard, the club submitted the transfer agreement concluded with Club G in order
to secure the services of the player on 28 January 2014.
Club A, Country B/ Player C, Country D / Club E, Country F
Page 4 of 16
19.
Player’s claim against the club
On 23 September 2015, with a subsequent amendment on 24 September 2015, the
player lodged a separate claim against the club for breach of contract without just
cause, requesting payment of the following monies:
- EUR 15,000 as outstanding remuneration corresponding to the June 2015 salary;
- EUR 180,000 as compensation for breach of contract, corresponding to the
residual value of the contract.
In addition, the player requested interest of 5% “of the date of effective
payment”.
20.
In his initial claim, the player held that the salaries of May and June 2015 remained
outstanding, whereas he amended his claim on 24 September 2015 stating that at
the moment of the termination the salaries of “April, May and June 2015”
remained outstanding and that he therefore had just cause to terminate the
contract after having previously put the club in default.
21.
In this regard, the player pointed out that the club was repeatedly late in remitting
his salaries and referred to a previous claim for outstanding remuneration lodged
in front of FIFA, which was withdrawn at a later stage. Furthermore, the player
submitted several default notices referring to late payments at an earlier stage.
22.
Moreover, the player acknowledged receipt of the following payments from the
club:
- EUR 15,000 on 15 July 2015 corresponding to the salary of April 2015;
- EUR 15,000 on 5 August 2015 corresponding to the salary of May 2015.
23.
Moreover, the player requested compensation for breach of contract
corresponding to the residual value of the contract in the amount of EUR 180,000,
i.e. for 12 months.
24.
Player’s reply to the claim of the club:
In reply to the club’s claim, the player rejected the latter in full.
25.
The player admitted having been absent as of 17 June 2015 until 21 June 2017, but
held that his absence was caused by a misunderstanding due to a change in the
coaching staff of the club. In this regard, the player referred to text messages
submitted by the club, according to which he informed the team manager of his
phone number and an email dated 20 June 2015, in which he offered his services
to the club.
26.
As to the disciplinary sanctions imposed, the player held never having signed the
Disciplinary Regulations, that it was “no proper attachment to the contract” and
that he was, in any case, not bound by said regulations.
Club A, Country B/ Player C, Country D / Club E, Country F
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27.
Furthermore, the player pointed out that he was not duly notified of the hearings
of the Disciplinary Committee of the club on 28 July 2015 as well as on 29 July 2015
and that his right to be heard was violated since he could not be present.
28.
Regarding the club’s argument that only one monthly salary remained outstanding
at the moment of termination, the player stated that the documents submitted by
the club demonstrate its constant late payments of salaries. In this regard, the
player confirmed that the salaries were due at the end of the following month, but
held that the club “has been in continuous delay of payments to the [player] from
the very beginning of the year 2015 and expressly acknowledged the overdue
claims for two consecutive months in row, April and May 2015”.
29.
Club’s reply to the player’s claim:
The club rejected the player’s claim, reiterated its position and argued that the
player’s new club, Club E (hereinafter: Respondent III), shall be held jointly and
severally liable to pay the compensation for breach of contract in accordance with
FIFA’s regulations.
30.
Regarding the alleged “permanent delay” in paying salaries to the player, the club
held that the player was trying to distract from the fact that only one monthly
salary was outstanding at the moment of termination. Furthermore, the club
highlighted that the termination notice did not refer to “permanent delays”, but
rather only to alleged outstanding remuneration of two months.
31.
In this regard, the club held that the player accepted previous delays and that such
delays were settled in the meantime.
32.
Moreover, the club held that “there was an agreement related to the fact that due
dates of all invoices could have been postponed in compliance with the cash flow”
and submitted a confirmation of its managing director.
33.
The club further rejected the player’s arguments that he was not bound to the
Disciplinary Regulations and pointed out that it was the player’s responsibility to
be familiar with these regulations as defined in the contract.
34.
As to the player’s argument that his right to be heard was violated during the
disciplinary proceedings, the club argued that according to its regulations the
player did not need to be present at the hearing. The club further held that it
fulfilled its obligations by informing him about the outcome of the meetings and
sustained that the player could have appealed the decisions.
35.
Player’s final comments:
In his final comments, the player reiterated his position and argued that even less
than three outstanding salaries can constitute just cause to terminate the contract.
Club A, Country B/ Player C, Country D / Club E, Country F
Page 6 of 16
36.
Furthermore, the player insists that he was not informed about the date of the
training start for the summer preparation 2015. In this regard, the player
submitted a statement of another player confirming “it was a mess in the Club and
players even did not know about trainings of the First team”.
37.
