Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamazaki (Japan), member
Theodore Giannikos (Greece), member
on the claim presented by the club,
Club N, from country U
as Claimant
against the player,
Player B, from country A
and the club,
Club G, from country Q
as Respondents
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 10 August 2011, Club N, from country U (hereinafter: Club N or the Claimant), and
the Player B, from country A, (hereinafter: the player or also referred to as the
Respondent player), born in February 1980, signed an employment contract valid as
from 10 August 2011 until 9 August 2013 (hereinafter: the contract).
2.
In accordance with art. 3 of the contract, the player was entitled to receive, inter alia,
the following:
a. From 10 August 2011 until 9 August 2012, the total amount of EUR 1,100,000:
EUR 200,000 on 1 September 2011;
EUR 900,000 in 12 monthly instalments (12 x EUR 75,000).
b. From 10 August 2012 until 9 August 2013, the total amount of EUR 1,200,000,
to be paid in 12 monthly instalments (12 x EUR 100,000), which includes the
housing allowance, furniture and transportation;
c. Eight round trip business class air tickets for the player and his family annually
(country U – country A – country U);
d. Medical health insurance for the player during the contract period.
3.
Art. 8 par. 1 of the contract stipulates that “… if the Second Party [the player] cancels
by himself the said contract made between him and the First Party [Club U] for any
reason whatsoever, he shall pay to the First Party all amounts paid by the First Party to
the Second Party as a result of implementation of the Contract. Unless the damage
caused to the First Party exceeds these amounts, and in this case the First Party may
claim the Second Party for compensating it for the actual damages resulting from such
breach.”
4.
On 21 February 2013, Club U lodged a claim against the player and Club G (hereinafter:
Club G or also referred to as the Respondent club) in front of FIFA and maintained that
the player had unilaterally terminated the contract on 30 July 2012 without just cause.
In addition, the club held that the player had acted in bad faith, pretending to be
staying until the last moment, whilst actually negotiating a departure with the Club G,
which resulted in additional damages for the club. For this reason they requested from
the FIFA Dispute Resolution Chamber (DRC) to:
a. Issue a finding that the player has terminated his contract without just cause;
b. Order the player and Club G to compensate them in the amount of at least EUR
2,500,000 plus interest of 5% from 10 August 2011, to be paid within two
weeks of the issuance of the FIFA DRC decision:
c. Impose suitable sporting sanctions upon the player, which at least consist of a
six month suspension;
d. Impose suitable sporting sanctions upon Club G, which shall at least consist of a
ban from registering any new players, either nationally or internationally, for
two registration periods;
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 2 of 17
e. To the extend that any costs of these proceedings are to be paid by the parties,
rule that such costs shall be paid by the player and Club G;
f. To order the player and Club G to pay them legal costs and expenses.
5.
Club N clarified that when the player was transferred to them no transfer fee was paid
to the former club of the player. Only a fee of EUR 100,000 had to be paid by Club N to
the agent Mr B in two instalments of EUR 50,000, the first of which was paid on 14
February 2012.
6.
Club N sustained that on 13 May 2012 it was confirmed that the player would return
from his summer vacation to country U on 3 July 2012.
7.
Club N alleged that on 25 June 2012 they received a letter from a Brazilian lawyer, who
announced that the player was terminating the employment contract from “the present
moment on” irrevocably and unilaterally. In this regard, Club N stated that they were
surprised about the letter, since they had always fulfilled their contractual obligations
towards the player and also had the impression that the player was very satisfied at the
club. Subsequently, they allegedly contacted the player by telephone and he indicated
that he was not aware of the letter sent from the Brazilian lawyer.
8.
Club N further referred to the club’s CEO’s email sent on 27 June 2012 to the Brazilian
lawyer, in which he pointed out that the player wishes to continue at the club and that
they have the intention to extend the player’s employment contract. In addition, the
club referred to the club’s Chairman’s letter sent on 28 June 2012 to the Brazilian
lawyer, in which he indicated that the player had confirmed to negotiate with them a
one year extension of the contract and that in case of any eventual future termination,
the relevant letter should be signed by the player.
