Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player E, country G & T
as Claimant/Counter-Respondent
against the club,
Club M, from country U
as Respondent/Counter-Claimant
regarding an employment-related dispute between the parties
I.
Facts of the case
Contractual situation
1.
On 7 September 2007, Player E, from country G & T (hereinafter: player or
Claimant/Counter-Respondent), and Club M, from country U (hereinafter: club or
Respondent/Counter-Claimant), signed an employment contract (hereinafter:
contract) valid as from the date of signature until 30 June 2008. On 4 March 2008,
the parties signed an additional agreement, by means of which they extended the
contract until 30 June 2011, whereas all other conditions of the contract remained
unchanged.
2.
The parties also signed an undated agreement regarding disciplinary sanctions and
bonuses (hereinafter: ADSB), which was valid during the term of the contract.
3.
Art. 2.1 of the ADSB states that “for honest discharge of the duties, for high level of
sport scores, for professional and sport mastery, for individual contribution on
attainment by Club M victorious sports results”, the player was entitled to receive:
a) USD 300,000, to be paid until 30 June 2008;
b) USD 400,000 for the season 2008/09;
c) USD 400,000 for the season 2009/10;
d) USD 550,000 for the season 2010/11.
The ADSB stipulates that payments would be made every month.
4.
Pursuant to art. 1.1 of the ADSB, “The football player who decreased his playing
qualities and has finished fulfilling his professional duties can be placed on a
different salary”.
5.
Art. 1.2 of the ADSB stipulates that a player, who sustains an injury during a match
or training, is entitled to receive 100% of the bonus for two calendar matches
“under main coach’s consideration”.
6.
According to art. 3.1 of the contract, the player has to “take part in all games by the
decision of the Club and coach team, including the games of the first and second
teams and fan-clubs”.
7.
Art. 3.3 of the contract stipulates the club’s obligation to “organize full medical
service of the Football player, diagnostics, treatment, provide with medicaments,
vitamins, in case of necessity to finance the treatment (operation) by the specialists
in the territory of country U”. Furthermore, the club is obliged to “administer
therapy and diagnostics in abroad in case of lack of necessary equipments of
qualified specialists in the territory of country U”.
Player E, from country G & T / Club M, from country U
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8.
Art. 3.4 of the contract states that the club can transfer the player to the
“undermost teams of the Club and decrease the wages”.
9.
Art. 4.4 of the contract stipulates that “(…) at any moment the Club may terminate
a present contract based on decision of the Club Council of Sport and appropriate
order if the Football player doesn’t conform the level of the game in the team (…)”.
10.
Art. 4.5 of the contract states the following: “During the validity of the present
Contract, in connection with its non-fulfilment by the Football player, as well as the
decrease of the sport craftsmanship or loss of the necessary physical form, and also
in case of exhibiting the football player to a transfer, the rate of the wages can be
changed into the way of decreasing amenably the decision of the Club Council of
Sport and in concordance with labour legislation in force of country U.”
11.
Art. 6.6 of the contract states that the club may unilaterally terminate the contract
at any time and on any basis without having to notify the player.
12.
On 9 July 2009, the player terminated the contract with immediate effect (cf. no.
I./20 below).
Player’s claim
13.
On 19 February 2009, amended on 29 May, 20 July and 13 October 2009, the player
lodged a claim against the club with FIFA claiming the following amounts plus 5%
interest:
a) USD 200,000 as single payment due on 30 June 2008 according to art. 2.1 of the
ADSB (the player alleged to have received only USD 100,000 out of the USD
300,000);
b) USD 45,550 as monthly salaries for November and December 2008 as well as
January 2009 (the player allegedly only received USD 18,150 instead of USD
33,333 each month);
c) USD 31,300 as monthly salaries for February and March 2009 (the player
allegedly only received USD 17,683 each month);
d) USD 15,183 as monthly salary for April 2009 (the player allegedly only received
USD 18,150 for April);
e) USD 16,199.33 as monthly salary for May 2009 (the player allegedly only
received USD 17,134 for May);
f) USD 15,699 as monthly salary for June 2009 (the player allegedly only received
USD 17,634 for June);
g) USD 6,450.52 for exchange rate fluctuations;
h) USD 26,882 for medical costs (converted from EUR 21,205.81);
i) USD 3,000 for accommodation costs for the period from January to June 2009;
j) USD 400,000 as compensation for the season 2009/2010;
Player E, from country G & T / Club M, from country U
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k) USD 550,000 as compensation for the season 2010/2011.