In addition to his previous arguments, the player held that the fines were
“unlawfully imposed”, since the fines were not issued immediately after the
offence, they were only imposed after the termination of the contract and are
disproportionate compared to the salary. Further, the player pointed out that the
club cannot set off said fines with the player’s salary.
38.
Moreover, the player pointed out that agreements between the coaching staff
about delayed payments are irrelevant.
39.
Club’s final comments:
In its final comments, the club insisted that the fines were “not unlawfully
imposed”. In this regard, the club pointed out the disciplinary regulations were
available at the club secretariat at all times and that there was a contractual basis
for the fines.
40.
Further, the club denied that there was an “unreasonable delay” until the fines
were imposed, since it took approximately one month from the incident.
41.
The club also insisted that it is allowed to set-off the fines with the salary according
to law of Country B and that there are no “binding rules at FIFA level” that
prohibit such a set-off.
42.
Furthermore, the club referred to article V. of the contract and argued that it was
allowed to fine the player with one month’s salary for every incident and that he
repeatedly infringed the contract with his absences for several days. Therefore, the
club held being allowed to impose a fine in the amount of more than one monthly
salary without being disproportionate.
43.
Finally, the club pointed out the fines were imposed before the contract was
terminated, since the termination was only effective upon receipt, i.e. on 30 July
2015.
44.
The club further argued that the player did not comply with Art. VI. par. 3 d) of the
contract when he terminated the contract. In this context, the club held that the
player would have needed to grant more time to the club to pay the outstanding
remuneration.
Club A, Country B/ Player C, Country D / Club E, Country F
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45.
46.
In view of the above, the club reiterated that the player did not have just cause to
terminate the contract on 30 July 2015 and rejected the player’s claim referring to
its previously stated requests.
The position of the Club E:
The club of Country F, Club E, endorsed in its position the player’s arguments and
pointed out that the fines imposed on the player were abusive and
disproportionate since the club failed to provide evidence that the player was duly
notified of the start of the summer preparation training 2015.
47.
Furthermore, Club E highlighted that the player was not even able to submit his
position during the disciplinary proceedings.
48.
Moreover, the club of Country F argued that Club A did not act according to the
contract, i.e. article V. of the contract, since it did not “call upon the player” before
it issued the sanctions.
49.
Regarding the joint liability according to the FIFA regulations, Club E stated having
“made sure that the Player is free of any obligations to any other club”, before he
was registered.
50.
The player confirmed that he remained unemployed between 30 July 2015 and 9
January 2016. Subsequently, on 10 January 2016, he signed an employment
contract with the club of Country F, Club E for the period between 10 January 2016
until 30 June 2016, including a monthly salary of EUR 6,500 plus a single payment
in the amount of EUR 10,000 due on 20 January 2016.
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
6 August 2015 by the club, and 23 September 2015 by the player, respectively.
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 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 is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
Club A, Country B/ Player C, Country D / Club E, Country F
Page 8 of 16
international dimension between a club of Country B, a player of Country D and a
club of 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 2016), and considering that the present claim was lodged on 6 August
2015 by the club, and 23 September 2015 by the player, the 2015 edition of said
regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
4.
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.
5.
In this respect, the DRC recalled that, on 30 January 2014, the parties had signed an
employment contract valid as from 1 February 2014 until 30 June 2016.
6.
In continuation, the members of the Chamber noted that the club, on the one
hand, lodged a claim against the player and the player’s new club maintaining that
the player had terminated the employment contract without just cause on 28 July
2015, since at this date only one monthly remuneration remained outstanding. In
this respect, and in accordance with the fines imposed, the club submits that the
player shall reimburse the amount of 1,244,550 in the currency of Country B.
Consequently, the club asks to be awarded payment of compensation for breach of
the employment contract.
7.
The Chamber further took notice that the player, for his part, lodged a claim
against the club maintaining that he had terminated the employment contract
with just cause on 28 July 2015, after previously having put the club in default,
since the club allegedly had failed to pay the his remuneration. In this respect, the
player submits that a total amount of EUR 30,000, corresponding to two monthly
salaries, remained outstanding at the time he terminated the employment
contract. Consequently, the player asks to be awarded his outstanding dues as well
as the payment of compensation for breach of the employment contract.
Furthermore, the members of the Chamber took notice that the player rejected the
claim of the club and held that the fines were “unlawfully” imposed and shall be
disregarded.
Club A, Country B/ Player C, Country D / Club E, Country F
Page 9 of 16
8.
Subsequently, the DRC observed that the club rejected the claim lodged by the
player and upheld its claim against the player and Club E.
9.
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 as to whether the player had just cause to terminate the
employment contract on 28 July 2015 and to decide on the consequences thereof.
10.
With the above in mind, 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.
11.