9.
On 30 June 2012 Club N agreed to extend the player’s vacation until 12 July 2012 and
requested the player to join the team on that day at the latest. In this respect, Club N
maintained that on 2 July 2012 the player requested an additional one week extension
of his vacation since he got injured in the last game and still needed more time “to get
himself right” as the next season required the best of him.
10.
As regards the termination letter, according to Club N, they had a meeting with the
player on 6 July 2013 during which the player had rejected the content of the alleged
termination letter dated 25 June 2012 and had confirmed that he was unaware that it
had been sent. In this regard, Club N sent an email to the player on 9 July 2012 with an
attached letter, which summarises the said meeting, and in which Club N, inter alia,
confirmed that they will give the player an offer of a two-year extension of the contract
on his first day of training.
11.
Consequently, on 11 July 2012 Club N sent their proposed contract extension of two
years, for the period from 10 August 2013 until 9 August 2015, to the player. In
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 3 of 17
addition, on 18 July 2012, the club emailed the player another contract extension with
revised terms, such as an increase of the salary.
12.
The player was allegedly at Club N for training on 12, 13, 14 and 15 July 2012, then left
the club without informing them and travelled to country Q. Club N further stated that
on 27 July 2012, their Chairman met the player, who had apparently just before, on 22
July 2012, agreed to a contract extension with them. However, on that day the player
requested to let him go and mentioned that Club G had offered him a salary of EUR 1,7
million per annum for three years. In this regard, Club N maintained that at that
moment they mentioned to the player that the compensation due would be no less
than two million euros, and if the compensation was paid, they would not seek sporting
sanctions against him. The player allegedly responded that Club G would pay the
compensation.
13.
On 30 July 2012, the Brazilian lawyer sent a letter to the club confirming the unilateral
termination of the contract by the player and requesting the club’s bank account in
order to fulfil the terms as stated in clause 8 of the employment contract.
14.
Club N sent a letter on 31 July 2012 to the Brazilian lawyer acknowledging receipt of his
letter regarding the unilateral termination as well as indicating their will to settle the
matter by reference to art. 8 of the contract. However, according to Club N, their own
lawyer and the Brazilian lawyer discussed a possible settlement on 1 August 2012
without reaching an agreement, and on 6 August 2012 they found out that the player
had already signed an employment contract with Club G.
15.
As to determine the total compensation owed to Club N, the club stated that according
to art. 8 of the contract, the amounts paid to the player and the actual damage
incurred by the club have to be calculated. As to the payments made to the player, Club
N enclosed a schedule with the total amount of EUR 1,169,986, calculated as follows:
EUR 728,226 paid salary from August 2011 until May 2012;
EUR 200,000 as advance payment for the season 2011/2012;
EUR 57,683 Match Bonus;
EUR 41,278 Air Ticket;
EUR 41,379 Life and Personal Accident Insurance, Medical Insurance;
EUR 50,000 Agent Fees;
EUR 21,420 Car Rental;
EUR 30,000 which includes, inter alia, the costs incurred by the club to train the
player, to treat him medically, to take care of this food and the lodging during
the camps, trainings’ sessions, away matches etc.
16.
As regards the actual damage, Club N stated that there is no doubt that the actual
damage caused to them is in excess of EUR 1,169,986. Thus, in order to determine the
total compensation owed to them one must calculate the actual damage in addition to
the amounts paid to the player. In this regard, Club N took into consideration art. 17
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 4 of 17
par. 1 of the Regulations and estimated the actual damage to be the total amount of
EUR 1,354,046, which includes the following amounts:
USD 628,577 (EUR 484,000) paid for Player K, from country I (as replacement of
the player) for the season 2012/2013, corresponding to the following:
o USD 250,000 paid salary
o USD 300,000 Advance Payment
o USD 54,358 Housing Allowance
o USD 13,587 Car
o USD 10,632 Air Ticket
EUR 733,374 paid for Player M, from country J (as replacement of the player) for
the season 2012/2013:
o EUR 300,000 Contract Value
o EUR 400,000 Cost of Loan
o EUR 20,898 Housing Allowance
o EUR 12,476 Air Ticket
EUR 106,772, the costs of benefits due to the two aforementioned players (Player
K and Player M) such as bonuses, transport expenses and health and medical
insurance comparable to the amount paid to the player;
EUR 30,000 incurred to train them, to treat them medically and to take care of
their food and lodging during the camps, trainings.