The interest at the rate of 5% p.a. is calculated as follows:
a) 5% interest on USD 200,000 as of 30 June 2008 (date on which the amount fell
due);
b) 5% interest on USD 78,575.52 as of 19 February 2009 (date on which the claim
was lodged);
c) 5% interest on USD 32,607 as of 29 May 2009 (date on which the amendment to
the claim was lodged);
d) 5% interest on USD 923,987 as of 20 July 2009 (date on which the amendment
to the claim was lodged).
14.
According to the player, he sustained an injury in May 2008 and thus, with the
consent of the club and the team doctor, went to country G in order to get the best
treatment. In October 2008, the player returned to the country U, whereupon the
coach allegedly told him that he did not want him in the team anymore. The player
asserted that the club had refused him the access to the training fields and that the
club had not provided him with the training equipment. Furthermore, the player
stated that the club’s sport board had decided in a meeting held on 1 November
2008 to assign the player to the club’s second team.
15.
The player stated that the club arbitrarily reduced his monthly salary of USD
33,333.33 as of November 2008 by USD 15,183.33 each month from November 2008
to January 2009, by USD 15,650 each month from February to March 2009, by USD
15,183 in April 2009, by 16,199.33 in May 2009 and by 15,699.33 in June.
16.
The player alleged that the club had based the reductions on the aforementioned
decision taken by the club’s sport board. The player refuted said decision since the
sport board inaccurately quoted provisions of the ADSB and since it is unlawful to
reduce the player’s salary because of his performance. The player also contested the
validity of the quoted provisions. In addition, the player stated that the medical
service head of Club M had confirmed that his insufficient performance was caused
by his injury.
17.
The player sent two default notices dated 5 December 2008 and 27 January 2009 to
the club, by means of which he contested the salary reductions by the club and
asked the club to pay the outstanding amounts of USD 200,000 and USD 263,619,
respectively.
18.
Furthermore, the player asserted that the club had made some payments in currency
of country U instead of USD. This allegedly caused exchange rate fluctuations.
Player E, from country G & T / Club M, from country U
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19.
Moreover, the player held that the club had not complied with its obligations
according to art. 3.3 of the contract. Thus, the player himself had to pay for the
medical treatments and rehabilitation measures conducted in country G from May
to September 2008.
20.
On 9 July 2009, the player sent a letter to the club in which he terminated the
contract with immediate effect. In the letter, the player stated that the club had
breached the contract several times, i.e. the club did not organise the medical
service for the player, it failed to support him after his rehabilitation, it excluded
him from the training with the professional team, it refused him the access to the
training fields and it did not provide him with the training equipment.
21.
However, the player was of the opinion that the club had already terminated the
contract without just cause by having breached the contract constantly.
Club’s reply and counterclaim
22.
On 5 May 2009, amended on 19 January 2010, the club submitted its reply rejecting
all the requests of the player.
23.
The club asked FIFA to determine that the contract had been terminated without
any right for compensation for both parties as of 1 May 2009, since the player
repeatedly breached the contract and the ADSB. The club further stated that
certainly and at the latest, the contract had been terminated by the termination
letter of the player dated 9 July 2009.
24.
As regards the player’s request for the payment of USD 200,000, the club argued
that the amount of USD 300,000 under art. 2.1 of the ADSB was considered to be
rewarded in case the conditions of said article had been fulfilled (“individual
contribution on attainment by Club M victorious sports results”). Thus, according to
the club, the amount of USD 300,000 is not an absolute salary, but is conditional on
the player’s individual contribution and performance for the club. Since the player
sustained an injury on 3 May 2008, he was not able to contribute to the club’s
success. The club states that, despite the player’s injury, the club by courtesy paid
him USD 100,000 according to art. 2.1 of the ADSB.
25.
With regard to the player’s monthly salary, the club claimed to have paid the
amount as follows: “USD 3,000 non-cash on the bank card in the country U bank;
USD 30,300 non-cash on the bank card in the country T bank (by the request of the
player)”.
26.
As to the salary reductions, the club stated that wages could be reduced according
to art. 1.1 of the ADSB as well as art. 3.4 and art. 4.5 of the contract. The club
Player E, from country G & T / Club M, from country U
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argued that, as of 3 May 2008, the player had not played for the first or second
team and had refused to participate in the individual training prepared by the
coach, hence, the club’s sport board took a decision on 1 November 2008, by means
of which it reduced the player’s salary and transferred him to the second team. The
club asserted that its decision to reduce the player’s salary by 50% does not
contradict country U or international legislation. The club further held that,
according to art. 6.6 of the contract, the club would have even been entitled to
terminate the contract at any time since the player did not perform well due to his
injury.