The members of the Chamber noted that the player had sent a default notice to
the club regarding outstanding salaries on 30 June 2015. Subsequently, on 10 July
2015 the player sent another default notice to the club requesting payment of EUR
45,000 as outstanding remuneration with a warning that he would terminate his
employment contract if said debt would not be settled within 10 days.
12.
In this context, the DRC underlined that it is undisputed that, on 15 July 2015, the
club made a payment of EUR 15,000 to the player, corresponding to the salary of
April 2015.
13.
Subsequently, the members of the Chamber recalled that the player terminated
the contract on 28 July 2015 due to the allegation that the amount of EUR 30,000,
corresponding to two monthly salaries, remained outstanding.
14.
In this context, the DRC established that it was essential to the outcome of the
present matter to determine when the salaries of the player were actually due. In
this regard, and due to the lack of a contractual provision defining the due dates
of the monthly salary payments, the Chamber analysed the club’s argument that
the monthly remuneration fell due at the end of the following month due to the
constant practice during the contractual relationship. Said allegation was
confirmed by the player. In this context, the members of the Chamber considered,
thus that the monthly salary payments fell due at the end of the respective
following month.
15.
Consequently, the DRC was of the opinion that at the time of the termination, i.e.
28 July 2015, only the salary of May was due. Indeed, the salary of June 2015
would have fallen due on 1 August 2015. In this respect, the Chamber concluded
that at the moment of the termination, i.e. on 28 July 2015, the salary of June 2015
had not yet fallen due.
Club A, Country B/ Player C, Country D / Club E, Country F
16
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16.
As to the alleged “permanent delays” invoked by the player, the members of the
Chamber rejected said argument, since neither the default notices nor the
termination notice refer to such constant delays.
17.
On account of the above and the documentation on file, the Chamber established
that, contrary to the termination notice, only the salary for May 2015 was
outstanding on the date of termination of the employment contract by the player,
i.e. 28 July 2015.
18.
At this stage, the members of the Chamber wished to emphasize that, according to
the principle of contractual stability, the unilateral termination of a contract must
be considered as an absolute last resort, where, given the particularities of the
situation at stake, it could not be expected that one of the parties could
reasonably continue to be bound by the contractual relationship. In what concerns
financial obligations, one of the consequences of the aforementioned principle is
that only a persistent and substantial non-compliance of these obligations could
justify the unilateral termination of a contract.
19.
In light of the above, the Chamber came to the unanimous conclusion that the
non-payment of one monthly salary for a relatively short period of time can under
the given circumstances of this particular matter not be considered a persistent and
material non-fulfilment of the club’s contractual obligations, justifying the early
termination of the contract by the player. Therefore, the DRC concluded that the
player had no just cause to terminate the employment contract.
20.
Subsequently, prior to establishing the consequences of the termination of the
employment contract with just cause by the player in accordance with art. 17 par. 1
of the Regulations, the Chamber held that it had to address the issue of unpaid
remuneration at the moment when the contract was terminated by the Claimant.
21.
In this regard, the members of the Chamber recalled that at the date of the
termination of the contract, the salary for May 2015 remained unpaid, but was
subsequently remitted to the player on 15 August 2015.
22.
Furthermore, the DRC took note, that the club imposed disciplinary fines and set
off said fines with the player’s remuneration for June 2015.
23.
In this context, the Chamber concurred that the fines imposed on the player by the
club shall be disregarded, since the player’s right to be heard appears to have been
violated during the internal disciplinary proceedings due to the fact that he was
neither able to submit his position as to the substance nor attend the relevant
hearings.
Club A, Country B/ Player C, Country D / Club E, Country F
16
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24.
Furthermore, and irrespective of the foregoing consideration, the Chamber wished
to point out that, in principle, the imposition of a fine, or any other available
financial sanction in general, shall not be used by clubs as a means to set off
outstanding financial obligations towards players. Consequently, the Chamber
decided to reject the club’s argument.
25.
Consequently, on account of the above and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the club is liable to pay
to the player the amount of EUR 30,000 with regard to the remuneration due to
him for June and July 2015 until its early termination.
26.
In addition, taking into consideration the player’s claim, the Chamber decided to
award the player interest at the rate of 5% p.a. as of 31 July 2015, until the date of
effective payment.
27.
Having established the above, the Chamber turned its attention to the
consequences of the termination of the employment contract by the player
without just cause on 28 July 2015.
28.
The Chamber decided that, in accordance with art. 17 par. 1 of the Regulations,
the player is liable to pay compensation to the club. Furthermore, in accordance
with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber
established that the player’s new club, i.e. the Respondent III, 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 the player’s new club is independent
from the question as to whether the new club has induced the contractual breach.
This conclusion is in line with the well-established jurisprudence of the Chamber
and has been repeatedly confirmed by the CAS.
29.
Taking into account the above-mentioned considerations, 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 reiterated
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/Respondent II under the existing contract and/or the new contract(s), 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.