17.
Club N sustained that a very significant portion of the additional damage caused to
them is a direct consequence of the player’s bad faith. Due to the player’s intentional
two months delay before informing the club that he was terminating the contract, the
player became much more difficult to replace and the costs for his replacement were
therefore higher. In this regard, Club N alleged that they had to replace the player
firstly with the country I player, who had to be replaced with the country J player, since
the country I player was not an adequate replacement. In addition, Club N maintained
that the club’s sporting performance had been very negatively affected by the
departure of the player, as it has gone from second place in the League last season to a
mid-table position this year, outside of the qualifying places for the Asian Champions
League.
18.
Club N claims that in light of the amounts paid to the player the irreparable sporting
prejudice caused to them by the player’s belated departure, and the amount which
would be required to replace the player effectively, pursuant to art. 8 of the contract
the Respondents must pay at least the amount of EUR 2,500,000 to them as
compensation for actual damages resulting from the player’s termination of the
contract.
19.
Furthermore, with regard to sporting sanctions, Club N maintained that since the player
unilaterally terminated the contract during the protected period a six-month suspension
must be imposed upon the player. Additionally, Club N shall be banned from registering
any new players for two registration periods in accordance with Art. 17 par. 4 of the
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 5 of 17
Regulations. In this regard, Club N held that in the present case it is clear that Club G
was aware that the player was under contract, and yet it offered an attractive financial
package to him directly and ignored its duty to contact them.
20.
The Respondents in its reply to the claim of Club N requested the DRC:
To dismiss the claim of Club N and to confirm that the employment contract
was expressly and irrevocably breached by the player on 25 June 2012,
pursuant to the terms and conditions of art. 8 of the contract;
The total amount of compensation for the breach of the employment contract
to be paid by the player to Club N shall be of EUR 728,226, due as salaries, plus
EUR 200,000, due as signing-on fee;
No interest rate shall be applied over any compensation, since Club N failed to
provide its bank account, despite the player having formally requested it;
To confirm that Club G has not induced the player to breach the employment
contract and consequently may not be considered jointly and severally liable
for the payment of the compensation;
To uphold that there is not any legal basis for the imposition of sporting
sanctions on the player and Club G since the employment contract was
“breached” in accordance with the terms and conditions as stated in its
“buyout clause”;
To confirm that neither the player nor Club G shall be responsible to pay any
expense of legal costs regarding the dispute at hand.
21.
The player and Club G agree that the player has to pay compensation to Club N.
However, they are of the opinion that the breakdown of the compensation presented
by Club N violates the provisions as stated in art. 8 of the employment contract and
misapplies the terms and conditions as stated in art. 17 of the FIFA Regulations. The
Respondents are of the opinion that the amount of compensation to be paid by the
player to Club N is EUR 728,226 due as salaries, plus EUR 200,000 due as signing-on fee.
22.
The Respondents clarified that the employment contract was unilaterally terminated by
the player on 25 June 2012. Therefore, the employment contract “was breached by the
player within couple of weeks after the end of the season” and thus the negotiations
with third clubs and with Club N started only after said termination letter. In this
regard, the Respondents indicated that the Claimant did never show any clear evidence
proving that the player did not recognise the contents of the termination letter from 25
June 2012 nor that the Brazilian lawyer was not his lawyer. In addition, the
Respondents indicated that Club N expressly confirmed that the last payment to the
player was made in May 2012, thus they did not perform another payment after the
termination letter from 25 June 2012.
23.
As regards the reason of the termination of the contract, the Respondents maintained
that Club N had ignored the contacts made by the player with the intention to
postpone the negotiations of a new employment contract, and therefore the player had
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 6 of 17
had no other alternative than to terminate the contract on 25 June 2012. In this regard,
the Respondents stated that it was unquestionable that according to art. 8 of the
contract, the player “had the deliberation to unilaterally terminate the Employment
Contract based upon any reason whatsoever”.