27.
Regarding the medical treatment of the player’s injury, the club referred to art. 3.3
of the contract which stipulates the club’s obligation to pay for the medical service
“in the territory of country U”. The club argued that the medical service would have
been paid only if it had been conducted in country U. The club further stated that
the player had refused to have the surgery and the treatment in country U and that
he had gone to country G without the consent of the club. The club alleged that
there was no need for a surgery in country G and that the medical treatment could
have been successfully provided in the country U. Moreover, the club alleged that
the treatment in country G had even aggravated the player’s recovery of the injury.
The club further stated that the player had not complied with art. 3.1 par. 7 of the
contract, according to which, in case of an injury, the player must inform the club’s
medical service and follow the directions of the specialists of the club.
28.
With regard to the exchange rate fluctuations, the club rejected the player’s
pertinent claim, arguing that the club had already accounted the fluctuation and
that the contract did not stipulate any compensation because of value fluctuation
of the national or foreign currency.
29.
According to the club, the player had not attended the club’s training on 13 July
2009 and that he had left the club without permission on 13 July 2009 and that it
had no information regarding the player’s whereabouts.
30.
On 19 January 2010, the club filed a counterclaim against the player claiming the
following:
a) USD 300 as a fine for each training session the player missed according to art.
1.4 of the ADSB (“For coming late to training or any official event, conducted by
the Club, the penalty is 300$.”);
b) sporting sanctions of four months for the player due to his unilateral breach of
contract;
c) compensation for breach of contract of the whole remaining amount of his
salaries as of the date of his departure on 9 July 2009;
Player E, from country G & T / Club M, from country U
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d) compensation for the club’s sporting loss due to the breach of contract by the
player;
e) compensation for the club’s sporting loss due to the player’s failure to train;
f) reimburse all salaries paid to the player after the date the player missed his first
training session;
g) compensation for self-inflicted injury, which the player aggravated by seeking
medical treatment in another territory.
31.
The club stated that the player had refused to attend the individual training
provided by the club’s coach without giving any valid reasons. The club is of the
opinion that the player breached the contract since he missed several trainings and
left the club without a prior notice. Furthermore, the club held that the player had
not presented any evidence that he had been mistreated and banned from the
trainings by the club. In addition, according to the club, the player brought
disrepute upon the club by “discussing his solo training regime with people outside
the realm of the Club”. Finally, the club stated that the present matter should be
decided in accordance with country U law, which allegedly allows salary reductions
and the premature termination of contracts.
Player’s replica and position on the club’s counterclaim
32.
Referring to art. 1.2 of the ADSB, the player stated that it was unlawful to reduce
the player’s salary due to his injury.
33.
As regards his request for the payment of USD 200,000, the player stressed that the
amount of USD 300,000 in the contract should be regarded as a “signing fee” and
that the reduction of the player’s salary by 50% was decided on 1 November 2008
for the period as from this date, however, the amount of USD 300,000 was to be
paid by 30 June 2008.
34.
Moreover, the player contested the club’s allegation that the medical treatment in
country G had prolonged the healing procedure and emphasized that he went to
country G for the treatment of his injury following the club doctor’s advice.
35.
The player further stated that only after the club had not needed him anymore due
to some changes in the team, the club started to bully and even threaten the player
and refused him to participate in the training. Referring to the training plans
presented by the club, the player asserted that he could not participate in the
trainings since the club did not provide him with the required equipment. The
player further stated that after his injury, he had tried everything to recover and to
reintegrate into the team as fast as possible.
Player E, from country G & T / Club M, from country U
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Club’s duplica
36.
In its duplica, the club stated that the player had not presented any evidence which
shows that the club’s team doctor advised or allowed him to go to country G for the
treatment of his injury. Further, the club merely reiterated its previous
argumentation.
37.
On 7 August 2009, the player and Club O, from country H., signed an employment
contract valid as from 7 August 2009 until 30 June 2010. According to this contract,
the player was entitled to receive EUR 50,000 for the season 2009/2010.
38.
On 31 January 2011, the player and Club F, form country H, signed an employment
contract valid as from 31 January 2011 until 30 June 2012. According to this
contract, the player was entitled to receive a monthly salary of EUR 850. In addition,
the player was entitled to receive a Christmas bonus of one monthly salary, an
Easter bonus of half a monthly salary and a “holiday benefit” of half a monthly
salary. According to the appendix to said contract, the player was entitled to receive
EUR 63,000, to be paid in nine unequal instalments as from 28 February 2011 until
30 April 2012. EUR 15,000 out of the total amount of EUR 63,000 was to be paid
before June 2011.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 19 February
2009. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 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 and par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a country G/country T player and an country U
club.