Club A, Country B/ Player C, Country D / Club E, Country F
16
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30.
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 clause
was included in the employment contract at the basis of the matter at stake.
31.
As a consequence, the members of the Chamber determined that the amount of
compensation payable in the present matter 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 considered 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 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
32.
Along these lines, in order to estimate the amount of compensation due to the
club in the present case, the Chamber firstly turned its attention to the
remuneration and other benefits due to the player under the existing contract and
the new contract(s), which criterion was considered by the Chamber to be
essential. In this context, the members of the Chamber deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to
take into consideration both the existing contract and the new contract(s) in the
calculation of the amount of compensation, thus enabling the Chamber to gather
indications as to the economic value attributed to a player by both his former and
his new club(s).
33.
In this regard, the DRC established, on the one hand, that the employment
contract between the club and the player had been set to run as from 30 January
2014 until 30 June 2016. Since the breach occurred on 28 July 2015, i.e. the
contract’s termination date, the total value of his employment agreement with the
club for the remaining contractual period amounts to EUR 165,000 composed of
eleven monthly salaries of EUR 15,000. On the other hand, the members of the
Chamber established that the value of the employment contract concluded
between the player and the Respondent III amounts to a total of EUR 80,663 for
the period starting from the unilateral termination of the contract by the player
until its contractual expiry, i.e. from 28 July 2015 until 30 June 2016. On the basis
of the aforementioned financial contractual elements, the Chamber concluded
that the average of remuneration between the contracts concluded by the player
respectively with the club and the Respondent III over the relevant period
amounted to EUR 122,831.50.
Club A, Country B/ Player C, Country D / Club E, Country F
16
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34.
The members of the Chamber then turned to the further essential criterion
relating to the fees and expenses paid by the club for the acquisition of the
player’s services insofar as these have not been amortised over the term of the
relevant contract. The Chamber recalled that a transfer compensation of EUR
190,000 had been paid by the club to Club G for the player’s transfer in 2014.
According to article 17 par.1 of the Regulations, this amount shall be amortised
over the term of the relevant employment contract. As stated above, the player
would have been bound to the club for another eleven months when he
terminated the contract, which was originally concluded for a total period of two
seasons. As a result of the player’s breach of contract on 28 July 2015, the club has
thus been prevented from amortising the amount of EUR 72,072, relating to the
transfer compensation that it paid in order to acquire the player’s services.
35.
As to the alleged non-amortised part of the signing fee, the Chamber wished to
point out that such payment was due to the player on a specific date and should
therefore not be taken into account as compensation.
36.
In this context, due to the lack of evidence provided, any further request of the
club for compensation, such as lost profit of an expected transfer fee and loss of
“training, marketing and advertising costs” could not be considered.
37.
Thus, the Chamber deemed that the amount of EUR 194,903.50 represents a fair
and justified final amount of compensation for breach of contract, which the
player has to pay to the club.
38.
In addition, taking into consideration the club’s claim, the Chamber decided to
award the club interest at the rate of 5% p.a. as of the date of claim, 6 August
2015, until the date of effective payment.
39.
Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the
Regulations, Respondent III shall be jointly and severally liable for the payment of
the aforementioned amount of compensation.
40.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the club and the player are
rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Respondent I, Club A, is partially accepted.
2.
The Claimant / Respondent II, Player C, is ordered to pay to the Claimant /
Respondent I, w ithin 30 day s as from the date of notification of this decision,
Club A, Country B/ Player C, Country D / Club E, Country F
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compensation for breach of contract in the amount of EUR 194,903.50 plus 5%
interest p.a. as of 6 August 2015 until the date of effective payment.
3.
The Respondent III, Club E, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
Any further claim lodged by the Claimant / Respondent I is rejected.
5.
The Claimant / Respondent I is directed to inform both the Claimant / Respondent II
and the Respondent III immediately and directly, of the account number to which
the respective remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
6.
The claim of the Claimant / Respondent II, is partially accepted.
7.
The Claimant / Respondent I is ordered to pay to the Claimant / Respondent II,
w ithin 30 day s as from the date of notification of this decision, outstanding
remuneration in the amount of EUR 30,000 plus 5% interest p.a. as of 31 July 2015
until the date of effective payment.
8.
Any further claim lodged by Claimant / Respondent II is rejected.
9.
The Claimant / Respondent II is directed to inform the Claimant / Respondent I
immediately and directly, of the account number to which the respective remittance
is to be made and to notify the Dispute Resolution Chamber of every payment
received.
10. In the event that any of the above-mentioned amounts and interest due to the
respective parties are not paid within the above-mentioned time limit, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
*****
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:
Club A, Country B/ Player C, Country D / Club E, Country F
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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 D / Club E, Country F
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