24.
The Respondents maintained that the player was hired as a “free agent player”, and
thus no transfer compensation was paid to his former club. As the player was already 31
years old, art. 8 had been included in the contract and Club N was aware that the
present situation could occur at the end of said season.
25.
According to the Respondents, on 30 June 2012, Club N’s chairman contacted the
player, who confirmed that he was negotiating with other clubs and that he had the
intention to sign a new contract with a salary of at least EUR 1,600,000 per season for 3
years. In this regard, the Respondents alleged that Club N had confirmed to be able to
fulfil the aforementioned wish of the player.
26.
The player admitted to have started training with Club N as of 12 July 2012 whilst
waiting to sign a new employment contract with them. However, subsequently he had
stopped training with Club N since they failed to provide a new employment contract
on the first day after his return from vacation. Then, on 18 July 2012 Club N drafted an
employment contract, which contents were totally different from those verbally and
previously agreed. On 22 July 2012 the player met Club N to try to reach a conclusive
agreement. However, the “deal breaker” was that the club insisted on a 2 year contract
instead of 3 years. Then on the 27 July 2012 the player met Club N’s chairmen and
informed him that the negotiations were definitely terminated. In this context, the
Respondents clarified that on 31 July 2012 Club N understood that the employment
contract had been terminated on 25 June 2012 in accordance with art. 8 of the contract,
and that on the same day the player had started negotiating with the representatives
of Club G. Nevertheless, Club N allegedly changed its mind on 6 August 2012 insisting
that the contract was still valid until 13 August 2013.
27.
With regard to the replacement of the player, the Respondents sustained that the
amount spent by Club N for the transfer of Player M, from country J shall not be
considered. The Respondents further held that the amount spent on Player K, from
country I may neither be considered as part of the compensation since said sum shall be
amortised in consideration of the savings from the player’s unpaid salary for the
2012/2013 season.
28.
As to the statement of Club N that the contract was breached too late and consequently
the time to replace the player was too short, the Respondents maintained that the first
registration period determined by the country U Football Association for the 2012/2013
season commenced on 10 July 2012 and terminated on 1 October 2012. Therefore,
according to the Respondents, Club N had 125 days to find a new player, when
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 7 of 17
considering the termination letter dated 25 June 2012, or at least 60 days, when the
second letter dated 30 July 2012 is mistakenly assumed as the letter of termination.
29.
As to the breakdown of the compensation, the Respondents stressed that pursuant to
the terms and conditions as stated in art. 8 of the contract, the compensation due by
the player to Club N shall take into consideration only the amounts paid as
remuneration (i.e. salaries and signing-on fee). They shall not include other benefits
such as air tickets, car, house, point premiums and/or any kind of bonus or privilege
which are not guaranteed in the contract nor paid to third parties. In this regard, the
agent fee of EUR 50,000 paid to Mr B may not be considered as part of any
compensation breakdown.
30.
In relation to the amount claimed for air tickets, which do not correspond to the
destination as set out in the contract (country A/country U/country A) nor have they
been paid directly to the player or his family, the Respondents argued that it shall be
disregarded. The air tickets paid to the players’ agent Mr B and to the player (country
L/country U/country L) during the negotiations of the contract and amounting to
currency of country U 24,600 shall also not be taken into consideration. Furthermore,
the Respondents held that the amount claimed for Car Rental (EUR 21,240) shall neither
be taken into account, since the contract expressly states that the remuneration paid to
the player also includes “housing allowance, furniture and transportation (Car)”.
31.
With regard to the type of insurance (medical insurance) which would be provided to
the player, the Respondents maintained that Club N added Life and Personal Accident
Insurance which overvalued the amount spent with insurance. As to the allegation
made by Club N that Club G had acted in bad faith by contacting the player, the
Respondents maintained that Club G had only accepted to officially negotiate after
having noticed that the employment contract was formally breached on 25 June 2012.