Player E, from country G & T / Club M, from country U
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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
2012), and considering that the present claim was lodged on 19 February 2009, the
2008 edition of the 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 doing so, the
Chamber started by acknowledging the abovementioned facts of the case as well as
the documentation contained in the file.
5.
In this respect, the DRC acknowledged that on 7 September 2007, the
Claimant/Counter-Respondent and the Respondent/Counter-Claimant signed an
employment contract setting out a period of validity as from the date of signature
until 30 June 2008. The Chamber further acknowledged that on 4 March 2008, the
parties extended said contract until 30 June 2011. The Chamber held that according
to the ADSB signed by and between the parties in addition to the contract, the
Claimant/Counter-Respondent was entitled to receive USD 300,000, to be paid by 30
June 2008; USD 400,000 for the 2008/2009 season; USD 400,000 for the 2009/2010
season and USD 550,000 for the 2010/2011 season.
6.
In continuation, the Chamber noted that the Claimant/Counter-Respondent
maintained that the Respondent/Counter-Claimant is to be held liable for the early
termination of the employment contract on 9 July 2009 by having failed to remit his
remuneration as of June 2008, by not having organised the medical service for him,
by having failed to support him after his rehabilitation, by having excluded him
from the training with the professional team and by not having provided him with
training equipment.
7.
In this respect, the members of the Chamber took note of the Claimant/CounterRespondent’s default notices dated 5 December 2008 and 27 January 2009
addressed to the Respondent/Counter-Claimant, by means of which the
Claimant/Counter-Respondent asked the Respondent/Counter-Claimant to pay the
outstanding amounts of USD 200,000 and USD 263,619, respectively. The DRC also
noted that the Claimant/Counter-Respondent had sent a letter dated 9 July 2009 to
the Respondent/Counter-Claimant by means of which he terminated the contract
with immediate effect referring to the above-mentioned reasons (cf. no II./6 above).
However, the Chamber noted that the Claimant/Counter-Respondent was of the
opinion that the Respondent/Counter-Claimant had terminated the contract already
before by having breached the contract constantly.
Player E, from country G & T / Club M, from country U
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8.
Equally, the DRC noted that according to the Respondent/Counter-Claimant, who
fully rejects the claim put forward by the Claimant/Counter-Respondent, the player
is to be held liable for the early termination of the contract since he repeatedly
breached the contract and the ADSB (hereinafter together also referred to as
contracts). The Chamber took note of the Respondent/Counter-Claimant’s
specification and allegation that the Claimant/Counter-Respondent had gone to
country G for the treatment of his injury without the consent of the club, had
missed several trainings, had not participated in the individual training prepared by
the coach and had left the club on 13 July 2009. The Chamber further noted that
the Respondent/Counter-Claimant was of the opinion that the contract had been
terminated by the player through his termination letter dated 9 July 2009 at the
latest.
9.
Having established the above, the Chamber went on to analyse as to when the
contractual relation between the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant had been terminated. In this regard, the DRC held
that the Claimant/Counter-Respondent sent a termination letter to the
Respondent/Counter-Claimant on 9 July 2009 invoking just cause on the basis of the
alleged breach by the Respondent/Counter-Claimant of its contractual obligations.
Equally, the Chamber held that the Respondent/Counter-Claimant considered the
contracts to be terminated by the Claimant/Counter-Respondent without just cause
on 9 July 2009 at the latest. In view of the foregoing, the Chamber concluded that
the contractual relation between the parties to the present dispute had been
terminated by the Claimant/Counter-Respondent by means of his notice of
termination dated 9 July 2009.
10.
Consequently, the Chamber established that the underlying issue in this dispute was
to determine whether the contracts had been terminated by the Claimant/CounterRespondent with or without just cause and which are the consequences thereof.
11.
In doing so, the Chamber took into account that, according to the
Claimant/Counter-Respondent, USD 200,000 out of the USD 300,000, due on 30 June
2008, as well as parts of his salaries as from November 2008 until June 2009
amounting to USD 123,931 had remained unpaid. The DRC further noted that the
club’s sport board took a decision on 1 November 2008, by means of which it
reduced the player’s salary making reference to clauses in the contract and the
ADSB related to the player’s performance and injury. In this respect, the members of
the Chamber noted that the Respondent/Counter-Claimant has not contested the
Claimant/Counter-Respondent’s allegation that the Respondent/Counter-Claimant
had not made the aforementioned payments to the Claimant/Counter-Respondent.