Furthermore, the Respondents alleged that the application of an interest rate of 5%
p.a. as of 10 August 2012 was incompatible with the facts as described and also because
Club N always failed to provide its bank account when the player formally and expressly
requested it.
32.
As to the sporting sanctions, the Respondents referred to the FIFA Commentary to the
Regulations on the Status and Transfer of Players, in particular to art. 17, which states
that with the “buy-out clause” the player can also cancel the contract during the
protected period and that no sporting sanctions may be imposed on the player or on
Club G.
33.
According to information contained in the Transfer Matching System (TMS), the player
signed an employment contract with Club G on 6 August 2012 for a period of three
years, i.e. valid from the date of signature until 31 July 2015. According to the
employment contract’s schedule, the player is entitled to receive from the moment of
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 8 of 17
the early termination of the contract with his former club until the original expiry of the
said contract (9 August 2013) the total amount of USD 2,094,400, to be paid as follows:
USD 418,880 on 6 August 2012;
USD 1,675.520 in 12 monthly instalments, i.e. 11x USD 143,000 as of 6 August
2012 until 30 June 2013 as well as USD 102,520 as the last salary of July 2013.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, the
Chamber took note that the present matter was submitted to FIFA on 21 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 par. 2 and par. 3 of the Procedural
Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition 2012), it is competent to
decide on the present litigation, which concerns an employment-related dispute with an
international dimension between an Club N, an country A player and a country Q club.
3.
Furthermore, the DRC analysed which edition of the regulations should be applicable as
to the substance of the matter. In this respect, the Chamber 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 matter was submitted to FIFA on
21 February 2013, the 2012 edition of said Regulations on the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the present matter as to the
substance.
4.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, it started by
acknowledging the facts of the case as well as the documents contained in the file.
5.
In this respect, the DRC acknowledged that the Claimant and the Respondent player
entered into an employment contract, valid as from 10 August 2011 until 9 August
2013.
6.
The members of the Chamber further acknowledged that the parties have already
divergent positions with regard to when the employment contract had been unilaterally
terminated by the player. In fact, while the Respondent player considers that he
unilaterally terminated the employment contract on 25 June 2012, the Claimant, on the
other hand, sustains that the player terminated the said contract on 30 July 2012.
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 9 of 17
7.
In this regard, the Chamber came to the unanimous conclusion that the letter of
25 June 2012 cannot be considered as the date of termination of the employment
contract since the player requested an extension of his holidays on 2 July 2012, and
subsequently he was training with Club N. Furthermore, the Chamber also wished to
emphasise that it is not contested that in July 2012 the Claimant and the Respondent
player were negotiating the extension of the relevant employment contract.
8.
In light of the above, the members of the Chamber considered that, by a letter of the
player’s representative, the player effectively and prematurely terminated the contract
on 30 July 2012.
9.
In continuation, the Chamber paid due consideration to the fact that the Claimant
submitted that the Respondent player, after his authorised summer holidays,
unilaterally terminated the employment contract on 30 July 2012 without just cause and
subsequently, signed in August 2012 an employment contract with the Respondent
club. On such basis, the Claimant deemed that the player shall be sentenced to pay
compensation for breach of contract in the amount of EUR 2,500,000 plus interest of
5% per annum, which, according to the Claimant, corresponds to the actual damages
resulting from the player’s termination of the contract. The members of the Chamber
further acknowledged that the Claimant argued that the player’s new club, i.e. the
Respondent club, shall be jointly liable for the payment of the compensation for breach
of contract to be paid by the player to the Claimant.
10.
Moreover, the Chamber took into account that the Claimant equally requests that
sporting sanctions be imposed on the Respondent player and on the Respondent club.
11.
The Respondents, for their part, are of the opinion that according to the “buy-out
clause” of the employment contract, the player had the deliberation to unilaterally
terminate the said contract based upon any reason whatsoever. The Chamber further
noted that the Respondents agree that the player has to pay compensation to the
Claimant, but contested the breakdown of the compensation presented by the latter.
The members of the Chamber also observed that the Respondents sustain that the
amount of compensation to be paid to the Claimant is EUR 728,226 due as salaries, plus
EUR 200,000 due as signing-on fee.
12.
In this respect, the members of the Chamber took into account that the Respondents
have, as established above, not invoked a just cause for the early termination of the
contract but deem that art. 8 par. 1 of the contract is a “buy-out clause”. However,
after a careful analysis of the contents of the relevant clause in the contract, the DRC
deemed that this was not the case. In particular, the Chamber emphasised that the
relevant provision does not establish a right for the player to terminate the contract for
a specific, clearly predetermined amount but only seeks at somehow fixing the
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 10 of 17
minimum amount of compensation due in case of breach by the player. Furthermore,
the amount in question remains open as to its maximum.
13.
Based on the aforementioned the Chamber had no other option than to consider that
the player had no contractually stipulated right to prematurely terminate the contract.
Therefore, he had terminated the contract without just cause by means of the letter
dated 30 July 2013 sent by his lawyer.
14.
The DRC established that, in accordance with art. 17 par. 1 of the Regulations, the
player is liable to pay compensation to the Claimant for breach of contract.
Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the
Regulations, the Chamber established that the player’s new club, i.e. the Respondent
club, 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 committed an
inducement to contractual breach or any other kind of involvement by the new club.
This conclusion is in line with the well-established jurisprudence of the Chamber that
was repeatedly confirmed by the Court of Arbitration for Sport (CAS). Notwithstanding
the aforementioned, the Chamber recalled that according to art. 17 par. 4 sent. 2 of the
Regulations, it shall be presumed, unless established to the contrary, that any club
signing a professional who has terminated his contract without just cause has induced
that professional to commit a breach.
15.
Having stated the above, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of
the Regulations, the amount of compensation shall be calculated, in particular and
unless otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and further
objective criteria, including in particular the remuneration and other benefits due to
the player under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years as well as the fees and expenses
paid or incurred by the former club (amortised over the term of the contract) and
whether the contractual breach falls within a protected period. The DRC recalled that
the list of objective criteria is not exhaustive and that the broad scope of criteria
indicated tends to ensure that a just and fair amount of compensation is awarded to
the prejudiced party.
16.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of compensation
payable by the contractual parties in the event of breach of contract.
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 11 of 17
17.
In this respect, the Chamber acknowledged that the Respondents sustain that pursuant
to the terms and conditions as stated in art. 8 par. 1 of the employment contract, the
compensation due shall take in consideration only the amounts paid as remuneration.
The Claimant for his part alleges that according to the aforementioned article of the
employment contract, the amounts paid to the Respondent player and the actual
damage incurred have to be calculated.
18.
The Chamber considered noteworthy to mention, from the outset, that, due to their
important objective of setting forth, in advance, the indemnity to be payable by a party
in case of breach of contract, compensation clauses should be clear and give no room
for ambiguity. In other words, the DRC emphasised that, as a deciding body, when
assessing the existence or not of a compensation clause, it must be in a position to
clearly establish the precise intention of the parties as to the matter.
19.
Taking into account the clause at stake, the members of the Chamber underlined again
that no fixed amount was set out but that the amount remains open as to its maximum
and only seeks at somehow fixing the minimum amount of compensation due in case of
breach by the player.
20.
In light of the above, the Chamber considered that the aforementioned clause cannot
be considered by the DRC when establishing the amount of compensation for breach of
contract. What is more and for the sake of good order, the Chamber wished to
emphasise that, in any case, the clause at stake was not reciprocal, meaning that it did
not foresee the consequences of the unilateral termination without just cause by the
club, and that as such it could not be seen as enforceable.
21.
In continuation, the members of the Chamber determined that the amount of
compensation payable in the case at stake had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body. In
this regard, the Dispute Resolution Chamber stated beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a case-bycase basis taking into account all specific circumstances of the respective matter.
22.
In order to estimate the amount of compensation due to the Claimant in the present
case, the members of the Chamber first turned their attention to the financial terms of
the former contract and the new contract, the value of which constitutes an essential
criterion in the calculation of the amount of compensation in accordance with art. 17
par. 1 of the Regulations. The members of the Chamber deemed it important to
emphasise that the relevant compensation should be calculated based on the average
fixed remuneration, i.e. excluding any conditional or performance related payment,
agreed by the player with his former club and his new club, as well as considering the
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 12 of 17
period of time remaining on the contract signed between the player and the former
club.