The Chamber further noted that the Respondent/Counter-Claimant even
Player E, from country G & T / Club M, from country U
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acknowledged having made salary reductions in accordance with the contracts and
the decision of the sport board.
12.
Having established the above, the Chamber went on to analyse whether the
Respondent/Counter-Claimant could validly reduce the Claimant/CounterRespondent’s salary according to the contract and the ADSB. The Chamber noted
that the player had contested the salary reductions by the club through his default
notice dated 27 January 2009 and his claim in front of FIFA lodged on 19 February
2009. The Chamber held that all the clauses in the contract and the ADSB, to which
the Respondent/Counter-Claimant refers in its decision dated 1 November 2008,
correspond to the possibility of the Respondent/Counter-Claimant to reduce the
Claimant/Counter-Respondent’s salary due to insufficient performance. In addition,
the members of the Chamber highlighted that the clauses do not even specify to
which extent (i.e. specification of amount or percentage) the player’s salary may be
reduced. Hence, due to the unilateral and arbitrary character of such clauses and
taking into consideration the Chamber’s longstanding jurisprudence in this respect, the
Chamber decided that these clauses in the contract and the ADSB are not valid and,
therefore, cannot be taken into account or validly invoked as a reason for the nonpayment of the player’s remuneration. As regards the single payment in the amount
of USD 300,000, which fell due on 30 June 2008, and USD 200,000 out of which are
claimed to be outstanding, the Chamber considered the Respondent/CounterClaimant’s argument, according to which this payment was conditional on the
player’s individual contribution and performance for the club, to be without merit
as well. In this regard, the Chamber highlighted that the USD 300,000 had fallen
due as early as on 30 June 2008 and were related to the previous season.
13.
For these reasons, the Chamber concluded that the Respondent/Counter-Claimant’s
arguments related to the non-payment of the player’s remuneration could not be
upheld. In addition, the members of the Chamber, on account of the above,
established that at the time of the termination of the contracts by the
Claimant/Counter-Respondent the amount of USD 200,000 relating to the 2007/2008
season and the amount of USD 123,931 in connection with the unjustified reduction
of the player’s salary as from November 2008 until June 2009 remained outstanding.
14.
For the sake of completeness, the members of the Chamber pointed out that the
club’s decision dated 1 November 2008 does not include any reference to the
medical treatment that the player apparently underwent in country G and his
apparent absence in connection therewith, subsequent to his injury in May 2008.
15.
On account of all of the above, the Chamber concurred that the Claimant/CounterRespondent had just cause to unilaterally terminate the contracts on 9 July 2009 and
Player E, from country G & T / Club M, from country U
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that the Respondent/Counter-Claimant is to be held liable for the early termination
of the contracts by the Claimant/Counter-Respondent with just cause.
16.
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 focussed its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the 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 the outstanding payments on
the basis of the relevant contracts.
17.
First of all, the Chamber reverted to the Claimant/Counter-Respondent’s financial
claim, which includes the aforementioned outstanding remuneration of USD
200,000, which had fallen due on 30 June 2008, and USD 123,931 relating to the
remainder of the monthly remuneration as of November 2008 until June 2009 in
accordance with the ADSB. The members of the Chamber recalled that the
Respondent/Counter-Claimant had not contested that these amounts remained
unpaid invoking its alleged right to reduce the player’s remuneration due to his
performance, which argument, as stated above, was dismissed. In addition, the
Claimant/Counter-Respondent asks to be awarded payment of exchange rate
fluctuations in the total of USD 6,450 as well as accommodation amounting to USD
3,000. The Chamber noted, however, that the contract and the ADSB do not include
any clauses according to which the Respondent/Counter-Claimant was obliged to
pay exchange rate fluctuations and accommodation costs to the Claimant/CounterRespondent. Consequently, the Chamber decided that the Claimant/CounterRespondent’s claim for payment of exchange rate fluctuations and accommodation
costs could not be upheld. As regards the amount of USD 26,882 relating to medical
costs incurred in country G, the DRC noted that art. 3.3 of the contract stipulates
that the Respondent/Counter-Claimant is obliged to pay the treatment of the
player’s injury “in the territory of country U” only, unless a treatment in the country
U is not possible for lack of equipment or qualified specialists. Referring to art. 12
par. 3 of the Procedural Rules, the DRC noted that the Claimant/CounterRespondent did not provide any evidence for the necessity of the player’s surgery to
be conducted in country G nor that the Respondent/Counter-Claimant had
undertaken to cover medical costs incurred by the player in country G. Hence, the
Chamber decided to reject the Claimant/Counter-Respondent’s claim regarding the
medical costs.