23.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
fixed remuneration payable to the player under the terms of both the employment
contract signed with the Claimant, i.e. Club N, and the one signed with the Respondent
club, i.e. Club G, for the period of 12 months that was remaining since the unilateral
termination of the contract by the player until its expiry, i.e. from 1 August 2012 until 9
August 2013.
24.
In this regard, the Chamber noted that, as per the employment contract signed with the
Claimant, the Respondent player was entitled to a monthly salary in the amount of
EUR 100,000 for the remaining contractual period, i.e. a total fixed remuneration of
EUR 1,200,000.
25.
In continuation, the DRC equally took note of the Respondent player’s monthly
remuneration under the terms of his employment contract with his new club, i.e. the
Respondent club, which corresponds to USD 174,530 or approximately EUR 128,900, i.e.
the total amount of EUR 1,550,000 for the months from August 2012 until July 2013.
26.
Taking into account the above, the Chamber concluded that, for the relevant period,
the player’s average remuneration amounts to EUR 1,375,000.
27.
Having stated that, the DRC recalled that the remuneration paid by the player’s new
club is particularly relevant in so far as it reflects the value attributed to his services by
his new club at the moment the breach of contract occurs and possibly also provides an
indication towards the player’s market value at that time.
28.
In this regard, the Chamber was eager to emphasise that the player appeared to have
raised his income considerably by concluding an employment contract with the
Respondent club and that no transfer compensation had been paid by the Claimant to
Club S, from country L, for the player‘s transfer.
29.
Furthermore, with regard to the criterion relating to the fees and expenses allegedly
paid by the Claimant for the acquisition of the player’s services, the members of the
Chamber took due note that Club N had claimed to have paid the amount of
EUR 1,169,986 (cf. Facts of the case no. I./15.) and that the actual damage was estimated
to be the total amount of EUR 1,354,046 (cf. Facts of the case no. I./16.). In this respect,
the Chamber wished to point out that the Claimant had not sufficiently corroborated
the expenses invoked and that in any case, the amounts paid to the player while he was
rendering his services to the club could not be considered.
30.
Taking into account all the aforementioned objective elements in the matter at hand,
the Dispute Resolution Chamber decided that the total amount of EUR 1,375,000 was to
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 13 of 17
be considered reasonable and justified as compensation for breach of contract in the
case at hand.
31.
As a consequence, the Chamber decided that the Respondent player has to pay the
amount of EUR 1,375,000 as compensation for breach of contract to the Claimant, plus
interest of 5% p.a. as of the date of this decision until the date of effective payment,
taking into account the Claimant’s petition and the Chamber’s constant jurisprudence in
this regard.
32.
Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the
Regulations, the Respondent club shall be jointly and severally liable for the payment of
the aforementioned amount of compensation.
33.
In continuation, the Chamber focused its attention on the further consequences of the
breach of contract in question and, in this respect, it addressed the question of sporting
sanctions against the player in accordance with art. 17 par. 3 of the Regulations. The
cited provision stipulates that, in addition to the obligation to pay compensation,
sporting sanctions shall be imposed on any player found to be in breach of contract
during the protected period.
34.
In this respect, the members of the Chamber referred to item 7 of the “Definitions”
section of the Regulations, which stipulates, inter alia, that the protected period shall
last “for three entire seasons or three years, whichever comes first, following the entry
into force of a contract, where such contract is concluded prior to the 28th birthday of
the professional, or two entire seasons or two years, whichever comes first, following
the entry into force of a contract, where such contract is concluded after the 28th
birthday of the professional”. In this regard, the DRC pointed out that the player,
whose date of birth is 11 February 1980, was 31 years of age when he signed his
employment contract with the Claimant on 10 August 2011, entailing that the
unilateral termination of the contract occurred within the applicable protected period.
35.
With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a
suspension of four months on a player’s eligibility to participate in official matches is
the minimum sporting sanction that can be imposed for breach of contract during the
protected period. This sanction, according to the explicit wording of the relevant
provision, can be extended in case of aggravating circumstances. In other words, the
Regulations intend to guarantee a restriction on the player’s eligibility of four months
as the minimum sanction. Therefore, the relevant provision does not provide for a
possibility to the deciding body to reduce the sanction under the fixed minimum
duration in case of mitigating circumstances.
36.
Consequently, taking into account the circumstances surrounding the present matter,
the Chamber decided that, by virtue of art. 17 par. 3 of the Regulations, the
Respondent player had to be sanctioned with a restriction of four months on his
eligibility to participate in official matches.
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 14 of 17
37.
Finally, the members of the Chamber turned their attention to the question of whether,
in view of art. 17 par. 4 of the Regulations, the player’s new club, i.e. Club G, must be
considered to have induced the player to unilaterally terminate his contract with the
Claimant without just cause during the protected period, and therefore shall be banned
from registering any new players, either nationally or internationally, for two entire
and consecutive registration periods.
38.
In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the
Regulations, it shall be presumed, unless established to the contrary, that any club
signing a professional player who has terminated his previous contract without just
cause has induced that professional to commit a breach. Consequently, the Chamber
pointed out that the party that is presumed to have induced the player to commit a
breach carries the burden of proof to demonstrate the contrary.
39.
Having stated the above, the members of the Chamber took note that the Respondents
referred in particular to art. 17 of the FIFA Commentary to the Regulations on the
Status and Transfer of Players which states that with the “buy-out clause” the player
can also cancel the contract during the protected period and that no sporting sanctions
may be imposed on the Respondent club. In this regard, the members of the Chamber
referred to point II./12. of the present decision, according to which the members of the
Chamber did not consider the provision of art. 8 par. 1 of the contract to be a “buy-out
clause”.
40.
In light of the aforementioned and given that the Respondent club did not provide any
other specific or plausible explanation as to its possible non-involvement in the player’s
decision to unilaterally terminate his employment contract with the Claimant, the DRC
had no option other than to conclude that the Respondent club had not been able to
reverse the presumption contained in art. 17 par. 4 of the Regulations and that,
accordingly, the latter had induced the player to unilaterally terminate his employment
contract with the Claimant.
41.
In view of the above, the Chamber decided that in accordance with art. 17 par. 4 of the
Regulations, the Respondent club shall be banned from registering any new players,
either nationally or internationally, for the two entire and consecutive registration
periods following the notification of the present decision. The club shall be able to
register new players, either nationally or internationally, only as of the next registration
period following the complete serving of the relevant sporting sanction. In particular, it
may not make use of the exception and the provisional measures stipulated in art. 6
par. 1 of the Regulations in order to register players at an earlier stage.
42.
Finally, the DRC decided that the Claimant’s claim pertaining to legal costs and expenses
is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
longstanding respective jurisprudence.
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 15 of 17
43.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club N, is partially accepted.
2.
The Respondent player, Player B, is ordered to pay to the Claimant, Club N, within 30
days as from the date of notification of this decision, compensation for breach of
contract in the amount of EUR 1,375,000, plus interest of 5% p.a. as of the date of this
decision until the date of effective payment.
3.
The Respondent club, Club G, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
If the aforementioned sum plus interest is not paid within the above-mentioned time
limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
5.
The Claimant, Club N, is directed to inform the Respondent player, Player B, and the
Respondent club, Club G, 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.
6.
A restriction of four months on his eligibility to play in official matches is imposed on
the Respondent player, Player B. This sanction applies with immediate effect as of the
date of notification of the present decision. The sporting sanctions shall remain
suspended in the period between the last official match of the season and the first
official match of the next season, in both cases including national cups and
international championships for clubs.
7.
The Respondent club, Club G, shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
8.
Any further claims lodged by the Claimant, Club N, are rejected.
*****
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
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 16 of 17
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
Deputy Secretary General
Encl. CAS directives
Club N, from country U / Player B, from country A
and Club G, from country Q
Page 17 of 17