18.
Consequently, taking into account the documentation remitted by the
Claimant/Counter-Respondent to substantiate his claim and the fact that the
contracts were considered terminated as of 9 July 2009, the Chamber decided that
Player E, from country G & T / Club M, from country U
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the Respondent/Counter-Claimant is liable to pay to the Claimant/CounterRespondent the amount of USD 200,000 relating to the 2007/2008 season as well as
USD 123,931 as outstanding salaries for November 2008 to June 2009 in accordance
with the contract and the ADSB.
19.
In addition, taking into consideration the Claimant/Counter-Respondent’s claim, the
Chamber decided to award the Claimant/Counter-Respondent interest at the rate of
5% p.a. on the amount of USD 200,000 as of 1 July 2008, since this payment was due
on 30 June 2008, and interest at the rate of 5% p.a. on the amount of USD 123,931
as of 20 July 2009, as this was the date on which the Claimant/Counter-Respondent
made his corresponding amendment to the claim.
20.
In continuation, 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 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.
21.
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 contracts at the basis of the matter at stake.
22.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from
July 2009 until 30 June 2011, i.e. the date on which the contracts were set to expire,
taking into account that the player’s remuneration until June 2009 is included in the
calculation of the outstanding remuneration (cf. no. II./17. above). Consequently,
the Chamber concluded that the amount of USD 950,000 (i.e. salary for the season
2009/2010 and the season 2010/2011) serves as the basis for the final determination
of the amount of compensation for breach of contract.
23.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent had signed an employment contract with another club during the
Player E, from country G & T / Club M, from country U
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relevant period of time, by means of which he would have been enabled to reduce
his loss of income. According to the constant practice of the Dispute Resolution
Chamber, 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.
24.
In this respect, the Chamber noted that the Claimant/Counter-Respondent had
concluded employment contracts with Club O, from country H, for the period as
from 7 August 2009 until 30 June 2010 and with Club F, from country H, for the
period as from 31 January 2011 until 30 June 2012, enabling the Claimant/CounterRespondent to reduce his loss of income. In particular, the members of the Chamber
took into account that the Claimant/Counter-Respondent had received the amount
of USD 95,573 from his new employers covering the period of time until 30 June
2011 on the basis of the new employment contracts.
25.
The Chamber further took into account that the player had not demonstrated that
he was willing to play for the club’s second team. In addition, the Chamber noted
that the dispute between the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant relates to a period of time during which the player
was not or less able to play football.
26.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent/CounterClaimant must pay the amount of USD 650,000 to the Claimant/Counter-Respondent
as compensation for breach of contract.
27.
Furthermore, taking into account the Claimant/Counter-Respondent’s petition and
the constant practice of the Dispute Resolution Chamber, the members of the
Chamber decided to award the Claimant/Counter-Respondent interest at the rate of
5% p.a. on the amount of compensation, as from 31 October 2013 until the date of
effective payment.
28.
In continuation, the DRC established that any further claim lodged by the
Claimant/Counter-Respondent is rejected.
29.
The DRC concluded its deliberations in the present matter by establishing that the
counterclaim of the Respondent/Counter-Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
Player E, from country G & T / Club M, from country U
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1.
The claim of the Claimant/Counter-Respondent, Player E, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club M, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent,
within 30 days as from the date of notification of this decision, outstanding
remuneration in the amount of USD 323,931 plus 5% interest p.a. until the date of
effective payment as follows:
a. 5% p.a. as of 1 July 2008 on the amount of USD 200,000;
b. 5% p.a. as of 20 July 2009 on the amount of USD 123,931.
4.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent,
within 30 days as from the date of notification of this decision, compensation for
breach of contract in the amount of USD 650,000 plus 5% interest p.a. as from 31
October 2013 until the date of effective payment.
5.
In the event that the amounts due to the Claimant/Counter-Respondent in
accordance with the above-mentioned numbers 3. and 4. 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 request filed by the Claimant/Counter-Respondent is rejected.
7.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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.
*****
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
Player E, from country G & T / Club M, from country U
15/16
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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player E, from country G & T / Club M, from country U
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